Morrison v. Walters

2022 Ohio 1740

• Court: Ohio Court of Appeals
• Decided: May 25, 2022
• Docket: C-210398
• Status: Published

Opinion

[Cite as Morrison v. Walters, 2022-Ohio-1740.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

LISA A. MORRISON, : APPEAL NO. C-210398 TRIAL NO. DR-2000523 Plaintiff-Appellee, :

: O P I N I O N. VS. :

FRANK S. WALTERS, :

Defendant-Appellant. :

Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 25, 2022

Zachary D. Smith, LLC, and Zachary D. Smith, for Plaintiff-Appellee,

Cornetet, Meyer, Rush & Stapleton and Karen P. Meyer, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} After nearly a quarter-century of marriage, the parties here decided to

part ways. The trial court accordingly sorted through their finances and assets, issued

a divorce decree, and exercised its discretion to allocate assets and liabilities.

Unsatisfied with this result, defendant-appellant Frank Walters appeals the judgment,

maintaining that the trial court erred in its findings regarding spousal support and

financial misconduct, and that it inequitably divided marital assets. On the record at

hand, however, we find that the trial court properly exercised its discretion, and we

accordingly affirm its judgment.

I.

{¶2} Mr. Walters and plaintiff-appellee Lisa Morrison came to the domestic

relations court seeking a divorce after nearly 25 years of marriage. Throughout their

marriage, the parties accumulated a number of real estate properties, automobiles,

and financial assets. The magistrate sifted through the evidence at two hearings before

setting forth detailed findings of fact and conclusions of law resolving the issues and

divvying up the assets. Mr. Walters timely objected to four of the findings. In short,

Mr. Walters contended that he should have been granted spousal support in light of

the parties differing earning abilities; that Ms. Morrison committed financial

misconduct by gambling and making interest-only payments on a home equity line of

credit; that a brokerage account was divided inequitably; and that Ms. Morrison

should not be removed from the parties’ limited liability holding company until all the

rental properties are sold. After the trial court overruled these objections and entered

a final decree of divorce, Mr. Walters now marshals those same objections before this

court.

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II.

A.

{¶3} In his first assignment of error, Mr. Walters challenges the trial court’s

determination that the parties possess similar earning potential and its concomitant

denial of spousal support. “A trial court has broad discretion in determining whether

an award of spousal support is appropriate and the proper amount of the award. * * *

A decision regarding spousal support will not be reversed on appeal absent an abuse

of discretion.” Reese v. Reese, 2019-Ohio-2810, 139 N.E.3d 1288, ¶ 11 (1st Dist.). Mr.

Walters urges us to find an abuse of discretion in the trial court’s conclusion that he

could find gainful employment in light of uncertainty as to how much he could earn.

On appeal, we will not reverse unless the court exercised its discretionary judgment

over the determination of spousal support in an unwarranted way or committed legal

error. See Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304, ¶ 35.

{¶4} At a hearing on the property division, Mr. Walters testified that he

worked in information technology at Proctor and Gamble for most of his adult life

before accepting a voluntary early retirement package in June 2015 (at approximately

50 years of age). After retirement, Mr. Walters supported himself with income from

the couple’s rental properties and by drawing money from his investment accounts.

Mr. Walters’ income for the three years directly preceding retirement averaged

$127,000 per year; after retirement, his income dropped to approximately $35,000

per year. The parties agreed to sell the rental properties as part of the divorce, thus

depriving Mr. Walters of any income from managing the properties going forward.

{¶5} Ms. Morrison, on the other hand, testified that she declined to retire

completely from her nursing occupation alongside Mr. Walters in 2015. Instead, she

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transitioned to an independent healthcare consulting role with the goal of contracting

for three-to-six month assignments and taking the rest of the year off. Over the last

three years, Ms. Morrison earned an average of $144,000 per year in this capacity.

Against that backdrop, Mr. Walters complains that the record does not substantiate

his ability to earn income comparable to the “substantial income” of Ms. Morrison.

{¶6} While a considerable difference exists in the current incomes of the

parties, “the burden of establishing the need for spousal support rests with the party

that is seeking such support.” Banchefsky v. Banchefsky, 10th Dist. Franklin No.

13AP-300, 2014-Ohio-899, ¶ 28. Prior to his retirement, Mr. Walters earned income

comparable to what Ms. Morrison now makes. In addition to his IT skills, he has

cultivated new skills in property management during his retirement. To counter his

earning potential, Mr. Walters offers little more than speculation. He surmises that

because he has done nothing since retirement to maintain his computer skills from

Proctor and Gamble, his skills are six years out of date, which would make it difficult

to find employment. He guesses that due to a back surgery in 2015, he likely would

not be able to stand or sit for long periods of time—despite the lack of any doctor’s

restrictions from obtaining employment. And even though he managed his own rental

properties for a number of years, he assumes that no company would hire him as a

property manager. These conclusory statements fail to convince us that Mr. Walters

does not have viable, marketable skills that could generate substantial income if he so

desired.

{¶7} In any event, while Mr. Walters narrows in on the court’s finding of

similar earning potential, courts must consider a variety of factors in an award of

spousal support. R.C. 3105.18(C)(1) “sets forth the factors that the trial court must

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consider in making a spousal-support determination, including, but not limited to, the

parties’ income, earning abilities, ages and conditions, retirement benefits, duration

of the marriage, marital standard of living, and assets and liabilities.” Sherman v.

Sherman, 1st Dist. Hamilton No. C-120691, 2013-Ohio-3501, ¶ 15. In deciding against

an award of spousal support, the trial court explained that it considered testimony

from both parties regarding the various factors before reaching its conclusion to deny

spousal support in this case. The record supports that analysis and subsequent

finding. The trial court accounted for Mr. Walters’ pension from Proctor and Gamble

(which includes healthcare for life at a nominal price), his separate retirement

account, the mortgage-free Colorado Springs home he received, his multiple paid-off

vehicles, and the equity he will receive once the rental properties are sold.

{¶8} Given this settlement, Mr. Walters left the marriage with no debt, ample

financial resources, and assets and skills substantial enough to provide a standard of

living comparable to the one he enjoyed during the marriage. “[E]ach party has the

burden of producing evidence as to any of the R.C. 3105.18(C)(1) factors it wants

considered, and must provide facts tending to prove its version of the manner in which

such factors should be applied.” Hunley v. Hunley, 12th Dist. Clermont No. CA2019-

12-101, 2020-Ohio-5053, ¶ 27. Determinations of earning ability are not limited to

current income, “but may also hold a person accountable for the amount of money the

person could have earned if he or she had made the effort.” Schenck v. Schenck, 12th

Dist. Butler No. CA2012-08-150, 2013-Ohio-991, ¶ 17. Mr. Walters made a conscious

decision to avoid seeking employment, testifying that “I’ve not chose to go back to

work after being retired.” He cannot now complain if the R.C. 3105.18(C)(1) factor

regarding earning ability did not come out quite the way that he wanted, particularly

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when he failed to substantiate his position with adequate evidence. See Rees v. Rees,

3d Dist. Logan No. 8-11-17, 2012-Ohio-2129, ¶ 11. Accordingly, the trial court did not

abuse its discretion in denying Mr. Walters spousal support and we overrule his first

assignment of error.

B.

{¶9} In his second assignment of error, Mr. Walters asserts that the trial

court abused its discretion by not finding that Ms. Morrison’s gambling and interest-

only loan payments constituted financial misconduct, and by failing to factor that

misconduct into the overall financial calculus. Generally, the division of marital

property shall be equal. R.C. 3105.171(C)(1) (“Except as provided in this division or

division (E) of this section, the division of marital property shall be equal.”). However,

R.C. 3105.171(E)(4) authorizes a trial court to fashion a distributive or greater award

of marital property to one spouse upon a finding that the other spouse “has engaged

in financial misconduct, including but not limited to, the dissipation, destruction,

concealment, or fraudulent disposition of assets.” Similarly, R.C. 3105.171(E)(5)

provides for compensation to the offended spouse “[i]f a spouse has substantially and

willfully failed to disclose marital property, separate property, or other assets, debts,

income, or expenses.”

{¶10} Contrary to Mr. Walters’ characterization on appeal, he presented no

evidence that Ms. Morrison engaged in any deceitful conduct to conceal her gambling.

Quite the contrary, Mr. Walters admitted that he accompanied her on sundry

gambling trips to Las Vegas during the marriage. During these excursions, Ms.

Morrison remained at the hotel casino all morning and afternoon to gamble while he

enjoyed other activities outside of the hotel. When Mr. Walters returned to the hotel,

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he would collect Ms. Morrison from the casino for dinner so they could spend the

evening together before rising and repeating the next day. Mr. Walters might not have

known the exact amount of chips that Ms. Morrison played at the blackjack table (due

to their maintaining separate finances during the entirety of their marriage), but it

cannot be seriously alleged that she hid her gambling habits.

{¶11} Moreover, the case law cited by Mr. Walters in his appellate brief does

not support his stance on appeal. He relies on Putnam v. Putnam, 12th Dist. Clermont

No. CA2008-03-029, 2009-Ohio-97, to bolster his assertion of financial misconduct.

In Putnam, the Twelfth District affirmed a finding of misconduct where the ex-wife

concealed the extent of her gambling losses by withdrawing funds from her own 401(k)

plan, cashing checks from a home equity line of credit, and failing to disclose her

gambling receipts to the IRS. The ex-wife’s gambling was a source of contention

during the marriage in Putnam, and the husband had no knowledge of the gambling

receipts or 401(k) withdrawals until the IRS conducted an audit and forced the

Putnams to file an amended tax return. See Putnam at ¶ 16. “Substantial, undisputed

evidence was introduced at trial demonstrating that [Ms. Putnam] continually

engaged in deceptive practices regarding her gambling.” Id. The same cannot be said

here.

{¶12} Mr. Walters accused Ms. Morrison of shredding her bank statements

before he could review them, but nothing in the record supports that allegation. And

unlike the Putnam case, the gambling wins and losses by Ms. Morrison were properly

recorded on the couple’s jointly-filed tax returns. Ms. Morrison was not incurring or

hiding other outstanding debts, she never withdrew money from the parties’

retirement funds, and the evidence does not suggest that the gambling was a source of

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friction in the marriage. “Financial misconduct occurs when one spouse engages in

some type of knowing wrongdoing, by which the spouse either profits or intentionally

interferes with the other spouse’s property rights.” Chawla v. Chawla, 10th Dist.

Franklin No. 13AP-399, 2014-Ohio-1188, ¶ 35. Because Mr. Walters failed to

demonstrate deception or wrongdoing (or, frankly, even the actual net amount of

aggregate gains or losses), the trial court did not abuse its discretion by declining to

find financial misconduct due to Ms. Morrison’s gambling.

{¶13} The same result holds true for the home equity line of credit jointly

taken out against the marital home, and Ms. Morrison’s decision to pay interest only

on the loan. Mr. Walters testified that he never inquired about the status of the loan

because “[t]hat was Lisa’s responsibility to manage that.” Mr. Walters may personally

consider her chosen repayment method to be financial misconduct, but neither party

disputed that the loan contained an interest-only payment as an option and Mr.

Walters cited to no authority finding wrongdoing based on spousal disagreement of

loan repayment strategies. Mr. Walters delegated the responsibility of paying the loan

to Ms. Morrison, which she did in accordance with the terms presumably allowed by

the bank. The trial court did not abuse its discretion by refusing to find financial

misconduct on the part of Ms. Morrison regarding the home equity line of credit, and

we accordingly overrule Mr. Walters’ second assignment of error.

C.

{¶14} In his third assignment of error, Mr. Walters suggests that the trial court

erred by dividing a joint brokerage account before he could use the funds to pay his

attorney fees, medical expenses, and appraisal costs for the parties’ marital properties.

As explained above, the trial court should generally divide the marital property equally

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unless statutory reasons suggest otherwise. Mr. Walters asserted that because he had

substantially less income than Ms. Morrison, he was forced to withdraw assets from

this marital account to pay his ordinary and necessary living expenses. This argument

flounders for various reasons, the first being that he failed to support his appellate

argument by pointing us to specific portions of the record and legal citations to

relevant authority. See App.R. 16(A)(7); see also Ayer v. Morenz-Harbinger, 1st Dist.

Hamilton Nos. C-190687 and C-190716, 2020-Ohio-6861, ¶ 25. This court cannot

discern whether a decision stands contrary to law unless the party making such a claim

informs us of which law the trial court allegedly ran afoul of, and Mr. Walters neglected

to provide the roadmap necessary for meaningful appellate review.

{¶15} Even if we considered the merits of this argument, Mr. Walters’ brief

fails to acknowledge separate property interests of over a half million dollars that

reverted to him before the division of the marital assets. His protestation that the trial

court “forced” him to pay his attorney fees out of a marital brokerage account because

he lacked other funds strains credulity. The trial court did not abuse its discretion by

declining to impose upon Ms. Morrison all of her attorney fees plus half of Mr.

Walters’, and we accordingly overrule the third assignment of error.

{¶16} In his final assignment of error, Mr. Walters argues that the trial court

abused its discretion by ordering him to remove Ms. Morrison’s name from BMLL,

LLC, a marital asset used by the parties as the holding company for their rental

properties. Mr. Walters seemingly believes that removing her name from the business

leaves him solely responsible for liabilities incurred until the sale of the properties,

and leaves Ms. Morrison with all of the proceeds but none of the costs. Here again,

Mr. Walters developed no legal argument in this assignment of error. See App.R.

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16(A)(7). He merely puts forth three sentences concluding that removing Ms.

Morrison’s name from the LLC will insulate her from lawsuits and obligations while

granting her full proceeds. But the trial court’s divorce decree provides that any costs

from selling the properties are to be deducted before proceeds are paid, and that both

parties are responsible for emergency repairs until the properties are sold. We are

unclear what legal inequity Mr. Walters posits and certainly none is apparent from our

review of the record.

* * *

{¶17} In light of the foregoing analysis, we overrule all four of Mr. Walters’

assignments of error and affirm the judgment of the trial court.

Judgment affirmed.

ZAYAS, P. J., and BOCK, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.