Nelson v. Nelson

2022 Ohio 658

• Court: Ohio Court of Appeals
• Decided: March 7, 2022
• Docket: 2021-L-037
• Status: Published

Opinion

[Cite as Nelson v. Nelson, 2022-Ohio-658.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

WILLIAM DAVID NELSON, SR., CASE NO. 2021-L-037

Plaintiff-Appellant, Civil Appeal from the -v- Court of Common Pleas, Domestic Relations Division LISA DIMBERIO NELSON, et al.,

Defendant-Appellee. Trial Court No. 2015 DR 000030

OPINION

Decided: March 7, 2022 Judgment: Affirmed

Ashley Cooper Kirk, Thrasher, Dinsmore & Dolan, 100 Seventh Avenue, Suite 150, Chardon, Ohio 44024 and Kevin Randall McMillan, McMillan & Sobel, LLC, 30195 Chagrin Boulevard, Suite 300, Pepper Pike, Ohio 44124 (for Plaintiff-Appellant).

Sandra A. Dray, Sandra A. Dray Co., L.P.A., 1111 Mentor Avenue, Painesville, Ohio 44077 (for Defendant-Appellee).

JOHN J. EKLUND, J.

{¶1} William Nelson (“appellant”) appeals from the Judgment Entry of Divorce of

the Lake County Common Pleas Court, Domestic Relations Division. Appellant raises

seven assignments of error relating to the trial court’s calculation of the parties’ income,

the duration of spousal support, the tax consequences of spousal support, the division of

property, and the denial of a new hearing. Finding no reversable error, we affirm.

{¶2} Appellant and Lisa Nelson (“appellee”) were married in November

1997.Appellant filed for divorce in the Lake County Domestic Relations Court in January

2015. Appellant was self-employed as a dentist in Lake County and both appellant and appellee owned multiple business ventures making this divorce complex and litigious.

The trial and hearings the court held on post-trial motions for divorce took place over

October 13, 2016; October 14, 2016; October 27, 2016; December 16, 2016; December

22, 2016; January 6, 2017; July 20, 2017; August 24, 2017; and November 6, 2017. The

trial remained open pending the resolution of certain post-trial motions until the court held

a final hearing on May 10, 2019, at which time the parties dismissed their post-trial

pleadings, effective upon the court’s judgment entry of June 18, 2019.

{¶3} Thereafter, the magistrate issued a 59-page decision on September 14,

2019. The decision listed each factor in R.C. 3105.18(C)(1) and discussed the court’s

consideration of these factors while also referencing and incorporating relevant factual

discussion into the decision. Appellant filed objections to the decision and the court

granted leave until January 6, 2020, to supplement the objections and file the transcript

of proceedings. Appellant timely filed his supplemented objections. Appellee requested

leave to file her response; thereafter, appellee filed a timely response on February 13,

2020. On October 6, 2020, the trial court issued an eight-page Judgment Entry adopting

in part and modifying in part the Magistrate’s September 14, 2019, decision. Appellant

prematurely appealed and the case was dismissed by this court for lack of jurisdiction.

On February 17, 2021, the trial court issued its Judgment Entry of Divorce and appellant

timely filed the instant appeal.

Assignments of error and analysis:

{¶4} Appellant’s seven assignments of error are reviewed under an abuse of

discretion standard. “The term ‘abuse of discretion’ is one of art, connoting judgment

exercised by a court which neither comports with reason, nor the record.” State v.

2 Case No. 2021-L-037 Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-208 [2009 WL 1177050], ¶ 30,

citing State v. Ferranto, 112 Ohio St. 667, 676-678 [148 N.E. 362] (1925).” State v. Raia,

11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, 2014 WL 2881994, ¶ 9. Stated

differently, an abuse of discretion is “the trial court’s ‘failure to exercise sound,

reasonable, and legal decision-making.’” Id., quoting State v. Beechler, 2d Dist. Clark No.

09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 62, quoting Black’s Law Dictionary 11

(8th Ed.Rev.2004). “When an appellate court is reviewing a pure issue of law, ‘the mere

fact that the reviewing court would decide the issue differently is enough to find error[.] *

* * By contrast, where the issue on review has been confined to the discretion of the trial

court, the mere fact that the reviewing court would have reached a different result is not

enough, without more, to find error.’” Id., quoting Beechler at ¶ 67.

{¶5} The record in this matter is voluminous, including nine days of trial

transcripts, while the magistrate’s decision and trial court’s review, amendments, and

adoption of that decision are comprehensive. Under an abuse of discretion standard, this

court reviews the facts in the record to determine whether the trial court exercised sound,

reasonable, and legal decision-making. Appellant has not asserted any assignment of

error that suggests that the trial court made an error of a pure issue of law, and we review

his assignments accordingly. Therefore, this court will not disturb the discretion of the trial

court if its findings are supported by the record.

Spousal Support

{¶6} A trial court has broad discretion to decide what award of spousal support

is equitable based upon the facts and circumstances of each case. Kunkle v. Kunkle, 51

Ohio St.3d 64, 67, 554 N.E.2d 83 (1990). When determining spousal support, the trial

3 Case No. 2021-L-037 court must provide sufficient detail for the basis of the award to allow adequate appellate

review. Kaechele v. Kaechele, 35 Ohio St.3d 93, 96-97, 518 N.E.2d 1197 (1988). To

satisfy the Kaechele standard, a trial court must provide some factual support for the

award rather than simply stating it considered the factors listed in R.C. 3105.18(C)(1).

Call v. Call, 11th Dist. Portage No. 99-P-0004, 2000 WL 522458, * 3. In rendering its

decision, the trial court is in the best position to observe the witnesses, which “cannot be

conveyed to a reviewing court by a printed record.” Miller v. Miller, 37 Ohio St.3d 71, 74

(1988). Moreover, we are “guided by the presumption that the trial court's findings were

indeed correct.” Id.

{¶7} Appellant’s first and second assignments of error are addressed together.

The first and second assignments state:

{¶8} “[1.] The Trial Court committed prejudicial error in determining Plaintiff-

Appellant’s income for support purposes where it arbitrarily added tax to Plaintiff’s pre-

tax income, and where it failed to use income averaging to calculate income for spousal

support purposes.”

{¶9} “[2.] The Trial Court committed prejudicial error in its determination of

Defendant-Appellee’s income for spousal support purposes where it failed to include

Defendant’s multiple income sources and relied on her self-serving testimony to use an

income year presenting significantly lower salary than all other available years.”

{¶10} Appellant claims that the trial court erred in the following ways: first, by

overcalculating his 2015 gross income by $60,000; second, by arbitrarily using a single

income year rather than income averaging; third, failing to include certain income sources

4 Case No. 2021-L-037 for appellee when calculating her income; and fourth, improperly weighing appellee’s

testimony as to her loss in earnings. We will take each of these arguments in turn.

{¶11} The trial court did not err in calculating appellant’s gross income:

Appellant argues that the trial court incorrectly included $60,000 that he paid in federal

taxes in appellant’s pre-tax income. Appellant’s business paid his 2015 estimated income

tax directly to the IRS. Line 65 of appellant’s 2015 income tax return indicates that

appellant listed $60,000 as estimated tax payments. Schedule C of the 2015 tax return

shows the profit and loss of appellant’s business as $191,868, which is the same number

reported on line 12 of his individual return for business income. The question at issue

here, then, is whether the $60,000 tax payment was already included on line 12 of

appellant’s tax return.

{¶12} We start by noting that the $60,000 figure was not specifically delineated in

the net profits listed for his business in Schedule C, nor was it specifically delineated in

the total income reported on line 22 of his 2015 individual tax return. At trial, when asked

how he paid the income tax payment, appellant testified that the $60,000 came from his

business accounts and that a check was written directly from the business to the IRS. He

further clarified that he did not pay the money back to the business and that he considered

the payment on his behalf a distribution. When asked if this would be considered income

to him, his trial counsel objected. Further testimony at a later hearing date again

addressed this issue with appellee’s counsel asking appellant where his taxes show the

$60,000 came out of his businesses net profits. His response was “I can’t, but that’s what

happened.” The matter was left for the magistrate to decide whether to impute this sum

5 Case No. 2021-L-037 in addition to the figure listed on appellant’s tax return under his gross income and there

was no further testimony on the matter.

{¶13} The trial court adopted the magistrate’s decision to impute the $60,000 as

additional income to appellant. In so doing, the court observed that appellant testified that

he did not do his own income taxes and instead gave his accountant the information

needed to complete his taxes. The court wrote that appellant “could have called his

accountant as a witness. He did not do so at his peril.” The trial court cited In re Sullivan,

167 Ohio App.3d 458, 2006-Ohio-3206, 855 N.E.2d 554 (11th Dist.), where this court

stated that “[i]t is not the duty of the trial court to ferret out those expenses that qualify as

ordinary and necessary. Rather, it is the duty of the obligor to assert that certain items

are exempt from inclusion as gross income * * *.” Id. at ¶ 25.

{¶14} The Dissent suggests that appellant’s 2015 income tax filings speak for

themselves, noting that he signed the filings under penalty of perjury and that the

document itself provides clear evidence of a party’s income. See Freeland v. Freeland,

4th Dist. Jackson No. 02CA18, 2003-Ohio-5272, ¶ 16. Although the record is clear that

appellant listed $60,000 on line 65 of his 2015 tax filing, what is not clear is whether that

amount was included on the figure reported as part of the business’ net profit in Schedule

C to appellant’s 2015 tax return, or as total income. Appellant’s own merit brief notes that

his tax return “does not break down the reported income to show whether or not such

draws were included * * *.” (Emphasis added). The documents do not speak for

themselves in this case.

{¶15} The parties do not disagree that the sum should be counted as income.

Appellant argues that the mere listing of the $60,000 on line 65 of his 2015 individual tax

6 Case No. 2021-L-037 return as estimated taxes paid in 2015 proves that the $60,000 was already included in

his reported total income of $193,254 and that the trial court double counted the $60,000.

At oral argument, appellant asserted that Schedule C for his 2015 tax return would

support his claim, in that the $60,000 is not listed there as an itemized expense. However,

in reviewing the tax return in evidence, we find that there is no demonstrative proof that

the $60,000 was separately listed and distributed for appellant’s 2015 estimated tax

payment.

{¶16} Appellant argues that there is not a $60,000 itemized expense on Schedule

C, and that it was included in the total income on his return. But there is a void in the

evidence that appellant himself created. The $60,000 might be included in the total

income figure reported on his taxes as he claims – or it might not be reported. There is

no way to know from the evidence available. Appellant would have us, and the lower

court, presume of the $60,000, like a jar of Prego sauce, that “It’s in there.” This we cannot

do.

{¶17} The Dissent also grants far more credibility to appellant’s testimony than the

trial court, which characterized appellant’s testimony as unreliable by saying he “could

recollect almost nothing about the preparation of his federal tax returns with relevant

schedules.” He, himself, emphasized his own ignorance of his taxes by saying “I don’t do

my tax returns for exactly this reason. I just give my accountant the information and she

does the taxes.” Despite this, he failed to call Elizabeth Tilton the Certified Public

Accountant who prepared his tax returns. It is telling that in his brief, appellant states that

his tax return “does not break down the reported income to show whether or not such

draws were included * * *.” (Emphasis added). This statement only reinforces the trial

7 Case No. 2021-L-037 court’s observation that appellant could have called his accountant as a witness to clarify

this portion of the record and failed to do so at his peril. Under an abuse of discretion

standard, we cannot find that the trial court did not use sound, reasonable, decision

making and the mere fact that Dissent would reach a different result is not enough to

justify overturning the lower court’s decision.

{¶18} On the record before the court, we do not conclude that the trial court

abused its discretion by imputing that distribution to appellant’s gross income. The trial

court was in the best position to weigh the evidence and appellant’s testimony to

determine the facts based upon the record. As the trial court observed, appellant had an

opportunity to “assert that” the $60,000 was “exempt from inclusion as gross income” and

chose not to present evidence demonstrative of that fact. See Id. at ¶ 25.

{¶19} The trial court used its authority to decide whether to use income

averaging: Next, appellant argues that the trial court abused its discretion by relying on

a single year of income rather than income averaging to determine the parties’ income.

Appellant states that the magistrate discussed the possibility of using income averaging

to determine income but ultimately relied upon a single year of income. This court has

held that the “decision regarding when the use of an averaging method is appropriate is

left to the sound discretion of the trial court because it is in the best position to weigh the

facts and circumstances.” In re Sullivan, at ¶ 29, citing Cook v. Cook, 11th Dist. Lake No.

95-L-115, 1996 WL 200573 and Worch v. Worch, 2d Dist. Darke No. 1502, 2000 WL

376643.

{¶20} In this case, the trial court referenced and relied upon the parties’ prior

income years as part of its analysis for determining spousal support. The court stated that

8 Case No. 2021-L-037 appellant had income that “was increasing and demonstrates significantly more earnings

in 2012 and 2013 than in 2014 and 2015. However, for the purposes of determining

income, the plaintiff’s 2015 income tax return should be the base, starting point * * *.” In

reference to appellee’s income, the trial court modified the magistrate’s decision to modify

appellee’s income upward slightly. However, the court also relied upon testimony from

appellee that her business had been affected by the passage of the Affordable Care Act

and that certain provisions went into effect in 2014 which lowered her profits substantially.

The court found this testimony to be credible and relied upon it to determine appellee’s

income.

{¶21} These remarks indicate that the trial court had the necessary information to

use income averaging and made a specific decision to not use it. The trial court was in

the best position to weigh the facts and circumstances and we will not disturb that decision

here when the record demonstrates that the court weighed the appropriateness of income

averaging and specifically chose not to use it.

{¶22} The trial court appropriately considered all of appellee’s income

sources: Although appellant lists several potential sources of income that the trial court

could have considered in calculating appellee’s income, we do not find that the trial court

erred in excluding these sources such as appellee’s inheritance, retained business

earnings, and cash draws from her businesses. The court addressed these specific items,

weighed the evidence, and determined in each instance that they should not be counted

as income to the appellee.

{¶23} In reference to the inheritance, the court declined to impute this as income

to appellee because she had used significant inheritance monies to improve the marital

9 Case No. 2021-L-037 estate, which appellant received in the distribution of assets. Further, appellee had used

portions of her inheritance to maintain the status quo both during and after the marriage.

On this basis, the court declined to include the inheritance as income.

{¶24} In reference to cash draws from appellee’s businesses, the court did not

include certain draws as income because appellee’s unrebutted trial testimony reflected

that she used these draws to pay independent contractors commissions that they were

owed for business related services. The magistrate found that appellee’s “testimony as

to commissions paid to independent contractors was highly credible.” In the absence of

countervailing facts to suggest that the trial court erred, we are “guided by the

presumption that the trial court’s findings were indeed correct.” Miller, supra, at 74.

{¶25} In reference to the retained business earnings, the court, again, noted that

appellee had to use these earnings to keep the financial boat afloat during the pendency

of the divorce. The trial court’s final judgment entry did make minor modifications on the

basis that the court found that appellee used $4,352 of business funds for her personal

expenses rather than business expenses. However, in reference to other payments, the

court said there was “no evidence to link those payments from the LLC to the personal

expenses of the Defendant.” Where, as here, the trial court provides specific facts and

reasoning for its decisions in calculating spousal support, the reviewing court will not find

error.

{¶26} The trial court was in the best position to weigh trial testimony:

Appellant argues that the trial court improperly weighed the trial testimony by relying upon

appellee’s “self-serving” testimony that provisions of the Affordable Care Act had

significantly reduced her income. However, the trial court is in the best position to weigh

10 Case No. 2021-L-037 testimony and we presume that the trial court’s findings are correct. Appellee testified that

her income had been negatively impacted by the Affordable Care Act. She said that

various provisions of the law went into effect in 2014 which reduced the commissions that

appellee earned from the sale of health insurance policies. For instance, she said that

commissions she previously earned ranged from 10-14% per policy prior to the changes

and that after the changes, the commissions dropped to 4-5% per policy. Appellee

testified that in the second year after the sale of a health insurance policy, a commission

for a family of five dropped from $150 to $35. This testimony was unrebutted, and the trial

court did not err in finding it credible and relying upon it.

{¶27} Accordingly, Appellant’s first and second assignments of error are without

merit.

{¶28} Appellant’s third assignment of error states:

{¶29} “[3.] The Trial Court committed prejudicial error in determining the duration

of the term of spousal support when it sustained Plaintiff’s objection to the length of the

term, but added an additional thirty months without explanation.”

{¶30} The trial court properly modified the duration of spousal support:

Although appellant argues that the trial court added an additional thirty months to his term

of spousal support without explanation, the record does not reflect this. The magistrate’s

decision ordered a 72-month support term retroactive to January 1, 2016, to December

31, 2021. The trial court modified this order saying that appellant’s “objection as to

duration is well taken” and in sustaining that objection ordered appellant to pay spousal

support for a term of 54 months retroactive to January 1, 2020, to June 30, 2024.

11 Case No. 2021-L-037 {¶31} The trial court’s Judgment Entry specifically discussed the magistrate’s

decision to order a 72-month spousal support term retroactive to January 1, 2016, with

the amount $5,000 per month retroactive to January 1, 2016. The court also noted that

the temporary spousal support order effective March 4, 2015, was only $2,585 per month.

The court said that a “temporary spousal and/or child support order is to keep the financial

status quo of the parties pending trial. The transcript shows the Defendant used some of

her inheritance to pay bills during the pending divorce.” Therefore, the court’s modification

of support changed the initial 72 months at $5,000 per month retroactive to January 1,

2016, to a modified duration of 54 months at $5,000 per month retroactive to January 1,

2020. The total months that appellant is paying the full support order are indeed less than

the magistrate’s initial order. The court finds no error in the trial court’s modification of the

support order.

{¶32} Accordingly, appellant’s third assignment of error is without merit.

{¶33} Appellant’s fourth assignment of error states:

{¶34} “[4.] The Trial Court erred in failing to address the tax consequences of the

award of spousal support in violation of O.R.C. 3105.18.”

{¶35} Appellant failed to raise the effects of the Tax Cuts and Jobs Act

during post-trial briefing when he had opportunity to do so: Appellant claims that the

trial court erred by failing to address the tax consequences of the award for spousal

support as required by R.C. 3105.18(C)(1)(l). R.C. 3105.18(C)(1)(l) requires the court to

consider the tax consequences under “the general rule * * * that, ordinarily, ‘if the award

is such that, in effect, it forces a party to dispose of an asset to meet obligations imposed

by the court, the tax consequences of that transaction should be considered.’” Rice v.

12 Case No. 2021-L-037 Rice, 11th Dist. Nos 2006-G2716 and 2006-G2717, 2007-Ohio-2056, ¶ 31, quoting, Day

v. Day, 40 Ohio App. 3d 155, 159, 532 N.E.2d 201 (10th Dist. 1988). “[W]here an appellant

has failed to produce evidence of tax consequences in the trial court * * * tax

consequences are speculative and need not be considered.” Id., quoting Bauman v.

Bauman, 6th Dist. Erie No. E-01-025, 2002-Ohio-2172, ¶ 16. Otherwise, the trial court

would be engaging “in determining the tax consequences of the transaction based upon

mere conjecture or speculation.” Id. citing White v. White, 9th Dist. Summit No. 18275,

1998 WL 103338, * 3.

{¶36} In Rice, we relied upon Ferrero v. Ferrero, 5th Dist. Stark No. 98-CA-00095,

1999 WL 744431, where the court found that the appellant had raised a tax issue to the

court but failed to produce any evidence as to what the tax consequences would be. Rice.

at ¶ 32, citing Ferrero, at *15-16. When a party does not present evidence on the tax issue

beyond argumentation, the trial court need not consider the tax consequences because

to do so would be speculative. Id. The failure to offer evidence on the tax consequences

waives the right to assert the argument on appeal. Id.

{¶37} In this case, appellant cites the passage of the Tax Cuts and Jobs Act which

eliminated the alimony deduction for spousal support for divorces executed after January

1, 2019. Appellant claims that the length of time between the trial in January 2017 and

the magistrate’s decision in September 2019 resulted in the passage of a law, the effects

of which he was unable to argue to the court and which the court did not consider. To

remedy this, appellant seeks remand for the trial court to consider this issue.

{¶38} However, the facts of this case reveal that the reason there was a significant

delay between the conclusion of the trial and the magistrate’s decision was the parties’

13 Case No. 2021-L-037 resolution of all post-trial briefs. The post-trial briefs were not resolved until June 18, 2019,

and the magistrate’s lengthy decision was issued shortly thereafter on September 14,

2019. Although the trial ended prior to the passage of the Tax Cuts and Jobs Act,

appellant had ample opportunity between its passage and the resolution of all post-trial

briefs to raise this issue and present facts outlining how, if at all, the passage of this act

would have tax consequences on him or appellee. Appellant did not raise this issue until

he objected to the magistrate’s decision. At that point, it would have been speculative for

the court to rule upon this issue because appellant had not presented any facts or

evidence on the issue.

{¶39} Contrary to appellant’s claims, he could have raised the issue prior to the

magistrate’s decision. This is particularly true in this case where post-trial motions were

pending for an extended period. Appellant did not present evidence on this issue at the

trial level and the court did not abuse its discretion in not addressing a topic which

appellant did not raise until after the magistrate’s decision. Moreover, his failure to offer

evidence or raise the issue prior to the magistrate’s decision waives his right to assert this

argument on appeal.

{¶40} Accordingly, appellant’s fourth assignment of error is without merit.

Division of Marital Property:

{¶41} A domestic relations court's division of property in a divorce proceeding is

reviewed under an abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348,

355, 421 N.E.2d 1293 (1981); Hutchison v. Hutchison, 11th Dist. Lake No.2014–L–048,

2014–Ohio–5471, ¶ 14. In reviewing the court’s division of property, an appellate court “is

not required to conduct an item-by-item review of a property division. Fazenbaker v.

14 Case No. 2021-L-037 Fazenbaker, 11th Dist. Trumbull No. 2009-T-0131, 2010-Ohio-5400, ¶26, citing Winkler

v. Thomas, 5th Dist. Tuscarawas No. 2000AP03-0031, 2001 WL 81701, * 4. “[W]hen

considering whether a trial court has abused its discretion in dividing marital property, a

reviewing court should not review discrete aspects of the property division out of context

of the entire award.” Baker v. Baker, 83 Ohio App.3d 700, 615 N.E.2d 699 (1992), citing

Briganti v. Briganti, 9 Ohio St.3d 220, 222, 459 N.E.2d 896 (1984). Instead, a reviewing

court ‘should consider whether the trial court’s disposition of marital property as a whole

resulted in a property division which was an abuse of discretion.’ Baker [702].” (Emphasis

added.) Rice, supra, at ¶ 33.

{¶42} A “‘trial court's characterization of property, as separate or marital, is a

question of fact, thus, a reviewing court must apply a manifest weight of the evidence

standard of review to the trial court's characterization.” Humphrey v. Humphrey, 11th Dist.

No. 2000–A0092, 2002 Ohio 3121, at ¶ 16. “‘Under this standard, the judgment of the trial

court will not be reversed as being against the weight of the evidence if the court's

decision is supported by competent, credible evidence.’” Id. quoting Frederick v.

Frederick, 11th Dist. Portage No. 98-P-0071, 2000 WL 522170, *13-14.

{¶43} Appellant’s fifth and sixth assignments of error both relate to the court’s

division of marital property, and we analyze them together. Appellant’s fifth and sixth

assignments of error state:

{¶44} “[5.] The Trial Court committed prejudicial error when it allocated the division

of the Fredle Drive LLC business checking account.”

{¶45} “[6.] The Trial Court committed prejudicial error when it failed to divide the

marital portion of the Defendant’s personal injury award.”

15 Case No. 2021-L-037 {¶46} Appellant claims that the trial court incorrectly allocated the division of the

parties’ “Fredle Drive LLC” business account and that the court abused its discretion by

not dividing appellee’s personal injury award.

{¶47} In reference to the allocation of the Fredle Drive LLC business account,

appellant claims that the lower court improperly divided this asset by ordering it to be

divided twice. The parties were both owners of Fredle Drive LLC and the bank accounts

associated with the business. Prior to the divorce filing, appellee managed the accounts,

but appellant assumed control after the divorce filing and for approximately two years

thereafter. At trial, appellee testified that at the end of every year, the monies from the

accounts were distributed to appellant and appellee equally. After appellant took control

of the account, appellee did not receive the end of year distribution for 2015 or 2016.

Appellee provided evidence that the balance of the account for the 2015 distribution

period was $15,492.19 and that the balance for the 2016 distribution period was

$19,990.00.

{¶48} The magistrate’s decision weighed the testimony on this issue and found

that the appellant “was disingenuous as to his position related to this asset as he stated

he did not remember receiving K1s [distributions] and failed to make even the most

cursory glance at his prior tax returns that clearly explained these usual distributions.”

The magistrate’s decision granted appellee a total of $19,263.80, an amount the

magistrate said was “borne out by the Citizens’ Bank account exhibits and are in line with

the 2012 and 2013 pay-outs.” In its Judgment Entry, the trial court agreed with this

assessment saying that appellant “could not provide substantive evidence as to his

handling of the Fredle Drive account. Based on the evidence adduced at trial, this Judge

16 Case No. 2021-L-037 concurs with the Magistrate’s division as to the Citizen Bank account year end balances

for 2015 and 2016.”

{¶49} In reference to the personal injury award, appellee suffered a personal injury

in Charleston, South Carolina and filed suit to recover for her injuries. Appellant did not

join this action and did not file a loss of consortium claim. Although the injury and the filing

of the lawsuit occurred prior to the divorce proceedings, the case was not settled until

after appellant initiated the divorce proceedings. At trial, appellee testified that she “just

paid the medical bills as they came in like if they were any other bill.” However, she also

testified that she was not expecting a windfall saying that the $28,500 settlement she

expected to receive would only be enough to cover attorneys’ fees, costs, and the

remaining unpaid medical bills.

{¶50} R.C. 3105.171(A)(6)(a)(vi) provides that marital property does not include

“[c]ompensation to a spouse for the spouse’s personal injury, except for loss of marital

earnings and compensation for expenses paid from marital assets[.]” R.C.

3105.171(A)(6)(a)(vi) “‘The party seeking to have a particular asset classified as separate

property has the burden of proof, by a preponderance of the evidence, to trace the asset

to separate property.’” Campbell v. Campbell, 11th Dist. Lake No. 2014-L-015, 2014-

Ohio-5614, ¶ 21, quoting Smith v. Smith, 11th Dist. Trumbull No. 98-A-0034, 1999 WL

1488950, *13. The trial court is required to make findings determining whether the party

requesting the court to classify an asset as separate property has met the burden. Id.,

citing Letson v. Letson, 11th Dist. Trumbull No. 95-T-5356, 1997 WL 663514, *11. Where

a personal injury settlement is made payable in one check to both husband and wife, the

parties comingle their separate property. Id. at ¶ 28, citing Modon v. Modon, 115 Ohio

17 Case No. 2021-L-037 App.3d 810, 816, 686 N.E.2d 255 (1996). In cases where the monies are comingled, the

party seeking to characterize the property as separate has the “burden of convincing the

trial court how much of the check was compensation” for personal injuries and associated

expenses. Id., quoting Modon.

{¶51} Here, the lower court characterized the personal injury settlement as

separate property. The parties’ funds were not comingled. Appellant’s name was not on

the settlement check, and he did not join the action or file his own claim for loss of

consortium. Therefore, the personal injury settlement itself was properly characterized as

separate marital property pursuant to R.C. 3105.171(A)(6)(a)(vi) – provided that the

marital estate did not suffer losses for “expenses paid from marital assets[.]”

{¶52} In this case, the trial court rejected appellant’s claim that appellee had paid

medical expenses out of marital funds. The court said that the parties had largely

separated their finances from 2014 to the present and maintained separate accounts

through their marriage while appellee paid the greater portion of the medical bills between

2014 and 2016. The court further found appellee’s statements credible that the award

was only enough to cover appellee’s outstanding medical expenses. The court said it

would be inequitable to divide appellee’s settlement when she needed the full amount to

pay her remaining, separate medical expenses. On this evidence, the court found that

appellee satisfied her burden of proof to establish the settlement as separate property.

Thus, the trial court relied upon competent credible evidence to determine that the

personal injury settlement was separate property under R.C. 3105.171(A)(6)(a)(vi).

{¶53} We review appellant’s assignments as to the division of marital property

mindful the reviewing court is not required to engage in item-by-item reviews of the lower

18 Case No. 2021-L-037 court’s division of property. Instead, we are guided by the overall equity of the award. In

the above instances, we cannot say on this record that the court abused its discretion in

the disposition of marital property.

{¶54} Accordingly, appellant’s fifth and sixth assignments of error are without

Civ. R. 53(D)(4)(d) additional evidence:

{¶55} Appellant’s seventh assignment of error states:

{¶56} “[7.] The Trial Court committed prejudicial error and abused its discretion in

failing to grant a new hearing.”

{¶57} Appellant relies upon Civ. R. 54(D)(4)(d) which deals with the court’s action

on objections to magistrate’s decisions. Appellant asserts that the trial court abused its

discretion by not hearing additional evidence that appellant says became available

between the trial and the magistrate’s decision.

{¶58} Civ. R. 54(D)(4)(d) provides,

(D) Proceedings in Matters Referred to Magistrates. *** (4) Action of Court on Magistrate's Decision and on Any Objections to Magistrate's Decision; Entry of Judgment or Interim Order by Court. *** (d) Action on Objections. If one or more objections to a magistrate's decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Before so ruling, the court may hear additional evidence but may refuse to do so unless the objecting party demonstrates that the party could not, with reasonable diligence, have produced that evidence for consideration by the magistrate.

19 Case No. 2021-L-037 {¶59} After the magistrate’s decision, appellant objected and requested a new

evidentiary hearing pursuant to Civ. R. 53(D)(4)(b) so that the court could hear new

evidence – namely new income tax returns to determine the parties’ income. Appellant

cites several cases outside of the Eleventh District which hold that “a court does not have

discretion to refuse to consider new evidence if the objecting party demonstrates that it

could not, with reasonable diligence, have presented the evidence to the magistrate.”

Welch v. Welch, 4th Dist. Athens No. 12CA12, 2012–Ohio–6297, ¶ 12; Morrison v.

Morrison, 9th Dist. Summit No. 27150, 2014-Ohio-2254, ¶27 (quoting Welch); Maddox v.

Maddox, 2016-Ohio-2908, 65 N.E.3d 88. ¶ 14 (1st Dist.). (A trial court is required to accept

“additional evidence if the objecting party demonstrates that with reasonable diligence, it

could not have produced the evidence for the magistrate’s consideration. See Riley v.

Riley, 6th Dist. Huron No. H–08–019, 2009-Ohio-2764, 2009 WL 1652837, ¶ 20,

quoting Johnson–Wooldridge v. Wooldridge, 10th Dist. Franklin No. 00AP–1073, 2001

WL 838986 (July 26, 2001).”).

{¶60} The Eleventh District has held that “‘[w]hile the trial court has the discretion

to refuse to consider additional evidence, the trial court must first give the offering party

an opportunity to demonstrate that such evidence could not have been produced before

the magistrate.’” Porter v. Ferrall, 11th Dist. Portage No. 2002-P-0109, 2003-Ohio-6685,

¶ 16, quoting McClain v. McClain 11th Dist. No. 98-P-0002, 1999 Ohio App. LEXIS 4655,

12-13 (Sept. 30, 1999).

{¶61} In Morrison, the court noted that a request for an additional evidentiary

hearing could be subject to abuse. The court said that Civ. R. 53(D)(4)(d) “‘contemplates

that new events may arise or be discovered between the time of a magistrate’s decision

20 Case No. 2021-L-037 and a trial judge’s final judgment.’” Morrison, supra, at ¶ 27, quoting In re A.S., 9th Dist.

Summit No. 26462, 2013–Ohio–1975, ¶ 14–15 (analyzing identical language in Juv.R.

40(D)(4)(d)). The court in Morrison said that a blanket rule requiring a hearing based on

the invocation of talismanic words “could lead to an abuse of that rule.” Id. at ¶ 28. In that

case, the court found the moving party had satisfied the requirements of Civ. R.

53(D)(4)(d) because,

Wife noted the evidence did not become available until after trial. She identified a factual change in circumstances regarding her employment. Finally, she detailed that the parties’ legal parental rights and responsibilities could be affected by the change. We take no position on the merits of Wife’s allegations, but simply find a hearing was warranted under the circumstances. Id.

{¶62} The “crux” of the reasonable diligence standard of Civ. R. 53(D)(4)(d) “is

whether the party was put on notice that they would be reasonably expected to introduce

the evidence at the hearing before the magistrate. If the party had notice that they would

be reasonably expected to introduce evidence on the subject, then the trial court has

discretion to accept or reject that evidence.” (Citations omitted). Maddox, supra, at ¶ 15.

The court should consider whether or not the record demonstrates that an appellant “with

reasonable diligence, could not have produced that evidence for the magistrate’s

consideration.” Porter, supra, at ¶ 19. (Holding that appellant “had ample opportunity to

gather that evidence and present it to the magistrate at the previous evidentiary hearings.

Thus, the trial court lawfully exercised its discretion in refusing to allow that additional

evidence, which was by no means ‘newly discovered.’”)

{¶63} In this case, appellant identified that his evidence of newly filed tax returns

had become available between the time of trial and the magistrate’s decision. However,

21 Case No. 2021-L-037 as noted above, the cause for the substantial time between trial and the magistrate’s

decision was that multiple post-trial motions remained pending until the parties resolved

those issues. Had appellant used reasonable diligence in that period, he would have filed

an additional post-trial brief prior to the magistrate’s decision seeking to supplement the

record with newly filed tax returns which were available well before the magistrate’s

decision. See Id. at ¶ 16.

{¶64} Appellant has also indicated that a change in income could affect the

parties’ rights and responsibilities. However, appellant has failed to identify any factual

change in circumstance regarding the parties’ income. Instead, appellant speculates

about a change in circumstances and does nothing more than invoke the talismanic words

of Civ. R. 53(D)(4)(d). See Morrison, supra, at ¶ 28.

{¶65} Finally, in this case, the court retained jurisdiction to modify the spousal

support order. If there has been a substantial change in circumstances that was not

contemplated by the parties in the original decree, appellant may present such to the trial

court. See Riley v. Riley, 11th Dist. Ashtabula No. 2012-A-0037, 2013-Ohio-1604, ¶ 37-

38. However, appellant did not present any argument or evidence that would suggest

there has been a substantial change in circumstances. Rather, he has merely made

suggestions that new income information from subsequent years could be different. We

decline to conclude that the trial court abused its discretion under these circumstances.

{¶66} Accordingly, appellant’s seventh assignment of error is without merit.

22 Case No. 2021-L-037 {¶67} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, Domestic Relations Division, is affirmed.

THOMAS R. WRIGHT, P. J., concurs,

MATT LYNCH, J., concurs in part and dissents in part, with a Dissenting Opinion.

_____________________________

MATT LYNCH, J., concurs in part and dissents in part, with a Dissenting Opinion.

{¶68} While I concur with the disposition of the second through seventh

assignments of error, I dissent from the majority’s decision to affirm the addition of

$60,000 to appellant’s 2015 income above the amount stated in his tax return. This

determination results in unfairly counting the $60,000 in question twice, rejects appellant’s

credible testimony, and places an unreasonable burden on appellant to provide additional

evidence of his income where his tax return already established such fact. Given the lack

of any rebuttal evidence establishing this amount was not accounted for in appellant’s tax

return, the trial court’s determination of appellant’s income must be reversed.

{¶69} The majority finds that the trial court did not abuse its discretion when

adding $60,000 to appellant’s 2015 claimed income, finding he failed to “present evidence

demonstrative of” the fact that the $60,000 was exempt from inclusion as additional

income. It concludes, like the trial court, that he should have called his accountant as a

witness to demonstrate whether the $60,000 was included in the reported taxable income.

There are several flaws in this conclusion. Significantly, it places a burden on appellant

23 Case No. 2021-L-037 that is not required by law and is unwarranted under the facts of this case. Here, appellant

introduced a copy of his tax return stating his income for 2015, which he signed

electronically, under penalty of perjury, affirming that the income information was

accurate. See 26 U.S.C. 6065 (“Except as otherwise provided by the Secretary, any

return, declaration, statement, or other document required to be made under any

provision of the internal revenue laws or regulations shall contain or be verified by a

written declaration that it is made under the penalties of perjury.”). Such a document

provides credible and clear evidence of a party’s income. It has been held that, “in

determining what constitutes ‘income,’ * * * a trial court should typically use the figures

shown on a party’s annual income tax return” and that such figures “are preferred to a

party’s oral representations in determining what constitutes the party’s ‘income’ for the

purposes of R.C. 3105.18(C)(1)(a).” Freeland v. Freeland, 4th Dist. Jackson No. 02CA18,

2003-Ohio-5272, ¶ 16; Wagshul v. Wagshul, 2d Dist. Montgomery No. 23564, 2010-Ohio-

3120, ¶ 21. To add $60,000 to appellant’s reported income is essentially to determine

that he fraudulently stated his income on his tax return, which conclusion the evidence

simply does not support.

{¶70} In addition to the tax return, appellant provided testimony in relation to the

disputed $60,000, which he had used to make a tax payment. Appellant testified that the

money “came out of that $190,000,” i.e., the amount of his income stated in the 2015 tax

return. In other words, although he used $60,000 from his business account to pay

quarterly taxes, this amount was included as part of the approximately $190,000 income

claimed. This testimony, coupled with the tax return, supports a conclusion contrary to

that reached by the trial court and demonstrates no additional income should have been

24 Case No. 2021-L-037 added to the amount stated in the tax return. It is irrelevant how appellant spent the

$60,000; it is only pertinent whether the evidence supports that appellant reported it as

taxable income.

{¶71} The decision to increase appellant’s income by $60,000 appears to be

based solely on a few comments in his testimony which the trial court interpreted to mean

he had not claimed the $60,000 as income on his tax return. Appellant, when asked how

his taxes were paid, stated that the money “came from [his] business.” When asked if it

was a “distribution,” he indicated that he did not understand the question. He explained

that it was income but when asked if it should have been declared as part of his income

for tax purposes he explained, “That’s not how this works.” He later clarified that, since

the money was part of his income, he reported it on the return for tax purposes, and,

regarding the previous confusion over whether it was a distribution, he was “looking at it

from a semantic standpoint.” Far from establishing a failure to correctly report his income,

appellant’s testimony, viewed as a whole, only serves to demonstrate his confusion about

financial terms and intricacies of tax reporting. While the testimony used by the trial court

to justify its decision was equivocal and uncertain, when asked questions to clarify, he

definitively and clearly stated that the $60,000 was part of the $190,000 in income he

made in 2015. This is also consistent with his statement that he keeps funds in the

business account that are part of his claimed income. Such testimony is credible, even if

he was not fully cognizant of the terminology utilized when discussing these matters.

Appellee argues that, as a businessman, appellant should understand tax-related

matters, however, a decision to increase appellant’s income by over 25 percent and

thereby greatly increasing the amount of the support award, cannot be based on

25 Case No. 2021-L-037 conjecture. Appellant is a dentist and there is nothing to indicate he is well-versed on

matters relating to finances or taxes; he emphasized in his testimony that he is not and

repeatedly noted his use of an accountant to handle various business matters.

{¶72} The emphasis on the appellant’s failure to call his accountant as a witness

is also misplaced. As noted above, given the significance of the tax return itself in

establishing his income and his own testimony that the $60,000 was part of his reported

income, such evidence was sufficient to demonstrate his 2015 income. There is no

authority requiring an accountant’s testimony to establish this fact nor should a party be

required to have an accountant explain the tax implications of every withdrawal from a

business account. Such testimony would be cumulative as to the issue in dispute, i.e.,

whether the amount claimed on the tax return included the $60,000 paid for appellant’s

quarterly taxes. The accountant would only be able to provide testimony as to what

appellant reported to her as his income when aiding in the preparation of his return. If

the accountant had been aware of an additional amount of income, she would have been

obligated to report it on his return. Thus, the accountant’s testimony would add nothing

of value to the record that was not already present through appellant’s testimony and the

return. Further, the accountant signed the tax return electronically and would be subject

to penalties if she willfully aided in the preparation of a fraudulent or false tax return. See

26 U.S.C. 7206. It appears that calling the accountant would be fruitless in resolving the

sole issue in dispute, i.e., whether appellant failed to report income on his tax return, since

if she had knowledge of his failure to report, she would be admitting she aided in preparing

a false tax return.

26 Case No. 2021-L-037 {¶73} To the extent that the majority notes it is “not the duty of the trial court to

ferret out * * * expenses,” supra at ¶ 13, appellant did not ask the court to do so. The

court had the evidence it needed to reach its decision before it, by way of the tax return.

No additional evidence or witnesses were required nor was the court asked to look into

any other evidence to make a finding. The evidence and testimony indicated that funds

in the business account were part of appellant’s income that he may withdraw for personal

expenses.

{¶74} Further, the accountant’s testimony was of little necessity where there was

no evidence presented by the opposing side to rebut appellant’s testimony and tax return.

The failure of a party to present evidence to rebut testimony is correctly attributed to that

party and unrebutted testimony is of significant value. Haynes v. Washington, 373 U.S.

503, 510, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). See also State v. Edgell, 30 Ohio St.2d

103, 117, 283 N.E.2d 145 (1972) (O’Neill, J., dissenting) (“[w]hile credibility is a matter to

be resolved by the trial judge, there is significance in the uncontradicted testimony of the

defendant”). The burden for additional evidence properly lies with appellee, not appellant.

{¶75} Finally, the majority argues that we have no way of knowing whether

appellant reported the $60,000 in the tax return and concludes that the court cannot

“presume of the $60,000, like a jar of Prego sauce, that ‘It’s in there.’” As outlined above,

however, there is a way to know whether the $60,000 was reported and that is through

appellant’s testimony and tax return. The Prego sauce label, like appellant’s tax returns,

lists its contents, and this court has no evidence to suggest either is inaccurate. In matters

relating to spousal support, while the trial court is given broad discretion to determine

what is equitable, “‘such discretion is not unlimited.’” Dilley v. Dilley, 11th Dist. Geauga

27 Case No. 2021-L-037 No. 2019-G-0207, 2020-Ohio-984, ¶ 12, citing Kunkle v. Kunkle, 51 Ohio St.3d 64, 67,

554 N.E.2d 83 (1990). The judgment here, which goes against the evidence presented

by appellant and is unsupported by any evidence from the opposing party, constitutes an

abuse of discretion.

{¶76} For the foregoing reasons, I dissent in part and would reverse the lower

court’s judgment as to the decision to add $60,000 to the income stated in appellant’s

2015 tax return.

28 Case No. 2021-L-037