Oliver v. Oliver

2013 Ohio 4389

• Court: Ohio Court of Appeals
• Decided: October 1, 2013
• Docket: 2012 AP 11 0067
• Status: Published

Opinion

[Cite as Oliver v. Oliver, 2013-Ohio-4389.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: MISTY OLIVER : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellant /Cross-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2012 AP 11 0067 JOSEPH OLIVER : : Defendant-Appellee /Cross-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2009TM030151

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 1, 2013

APPEARANCES:

For Plaintiff-Appellant / Cross-Appellee For Defendant-Appellee / Cross-Appellant

SHARON BUCKLEY-MIRHAIDARI BRADLEY HILLYER 152 N. Broadway Ave., Ste 200 201 N. Main Street, Box 272 New Philadelphia, OH 44336 Uhrichsville, OH 44683 [Cite as Oliver v. Oliver, 2013-Ohio-4389.]

Gwin, P.J.

{¶1} Wife and Husband appeal the October 13, 2011 judgment entry of the

Tuscarawas County Common Pleas Court granting the parties’ divorce and the October

10, 2012 judgment entry of the Tuscarawas County Common Pleas Court allocating the

business tax liability between the parties.

Facts & Procedural History

{¶2} Joseph Oliver (“Husband”) and Misty Oliver (“Wife) were married in

1999. The parties have no children together, but each has children from a previous

marriage. The parties lived separate and apart beginning in 2007. Husband admitted

to starting a relationship with Nan Cobb (“Cobb”) in January of 2007 and to having a

child with Cobb in February of 2010.

{¶3} Husband is a registered nurse and earns approximately $65,000 per

year. Wife is a licensed practical nurse, but has not been employed since 2005. She

obtained her Associate’s Degree in Nursing in May of 2009 and was eligible to take her

RN examination in December of 2009, but, as of the time of the trial in June of 2010,

she had not yet taken the exam. Wife attends Malone College and is working to obtain

her Master’s Degree in Nursing to be a nurse practitioner and spends her days

studying, baking and selling pies, cleaning, and looking after the household. She has

limited her job search to approximately eight employers and several job fairs. Wife

relies on her family and friends to assist in paying her expenses and she does not pay

rent.

{¶4} From 2002 to 2005, the parties owned a business called Guardian

Nurses, a temporary agency sending nurses to hospitals and other medical facilities as Tuscarawas County, Case No. 2012 AP 11 0067 3

needed. Husband was employed by the agency as a nurse and occasionally helped

Wife with her administrative duties. Husband received substantially less pay than other

nurses so that more money could be returned to the business and so his income would

be lower on his tax returns and for child support considerations. Wife completed the

administrative work for the business out of their home and was not paid a salary, but the

profits from the business were placed into a joint account in both her and Husband’s

names. The parties filed separate tax returns with the business income reported on

Wife’s tax returns. No tax returns were filed for the business in 2003, 2004, or 2005.

Wife believed the tax returns had been filed each year by Husband.

{¶5} The parties divided their personal property by agreement prior to the

trial. However, Husband testified Wife still has possession of two guns given to him by

his father. Wife testified Husband disposed of some of her and her children’s personal

property such as trophies and hot wheels in a dumpster outside the Mineral City

property without her consent. Both Husband and Wife presented a list they had each

prepared of marital debts they have purportedly paid or that are still owing. Some of the

bills are in both of the parties’ names and some are in either Husband’s or Wife’s name.

{¶6} When the parties married, Wife owned real estate at 4033 West State

Street, New Philadelphia. The parties lived together in this home for approximately one

year with their children after they were married. In 2000, the parties sold the property to

Wife’s mother, Jacquie Whitmire (“Whitmire”) for a net profit of approximately $26,000.

In April of 2000, the parties also bought a parcel of vacant land in Bolivar, Ohio. The

parties used the funds from the sale of 4033 West State Street to help purchase the

home at 8859 First Street, Mineral City, from Husband’s mother Norma Oliver (“Oliver”) Tuscarawas County, Case No. 2012 AP 11 0067 4

and they still owe her approximately $40,000. In February of 2002, a fire occurred at

the Mineral City home which made it uninhabitable. After the fire, the parties moved

back into 4033 West State Street with Whitmire for approximately eighteen months.

The parties received insurance money after the fire at the Mineral City property. The

insurance money was not used to repair the Mineral City home, but was used for

mortgage payments on the 4033 West State Street home and for payments and

improvements on another property the parties bought in 2003 located at 4047 West

State Street, New Philadelphia. This property had been owned by Wife’s father. The

parties transferred the parcel of vacant land they had purchased in 2000 to Wife’s father

as partial payment for the 4047 West State Street home.

{¶7} In June of 2006, Wife quit-claimed her interest in the Mineral City home

to Husband and he quit-claimed his interest in 4047 West State Street to Wife. In July

of 2006, the parties transferred the 4047 West State Street property to Whitmire in an

attempt to protect the property from bankruptcy and so that she could refinance the

home. After a foreclosure action was initiated against the 4047 West State Street

property in September of 2006, Whitmire transferred the property to family friend Rick

Morrison (“Morrison”). Morrison transferred the property back to Whitmire in October of

2006. In December of 2006, Whitmire sold the property to Morrison and Larry Tufford

(“Tufford”), Whitmire’s partner, for $265,000. Whitmire received $137,000 from the sale

of the property and put most of the money back into the home. She and Morrison

agreed she would use the money to improve the home in exchange for Morrison

obtaining a mortgage on the 4047 West State Street property. Husband and Wife Tuscarawas County, Case No. 2012 AP 11 0067 5

continued to live in the home until March of 2007 when Husband left the home to move

in with Cobb.

{¶8} Wife testified she and Husband are parties to an agreement dated

September 24, 2006, with Whitmire, Morrison, Wife’s father, and Tufford, stating Wife

and Husband would pay the December 2006 mortgage obtained by Morrison. Husband

denies signing the agreement and neither Wife nor Husband has paid pursuant to the

agreement. Morrison has owned the 4047 West State Street property since December

of 2006 and is the only mortgagee listed on the mortgage loan documents. However,

Morrison currently resides at 4033 West State Street, which is owned by Whitmire.

Whitmire, Tufford, and Wife’s father each pay Morrision $500 per month to assist with

the mortgage payment on the 4047 West State Street property. Morrision pays the

balance of the $2,400 per month mortgage each month. Wife continues to live at 4047

West State Street with her three adult children, Whitmire, and Tufford. Wife does not

pay rent or contribute to the mortgage, but helps with the bills when she can. Husband

resides with Cobb in a rental home and has an option to purchase the home.

{¶9} Wife filed a complaint for divorce on March 31, 2009. Prior to the trial

date in June of 2010, Wife filed a motion for contempt on April 22, 2010 against

Husband for failure to maintain the Mineral City property and for incurring additional

debt. The evidentiary hearing on this motion was continued to the trial date. The case

proceeded to trial before a magistrate in June of 2010 and the magistrate issued her

decision on January 14, 2011. Objections were filed to the magistrate’s decision. The

trial court held a hearing on the objections and adopted the magistrate’s decision in part

and modified the magistrate’s decision in part. The trial court granted Wife a divorce on Tuscarawas County, Case No. 2012 AP 11 0067 6

the grounds of adultery and incompatibility in an October 13, 2011 judgment entry. The

trial court divided the marital property and martial debt and ordered Husband to pay

spousal support in the amount of $500.00 per month for thirty-six (36) months. The trial

court retained jurisdiction over the issue of the tax liability of the Guardian Nurses

business. Wife and Husband appealed the trial court’s decision. On July 30, 2012, this

Court issued an opinion in Case No. 2011 AP 11 0044 dismissing the appeal because

the judgment was not a final appealable order due to the trial court’s retention of

jurisdiction over the tax liability issue.

{¶10} On October 10, 2012, the trial court found Husband engaged in financial

misconduct in failing to file business income taxes for the years 2003, 2004, and 2005.

The trial court found because of Husband’s financial misconduct he should be ordered

to pay a disproportionate share of the unpaid taxes. The trial court concluded Husband

should be responsible for 100% of any payroll taxes due for Guardian Nurses for 2003 –

2005 and 75% of any income tax liability for Guardian Nurses for 2003 – 2005.

{¶11} Wife appeals both the October 13, 2011 judgment entry and the October

10, 2012 judgment entry and assigns the following errors:

{¶12} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

ONLY AWARDING $500.00 PER MONTH IN SPOUSAL SUPPORT.

{¶13} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

ORDERING MISTY OLIVER 25% RESPONSIBLE FOR THE UNPAID TAXES DUE TO

FEDERAL, STATE, AND LOCAL INCOME TAX DEPARTMENTS. JOSEPH OLIVER

SHOULD BE ORDERED TO BE SOLELY RESPONSIBLE FOR ANY AND ALL TAX

LIABILITY DUE TO HIS FRAUDULENT BEHAVIOR AND FINANCIAL MISCONDUCT. Tuscarawas County, Case No. 2012 AP 11 0067 7

{¶14} “III. THE TRIAL COURT ERRED IN NOT ALLOWING STAN SHERMAN,

THE CERTIFIED PUBLIC ACCOUNTANT, TO TESTIFY AT TRIAL. THE EXCLUSION

OF STAN SHERMAN’S TESTIMONY WAS AN ABUSE OF DISCRETION AND

DENIED MISTY OLIVER DUE PROCESS AND A RIGHT TO A FAIR TRIAL.

{¶15} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

NOT ASSIGNING A VALUE TO THE MINERAL CITY PROPERTY AND IN AWARDING

THE PROPERTY TO JOE OLIVER. THE TRIAL COURT’S DECISION DENIED MISTY

OLIVER HER RIGHT TO DUE PROCESS.

{¶16} “V. THE TRIAL COURT ERRED IN NOT RENDERING A DECISION

WITH REGARD TO HEALTH INSURANCE FOR MISTY OLIVER.

{¶17} “VI. THE TRIAL COURT ERRED IN AWARDING MISTY OLIVER ONLY

$250.00 AFTER FINDING JOE IN CONTEMPT OF COURT FOR TRASHING MISTY

AND HER CHILDREN’S PERSONAL PROPERTY IN THE DUMPSTER.

{¶18} “VII. THE TRIAL COURT ERRED IN NOT ORDERING THE RETURN

OF MISTY’S PERSONAL PROPERTY SHE SAW JOE AND HIS MISTRESS HAVE AT

THEIR HOUSE IN PICTURES SHE SAW ON FACEBOOK. THE TRIAL COURT’S

REFUSAL TO ADMIT THE FACEBOOK PHOTOGRAPHS INTO EVIDENCE DENIED

MISTY THE RIGHT TO DUE PROCESS AND A FAIR TRIAL.

{¶19} “VIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

NOT ISSUING A DECISION WITH REGARD TO ALL OF THE MARITAL DEBT.

{¶20} “IX. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

AWARDING ONE HALF OF THE VANGUARD ACCOUNT TO MISTY OLIVER. MISTY Tuscarawas County, Case No. 2012 AP 11 0067 8

OLIVER SHOULD HAVE BEEN AWARDED THE FULL AMOUNT OF THE

VANGUARD ACCOUNT.

{¶21} “X. THE TRIAL COURT ERRED IN NOT AWARDING ATTORNEY

FEES TO MISTY OLIVER.

{¶22} “XI. THE TRIAL COURT’S REFUSAL TO ADDRESS APPELLANT’S

MOTIONS PRIOR TO TRIAL AND ADMIT EVIDENCE AND TESTIMONY AT TRIAL

WAS AN ABUSE OF DISCRETION AND DENIED APPELLANT DUE PROCESS AND

A FAIR TRIAL.

{¶23} “XII. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

ORDER THE PROCEEDS FROM THE SALE OF THE 4033 W. STATE STREET

PROPERTY AND MISTY’S RETIREMENT BENEFITS AS SEPARATE PROPERTY.

{¶24} “XIII. THE TRIAL COURT ERRED IN AWARDING JOE OLIVER GUNS.”

{¶25} Husband also filed an appeal of the October 13, 2011 and October 10,

2012 judgment entries and assigns the following errors:

{¶26} “I. THE TRIAL COURT WRONGLY ORDERED SPOUSAL SUPPORT

WITHHOLDING FROM THE APPELLEE, JOSEPH OLIVER, AS THE APPELLANT IN

THE INSTANT CASE IS VOLUNTARILY UNDEREMPLOYED.

{¶27} “II. THE JUDGE IN THE INSTANT CASE WRONGLY ATTRIBUTED

THE DELINQUENT TAX BURDEN TO THE APPELLEE, JOSEPH OLIVER.

{¶28} “III. THE TRIAL COURT ERRED IN FINDING A CHARGE OF

CONTEMPT AGAINST THE APPELLEE. THE APPELLEE DID NOTHING THAT WAS

NOT ALLOWED BY VIRTUE OF THE COURT ORDER TO FACILITATE THE SALE OF

THE STATE STREET HOME IN MIDVALE, OHIO. Tuscarawas County, Case No. 2012 AP 11 0067 9

{¶29} “IV. THE JUDGE ERRED IN FINDING A DIVORCE ON THE GROUNDS

OF ADULTERY. BOTH PARTIES INVOLVED IN THE DIVORCE AGREED TO

INCOMPATIBILITY AS BEING THE GROUNDS OF DIVORCE. THE APPELLANT IS

MERELY USING ADULTERY AS A WAY TO EMOTIONAL CHARGE AN ALREADY

ISSUE FOR FINANCIAL GAIN.”

I., V., and Cross-Assignment of Error I

{¶30} Wife argues the trial court erred in only awarding her $500 per month in

spousal support for thirty-six (36) months and in failing to require Husband to cover her

on his health insurance for as long as she was eligible. Husband argues the trial court

erred in awarding Wife any spousal support because she is voluntarily underemployed.

{¶31} We review the trial court’s decision relative to spousal support under an

abuse of discretion standard. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83

(1990). To find an abuse of discretion, this court must determine that the trial court’s

decision was unreasonable, arbitrary, or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Further, a judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).

{¶32} R.C. 3105.18(C)(1) sets forth the factors a trial court must consider in

determining whether spousal support is appropriate and reasonable and in determining

the nature, amount, terms of payment, and duration of spousal support. These factors

include: (a) income of the parties, from all sources * * *; (b) the relative earning abilities

of the parties; (c) the ages and the physical, mental, and emotional conditions of the Tuscarawas County, Case No. 2012 AP 11 0067 10

parties; (d) the retirement benefits of the parties; (e) the duration of the marriage; (f) the

extent to which it would be inappropriate for a party, because that party will be

custodian of a minor child of the marriage, to seek employment outside the home; (g)

the standard of living of the parties established during the marriage; (h) the relative

extent of education of the parties; (i) the relative assets and liabilities of the parties; (j)

the contribution of each party to the education, training, or earning ability of the other

party, including, but not limited to, any party’s contribution to the acquisition of a

professional degree of the other party; (k) the time and expense necessary for the

spouse who is seeking spousal support to acquire education, training, or job experience

* * *; (l) the tax consequences, for each party, of an award of spousal support; (m) the

lost income production capacity of either party that resulted from that party’s marital

responsibilities; and (n) any other factor that the court expressly finds to be relevant and

equitable. “Except in cases involving a marriage of long duration, parties of advanced

age or a homemaker-spouse with little opportunity to develop meaningful employment

outside the home, where a payee spouse has the resources, ability and potential to be

self-supporting, an award of sustenance alimony should provide for the termination of

the award, within a reasonable time and upon a date certain * * *.” Kunkle v. Kunkle, 51

Ohio St.3d 64, 64, 554 N.E.2d 83 (1990).

{¶33} Husband essentially argues that voluntary underemployment is an

automatic bar to spousal support for Wife. However, he has not cited any authority to

support his position. See Schenck v. Schenck, 12th Dist. No.CA2012-08-150, 2013-

Ohio-991. Much of Husband’s argument centers on the earning ability of Wife. Earning

ability involves “both the amount of money one is capable of earning by his or her Tuscarawas County, Case No. 2012 AP 11 0067 11

qualifications, as well as his or her ability to obtain such employment.” Carroll v. Carroll,

5th Dist. No. 2004-CAF-05035, 2004-Ohio-6710. The goal is “not to arrive at a specific

figure * * * rather, the end result is to consider and weight the spouses’ relative earning

abilities along with other factors in arriving at reasonable spousal support.” Valentine v.

Valentine, 9th Dist. No. 11CA0088-M, 2012-Ohio-4202 at ¶5. In this case, we agree

that Wife is voluntarily underemployed, but find the trial court did take this factor into

consideration when making the award of spousal support. The trial court found many of

the factors to be equal in the spousal support determination, but specifically noted that

Wife is eligible to test to be an RN. The trial court stated that, “If she passes, she will

have the ability to earn almost as much as Joseph Oliver. However, Misty Oliver does

not have as much experience in the nursing field as Joseph Oliver.” Thus, the trial court

considered Wife’s voluntary underemployed but also factored in Wife’s inability to

immediately gain the type of experience as Husband in the nursing field.

{¶34} The trial court completed a thorough analysis of all the above-listed,

relevant factors. The trial court found many of the factors to be similar between the

parties, such as their health, age, retirement benefits since Husband’s marital retirement

benefits were split equally between the parties, lack of necessity for child care, standard

of living, education, lack of assets, contribution and time for education, and tax

consequences. The trial court specifically noted that Wife will lose her insurance

coverage as a consequence of the divorce, and that Wife has the ability to earn almost

as much as Husband but does not have as much experience in the nursing field.

{¶35} In this case, we find no abuse of discretion in the trial court’s decision

regarding spousal support and our review of the record reveals the presence of credible Tuscarawas County, Case No. 2012 AP 11 0067 12

evidence supporting the trial court’s determinations. The parties were married in 1999,

separated in 2007, and divorced at the end of 2011. Both parties have college degrees,

with Husband earning his prior to the marriage and Wife obtaining hers after the parties

separated. Both parties are of comparable age and comparable health. The marital

portion of Husband’s retirement account was split between the parties. Neither party

has necessity for child care. Both parties have a similar standard of living as Husband

is living in a rental property and Wife is living in a large home with four other adults, but

does not pay rent and relies on her family and friends for assistance. The trial court

recognized that Wife would lose her health insurance as a result of the divorce.

However, once Wife takes her RN exam, she will have the same opportunity as

Husband to procure insurance. The trial court also weighed Wife’s ability and potential

to be self-supporting with her lack of experience in the nursing field. Wife testified it

could take her approximately four (4) years after she obtains her Master’s Degree until

she could make more than Husband. The trial court properly considered all the factors

as required by R.C. 3105.18(C)(1) in arriving at the $500.00 per month figure for a term

of thirty-six (36) months. The trial court’s consideration and findings regarding each of

the factors was supported by competent, credible evidence and the court’s decision was

not unreasonable, arbitrary, or unconscionable.

{¶36} Accordingly, Wife’s first and fifth assignments of error and Husband’s

first cross-assignment of error are overruled.

II. & Cross-Assignment of Error II.

{¶37} Wife contends the trial court erred in ordering her 25% responsible for

the unpaid income taxes of Guardian Nurses. Husband argues the trial court erred in Tuscarawas County, Case No. 2012 AP 11 0067 13

ordering him 75% responsible for unpaid income taxes and 100% responsible for payroll

taxes of Guardian Nurses.

{¶38} R.C. 3105.171(C)(1) provides that, generally, the division of marital

property shall be equal. However, “if an equal division of marital property would be

inequitable, the court shall not divide the marital property equally but instead shall divide

it between the spouses in a manner the court determines equitable.” R.C.

3105.171(C)(1). Further, R.C. 3105.171(E)(3) provides as follows: “If a spouse has

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

destruction, concealment, or fraudulent disposition of assets, the court may compensate

the offended spouse with a distributive award or with a greater award of marital

property.” The decision regarding whether to compensate a party for the financial

misconduct of the opposing party is discretionary with the trial court. Leister v. Leister,

5th Dist. No. 97CA-F-07027, 1998 WL 751457. Therefore, a trial court’s decision on

this issue will not be reversed on appeal absent a showing of an abuse of discretion, i.e.

a showing that the trial court’s decision is arbitrary, unreasonable, or unconscionable

and not merely an error of law or judgment. Id.; Blakemore v. Blakemore, 5 Ohio St.3d

217, 450 N.E.2d 1140 (1983).

{¶39} In this case, the trial court found that an equal division of the business

tax liability would be inequitable due to Husband’s financial misconduct regarding the

failure to file income taxes and, if applicable, payroll taxes. The failure of a party to pay

taxes or file a tax return is financial misconduct for purposes of R.C. 3105.171(E).

Robbins v. Robbins, 2nd Dist. No. 06CA0136, 2008-Ohio-495. Tuscarawas County, Case No. 2012 AP 11 0067 14

{¶40} The trier of fact is vested with the authority to weigh the evidence and

assess the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212, paragraph one of syllabus (1967).

Because the factfinder * * * has the opportunity to see and hear

the witnesses, the cautious exercise of the discretionary power of a court

of appeals to find that a judgment is against the manifest weight of the

evidence requires that substantial deference be extended to the

factfinder's determinations of credibility. The decision whether, and to what

extent, to credit the testimony of particular witnesses is within the peculiar

competence of the factfinder, who has seen and heard the witness.

{¶41} State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684

(Aug. 22, 1997).

{¶42} Husband argues there is no evidence of financial misconduct on his part.

However, it is undisputed that no tax returns were filed for the business in 2003, 2004,

and 2005. Wife testified she believed Husband filed the taxes for these three years

because he would handle the filing of the taxes. Husband testified the parties always

filed separate tax returns and he did not remember filing or doing paperwork for Wife

but he “can’t say I didn’t do it.” (T. at 28). Husband filed his personal taxes for the 2003,

2004, and 2005 tax years. Husband hired his friend Dominic Spinelli to assist with the

completion of Wife’s taxes in 2002 due to the starting of the business, but there is no

evidence Spinelli was retained in subsequent years. Husband routinely worked nursing

shifts but sometimes assisted Wife with the bookkeeping for the company. The

credibility of the witnesses and the weight to be given to their testimony were matters for Tuscarawas County, Case No. 2012 AP 11 0067 15

the trial court to decide. The trial court did not err in choosing to believe Wife’s

description of how the business taxes were prepared and supposed to be completed

rather than Husband’s testimony regarding the tax situation and in finding Husband’s

failure to file the taxes for 2003, 2004, and 2005 was financial misconduct.

{¶43} Wife contends the trial court erred in ordering her responsible for 25% of

the unpaid business income taxes. We disagree. Both parties testified Husband was

an employee of the company and worked at a reduced rate. Wife testified Husband

sought to work at this lower rate so he could reduce the amount of income reported to

the child support agency. Husband testified he was paid substantially less than normal

so that more money could go back into the business. Wife was compensated for her

work because the money made from the business was deposited directly into a joint

account under control of both her and Husband. Both Husband and Wife reaped the

benefits from the business and utilized the income for which the tax is due. Wife

received a financial benefit in the form of funds from the business being deposited into a

joint bank account. Husband received the benefit of an hourly wage, but also received

the added benefit of the ability to report less income on his own personal taxes and

report a lower income to the child support agency. Taking into account the benefit Wife

received from the income generated by the business, the benefit Husband received

from the business income, and the financial misconduct of Husband’s failing to file the

tax returns, we find the allocation by the trial court of the unpaid business taxes is an

appropriate division. Wife’s second assignment of error and Husband’s second cross-

assignment of error are overruled. Tuscarawas County, Case No. 2012 AP 11 0067 16

III.

{¶44} Wife argues the trial court erred in not allowing Stan Sherman

(“Sherman”), a certified public accountant, to testify at trial as an expert because without

his testimony the court could not determine the amount of tax liability of Guardian

Nurses. We disagree. “A trial court’s decision on whether to admit or exclude expert

testimony will not be reversed absent an abuse of discretion.” Herzner v. Fischer

Attached Homes, Ltd., 12th Dist. No. CA2007-08-090, 2008-Ohio-2261.

{¶45} In this case, the magistrate excluded Sherman’s testimony because he

was not timely disclosed pursuant to the discovery dates provided by the trial court. A

pretrial order issued on April 2, 2009 provides that, with regard to expert witnesses,

each party shall comply with the local rule about expert witnesses. The local rule

applicable to expert witnesses states as follows:

For each person who is anticipated to be called as an expert at trial, a

party shall provide written notice to the opposing party or counsel and file

a copy with the Court, within a reasonable time after being identified, but

not later than 45 days prior to the date set for discovery cut-off unless

otherwise agreed by between the parties * * * Failure to timely provide this

information may, upon motion to the Court and for good cause shown,

cause the Court to exclude the testimony of the expert at trial.

{¶46} Loc.R. 11 of the Court of Common Pleas of Tuscarawas County,

General Division. “The inherent purpose of local rules that provide for the timely

exchange of expert reports and timely identification of expert witnesses is to avoid unfair

surprise at trial and to ensure that the adverse party has a reasonable opportunity to Tuscarawas County, Case No. 2012 AP 11 0067 17

respond to the expert testimony.” Biro v. Biro, 11th Dist. No. 2006-L-068, 2006-L-236,

2007-Ohio-3191.

{¶47} The discovery cutoff was set for one week prior to the first mediation by

the April 2, 2009 order. The first mediation conference was held in August of 2009 and

was continued to December 11, 2009. While appellant argues she disclosed the expert

as soon as she could on May 21, 2010, the information was provided to the court and

opposing counsel approximately nine months after the first mediation and five months

after the continued mediation. The May 21st date is long after the 45 day requirement

contained in the local rule and did not provide the opportunity for the adverse party to

respond to the expert testimony prior to the beginning of the trial since discovery cutoff

had passed.

{¶48} Further, there is no evidence to support Wife’s assertion that Sherman’s

testimony would assist the trier of fact in determining the tax liability of Guardian

Nurses. The trial court heard both Husband and Wife testify regarding the tax liability of

the business and the parties agreed the amount was significant. Wife testified she

thought the tax liability could be upwards of $100,000. There is no evidence Sherman

actually prepared any tax returns for Guardian Nurses or had enough information to

approximate the tax liability for the business. After counsel for Husband objected to the

introduction of Sherman’s testimony at trial, Wife’s counsel stated she did not “intend to

have Sherman testify that he knows what the tax liability is.” The letter from Sherman to

Wife dated May 21, 2010 stated that Sherman could not determine the tax liability prior

to the June divorce hearing because there was “far too much missing information” to

prepare accurate and complete tax returns before the trial. Thus, even if the trial court Tuscarawas County, Case No. 2012 AP 11 0067 18

would have allowed the late identification of Sherman, he could not aid in the court’s

determination of the amount of the tax liability of Guardian Nurses. The trial court did

not abuse its discretion in not allowing Sherman to testify. Wife’s third assignment of

error is overruled.

IV.

{¶49} Wife contends the trial court erred in not assigning a value to the Mineral

City property and in awarding the property to Husband to sell at an arm’s length sale.

We disagree.

{¶50} “The trial court is vested with broad discretion in determining the

appropriate scope of these property awards. Although its discretion is not unlimited, it

has authority to do what is equitable.” Holcomb v. Holcomb, 44 Ohio St.3d 128, 541

N.E.2d 597 (1989). A trial court’s decision allocating marital property and debt will not

be reversed absent an abuse of discretion. Id. An abuse of discretion is more than a

mere error; it implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). An unequal division does not in and of itself constitute an abuse of discretion.

Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988). Further, a judgment

supported by some competent, credible evidence will not be reversed by a reviewing

court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr.

Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).

{¶51} R.C. 3105.171(B) requires equitable distribution of marital and separate

property. R.C. 3105.171(C) mandates an equal division of marital property, unless such

would be inequitable under the circumstances. In dividing marital assets, and in Tuscarawas County, Case No. 2012 AP 11 0067 19

deciding whether to order an unequal award, a trial court must consider all relevant

factors, including those listed in R.C. 3105.171(F). On appellate review, the trial court’s

property division should be viewed as a whole in determining whether it has achieved

an equitable and fair division of marital assets. Briganti v. Briganti, 9 Ohio St.3d 220,

222, 459 N.E.2d 896 (1984). Prior to making an equitable division of marital property, a

trial court must determine the value of the marital assets. Donovan v. Donovan, 110

Ohio App.3d 615, 674 N.E.2d 1252 (12th Dist. 1996). If there is sufficient evidence to

support the trial court’s valuation, there is no abuse of discretion. James v. James, 101

Ohio App.3d 668, 681, 656 N.E.2d 399 (2d Dist. 1995).

{¶52} While Wife argues the trial court failed to assign a value to the Mineral

City property, we find the trial court did assign a value to the property. The trial court

specifically found the Mineral City property had “no value over and above what is owed

to Norma Oliver and is a liability.” Both parties agreed the amount owed to Norma

Oliver is $40,000. We find this valuation to be supported by competent, credible

evidence. Husband testified he believed the Mineral City property, in its current

condition, was worth $40,000 to $45,000. Wife did not testify as to the value of the

Mineral City property, but testified that when she accompanied an appraiser to the

home in November of 2009, the home needed drywall, had water in the basement, and

the general condition of the home had deteriorated. While she believed the property

could be salvageable for someone to live there, she did not know how much time or

money it would take to make the home livable.

{¶53} Wife further argues the trial court erred in awarding the Mineral City

property to Husband. In essence, the trial court awarded the Mineral City property to Tuscarawas County, Case No. 2012 AP 11 0067 20

Husband but required him to sell it at an arm’s length sale. The trial court also made

Husband responsible for the shortfall should it not sell for the $40,000 amount both

parties agree is owed to Norma Oliver. The trial court ordered any money made from

the sale over the $40,000 debt to be split equally between the parties. Therefore, the

marital property was divided equally by the trial court when it equally divided the

proceeds from the sale. The only inequality resolves in Wife’s favor as she is not

responsible for any of the loan amount to Husband’s mother if the property sells for less

than $40,000.

{¶54} Wife states the trial court abused its discretion in ordering an arm’s

length sale, but fails to cite any legal authority or statutes in support of her argument as

required by App.R. 16 (A)(7).

{¶55} Further, R.C. 3105.171(J)(2) provides that:

The court may issue any orders under this section which it deems

equitable, including, but not limited to, either of the following types of

orders: * * *

(2) an order requiring the sale of or encumbrancing of any real or

personal property, with the proceeds from the sale and the funds from any

loan secured by the encumbrance to be applied as determined by the

court.

{¶56} Accordingly, the trial court had the discretion to order the sale of the

Mineral City real property with the proceeds to be applied as determined by the court.

Further, though Wife argues there are no safeguards to ensure an arm’s length

transaction, in Wife’s subsequent motions filed in November of 2012 and currently Tuscarawas County, Case No. 2012 AP 11 0067 21

pending before the trial court, she requests an accounting on the sale of the property

and requests a show cause order against Husband for failing to sell the Mineral City

property at an arm’s length sale. The filing of these motions demonstrates that there

are procedural mechanisms for the trial court to review the sale.

{¶57} Wife also attempts to argue in her appellate brief that the sale of the

Mineral City property to Husband’s cousin subsequent to the trial court’s October 13,

2011 judgment entry of divorce was not an arm’s length transaction and is fraudulent.

On November 28, 2012, Wife filed a post-judgment motion for accounting on the sale of

the Mineral City property and a motion to show cause against Husband for failing to sell

the Mineral City property at an arm’s length sale. The trial court set a hearing on the

motions for December 17, 2012. At the December hearing, the trial court determined

the motions should be held in abeyance pending this appeal. Thus, the question of

whether the particular transaction in question is an arm’s length transaction is not

properly before this Court.

{¶58} Accordingly, Wife’s fourth assignment of error is overruled.

VI. & Cross-Assignment of Error III.

{¶59} Wife argues the trial court erred in awarding her only $250.00 after

finding Husband in contempt of court for discarding her property in a dumpster. In his

cross-assignment of error, Husband argues the trial court erred in finding him in

contempt of court and in awarding Wife any money because the property was not used

for several years and was damaged by the house fire.

{¶60} “A prima facie case of civil contempt is made when the moving party

proves both the existence of a court order and the nonmoving party's noncompliance Tuscarawas County, Case No. 2012 AP 11 0067 22

with the terms of that order.” Wolf v. Wolf, 1st Dist. Hamilton No. C–090587, 2010-Ohio-

2762, 2010 WL 2473277, ¶ 4. “Clear and convincing evidence is the standard of proof in

civil contempt proceedings.” Flowers v. Flowers, 10th Dist. Franklin No. 10AP1176,

2011-Ohio-5972, 2011 WL 5825404, ¶ 13. We review the trial court's decision whether

to find a party in contempt under an abuse of discretion standard. Wolf at ¶ 4.

{¶61} On April 2, 2009, the magistrate issued an order stating that “each party

is restrained from selling, damaging, destroying * * * disposing of * * * the assets of the

parties, or the assets of either party, including, but not limited to real estate, household

furniture and furnishings, personal items or automobiles.” While Husband testified he

only disposed of drywall and siding in the dumpster outside the Mineral City home, both

Wife and Whitmire testified they saw Wife’s personal items in the dumpster outside the

Mineral City home in the spring of 2009. Wife submitted as an exhibit a copy of a

receipt for a dumpster paid for by Husband in May of 2009. Whitmire testified the items

she saw in the dumpster were items such as trophies and hot wheels belonging to

Wife’s children.

{¶62} We find no abuse of discretion in the trial court’s finding Husband in

contempt. The April 2, 2009 court order existed and he failed to comply with that order

when he placed personal property belonging to Wife and her children from the garage at

the Mineral City property into a dumpster. The credibility of the witnesses and the

weight to be given to their testimony were matters for the trial court to resolve. The trial

court did not err in choosing to believe Wife and her mother as to what items were in the

dumpster. Wife and Whitmire classified the items as trophies, children’s toys, and hot

wheels, but failed to provide any evidence about the value of the items during the trial. Tuscarawas County, Case No. 2012 AP 11 0067 23

Accordingly, we find $250.00 to be a reasonable award for the contempt violation based

on the description of the items provided by Wife and Whitmire. Wife’s sixth assignment

of error and Husband’s third cross-assignment of error are overruled.

VII.

{¶63} Wife contends the trial court erred in not ordering the return of her

property she saw in pictures on Facebook and the trial court erred in refusing to admit

the Facebook photographs into evidence. We disagree.

{¶64} Generally, the admission or exclusion of relevant evidence is within the

sound discretion of the trial court and its decision to admit or exclude evidence will not

be disturbed absent an abuse of discretion. State v. Awkal, 76 Ohio St.3d 324, 333,

667 N.E.2d 960 (1996). As for photographs, a proper foundation is required in which

there must be testimony that the photograph is a fair and accurate representation of that

which it is purported to be. State v. Hill, 12 Ohio St.2d 88, 90, 232 N.E.2d 394 (1967).

{¶65} In this case, Wife testified she saw items on Cobb’s Facebook page that

were Wife’s property she had stored in the Mineral City garage, including an oak coffee

table, end tables, an oak corner cabinet, and Longaberger baskets. Wife sought to

introduce two photographs purportedly showing these items in the background of

Cobb’s Facebook photographs. Husband testified the furniture and items in the

photographs were not Wife’s items, that no items owned by Wife were in the home he

lived in with Cobb, and that Cobb purchased her own Longaberger baskets. Husband

objected to the admission of the Facebook photographs due to lack of foundation

because there was no evidence as to where the photographs were taken and who took

the photographs. Counsel for Wife stated she did not know when the photographs were Tuscarawas County, Case No. 2012 AP 11 0067 24

obtained and stated that Wife was not a friend of Cobb’s on Facebook, “but she has a

friend who is a friend.” We find the trial court did not abuse its discretion in excluding

the photographs because there was no evidence presented as to where and when the

photographs were taken or that the photographs are accurate representations of the

scene which they portray.

{¶66} We further find the trial court did not abuse its discretion in failing to

order the return of the coffee table, end table, cabinet, and baskets. As noted above,

the credibility of the witnesses and the weight to be given to their testimony were

matters for the trial court to resolve. The trial court did not err in choosing to believe

Husband that none of the items in the home he shares with Cobb belonged to Wife.

Wife’s seventh assignment of error is overruled.

VIII.

{¶67} Wife argues the trial court erred in not issuing a decision with regard to

all marital debt including the 4047 West State Street Property, Guardian Nurses tax

liability, and other marital debt. We disagree.

{¶68} Marital debt is “any debt incurred during the marriage for the joint benefit

of the parties or for a valid marital purpose.” Ketchum v. Ketchum, 7th Dist. No.

2001CO60, 2003-Ohio-2559, citing Turner, Equitable Division of Property (2d Ed.

1994). Marital property includes all real property that currently is owned by either or

both of the spouses and that was acquired by either or both of the spouses during the

marriage. R.C. 3105.171(A)(3)(a)(i). “Trial court decisions on what is presently separate

and marital property are not reversed unless there is a showing of an abuse of

discretion.” Vonderhaar-Ketron v. Ketron, 5th Dist. No. 10CA22, 2010-Ohio-6593. Tuscarawas County, Case No. 2012 AP 11 0067 25

Although Ohio’s divorce statutes do not generally articulate debt as an element of

marital and separate property, the rules concerning marital assets are usually applied to

marital and separate debt as well. Id.

{¶69} “Because [a]ll debts are not necessarily marital debts * * * equity

generally requires that the burden of nonmarital debts be placed upon the party

responsible for them. * * * Consequently, any property acquired as a result of a

nonmarital debt belongs to the party who incurred the debt.” Minges v. Minges, 12th

Dist. No. CA87-06-085, 1988 WL 25913.

4047 West State Street Property

{¶70} Wife states the trial court erred in awarding the 4047 West State Street

property to Wife because the court lacks the authority to award property to Wife that is

owned by a third party and that the trial court erred in holding Wife responsible for the

debt at 4047 West State Street. We disagree.

{¶71} Both parties agree that Husband and Wife do not own the property at

4047 West State Street. The parties transferred the home to Whitmire who

subsequently sold the property to Morrision. Morrison testified he obtained a mortgage

on the property in December of 2006 and he is listed as the owner of the property.

Whitmire, Tufford, Morrision, and Wife’s father contribute funds to Morrison each month

for the mortgage. Morrison collects the funds and sends the money to the mortgage

company each month.

{¶72} The mortgage on 4047 West State Street does not qualify as marital

debt because it is not debt incurred during the marriage for the joint benefit of the

parties or for a valid marital purpose. The property is not marital property because it is Tuscarawas County, Case No. 2012 AP 11 0067 26

not currently owned by either or both of the spouses. Neither Husband or Wife has a

mortgage on or obligation to the property as the mortgage is with Morrison, the

mortgagee, only. Further, the trial court did not improperly award Wife the home or

make a finding that Wife was solely responsible for the September 2006 agreement

between the parties. In fact, the trial court specifically found in its findings of fact that

neither Wife nor Husband had any current ownership interest in the 4047 West State

Street property. In its conclusion, the trial court indicated Wife would only be

responsible for debt resulting from any remaining interest she or Husband has in the

property. Here, neither Husband nor Wife has any remaining interest in the property.

Morrison did not lend Husband and Wife the funds to take out a mortgage in their name,

but obtained the mortgage in his name only and he has not taken any steps to enforce

the agreement between them. Husband is not living in the home and has no mortgage

on the property in his name. Wife is living in the home, but does not have a mortgage

on the property in her name or pay rent. Accordingly, the trial court did not abuse its

discretion in its decision with regards to the 4047 property.

Other Marital Debt

{¶73} Wife contends the trial court erred in not holding Husband 100%

responsible for marital debts. We disagree.

{¶74} During the trial, both parties testified about unpaid debts. Husband’s list

of marital debts included real estate taxes for the Mineral City property, fines, gas bills,

and credit card bills. Husband did not submit any documentation with regards to the

purported marital debts. Wife submitted an itemized list of purported marital debts with

individual bills attached. Wife did not provide any testimony about the individual bills Tuscarawas County, Case No. 2012 AP 11 0067 27

other than to state she was unsure as to which of the bills had been paid. Wife testified

the bills to Black McCuskey and Holmes Siding had been paid by the parties even

though she still included them in the list of outstanding debts. Several of the bills

submitted by Wife are either in Husband’s name or in both parties’ name.

{¶75} While Wife argues the trial court failed to allocate the other marital debts,

it is clear the trial court did allocate the remaining marital debts, as the trial court

determined the parties’ evidence was insufficient to demonstrate what marital debt is

owed and ordered that “each party shall pay any debt in their own name that has not

been addressed and hold the other party harmless thereon. Both parties shall pay 50

percent each of any debt in both parties name.” We find the trial court did not abuse its

discretion in allocating the debts in each party’s name to that party and the debts in both

names to be split by the parties absent evidence proving the debt in each party’s

individual name had been incurred for a joint purpose.

Federal and State Income Taxes and Payroll Taxes of Guardian Nurses

{¶76} Wife argues Husband should be ordered to pay all income and payroll

taxes for the business. Pursuant to our analysis in Assignment of Error Number II, we

find the trial court did not abuse its discretion in ordering Wife 25% responsible for the

income taxes of Guardian Nurses.

{¶77} Accordingly, Wife’s eighth assignment of error is overruled in its entirety.

IX.

{¶78} Wife contends the trial court erred in only awarding one-half of

Husband’s retirement account to Wife. Wife asserts she is entitled to the full amount of

Husband’s retirement account because she cashed in her pre-marital retirement Tuscarawas County, Case No. 2012 AP 11 0067 28

accounts valued at $7,752.66 in 1999 to pay for Husband’s custody dispute with his ex-

wife and this money should have been deemed separate property by the trial court. We

disagree.

{¶79} Pursuant to R.C. 3105.171, a court may award a party his or her

separate property without effecting the equitable division of property. Separate property

is defined by R.C. 3105.171(A)(6)(a) and includes any real or personal property, or

interest in such, that was acquired by one spouse prior to the date of the marriage.

Neville v. Neville, 3d Dist. No. 9-08-37, 2009-Ohio-3817. The statute goes on to

mandate that “[t]he commingling of separate property with other property of any type

does not destroy the identity of the separate property as separate property, except

when the separate property is not traceable.” R.C. 3105.171(A)(6)(b). Therefore,

traceability is the primary issue in determining whether separate property has become

marital property due to commingling. Earnest v. Earnest, 151 Ohio App.3d 682, 2003-

Ohio-704, 785 N.E.2d 766 (11th Dist. 2003). A party who wishes to have a particular

asset classified as separate property has the burden of proving, by a preponderance of

the evidence, that the asset is separate property. Brandon v. Brandon, 3d Dist. No. 10-

08-13, 2009-Ohio-3818. It was thus Wife’s responsibility to prove that the property

existed prior to the marriage and that it was traceable. See Guenther v. Guenther, 9th

Dist. No. 2827, 1994 WL 577751.

{¶80} The characterization of property as separate or marital is a mixed

question of law and fact, and the trial court's ruling must be supported by sufficient

credible evidence. Globokar v. Globokar, 5th Dist. No. 2009CA00138, 2010-Ohio-1737.

We will not reverse the trial court's judgment as being against the manifest weight of the Tuscarawas County, Case No. 2012 AP 11 0067 29

evidence if some competent, credible evidence supports the court's judgment. C.E.

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d

578. “Trial court decisions on what is presently separate and marital property are not

reversed unless there is a showing of an abuse of discretion.” Vonderhaar-Ketron v.

Ketron, 5th Dist. No. 10CA22, 2010-Ohio-6593.

{¶81} Wife testified she utilized her pre-marital retirement accounts to pay for

Husband’s custody dispute in 1999. Wife submitted a statement indicating $5,386.55

was distributed from the Public Employee Retirement System of Ohio to Wife in the

1999 calendar year, a statement from American Funds stating $834.76 was distributed

to Wife in 1999, a statement from Bank One indicating Wife cashed out treasury bonds

in the amount of $211.22 in 1999, and a statement from Edward Jones stating in

December of 1999 they issued a check to Wife for $1,320.13. Wife did not present any

records showing where the money was deposited after it was cashed out or any records

showing the cost of the custody litigation or documentation that it was paid for with her

separate retirement funds. Husband testified he was involved in custody litigation

during the first years of his marriage to Wife and that he and Wife paid for it during the

marriage. Husband knows any debts regarding his custody litigation were incurred and

paid off during his marriage, but did not know what specific funds were used to pay the

custody litigation debts.

{¶82} While Wife submitted evidence that she cashed out the PERS retirement

account and other accounts during the 1999 tax year, Wife did not provide any

evidence, other than her own very general testimony, as to where the funds from the

account went or that the funds went directly into an account used for the custody Tuscarawas County, Case No. 2012 AP 11 0067 30

litigation. Further, since Wife did not provide any evidence as to where the funds were

deposited, it is not clear what use was made of the withdrawn monies. While Wife

asserts her testimony is sufficient to establish that the funds were premarital assets

used for the custody litigation, the trial court is in the best position to determine

credibility of the witnesses. It was within the trial court’s discretion to weigh the

testimony in the absence of documentation of the deposit of the funds or documentation

regarding the costs associated with the custody litigation and make its decision

accordingly.

{¶83} Husband’s retirement account is marital property pursuant to R.C.

3105.171(A)(3)(a)(i). The trial court is required to divide marital property equitably

between the parties according to R.C. 3105.171(B). Because “[e]ach spouse shall be

considered to have contributed equally to the production and acquisition of marital

property,” R.C. 3105.171(C)(2), an equal division is presumed to be equitable. R.C.

3105.171(C)(1). Accordingly, we find the trial court did not err in ordering the marital

portion of Husband’s retirement account to be divided equally. Wife’s ninth assignment

of error is overruled.

X.

{¶84} Wife argues the trial court erred in not awarding her attorney fees. We

{¶85} An award of attorney fees in a domestic relations action is within the

sound discretion of the trial court and will not be reversed on appeal absent an abuse of

discretion. Wildman v. Wildman, 5th Dist. No. 12-CA-21, 2012-Ohio-5090. R.C. Tuscarawas County, Case No. 2012 AP 11 0067 31

3105.73(A) governs the award of attorney fees and litigation expenses in domestic

relations cases and provides:

In an action for divorce * * * or an appeal of that action, a court

may award all or part of the reasonable attorney’s fees and litigation

expenses to either party if the court finds the award equitable. In

determining whether an award is equitable, the court may consider the

parties’ marital assets and income, any award of temporary spousal

support, the conduct of the parties, and any other relevant factors the

court deems appropriate.

{¶86} We first note that the trial court did award Wife $150.00 in attorney fees

for having to defend Husband’s premature motion for orders. The trial court ordered

that, other than the $150.00, each party is responsible for his or her own attorney fees

and costs of litigation.

{¶87} We have reviewed the record, weighed R.C. 3105.73, and find the trial

court’s entry equitable having specifically considered the income and assets of the

parties as discussed supra. Despite Wife’s assertions, there is no evidence Husband

was solely responsible for prolonging the case or failed to cooperate. After the June

2010 trial, the magistrate issued her decision in January of 2011. When both parties

filed objections to the magistrate’s decision, the trial court issued a ruling in October of

2011. Both parties filed numerous motions during the pendency of this case. Any delay

or prolonging of the case is attributable to the continual discord and dissatisfaction of

both parties. In light of the entire record, we find the trial court did not abuse its Tuscarawas County, Case No. 2012 AP 11 0067 32

discretion and the decision regarding attorney fees and costs is supported by

competent, credible evidence. Wife’s tenth assignment of error is overruled.

XI.

{¶88} Wife argues the trial court erred in refusing to address four of her

motions prior to trial and in failing to admit evidence because the rulings on these

motions was required for Wife to be prepared at trial. We disagree. The decision to

grant or deny a continuance falls within the sound discretion of the trial court, and thus

will not be reversed absent an abuse of that discretion. Nationwide Mut. Fire Ins. v.

Barrett, 7th Dist. No. 08 MA 130, 2008–Ohio–6588, at ¶ 19, citing State v. Unger

(1981), 67 Ohio St.2d 65, 67, 21 O.O.3d 41, 423 N.E.2d 1078.

{¶89} On October 30, 2009, Wife filed a motion to allocate the Mineral City

residence. Wife sought to prohibit Husband from occupying the home and sought

permission to enter the property to obtain an appraisal. While the trial court continued

the hearing on the final allocation of the home and property until the trial date, the court

issued a temporary order stating neither party could occupy the Mineral City home and

that counsel for wife would make arrangements for Robert Sweitzer to appraise the

residence. Any failure to rule on the final allocation of the property was not prejudicial to

Wife and she was permitted access to the Mineral City home to appraise the residence.

{¶90} On January 28, 2010, Wife filed a motion to modify interim orders and

requested access to the Mineral City property to obtain estimates. The magistrate did

rule on this motion on March 2, 2010 and ordered that Wife was granted access to the

Mineral City home to arrange for estimates and “she shall have access during daylight

hours with at least 24 hours notice to counsel for Joseph Oliver.” On March 15, 2010, Tuscarawas County, Case No. 2012 AP 11 0067 33

Wife filed a financial affidavit as required by the trial court and requested “an oral

hearing to provide testimony of the disparity of incomes between the parties and the

debts and the lifestyles of the parties.” On April 22, 2010, Wife filed a motion for

contempt for failure to maintain the marital property and for incurring additional debt.

The trial court heard testimony regarding the parties’ income and debts at the trial in

June of 2010 as well as evidence regarding the contempt. There is no evidence this

brief delay was unreasonable or prevented Wife from properly preparing for trial, as she

presented evidence regarding the disparity of incomes between the parties, the debts

and lifestyles of the parties, along with evidence of the alleged contempt during the trial.

{¶91} Wife contends the lack of rulings by the trial court prevented her from

introducing certain evidence at trial, such as Sherman’s testimony, documents on

Husband’s option to purchase the home he lives in, and Cobb’s Facebook photographs.

According to Wife’s counsel during trial, she disclosed expert Sherman as soon as

possible on May 21, 2010; the evidence of the option to purchase Husband’s current

home was not obtained by Wife until the Monday before trial; and counsel for Wife was

unsure as to when or how the Facebook photographs became available. The last

motion Wife claims was not ruled on properly before trial was filed on April 22, 2010 and

thus any failure of the trial court to rule on the motions had no impact on this evidence

being admitted or not admitted because this evidence was not available until well after

the motions were filed.

{¶92} Wife’s eleventh assignment of error is overruled. Tuscarawas County, Case No. 2012 AP 11 0067 34

XII.

{¶93} Wife states the trial court erred in failing to find the proceeds from the

sale of 4033 W. State Street and Wife’s retirement benefits as separate property. We

disagree. As discussed above, traceability is the primary issue in determining whether

separate property has become marital property due to commingling. Earnest v.

Earnest, 151 Ohio App.3d 682, 2003-Ohio-704, 785 N.E.2d 766 (11th Dist. 2003).

{¶94} Wife testified she owned 4033 West State Street prior to the marriage

and that the parties lived in that home for approximately one year after they were

married until they moved to the Mineral City home. The parties sold the home to

Whitmire in 2000 and Wife testified they received a “twenty six thousand something

dollars” profit from the sale. Wife stated she was provided with a closing statement with

the exact amount of profit, but this statement was not offered into evidence. Wife

testified the profit from the 4033 West State Street home went into fixing up the Mineral

City home so that it could accommodate her, Husband, and each of their three children.

After the fire at the Mineral City home, the parties received insurance money to pay off

the mortgage and to replace personal property like clothing and furniture. Some of the

insurance money was used for the mortgage on 4033 West State Street as the parties

moved back in there after the fire, though the home was still owned by Whitmire.

Husband testified the money from the insurance proceeds went to pay off the Mineral

City mortgage and to make improvements to 4047 West State Street, a home the

parties purchased to accommodate themselves and each of their children. The parties

subsequently transferred the property to Whitmire in 2006. There was no evidence as Tuscarawas County, Case No. 2012 AP 11 0067 35

to how much of the insurance money was used to improve the 4047 West State Street

property.

{¶95} While the evidence demonstrates Wife owned the 4033 West State

Street residence at the time of the marriage, we find the trial court did not err in not

finding the profits from the sale Wife’s separate property because the funds cannot be

conclusively traced. No records were submitted as to the exact amount of the profit

made from the sale of the house and Wife could not remember an exact figure. Further,

Wife failed to submit any evidence demonstrating or tracing where the funds went

throughout the complicated sequence of events of: making improvements to the Mineral

City home, receiving insurance proceeds after the fire at the Mineral City home, utilizing

the insurance proceeds to buy personal property, paying the mortgage on the 4033

West State Street home, making improvements on the 4047 West State Street home,

and transferring the 4047 West State Street property to Whitmire. The record does not

indicate to what extent appreciation in any of the homes or the improvements made in

the homes is directly attributable to the funds from the sale of the 4033 West State

Street home. Thus, we find the trial court did not err in finding any profit from the sale

of the 4033 West State Street home to be marital property because Wife failed to meet

her burden of proving the traceability of the funds. We thoroughly addressed Wife’s

retirement funds supra, in Assignment of Error Nine. Accordingly, Wife’s twelfth

assignment of error is overruled.

XIII.

{¶96} Wife argues the trial court erred in awarding Husband the guns he

requested because she does not have either of the guns. The trial court found the Tuscarawas County, Case No. 2012 AP 11 0067 36

testimony by the parties failed to establish the location of the guns, but concluded that

Husband should be given ownership of the guns and turned over to him, if located by

Wife. Husband testified about the make and model of each of the guns and stated the

guns belonged to his father, who has passed away. The trier of fact is vested with the

authority to weigh the evidence and assess the credibility of the witnesses. State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of syllabus (1967). Upon

review, we find the trial court did not abuse its discretion in finding that the guns, if

located by Wife, should be returned to Husband. Wife’s thirteenth assignment of error

is overruled.

Cross-Assignment of Error IV.

{¶97} Husband argues the trial court erred in granting the divorce on grounds

of adultery. We disagree. R.C. 3105.01 sets forth the grounds upon which a divorce

may be granted and includes adultery and incompatibility. In her March 31, 2009

complaint, Wife pled both incompatibility and adultery as grounds for the divorce. In his

answer, Husband admitted the parties were incompatible but denied all other

allegations.

{¶98} A trial court has broad discretion in determining the proper grounds for

divorce and its decision will not be reversed absent an abuse of discretion. Brokaw v.

Brokaw, 8th Dist. No. 92729, 2010-Ohio-1053, ¶ 4. Further, “proof of adultery can be

established in Ohio by a preponderance of the evidence upon proof of circumstances

from which guilt can be inferred, but such proof must be clear, positive, and sufficiently

definite to show the circumstances under which it was committed.” Ashley v. Ashley,

118 Ohio App. 155, 193 N.E.2d 535 (6th Dist. 1962). Tuscarawas County, Case No. 2012 AP 11 0067 37

{¶99} During his testimony at trial, Husband stated he started a relationship

with Cobb in January of 2007 and had a child with Cobb in February of 2010. Further,

when Wife attempted to call Cobb as a witness during the trial, counsel for Husband

stated, “we admit to adultery your honor. Stipulated.” Thus, we find sufficient proof

through Husband’s testimony and stipulation that the trial court could find, by a

preponderance of the evidence, that Husband committed adultery. We find the trial

court did not abuse its discretion in granting Wife’s petition for divorce based on both

incompatibility and adultery. Husband’s fourth cross-assignment of error is overruled.

{¶100} Based on the foregoing, the October 13, 2011 and October 10, 2012

judgment entries of the Tuscarawas County Common Pleas Court are affirmed.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. SHEILA G. FARMER

_________________________________ HON. PATRICIA A. DELANEY

WSG:clw 0917 [Cite as Oliver v. Oliver, 2013-Ohio-4389.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

MISTY OLIVER : : Plaintiff-Appellant /Cross-Appellee : : : -vs- : JUDGMENT ENTRY : JOSEPH OLIVER : : : Defendant-Appellee /Cross-Appellant : CASE NO. 2012 AP 11 0067

For the reasons stated in our accompanying Memorandum-Opinion, the October 13,

2011 and October 10, 2012 judgment entries of the Tuscarawas County Common Pleas

Court are affirmed. Costs to be split between the parties.