Rodriguez v. Rodriguez

2 Ohio App. Unrep. 651

• Court: Ohio Court of Appeals
• Decided: March 13, 1990
• Docket: Case No. 89-G-1498
• Status: Published

Opinions

FORD, J.

Appellant, David Rodriguez, and appellee, Deborah Rodriguez, were granted a divorce on December 7,1989. The parties stipulated to the value of many of the marital assets. However, the value of one asset, Rodriguez Sales and Service, the appellant's business, was contested. Appellee presented one expert who valued it as $280,586, and appellant's expert valued it at $51,257. The court concluded that the business was worth $125,000, and awarded it to appellant. In total, the court awarded marital assets of $188,650 to appellee and $181,166, which included the business, to appellant. The appellee was also awarded custody of the three children, child support in the amount of $1,146.87 per month, and sustenance alimony of $703.13 per month for six (6) years or approximately $50,000.

Appellant raises the following two assignments of error.

"1. The trial court erred in the property division portion of its Judgment Entry when it valued Appellant-Husband'sbusiness,Rodriguez Sales and Service, without deducting a reasonable salary for a manager.

"2. The trial court erred when it not only granted Appellee-Wife over one-half of the marital estate which included all of the liquid assets but further granted her approximately $50,000.00 in alimony over and above the property division award."

Appellant initially takes issue with the court's valuation of his business. He argues that the valuation is skewed because the court failed to include a manager's salary in the valuation. From the record, we are unable to determine whether the court did or did not make an adjustment to the value of the business because of this.

Independently, this court concludes such an adjustment, based upon the evidence presented, would be erroneous. Appellee's expert discounted such a reduction and stated that it would be inappropriate to determine value with such a deduction. He also noted that any individual purchasing the business would not hire a manager to run the company. Rather, the purchaser would continue to operate the business as a sole proprietorship.

Appellant also assertsthat appellee's expert failed to consider or did not have before him all of the necessary business records upon which to make his conclusion.

While this may or may not be accurate, such is a question of credibility of the witness. Appellant was afforded an opportunity to cross-examine the expert on this subject and challenge his conclusions, and in actuality, he did. Furthermore, appellant presentedhis expert who attempted to discredit appellee's witness.

This conflicting testimony and the resolution of which value to accept is a question of credibility of the witness that is to be determined by the trier of fact.

"These theories were distinctly different, and both had strong support by expert testimony of witnesses. It is unfortunate, but true, that experts, like the rest of mankind, may take a given set of facts and draw absolutely divergent conclusions therefrom. It thus becomes necessary for some tribunal to make determination of the correctness of these opposite conclusions." Springfield Gas Co. v. Herman (1933), 46 Ohio App. 309, 311.

That determination in this cause was for the trial judge.

However, in obtaining a valuation, the judge or trier of fact must have before it sufficient evidence to justify or support the dollar figure it obtains. This court in Bollas v. Bollas (Dec. 1, 1989), Trumbull App. No. 88-T-4089, unreported, citing from Bushman v. Bushmah (Mar. 31, 1989), Geauga App. No. 1442, unreported, noted "that the availability of testimony, in the trial court record, which purports to value property, is not a panacea for failure to specifically enumerate valuations in the entry. An appellate court cannot glean from the record the trial court's estimation of the credibility of the witnesses' valuation testimony unless the trial court provides the answer in the entry." Bollas, at 4. Similarly, if the trial court summarily arrives at a valuation of an asset or property, even though between the two extremes of the opposing parties' witnesses, without a proper evidential predicate, such would be error. Even though the trier of fact is granted much leeway in obtaining a value, it must do so based upon the evidence before it. To achieve a middle of the road estimation without some basis for such an adjustment from one extreme or the other would constitute error as not being supported by the evidence.

In this cause, appellant's expert valued the business at $51,257. Appellee's expert indicated it was worth $280,586. The remaining testimony is insufficient to support a finding of $125,000. Neither party presented evidence which would either increase the value by approximately $75,000 or decrease the value by $155,000. Furthermore, the court failed to explain how it obtained the value it did. Therefore, the court's conclusion is not supported by any evidence which would permit a valuation of $125,000.

The first assignment has merit for reasons other than those articulated by appellant. See App. R. 12.

In the second assignment, appellant alleges that the court erred by awarding appellee sustenance alimony. This is meritless.

"A trial court in any domestic relations action has broad discretion in fashioning an equitable division of marital property. Berish v. Berish (1982), 69 Ohio St. 2d 318 [23 0.0. 3d 296]; and when appropriate, in awarding alimony based on need. Wolfe v. Wolfe [(1976), 46 Ohio St. 2d 399.]" Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217 at 218.

Furthermore, it has long been recognized that sustenance alimony is not a component of the division of the marital assets. Rather, as noted in Cherry v. Cherry (1981), 66 Ohio St. 2d 348, and Wolfe, supra:

"Only after a division of property is made, is the court statutorily authorized to consider whether an additional amount is needed for sustenance, and for what period will such necessity persist.

"Any grant of 'alimony' for sustenance is necessarily co-extensive with the court's determination that it is needed and warranted. Such authentication and supervision is accomplished through the continuing jurisdiction of the court." Wolfe, at 414.

The specific grounds for a grant of alimony are established in R.C. 3105.18(B). "When a trial court does not specify the reasons behind its award, it is presumed that the factors listed in R.C. 3105.18(B) were considered". Russell v. Russell (1984), 14 Ohio App. 3d 408, at paragraph two of the syllabus.

In Blakemore, supra, the court noted that the proper standard of review regarding alimony payments was abuse of discretion. Absent such a showing, no error can be found and the evidence in this cause does not support such a finding.

The judge, in his entry, noted appellee's monthly expenses and indicated her contribution. From this, he determined how much appellant should provide. This was sufficient to comply with the dictates of Russell, supra, and R.C. 3105.18(B) for purposes of determining the "additional amount needed for sustenance and for what period will such necessity persist." As such, no error can be found.

For the reasons stated in the opinion of this court, the judgment of the trial court is reversed and remanded for further proceedings.

Judgment reversed and cause remanded.

CHRISTLEY, P.J., Concurs with concurring opinion. LYNCH, J., Ret., sitting by assignment, Concurs with Concurring opinion.