[Cite as Rollins v. Rollins, 2014-Ohio-5441.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JEFFREY ROLLINS : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellant : Hon.Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 14 CAF 04 0018 : KATRINA ROLLINS : : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Domestic Relations Division Case No. 13 DR B 01 0001
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 10, 2014
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
NICHOLAS W. YAEGER ANTHONY M. HEALD SEAN P. SHERIDAN Heald Law Mowery, Youell & Galeano, Ltd. 125 N. Sandusky St. 425 Metro Place North, Suite 420 Delaware, OH 43015 Powell, OH 43017 Delaware County, Case No. 14 CAF 04 0018 2
Delaney, J.
{¶1} Plaintiff-Appellant Jeffrey Rollins appeals the March 11, 2014 judgment
entry of the Delaware County Court of Common Pleas, Domestic Relations Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Jeffrey Rollins ("Husband") and Defendant-Appellee
Katrina Rollins ("Wife") were married on December 12, 1992. One child was born as
issue of the marriage on May 5, 1994.
{¶3} Husband and Wife separated on or about June 24, 2006 after 13.5 years
of marriage. Husband left the marital residence and Wife remained at the residence with
the child. Husband did not tell Wife where he was living. During the parties’ separation,
the parties filed joint tax returns and Husband continued to provide health insurance
coverage for Wife and child. Husband and Wife purchased joint Christmas presents for
the child. Husband and Wife had a joint checking account. Wife paid her own car
payment. Wife paid for her and the child’s expenses, including the child’s orthodontics.
Husband paid Wife $1,400.00 per month during the separation.
{¶4} Husband was employed and earned approximately $180,000 to $190,000
per year. Husband’s employer leased a car for Husband as part of his employment.
Wife was self-employed doing business as the Skin Spa of Powell. Wife made no
income in 2011.
{¶5} In May 2011, Husband returned to the marital residence and maintained
sole possession of the residence. Wife moved to a different residence with the child.
{¶6} Husband filed a complaint for divorce on January 2, 2013. Wife filed an
answer and counterclaim on March 18, 2013. Delaware County, Case No. 14 CAF 04 0018 3
{¶7} A trial was held before the magistrate on December 11, 2013.
{¶8} The magistrate issued his decision on December 17, 2013. One issue was
the date of the termination of the marriage. The magistrate determined the parties
separated on June 24, 2006 and the de facto termination date of the marriage was
December 11, 2013, equating to 21 years of marriage. The magistrate ordered Husband
to pay spousal support to Wife in the amount of $5,000.00 per month starting January
2014. Spousal support was to be paid for 72 months.
{¶9} Husband filed objections to the magistrate’s decision and a Praecipe to
Court Reporter for Transcript of Proceedings on December 31, 2013. The trial court
issued a judgment entry on January 7, 2014 ordering the transcript of the magistrate’s
hearing to be filed on or before January 30, 2014. The trial court stated if the Husband
failed to file the transcript without an extension, the trial court would rule on the
objections without the transcript. Wife filed a response to Husband’s objections and
cross-objections to the magistrate's decision on January 9, 2014. By entry dated
January 18, 2014, the parties were granted leave to file supplemental objections within
fourteen days following the filing of the transcript. The trial court again stated that if the
parties failed to file a transcript on or before January 30, 2014, the trial court would rule
on the objections without the transcript.
{¶10} On March 11, 2014, the trial court filed its judgment entry overruling
Husband and Wife’s objections to the magistrate’s decision. The trial court noted the
transcript of the magistrate's hearing had not been filed and the court made its decision
on the objections pursuant to guidelines of Civ.R. 53.
{¶11} Husband filed the transcript with the trial court on March 25, 2014. Delaware County, Case No. 14 CAF 04 0018 4
{¶12} The Husband now appeals the March 11, 2014 judgment entry.
ASSIGNMENTS OF ERROR
{¶13} Husband raises three Assignments of Error:
{¶14} "I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION BY FAILING TO ORDER A DEFACTO TERMINATION OF
MARRIAGE CONSISTENT WITH THE EVIDENCE PRESENTED AT TRIAL AND IN
ACCORDANCE WITH OHIO REVISED CODE §3105.171(A)(2) RESULTING IN THE
COURT FASHIONING AN UNEQUAL AND INEQUITABLE PROPERTY DIVISION IN
VIOLATION OF R.C. §3105.171.
{¶15} "II. EVEN WITHOUT ASSIGNING A DEFACTO TERMINATION OF
MARRIAGE DATE, THE TRIAL COURT'S PROPERTY DIVISION IS UNEQUAL, THE
TRIAL COURT FAILED TO ASSIGN VALUES TO ASSETS, AND THE COURT FAILED
TO GIVE ANY FINDINGS AS TO WHY THE PROPERTY DIVISION IS UNEQUAL.
{¶16} "III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN THE
CALCULATION OF THE PARTIES' INCOMES RESULTING IN AN AMOUNT OF
SPOUSAL SUPPORT PAYABLE FROM APPELLANT TO APPELLEE THAT IS NOT
REASONABLE AND APPROPRIATE UNDER OHIO REVISED CODE 3105.18 AS TO
AMOUNT AND DURATION."
ANALYSIS
{¶17} Husband argues in his three Assignments of Error the trial court erred
when it overruled his objections to the magistrate's decision. The record shows
Husband failed to timely file a transcript of the magistrate's hearing for the trial court's Delaware County, Case No. 14 CAF 04 0018 5
consideration when the trial court ruled on Husband's objections to the magistrate's
decision.
{¶18} Civ.R. 53 governs matters referred to magistrates. Civ.R. 53(D) states in
pertinent part:
(3) Magistrate's decision; objections to magistrate's decision.
***
(b) Objections to magistrate's decision.
(i) Time for filing. A party may file written objections to a magistrate's
decision within fourteen days of the filing of the decision, whether or not
the court has adopted the decision during that fourteen-day period as
permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any
other party may also file objections not later than ten days after the first
objections are filed. If a party makes a timely request for findings of fact
and conclusions of law, the time for filing objections begins to run when
the magistrate files a decision that includes findings of fact and
conclusions of law.
(ii) Specificity of objection. An objection to a magistrate's decision shall be
specific and state with particularity all grounds for objection.
(iii) Objection to magistrate's factual finding; transcript or affidavit. An
objection to a factual finding, whether or not specifically designated as a
finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a
transcript of all the evidence submitted to the magistrate relevant to that
finding or an affidavit of that evidence if a transcript is not available. With Delaware County, Case No. 14 CAF 04 0018 6
leave of court, alternative technology or manner of reviewing the relevant
evidence may be considered. The objecting party shall file the transcript or
affidavit with the court within thirty days after filing objections unless the
court extends the time in writing for preparation of the transcript or other
good cause. If a party files timely objections prior to the date on which a
transcript is prepared, the party may seek leave of court to supplement the
objections.
(iv) Waiver of right to assign adoption by court as error on appeal. Except
for a claim of plain error, a party shall not assign as error on appeal the
court's adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or
conclusion as required by Civ.R. 53(D)(3)(b).
{¶19} This court has held, “where an appellant fails to provide a transcript of the
original hearing before the magistrate for the trial court's review, the magistrate's
findings of fact are considered established and may not be attacked on appeal.” Oyler v.
Oyler, 5th Dist. Stark No. 2014CA00015, 2014-Ohio-3468, ¶ 27 quoting Doane v.
Doane, 5th Dist. Guernsey No. 00CA21, 2001 WL 474267 (May 2, 2001); State v. Leite,
5th Dist. Tuscarawas No.1999AP090054, 2000 WL 502819 (Apr. 11, 2000); Fogress v.
McKee, 5th Dist. Licking No. 99CA15, 1999 WL 668580 (Aug. 11, 1999); and Strunk v.
Strunk, 5th Dist. Muskingum No. CT96–0015, 1996 WL 787981 (Nov. 27, 1996). When
a party objecting to a magistrate's decision has failed to provide the trial court with the
evidence and documents by which the trial court could make a finding independent of Delaware County, Case No. 14 CAF 04 0018 7
the report, the appellate court is precluded from considering the transcript of the hearing
submitted with the appellate record. State ex rel. Duncan v. Chippewa Twp. Trustees,
73 Ohio St.3d 728, 1995–Ohio–272, 654 N.E.2d 1254.
{¶20} Accordingly, we review Husband's three Assignments of Error only to
analyze whether the trial court abused its discretion in reaching specific legal
conclusions based upon the established facts. Oyler, supra at ¶ 28 citing He v. Zeng,
5th Dist. Licking No. 2009–CA–00060, 2010–Ohio–2095, ¶ 23.
I.
{¶21} Husband argues in his first Assignment of Error that the trial court erred
when it established the de facto date of termination of the marriage as December 11,
2013. We disagree.
{¶22} R.C. 3105.171(A)(2) provides that, except when the court determines that
it would be inequitable, the date of the final hearing is the date of termination of the
marriage. Giltz v. Giltz, 5th Dist. Stark No. 2011 CA00173, 2012–Ohio–1727, ¶ 31,
citing Combs v. Combs, 5th Dist. Stark No. 2008CA00169, 2009–Ohio–1683, ¶ 21. As
we have previously found, R.C. 3105.171(A)(2) “creates a statutory presumption that
the proper date for the termination of a marriage is the date of the final divorce hearing.”
Giltz, supra, 2012–Ohio–1727, ¶ 31, citing Bowen v. Bowen, 132 Ohio App.3d 616, 630,
725 N.E.2d 1165 (9th Dist.1999).
{¶23} However, the trial court has broad discretion in choosing the appropriate
marriage termination date and this decision cannot be disturbed on appeal absent an
abuse of discretion. See Berish v. Berish, 69 Ohio St.2d 318, 321, 432 N.E.2d 183 Delaware County, Case No. 14 CAF 04 0018 8
(1982). R.C. 3105.171(A)(2) establishes an alternative date for determining the end of
the marriage:
(A) As used in this section:
****
(2) “During the marriage” means whichever of the following is applicable:
(a) Except as provided in division (A)(2)(b) of this section, the period of
time from the date of the marriage through the date of the final hearing in
an action for divorce or in an action for legal separation;
(b) If the court determines that the use of either or both of the dates
specified in division (A)(2)(a) of this section would be inequitable, the court
may select dates that it considers equitable in determining marital
property. If the court selects dates that it considers equitable in
determining marital property, “during the marriage” means the period of
time between those dates selected and specified by the court.
{¶24} Courts should be reluctant to use a de facto termination of marriage date
unless the evidence clearly and bilaterally shows that it is appropriate based on the
totality of the circumstances. Boggs v. Boggs, 5th Dist. Delaware No. 07 CAF 02 0014,
2008–Ohio–1411, ¶ 66 citing Day v. Day, 40 Ohio App.3d 155, 158, 532 N.E.2d
201(10th Dist.1988); Stafinsky v. Stafinsky, 116 Ohio App.3d 781, 689 N.E.2d 112 (11th
Dist.1996); Schnieder v. Schnieder, 110 Ohio App.3d 487, 674 N.E.2d 796 (11th
Dist.1996). Generally, the trial court has broad discretion in choosing the appropriate
marriage termination date and this decision cannot be disturbed on appeal absent an
abuse of discretion. Boggs, supra citing Berish, supra. “The abuse of discretion Delaware County, Case No. 14 CAF 04 0018 9
standard is based upon the principle that a trial court must have the discretion in
domestic relations matters to do what is equitable given the facts and circumstances of
each case.” Jefferies v. Stanzak, 135 Ohio App.3d 176, 179, 733 N.E.2d 305 (12th
Dist.1999) citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).
Therefore, in order to find an abuse of discretion there must be a determination that the
trial court's judgment is “unreasonable, arbitrary, or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶25} Based on the record before us reviewed under the constraints of Civ.R.
53, we find no abuse of discretion for the trial court to find the de facto termination date
of marriage was December 11, 2013. Husband's first Assignment of Error is overruled.
II.
{¶26} Husband contends in his second Assignment of Error that the trial court
inappropriately valued the parties' assets and the division of property was unequal. We
disagree.
{¶27} An appellate court generally reviews the overall appropriateness of the
trial court's property division in divorce proceedings under an abuse of discretion
standard. Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). In order to find
an abuse of discretion, we 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, 450 N.E.2d 1140 (1983). In order to make
an equitable division of property, the trial court should first determine the value of the
marital assets. See Eisler v. Eisler, 24 Ohio App.3d 151, 152, 493 N.E.2d 975 (11th
Dist.1985). In performing this function, the trial court has broad discretion to develop Delaware County, Case No. 14 CAF 04 0018 10
some measure of value. See Berish v. Berish, 69 Ohio St.2d 318, 432 N.E.2d 183
(1982). Thus, “[t]he valuation of marital assets is typically a factual issue that is left to
the discretion of the trial court.” Roberts v. Roberts, 10th Dist. Franklin No. 08AP–27,
2008–Ohio–6121, ¶ 18 citing Berish, supra. Generally, as an appellate court, we are not
the trier of fact. Our role is to determine whether there is relevant, competent, and
credible evidence upon which the fact finder could base his or her judgment. Tennant v.
Martin–Auer, 188 Ohio App.3d 768, 2010–Ohio–3489, 936 N.E.2d 1013, ¶ 16 (5th
Dist.), citing Cross Truck Equipment Co. v. Joseph A. Jeffries Co., 5th Dist. Stark No.
CA–5758, 1982 WL 2911 (Feb. 10, 1982).
{¶28} “Trial court decisions on what is presently separate and marital property
are not reversed unless there is a showing of an abuse of discretion.” Valentine v.
Valentine, 5th Dist. Ashland No. 95COA01120, 1996 WL 72608 (Jan. 10, 1996), citing
Peck v. Peck, 96 Ohio App.3d 731, 734, 645 N.E.2d 1300 (12th Dist.1994). Specifically,
“[w]hen considering a fair and equitable distribution of pension or retirement benefits in
a divorce, the trial court must apply its discretion based upon the circumstances of the
case, the status of the parties, the nature, terms and conditions of the pension or
retirement plan, and the reasonableness of the result.” Hoyt v. Hoyt, 53 Ohio St.3d 177,
559 N.E.2d 1292 (1990), paragraph one of syllabus.
{¶29} Pursuant to R.C. 3105.171(B), “[i]n divorce proceedings, the court shall * *
* determine what constitutes marital property and what constitutes separate property. In
either case, upon making such a determination, the court shall divide the marital and
separate property equitably between the spouses, in accordance with this section. * * * ” Delaware County, Case No. 14 CAF 04 0018 11
{¶30} R.C. 3105.171(C)(1) further states: “Except as provided in this division or
division (E)(1) of this section, the division of marital property shall be equal. 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 the manner the court
determines equitable. In making a division of marital property, the court shall consider
all relevant factors, including those set forth in division (F) of this section.”
{¶31} The fair and equitable division of pension or retirement benefits in a
divorce matter in Ohio is left to the trial court's discretion. Hoyt, supra, at paragraph one
of the syllabus. Pension or retirement benefits earned during the marriage are marital
assets and a factor to be considered in the just division of property. Id. at 178.
{¶32} The trial court awarded Husband the marital home, the family boat,
Husband's life insurance policy, and Husband's checking account. Husband was made
responsible for the mortgage on the marital home, the lines of credit in his name, and
the loan on the boat. Wife was awarded her checking and savings account, a QDRO for
Husband's two pension plans, and the Skin Spa of Powell. Wife was made responsible
for the lines of credit in her name.
{¶33} Because there was no transcript of the magistrate's hearing filed with the
objections to the magistrate's decision, this Court must hold that the magistrate's
findings of fact are established. The valuation of assets is a factual determination. We
review the matter only to determine whether the trial court abused its discretion in
reaching specific legal conclusions based upon the established facts.
{¶34} In this case, we find no abuse of discretion in the trial court's division of
the assets. The Ohio Revised Code does not require the trial court to make an equal Delaware County, Case No. 14 CAF 04 0018 12
division of marital property but an equitable division of marital property. Further, based
on the trial court's determination the de facto termination date of the marriage was
December 11, 2013, Husband's pension plans were marital assets and subject to the
trial court's division as marital assets.
{¶35} Husband's second Assignment of Error is overruled.
III.
{¶36} Husband argues in his third Assignment of Error that the trial court
incorrectly calculated the parties' income to find a spousal support award that was
unreasonable as to amount and duration. We disagree.
{¶37} A trial court's decision concerning spousal support may be altered only if it
constitutes an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d
83 (1990). An abuse of discretion connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). R.C.
3105.18(C)(1)(a) through (n) sets forth the factors a trial court is to consider in
determining whether spousal support is appropriate and reasonable, and in determining
the nature, amount, terms of payment, and duration of spousal support:
(C)(1) In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms of payment,
and duration of spousal support, which is payable either in gross or in
installments, the court shall consider all of the following factors: Delaware County, Case No. 14 CAF 04 0018 13
(a) The income of the parties, from all sources, including, but not limited
to, income derived from property divided, disbursed, or distributed under
section 3105.171 of the Revised Code;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional conditions of the
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, including but not limited
to any court-ordered payments by 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 so that
the spouse will be qualified to obtain appropriate employment, provided
the education, training, or job experience, and employment is, in fact,
sought; Delaware County, Case No. 14 CAF 04 0018 14
(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;
(n) Any other factor that the court expressly finds to be relevant and
equitable.
{¶38} Trial courts must consider all the factors listed in R.C. 3105.18(C). This
court has previously held that a trial court need not acknowledge all evidence relative to
each and every factor listed in R.C. 3105.18(C), and we may not assume that the
evidence was not considered. Hutta v. Hutta, 177 Ohio App.3d 414, 2008–Ohio–3756,
894 N.E.2d 1282, ¶ 27 (5th Dist.), citing Clendening v. Clendening, 5th Dist. Stark No.
2005CA00086, 2005–Ohio–6298, ¶ 16, citing Barron v. Barron, 5th Dist. Stark No.
2002CA00239, 2003–Ohio–649. The trial court need set forth only sufficient detail to
enable a reviewing court to determine the appropriateness of the award. Id., citing
Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988).
{¶39} The magistrate's decision in the present case conducted a review the R.C.
3105.18(C) factors. This was a marriage of long duration, 21 years. Under the totality of
the circumstances based on our limited review of the record, we find no abuse of
discretion in the trial court's decision regarding spousal support. Husband's third
Assignment of Error is overruled. Delaware County, Case No. 14 CAF 04 0018 15
CONCLUSION
{¶40} The three Assignments of Error filed by Plaintiff-Appellant Jeffrey Rollins
are overruled.
{¶41} The judgment of Delaware County Court of Common Pleas, Domestic
Relations Division is affirmed.
By: Delaney, J.,
Hoffman, P.J. and.
Farmer, J., concur.