Schwieterman v. Schwieterman

2020 Ohio 4881

• Court: Ohio Court of Appeals
• Decided: October 13, 2020
• Docket: 8-19-49
• Status: Published

Opinion

[Cite as Schwieterman v. Schwieterman, 2020-Ohio-4881.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

MELISSA J. SCHWIETERMAN,

PLAINTIFF-APPELLANT, CASE NO. 8-19-49

v.

LUKE R. SCHWIETERMAN, OPINION

DEFENDANT-APPELLEE.

Appeal from Logan County Common Pleas Court Family Court Division Trial Court No. DR16-12-0184

Judgment Affirmed

Date of Decision: October 13, 2020

APPEARANCES:

John H. Cousins, IV for Appellant

Andrew M. Engel for Appellee Case No. 8-19-49

WILLAMOWSKI, J.

{¶1} Plaintiff-appellant Melissa J. Schwieterman (“Melissa”) appeals the

judgment of the Logan County Court of Common Pleas, Family Court Division,

alleging the trial court erred in (1) calculating her income; (2) calculating the level

of child support; (3) determining the date on which the marriage terminated; and (4)

determining not to award spousal support. For the reasons set forth below, the

judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} Melissa and Luke R. Schwieterman (“Luke”) were married on June 9,

2001. Doc. 1. For the duration of this marriage, Luke worked for Cargill, Inc. Tr.

29. In between 2001 and 2003, Melissa worked as a registered nurse. Tr. 75-76.

Around the time that their first child was born, Melissa stopped working full-time

to focus on raising the children. Tr. 76-77. Two children were born as the issue of

this marriage. Doc. 169. Tr. 45. Neither child had reached the age of majority by

the time that trial court issued the divorce decree. Doc. 169. Tr. 35. Both children

are enrolled in school. Tr. 87.

{¶3} From at least 2009 to the date of the divorce hearing, Melissa has

worked part-time as a registered nurse for Columbus Exam One and then for Mobile

Health Services. Ex. I. Tr. 63-64. In December of 2012, Melissa’s grandparents

gifted her $500,000.00. Tr. 97, 190. Ex. 2. Melissa placed around $400,000.00

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from this gift into a Wells Fargo investment account. Tr. 190. She then deposited

the remaining $100,000.00 in a joint checking account. Tr. 190. By April or May

of 2015, roughly $68,000.00 remained in this joint account. Tr. 190-191. Melissa

withdrew this sum of roughly $68,000.00 from this joint account and deposited

these funds into a money market account. Tr. 190-191.

{¶4} On August 5, 2015, Melissa and Luke separated. Tr. 25. At this time,

Luke moved out of the marital residence. Tr. 25, 102. In between August of 2015

and May of 2016, Luke would generally stay at the marital residence on weekends

to accommodate his parenting time. Tr. 52, 103. In 2015, Melissa wrote a check

that transferred $25,000.00 that she had withdrawn from the Wells Fargo investment

account to her parents. Tr. 97, 197. Ex. 2. In 2016, she wrote two more checks that

transferred $400,000.00 that she had withdrawn from the Wells Fargo investment

account to her parents. Tr. 97. Melissa testified that these transfers, which totaled

$425,000.00, were loans to her parents. Doc. 152. Tr. 98, 196-197. Ex. 2. By

2018, $104,158.33 remained in the Wells Fargo investment account. Ex. 2.

{¶5} On December 14, 2016, Melissa filed a complaint for divorce. Doc. 1.

Tr. 44. Hearings on this matter were held on October 10 and 12, 2018. Doc. 163,

164, 170. The magistrate issued a decision on January 23, 2019. Doc. 152. Melissa

then filed objections to the magistrate’s decision on February 6, 2019. Doc. 156.

The trial court issued a decree of divorce on September 16, 2019. Doc. 170. Melissa

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filed her notice of appeal on October 16, 2019. Doc. 179. On appeal, she raises the

following assignments of error:

First Assignment of Error

The trial court erred, abused its discretion, and ruled against the manifest weight of the evidence by imputing $83,657.92 in additional income to Appellant for purposes of child support and spousal support.

Second Assignment of Error

The trial court abused its discretion in calculating child support.

Third Assignment of Error

The trial court erred, abused its discretion, and ruled against the manifest weight of the evidence by violating the parties’ stipulated property division and determining that the marriage terminated on August 5, 2015.

Fourth Assignment of Error

The trial court abused its discretion by refusing to award spousal support for the parties’ 18-year marriage.

{¶6} Melissa argues that the trial court erred by imputing $83.657.92 of

income to her because (1) Luke failed to carry the burden of proving she was

voluntarily underemployed and (2) because the trial court imputed income from

income producing assets.

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Legal Standard

{¶7} In deciding the issues relevant to child support orders, a trial court must

consider the income of both parties. See Drummer v. Drummer, 3d Dist. Putnam

No. 12-11-10, 2012-Ohio-3064, ¶ 24; Arthur v. Arthur, 3d Dist. Shelby No. 17-11-

28, 2012-Ohio-1893, ¶ 25. See R.C. 3105.18(C)(1)(a). “The definition of ‘income’

as set forth in R.C. 3119.01 is intended to be both broad and flexible.” Misra v.

Misra, 2018-Ohio-5139, 126 N.E.3d 367, ¶ 32 (10th Dist.). R.C. 3119.01(C)(5)

reads as follows:

“Income” means either of the following:

(a) For a parent who is employed to full capacity, the gross income of the parent;

(b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent.

R.C. 3119.01(C)(5). Thus, the applicable definition of income under R.C.

3119.01(C)(5) depends on a parent’s employment status. R.C. 3119.01(C)(5).

{¶8} “[A] parent who claims that his or her former spouse is underemployed

has the burden of proof on that issue.” Phyillaier v. Phyillaier, 3d Dist. Shelby No.

17-98-21, 1999 WL 693157, *2 (Sept. 1, 1999). See Groves v. Groves, 12th Dist.

Clermont No. CA2008-06-059, 2009-Ohio-931, ¶ 9. “[T]he question whether a

parent is voluntarily * * * unemployed or voluntarily underemployed is a question

of fact for the trial court.” Rock v. Cabral, 67 Ohio St.3d 108, 112, 616 N.E.2d 218,

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222 (1993). For this reason, a trial court’s determination on this issue will not be

disturbed unless the trial court is found to have abused its discretion. Id.

{¶9} If a trial court determines that a parent is voluntarily unemployed or

voluntarily underemployed, the trial court computes that parent’s income by adding

that parent’s potential income to any gross income he or she may have. R.C.

3119.01(C)(5). R.C. 3119.01(C)(5). See Drummer at ¶ 24; R.C. 3119.01(C)(17).

“Gross income” is defined in R.C. 3119.01(C)(12). R.C. 3119.01(C)(12). This

provision reads, in its relevant part, as follows:

(12) ‘Gross income’ means * * * the total of all earned and unearned income from all sources during a calendar year, whether or not the income is taxable, and includes income from salaries, wages, overtime pay, and bonuses * * *; commissions; royalties; tips; rents; dividends; severance pay; pensions; interest; trust income; annuities; social security benefits, including retirement, disability, and survivor benefits that are not means-tested; workers’ compensation benefits; unemployment insurance benefits; disability insurance benefits; benefits that are not means-tested and that are received by and in the possession of the veteran who is the beneficiary for any service-connected disability * * *; spousal support actually received; and all other sources of income. ‘Gross income’ includes income of members of any branch of the United States armed services or national guard * * *; self-generated income; and potential cash flow from any source.

(Emphasis added.) R.C. 3119.01(C)(12).

[O]ne of the purposes of the ‘potential cash flow’ provision in [the statute] * * * [is] to prevent a parent from avoiding child support obligations by shifting present income to a cash flow expected to be enjoyed at some future time, when the children have become emancipated.

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Smart v. Smart, 3d Dist. Shelby No. 17-07-10, 2008-Ohio-1996, ¶ 19, quoting

Sizemore v. Sizemore, 2d Dist. Montgomery No. 13673, 1994 WL 558917, *2 (Oct.

14, 1994).

{¶10} “Potential income” is defined in R.C. 3119.01(C)(17). R.C.

3119.01(C)(17). This provision reads as follows:

(17) ‘Potential income’ means both of the following for a parent who the court pursuant to a court support order, or a child support enforcement agency pursuant to an administrative child support order, determines is voluntarily unemployed or voluntarily underemployed:

(a) Imputed income that the court or agency determines the parent would have earned if fully employed as determined from the following criteria:

(i) The parent’s prior employment experience;

(ii) The parent’s education;

(iii) The parent’s physical and mental disabilities, if any;

(iv) The availability of employment in the geographic area in which the parent resides;

(v) The prevailing wage and salary levels in the geographic area in which the parent resides;

(vi) The parent’s special skills and training;

(vii) Whether there is evidence that the parent has the ability to earn the imputed income;

(viii) The age and special needs of the child for whom child support is being calculated under this section;

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(ix) The parent’s increased earning capacity because of experience;

(x) The parent’s decreased earning capacity because of a felony conviction;

(xi) Any other relevant factor.

(b) Imputed income from any nonincome-producing assets of a parent, as determined from the local passbook savings rate or another appropriate rate as determined by the court or agency, not to exceed the rate of interest specified in division (A) of section 1343.03 of the Revised Code, if the income is significant.

R.C. 3119.01(C)(17). Thus, by using the factors listed in R.C. 3119.01(C)(17)(a)(i)-

(xi), the trial court is to determine “the income the voluntarily unemployed or

voluntarily underemployed parent would have earned if fully employed * * *.”

Huth v. Huth, 11th Dist. Portage No. 2018-P-0084, 2019-Ohio-2970, ¶ 25.

{¶11} Further, under R.C. 3119.01(C)(17)(b), income may also be imputed

from nonincome-producing assets (1) if the trial court determines that the parent is

voluntarily unemployed or voluntarily underemployed and (2) if the income is

significant. R.C. 3119.01(C)(17)(b). See Sizemore, supra, at *2. This imputed

income is to be “determined from the local passbook savings rate or another

appropriate rate as determined by the court, but not exceeding the statutory rate of

R.C. 1343.03(A).” Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989,

2012-Ohio-4621, ¶ 44.

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{¶12} The amount of income to be imputed to a parent under R.C.

3119.01(C)(17) is a “matter[] to be determined by the trial court based upon the

facts and circumstances of each case.” Cabral, supra, at paragraph one of the

syllabus. For this reason, appellate courts are to apply an abuse of discretion

standard in reviewing a trial court’s determination as to the amount of imputed

income. Id. A mere error in judgment does not constitute an abuse of discretion.

Worden v. Worden, 3d Dist. Marion No. 9-16-54, 2017-Ohio-8019, ¶ 26. Rather, a

determination that is arbitrary, capricious, or unreasonable is an abuse of discretion.

Id.

Legal Analysis

{¶13} The first issue Melissa raises in this assignment of error is whether the

trial court erred in finding that she was voluntarily underemployed. She asserts that

Luke did not carry the burden of establishing that she was voluntarily

underemployed. The record indicates that Melissa had an associate’s degree from

Rhodes State College and was licensed as a registered nurse. Tr. 46, 75-76. See

R.C. 3119.01(C)(17)(a)(ii). In between 2001 and 2003, she stated that she worked

forty hours a week as a full-time nurse, earning twenty dollars an hour. Tr. 75-76.

She also worked overtime in this position. Tr. 76. Melissa affirmed that she stopped

working as a full-time nurse “to stay home and raise kids * * *.” Tr. 77. See R.C.

3119.01(C)(17)(a)(i).

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{¶14} On cross-examination, Melissa testified that she does not work full-

time hours at her current job at Care One Connect but that pays thirty dollars an

hour. Tr. 81, 83. She stated that the number of hours she works a week varies by

the number of clients that she has and that she has a degree of control over her work

schedule. Tr. 86. While she did not know the average number of hours that she

worked each week, she testified that she believed that she worked works an eight-

hour day roughly four times a month. Tr. 85-86. However, she submitted an exhibit

at trial that indicated she had worked 337.75 hours in between January 1, 2018 and

October 14, 2018. Ex. F. See Tr. 48-50. Melissa also testified that she had earned

$8,218.75 that year prior to the hearing. Ex. G. Tr. 81-83.

{¶15} Melissa testified that she inquired into a job opening at one hospital

but did not submit an application. Tr. 80. She also personally knew one or two

individuals who had the credentials that she did and were employed full-time in her

area. Tr. 77-78. She stated that she did not know what her friends earned as full-

time registered nurses. Tr. 78, 100. Melissa testified that many of the positions in

her area would require a Bachelor of Science in Nursing Degree. Tr. 80. However,

she also stated that she had not inquired into any positions that might be available

to her with her current credentials in the central Ohio area. Tr. 80. She also

indicated that her children were at the age where they were at school during the day.

Tr. 87. See R.C. 3119.01(C)(17)(a)(viii).

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{¶16} Melissa also agreed that she was in good physical, mental, and

emotional health. Tr. 101. See R.C. 3119.01(C)(17)(a)(iii). However, she stated

that she did not know if she planned to work as a full-time registered nurse in the

future. Tr. 107. She testified that she was trying to get nurses to work for her at her

current job so that she could assume a more supervisory role. Tr. 108. But she also

indicated that she would probably not work forty hours a week even if she were able

to attain this supervisory role. Tr. 108.

{¶17} Based on Melissa’s testimony at the hearing, the trial court determined

that Melissa had an annualized gross income of $11,795.88. Doc. 152. This was

the equivalent of earning $205.47 per week. Doc. 152. At Melissa’s hourly rate of

pay, the magistrate calculated that Melissa was working, on average, roughly nine

hours per week. Doc. 152.1 Further, based on Melissa’s statements at trial that she

was mentally and physically healthy, the magistrate determined that she was capable

of working forty hours a week and that she was, therefore, voluntarily

underemployed. Doc. 152, 170.

{¶18} Thus, at the final hearing, there was evidence presented as to this issue

that addressed several of the relevant factors listed in R.C. 3119.01(C)(17)(a). Tr.

77-86. The trial court could, in its discretion, conclude from this evidence that

Melissa was voluntarily underemployed. Further, after reviewing the evidence in

1 In making this calculation, the magistrate accounted for the fact that Melissa got a pay raise in the middle of 2018. Doc. 152.

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the record, we do not find any indication that the trial court abused its discretion in

reaching this determination. For these reasons, we find Melissa’s first argument

under this assignment of error to be without merit.

{¶19} We now turn to the second issue that Melissa raises under this

assignment of error: whether the trial court properly considered the funds that

Melissa received from her grandparents in determining Melissa’s income. In this

case, Melissa’s grandparents gifted her $500,000.00. Tr. 108. She invested

$400,000.00 of this sum in a Wells Fargo investment account. Tr. 96, 190. This

account increased $74,856.77 in value in 2013; increased $40,186.60 in value in

2014; decreased $32,736.08 in value in 2015; and increased $36,051.26 in value in

2016. Ex. 2. Tr. 194-198. In 2015 and 2016, Melissa transferred $425,000.00 from

this account to her parents. Tr. 98, 196-197.

{¶20} At the final hearing, Melissa testified that the transfers of $425,000.00

to her parents were loans for farm related expenses, life insurance, and cash rent.

Tr. 98, 100, 142. However, Melissa testified that the terms of the loans to her

parents had not been reduced to writing. Tr. 98. She also stated that the loans to

her parents had no agreed upon repayment date and no agreed upon interest rate.

Tr. 99, 100. Rather, Melissa testified that “a fair interest rate is all that’s agreed

upon.” Tr. 99. She further testified that she wanted to make the same amount of

money in interest from her parents that she would have made from the Wells Fargo

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investment account. Tr. 100. Melissa did not withdraw all of the funds from this

Wells Fargo investment account. Ex. 2. At the beginning of 2018, Melissa still had

$104,158.33 in the Wells Fargo investment account. Ex. 2.

{¶21} Based on this information, the magistrate determined that potential

income should be imputed to Melissa for the $425,000.00 loan from Melissa to her

parents. Doc. 152. Using a five percent rate of return, the magistrate imputed

$21,250.00 of potential income to Melissa from the loan to her parents. Doc. 152.

The magistrate then used a five percent rate of return to calculate Melissa’s “annual

interest income” from the Wells Fargo investment account. Doc. 152. Thus,

Melissa’s income from the Wells Fargo investment account was $5,207.92. Doc.

152. On appeal, Melissa argues that the trial court erred (1) by considering the Wells

Fargo investment account to be a nonincome-producing asset and (2) by imputing

income to her from the $425,000.00 loan that she issued to her parents.

{¶22} In the first part of her argument, Melissa asserts that the trial court

could not impute potential income from the Wells Fargo investment account

pursuant to R.C. 3119.01(C)(17)(b) because it is an income producing asset. See

Sweeney v. Sweeney, 2019-Ohio-1750, 135 N.E.3d 1189, ¶ 37 (1st Dist.). In the

magistrate’s decision, the Wells Fargo investment account was considered in the

same analysis with the $425,000.00 loan as both were proceeds of the $500,000.00

gift. Doc. 152. However, there is no indication in the record that the trial court or

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the magistrate considered the Wells Fargo investment account to be a nonincome-

producing asset. Doc. 152. The magistrate never referred to the Wells Fargo

investment account as a source of “potential income.” Doc. 152. Using a five

percent rate of return for the funds in the Wells Fargo investment account, the

magistrate “imputed annual income of $5,207.92” to Melissa.2 Doc. 152. The

magistrate then referred to the calculated proceeds from the Wells Fargo investment

account ($5,207.92 a year) as “annual interest income.” Doc. 152. In contrast, the

magistrate repeatedly referred to the $425,000.00 loan as a source of “potential

income.” Doc. 152. See R.C. 3119.01(C)(17)(b). Using a five percent rate of return

on this loan, the magistrate determined that “$21,250.00 annually will be imputed

to [Melissa] as ‘potential income.’” Doc. 152.

{¶23} Thus, contrary to Melissa’s assertion, the record does not indicate that

the trial court considered the Wells Fargo investment account to be a nonincome-

producing asset under R.C. 3119.01(C)(17)(b) that was a source of potential income.

Doc. 152. Pursuant to R.C. 3119.01(C)(12), the trial court could impute income

from the Wells Fargo investment account as a source of “potential cash flow” when

calculating Melissa’s gross income. R.C. 3119.01(C)(12). Based on a review of

2 The use of the word “impute” in this context does not indicate that the trial court considered the annual interest income from the Wells Fargo investment account as “potential income” under R.C. 3119.01(C)(17) and does not imply that the magistrate considered the Wells Fargo account to be a nonincome-producing asset under R.C. 3119.01(C)(17)(b). “Courts do sometimes use the phrase ‘imputed income’ when referring to potential cash flow” in calculating gross income under R.C. 3119.01(C)(12). Smart, supra, at ¶ 25, quoting Howell v. Howell, 167 Ohio App.3d 431, 2006-Ohio-3038, 855 N.E.2d 533, ¶ 54 (2d Dist.).

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the relevant materials in the record, this is exactly what the trial court appears to

have done. Doc. 152.

{¶24} In the second part of her argument, Melissa argues that the

$425,000.00 loan to her parents is not an asset from which the trial court can impute

potential income to her under R.C. 3119.01(C)(17(b). However, this Court has

interpreted the Second District’s decision in Sizemore v. Sizemore as standing for

the proposition that a loan can be a nonincome-producing asset. See Smart, supra,

at ¶ 22, citing Sizemore, supra, at *3.3 We will apply this understanding to the facts

of this case.

{¶25} At the final hearing, Luke presented evidence that the Wells Fargo

investment account was generating an average rate of return of 9.83% a year in

between 2013 and 2019. Tr. 200. Ex. 2. Melissa testified that she withdrew

$425,000.00 and issued these funds as loans to her parents. Tr. 98, 197. There is

3 In Sizemore, the trial court considered a parent’s $115,237.00 loan to his corporation as a nonincome- producing asset because this asset was not, at that time, producing income and because the parent expected a return on this loan in the future. Sizemore, supra, at *3. But the trial court did not make a finding that the parent was voluntarily underemployed or voluntarily unemployed. Id. Thus, on appeal, the Second District held that the trial court could not impute potential income from this asset in the absence of such a finding. Id. See R.C. 3119.01(C)(17)(b). However, the Second District held that the trial court could impute income from this loan as a source of potential cash flow. Id. See R.C. 3119.01(C)(12). In Smart v. Smart, this Court cited Sizemore as “finding that a loan to a corporation that was not generating income at the time, a nonincome-producing asset, constituted a potential cash flow and was treatable as gross income.” Smart, supra, at ¶ 22. Thus, this Court operated under the assumption that the imputation of income as “potential cash flow” instead of “potential income” did not change the status of this loan as a nonincome-producing asset. Id. The Second District in Howell v. Howell exhibited a similar reliance on Sizemore. See Howell v. Howell, 167 Ohio App.3d 431, 2006-Ohio-3038, 855 N.E.2d 533, ¶ 51 (2d Dist.), citing Sizemore, supra, at *3. In the case before this Court, the trial court found that Melissa was voluntarily underemployed. Doc. 152, 170. Thus, pursuant to the reasoning in Sizemore, Smart, and Howell, the trial court could impute potential income to Melissa from this loan as a nonincome-producing asset. See Sizemore, supra, at *3; Smart, supra, at ¶ 22; Howell, supra, at ¶ 51.

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no evidence in the record that Melissa was, by the time of the final hearing, receiving

any interest payments on this loan from her parents. See Tr. 98-101. Thus, she

chose to transfer this asset from an account that had been generating returns to a

loan that was not, at that time, generating returns.

{¶26} The magistrate found that Melissa did not offer any testimony

regarding “the actual need for her parents to have this money * * *” and that her

testimony “was vague about her parent[s’] farming operation.” Doc. 152. He noted

that “[t]he optics of ‘loaning’ $425,000.00 to a relative or trusted friend immediately

before or during a divorce proceeding is troubling. To do so and then request

spousal support is even more so.” Doc. 152. The magistrate then determined that

“it [was] necessary to impute the ‘potential income’ this $425,000.00 could generate

for [Melissa].” Doc. 152.4 The trial court did not err in imputing potential income

from the $425,000.00 loan that Melissa issued to her parents that was, at the time of

the final hearing, not producing income. See R.C. 3119.01(C)(17)(b).

{¶27} Even if the trial court had erred in imputing potential income from this

loan, these funds could still be imputed to Melissa’s gross income as a source of

potential cash flow under R.C. 3119.01(C)(12). In this case, Melissa indicated that

4 While the funds in the Wells Fargo investment account were generating an average rate of return of 9.83% a year, the magistrate applied a five percent interest rate in the process of imputing income from the funds associated with this account. Ex. 2. Doc. 152, 170. The trial court found that the average rate of return of 9.83% in between 2013 and 2019 was too “speculative” a figure on which to impute potential income. Doc. 170.

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she expected her parents to repay this loan at “a fair interest rate.” Tr. 99. She

further indicated that she would expect to receive roughly as much from the

repayment of this loan as she would have received from the returns on the Wells

Fargo investment account. Tr. 100. While this loan was not currently an income

producing asset, Melissa indicated that she anticipated that this loan was going to

be a source of income in the future as her parents repaid this loan. See Sizemore,

supra, at *3 (holding that “[a] choice to defer income will not justify deferring or

avoiding child support.”). Thus, this loan would qualify as a source of potential

cash flow under R.C. 3119.01(C)(12). Id.

{¶28} Nevertheless, we do not find any indication that the trial court erred in

determining that Melissa was voluntarily underemployed. Further, after reviewing

the evidence in the record, we conclude that the trial court did not err in imputing

income to Melissa from the $104,158.33 in the Wells Fargo investment account.

We further conclude that the trial court did not err considering the $425,000.00 loan

from Melissa to her parents as a source of potential income and did not err in

imputing income to Melissa from this nonincome-producing asset. For these

reasons, Melissa’s first assignment of error is overruled.

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{¶29} Melissa argues that the trial court erred by ordering a level of child

support that was less than the combined child support obligation in the absence of

making one of the findings in R.C. 3119.04(B).

{¶30} The version of R.C. 3119.04(B) that was in effect at the time of the

filing of this action reads as follows:

If the combined gross income of both parents is greater than one hundred fifty thousand dollars per year, the court, with respect to a court child support order, or the child support enforcement agency, with respect to an administrative child support order, shall determine the amount of the obligor’s child support obligation on a case-by-case basis and shall consider the needs and the standard of living of the children who are the subject of the child support order and of the parents. The court or agency shall compute a basic combined child support obligation that is no less than the obligation that would have been computed under the basic child support schedule and applicable worksheet for a combined gross income of one hundred fifty thousand dollars, unless the court or agency determines that it would be unjust or inappropriate and would not be in the best interest of the child, obligor, or obligee to order that amount. If the court or agency makes such a determination, it shall enter in the journal the figure, determination, and findings.

R.C. 3119.04(B).5 Thus, “[t]he level of support for a combined gross income of

$150,000 [is] the starting point from which a trial court exercises its discretion in

5 In this case, the magistrate’s decision was filed on January 23, 2019. Doc. 152. A revised version of R.C. 3119.04 became effective on March 28, 2019. R.C. 3119.04. The trial court order was issued on September 16, 2019. Doc. 170. In light of the recent decisions in Graham v. Graham, 2020-Ohio-1435, ---N.E.3d ---, ¶ 18 (3d Dist.) and Sweeney v. Sweeney, 2019-Ohio-1750, 135 N.E.3d 1189, ¶ 46 (1st Dist.), we requested

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fashioning a child support award for parents with higher incomes.” Pelger v.

Pelger, 3d Dist. Logan No. 8-18-36, 2019-Ohio-1280, ¶ 10, quoting Kane v. Kane,

9th Dist. Summit No. 26781, 2014-Ohio-2037, ¶ 13.

If the parties have a combined income exceeding $150,000, the child support guidelines do not apply. Phelps v. Saffian, 8th Dist. Cuyahoga No. 103549, 2016-Ohio-5514, 2016 WL 4497129, ¶ 9. Instead, R.C. 3119.04(B) states that if the combined income of the parties exceeds $150,000, the court must establish the amount of child support on a case-by-case basis, taking into consideration ‘the needs and the standard of living of the children who are the subject of the child support order and of the parents.’ R.C. 3119.04(B). Trial courts need not consider the deviation factors set forth in R.C. 3119.23 and 3119.24 when setting support amounts higher than the statutory amount for a combined gross income of $150,000 since ‘[s]upport awards in excess of that minimum * * * are anticipated by R.C. 3119.04(B) and are not deviations.’ Wuscher v. Wuscher, 9th Dist. Summit No. 27697, 2015-Ohio-5377, 2015 WL 9393622, ¶ 27.

Guagenti v. Guagenti, 2017-Ohio-2706, 90 N.E.3d 297, ¶ 75 (3d Dist.). “A trial

court has considerable discretion related to the calculation of child support, and,

absent an abuse of discretion, an appellate court will not disturb a child support

order.” Clark v. Clark, 3d Dist. Henry No. 7-15-09, 2015-Ohio-3818, ¶ 28.

{¶31} In this case, the magistrate determined that Melissa and Luke had a

combined income of $224,500.63, which was $74,500.63 above the $150,000.00

supplemental briefs from the parties on the issue of whether the current or former version of R.C. 3119.04 should apply. In their briefs, both parties argued that no prejudice would arise from the application of the former version of R.C. 3119.04.

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threshold in former R.C. 3119.04(B). Doc. 152. Luke’s income represented

roughly sixty-three percent of this combined income. Doc. 152. Melissa’s income

represented the remaining thirty-seven percent. Doc. 152. The magistrate began

his calculations by noting that the level of child support for parents with a combined

income of $150,000.00 is $21,971.00. Doc. 152.

{¶32} The final two combined income levels listed on the applicable

statutory schedule in former R.C. 3119.021(A) were for combined incomes of

$149,400.00 and $150,000.00. R.C. 3119.021(A). The child support obligation at

$149,400.00 was $21,908.00, and the child support obligation at $150,000.00 was

$21,971.00. R.C. 3119.021(A). Thus, while the combined income level increased

by $600.00, the child support obligation increased by $63.00. The magistrate noted

that this $63.00 increase in the child support obligation represented 10.5% of the

$600.00 increase in the level of combined parental income. Doc. 152. The

magistrate multiplied the amount of combined income that Luke and Melissa had

above the $150,000.00 threshold ($74,500.63) by the rate of 10.5%, reaching the

figure of $7,822.57. Doc. 152.

{¶33} The magistrate then added this $7,822.57 figure to the child support

obligation for combined parental incomes of $150,000.00 on the statutory schedule.

In the end, the magistrate determined that an overall child support obligation of

$29,765.82 was appropriate for Luke and Melissa’s children. Doc. 152. Because

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Luke had roughly sixty-three percent of the combined parental income, he would be

responsible for $18,763.05 of this amount, and Melissa would be responsible for the

remaining $11,002.77. Doc. 152.

{¶34} However, since the parties agreed to a shared parenting plan in which

the children spend equal time with each parent, the magistrate divided the amounts

assigned to Luke and Melissa in half. Doc. 152. After this division, Luke owed

Melissa $9,381.52, and Melissa owed Luke $5,501.38. Doc. 152. The magistrate

then subtracted Melissa’s obligation from Luke’s obligation. Doc. 152. Of the

annual child support obligation, Luke was required to transfer $3,880.14 to Melissa.

Doc. 152.

{¶35} Melissa argues that the trial court erred by ordering an amount of child

support that was lower than the minimum amount of $21,971.00 listed in the

statutory schedule for combined incomes of $150,000.00. In particular, Melissa

argues that the trial court erred by “arbitrarily divid[ing] Luke’s child support

obligation in half based on the division of parenting time.” Appellant’s Brief, 13.

However, a careful reading of magistrate’s calculations indicates that the trial court

did not order a child support obligation that was lower than the statutory

recommendation for combined incomes of $150,000.00. Further, the trial court also

did not, in effect, divide Luke’s child support obligation in half. We turn to

examining the rationale of the magistrate’s decision.

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{¶36} In this case, the magistrate determined that Luke and Melissa’s overall

child support obligation should be $29,765.82 annually. Doc. 152. Since the

children were to spend one half of the year with each parent, each household would

need one half of this overall child support obligation or $14,882.19 to provide for

the needs of the children. Since Melissa made roughly thirty-seven percent of the

combined parental income, the magistrate expected her to be financially able to

contribute thirty-seven percent of the overall child support obligation of $29,765.82.

Thus, she was expected to contribute $11,002.77 a year to the support of her children

while they were living with her.

{¶37} However, after her expected contribution of $11,002.77, Melissa

would need an additional $3,880.14 for her household to reach the $14,882.19 level

of support that was needed for the children during the one-half of the year that the

children resided with her. For this reason, the magistrate ordered Luke to pay

Melissa exactly $3,880.14. Doc. 152. Her expected annual contribution of

$11,002.77 and Luke’s $3,880.14 a year in child support payments give Melissa’s

household the expected $14,882.19 a year. Thus, the children can rely on a level of

child support of $14,882.19 in Melissa’s household while Melissa contributes thirty-

seven percent of the annual, overall child support obligation.

{¶38} Under the magistrate’s order, Melissa does not owe any child support

payments to Luke. Doc. 152. Thus, in addition to making $3,880.14 in child

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support payments, Luke is expected to furnish the entire $14,882.19 level of child

support for his own household by solely supporting the children during the one-half

of the year when they are living with him. In other words, by supporting the children

while they are with him and by making child support payments to Melissa, Luke is

expected to contribute a total of $18,763.05 in child support annually. This

$18,763.05 is sixty-three percent of the annual, overall child support obligation of

$29,765.82.

{¶39} The trial court’s order anticipates that the children will receive a level

of child support that is equivalent to $29,765.82 a year. The order anticipates that

sixty-three percent of this total will come from Luke and that thirty-seven percent

will come from Melissa. This overall child support obligation is more than the

$21,971.00 in the statutory schedule for combined parental incomes of

$150,000.00.6 R.C. 3119.021(A). Further, contrary to Melissa’s argument, the trial

court did not divide Luke’s child support obligation in half. Rather, in effect, the

trial court divided in half the amount in child support payments that each party owes

to the other to account for the fact that the children spend one half the year in each

parental household. In so acting, the trial court did not cut in half what the parties

owe to the children.

6 In its judgment entry, the trial court indicated that it did not deviate down from the statutory schedule in issuing this order. Doc. 170. The trial court did, however, note that it could also reach this result through a deviation. Doc. 170. See Borer v. Borer, 3d Dist. Seneca No. 13-09-24, 2009-Ohio-6522, ¶ 5, 28.

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{¶40} After evaluating the magistrate’s reasoning, the trial court

“caution[ed] that this method is only useful in situations where each party has

substantial resources to properly care for the children.” Doc. 170. In reaching this

conclusion in its child support analysis, the trial court stated that “the Magistrate’s

finding that [Melissa] is underemployed is so clear that to argue otherwise * * *

diminished credibility.” Doc. 170. The trial court also considered the fact that

Melissa had $425,000.00 to loan to her parents and noted that Melissa had

previously been “earning $50,000.00 per year on her investment” before she

transferred the $425,000.00 to her parents.

{¶41} Under former R.C. 3119.04(B), the trial court is permitted to

determine “the amount of the obligor’s child support obligation on a case-by-case

basis” where “the combined gross income of both parents is greater than

[$150,000.00] * * *.” R.C. 3119.04(B). The trial court divided the child support

obligation on the basis of the financial resources that each party had at their disposal

and the amount of time that the children lived with each party. After reviewing the

record, we do not find any indication that the trial court abused its discretion in

making this determination. Thus, Melissa’s second assignment of error is overruled.

{¶42} Melissa argues that the trial court erred by using August 15, 2019 as

the date of termination for the marriage instead of the date of the final hearing.

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{¶43} The duration of a marriage provides a trial court with a timeframe for

determining the value of marital assets that fluctuate in value. See Rossi v. Rossi,

8th Dist. Cuyahoga No. 100133, 2014-Ohio-1832, ¶ 29. An equitable distribution

of marital assets relies on an equitable determination as to the duration of the

marriage. Heyman v. Heyman, 10th Dist. Franklin No. 05AP-475, 2006-Ohio-1345,

¶ 31. R.C. 3105.171(A)(2) defines “during the marriage” as follows:

(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.

R.C. 3105.171(A)(2). Thus, this provision allows a trial court to recognize a de

facto termination date for the marriage. Shoenfelt v. Shoenfelt, 3d Dist. Shelby No.

17-12-08, 2013-Ohio-1500, ¶ 15.

{¶44} Under R.C. 3105.171(A)(2)(a), “[t]here is a statutory presumption that

the duration of a marriage runs from the date of the marriage through the date of the

final divorce hearing.” Drummer, supra, at ¶ 51, citing R.C. 3105.171(A)(2)(a).

However, under R.C. 3105.717(A)(2)(b), “[i]f the court determines use of [the final

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hearing] date would be inequitable * * *, it may select a termination date that it

considers equitable.” Fernando v. Fernando, 2017-Ohio-9323, 102 N.E.3d 657, ¶

6 (10th Dist.).

{¶45} To comply with R.C. 3105.171(A)(2)(b), the trial court must engage

in a two-step process in order to impose a de facto determination date. Shoenfelt at

¶ 19.

First, [the trial court] must consider whether using the final hearing date as the termination date of the marriage would be equitable. Second, if using the final hearing date would be inequitable, [the trial court] must determine, based on the * * * factors [set forth in Dill v. Dill, 179 Ohio App.3d 14, 2008-Ohio- 5310, 900 N.E.2d 654, ¶ 47 (3d Dist.), that] a previous date that is both equitable to the parties and reasonable based on the evidence adduced at trial.

Id. The nonexclusive list of factors in Dill are as follows:

(1) the parties separated on less than friendly terms, (2) the parties believed the marriage ended prior to the hearing, (3) either party cohabited with another person during the separation, (4) the parties were intimately involved during the separation, (5) the parties lived as husband and wife during the separation, (6) the parties maintained separate residences, (7) the parties utilized separate bank accounts or were/were not financially intertwined (with the exception of temporary orders), (8) either party attempted to reconcile, (9) either party retained counsel, and (10) the parties attended social functions together or vacationed together.

(Citations omitted.) Dill at ¶ 11. “No one factor is dispositive; rather, the trial court

must determine the relative equities on a case-by-case basis.” Id., citing Berish v.

Berish, 69 Ohio St.2d 318, 319-320, 432 N.E.2d 183 (1982).

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In general, trial courts use a de facto termination of marriage date when the parties separate, make no attempt at reconciliation, and continually maintain separate residences, separate business activities, and separate bank accounts. Gullia v. Gullia (1994), 93 Ohio App.3d 653, 666, 639 N.E.2d 822. However, courts should be reluctant to use a de facto termination of marriage date solely because one spouse vacates the marital home. Day v. Day (1988), 40 Ohio App.3d 155, 158, 532 N.E.2d 201. Rather, a trial court may use a de facto termination of marriage date when the evidence clearly and bilaterally shows that it is appropriate based upon the totality of the circumstances. Id.

O’Brien v. O’Brien, 8th Dist. Cuyahoga No. 89615, 2008-Ohio-1098, ¶ 41. See Dill

at ¶ 11, quoting Day at 158 (holding that “[a] de facto termination of marriage must

be ‘clear and bilateral, not unilateral’ * * *.”).

{¶46} “R.C. 3105.171(A)(2)(b)’s language is discretionary, not mandatory *

* *.” Dill at ¶ 10. For this reason, “the trial court’s decision of whether a de facto

termination date is equitable is reviewed under an abuse-of-discretion standard.” Id.

“Under the abuse of discretion standard, an appellate court is not to substitute its

judgment for the trial court’s judgment.” Mousa v. Saad, 3d Dist. Marion No. 9-

18-12, 2019-Ohio-742, ¶ 29, citing Schroeder v. Niese, 2016-Ohio-8397, 78 N.E.3d

339, ¶ 7 (3d Dist.). Thus, a mere error of judgment does not rise to the level of an

abuse of discretion. Siferd v. Siferd, 2017-Ohio-8624, 100 N.E.3d 915, ¶ 16 (3d

Dist.). “[T]o constitute an abuse of discretion, the trial court’s decision must be

unreasonable, arbitrary, or capricious.” Southern v. Scheu, 3d Dist. Shelby No. 17-

17-16, 2018-Ohio-1440, ¶ 10.

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{¶47} Melissa argues that the use of August 5, 2015 as the de facto

termination date instead of the date of the final hearing affects the valuation of

retirement accounts in Luke’s name. First, she argues that the de facto termination

date for the marriage violates the property division that was agreed to by the parties.

Second, she argues that Luke’s failure to file a motion for a de facto termination

date renders the trial court’s determination on this matter a violation of her rights to

due process. Third, she argues, in the alternative, that the trial court erred by using

a de facto termination date for the marriage instead of the date of the final hearing.

Fourth, as part of her alternative argument, she further argues that the trial court

failed to determine that the use of the final hearing date would be inequitable as is

required by our decision in Dill. We will consider each of these four arguments in

turn.

{¶48} As to the first argument, the parties to this action presented the

magistrate with an agreement on the distribution of property at the final hearing on

October 10, 2018. October 10 Tr. 1. Melissa’s attorney read this agreement into

the record and, in this process, stated the following:

They have reached an agreement on the retirement plans * * * they have agreed that husband has a separate property interest in the Vanguard partnership plan * * *. He’s going to get that separate property interest prior to division of that—that retirement account.

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As you know, Your Honor, we have yet to decide as to the termination date of the marriage, but the parties have agreed that they’re going to equally share the marital portion of that account 50/50. There is another account—I’m not quite sure how much is in it, but if there is an amount in it, they’ve agreed to the same terms for that account * * *. It’s a Cargill partnership plan * * *. They’ve agreed to share the marital portion of that account 50/50.

(Emphasis added.) Id. at 4-6.

{¶49} After hearing the terms of this arrangement, the magistrate conducted

a colloquy to ensure that the parties were agreed as to the matters that were resolved

and the matters that remained for trial. October 10 Tr. 12-14. The magistrate stated

the following: “So that will take care of everything other than spousal [support],

date of termination of marriage, child support * * *.” (Emphasis added.) Id. at 12.

Melissa’s attorney did not object to this statement and did not seek any further

clarification. Id. at 12-14.

{¶50} On January 23, 2019, the magistrate issued a decision that

incorporated the agreement between the parties as to the distribution of property.

Doc. 152. Both Luke and Melissa had signed this document. Doc. 152. This

agreement provided for the division of the retirement accounts and expressly stated

that “[t]he court is to decide the end-date of the marriage.” Doc. 152. Further, the

magistrate’s decision contained a stipulation that the termination date of the

marriage was a matter that remained for the trial court to determine; that Melissa

asserted the date of the final hearing should be the termination date; and that Luke

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asserted the date of their separation should be the de facto termination date. Doc.

152.

{¶51} These facts in the record indicate that the trial court did not violate the

stipulated agreement between the parties in issuing a determination as to the

termination date of the marriage. In this case, both parties signed an agreement that

submitted this issue to the trial court for determination. Doc. 152. The discussion

at the final hearing and the stipulations in the magistrate’s decision reflect the

understanding of the parties. October 10, 2018 Tr. 4-6, 12. For this reason, the trial

court’s decision does not violate the agreement between the parties. Doc. 152.

Rather, the decision of the trial court was made pursuant to the agreement between

the parties. Doc. 152. Thus, Melissa’s first argument is without merit.

{¶52} As to her second argument, Melissa fails to cite any legal authority

that would suggest Luke, given the circumstances in this case, was required to file

a motion that formally requested a de facto termination date for the marriage. The

Supreme Court of Ohio held that,

[i]n order to do equity, a trial court must be permitted to utilize alternative valuation dates, such as the time of permanent separation or de facto termination of the marriage, where reasonable under the facts and circumstances presented in a particular case.

Berish, supra, at 321, quoting Lacey v. Lacey, 45 Wis.2d 378, 173 N.W.2d 142

(1970). For this reason, Ohio courts have held that

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no motion is required for the trial court to consider the use of a de facto date. It is within the exercise of the court’s equitable powers, as well as its statutory authority, for the trial court to declare and apply a date for the division of marital property.

Hornbeck v. Hornbeck, 2019-Ohio-2035, 136 N.E.3d 966, ¶ 39 (2d Dist.), quoting

Heyman, supra, at ¶ 35. Thus, Luke was not required to file a motion with the trial

court that formally requested a de facto termination date for the marriage, and the

trial court did not err in deciding this issue in the absence of such a motion.

{¶53} Further, Melissa does not identify any facts in the record that would

indicate she was not on notice that this matter was an issue to be considered at the

final hearing. She also does not argue that she did not have an opportunity to be

heard on this matter. Rather, she signed an agreement that submitted this issue to

the trial court for a decision. Doc. 152. Melissa also gave testimony that was

relevant to determining the termination date of the marriage. Tr. 102-106. She also

made arguments for her position to the trial court. Doc. 156. Thus, Melissa’s

second argument is without merit.

{¶54} Regarding her third, alternative argument, there is testimony from

Luke and Melissa as to each of the ten factors listed in Dill. Dill, supra, at ¶ 11.

First, Luke testified that he and Melissa separated on less than friendly terms. Tr.

185. He stated that, at the time Melissa asked him to move out of the marital

residence on August 5, 2015, she brought up an earlier incident in which he took

pictures of her private areas. Tr. 25, 67. Melissa alleged that Luke took these

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pictures while she was asleep and without her consent, but Luke denied taking these

pictures while she was asleep. Tr. 24, 66. Melissa even suggested to Luke that his

decision to photograph her without her consent could be a criminal offense. Tr. 149.

{¶55} Luke further testified that he and Melissa committed minor criminal

offenses in an incident between them in December of 2016. Tr. 183. He stated that

he was subject to a restraining order in between December of 2016 and January of

2017 that prevented him from visiting with the children. Tr. 162. Luke also testified

that one of Melissa’s boyfriends approached him on two different occasions in a

confrontational manner. Tr. 169-170. However, Melissa asserted that the

separation had to be friendly if Luke continued to stay at the house on weekends for

parenting time in between August of 2015 and May of 2016. Tr. 102.

{¶56} Second, while Melissa stated at the final hearing that her marriage

lasted from “June of 2011 until [the] present,” she also testified that she did not

consider herself still married to Luke. Tr. 102. Luke testified that he believed that

the marriage had ended prior to the time of the final hearing. Tr. 186. He further

stated that he came to believe that the marriage was in peril prior to the date of

separation. Tr. 186. Third, Luke and Melissa denied cohabiting with any other

person after they separated. Tr. 104, 186. However, Luke and Melissa testified that

they had dated other individuals. Tr. 104.

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{¶57} Fourth, both parties stated that they had not been intimately involved

with each other since the date of the separation. Tr. 104, 186. Melissa admitted to

having been intimate with others since their separation. Tr. 104. Fifth, Luke

testified that they had not lived as husband and wife since the date of their

separation. Tr. 186. Sixth, both parties testified that they had each maintained

separate residences since their separation. Tr. 105, 186. Luke only stayed at the

marital residence on every other weekend to facilitate parenting time in between

August of 2015 and May of 2016. Tr. 105, 186.

{¶58} Seventh, Melissa testified that she and Luke still had a joint bank

account. Tr. 105. However, Luke testified that he opened his own checking account

for his use at the time of their separation. Tr. 187. He testified that he only paid for

one expense out of their joint checking account after they separated. Tr. 187. He

explained that he had forgotten to set up an automatic payment for his car from his

new checking account and that, as a result, this bill was inadvertently paid for out

of their joint checking account. Tr. 187.

{¶59} Eighth, Melissa also admitted that she had no intention of reconciling

with Luke after August 5, 2015 and that they never discussed reconciliation. Tr.

104. Luke testified that he had written a letter to Melissa within a week of their

separation. Tr. 188. This letter indicated a desire to continue the marriage. Ex. D.

Tr. 26. He stated the following at the final hearing about this letter:

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Melissa said I was a terrible person and did all these mean things. I was in shock. And so I wrote a letter to apologize because at that point I wasn’t aware of the extramarital affairs that had been going on; I wasn’t aware that we were significantly in debt when I was made to believe that we were * * * in a very good position financially, and once I found those things out then I realized that the marriage was over.

Tr. 189. Luke also testified that he offered to attend marriage counseling but that

Melissa had denied this request. Tr. 187. He stated that their meetings after their

separation were about coming to terms for a potential dissolution. Tr. 187.

{¶60} Ninth, Melissa and Luke both retained counsel after their separation.

Tr. 106, 189. Tenth, both of them also testified that they did not take vacations or

attend social functions together as a couple after August 5, 2015. Tr. 106, 189.

Melissa testified that they had gone to dinner at restaurants together but only to

discuss the terms and conditions of their divorce. Tr. 104. She said that none of

these meetings at restaurants involved discussions about reconciliation. Tr. 104.

She further testified that they had attended some of the same sporting events

separately and did not sit together. Tr. 148.

{¶61} As to the equity of using a de facto termination date for the end of the

marriage, Luke argued that “[o]nce the marriage has been broken, the increased

value of assets that are not acquired through the joint efforts of the parties but by

the sole action of the respective party are non-marital.” Doc. 170. He further argued

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that “it would be inequitable to value and distribute assets when one party did

nothing to contribute to their production.” Doc. 166.

{¶62} In his decision, the magistrate listed the Dill factors and applied them

to the testimony from Luke and Melissa at the final hearing:

In applying these factors to this case, the Court notes that the parties separated on less than friendly terms. Shortly after the separation, there was an incident between the parties that resulted in each party being charged with criminal offenses. In addition, both children refused to visit with father. The Court finds that mother contributed to this alienation. Also, one of mother’s boyfriends confronted father with intent to initiate a fight.

Plaintiff [Melissa] testified that she considered the marriage over when Defendant left.

Both Parties dated other parties. Although neither party admitted cohabiting with another. Plaintiff admitted to hav[ing] multiple paramours since Defendant moved out.

Both parties denied being intimately involved with each other during the separation.

Both parties denied living as husband and wife during the separation.

Both parties admitted that since August 5, 2015, they maintained separate residences.

Both parties acknowledged that they utilized separate accounts and Plaintiff admitted and argued that the ‘joint account’ was, in fact, her non-marital account.

Neither party attempted a reconciliation after the August 15 [sic], 2015 date. They had gone to marriage counseling prior to that date.

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Both parties retained counsel and negotiated a separation agreement including an informal shared parenting plan.

Doc. 152. Thus, the magistrate considered the circumstances of this case under the

factors set forth in Dill. Doc. 152. Dill, supra, at ¶ 11. The trial court, in the divorce

decree, adopted the magistrate’s reasoning on this matter. Doc. 170. For these

reasons, Melissa’s third argument is without merit.

{¶63} As to her fourth argument, Melissa points to our prior decision in

Shoenfelt v. Schoenfelt and argues that the selection of a de facto termination date

is a two-step process. Appellant’s Brief, 15, citing Shoenfelt, supra, at ¶ 19. First,

the trial court must determine that using the date of the final hearing as the

termination date of the marriage would be inequitable. Shoenfelt at ¶ 19. Second,

if the use of the final hearing date would be inequitable, the trial court must then

determine a de facto termination date that would be equitable. Id. Melissa argues

that, in this case, the trial court engaged in the second step of this analysis but not

the first.

{¶64} In Shoenfelt, the trial court properly conducted the first step of this

analysis but failed to use the Dill factors in the second step of this analysis.

Shoenfelt at ¶ 20, 26. Instead, the trial court relied on considerations that had little

relevance to determining the date on which the marriage effectively terminated. Id.

at ¶ 20. The trial court picked a de facto termination date that reflected the time at

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which the marriage effectively ended, but a date that was “arbitrarily selected” by

one of the parties. Id. at ¶ 7, 22. The trial court also overlooked a number of facts

that suggested that the marriage, in fact, ended prior to the date that the trial court

designated as the de facto termination date. Id. at ¶ 22.

{¶65} By contrast, in the case presently before this Court, the trial court’s

entire analysis revolved around the Dill factors. We have already delineated the

findings that the trial court made pursuant to the Dill factors. In this case, the

inequity of using the date of the final hearing is apparent from the findings that were

made by the trial court in the process of applying the Dill factors. Doc. 152, 170.

The trial court then determined a de facto date of termination that reflected when

the marriage effectively ended. After reviewing the materials in the record, we do

not find any indication that the trial court, in either step of this analysis, replicated

any of the errors that were present in the Shoenfelt case. Thus, Melissa’s fourth

argument is also without merit.

{¶66} Having considered Melissa’s four arguments against the de facto

termination date, we conclude that she has not identified an error in the trial court’s

decision to use August 5, 2015 as the de facto termination date of the marriage.

Further, after reviewing the materials in the record, we do not find that the trial court

abused its discretion in making this determination. For these reasons, Melissa’s

third assignment of error is overruled.

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{¶67} Melissa argues that the trial court erred in determining not to award

her spousal support.

{¶68} R.C. 3105.18 governs the award of spousal support in divorce cases.

R.C. 3105.18. “‘[S]pousal support’ means any payment or payments to be made to

a spouse or former spouse, or to a third party for the benefit of a spouse or a former

spouse, that is both for sustenance and for support of the spouse or former spouse.”

R.C. 3105.18(A). “In divorce and legal separation proceedings, upon the request of

either party and after the court determines the division or disbursement of property

* * *, the court of common pleas may award reasonable spousal support to either

party.” R.C. 3105.18(B).

{¶69} An “award of spousal support is not based solely on the ‘need’ of the

party * * *.” Welch v. Welch, 3d Dist. Union No. 14-14-05, 2015-Ohio-1595, ¶ 18.

Rather, the trial court must determine what is appropriate and reasonable under the

following factors listed in R.C. 3105.18(C)(1):

(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;

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(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;

(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.

R.C. 3105.18(C)(1).

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‘Each of the factors under R.C. 3105.18(C)(1) relates, either directly or indirectly, to the obligee spouse’s need or the obligor spouse’s ability to pay support.’ Abbott v. Abbott, 6th Dist. Fulton No. F-06-020, 2007-Ohio-5308, ¶ 78. Accordingly, ‘a spousal support award must balance the obligee’s need for support against the obligor’s ability to pay.’ Tremaine v. Tremaine, 111 Ohio App.3d 703, 707[, 676 N.E.2d 1249] (2d Dist. 1996).

Roychoudhury v. Roychoudhury, 3d Dist. Union No. 14-14-19, 2015-Ohio-2213, ¶

19. “Trial courts have broad discretion concerning an award of spousal support, and

therefore, a trial court’s decision will not be reversed absent an abuse of discretion.”

Rodriguez v. Rodriguez, 3d Dist. Mercer No. 10-13-15, 2013-Ohio-5663, ¶ 12.

{¶70} Melissa argues that the trial court abused its discretion in determining

not to award her spousal support. In this case, the trial court adopted the

magistrate’s decision. The record indicates that the magistrate considered each of

the factors listed in R.C. 3105.18(C)(1). Doc. 152, 170. Regarding the income of

the parties, Luke was projected to earn a total of $132,459.00 in 2018. Tr. 13.

Melissa testified that she earned thirty dollars an hour at her current, part-time job.

Tr. 81. In October of 2018, Melissa reported that she had year-to-date earnings of

$8,218.75. Tr. 81.

{¶71} However, in his decision, the magistrate had previously determined

that this was the level of income that Melissa had earned while she was voluntarily

underemployed. Doc. 152. See R.C. 3105.18(C)(1)(a). The magistrate determined

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that Melissa did not have the same earning potential as Luke. Doc. 152. The record

indicates that Melissa did spend a portion of the marriage as a homemaker but that

she was still able to work part-time as a registered nurse. Tr. 77, 81. Ex. I. Doc.

152. See R.C. 3105.18(C)(1)(b).

{¶72} Based on the statements of the parties at the final hearing, the

magistrate concluded that both parties were mentally and physically able to work.

Doc. 152. Tr. 101, 182. See R.C. 3105.18(C)(1)(c). The record indicates that Luke

had two retirement plans that had a value of $695,000.00 in August of 2015. Doc.

152. Under the magistrate’s decision, Melissa was entitled to one half of the value

of these retirement plans. Doc. 152. She also had a premarital retirement account

that had a value of $12,700.00 but did not have a pension plan. Tr. 101, 144. Ex.

E. Doc. 152. See R.C. 3105.18(C)(1)(d).

{¶73} Further, using the de facto termination date for the marriage, Luke and

Melissa were married for fourteen years. Tr. 102, 148, 185. Doc. 152. See R.C.

3105.18(C)(1)(e). There was no evidence in the record that Melissa could not work

outside of the home because of the needs of the children. Both of the children were

enrolled in school. Tr. 167-168. Luke also testified that there were no daycare costs

at this point. Tr. 159. The magistrate noted that the parties were to share time with

the children equally. Doc. 152. See R.C. 3105.18(C)(1)(f).

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{¶74} The magistrate found that both parties had enjoyed a “very

comfortable” standard of living during the marriage. Doc. 152. The record

indicates that, in between February 2017 and the divorce hearing, Luke voluntarily

paid Melissa $1,000.00 a month. Tr. 51-52, 183. The magistrate found that Melissa

was able to enjoy “a stable financial condition” during the period between their

separation and the final hearing on this matter. Doc. 152. See R.C.

3105.18(C)(1)(g).

{¶75} As to education, Melissa had an associate’s degree, and Luke had a

high school diploma. Tr. 75. Doc. 152. See R.C. 3105.18(C)(1)(g). There is no

indication in the record that either party contributed to the education of the other

party to this action. Doc. 152. See R.C. 3105.18(C)(1)(j). Further, prior to the final

hearing, the parties had already agreed to a division of their various marital assets

and liabilities. Doc. 152. Ex. E. See R.C. 3105.18(C)(1)(i).

{¶76} The magistrate also noted that Melissa had not adjusted her work

practices in between the date of their separation and the time of the final hearing.

Doc. 152. Her income was roughly the same across the years from 2009 to 2018

even though she had filed for a divorce in 2016. Ex. I. Doc. 1, 152. The record

does not indicate that she sought employment opportunities that would offer her a

higher level of income, though the record did indicate that she had work experience

as a registered nurse. Tr. 75-76, 81. Doc. 152. Melissa did testify that having a

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Bachelor of Science in Nursing would have given her more opportunities. Tr. 80.

However, the magistrate noted that Melissa did not use the time in which Luke was

paying her $1,000.00 a month to obtain such a degree. Doc. 152. See R.C.

3105.18(C)(1)(k).

{¶77} The magistrate found that there were no tax consequences for either

party for an award of spousal support and found that there was no testimony that

Melissa lost any earning potential because of her marital responsibilities. Doc. 152.

See R.C. 3105.18(C)(1)(l-m). The magistrate also found Melissa’s decision to loan

her parents $425,000.00 in the year following her separation from Luke to be

“suspect.” Doc. 152. The magistrate found that the details about the repayment of

this loan to be “vague”; that there were no written documents that memorialized the

terms of this loan; and that Melissa’s ability to make loans that totaled $425,000.00

“mitigates against granting spousal support.” Doc. 152. See Tr. 99-100. See R.C.

{¶78} In its judgment entry, the trial court adopted the magistrate’s reasoning

on the issue of spousal support. Doc. 170. In overruling Melissa’s objection to the

magistrate’s decision on spousal support, the trial court found that her ability to earn

$30.00 an hour as a registered nurse and that her ability to transfer $425,000.00 to

her parents were indications that an award of spousal support was not appropriate

in this case. Doc. 170.

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{¶79} The divorce decree and the magistrate’s decision indicate that the trial

court considered the factors listed in R.C. 3105.18(C)(1). Doc. 152, 170. There

was evidence presented at the final hearing that supported the trial court’s findings.

Further, after reviewing the evidence in the record, we do not find that the trial court

abused its discretion in deciding not to award spousal support to Melissa. See

Sovern v. Sovern, 3d Dist. Union No. 14-16-09, 2016-Ohio-7542, ¶ 80-81. Thus,

Melissa’s fourth assignment of error is overruled.

Conclusion

{¶80} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Logan County Court of Common Pleas,

Family Court Division is affirmed.

SHAW, P.J. and ZIMMERMAN, J., concur.

/jlr

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