Sullinger v. Sullinger

2019 Ohio 1489

• Court: Ohio Court of Appeals
• Decided: April 19, 2019
• Docket: L-18-1079
• Status: Published

Opinion

[Cite as Sullinger v. Sullinger, 2019-Ohio-1489.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Douglas A. Sullinger Court of Appeals No. L-18-1079

Appellant Trial Court No. DR2015-0204

v.

Carol F. Sullinger

Appellee

and

Vendita Technology Group, Inc., etc. DECISION AND JUDGMENT

Defendant Decided: April 19, 2019

*****

Erik G. Chappell and Amy M. Waskowiak, for appellant.

Matthew T. Kemp and Rebecca E. Shope, for appellee.

MAYLE, P.J.

{¶ 1} Plaintiff-appellant, Douglas A. Sullinger, appeals the March 23, 2018

judgment of the Lucas County Court of Common Pleas, Domestic Relations Division,

dissolving his marriage to defendant-appellee, Carol F. Sullinger, dividing their property, determining spousal support, and awarding attorney fees. For the reasons that follow, we

affirm, in part, and reverse, in part.

I. Background

{¶ 2} Douglas Sullinger (“Douglas”) and Carol Sullinger (“Carol”) were married

on October 8, 1994, and had two children together, born in 1998 and 1999. On

March 13, 2015, Douglas filed a complaint for divorce. Carol answered and

counterclaimed.

A. The Vendita Enterprises

{¶ 3} Douglas and Carol acquired significant assets during their marriage,

primarily due to the success of their business, Vendita Technological Group, LLC

(“VTG, LLC”). VTG, LLC is a reseller of Oracle software products. Carol was the

company’s CEO and 51 percent owner; Douglas was its Executive Vice-President and 49

percent owner. Douglas was primarily responsible for the company’s day-to-day

operations. Carol’s majority ownership interest allowed VTG, LLC to maintain

minority-ownership status with the Women’s Business Enterprise National Council

(“WBENC”), potentially providing an advantage to the company when doing business

with clients that participate in supplier diversity initiatives.

{¶ 4} Douglas was also the president and sole shareholder of a related entity,

Vendita Technological Group, Inc. (“VTG, Inc.”).1 VTG, LLC was the profit-generating

1 Douglas was also the sole owner or shareholder of Vendita Management Corp., Vendita Asset Group, LLC, Vendita Services Corp., and Sullinger & Associates, LLC.

2. arm of the business and the entity through which distributions were made; VTG, Inc. paid

the business’s expenses. VTG, LLC reimbursed VTG, Inc. for these expenses by paying

it an annual management fee.

B. The Temporary Orders

{¶ 5} The domestic relations court maintains a standard preliminary injunction

applicable when a complaint is filed, prohibiting the parties from “selling, removing,

transferring, encumbering, pledging, damaging, hiding, concealing, assigning or

disposing of” any property owned by either spouse—including real estate, household

goods, vehicles, financial accounts, and personal property—without the prior written

consent of the spouse or the court. This standard order was journalized in this case on

March 16, 2015.

{¶ 6} On June 10, 2015, the trial court journalized a judgment entry prohibiting

the Vendita entities from “[s]elling, removing, transferring, liquidating, withholding,

disposing of, or in any manner secreting or dissipating the assets of Carol F. Sullinger or

further from diminishing, destroying, damaging or reducing the value of marital or

separate property of Defendant Carol F. Sullinger.” It entered a second judgment

restraining Huntington Bank from:

Selling, removing, transferring, withholding, disposing, or in any

manner secreting the assets of the parties * * *; in either diminishing,

destroying, damaging or reducing the value of marital or separate property

or assets of the parties * * *; and from in any way withdrawing, spending,

3. encumbering or disposing of any funds deposited in a bank account, money

market, savings account, credit union, stocks, bonds, safe deposit box, or

certificates of deposits. * * *

{¶ 7} On June 17, 2015, Douglas and Carol appeared before the court and read the

terms of a negotiated temporary consent order into the record, which was eventually

reduced to writing and journalized on August 18, 2015 (“the consent order”). It was

aimed at maintaining the status quo with respect to the businesses and the parties’ assets.

It delineated some of the parties’ financial obligations and provided for certain payments

and distributions.

{¶ 8} Under the order, Douglas would continue the day-to-day operations of

Vendita without interference from Carol. The consent order prohibited Douglas and

Carol from paying personal expenses, salaries or other compensation, or making

shareholder distributions to themselves from the company, except as provided in the

order. It also dictated that the Vendita entities “would operate as they have in the past

and incur ordinary and necessary business expenses.” The consent order explicitly stated

that with respect to the Vendita entities, “Douglas will not take any action inconsistent

with the continuation of the status quo.” And it specifically prohibited him from taking

any of the following actions without first obtaining Carol’s written consent2:

2 The order also prohibited Carol from doing any of these things, however, we focus this discussion on Douglas’s obligations under the consent order because his compliance—or lack thereof—became a critical issue in the case.

4. (1) increasing or decreasing the salary of any employee or agent

other than in the ordinary course of business;

(2) materially altering, amending, or modifying any compensation or

benefit plan;

(3) selling, offering for sale, leasing, or otherwise transferring

ownership of the company’s assets;

(4) purchasing assets outside the ordinary course of business;

(5) relocating any asset of the company;

(6) amending, or modifying any contract, commitment, for

agreement of the company;

(7) subjecting any assets of the company to any liens, claims,

security interests, or encumbrances;

(8) mortgaging, pledging, or otherwise encumbering the assets of the

company;

(9) entering into any leases, licenses, assignments, or similar rights

or obligations with respect to any property of the company;

(10) authorizing or permitting the company to borrow any money;

(11) changing any of the company’s accounting policies or

procedures;

(12) guarantying the indebtedness of another person;

(13) loaning any money to any other person;

5. (14) making any distributions or paying any dividends except as

provided in the order;

(15) entering into any transaction with any affiliate of either party;

(16) selling, assigning, gifting, or otherwise transferring any

ownership interest in the company;

(17) taking any action to offer the company or any portion of it for

sale; or

(18) taking any action that would impair or make it impossible for

the company to continue to conduct its business.

{¶ 9} Under the consent order, VTG, Inc. was to pay Douglas a salary of $120,000

per year and VTG, LLC was to pay him a distribution of $200,000 per year, less the sum

of his net salary from VTG, Inc., plus any 401(k) contribution made from his gross

salary. VTG, LLC was to pay Carol a distribution of $200,000 per year (in monthly

installments), less her net salary from her current employer, the University of Toledo,

plus any 401(k) contribution made from her University of Toledo gross salary.

{¶ 10} Carol was obligated to pay the expenses of the parties’ children and the

expenses relating to her Sylvania, Ohio home. She was awarded, and was required to pay

expenses associated with, the parties’ 2011 Cadillac Escalade, 2006 Lexus, and Dodge

Charger.

{¶ 11} Douglas was required to pay the expenses relating to his home in Holland,

Ohio, and the parties’ vacation homes in Angola, Indiana, and Harrison, Michigan. He

6. was awarded, and required to pay expenses associated with, a 1970 SS Chevelle, a 2015

Malibu speedboat, a Bennington pontoon boat, and three jet skis.

{¶ 12} Carol was entitled to receive a 2013 federal income tax refund of $237,289,

but the order provided that half of the refund would be distributed to Douglas. An

additional $135,000 was ordered to be distributed to Carol from a Huntington National

Bank money market account, $80,000 of which represented an approximation of

Douglas’s receipt of the 2013 federal income tax refund, and the remainder of which

represented the distribution of marital assets in recognition of Douglas’s purchase of a

boat.

{¶ 13} The order provided that Vendita Asset Group, LLC would make an

additional distribution of $95,000 to Carol from a First Merit account: $25,000 of that

was earmarked for their children’s education-related expenses for school year 2015 to

2016; $30,000 was for completion of work being performed at the Sylvania, Ohio home;

$25,000 was for attorney’s fees; and $15,000 was for business valuation and forensic

accounting expert fees.

{¶ 14} Both Douglas and Carol were to receive an amount equal to 45 percent of

their pro rata share of the allocable taxable income reportable by each of them to be paid

by VTG, LLC. This was to allow them to make appropriate quarterly estimated tax

payments. The order also provided that VTG, LLC would annually make a true-up

distribution to either Carol or Douglas in such amount as was necessary to cause the

parties to have received equal distributions.

7. {¶ 15} Carol was required under the order to continue medical, dental, and vision

insurance for Douglas and their children through her employer. Douglas was ordered to

take all action necessary to negotiate and complete the pending sale of their Harrison

Lake property, with one-half of the net proceeds to be paid to each party.

C. The Judgment Entry of Divorce

{¶ 16} The temporary orders remained in effect until March 13, 2018, when, after

a five-day trial, the Lucas County Court of Common Pleas, Domestic Relations Division,

entered a judgment entry of divorce. The court amended its judgment entry on March 23,

2018.3

{¶ 17} The March 23, 2018 judgment ordered Douglas to pay spousal support to

Carol of $14,000 per month (plus processing charges) and obligated him to pay $87,500

toward Carol’s attorney fees. The trial court awarded Douglas all interest in the Vendita

enterprises. Carol was granted a distributive award of $699,728, representing half of the

value of the company.

{¶ 18} Carol was awarded the Sylvania, Ohio home and its contents, the Cadillac

and Lexus automobiles, the parties’ Highland Meadows Country Club membership, her

checking account maintained at Waterford Bank, a joint account maintained with the

parties’ son at Metamora Bank, a check from State Farm insurance, her Voya 401(k), all

3 Unless stated otherwise, references in this decision to the “judgment” or “judgment entry” are to the March 23, 2018 judgment entry.

8. but $16,654 of the funds maintained in her American Fund 401(k), and $177,935 and

$924 from a Huntington money market account in her name.

{¶ 19} Douglas was awarded the Holland, Ohio home that he purchased after

leaving the marital residence, its contents, two jet skis, a Mercedes vehicle, a Ford pickup

truck, his checking account, memberships at Sylvania and Stone Oak Country Clubs, his

American Fund 401(k), $16,654 from Carol’s American Fund 401(k), his interest in

acreage located in Hardin County, a 2015 Malibu boat, and the refund from the parties’

2016 marital tax return.

{¶ 20} The court ordered Douglas to sell the parties’ pontoon boat, one of three jet

skis, a Chevelle automobile, and a golf cart, with the proceeds to be divided equally.

Credit card points of 449,150 were divided equally. The proceeds of a restitution claim

against the contractor who built their Sylvania, Ohio home were to be divided equally.

{¶ 21} Finally, and of great significance to the present appeal, the trial court found

that Douglas was not a credible witness and that he engaged in financial misconduct. It

awarded Carol an additional $500,000 for this misconduct.

{¶ 22} To satisfy the amounts owed to Carol, the judgment entry provided that

Carol would receive $824,906 from the parties’ joint Huntington money market account,

which represented her half of the proceeds of the sale of the parties’ vacation home in

Indiana, and $412,453 as partial payment of the $500,000 financial-misconduct award.

Amounts maintained in a Huntington money market account in Douglas’s name were to

be divided equally, except that an additional $787,274 from Douglas’s share was ordered

9. to be paid to Carol—$699,728 of that amount representing Carol’s half of the value of the

company, and $87,546 representing the remainder of the $500,000 awarded to Carol for

Douglas’s financial misconduct. Any remaining balances in the parties’ three Huntington

money market accounts were to be divided equally. Each party was ordered responsible

for his or her respective debts.

{¶ 23} Douglas challenges the trial court’s judgment and assigns the following

errors for our review:

No. 1: The Trial Court’s decision to find financial misconduct on

the part of Husband was against the manifest weight of the evidence.

1. The Trial Court did not establish, according to the proper

standard, that the Husband either profited from the purchase of the

Mercedes, the revenue recognition change, the distributions, or the move to

Tampa or that he intentionally defeated his Wife’s distribution of assets.

2. The Trial Court did not establish, according to the proper

standard, that the revenue recognition change that took place prior to the

divorce constitutes financial misconduct as a matter of law.

3. The Trial Court failed to consider all of the testimony regarding

the litigation expenses when finding that none of the litigation expenses

were for the benefit of the business.

10. 4. The Trial Court failed to consider that each party received

$200,000 per year in marital money, and thus the use of that money could

not constitute financial misconduct.

No. 2: The Trial Court’s decision to award either $375,000 or

$500,000 as a distributive award was an abuse of discretion.

No. 3: The sum awarded by the Trial Court’s [sic] for financial

misconduct was an abuse of discretion since the amount of the award is

required, as a matter of law, to bear some relationship to the facts of the

case, the conduct involved or the amount of the items involved.

No. 4: The Trial Court’s decision to fail to find financial misconduct

on the part of the Wife was against the manifest weight of the evidence.

1. The Trial Court improperly ignored the fact that Wife removed

Husband from health insurance and did not compensate him for the cost

completely.

2. The Trial Court improperly ignored the fact that Wife removed

money from the children’s accounts and used the money for payment of

items that she was required to pay under the Consent Order.

No. 5: The Trial Court abused its discretion by failing to distribute

the marital money contained in the University of Toledo Federal Credit

Union account.

11. No. 6: The Trial Court abused its discretion when it awarded Wife

monthly spousal support of $14, 000.

1. The Trial Court improperly “double dipped” when it counted

twice a future income stream by counting once in valuing the marital asset

and once in deciding the Plaintiff’s ability to pay spousal support.

2. The Trial Court failed to consider all income of the parties

including income from the assets of each party.

3. The Trial Court failed to consider all of the liabilities of the

parties including tax obligations.

4. The Trial Court improperly considered the expenses of the adult

children when deciding an appropriate amount of support.

5. The Trial Court erred when it failed to terminate the spousal

support upon the death of the Plaintiff.

No. 7: The Trial Court abused its discretion when it awarded Wife

$87,500 in attorney fees.

II. Law and Argument

{¶ 24} Douglas challenges the trial court’s finding of financial misconduct and the

amount awarded to Carol in connection with this finding; the failure of the court to find

that Carol engaged in financial misconduct; the failure of the court to divide amounts

maintained by Carol in a credit union account; the amount of the spousal-support award;

and the award to Carol of attorney’s fees. We address Douglas’s challenges in turn.

12. A. Financial Misconduct

{¶ 25} The trial court found that Douglas engaged in financial misconduct and it

awarded Carol $500,000 for this misconduct. In his first assignment of error, Douglas

claims that the trial court’s finding of financial misconduct was against the manifest

weight of the evidence. He argues primarily that there was no evidence that he profited

from his actions or that he intentionally defeated Carol’s distribution of assets.

{¶ 26} Before addressing Douglas’s challenges to the financial-misconduct

finding, we (1) acknowledge—and summarize—detailed credibility determinations made

by the trial court that were adverse to Douglas; and (2) explain the bases for the trial

court’s financial-misconduct findings.

1. The trial court found Carol more credible than Douglas.

{¶ 27} The trial court made detailed credibility determinations before explaining

its rationale for its financial-misconduct findings. It specifically found that “[t]he issue of

credibility weighs in favor of Wife.” The court based its determination on Douglas’s

gestures and voice inflection, his “selective memory” in being able to recall facts that

were helpful to his case, but not those that were not helpful, and his conduct before and

after the consent order was entered. It identified four specific instances of conduct

demonstrating Douglas’s lack of credibility, however, it emphasized that these were

merely examples and not an exhaustive list of the conduct underlying its credibility

finding.

13. {¶ 28} First, Douglas was present when the parties read into the record the terms

of the consent order in June of 2015; nevertheless, Douglas refused to sign the entry

memorializing those terms, insisting that he had been coerced into the agreement.

{¶ 29} Second, the consent order provided that distributions to the parties would

be made through VTG, LLC. But before entering into the consent order, Douglas had

already planned to implement an accounting change pursuant to which income once paid

to VTG, LLC would instead be paid to Douglas’s company, VTG, Inc. This left VTG,

LLC in the position of having to borrow money from VTG, Inc. to pay distributions,

creating debt for VTG, LLC. The trial court described this as “self-dealing” impacting

Douglas’s credibility.

{¶ 30} Third, Douglas failed to keep the court informed of issues directly bearing

on the court’s efforts to protect the major marital asset, the Vendita entities. One such

issue related to Carol’s refusal to cooperate in seeking to renew the company’s WBENC

certification. Because of the potential economic repercussions of losing its WBENC

certification, the trial court entered an order allowing Douglas “to take such means as are

necessary, reasonable and proper to obtain WBENC certification for 2016 without

[Carol’s] participation.” This resulted in Douglas acquiring a business called Derby, Inc.

and led to his creation of a new Vendita entity, Vendita, LLC—both companies were 51

percent women-owned, with Douglas owning the remaining 49 percent. Douglas

neglected to tell the trial court that he had failed in further attempts to secure WBENC

and other minority-owned business certifications. The court expressed that it should have

14. been advised of this given the direct bearing on its efforts to protect the parties’ main

marital asset.

{¶ 31} Finally, the trial court was skeptical of Douglas’s credibility due to his

“questionable practice” of running personal expenses through the businesses.

2. The court identified three categories of financial misconduct by Douglas.

{¶ 32} As it did with its credibility findings, the trial court described in detail its

rationale for finding that Douglas had committed financial misconduct. It organized

Douglas’s misconduct into three categories: (1) violation of court orders, (2) “VTG,

Inc.,” and (3) dissipation of marital assets.

a. Violation of Court Orders

{¶ 33} The trial court found that Douglas violated two court orders: (1) the court’s

standard injunction, which would have been in place beginning March 13, 2015, when

Douglas first filed for divorce, and (2) the consent order.

{¶ 34} The trial court found that Douglas incurred additional debt and disposed of

a marital asset in violation of the standard injunction when he purchased a new Ford F-

150 truck, financed by a $60,195 loan, and when he traded in a 2014 Audi S8, receiving a

$60,000 credit towards the purchase of a 2017 Mercedes Benz SUV, financed by a

$123,590.12 loan that is being paid by VTG, Inc., the titleholder.

{¶ 35} The court determined that without Carol’s knowledge, Douglas directed a

change in revenue such that VTG, Inc. would receive revenue instead of VTG, LLC. It

found that Douglas entered into the consent order agreeing not to change the businesses’

15. accounting policies or procedures and knowing that distributions to Carol were to be

made by VTG, LLC. The court found that Douglas made this change to defeat Carol’s

interest in marital assets.

{¶ 36} The court determined that Douglas took excessive distributions in 2015 and

2016, totaling approximately $798,062, which he owes to VTG, LLC; that he executed

promissory notes obligating VTG, LLC to pay VTG, Inc. for amounts loaned to make

court-ordered distributions of $741,523 in 2017; and that under this scheme, his $798,062

obligation to VTG, LLC was reduced by $363,346 (his proportionate interest in VTG,

LLC for payment to VTG, Inc.). The court found that Douglas acted in bad faith and

took these actions to advance his personal financial interests by intentionally defeating

Carol’s interests.

{¶ 37} Finally, the court found that Douglas violated the consent entry by

(1) increasing his 2017 salary from $120,000 to $200,000, (2) taking a $200,000 salary

from Vendita, LLC in 2016 in addition to his salary from VTG, Inc.; and (3) establishing

a corporate office and an apartment in Tampa, Florida in March 2017, with the intent to

relocate the business.

b. VTG, Inc.

{¶ 38} The court termed the second category of misconduct “VTG, Inc.” It found

that Douglas paid personal expenses totaling $55,559 for divorce-related fees and

expenses through VTG, Inc., thereby reducing the net income of the business. It also

16. found that Douglas took attorney fees of over $80,000 to pay for litigation against family

members in Hardin County.

c. Dissipation of Marital Assets

{¶ 39} The final category of misconduct identified by the court was Douglas’s

dissipation of marital assets. It found that Carol made a prima facie case of dissipation of

marital assets insofar as Douglas spent marital funds in furtherance of an extramarital

affair. Specifically, the court found that Douglas paid for trips for his girlfriend, allowed

her to use VTG, LLC’s debit card, wrote checks payable to her, and paid legal fees for

her. It also found that Douglas committed financial misconduct by failing to pay

property taxes on one of the parties’ lake houses.

3. Douglas challenges the trial court’s financial-misconduct finding.

{¶ 40} Douglas argues that the trial court’s financial-misconduct finding is against

the manifest weight of the evidence. He insists that the trial court made “broad

generalizations about [Douglas’s] conduct but did not support its findings,” and he denies

that he profited from his conduct or intentionally defeated Carol’s distribution of the

assets.

{¶ 41} Under R.C. 3105.171(E)(4), “[i]f a spouse has engaged in financial

misconduct, including, but not limited to, the dissipation, destruction, concealment,

nondisclosure, or fraudulent disposition of assets, the court may compensate the offended

spouse with a distributive award or with a greater award of marital property.” Id. The

complaining party has the burden of proving financial misconduct. Newcomer v.

17. Newcomer, 6th Dist. Lucas No. L-11-1183, 2013-Ohio-5627, ¶ 81. “The trial court has

discretion in determining whether a spouse committed financial misconduct, subject to a

review of whether the determination is against the manifest weight of the evidence.”

Boggs v. Boggs, 5th Dist. Delaware No. 07 CAF 02 0014, 2008-Ohio-1411, ¶ 73. We

will not reverse a judgment as against the manifest weight of the evidence if it is

supported by some competent, credible evidence. Blake Homes, Ltd. v. FirstEnergy

Corp., 173 Ohio App.3d 230, 2007-Ohio-4606, 877 N.E.2d 1041, ¶ 62 (6th Dist.).

{¶ 42} Once financial misconduct is established, the trial court has discretion

whether to make a compensating distributive award in favor of the offended spouse.

Boggs at ¶ 73. We review the trial court’s decision for an abuse of that discretion. Id.

{¶ 43} A finding of financial misconduct requires knowing wrongdoing, which

may be inferred from the offending spouse’s conduct. See Best v. Best, 10th Dist.

Franklin No. 11AP-239, 2011-Ohio-6668, ¶ 21. Under R.C. 3105.171(E)(4), the

misconduct usually must occur during the pendency of the divorce or immediately prior

to filing for divorce. Orwick v. Orwick, 7th Dist. Jefferson No. 04 JE 14, 2005-Ohio-

5055, ¶ 28, citing Rinehart v. Rinehart, 4th Dist. No. 96 CA 10, 1998 Ohio App. LEXIS

2283 (May 18, 1998).

{¶ 44} Financial misconduct will typically involve profit to the offending spouse

or intentional defeat of the other spouse’s distribution of marital assets. Mikhail v.

Mikhail, 6th Dist. Lucas No. L-03-1195, 2005-Ohio-322, ¶ 28. But “there are many

forms of financial misconduct, and whether or not a party committed such misconduct is

18. largely dependent on the specific facts of the case.” Orwick at ¶ 30. As the trier of fact,

the domestic relations court “is in the best position to evaluate evidence and assess the

credibility of witnesses.” Harris v. Harris, 6th Dist. Lucas No. L-02-1369, 2004-Ohio-

683, ¶ 20. The court, therefore, is charged with determining “the credibility of each

party’s assertions in determining financial misconduct.” Tate v. Tate, 5th Dist. Holmes

No. 17CA004, 2018-Ohio-1244, ¶ 102. We generally defer to the trial court’s credibility

determinations. Krohn v. Krohn, 6th Dist. Wood No. WD-16-010, 2016-Ohio-8379,

¶ 25.

{¶ 45} We address Douglas’s challenges to the trial court’s financial-misconduct

findings against the backdrop of the trial court’s credibility determination adverse to

Douglas and with the foregoing principles in mind.

a. The purchase of vehicles.

{¶ 46} The court found that Douglas committed financial misconduct when he

purchased a new Ford F-150 truck, financed by a $60,195 loan, and when he traded in a

2014 Audi S8, receiving a $60,000 credit towards the purchase of a 2017 Mercedes Benz

SUV, financed by a $123,590.12 loan that is being paid by VTG, Inc. Douglas does not

dispute that his conduct violated the court’s orders; rather, he argues that he could not

have been enriched by these purchases, and Carol did not establish harm, because he has

no positive equity in the vehicles and actually lowered his monthly payments.

19. {¶ 47} Carol maintains that with respect to the Ford F-150, Douglas was enjoined

from incurring additional personal debt. With respect to the Mercedes, she emphasizes

that Douglas traded in a valuable marital asset—the Audi—and used another marital

asset—the business—to pay for that luxury vehicle. She insists that both the purchases

and the trade-in violated the standard injunction and the consent order.

{¶ 48} We agree with Carol. Douglas depleted marital assets by disposing of

marital property and incurring additional debt both personally and to the company, all of

which constitute violations of the court’s orders. We are not persuaded by Douglas’s “no

positive equity” argument; while it may be true that Douglas currently has no positive

equity in the vehicles, this will change as he (and Vendita) continue to pay down the auto

loans. And in any event, Douglas was enriched by his use of these high-end vehicles.

We find that there was competent, credible evidence to support the trial court’s finding of

financial misconduct with respect to Douglas’s purchase of the truck and the Mercedes

SUV and his trade-in of the Audi.

b. Revenue recognition

{¶ 49} The court found that Douglas committed financial misconduct when he

implemented a revenue-recognition change pursuant to which income would flow to

VTG, Inc. instead of VTG, LLC—the entity from which distributions were to be made to

Carol under the consent order. Douglas maintains that the decision to implement this

revenue-recognition change was made in the fall of 2014—before he filed for divorce and

before the consent order was entered—thus the change cannot constitute a violation of

20. any order and cannot form the basis for a financial-misconduct finding. He insists that

Carol should have reviewed the businesses’ documents before negotiating these terms.

He claims that he made repeated efforts to rectify the impact on Carol. And he argues

that because the businesses were valued together as of December 31, 2015, there was no

harm to Carol.

{¶ 50} First, despite Douglas’s insistence that the change to revenue recognition

had been planned before the divorce proceedings began, Carol testified that she was

unaware of the change until late October of 2015. Douglas conceded at trial that the

change was not fully implemented until 2015, and he offered no evidence—except for his

own testimony—showing that this decision was made in 2014. The trial court explained

in great detail at the outset of its judgment that it found Douglas not to be a credible

witness. So while Douglas may claim that the revenue recognition change was

determined in fall of 2014, the court was not bound to believe him.4

{¶ 51} Second, Douglas is not immune from a financial-misconduct finding based

simply on the fact that some conduct took place before the complaint for divorce was

filed. Ohio courts—including this court—recognize that conduct occurring before a party

files for divorce can form the basis for a finding of financial-misconduct. Mikhail, 6th

4 The companies’ accountant confirmed at trial that he was first directed to make this change in procedure via an email dated February 18, 2015 (12 days after Douglas left the marital residence), and that this was a significant adjustment to the allocation of income and expenses between VTG, LLC and VTG, Inc.

21. Dist. Lucas No. L-03-1195, 2005-Ohio-322, at ¶ 29. In Newman v. Newman, 6th Dist.

Lucas No. L-93-354, 1995 Ohio App. LEXIS 1188, *11 (Mar. 31, 1995), for instance, we

affirmed the trial court’s financial-misconduct finding where the husband wasted more

than $80,000 in the two years before the complaint for divorce was filed, jeopardizing the

couple’s financial position. Similarly, in Havrilla v. Havrilla, 9th Dist. Summit No.

27064, 2014-Ohio-2747, ¶ 51, the appellate court found that the trial court abused its

discretion in failing to find financial misconduct where the husband lost almost $7,000

gambling and set aside $13,000 for anticipated attorney fees approximately two weeks

before filing for divorce. Thus, we reject Douglas’s position that his pre-divorce conduct

cannot form the basis for a financial-misconduct finding.

{¶ 52} Finally, Carol was the 51 percent owner of VTG, LLC, and the court’s

order required that distributions be paid to her from VTG, LLC—the entity that

traditionally made distributions. Because of Douglas’s decision to alter the revenue

recognition procedures, VTG, LLC lacked the funds to pay these distributions, requiring

it to borrow money from Douglas’s wholly-owned company, VTG, Inc. Regardless of

whether Douglas “profited” (and to be clear, it does appear that Douglas profited), he

violated the court’s order when he implemented the revenue-recognition change. Courts

have made distributive awards for a spouse’s financial misconduct even in the absence of

a calculable “profit” to the offending spouse or “detriment” to the offended spouse. See,

e,g, Guagenti v. Guagenti, 2017-Ohio-2706, 90 N.E.3d 297, ¶ 86-87 (3d Dist.)

(penalizing husband for financial misconduct where husband repeatedly failed to make

22. accurate, timely, and complete discovery disclosures and belatedly revealed existence of

$1 million trust account, even though trust was ultimately found to be husband’s separate

property). Galloway v. Khan, 10th Dist. Franklin No. 06AP-140, 2006-Ohio-6637, ¶ 27

(recognizing that courts have affirmed findings of financial misconduct in cases where a

party has violated a court’s restraining orders). There was competent, credible evidence

to support the trial court’s financial-misconduct finding with respect to the change in

revenue recognition.

c. Excess distributions

{¶ 53} The court found that Douglas committed financial misconduct when he

took excessive distributions totaling approximately $798,062 and executed promissory

notes obligating VTG, LLC to pay VTG, Inc. for amounts loaned to make court-ordered

distributions of $741,523 in 2017. It found that under Douglas’s scheme, his $798,062

obligation to VTG, LLC was actually reduced by $363,346 (his proportionate interest in

VTG, LLC for payment to VTG, Inc.).

{¶ 54} Douglas argues, again, that the revenue-recognition change took place

before the divorce and that the businesses were valued collectively as of December 31,

2015, making actions after that date “irrelevant.” He denies that he received “excess”

distributions in 2015 or 2016. And he contends that Carol should have agreed to permit

distributions from another source, such as their money market account, and that Carol

was not damaged by the intercompany loans that led to the excess distributions.

23. {¶ 55} Carol responds that Douglas’s focus on the date the business was valued is

misplaced because (1) Douglas took $446,066 in excessive distributions in 2015—before

the business valuation date; and (2) the consent order required Douglas to maintain the

status quo, which he violated by taking on debt and making distributions beyond those

authorized by the consent order. She emphasizes that the companies’ accountant

confirmed that these excess distributions were made, and she maintains that under the

consent order, she should have received 51 percent of any income distributed by the

business, but instead received nothing. Finally, Carol insists that the parties were bound

by the terms of the consent order, so we should reject any attempt by Douglas to deflect

blame to Carol for refusing to agree to a solution contrary to what was approved by the

consent order.

{¶ 56} Douglas’s claim that he did not receive excess distributions is at odds with

the testimony of the companies’ accountant who confirmed that Douglas received excess

distributions of $446,066.44 in 2015, and $351,996.21 in 2016. We reject Douglas’s

contention that his conduct should be excused due to Carol’s refusal to agree to an

arrangement outside what was established under the terms of the consent order. And

regardless of the date of the business valuation, to the extent that Douglas’s distributions

exceeded what was permitted under the consent order, we cannot say that he did not

profit or that Carol was not harmed. We find that the trial court’s findings are supported

by competent, credible evidence.

24. d. Increase in salary

{¶ 57} The trial court found that Douglas engaged in financial misconduct when

he increased his 2017 salary from $120,000 to $200,000 and took a $200,000 salary from

Vendita, LLC in 2016, both in violation of the consent order. Douglas insists that he took

no distributions and argues that he was entitled to receive $200,000 regardless of the

source of that money. He claims, therefore, that he did not profit from this increased

salary or cause detriment to Carol.

{¶ 58} Carol responds that Douglas’s conduct was in direct violation of the

consent order, he did take distributions—excess distributions, in fact—and he took an

extra $200,000 salary from a newly-formed entity—Vendita, LLC.5

{¶ 59} The consent order was clear on this point—the parties’ salaries were set at

$120,000 per year, with total income capped at $200,000. Douglas’s W-2s demonstrate

that he violated this order. Douglas was not free to choose which of the court’s orders he

would abide by and which he would not. It is disingenuous for him to argue that he did

not profit from his increased salary, particularly given the additional compensation he

received from Vendita, LLC. There was competent, credible evidence to support the trial

5 Joint exhibit No. 72, Douglas’s W-2 from Vendita, LLC, reflects that in 2016, he received a salary of $170,000—not $200,000—and joint exhibit No. 71 reflects that he received a salary that year from VTG, Inc. of $113,832.50. The discrepancy between the numbers cited by the trial court and the numbers contained in the W-2s does not alter our analysis of this issue.

25. court’s financial-misconduct finding with respect to Douglas’s decision to increase his

salary beyond that allowed under the consent order.

e. Move to Tampa

{¶ 60} The trial court found that Douglas engaged in financial misconduct when

he established a corporate office and rented an apartment in Tampa, Florida in March

2017, with the intent to relocate the business. Douglas claims that the court could not

attach any financial impact caused by the move because the company was valued as of

December 31, 2015, and the move did not take place until 2017; the move was reasonable

and necessitated by the industry; and Douglas was justified in taking all actions required

to ensure that the business remained on secure financial footing.

{¶ 61} Carol responds that she maintained an interest in the company throughout

the pendency of the litigation, but after Douglas turned VTG, LLC into a mere “shell”

and moved operations to Florida, this was no longer a viable option. She maintains that

Douglas’s actions were intended to defeat the distribution of the marital assets to her.

{¶ 62} The consent order was clear: Douglas was to maintain the status quo with

respect to the company’s operations and he was not to relocate any asset of the company.

Again, Douglas was not free to choose which parts of the consent order he would abide

by. And the violation of a court order can form the basis for a financial misconduct

award. We find that the trial court’s finding is supported by competent, credible

evidence.

26. f. Payment of fees through Vendita

{¶ 63} The trial court found that Douglas engaged in financial misconduct when

he used VTG, Inc. funds to pay fees and expenses relating to the divorce totaling

$55,559, thereby reducing the net income of the business, and when he took attorney fees

of over $80,000 to pay for litigation against family members in Hardin County.

{¶ 64} With respect to use of corporate funds to pay divorce expenses, Douglas

argues that (1) “there is no indication that any of the attorney fees involved the divorce”;

(2) it was appropriate to use corporate funds to pay fees based on the fact that the

businesses were sued in the case and required representation; (3) his accountant testified

that “a business valuation ‘could be a business deduction since the business is the prime

entity and that could be affected by the divorce’”; and (4) Carol suffered no damage as a

result of the use of funds in 2016.

{¶ 65} First, contrary to Douglas’s position in his brief, he conceded at trial that

VTG, Inc. paid $39,740 to his divorce attorney for fees incurred in the divorce. Second,

Douglas’s divorce attorney did not represent the business, and it would have been a

conflict of interest to do so, so we reject Douglas’s contention that corporate funds were

appropriately used to pay his attorneys. Third, Douglas conceded that the company paid

$16,088 for the valuation in connection with his divorce; the business was appraised for

purposes of determining the value of marital property—not for any legitimate business

reason. Finally, regardless of when these payments were made, Douglas’s conduct

violated the consent order and he profited from this malfeasance.

27. {¶ 66} We, therefore, conclude that the trial court’s finding that Douglas

inappropriately used corporate funds to pay litigation fees and expenses relating to the

divorce is supported by competent, credible evidence.

{¶ 67} With respect to the Hardin County lawsuit, the court found that Douglas

“took attorney fees in excess of $80,000 relating to this lawsuit * * *.” A statement from

Douglas’s attorney, produced in response to a subpoena duces tecum, indicates that fees

in excess of $107,000 were paid in connection with that lawsuit—some were paid by

VTG, Inc. and some were paid by Douglas personally. Approximately $82,000 in fees

were paid before the divorce, including a payment of $53,081.08, which was made by

Douglas one month before he left the marital home. At trial, Douglas testified that he did

not know the source of the funds he used to make this payment.

{¶ 68} Douglas insists that Carol was aware of and supported the litigation against

his family. He emphasizes that most of the litigation took place before the divorce, and

he argues that no itemized statements were provided to demonstrate that the fees he paid

were expended in connection with that litigation.

{¶ 69} Carol, on the other hand, insists that she would not have been in favor of

engaging in litigation against family members, and she claims that she was unaware of

the fees Douglas had been paying.

{¶ 70} The court made clear that it believed Carol’s testimony over Douglas’s.

The $82,000 in fees were paid from marital assets—whether they came from the business

or from Douglas personally—in the 22 months before Douglas filed for divorce.

28. Courts—including this court—have found that funds dissipated so close to the end of a

marriage can constitute financial misconduct. Newman, 6th Dist. Lucas No. L-93-354,

1995 Ohio App. LEXIS 1188, at 11.

{¶ 71} We, therefore, conclude that there is competent, credible evidence to

support the trial court’s finding that Douglas engaged in financial misconduct by taking

over $80,000 for fees and expenses relating to the Hardin County litigation.

g. Dissipation of marital assets

{¶ 72} The trial court found that Douglas engaged in financial misconduct when

he dissipated marital assets in furtherance of an extramarital affair and failed to pay

property taxes on one of the parties’ lake houses. Douglas acknowledges that he spent

approximately $50,000 on his girlfriend, but he maintains that the consent order set his

income at $200,000, he was entitled to spend his personal money in any way he chose,

and some of the money was spent in 2016 and 2017, after the December 31, 2015

business valuation date. He argues that there was no trial testimony to support Carol’s

claim that he failed to pay taxes on the lake home.

{¶ 73} Carol responds that while Douglas claims to have spent his personal salary

on his girlfriend, the evidence shows that at least some of the payments to her came out

of business funds. She maintains that it is of no matter whether funds were used before

or after December 31, 2015, because the trial court permitted Douglas to maintain the

day-to-day business operations of the company with the understanding that he would

maintain the status quo. Instead, she argues, Douglas used the business to fund travel and

29. entertainment with his girlfriend. Carol also claims that she received no payments

required by the court’s order from mid-October 2015, to July 2016, January through

March 2017, and January through March 2018, allegedly because there were no funds

available, but at the same time, Douglas was spending money on his girlfriend. Finally,

she points out that the parties’ accounts were valued as of the trial date, thus contradicting

Douglas’s contention that his use of personal funds means that Carol was not negatively

impacted.

{¶ 74} As to amounts spent on Douglas’s girlfriend, we begin by recognizing that

the trial court found that the duration of the parties’ marriage was through the date of the

final hearing, thus Carol is correct that the court valued the parties’ accounts as of the

trial date. While the trial court did specify salaries and distributions that Douglas and

Carol were to be paid, this did not entitle Douglas to expend exorbitant amounts of

money on his girlfriend or allow her to use company credit cards. Hoffman v. Hoffman,

10th Dist. Franklin No. 94APF01-48, 1994 Ohio App. LEXIS 3536, *4 (Aug. 11, 1994)

(affirming finding of financial misconduct where husband invested more than $44,000 in

his paramour’s company); Winters v. Winters, 6th Dist. Ottawa No. OT-09-025, 2010-

Ohio-4269, ¶ 15 (affirming finding of financial misconduct where husband used marital

funds of $1,500 to purchase Christmas gift for his girlfriend); Hall v. Hall, 2d Dist.

Greene No. 2013 CA 15, 2013-Ohio-3758, ¶ 24 (affirming finding of financial

misconduct where husband provided housing for himself and his girlfriend, while

allowing the marital residence to go into foreclosure).

30. {¶ 75} We also observe that while Douglas claims that he was permitted to spend

his salary however he wanted to, he claimed in the trial court that Carol committed

financial misconduct by paying for a $3,000 vacation for her boyfriend in 2017, while at

the same time insisting that he may not be found to have committed financial misconduct

by spending in excess of $50,000 on his girlfriend. We find his position disingenuous,

and we conclude that the trial court’s finding that Douglas engaged in financial

misconduct when he spent over $50,000 on his girlfriend, thereby dissipating marital

assets, is supported by competent, credible evidence.

{¶ 76} As to the taxes, when the Indiana lake house sold in April of 2017,

information from the county treasurer shows that $3,029 remained outstanding for 2015

to 2016 taxes, and $6,202 for 2016 to 2017 taxes. Carol emphasizes that the consent

order required Douglas to pay these taxes, and his failure to do so decreased the amount

of the proceeds from the sale of the lake house.

{¶ 77} Douglas argues that trial exhibit No. 21 shows that Vendita Management

paid a tax bill of $2,745.35 for the second installment of 2016. But exhibit No. 21 is

simply a tax bill sent by the county treasurer—it does not demonstrate that Vendita

Management paid this tax bill. Moreover, exhibit No. 18—the seller’s statement, dated

April 12, 2017—shows that taxes of $3,029.79 remained owing for 2015 to 2016, and

$6,202.14 remained owing for 2016 to 2017.6 “The failure of a party to pay taxes or file

6 Douglas argues in his reply brief that “[i]t is commonplace for taxes to be prorated to the date of closing and that is not prima facie evidence that the taxes were not paid as

31. a tax return is financial misconduct for purposes of R.C. 3105.171(E).” Oliver v. Oliver,

5th Dist. Tuscarawas No. 2012 AP 11 0067, 2013-Ohio-4389, ¶ 39, citing Robbins v.

Robbins, 2d Dist. Clark No. 06CA0136, 2008-Ohio-495.

{¶ 78} We conclude that the trial court’s finding with respect to the failure to pay

property taxes on the lake house in violation of the consent order is supported by

competent, credible evidence.

{¶ 79} In sum, we conclude that the trial court’s financial-misconduct findings

were supported by competent, credible evidence. We find Douglas’s first assignment of

error not well-taken.

B. The Amount of the Award for Douglas’s Financial Misconduct

{¶ 80} In his second and third assignments of error, Douglas contends that the trial

court exceeded its authority when it granted a distributive award to Carol in an amount

that bore “no relationship to the alleged misconduct or its financial impact.”

{¶ 81} Where, as here, the trial court finds financial misconduct on the part of one

spouse, it may in its discretion, award the offended spouse a greater share of marital

assets. See Garish v. Garish, 10th Dist. Franklin No. 97APF06-813, 1998 Ohio App.

LEXIS 931, *14-15 (Mar. 10, 1998). The amount to be awarded to an offended spouse is

not stipulated by statute, and lies within the trial court’s discretion. Eberly v. Eberly, 3d

they came due.” The seller’s statement shows that prorated taxes of $1,716.21 for January 1, 2017, to April 12, 2017, were debited to the seller. This is entirely separate from the past-due taxes.

32. Dist. No. 7-01-04, 2001 Ohio App. LEXIS 2606, *7 (June 13, 2001). The court may

fashion an award to compensate the injured spouse in any amount it deems necessary.

Fisher v. Fisher, 3d Dist. Putnam No. 12-96-13, 1997 Ohio App. LEXIS 3135, *27

(July 9, 1997). It need not apply a “rigid, mechanical approach” or undertake “a

calculated dollar-for-dollar division.” Hoffman, 10th Dist. Franklin No. 94APF01-48,

1994 Ohio App. LEXIS 3536, *8-11 (Aug. 11, 1994).

{¶ 82} Carol’s exhibit No. 6P summarizes the profit to Douglas and detriment to

Carol caused by Douglas’s financial misconduct. Subtracting out the amounts for

conduct that the trial court did not find to be wrongful, and using the numbers consistent

with those acknowledged by the court, Carol estimates that Douglas’s conduct resulted in

profit to Douglas or detriment to her totaling over $1 million. The trial court awarded her

only $500,000. We find no abuse of discretion in the trial court’s decision to award Carol

half the amount of the profit to Douglas or loss to Carol that resulted from Douglas’s

financial misconduct. Taub v. Taub, 10th Dist. Franklin No. 08AP-750, 2009-Ohio-2762,

¶ 35 (finding no error where trial court awarded half of sale proceeds to wife for

husband’s financial misconduct).

{¶ 83} We find Douglas’s second and third assignments of error not well-taken.

C. Failure to Find Financial Misconduct by Carol

{¶ 84} In his fourth assignment of error, Douglas contends that the trial court erred

when it failed to find that Carol engaged in financial misconduct. Specifically, he argues

that Carol (1) dropped Douglas from her health insurance in violation of the consent

33. order prohibiting her from doing so; and (2) opened new joint accounts with their

children during the pendency of the divorce, transferred money from existing joint

accounts into those new accounts, then used money from the new accounts to pay

expenses for the children that she herself was required to pay under the consent order.

{¶ 85} The trial court held that Carol did not personally profit from the alleged

misconduct, and did not intentionally dissipate, destroy, conceal, or fraudulently dispose

of marital assets. As already articulated, we review a trial court’s finding of financial

misconduct under an abuse-of-discretion standard.

{¶ 86} As to the issue of health insurance, Douglas is correct that the trial court’s

temporary orders required Carol to maintain health insurance for Douglas. But Carol

testified that her employer, The University of Toledo, began to enforce a policy

prohibiting its employees from maintaining health insurance for an otherwise eligible

spouse who was employed and had insurance available through his or her employer.

Douglas was employed by Vendita and Vendita offered health insurance to its

employees, so Carol could no longer maintain insurance for Douglas. Carol indicated

that she notified counsel of this change so that the information could be relayed to

Douglas.

{¶ 87} As to amounts removed from the children’s bank accounts, the trial court

specifically found that Carol reimbursed a portion of those funds in 2016, and that there

was no evidence that Carol dissipated marital assets or personally profited. Additionally,

we observe that for the most part, the exhibits identified by Douglas show small

34. purchases that appear typical for a teenager—Taco Bell, Tim Horton’s, Chipotle,

Starbucks, Chick-Fil-A—and this is consistent with the trial court’s finding that the

children sometimes withdrew funds to pay their own expenses.

{¶ 88} We will not reverse a judgment as against the manifest weight of the

evidence if it is supported by some competent, credible evidence. Blake Homes, Ltd.,

173 Ohio App.3d 230, 2007-Ohio-4606, 877 N.E.2d 1041, at ¶ 62. We find that with

respect to the trial court’s rejection of Douglas’s claim that Carol committed financial

misconduct, there was competent, credible evidence in support of the trial court’s

judgment.

{¶ 89} We find Douglas’s fourth assignment of error not well-taken.

D. Failure to Distribute Carol’s Credit Union Account

{¶ 90} In his fifth assignment of error, Douglas contends that the trial court abused

its discretion by failing to distribute $68,379.79 that Carol held in a credit union account,

instead finding that Carol needed these funds to support their children. He argues that

Carol had received $667,416.86 for 2015 and 2016, and did not need to dissipate the

funds in the credit union to pay their children’s expenses.

{¶ 91} The trial court found that Douglas failed to make the first distribution owed

to Carol under the consent order until October of 2015, and then failed to make additional

payments under the order until July 31, 2016. During this same period, the parties’

children were enrolled in Catholic high schools and Carol was responsible for their

expenses. The trial court accepted Carol’s testimony that the funds in her account were

35. used to support her and the children and to pay the children’s educational expenses.

Particularly given the trial court’s credibility determination in favor of Carol and against

Douglas, we find no abuse of discretion.

{¶ 92} We find Douglas’s fifth assignment of error not well-taken.

E. Spousal Support

{¶ 93} In his sixth assignment of error, Douglas contends that the trial court

abused its discretion when it awarded monthly spousal support to Carol of $14,000. He

raises numerous challenges to the spousal-support award. First, he argues that there was

no basis for the amount of income that the trial court attributed to him. Second, he claims

that the trial court improperly “double-dipped” because it considered the company’s

future income stream in valuing the business for purposes of dividing it as a marital asset,

then considered his half of the future income stream and his salary in setting spousal

support. Third, he contends that the trial court considered monthly expenses relating to

their adult children in arriving at the spousal-support award. Finally, he maintains that

the trial court’s order respecting spousal support must terminate upon his death because

the trial court’s judgment fails to expressly state otherwise.

{¶ 94} R.C. 3105.18(B) provides that “[i]n divorce and legal separation

proceedings, upon the request of either party and after the court determines the division

or disbursement of property under section 3105.171 of the Revised Code, the court of

common pleas may award reasonable spousal support to either party.” R.C.

3105.18(C)(1) sets forth the factors that must be considered “in determining whether

36. spousal support is appropriate and reasonable, and in determining the nature, amount, and

terms of payment, and duration of spousal support.” Those factors are:

(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;

37. (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.

{¶ 95} While the trial court is required to consider each of these statutory factors,

it need not comment on each of them; “rather, the record must only show that the court

considered the statutory factors when making its award.” Choi v. Choi, 2018-Ohio-725,

106 N.E.3d 908, ¶ 9 (9th Dist.). An award of spousal support is generally within the trial

court’s discretion and will not be disturbed absent an abuse of that discretion. Newcomer,

6th Dist. Lucas No. L-11-1183, 2013-Ohio-5627, at ¶ 22.

1. The court used Douglas’s tax returns to determine his income.

{¶ 96} The trial court began its analysis of Carol’s request for spousal support by

calculating Douglas’s annual income. It observed that as the sole shareholder of VTG,

Inc., Douglas’s annual income includes W-2 wages and distributions reported as K-1

income—Douglas controls both amounts. Douglas also receives interest income. Taking

38. into consideration these three sources as reported in Douglas’s tax returns, the trial court

calculated a three-year average of his income for the period 2014 through 2016; it

ignored Douglas’s 2012 and 2013 income, which was approximately $3 million and $1

million, respectively. It arrived at an average annual income of $970,000 per year by

combining Douglas’s average annual salary ($174,611), his average annual K-1 income

($763,333), and his average annual interest income ($6,806), then adding his $200,000

salary for 2017. The court noted that Douglas maintains a practice of running personal

expenses through the business, thereby deflating distributions and profit income, but it

did not purport to impute any additional income to Douglas for this perceived

malfeasance.

{¶ 97} Douglas raises several challenges to the trial court’s calculation of his

income.

{¶ 98} First, Douglas claims that there was “no specific basis shown” to

demonstrate that he received actual income from Vendita beyond his salary. The trial

court relied on Douglas’s K-1s and his tax returns in determining his income from

distributions. We find no error in this approach, and we reject this argument.

{¶ 99} Second, Douglas claims that “the Trial Court completely failed to

recognize the other assets to be transferred to [Carol].” It is clear from the trial court’s

detailed decision that it was well aware of the other assets that Carol would be receiving

pursuant to the property distribution. We reject this argument as well.

39. {¶ 100} Third, Douglas suggests that the trial court should have determined his

income to be $400,000, the amount that both parties’ experts testified would be

reasonable compensation for his position. In Rossi v. Rossi, 8th Dist. Cuyahoga Nos.

100133 and 100144, 2014-Ohio-1832, for purposes of calculating spousal support, the

trial court projected the husband’s future income by taking an average of his salary and

distributions for the previous five-year period. The husband argued that the trial court

should have used the “reasonable market-rate officer compensation” testified to by the

expert witnesses—an amount that was $240,000 less than the average calculated by the

court. The appellate court rejected this suggestion, observing that there was no evidence

that husband had ever received an annual salary in that amount. We reach the same

conclusion here.

{¶ 101} Finally, Douglas insists that even if “pass-through” income was properly

considered in calculating his average salary, the court still erred because his average

income for 2014-2016 would have been $835,201 per year—not $970,000 per year.

Douglas does not explain how he arrives at that figure. Having said this, it is not clear to

us why the trial court added Douglas’s $200,000 salary for 2017 to his three-year average

income instead of merely using this figure to calculate his average salary based on a four-

year average. Accordingly, we remand this issue to the trial court so that it can either

explain why it added Douglas’s 2017 salary or correct this aspect of its calculation and

any effect it may have had on its spousal-support award.

40. 2. The trial court did not impermissibly “double-dip.”

{¶ 102} Douglas next argues that the trial court impermissibly “double-dipped”

because it considered the company’s future income stream in valuing the company, then

“used [Douglas’s] half of the future income stream and his salary to set spousal support.”

In challenging the court’s methodology, Douglas relies on the Tenth District’s decision in

Heller v. Heller, 10th Dist. Franklin No. 10AP-312, 2010-Ohio-6124.

{¶ 103} In Heller, the husband owned a 39.5 percent interest in a subchapter S

corporation called H&S, from which he received bonuses or distributions and also drew a

salary. The court adopted a value for the husband’s interest in the business using an

“income approach” that relied primarily on the future profits of the business. Using that

number, it then awarded property of equal value to the wife in order to equalize the

property distribution. But the court also awarded spousal support to the wife in a set

amount plus an additional twenty percent of each bonus or shareholder distribution that

the husband received from the company. The Tenth District held that this was error

because the trial court “‘double dipped’ when it awarded [the wife] both one-half of the

H&S asset and then another 20 percent of [the husband’s] half in additional spousal

support.” Id. at ¶ 6.

{¶ 104} Douglas argues that the trial court here did the same thing when it

calculated Vendita’s value based on a future income stream methodology for purposes of

determining a distributive award to Carol to equalize the division of assets, but then used

41. his half of that future income stream in determining his ability to pay spousal support.

There are a number of problems with Douglas’s position.

{¶ 105} First, the Tenth District itself has observed that “almost immediately after

[it] decided Heller, [it] began to soften its holding.” Gallo v. Gallo, 10th Dist. Franklin

No. 14AP-179, 2015-Ohio-982, ¶ 32. It made clear that its holding in Heller was fact-

specific and that it had not promulgated a flat prohibition against double-dipping. Heller

at ¶ 8. And the court emphasized that there are circumstances that override any

unfairness that may arise from double-dipping and that the trial court ultimately has

discretion “regarding if and how to remedy the double dip” that “turn upon the facts and

circumstances of each particular case.” Gallo at ¶ 34.

{¶ 106} Second, the Tenth District has recognized that the wisdom—and

applicability—of its anti-double-dipping position in Heller has been questioned,

particularly in cases like this one where “a spouse is a sole owner of a business who has

complete control over the business’s retained earning[s] to support the parties’ lifestyle.”

Settele v. Settele, 2015-Ohio-3746, 42 N.E.3d 243, fn. 4 (10th Dist.), citing Bohme v.

Bohme, 2d Dist. Montgomery No. 26021, 2015-Ohio-339. In Bohme, for example, the

Second District expressly declined to follow Heller “because of the difficulty in the

double-dipping analysis when dealing with [a] solely-owned, closely-held business

evaluation as opposed to [a] defined-income-stream distribution.” Bohme at ¶ 33. It

concluded that to adopt an anti-double-dipping rule would lead to too much potential for

disproportion. Id. at ¶ 30.

42. {¶ 107} Finally, as Carol points out, we rejected a similar argument in Kellam v.

Bakewell, 6th Dist. Erie No. E-13-032, 2014-Ohio-4635. In Kellam, the marital asset at

issue was the husband’s law practice. The husband argued that the trial court abused its

discretion because contrary to Heller, it used the same income to both value his law firm

and determine his spousal-support obligation. We distinguished Heller on the basis that

in that case, “the same asset was both counted in the marital division and required to be

paid as part of the spousal support award.” (Emphasis added.) Id. at ¶ 24. In other

words, we found it significant that the spousal-support award was fixed at a percentage of

the distributions from the marital asset itself. In Kellam, however, “the value of the law

firm was determined in the marital division, but the spousal support award was based on

[husband’s] income in general.” Id. Here, as in Kellam, Carol’s spousal-support award

was based on Douglas’s income in general and not tied to the value of the business itself.

{¶ 108} Based on our analysis of the case law and the facts and circumstances of

this case, we find no error in the trial court’s decision to consider Vendita’s future income

stream to value the company for purposes of dividing the marital asset and Douglas’s

income earned from the business in calculating the spousal-support award. We reject

Douglas’s double-dipping argument.

3. The trial court’s award did not consider expenses of the adult children.

{¶ 109} Douglas claims that the trial court impermissibly considered the expenses

of the adult children when arriving at a spousal-support award. It does not appear to us

that this is true. The court observed that Carol claimed monthly living expenses of

43. $44,895—which included the children’s living and educational expenses, as well as

insurance coverage—and that she requested spousal support of $25,000. But the court

awarded her far less than either of these amounts. And, in fact, the court articulated its

rationale for the amount it awarded:

While the Court considered all statutory factors in determining a

reasonable and necessary spousal support amount and the duration thereof,

the Court was particularly influenced by the age and health of each party,

that Wife sacrificed her career in part by raising the parties’ children and

assisting Husband in advancing his career, that Husband’s ownership of the

income producing business generates income clearly exceeding Wife’s

earning capacity, and the duration of the marriage.

{¶ 110} We find no merit to Douglas’s claim that the trial court considered

the adult children’s expenses in determining the amount of spousal support.

4. The court ordered Douglas to maintain insurance in the amount of the award.

{¶ 111} The trial court judgment indicates that “spousal support shall continue

subject to earlier termination upon Wife’s death, remarriage or cohabitation with another

* * *.” Douglas argues that the trial court erred when it failed to make the award of

spousal support terminable upon his death. At the same time, Douglas also claims that

because the court did not expressly state otherwise, the spousal-support obligation ceases

upon his death.

44. {¶ 112} Carol agrees that the judgment entry makes no express provision for

continuing spousal support in the event of Douglas’s death, but she observes that the trial

court’s order requires Douglas to maintain a ReliaStar insurance policy, designating

Carol as the beneficiary, in an amount equal to the outstanding spousal support. It points

out that Douglas assigned no error in the trial court’s judgment requiring him to maintain

this policy.

{¶ 113} R.C. 3105.18(B) provides that an award of spousal support “shall

terminate upon the death of either party, unless the order containing the award expressly

provides otherwise.” In Cogle v. Cogle, 6th Dist. Wood No. WD-00-054, 2001 Ohio

App. LEXIS 1501, *5-6 (Mar. 30, 2001), the trial court’s order did not expressly state

that the spousal-support obligation would not terminate upon the obligor’s death.

Nevertheless, the order required the obligor to maintain a life insurance policy large

enough to cover any spousal support as yet unpaid, implying that the support obligation

was to continue beyond the obligor’s death. We remanded the case to the domestic

relations court so that it could clarify whether it intended the spousal-support obligation

to survive the obligor’s death. Given the similarity between the facts in the present case

and those in Cogle, we find that remand on this point is necessary.

{¶ 114} We find Douglas’s sixth assignment of error well-taken, in part, and not

well-taken, in part. We find that remand is necessary so that the trial court can either

explain why it added Douglas’s 2017 salary to its calculation of his average income for

2014-2016, or correct this error and any effect it had on its spousal-support award. We

45. also remand for clarification with respect to whether it intended that Douglas’s spousal-

support obligation would survive Douglas’s death. We affirm the spousal-support award

in all other respects.

F. Attorney Fees

{¶ 115} In his seventh assignment of error, Douglas contends that the trial court

abused its discretion when it awarded Carol attorney fees of $87,500. He argues that

“[t]he Trial court did not demonstrate the reasonableness of the fees and it did not show

that the expenditures were necessary.”7

{¶ 116} Douglas argues first that under R.C. 3105.18(H), Carol was not entitled to

attorney’s fees because she was never prevented from litigating her claims. Former R.C.

3105.18(H) provided that in determining whether to award attorney fees, the trial court

must consider “whether either party will be prevented from fully litigating that party’s

rights and adequately protecting that party’s interests if it does not award reasonable

attorney’s fees.” As Carol points out, this provision of the statute no longer exists; rather,

R.C. 3105.73(A) now provides authority for a trial court to award attorney fees.

{¶ 117} R.C. 3105.73(A) provides:

In an action for divorce * * *, a court may award all or part of

reasonable attorney’s fees and litigation expenses to either party if the court

finds the award equitable. In determining whether an award is equitable,

7 We note, of course, that the trial court does not bear the burden of demonstrating the reasonableness and necessity of fees.

46. the court may consider the parties’ marital assets and income, any award of

temporary spousal support, the conduct of the parties, and any other

relevant factors the court deems appropriate.

We review a trial court’s decision to award attorney’s fees under an abuse-of-discretion

standard. Newcomer, 6th Dist. Lucas No. L-11-1183, 2013-Ohio-5627, at ¶ 88.

{¶ 118} In considering Carol’s claim for attorney fees, the trial court recognized

that Carol employed numerous attorneys over the life of this case and incurred fees and

expenses totaling almost $480,000. At trial, Carol called an expert witness to testify as to

the reasonableness and necessity of the attorney’s fees she incurred, but with respect to

most of her attorneys, Carol failed to provide the expert witness with invoices reflecting

(1) the hourly rate, (2) the nature of services rendered, and (3) the amount of time

expended in providing those services. The trial court denied Carol’s request for fees

where this information was lacking because Carol’s expert conceded that without this

information, he could not opine as to the reasonableness and necessity of the fees.

{¶ 119} The court found, however, that Carol provided expert testimony and

detailed invoices to support fees totaling $107,926: $25,118 for services rendered by

attorney Ralph DeNune and $82,808 for services rendered by trial counsel, Jay Feldstein.

The court awarded Carol a portion of those fees after considering a number of factors,

including: Douglas’s refusal to sign the consent order; the disparity in income; the fact

that Douglas used company funds to pay at least a portion of his attorney’s fees and

partial fees previously paid on Carol’s behalf; Carol’s retention of multiple attorneys

47. resulting in duplication of efforts; the number of show cause motions filed by Carol; the

fact that Douglas was found in contempt of court; the protracted and complex nature of

the proceedings; and Douglas’s abandonment of his parental alienation claim at the outset

of a scheduled five-day trial.

{¶ 120} Douglas concedes that DeNune’s fees of $28,115 are supported by the

record, but he complains that the detailed invoices submitted as exhibits at trial support

fees charged by Feldstein of only $26,686.50. Thus, he argues, the total fees supported

by the record total only $54,801.50—not $107,926.

{¶ 121} Carol offered into evidence a payment register for the period of

November 30, 2016, to May 31, 2017, for fees owed to Feldstein totaling $82,808.04

(exhibit No. 6N). But the only itemized statements admitted into evidence relating to

Feldstein’s services were trial exhibits Nos. 6O and 6P—invoices for services performed

for the period of November 27, 2016, to February 24, 2017.8 Those invoices total only

$26,686.50. While Carol’s expert testified that he reviewed “specific itemized invoices”

from Feldstein for the period beginning in fall of 2016, up to June of 2017, detailed

invoices for services rendered after February 24, 2017, were not admitted into evidence.

Accordingly, we must conclude that the trial court abused its discretion when it awarded

fees for services for which detailed invoices were not admitted into evidence. See Gering

v. Gering, 8th Dist. Cuyahoga No. 43247, 1981 Ohio App. LEXIS 10475, *4 (June 25,

8 Exhibit No. 12L is a duplicate of the invoice for November 27, 2016, to December 13, 2016.

48. 1981) (concluding that trial court abused discretion in awarding attorney fees where

expert’s testimony concerning reasonableness of those fees was based on materials never

admitted into evidence as required by Evid.R. 703). Carol’s award of attorney’s fees

must be reduced from $87,500 to $54,801.50.

{¶ 122} We find Douglas’s seventh assignment of error well-taken, and we reduce

Carol’s attorney-fee award to $54,801.50.

III. Conclusion

{¶ 123} We find Douglas’s first assignment of error not well-taken. The trial

court’s financial-misconduct findings were supported by competent, credible evidence.

{¶ 124} We find Douglas’s second and third assignments of error not well-taken.

The trial court did not abuse its discretion in fashioning the award to Carol for Douglas’s

financial misconduct.

{¶ 125} We find Douglas’s fourth assignment of error not well-taken. There was

competent, credible evidence to support the trial court’s rejection of Douglas’s claim that

Carol committed financial misconduct.

{¶ 126} We find Douglas’s fifth assignment of error not well-taken. The trial

court did not abuse its discretion in failing to distribute $68,379.79 that Carol held in a

credit union account.

{¶ 127} We find Douglas’s sixth assignment of error well-taken, in part, and not

well-taken, in part. The trial court did not err when it considered Vendita’s future income

stream in valuing the business for purposes of dividing it as a marital asset and in

49. considering Douglas’s income earned from the business in setting the amount of spousal

support. Additionally, the trial court did not consider the expenses of the parties’ adult

children in fashioning a spousal-support award. Nevertheless, we remand this case to the

trial court so that the court can (1) explain its addition of Douglas’s 2017 salary to his

three-year average income or correct this calculation and any effect it may have had on

the spousal-support award; and (2) clarify its intent in ordering Douglas to maintain a life

insurance policy in the absence of express language indicating that the spousal-support

obligation would survive his death.

{¶ 128} Finally, we find Douglas’s seventh assignment of error well-taken. The

itemized invoices for attorney’s fees admitted into evidence total only $54,801.50. We,

therefore, conclude that Carol’s award of attorney fees must be reduced from $87,500 to

$54,801.50.

{¶ 129} Accordingly, we affirm, in part, and reverse, in part, the March 23, 2018

judgment of the Lucas County Court of Common Pleas, Domestic Relations Division.

Douglas and Carol are ordered to share in the costs of this appeal under App.R. 24.

Judgment affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

50. Sullinger v. Sullinger C.A. No. L-18-1079

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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