[Cite as Wills v. Wills, 2025-Ohio-1608.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
SCOTT A. WILLS, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellant : Hon. Robert G. Montgomery, J. : Hon. David M. Gormley, J. -vs- : : EMILY E. WILLS, : Case No. 2024CA0018 : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Domestic Relations Division, Case No. 23DV0108
JUDGMENT: Affirm in Part and Remand in Part
DATE OF JUDGMENT: May 5, 2025
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JAMES J. ONG PORTER R. WELCH Connolly, Hillyer & Ong, Inc. Welch Legal Services, L.L.C. 201 North Main Street, P.O. Box 227 21 Middle Street, P.O. Box 125 Uhrichsville, OH 44683 Galena, OH 43021 Montgomery, J.
STATEMENT OF THE FACTS AND THE CASE
{¶1} Appellant and Appellee were married on May 8, 2010 and have one child.
Appellant filed a Complaint for Divorce on April 10, 2023. Appellee filed a Complaint and
Counterclaim on April 26, 2023. A final hearing was held on May 16, 2024 and the trial
court issued a Judgment Entry Decree of Divorce on May 24, 2024. Appellant filed his
notice of Appeal on December 13, 2024.
{¶2} The Appellant assigns four errors:
{¶3} “I. THE LOWER COURT ERRED IN AWARDING THE REAL ESTATE LOCATED AT 22929 TOWNSHIP ROAD 1193, COSHOCTON, OHIO AND 0 TOWNSHIP ROAD 1193, COSHOCTON, OHIO SOLELY TO APPELLEE, GIVEN THE FACT THAT THE PARTIES ADVISED THE LOWER COURT, PRIOR TO THE PRESENTATION OF ANY EVIDENCE, THAT THEY HAD REACHED THE AGREEMENT THAT APPELLEE SHOULD RECEIVE A ONE-HALF SHARE IN THE EQUITY INTEREST IN ALL REAL ESTATE PARCELS THE LOWER COURT FOUND TO BE MARITAL PROPERTY.”
{¶4} “II. THE LOWER COURT’S FINDING THAT APPELLANT COMMITTED FINANCIAL MISCONDUCT WAS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.”
{¶5} “III. IN THE EVENT A FINDING OF FINANCIAL MISCONDUCT ON THE PART OF APPELLANT WAS IN FACT PROPER, THEN THE LOWER COURT ABUSED ITS DISCRETION BY AWARDING APPELLEE THE SOLE AND EXCLUSIVE OWNERSHIP TO THE REAL PROPERTY LOCATED AT 22929 TOWNSHIP ROAD 1193, COSHOCTON, OHIO AND 0 TOWNSHIP ROAD 1193, COSHOCTON, OHIO.”
{¶6} “IV. THE LOWER COURT ABUSED ITS DISCRETION BY AWARDING ATTORNEY FEES TO APPELLEE FOR APPELLANT’S ALLEGED REFUSAL TO RESOLVE THIS CASE SHORT OF TRIAL.”
ANALYSIS
{¶7} Appellant argues in his first assignment of error that the trial court erred in
awarding Appellee the property located at 22929 Township Road 1193, Coshocton, Ohio,
and 0 Township Road 1193, Coshocton, Ohio. This Court agrees. {¶8} Appellant and Appellee entered into Agreed Joint Stipulations
(“Stipulations”) that were signed by both parties on May 16, 2024. The Stipulations were
approved and adopted by the trial court on the same date. Id., p. 6.
{¶9} The parties agreed that they owned three (3) parcels of real property. Id., p.
2. These properties are 22875 Township Road 1193, 22929 Township Road 1193 and 0
Township Road 1193 located in Coshocton, Ohio. Id. The parties stipulated that the
properties located at 22875 Township Road 1193 and 22929 Township Road 1193 are
marital properties and assigned a value to each. Id. The parties further agreed that the
court would determine if the property located at 0 Township Road 1193 is martial property
and what value to assign to it. Id. The Stipulations also stated that Appellant would have
“15 days from the date of the final hearing on this matter to determine whether he wishes
to retain each of three parcels of real property”. Id.
{¶10} The trial court ruled that the property located at 0 Township Road 1193 was
marital property and subject to equitable distribution. Judgment Entry, Conclusions of Law
¶ 2. The trial court further found that Appellant could elect to retain the three parcels and
pay Appellee her marital share. Judgment Entry Decree of Divorce, ¶ 11. However, the
trial court found that Appellant committed financial misconduct and awarded Appellee a
distributive award by allocating the real property located at 22929 Township Road 1193
and 0 Township Road 1193 to Appellee. Id., ¶ 25.
{¶11} A stipulation is defined as, “[a] voluntary agreement entered into between
opposing parties concerning the disposition of some relevant point in order to eliminate
the need for proof on an issue or to narrow the range of issues to be litigated.” Kestner v.
Kestner, 2007-Ohio-6222, 879 N.E.2d 849, ¶ 29, citing Wilson v. Harvey, 2005-Ohio- 5722, 842 N.E.2d 83, ¶ 12. “[W]hen a stipulation of facts is handed up by the adversaries
in a case, the trier of facts must accept what is set forth as a statement of settled fact that
is undisputed and binding upon the parties to the agreement.” DiSanto v. Safeco Ins. of
Am., 2006-Ohio-4940, 861 N.E.2d 573, ¶ 53.
{¶12} The parties herein entered into stipulations as to how the real property was
to be distributed. The trial court was bound by these stipulations and abused its discretion
in awarding two of the parcels to Appellee as a distributive award.
{¶13} This Court finds that the trial court was bound by the parties’ Agreed Joint
Stipulations and was without authority to award the real property located at 22929
Township Road 1193 and 0 Township Road 1193 to Appellee.
{¶14} In his second issue, Appellant argues that the trial court’s finding of financial
misconduct was against the manifest weight of the evidence. We disagree.
{¶15} Appellant purchased a Chevrolet truck and a Ford truck during the parties’
marriage. Trial Transcript, p. 30. The trial court found the value of the Chevrolet truck was
$30,000.00. Judgment Entry/Decree of Divorce, Findings of Fact, ¶ 17. Appellant
transferred this truck to his brother for $1,000.00 on April 14, 2023. Transcript, p. 91. The
trial court found that the value of the Ford truck was $6,500.00. Judgment Entry, Findings
of Fact, ¶ 22. Appellant transferred the Ford truck to his brother for $1,000.00 on April 8,
2023. Transcript, p. 92. The trial court found that Appellant engaged in financial
misconduct by transferring these vehicles to his brother contemporaneously with the filing
of his divorce action. Final Judgment, Conclusions of Law, ¶ 5.
{¶16} Appellant cites Lepsky v. Lepsky, 2023-Ohio-1326, 169 Ohio St., 3d 1502,
in support of his argument. This Court has reviewed Lepsky which states, “A 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.”
The court went on to say, “To find financial misconduct, a court must look to the reasons
behind the questioned activity or the results of the activity and determine whether the
wrongdoer profited from the activity or intentionally dissipated, destroyed, concealed, or
fraudulently disposed of the other spouse’s assets.” Id. This Court’s role is “to determine
whether there is relevant, competent and credible evidence upon which the fact finder
could base its judgment”. Ewing v. Ewing, 2007-Ohio-7108 (5th Dist.).
{¶17} The trial court looked behind Appellant’s reasons for the sales of the trucks
and found that Appellant sold both vehicles to his brother for less money than their worth.
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[Cite as Wills v. Wills, 2025-Ohio-1608.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
SCOTT A. WILLS, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellant : Hon. Robert G. Montgomery, J. : Hon. David M. Gormley, J. -vs- : : EMILY E. WILLS, : Case No. 2024CA0018 : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Domestic Relations Division, Case No. 23DV0108
JUDGMENT: Affirm in Part and Remand in Part
DATE OF JUDGMENT: May 5, 2025
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JAMES J. ONG PORTER R. WELCH Connolly, Hillyer & Ong, Inc. Welch Legal Services, L.L.C. 201 North Main Street, P.O. Box 227 21 Middle Street, P.O. Box 125 Uhrichsville, OH 44683 Galena, OH 43021 Montgomery, J.
STATEMENT OF THE FACTS AND THE CASE
{¶1} Appellant and Appellee were married on May 8, 2010 and have one child.
Appellant filed a Complaint for Divorce on April 10, 2023. Appellee filed a Complaint and
Counterclaim on April 26, 2023. A final hearing was held on May 16, 2024 and the trial
court issued a Judgment Entry Decree of Divorce on May 24, 2024. Appellant filed his
notice of Appeal on December 13, 2024.
{¶2} The Appellant assigns four errors:
{¶3} “I. THE LOWER COURT ERRED IN AWARDING THE REAL ESTATE LOCATED AT 22929 TOWNSHIP ROAD 1193, COSHOCTON, OHIO AND 0 TOWNSHIP ROAD 1193, COSHOCTON, OHIO SOLELY TO APPELLEE, GIVEN THE FACT THAT THE PARTIES ADVISED THE LOWER COURT, PRIOR TO THE PRESENTATION OF ANY EVIDENCE, THAT THEY HAD REACHED THE AGREEMENT THAT APPELLEE SHOULD RECEIVE A ONE-HALF SHARE IN THE EQUITY INTEREST IN ALL REAL ESTATE PARCELS THE LOWER COURT FOUND TO BE MARITAL PROPERTY.”
{¶4} “II. THE LOWER COURT’S FINDING THAT APPELLANT COMMITTED FINANCIAL MISCONDUCT WAS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.”
{¶5} “III. IN THE EVENT A FINDING OF FINANCIAL MISCONDUCT ON THE PART OF APPELLANT WAS IN FACT PROPER, THEN THE LOWER COURT ABUSED ITS DISCRETION BY AWARDING APPELLEE THE SOLE AND EXCLUSIVE OWNERSHIP TO THE REAL PROPERTY LOCATED AT 22929 TOWNSHIP ROAD 1193, COSHOCTON, OHIO AND 0 TOWNSHIP ROAD 1193, COSHOCTON, OHIO.”
{¶6} “IV. THE LOWER COURT ABUSED ITS DISCRETION BY AWARDING ATTORNEY FEES TO APPELLEE FOR APPELLANT’S ALLEGED REFUSAL TO RESOLVE THIS CASE SHORT OF TRIAL.”
ANALYSIS
{¶7} Appellant argues in his first assignment of error that the trial court erred in
awarding Appellee the property located at 22929 Township Road 1193, Coshocton, Ohio,
and 0 Township Road 1193, Coshocton, Ohio. This Court agrees. {¶8} Appellant and Appellee entered into Agreed Joint Stipulations
(“Stipulations”) that were signed by both parties on May 16, 2024. The Stipulations were
approved and adopted by the trial court on the same date. Id., p. 6.
{¶9} The parties agreed that they owned three (3) parcels of real property. Id., p.
2. These properties are 22875 Township Road 1193, 22929 Township Road 1193 and 0
Township Road 1193 located in Coshocton, Ohio. Id. The parties stipulated that the
properties located at 22875 Township Road 1193 and 22929 Township Road 1193 are
marital properties and assigned a value to each. Id. The parties further agreed that the
court would determine if the property located at 0 Township Road 1193 is martial property
and what value to assign to it. Id. The Stipulations also stated that Appellant would have
“15 days from the date of the final hearing on this matter to determine whether he wishes
to retain each of three parcels of real property”. Id.
{¶10} The trial court ruled that the property located at 0 Township Road 1193 was
marital property and subject to equitable distribution. Judgment Entry, Conclusions of Law
¶ 2. The trial court further found that Appellant could elect to retain the three parcels and
pay Appellee her marital share. Judgment Entry Decree of Divorce, ¶ 11. However, the
trial court found that Appellant committed financial misconduct and awarded Appellee a
distributive award by allocating the real property located at 22929 Township Road 1193
and 0 Township Road 1193 to Appellee. Id., ¶ 25.
{¶11} A stipulation is defined as, “[a] voluntary agreement entered into between
opposing parties concerning the disposition of some relevant point in order to eliminate
the need for proof on an issue or to narrow the range of issues to be litigated.” Kestner v.
Kestner, 2007-Ohio-6222, 879 N.E.2d 849, ¶ 29, citing Wilson v. Harvey, 2005-Ohio- 5722, 842 N.E.2d 83, ¶ 12. “[W]hen a stipulation of facts is handed up by the adversaries
in a case, the trier of facts must accept what is set forth as a statement of settled fact that
is undisputed and binding upon the parties to the agreement.” DiSanto v. Safeco Ins. of
Am., 2006-Ohio-4940, 861 N.E.2d 573, ¶ 53.
{¶12} The parties herein entered into stipulations as to how the real property was
to be distributed. The trial court was bound by these stipulations and abused its discretion
in awarding two of the parcels to Appellee as a distributive award.
{¶13} This Court finds that the trial court was bound by the parties’ Agreed Joint
Stipulations and was without authority to award the real property located at 22929
Township Road 1193 and 0 Township Road 1193 to Appellee.
{¶14} In his second issue, Appellant argues that the trial court’s finding of financial
misconduct was against the manifest weight of the evidence. We disagree.
{¶15} Appellant purchased a Chevrolet truck and a Ford truck during the parties’
marriage. Trial Transcript, p. 30. The trial court found the value of the Chevrolet truck was
$30,000.00. Judgment Entry/Decree of Divorce, Findings of Fact, ¶ 17. Appellant
transferred this truck to his brother for $1,000.00 on April 14, 2023. Transcript, p. 91. The
trial court found that the value of the Ford truck was $6,500.00. Judgment Entry, Findings
of Fact, ¶ 22. Appellant transferred the Ford truck to his brother for $1,000.00 on April 8,
2023. Transcript, p. 92. The trial court found that Appellant engaged in financial
misconduct by transferring these vehicles to his brother contemporaneously with the filing
of his divorce action. Final Judgment, Conclusions of Law, ¶ 5.
{¶16} Appellant cites Lepsky v. Lepsky, 2023-Ohio-1326, 169 Ohio St., 3d 1502,
in support of his argument. This Court has reviewed Lepsky which states, “A 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.”
The court went on to say, “To find financial misconduct, a court must look to the reasons
behind the questioned activity or the results of the activity and determine whether the
wrongdoer profited from the activity or intentionally dissipated, destroyed, concealed, or
fraudulently disposed of the other spouse’s assets.” Id. This Court’s role is “to determine
whether there is relevant, competent and credible evidence upon which the fact finder
could base its judgment”. Ewing v. Ewing, 2007-Ohio-7108 (5th Dist.).
{¶17} The trial court looked behind Appellant’s reasons for the sales of the trucks
and found that Appellant sold both vehicles to his brother for less money than their worth.
Judgment Entry, Conclusions of Law, ¶ 5. The court also noted that one truck was sold
two days prior to Appellant’s filing of his Complaint and the other was sold after the
Complaint had been filed. Judgment Entry, ¶¶ 18, 23. The court found that Appellee’s
marital portion of the 1968 Chevrolet is $15,000.00. Judgment Entry, Conclusions of Law
¶ 3. The trial court found that Appellee’s martial share of the 1975 Ford is $3,250.00. Id.,
¶ 4.
{¶18} Upon a review of the record, we find there was competent, credible
testimony to support the trial court’s finding that Appellant committed financial
misconduct. Appellant deprived Appellee of her share of marital assets worth $18,250.00.
Appellant’s second assignment of error is overruled.
{¶19} Appellant asserts in his third assignment of error that the trial court abused
its discretion by awarding Appellee the properties located at 22929 Township Road 1193
and 0 Township Road 1193. We agree. {¶20} The trial court found Appellant had committed financial misconduct and
granted Appellee a distributive award of sole and exclusive ownership of 22929 Township
Road 1193 and 0 Township Road 1193. Judgment Entry, ¶ 25.
{¶21} A “distributive award” means a payment in real or personal property made
from the separate property of a spouse that is not a payment of spousal support. R.C.
3105.171(A)(1).
{¶22} R.C. 3105.171(E)(4) states, “If 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.”
The statute clearly states that a trial court has the authority to grant an offended spouse
a greater amount of marital property.
{¶23} This Court finds the trial court was correct in granting a distributive award
to Appellee. However, as previously stated, the trial court was without authority to award
the properties to Appellee as a means to effectuate this award.
{¶24} In his final assignment of error, Appellant argues that the trial court abused
its discretion in awarding attorney fees to Appellee for Appellant’s alleged refusal to
resolve this case short of trial. We disagree.
{¶25} Appellant’s brief misstates the reason the trial court awarded attorney fees
to Appellee. The trial court did not award attorney fees to Appellee due to Appellant’s
failure to settle the case. The trial court awarded attorney fees to Appellee because it
found that Appellant’s position with respect to the parties’ minor child during litigation was
unreasonable, unnecessary, guided by Appellant’s delay tactics, and not in the best interest of the minor child. Judgment Entry, ¶ 8. The trial court found that Appellant
engaged in behaviors which did not promote judicial economy. Id. Appellant reported to
the guardian ad litem that his position on custody was directed by his counsel and not
due to a genuine concern regarding the safety or wellbeing of the parties’ minor child.
Trial Transcript, p. 60. Appellant also stated to the guardian ad litem that he was “going
along for the ride”. The trial court found that Appellee was entitled to $4,000.00 in attorney
fees. This Court finds that the award of attorney’s fees to Appellee was supported by
relevant, competent and credible evidence. Appellant’s fourth assignment of error is
overruled.
CONCLUSION
{¶26} The decision of the trial court issued on August 15, 2024 is affirmed in part
and reversed in part.
{¶27} This court also affirms the trial court’s decision that Appellant engaged in
financial misconduct and that Appellee is entitled to a distributive award. The Court further
affirms the decision of the trial court to award Appellee attorney fees in the amount of
$4,000.00.
{¶28} This Court finds that the trial court erred in awarding the properties located
at 22929 Township Road 1193 and 0 Township Road 1193 to Appellee. {¶29} This Court remands the case to the trial court on the sole issue of
effectuating the payment of attorney fees and making a distributive award to Appellee
that does not violate the Agreed Joint Stipulations approved and adopted by the trial court
on May 16, 2024.
By: Montgomery, J.
Baldwin, P.J. and
Gormley, J. concur.