Buskirk v. Buskirk
2023 Ohio 70
Ohio Ct. App.2023Background
- Wife filed for divorce in November 2019; trial occurred in January 2022. Parties stipulated to marriage date (2009), two minor children, separation >1 year, and admissibility of a home appraisal.
- Wife admitted 28 documentary exhibits (tax returns, appraisal, account statements); Husband offered no documentary evidence and the court found his testimony not credible and lacking candor.
- Marital home appraised at $240,000 with an outstanding mortgage of about $137,507; Husband lived in the home after Wife left (July 2019) and made an estimated 30 mortgage payments and paid associated expenses.
- The trial court ordered sale of the marital home with net proceeds split equally, allocated most credit-card and consumer debt to Husband based on Wife’s evidence, and split the marital portion of retirement accounts equally (including an AIG rollover IRA which Husband claimed was premarital).
- Court awarded child support of $1,048.96/month from Husband to Wife based on incomes testified at trial (Husband $100,000; Wife $64,000). Court also ordered guardian ad litem (GAL) fees of $3,960 to be split equally ($1,980 each).
- The court found Husband engaged in financial misconduct (liquidation of a 401(k) in violation of the restraining order and incurring debt tied to a 2018 domestic-violence matter) and used that in declining an equal division of all assets; Husband appealed multiple assignments of error and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Wife) | Defendant's Argument (Husband) | Held |
|---|---|---|---|
| Division of marital debt and assets | Allocate debt per Wife’s exhibits; divide retirement marital portions equally | Court erred assigning most debt to Husband; Wife and Husband were 50/50 partners; some cards were Wife’s | Court affirmed allocation; relied on Wife’s documentary evidence and credibility findings as supported by record; no abuse of discretion |
| Characterization of AIG Rollover IRA | Marital portion should be divided equally absent proof of separate funds | IRA is 100% premarital and should be Husband’s separate property | Husband failed to prove separate or traceable premarital funds; equal division upheld |
| Child support calculation | Use parties’ trial testimony for incomes; compute under guideline worksheet | Child support improper because Husband now earns less, provides majority care, pays extracurriculars | Order affirmed; calculated from incomes at trial (Husband $100k); modification available later upon substantial change of circumstances |
| Special expenses for daughter (golf) | N/A (no evidence) | Court abused discretion by not crediting $30,000+ in golf expenses Husband paid | Rejected: no testimony or documentary evidence was presented at trial to support the claim |
| Sale of marital home | N/A (Wife sought sale and equal net split) | House should not be sold (bankruptcy concern) or Husband should be credited for post-separation mortgage payments | Sale and equal division of net proceeds affirmed; court considered Husband’s mortgage payments and other financial misconduct when determining equity |
| GAL fees and alleged misconduct | GAL fees reasonable and properly apportioned; no timely objection | GAL provided no value; Husband already paid initial fee and should not owe more; judge/GAL biased | Husband waived objections by failing to contest GAL fee motion at trial; fees apportioned equally and not an abuse of discretion; other misconduct claims unsupported by record |
Key Cases Cited
- Neville v. Neville, 791 N.E.2d 434 (Ohio 2003) (trial courts must divide marital property equitably when equal division would be inequitable)
- Booth v. Booth, 541 N.E.2d 1028 (Ohio 1989) (appellate review of property division is for abuse of discretion)
- Blakemore v. Blakemore, 450 N.E.2d 1140 (Ohio 1983) (definition of an abuse of discretion)
- Maloney v. Maloney, 826 N.E.2d 864 (Ohio App.) (traceability and burden to prove separate property)
- Bechtol v. Bechtol, 550 N.E.2d 178 (Ohio 1990) (trial court resolves credibility and factual disputes)
- Goldfuss v. Davidson, 679 N.E.2d 1099 (Ohio 1997) (plain error doctrine is narrow; applied only in exceptional circumstances)
- Pauly v. Pauly, 686 N.E.2d 1008 (Ohio 1997) (trial courts have broad discretion in child support determinations)
- Schumann v. Schumann, 944 N.E.2d 705 (Ohio App.) (support orders may be modified upon a showing of substantial change of circumstances)