Kess v. Kess
2018 Ohio 1370
Ohio Ct. App.2018Background
- James and Roberta Kess divorced after a long marriage; three children. Husband filed for divorce in 2009; trial before a magistrate occurred in 2014; magistrate issued a detailed decision on Aug. 27, 2015.
- Magistrate valued and divided marital assets and debts, imputed income to both parties (Husband $49,945; Wife $15,000), ordered Husband to pay $750/month spousal support for 8 years and child support of $769.33/month, and recommended a distributive award to equalize asset distribution.
- Husband requested findings of fact and conclusions of law (filed Sept. 2, 2015); the trial court denied that request (Sept. 8) and adopted the magistrate’s decision (Sept. 11).
- Husband’s objections were filed late (Sept. 22); the clerk initially rejected them as untimely, litigation over filing ensued, and this court remanded to let the trial court decide timeliness; trial court ruled objections untimely (Apr. 4, 2017).
- Appeal consolidated two appeals. Appellant raised three assignments: (1) denial of additional findings and untimeliness ruling; (2) alleged error in property division; (3) imputation of income and support calculations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of objections and request for additional findings | Kess argued trial court abused discretion by denying his request for supplemental findings and by ruling his objections untimely | Court/Roberta argued magistrate’s decision already contained adequate findings and objections were filed after the 14‑day window | Court: magistrate’s 52‑paragraph decision satisfied Civ.R.53; objections were untimely—no abuse of discretion |
| Property division — treatment of bankruptcy proceeds and sold items | Kess argued trustee’s use of $34,359.20 (and $1,050) in bankruptcy should not be assigned to him or should be divided differently; challenged characterization of the Sea Ray boat and alleged Wife took $18,800 | Court/Wife argued proceeds and sales were properly reflected; boat was jointly titled and proceeds shared; trial court credited Wife’s testimony about use of funds | Court: no plain error; trial court’s characterization and allocations were supported by evidence |
| Distributive award to equalize division | Kess argued award was improper | Wife/trial court argued distributive award is authorized to effectuate equitable division | Court: distributive award was permissible and not an abuse of discretion |
| Support — imputation of Husband’s income and child support computation | Kess contended imputed income ($49,945) and resulting support were improper; also argued trial court omitted ordered spousal support from Wife’s income in child‑support worksheet | Wife/trial court supported imputation based on past earnings and vocational testimony; court deducted spousal support from Husband but did not add it to Wife’s gross income on worksheet | Court: imputation and spousal award were not plain error; but trial court committed plain error by failing to include ordered spousal support as Wife’s income on child‑support worksheet—remanded to recalculate child support |
Key Cases Cited
- Cherry v. Cherry, 66 Ohio St.2d 348 (Ohio 1981) (overall property division reviewed for abuse of discretion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard explained)
- Berish v. Berish, 69 Ohio St.2d 318 (Ohio 1982) (trial court has broad discretion valuing marital assets)
- Kunkle v. Kunkle, 51 Ohio St.3d 64 (Ohio 1990) (spousal‑support orders reviewed for abuse of discretion)
- Booth v. Booth, 44 Ohio St.3d 142 (Ohio 1989) (child support reviewed for abuse of discretion)