Alderman v. AldermanAlderman v. Alderman
Rendered on August 9, 2011
Kemp, Schaeffer & Rowe Co., L.P.A., Harold R. Kemp, and Andrew P. Schabo, for appellee.
Tyack, Blackmore, Liston & Nigh Co., L.P.A., and Thomas M. Tyack, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
KLATT, J.
{¶1} Defendant-appellant, Wade M. Alderman, appeals judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations, that: (1) granted him and plaintiff-appellee, Stacey A. Alderman, a divorce and (2) denied his motion for a new trial. For the following reasons, we affirm both judgments.
{¶3} In a decision and judgment entry decree of divorce issued July 9, 2010, the trial court set January 30, 2009 as the date on which the parties’ marriage ended. The trial court also classified Wade‘s and Stacey‘s property as either marital or separate property and divided the marital property between the spouses. In doing so, the trial court found that, during the marriage, Wade operated a business that provided snow-removal and lawn-care services. Wade conducted his business as a sole proprietorship. While Wade did 90 percent of the work required to operate the business, Stacey assisted Wade with the administrative aspects of the business. The trial court concluded that the assets and liabilities of the business were marital assets and liabilities.
{¶4} After Stacey filed for divorce, Wade received and deposited in his banking account checks from customers for whom Wade performed snow-removal and/or lawn-care services. The trial court found that these checks, which totaled $79,537, paid off accounts receivable1 that qualified as marital assets.
{¶5} Wade failed to produce any evidence of the expenses that he incurred to generate the accounts receivable. Nevertheless, in the interest of achieving equity, the trial court accepted the expenses that Wade claimed in the couple‘s 2007 federal tax return as evidence of the expenses that Wade likely incurred in 2009. Thus, the trial court deducted from the $79,537 the costs for fuel ($12,005), material supplies ($5,762), and
{¶6} After dividing all the marital assets and liabilities between Wade and Stacey, the trial court determined that a distributive award to Stacey was necessary to effectuate an equal division of the marital property. To equalize the property distribution, the trial court ordered Wade to pay Stacey $30,000.
{¶7} On July 23, 2010, Wade moved for a new trial on the issue of the allocation of marital assets and liabilities. In his motion, Wade argued that the trial court acted inequitably when it assigned a $58,885 value to the accounts receivable. Wade contended that the evidence adduced at trial did not prove that his business produced $58,885 in net profit in 2009. In support of this argument, Wade pointed to his trial testimony that he invested all his profits back into the business, and thus, he “never made a dime.” (Tr. 18.) To further buttress his argument, Wade asserted that his 2009 federal tax return, which his accountant had just completed, showed that his business‘s 2009 net income was only $74. In a decision and judgment entry issued October 1, 2010, the trial court denied Wade‘s motion, finding that Wade failed to establish any of the
{¶8} Wade now appeals the July 9, 2010 divorce decree and the October 1, 2010 denial of his motion for a new trial, and he assigns the following errors:
[1.] THE TRIAL COURT ERRED IN FAILING TO GRANT THE NEW TRIAL REQUESTED PURSUANT TO CIVIL RULE 59 AND CORRECT ITS ERROR WITH REGARD TO THE FINDING OF ACCOUNTS RECEIVABLE AS OF
JANUARY 2009 PREMISED ON PAYMENTS MADE MONTHS LATER WHEN NO EVIDENCE WAS PRESENTED TO SHOW THAT, IN FACT, THEY WERE RECEIVABLES. [2.] THE TRIAL COURT ERRED IN THE MARITAL BALANCE SHEET BY FINDING THAT THE ACCOUNTS RECEIVABLE TOTALED OVER $58,000.00 AND FAILED TO TAKE INTO ACCOUNT THE BUSINESS EXPENSES FOR THE YEAR 2009.
{¶9} By his first assignment of error, Wade argues that the trial court erred in denying his motion for a new trial. We disagree.
{¶10}
{¶11} As a general matter,
{¶12} When presented with a
{¶13} An appellate court reviews a trial court‘s ruling on a
{¶14} Here, Wade‘s argument that the evidence does not sustain the judgment depends on the credibility of his testimony that he “never made a dime” from his snow-removal and lawn-care business. (Tr. 18.) If the trial court believed this testimony, then the value of the accounts receivable should have been zero, instead of $58,885, because Wade‘s 2009 expenses would have equaled or exceeded his gross profit. The trial court, however, rejected Wade‘s testimony.
{¶15} In the divorce decree, the trial court recognized that, when the business‘s income was calculated for tax purposes, the business appeared to suffer losses each year. But, the trial court‘s analysis of the parties’ 2007 federal tax return reveals the court‘s skepticism that the business never realized an actual profit. The trial court found
{¶16} The decision to grant a new trial based on newly discovered evidence rests within the sound discretion of the trial court. Drake Ctr., Inc. v. Ohio Dept. of Human Servs. (1998), 125 Ohio App.3d 678, 706; Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 410. Thus, an appellate court reviews such a decision for an abuse of discretion. Gregory v. Kottman-Gregory, 12th Dist. No. CA2004-11-039, 2005-Ohio-6558, ¶25; In the Matter of C.C., 10th Dist. No. 04AP-883, 2005-Ohio-5163, ¶74.
{¶17} To warrant the granting of a
{¶19} Because Wade failed to demonstrate either that the judgment lacked evidentiary support or the existence of newly discovered evidence, the trial court did not err in denying his motion for a new trial. Accordingly, we overrule Wade‘s first assignment of error.
{¶20} By Wade‘s second assignment of error, he argues that the evidence does not support the trial court‘s determination that the parties’ marital assets included accounts receivable amounting to $58,885. We disagree.
{¶21} In divorce proceedings, a trial court must classify property as marital or separate property.
{¶22} Marital property includes “[a]ll real and personal property that currently is owned by either or both of the spouses * * * and that was acquired by either or both of the spouses during the marriage.”
{¶23} When the parties contest whether an asset is marital or separate property, there is a presumption that the asset is marital property, unless proven otherwise. Hood at ¶15; Colley at ¶20; Alexander at ¶24. The spouse seeking to have certain property declared separate property bears the burden of proving that the property is separate, not marital, property. Taub v. Taub, 10th Dist. No. 08AP-750, 2009-Ohio-2762, ¶28; Beagle v. Beagle, 10th Dist. No. 07AP-494, 2008-Ohio-764, ¶23; Dunham v. Dunham, 171 Ohio App.3d 147, 2007-Ohio-1167, ¶20.
{¶25} Wade asserts that some of the payments at issue satisfied debts for work that he performed after January 30, 2009. Wade contends that accounts receivable deriving from services rendered subsequent to the termination of the marriage are his separate property. As the party advocating that the accounts receivable constituted separate property, Wade had the burden to provide evidence proving that the debts at issue arose after the parties’ marriage ended. Wade presented no such evidence, and instead, relies on mere speculation to support his contention that the accounts receivable are separate property. We, therefore, conclude that the trial court did not err in classifying the accounts receivable as marital property.
{¶26} By his second assignment of error, Wade also argues that the trial court erred in not taking into account his 2009 business expenses when valuing the accounts receivable. Wade, however, failed to adduce any evidence of his 2009 business expenses.3 Logically, a trial court cannot consider evidence that a party neglects to introduce at trial. Accordingly, we overrule Wade‘s second assignment of error.
Judgments affirmed.
BRYANT, P.J., and CONNOR, J., concur.