INGRID BRYAN v. PHILIP BRYAN
No. 97817
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 16, 2012
[Cite as Bryan v. Bryan, 2012-Ohio-3691.]
Blackmon, A.J., Cooney, J., and Rocco, J.
JOURNAL ENTRY AND OPINION; PLAINTIFF-APPELLEE vs. DEFENDANT-APPELLANT; JUDGMENT: AFFIRMED; Civil Appeal from the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. D-331957
Jill Friedman Helfman
200 Public Square
Suite 3500
Cleveland, OH 44113
ATTORNEY FOR APPELLEE
Pamela J. MacAdams
Morganstern, MacAdams & Devito Co., LPA
623 West St. Clair Avenue
Cleveland, OH 44113
GUARDIAN AD LITEM
Mary J. Biacsi
Zoller Biacsi Co., LPA
812 Huron Road
490 The Caxton Building
Cleveland, OH 44115
{¶1} Appellant Philip Bryan (“husband“) appeals the domestic relations court order involving spousal support and the division of marital property division. He assigns four errors for our review.1
{¶2} Having reviewed the record and pertinent law, we affirm the trial court‘s decision. The apposite facts follow.
Facts
{¶3} In 1988, after graduating from college, the parties began living together and became engaged to be married; they were married in September 1994, and three children were born of the marriage (O.B., dob: 9-11-1997, G.B., dob: 4-13-1999, and A.B., dob: 4-17-2001). The parties separated in January 2011.
{¶4} After college, both parties went on to have successful careers. Husband worked for Dunn and Bradstreet from 1988 until 1996. He then worked for American Credit Indemnity until 2002. In 2004, he started his company, Trade Credit International (“TCI“). TCI acts as a brokerage company for credit insurance to protect against the risk of defaulted accounts receivables and nonpayment of commercial debt. Husband is the sole shareholder and employee of the company and has a home office. An expert at trial valued husband‘s business to be worth $144,479. The expert also determined that husband‘s income in 2009 was $187,000 and $145,000 in 2010.
{¶6} In 2007, wife formed a desktop publishing company with her friend that operated out of the marital home. Due to a lawsuit and the enforcement of a noncompete agreement, the company ceased doing business in 2010. At the time the operations ended, the publishing company had no assets, and attorney fees were owed for defending the lawsuit. Due to her alleged inability to find employment elsewhere, wife has earned money cleaning homes. She currently cleans two homes about every other week for $50. A vocational expert testified at trial that wife, in spite of her age of 50, would be employable given her strong work history and professional demeanor.
{¶7} After several days of trial, the trial court entered a divorce decree and determined the de facto marriage commencement date for purposes of property division was November 1988, when the parties began living together and became engaged. Wife was awarded the marital residence and husband was awarded TCI. The parties also stipulated to the value of their property, except as to husband‘s business. However, the court accepted the expert‘s valuation of the company at $144,479.
{¶8} The trial court ordered husband to pay $5,000 per month in spousal support to wife for nine years. After considering husband was paying for the children‘s health
{¶9} The court also incorporated the parties’ shared parenting agreement into the decree and divided the investment accounts, pension funds, personal property, and various debts that are not at issue in this appeal.
Date of Marriage
{¶10} In his first assigned error, husband contends the trial court erred by concluding the parties were married six years prior to the ceremonial date of their marriage for purposes of the marital property division. He claims this prejudiced him because the trial court included investments made prior to the marriage, specifically, the downpayment on the marital home, which was $50,000. Additionally, he claims the trial court‘s use of the prior date violates the Marriage Amendment to the Ohio Constitution and in effect resurrects the common law marriage doctrine.
{¶11}
(2) “During the marriage” means whichever the following is applicable:
(a) Except as provided in division (A)(2)(b) of this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation.
(b) If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, “during the marriage” means the period of time between those dates selected and specified by the court.
{¶12} For purposes of appellate review, a trial court‘s determination of a de facto marriage date is subject to an abuse of discretion standard. Berish v. Berish, 69 Ohio St.2d 318, 323, 432 N.E.2d 183 (1982); Gullia v. Gullia, 93 Ohio App.3d 653, 666, 639 N.E.2d 822 (8th Dist.1994).
{¶13} According to wife, when the parties commenced living together, they did not have much financially. They both were working at the time and earning approximately the same income. Wife testified that they “pretty much split things, the rent, and utilities, and food for the home, or things we started to purchase and accumulate for the household.” She also stated that “there was a time when he would pay the rent one month and I would pay the rent one month.” She explained that they had no formal plan on how to pay for things and admitted that “he probably picked up a lot of the rent and utilities and I picked up the food and the furniture and maybe vacations or things like that.”
{¶14} Husband testified that prior to the marriage, he paid for “most everything.” He also claimed that he alone saved money and contended he provided all of the funds for
{¶15} The court concluded that it would be inequitable to not take into consideration the fact that wife worked for six years prior to the marriage and used her income to help contribute to their living expenses, which allowed the parties to save the money for a downpayment on a residence after they were married. Under the statute and the historical case law, the trial court did not abuse its discretion in deciding the de facto marriage date to be when the parties became engaged and moved in together.
{¶16} Husband also argues the trial court‘s setting the commencement date of the marriage six years prior to the actual ceremonial date, violated the Marriage Amendment of the Ohio Constitution.
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and is political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.
{¶18} Courts are to liberally construe a statute in order to save it from constitutional infirmities. Lebanon v. McClure, 44 Ohio App.3d 114, 116, 541 N.E.2d 1073 (12th Dist.1988). “[I]f by any fair course of reasoning, the law and the constitution can be reconciled, the law must stand.” State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 9.
{¶19}
[B]eing married is a status. Marriage gives a person certain legal rights, duties, and liabilities. For example, a married person may not testify against his or her spouse in some situations.
R.C. 2945.42 . A married person may inherit property from a spouse who dies intestate.R.C. 2105.06 . The definition of “status,” our understanding of the legal responsibilities of marriage, and the rights and duties created by the status of being married, combined with the first sentence of the amendment‘s prohibition against recognizing any union that is between persons other than one man and one woman, causes us to conclude that the second sentence of the amendment means that the state cannot create or recognize a legal status for unmarried persons that bears all the attributes of marriage — a marriage substitute. (Emphasis added.)
{¶21} “Thus, the Ohio Supreme Court explained that any legally established relationship bearing less than all the attributes of marriage is constitutional.” Cleveland Taxpayers for Ohio Constitution v. Cleveland, 8th Dist. No. 94327, 2010-Ohio-4685
{¶22}
{¶23} Husband also claims commencing the marriage six years prior to the ceremonial marriage violates Ohio‘s law against common law marriage. In 1991, Ohio enacted
Spousal Support
{¶24} In his second assigned error, husband contends the trial court‘s award of spousal support in the amount of $5,000 per month for 108 months was onerous, and the trial court failed to consider wife‘s ability to earn money pursuant to
{¶25} A trial court has considerable latitude when determining the amount of spousal support to award in a divorce proceeding. Bolinger v. Bolinger, 49 Ohio St.3d 120, 122, 551 N.E.2d 157 (1990). A trial court‘s decision regarding spousal obligations will not be reversed on appeal absent an abuse of discretion. Pauly v. Pauly, 80 Ohio St.3d 386, 390, 1997-Ohio-105, 686 N.E.2d 1108; Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). If the decision of the trial court is supported by some competent, credible evidence going to all the essential elements of the case, it will not be disturbed on appeal. Masitto v. Masitto, 22 Ohio St.3d 63, 66, 488 N.E.2d 857 (1986).
{¶27} It is with the above standards in mind that we now address the case at bar. We find the record to be replete with evidence supporting the trial court‘s decision. The parties were married for 17 years at the time of the divorce and together for 23 years. Thus, they had been a couple for a long time. Wife has not worked for over 11 years, except for her failed attempt to start publishing a community newspaper, as she left the work force to care for the parties’ young children. She is also 50 years old. The court concluded that wife‘s age and time away from the work force are issues that handicap her ability to find a job in spite of her impressive work experience. Also, although her children are no longer little, they are still young, which prevents her from being able to travel as extensively as her prior positions had required, and she will not be able to work late hours. Therefore, it is unrealistic to expect her to assume the same type of position that she had held previously.
{¶29} Husband also contends the trial court unfairly used his income in determining the value of TCI in order to divide the marital property and also used the same amount to base its award of spousal support. He argues this “double dipping” is prohibited and cites Heller v. Heller, 195 Ohio App.3d 541, 960 N.E.2d 1055 (10th Dist.2011), for support. In Heller, the husband owned 39.5 percent interest in the company for which he received a salary. He was awarded his entire interest in the company, which was valued at $700,018, which excluded his $300,000 salary. However, along with being ordered to pay $8,000 per month in spousal support based on the $300,000 salary, the trial court also awarded wife “20 percent of each payment of additional gross or, pre-tax income” that husband was paid as a bonus in the future. The Tenth District, held that awarding her the future bonus income resulted in double dipping because it was based on future earnings of the company, which the court included in valuing the company. The court held, however, that the salary husband received from the business could be considered in determining spousal support.
{¶31} Based on the trial court‘s consideration of these factors, the trial court did not err in requiring husband to pay $5,000 per month in spousal support. Having said that, we acknowledge that wife is educated and has an exemplary work history from 11 years ago. Given that the support is for nine years, it is likely she will begin seeking employment now instead of waiting until she is 59 to seek employment. In fact, she testified that she had applied for approximately 25 positions in the months leading up to the trial; thus she is attempting to find employment. If her circumstances should change, and she begins to accrue an income, husband can then request a modification pursuant to
Valuation of Business
{¶32} In his third assigned error, husband argues the trial court erred in accepting the expert‘s valuation of his business.
When I consider the nature of this operation, I have concluded that essentially two elements exist that can create value. First the company has cash balances in excess of any required working capital, and second the company has a book of business that has some level of portability to a seller without the continued involvement of the seller. Expert Report, page 7.
{¶34} He further clarified at trial:
The businesses are bought and sold and determining that fair market value is fundamentally what we do as business evaluators. I broke this business down past that because I didn‘t feel that anybody would buy trade credit. What I do is determine that the value of the business book of business, the accounts, relationships, that he, Mr. Bryan, has are transferable because someone else could come in and either absorb him into his business and pay them and maybe even a recommendation to work for them and establish 100 percent transfer of those, or they could buy that book of business. Sept. 13, 2011, Tr. 26.
{¶35} To figure the book value, the expert applied a formula and determined the book value was $38,911. He used a very conservative formula in determining the book value because he admitted it was a “highly volatile business.” The expert then added the excess cash flow of the company as of December 31, 2010, in the amount of $105,568, to the book value to arrive at a total company value of $144,479. Therefore, based on these calculations, the expert was able to determine the value of the company.
The expense side of this was difficult for me to determine because the business expenses were paid for personally and then imputed back to the business, and for my business expense I went through the tax returns for the years that I had and identified what the expenses were on average and I used that as an expense. Sept. 13, 2011, Tr. 23.
{¶37} The expert could only base his report on the information provided to him and all he had was the tax returns. The expert believed the amount claimed on the returns in the amount of approximately $2,000 per month seemed reasonable. Husband does not contend better evidence existed to determine his expenses; therefore, we conclude in the absence of better evidence, beyond husband‘s self-serving statements, the expert did not err by using the tax returns to determine an average amount of expenses to be deducted.
{¶38} Husband also contends that in determining the book value, the expert used a faulty income comparison. Husband contends he was merely an insurance agent and that the going salary was a lot less than the expert ascribed to him. However, the expert testified that because husband owned his insurance company, he used a salary more akin to that of an executive. “The fact that I increased that number was to calculate what a reasonable buyer would expect to receive for putting in the effort of taking the risk of being the owner of a company.” Sept. 13, 2011, Tr. 39. Husband failed to present evidence to contradict the expert.
Custodian of Children‘s Accounts
{¶40} In his fourth assigned error, husband contends the trial court erred by designating wife as the custodian of the children‘s custodial accounts. He claims that he should be the custodian as he has shown the ability to successfully manage the marital finances and previously successfully managed the custodial accounts.
{¶41} The children had 14 separate custodial accounts, which were created to finance their college education. The trial court concluded that wife should be the custodian of the accounts and did not set forth its reasons for doing so. However, the evidence indicated that husband‘s company books included fabricated tax returns and he concealed large amounts of cash and undeposited checks in his safe, which he failed to tell the expert about until wife discovered them. Under these circumstances, wife appears to be the more trustworthy person to oversee the children‘s accounts. Accordingly, husband‘s fourth assigned error is overruled.
{¶42} Judgment affirmed.
It is ordered that appellee recover from appellant her costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
COLLEEN CONWAY COONEY, J., and KENNETH A. ROCCO, J., CONCUR
APPENDIX
Assignments of Error
- The trial court erred by using a date six years prior to the parties’ marriage to determine the “duration of the marriage” and the parties’ respective property rights, thereby defeating appellant‘s valid separate property claim under
R.C. 3105.71 . - The trial court erred by awarding appellee an unreasonable and inappropriate amount of spousal support when it ordered husband to pay spousal support based on fictional income, thereby rendering Mr.
Bryan unable to pay the basic living expenses for himself and the children. - The trial court abused its discretion by accepting John Davis’ report in total, since a sales job has no fair market value.
- The trial court erred by ordering that appellee replace Mr. Bryan as custodian of the children‘s fourteen custodial accounts.