Chattree v. ChattreeChattree v. Chattree
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
BEFORE: Celebrezze, P.J., Jones, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: February 13, 2014
Carl A. Murway
Taft Stettinius & Hollister, L.L.P.
200 Public Square, Suite 3500
Cleveland, Ohio 44114
ATTORNEY FOR APPELLEE/CROSS-APPELLANT
Jonathan A. Rich
Victoria A. Glowacki
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For Canada Life
Suzanne M. Jambe
Baker & Hostetler, L.L.P.
3200 PNC Center
1900 East Ninth Street
Cleveland, Ohio 44114
For Ritu R. Chattree
Ritu R. Chattree, pro se
61 Jane Street
Apartment 14-B
New York, New York 10014
For Libman Ryder & Co., Inc., et al.
Walter F. Ehrnfelt
Waldheger-Coyne
1991 Crocker Road, Suite 550
Westlake, Ohio 44145
{¶1} Defendant-appellant, Arun Chattree (“Arun“), appeals from a judgment entry of divorce that awarded temporary and permanent spousal support and attorney fees and divided marital assets. Plaintiff-appellee, Monorama Chattree (“Mona“), cross-appeals from the judgment entry of divorce and challenges the valuation of Arun‘s business, the division of marital assets, and the court‘s order allowing Arun to maintain possession of his passport. For the following reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
Factual and Procedural History
{¶2} Arun, now 79 years old, and Mona, now 78 years old, were married in India on November 14, 1961. In 1963, their only child, a daughter, Ritu Chattree, was born. Shortly after Ritu‘s birth, Arun went to the United States to further his education. Approximately four years later, Mona and Ritu joined Arun in the United States. Mona maintained employment as a bacteriologist until she retired in 1995. Arun worked at various companies until 1995 when he started his own business called Community Behavioral Health Center, Inc. (“CBHC“). CBHC is licensed by the state of Ohio to provide mental health services to patients through various providers and agencies.
{¶3} After 48 years of marriage, Mona and Arun became estranged. On June 19, 2008, Mona filed her complaint for divorce, naming seven defendants, seeking a divorce from Arun and restraining orders against Arun and the other defendants. On December 9, 2008, Mona filed an amended complaint for divorce and named only four defendants,
{¶4} At the conclusion of trial, written closing arguments were filed by Mona on November 4, 2010, and by Arun on December 16, 2010. On April 3, 2012, the magistrate issued a decision, making findings of fact and conclusions of law. On November 30, 2012, the trial court ruled on the parties’ objections, adopting in part and modifying in part the magistrate‘s decision.
{¶5} Arun now brings this timely appeal, raising eight assignments of error for review. In her cross-appeal, Mona raises six cross-assignments of error for review.1
Law and Analysis
Arun‘s Appeal
I. Standard of Review
{¶6} For the purpose of judicial clarity, we consider Arun‘s assignments of error out of order. We review a trial court‘s determination in domestic relations cases under an abuse of discretion standard. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).
Since it is axiomatic that a trial court must have discretion to do what is equitable upon the facts and circumstances of each case, * * * it
necessarily follows that a trial court‘s decision in domestic relations matters should not be disturbed on appeal unless the decision involves more than an error of judgment.
Id., citing Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981). This same standard applies to orders relating to spousal support and the division of marital property. Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983), and Martin v. Martin, 18 Ohio St.3d 292, 294, 480 N.E.2d 1112 (1985). An abuse of discretion implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore at 219.
II. Division of Marital Property
{¶7} In a divorce proceeding, marital property includes the following:
- All real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;
- All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;
- Except as otherwise provided in this section, all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage * * *.
{¶8}
{¶9} Marital property, however, does not include separate property.
{¶10} The marital assets in this case consist of both personal and real property. However, within his appeal, Arun limits his arguments to the trial court‘s division of the following: (1) his interest in a cooperative apartment in New York, New York; (2) the common pleas judgment award in the amount of $254,399.09; (3) the parties’ retirement benefits; and (4) his interest in CBHC.
A. The Cooperative Apartment
{¶11} During the pendency of the parties’ marriage, Arun gifted his daughter Ritu a sum in excess of $550,000 for the purchase and renovation of a cooperative apartment located at 61 Jane Street, New York, New York. Ritu subsequently asked for additional money to cover the costs of renovations needed for the apartment that exceeded her original budget. Arun agreed to loan Ritu the money provided that she first execute a promissory cognovit note for the full amount of the loan, which was $187,000, plus interest. In 2009, Ritu and her father had a “falling out,” and Arun sued his daughter in federal court regarding the purchase and renovation of the cooperative apartment and in Ohio state court over his unsatisfied demand that she pay the cognovit note in full.
{¶12} Arun prevailed, to some extent, in both lawsuits. On February 9, 2010, in Chattree v. Chattree, N.D. Ohio No. 1:08 CV 2039, 2010 U.S. Dist. LEXIS 45885 (May 11, 2010), the U.S. District Court issued a decision in favor of Arun on his causes of action for breach of fiduciary duty, fraudulent misrepresentation, concealment, and breach of contract. Zero dollars were awarded to Arun, however, Ritu was ordered to effectuate a transfer of title so that it named her and Arun as “tenants-in-common of the premises know as Cooperative Apartment 14B on 61 Jane Street, New York, New York.”
{¶13} On March 31, 2010, in Chattree v. Chattree, Cuyahoga C.P. No. CV-09-696460 (Mar. 31, 2010), the common pleas court issued a judgment against Ritu in favor of Arun in the amount of $254,399.09 on the cognovit note that she signed for
{¶14} In dividing the parties’ marital property, the magistrate held that Arun and Mona had no separate property. With respect to the cooperative apartment, the magistrate determined that Ritu was entitled to “one-half of any equity Arun receives from the Jane Street property” because its purchase and renovation derived from the parties’ joint bank accounts during the pendency of their marriage. Further, the court found that the common pleas court‘s award of $254,399.09 for payment of the cognovit note was marital property. However, in dividing the property, the court awarded Mona the full $254,399.09, but reduced Arun‘s outstanding spousal support arrearage by $127,199.50, representing one-half of the cognovit judgment.
1. The Federal Court Judgment
{¶15} In his second assignment of error, Arun argues that the trial court erred in its division of property by not finding that his interest in the cooperative apartment, as ordered by the federal court, constituted his separate property. As stated, property acquired during a marriage is presumed to be marital property unless it can be shown to be separate. Huelskamp v. Huelskamp, 185 Ohio App.3d 611, 2009-Ohio-6864, 925 N.E.2d 167, ¶ 13 (3d Dist.).
{¶16} Arun does not dispute that the cooperative apartment was purchased during the parties’ marriage with marital funds. Instead, he contends that this court should find that the interest awarded to him by the federal court is his “separate property” because he
{¶17} In our view, the language used in
{¶18} Next, Arun argues that this court should find that Mona‘s actions during the entirety of the federal lawsuit constituted “financial misconduct.”
{¶19} Here, Arun contends that because Mona actively participated in the federal lawsuit and testified on behalf of Ritu, her conduct was the equivalent of dissipating marital assets. We find no merit to Arun‘s argument. In our view, the mere fact that Mona disagreed with Arun suing their daughter in federal court does not equate to a finding that Mona committed financial misconduct. Mona committed no wrongdoing in testifying truthfully at trial.
{¶20} Finally, Arun contends that the trial court failed to consider the $843,750 mortgage encumbering the cooperative apartment when it awarded Mona an interest in the apartment as a marital asset. However, the trial court‘s judgment order specifically requires Ritu to make all payments on the loan and hold Arun harmless on any debt associated with the property. Thus, it is clear that the trial court did not ignore the mortgage encumbering the apartment and any future liability associated with said mortgage.
{¶21} Based on the foregoing, we find that the trial court did not err in concluding that Arun‘s interest in the cooperative apartment was marital.
{¶22} Arun‘s second assignment of error is overruled.
2. The Common Pleas Court Judgment
{¶23} In his sixth assignment of error, Arun argues that the trial court erred by concluding that the cognovit judgment against Ritu was marital property. However, as discussed above, the funds loaned to Ritu derived from marital accounts. Accordingly, the trial court properly determined that the cognovit judgment in the amount of $254,399.09 was a marital asset.
{¶24} Arun further argues, without support in the record, that because the trial court‘s arrearage calculation was inequitable and unlawful, the provision in the trial court‘s order requiring Arun to transfer his interest in the cognovit judgment to Mona to reduce the arrearage amount was also contrary to law. However, Arun provides no basis for this contention. Although addressed in greater detail below, because we find that the trial court‘s spousal support order was appropriate, we find no merit to Arun‘s position that the value of the cognovit judgment could not be utilized to reduce the outstanding spousal support arrearage.
{¶25} Arun‘s sixth assignment of error is overruled.
B. Retirement Funds
{¶26} In his fifth assignment of error, Arun argues that the trial court erred by not dividing the parties’ retirement benefits equally and by guaranteeing a “minimum” amount of benefits to Mona. Specifically, Arun alleges that the trial court erred in dividing his CBHC defined benefit pension equally while allowing Mona to retain the
{¶27} As stated, the division of marital property includes retirement benefits that were acquired during the marriage.
{¶28} In the instant case, the trial court stated that although the division of property in this matter was unequal, “it was equitable due to the financial misconduct committed by [Arun] during the course of this litigation.” Pursuant to
{¶29} Nevertheless, we find, on due consideration of all retirement benefits at issue in this matter, that the trial court equally divided the parties’ retirement benefits. While Arun argues that Mona‘s annual OPERS benefits far exceed his own, he fails to account for the large disparity between the parties’ social security benefits. See
{¶30} Furthermore, Arun‘s challenges to the division of his pension plan are without merit. In its opinion, the trial court awarded Mona a one-half marital interest in Arun‘s CBHC defined pension plan to be set aside in her name through the use of a Qualified Domestic Relations Order. The court found that the value of the pension was $1,630,904 as of December 31, 2009, and that Mona was entitled to no less than $815,452. Here, Arun argues that it was an abuse of discretion to “guarantee” Mona no less than a fixed amount where there was significant evidence presented at trial that the pension plan was underfunded.
{¶31} Arun cites plan actuary Catherine Wolford‘s testimony on March 9, 2010, to support his argument that the pension plan‘s liabilities were greater than its assets. However, while the pension was underfunded in late 2008, CBHC vice-president of finance and acting executive director, Luan Hutchinson‘s subsequent testimony demonstrated that the pension‘s underfunding had been remedied by September 2010. Moreover, given the amount of control Arun has over the CBHC pension plan, it was not unreasonable or arbitrary for the trial court to award Mona a minimum amount under the plan. Thus, we conclude that the trial court‘s division of the parties’ retirement benefits did not constitute an abuse of discretion.
{¶32} Arun‘s fifth assignment of error is overruled.
C. CBHC
1. Arun‘s Motion in Limine
{¶34} Initially, Arun claims that the trial court improperly denied his March 8, 2010 motion in limine. In his motion, Arun urged the magistrate to prohibit Mona from offering any evidence or testimony regarding the valuation of CBHC, including the valuation report submitted by Mona‘s expert witness, Robert Ranallo. Arun argued that preclusion was appropriate based on Ranallo‘s failure to appear at a scheduled deposition.
{¶35} At the outset, we note that “[t]he denial of a motion in limine is within the sound discretion of the trial court.” State v. Werfl, 11th Dist. Lake Nos. 2002-L-101 and 2002-L-102, 2003-Ohio-6958, ¶ 64. Accordingly, we shall not disturb the trial court‘s ruling absent an abuse of discretion. Id.
{¶36} Here, the record reflects that Ranallo did not appear at the March 4, 2010 deposition because he had not yet completed his expert report. As discussed further below, Ranallo‘s inability to complete his expert report was attributed to Arun‘s failure to timely provide Mona with financial records for the year 2008. For this reason, the magistrate declined to exclude Ranallo‘s testimony and valuation report. Instead, the
2. Timeliness of the Expert Reports
{¶37} Next, Arun maintains that the trial court abused its discretion in admitting Ranallo‘s expert report and allowing Ranallo to testify at trial where his report was not submitted to defense counsel until after trial had commenced. Arun further contends that it was “inequitable, contrary to law, and simply unfair” to exclude the expert report and rebuttal testimony of Arun‘s expert witness, Bernard Agin. We disagree.
{¶38} A trial court‘s ruling as to the admission or exclusion of testimony is within its broad discretion and will not be disturbed absent an abuse of discretion. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735 (1998).
{¶39} After a careful review of the extensive procedural history of this case, we agree with the magistrate‘s detailed discussion attributing the delay in Ranallo‘s submission of his expert report to Arun‘s conduct. The record reflects that although Arun was ordered on May 11, 2009, to advance Mona $5,000 so that she could retain an expert, those funds were not delivered to Mona until November 10, 2009. Further, once Mona retained Ranallo, Arun continuously delayed Ranallo‘s ability to complete his valuation report by failing to provide necessary documentation, including vital tax
{¶40} Moreover, we are unable to conclude that the trial court abused its discretion in excluding the valuation report of Arun‘s expert, Bernard Agin. Throughout these proceedings, the parties were well aware that the value of CBHC was a highly contested issue in this divorce. Nevertheless, Arun waited until late September 2010, or six and one-half months into trial, before disclosing Agin as a witness and submitting his expert report. Based on the untimely nature of Arun‘s disclosure of Agin‘s report, the magistrate excluded the portion of Agin‘s report relating to his valuation of CBHC, but permitted Agin to provide rebuttal testimony in relation to the methodology employed by Ranallo in valuing CBHC.
{¶41} We find that the trial court acted within its discretion in limiting the scope of Agin‘s rebuttal testimony. While the record demonstrates that many of the delays associated with the production of Ranallo‘s expert report are attributable to Arun‘s conduct, Arun‘s untimely production of Agin‘s expert report was not caused by Mona‘s conduct. Thus, the magistrate properly determined that Mona would have been
3. The Business Valuation
{¶42} Finally, Arun argues that the trial court erred in valuing his interest in CBHC at $1,500,000. Arun contends that, given the business liabilities and limited assets, the trial court should have determined that CBHC had no fair market value.
{¶43} When determining the value of marital assets, a trial court is not confined to the use of a particular valuation method, but can make its own determination as to valuation based on the evidence presented. James v. James, 101 Ohio App.3d 668, 681, 656 N.E.2d 399 (2d Dist.1995). Thus, we must affirm a trial court‘s determination if it is supported by competent, credible evidence and is not otherwise an abuse of discretion. Moro v. Moro, 68 Ohio App.3d 630, 637, 589 N.E.2d 416 (8th Dist.1990). An abuse of discretion implies that the court‘s attitude is arbitrary, unreasonable, or unconscionable. Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140 (1983).
{¶44} In challenging the trial court‘s reliance on Ranallo‘s opinion of CBHC‘s value, Arun argues that Ranallo‘s expert report failed to comply with evidentiary mandates of
{¶45} “A ruling concerning the admission of expert testimony is within the broad discretion of the trial court and will not be disturbed absent an abuse of discretion.” State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 57.
{¶46}
- The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
- The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
- The witness’ testimony is based on reliable, scientific, technical, or other specialized information. * * *
{¶47} Here, Arun does not challenge Ranallo‘s qualifications. Instead, he argues that Ranallo‘s methodology was unreliable due to his unfamiliarity with CBHC and its business structure.
{¶48} Whether an expert‘s opinion is admissible depends on whether the principles and methods employed by the witness to reach his opinion were reliable and not on whether his conclusions are correct. Bike Athletic Co., 80 Ohio St.3d at 611. See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
{¶49} In the case at hand, Ranallo opined, using the “capitalization of earnings method,” that the value of Arun‘s interest in CBHC was $1,919,000 as of December 31, 2008. In arriving at this value, Ranallo added back the annual cost of the CBHC defined pension plan and the cash surrender value of the CBHC officer life insurance policies valued at $601,738. In adding back the costs of the pension plan and life insurance policies, Ranallo testified that they were non-operating or non-recurring assets that are
{¶50} Although Ranallo testified that his valuation opinion was based on a reasonable degree of accounting certainty, he admitted in his expert report that
[d]ue to limited access to information and management, [his] analysis was not subject to the development or reporting standards set forth in the American Institute of Certified Public Accountants Statement of Standards for Valuation Services No. 1 (AICPA) nor the valuation standards as promulgated by the National Association of Certified Valuation Analysts (NACVA).
In particular, Ranallo stated that, although requested, he was not furnished the following information that could have impacted his determination of value:
(1) access to management or the opportunity to interview management * * *; (2) detail of certain balance sheet and income statement accounts; (3) corporate governance documents, significant contractual relationships, and other relevant business information; (4) details of previous ownership transactions; (5) budgets and/or projections for the company; and (6) organizational chart depicting corporate structure.
{¶51} In developing his report, Ranallo relied on CBHC‘s tax returns and financial statements from December 31, 2005 through December 31, 2008. Arun alleges that, because Ranallo‘s opinion was based primarily on financial documents, Ranallo had a lack of knowledge concerning CBHC‘s day-to-day operations, and therefore an insufficient foundation to construct an opinion as to its value. Specifically, Arun contends that Ranallo was unfamiliar with relevant aspects of CBHC, including Medicare and Medicaid regulations, the funding requirements for CBHC‘s defined pension plan, and the transferability of the company‘s license. However, Ranallo‘s testimony at trial
{¶52} In our view, Arun should not be rewarded for such conduct. As the magistrate noted, “[this] court cannot allow [Arun‘s] refusal to grant a management interview to prevent [Mona] from establishing a crucial part of her case, the value of the business.” Accordingly, we find any error associated with the basis of Ranallo‘s opinion to be invited. Tyler v. Tyler, 8th Dist. Cuyahoga No. 93124, 2010-Ohio-1428, ¶ 32 (“If a party elects to be less than forthcoming in the presentation of evidence, he has a right to do so, and any error resulting therefrom must be ‘invited‘“).
{¶53} Thus, within the confines of the information provided to him, we find that Ranallo‘s testimony and valuation report were reliable and based on a reasonable application of his disciplines, practices, and knowledge of the facts of this case. The record demonstrates that Ranallo considered relevant literature in his field and all financial data available to him, including CBHC‘s relevant tax returns and audited financial statements. Accordingly, we find no abuse of discretion in the court‘s reliance on Ranallo‘s opinion as to the value of CBHC.
{¶54} With respect to Mona‘s cross-appeal, we note that on cross-examination, Ranallo was asked to hypothetically consider the difference in CBHC‘s value if he did not make a normalized adjustment for the defined pension plan. Although reluctant to answer hypothetical questions, Ranallo determined that, if he did not “normalize out” the
DEFENSE COUNSEL: Okay, that’s 231 versus 1.9 million, correct?
RANALLO: No. No. That’s — that’s 231 against a million five thirty.
DEFENSE COUNSEL: 231 against a million five thirty?
RANALLO: Because the million five thirty or the 231, we would add the normalizing adjustment for the —
DEFENSE COUNSEL: I didn’t want you to state to us —
RANALLO: I’m trying to be real clear.
DEFENSE COUNSEL: So, it’s 231 now versus 1.5, correct?
RANALLO: Correct.
{¶55} Based on this exchange, the magistrate determined that Ranallo modified his opinion based on certain assumptions regarding the pension plan given to him by defendant’s counsel and reduced his opined value to 1.5 million dollars. The court finds that the assumptions he was asked to assume are applicable in this case as they reflect the financial realities of CBHC and that his reduced opined value of $1,500,000 is the appropriate value for the parties’ business entities.
{¶56} After a careful review of the record and the entirety of Ranallo’s cross-examination, we find that the magistrate erred in concluding that Ranallo had modified his opinion as to the value of the company. At no point during his cross-examination did Ranallo express that the posed hypothetical questions “reflected the financial realities of CBHC,” nor did he affirmatively state that he had reduced his opinion of the value to $1,500,000. Moreover, this court finds that the magistrate’s
{¶57} Based on the foregoing, we find that the trial court erred in concluding that the appropriate value of CBHC was $1,500,000. Consequently, we reverse the trial court’s valuation of Arun’s interest in CBHC and remand to the trial court to determine whether Ranallo’s opined value of $1,919,000 is appropriate.
{¶58} Arun’s first assignment of error is overruled. However, Mona’s first cross-assignment of error is sustained.
A. Temporary Spousal Support
{¶59} On filing for divorce, Mona requested temporary spousal support. On December 2, 2008, the trial court ordered Arun to pay $8,000 per month as support pendente lite commencing June 19, 2008. Within 30 days of this order, Arun placed himself on medical leave from CBHC and stopped drawing a salary. At the conclusion of trial, the magistrate reduced the temporary support order to $7,000 per month retroactive to January 15, 2009. The magistrate reasoned that the decision to reduce the support order by $1,000 per month was equitable given the fact that Arun was no longer receiving wages from CBHC.
{¶60} In his third assignment of error, Arun argues that the trial court erred by failing to reduce the temporary spousal support order to zero during the pendency of the divorce action based on Arun’s disability, age, and lack of earned income.
{¶61}
{¶62} In challenging the temporary spousal support order, Arun initially argues that the order was improper based on the court’s failure to hold a hearing on the issue, as required under
Upon request, in writing, after any temporary spousal support * * * is journalized, the court shall grant the party so requesting an oral hearing within twenty-eight days to modify the temporary order. A request for oral hearing shall not suspend or delay the commencement of spousal support or other support payments previously ordered or change the allocation of parental rights and responsibilities until the order is modified by journal entry after the oral hearing.
{¶63} After a careful review of the record, it is clear that a
{¶64} Moreover, even if this court were to find that the trial court acted improperly by failing to complete the hearing within 28 days of Arun’s motion pursuant to
{¶65} Here, Arun was not prevented from litigating the issue of temporary support at trial and, in fact, the issue was raised during the testimony of both parties and addressed in the magistrate’s decision, as evidenced by the court’s order to reduce the temporary support order by $1,000 from the date Arun went on medical leave. Thus, “[t]he divorce trial itself became a
{¶66} With respect to the amount of support ordered, Arun claims that the court erred in calculating the temporary support at $7,000 based on the significant reduction in his income following his retirement.
{¶67} After a careful review of the relevant documentation evidencing the parties’ income during the relevant time periods, we find no merit to Arun’s reliance on his retirement in early 2009. At trial, Mona presented Arun’s 2007 and 2008 tax returns, which indicated that while Arun was serving as the president of CBHC he earned a total estimated income of $796,653 in 2007 and $478,856 in 2008. The evidence further
{¶68} Arun’s third assignment of error is overruled.
B. Permanent Spousal Support
{¶69} In his fourth assignment of error, Arun argues that the trial court erred by awarding unreasonable and inappropriate spousal support to Mona.
{¶70} In determining whether to grant spousal support and in determining the amount and duration of the payments, the trial court must consider the factors listed in
{¶72} In this matter, the trial court sufficiently considered each of the factors set forth in
{¶73} In challenging the trial court’s analysis, Arun argues that the trial court erred in finding that his income is “measurably greater that Mona’s.” Arun contends that the
{¶74} With respect to Arun’s personal liability for proper funding of the CBHC pension plan, the record reflects that there was no underfunding of the plan at the time the trial concluded. Without evidence to support any notion that the pension was underfunded, we are unable to conclude that the trial court erred with respect to its consideration of the parties’ retirement benefits, pursuant to
{¶75} Finally, we find no merit to Arun’s theory of “double dipping.” Generally, a trial court may be found to have abused its discretion by allowing the payee spouse to “double dip” when a marital pension is divided as part of the property distribution and is subsequently included as income for purposes of establishing the support obligations of
{¶76} Based on the foregoing, we conclude that the decision of the trial court is well supported in the record, and there is competent, credible evidence going to all of the statutory elements for establishing a spousal support order. Therefore, we find no abuse of discretion in connection with this award.
{¶77} Arun’s fourth assignment of error is overruled.
IV. Attorney Fees
{¶78} In his seventh assignment of error, Arun argues that the trial court erred by requiring him to pay a portion of Mona’s litigation expenses and substantially all of her attorney fees.
{¶79} An award of attorney fees in a domestic relations action is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of
In an action for divorce * * * or an appeal of that action, a court may award all or part of the reasonable attorney’s fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.
{¶80} In the instant case, the court determined
that due to [Arun]’s conduct during this matter, his refusal to comply with various pretrial orders and discovery, and the fact that [Arun] had control over the vast majority of the parties’ assets and income, that it would be equitable for [Arun] to pay a portion of [Mona’s] attorney fees and litigation expenses.
Accordingly, the court ordered Arun to pay “as additional property division” $110,000 in attorney fees and $20,000 in litigation costs.
{¶81} After a careful review of the record, we find ample evidence to support the trial court’s finding that Arun’s conduct caused Mona to incur additional fees and expenses. Under these circumstances, we find that the trial court did not abuse its discretion, and the decision regarding attorney fees and costs is supported by competent, credible evidence. See, e.g., Klayman v. Luck, 8th Dist. Cuyahoga Nos. 97074 and 97075, 2012-Ohio-3354; Bain v. Levinstein, 8th Dist. Cuyahoga No. 94313, 2010-Ohio-5596.
{¶82} Arun’s seventh assignment of error is overruled.
{¶83} In his eighth assignment of error, Arun argues that the trial court erred by finding him in contempt in regard to the temporary support issues. Specifically, Arun contends that the trial court’s failure to conduct a
{¶84} In its opinion, the trial court found Arun to be in contempt “for failing to pay the temporary support orders, to obey other pretrial court orders, and produce a signed and notarized pretrial statement.” The court sentenced Arun to 30 days in jail or, in the alternative, to perform not less than 200 hours of community service in lieu of actual incarceration. The court stipulated that the sentence would be purged provided Arun pays spousal support in the sum of $150,000.
{¶85} At the outset, we recognize that an appellate court will not overturn a trial court’s finding of contempt absent an abuse of discretion. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). “Contempt is a disregard of, or disobedience to, an order or command of judicial authority.” First Bank of Marietta v. Mascrete, Inc., 125 Ohio App.3d 257, 263, 708 N.E.2d 262 (4th Dist.1998). The contempt process was created “to uphold and ensure the effective administration of justice[,] * * * to secure the dignity of the court[,] and to affirm the supremacy of law.” Cramer v. Petrie, 70 Ohio St.3d 131, 133, 637 N.E.2d 882 (1994).
{¶87} Initially, we note that, as previously addressed, the absence of a
{¶88} With respect to the merits of the trial court’s contempt order, we note that a party establishes a prima facie case of contempt by showing the non-payment of a spousal support order. See King v. King, 11th Dist. Geauga Nos. 2012-G-3068 and 2012-G-3079, 2013-Ohio-2038, ¶ 24. Once non-payment has been established, the burden shifts to the alleged contemnor to establish any defense he may have for
{¶89} In the case at hand, Arun was ordered to pay $8,000 per month as temporary spousal support commencing June 19, 2008. However, Arun simply refused to comply with the terms of the court’s order and has not met his burden of establishing an inability to pay. Further, Arun has failed to present any evidence or case law to support his position that the trial court’s purge conditions were unreasonable or impossible for him to satisfy. Marx v. Marx, 8th Dist. Cuyahoga No. 82021, 2003-Ohio-3536, ¶ 22.
{¶90} For these reasons, the trial court did not abuse its discretion in finding Arun in contempt for failing to comply with the court’s temporary spousal support order.
{¶91} Arun’s eighth assignment of error is overruled.
Mona’s Cross-Appeal
I. Shareholder Loan
{¶92} In her second cross-assignment of error, Mona argues that the trial court erred and abused its discretion in omitting the shareholder loan from the property division and not awarding it to Mona or Arun or allocating it between the parties. We agree.
{¶93} As reflected in CBHC’s 2008 tax return, CBHC has a shareholder loan payable to Arun in the sum of $405,071 as of December 31, 2008. In our view, the shareholder loan was made from funds acquired during the parties’ marriage, and therefore must be considered marital property. In completing his expert report, Ranallo considered the shareholder loan as a liability of CBHC. As explained by Ranallo, if a
{¶94} Because the shareholder loan was made with marital funds during the parties’ marriage, we find that the trial court erred in failing to allocate the value of the loan when dividing the parties’ marital property.
{¶95} Accordingly, Mona’s second cross-assignment of error is sustained, and the matter is remanded for equitable division of the shareholder loan.
II. Marital Debt
{¶96} In her third cross-assignment of error, Mona argues that the trial court erred and abused its discretion in determining that the line of credit account with KeyBank is a marital debt. Mona contends that the trial court’s consideration of the line of credit as a marital debt greatly impacted the determined equity in the parties’ marital home, located at 6584 SOM Court, Mayfield Village, Ohio 44143 (“SOM Court property”).
{¶97} The property to be divided in a divorce proceeding includes not only the assets owned by the parties, but also any debts incurred by the parties. Marrero v. Marrero, 9th Dist. Lorain No. 02CA008057, 2002-Ohio-4862, ¶ 43. “Marital debt has been defined as any debt incurred during the marriage for the joint benefit of the parties or for a valid marital purpose.” Gupta v. Gupta, 8th Dist. Cuyahoga No. 99005, 2013-Ohio-2203, ¶ 51, citing Ketchum v. Ketchum, 7th Dist. Columbiana No. 2001 CO 60, 2003-Ohio-2559, ¶ 47.
{¶98} For the purpose of clarifying some apparent confusion associated with the lines of credit at issue in this matter, we find it necessary to note that, as evidenced by defendant’s exhibit HHH, Arun obtained two separate home equity lines of credit during the parties’ marriage. The first line of credit was with KeyBank. The KeyBank line of credit was taken out in the names of Arun and Mona and had a balance of $224,650.07 at the time Mona’s complaint for divorce was filed. However, the evidence presented at trial demonstrated that this line of credit had an outstanding balance of $225,106.28 as of December 15, 2009.
{¶99} The second line of credit was with National City Bank. The record reflects that the National City line of credit was taken out by Arun, individually, on November 20, 2007, and had an outstanding balance of $235,970.13 as of December 18, 2009. The National City line of credit was secured by the SOM Court property.
{¶100} With respect to the line of credit with KeyBank, the record reflects that its outstanding balance was paid in full on December 18, 2009. Nevertheless, the trial court determined that the KeyBank line of credit was a marital debt, and it utilized the paid-off value of $225,106.28 to determine the available equity in the SOM Court property.
{¶101} After a careful review of the record in its entirety, we find that the trial court erred in utilizing the KeyBank balance to determine the parties’ marital debt. As stated, at the time of trial, the outstanding balance on the Key Bank account had been paid
{¶102} Accordingly, the National City line of credit secured against the SOM Court property was the only outstanding marital debt the trial court should have considered when determining the equity in the property. It appears that the trial court’s error in utilizing the KeyBank account to determine the equity in the SOM Court property was caused by the magistrate’s statements at page 31 of its decision, where the court seems to have commingled the two separate accounts, with two separate banks, and treated them as one account.
{¶103} Based on the foregoing, we find it necessary to remand this matter so that the trial court can properly determine the appropriate value of the marital debt associated with the outstanding balance of the National City line of credit. We note that on remand, the trial court will be required to address Mona’s arguments relating to Arun’s withdrawals against the National City line of credit while a court-ordered temporary restraining order was in place. As argued by Mona, the National City line of credit had an outstanding balance of $124,438 as of June 18, 2008. However, as evidenced by plaintiff’s exhibit No. 48 and defendant’s exhibit HHH, Arun made numerous withdrawals against the National City line of credit, thereby increasing the outstanding
{¶104} We note that the burden of proof lies with Mona to establish that the withdrawals made after June 19, 2008, were not made for a marital purpose. See Gupta at ¶ 51 (“[t]he party seeking to establish a debt is separate rather than marital bears the burden of proving this to the trial court”).
{¶105} Mona’s third cross-assignment of error is sustained.
III. Valuation of Marital Home
{¶106} In her fourth cross-assignment of error, Mona argues that the trial court erred and abused its discretion in determining that the fair market value of the SOM Court property was $351,500.
{¶107} In the case at hand, Arun purchased the SOM Court property for $399,900 on April 3, 2007. However, the record reflects that, prior to trial, the SOM Court property was appraised and valued at $351,500. In determining the value of the property for the purposes of dividing the marital property, the magistrate concluded that the appraisal was “the best evidence available as to the current value of the marital residence.”
{¶109} Moreover, a trial court has broad discretion to develop a measure of value when dividing marital property. Id. at ¶ 16. Under the circumstances presented herein, we are unable to conclude that the trial court abused its discretion in utilizing the appraisal to measure the value of the SOM Court property. Although Mona may wish that the home retained its value, the magistrate was well within her discretion to find that the purchase price was not an accurate refection of the property’s present value. Accordingly, we find that the magistrate’s determination that the fair market value of the SOM Court property was $351,500 is supported by competent, credible evidence.
{¶110} Mona’s fourth cross-assignment of error is overruled.
IV. Incorporation of Magistrate’s Findings
{¶112} In its decision, the magistrate stated: “The court finds that Arun’s unknown amount of equity in the Jane Street property is marital. * * * Both parties shall equally share the equity Arun has in 61 Jane Street, New York, New York, which exact dollar amount is unknown to the Court.”
{¶113} In his response brief, Arun concedes that the trial court incorporated the magistrate’s findings regarding the federal court judgment when it overruled his objection to the magistrate’s opinion regarding that issue. See Judgment Entry at 3 (“The Court hereby OVERRULES Defendant’s 5th, 6th, 7th, and 8th Objections”). Therefore, we find that the trial court incorporated the magistrate’s recommendation in its final entry.
{¶114} Mona’s fifth cross-assignment of error is overruled.
V. Arun’s Passport
{¶115} In her sixth cross-assignment of error, Mona argues that the trial court abused its discretion in sustaining Arun’s objection to the magistrate’s recommendation that he surrender his passport to the trial court’s bailiff.
{¶116} A trial court’s ruling on objections to a magistrate’s decision will not be reversed absent an abuse of discretion. Gobel v. Rivers, 8th Dist. Cuyahoga No. 94148, 2010-Ohio-4493, ¶ 16, citing Remner v. Peshek, 7th Dist. Mahoning No. 97-C.A.-98, 1999 Ohio App. LEXIS 4802 (Sept. 30, 1999).
{¶118} Accordingly, Mona’s sixth cross-assignment of error is overruled.
{¶119} The trial court’s judgment is affirmed in part and reversed in part. We remand this case to the trial court to correct the errors set forth in Mona’s first, second, and third cross-assignments of error.
It is ordered that appellee and appellant split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court, domestic relations division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, SR., J., and
EILEEN T. GALLAGHER, J., CONCUR
APPENDIX
Appellant’s Assignments of Error:
The trial court erred in its division of property by admitting the expert report of appellee, by determining that the value of appellant’s business was $1,500,000, and by allocating the asset to appellant. - The trial court erred in its division of property by not finding that Arun Chattree’s interest in the New York “cooperative apartment” was Arun Chattree’s separate property and by ignoring a $843,750 liability associated with the asset.
- The trial court erred by failing to reduce the temporary spousal support order to zero based on Arun Chattree’s disability, age, and lack of earned income.
- The trial court erred by awarding unreasonable and inappropriate spousal support to appellee.
- The trial court erred by not dividing appellant’s retirement benefits equally and by guaranteeing a “minimum” amount of benefits to appellee.
- The trial court erred by concluding that the cognovit judgment against Ritu Chattree was a marital asset and awarding Manorama Chattree and Arun Chattree each a one-half interest in the judgment.
- The trial court erred by requiring Arun Chattree to pay a portion of Manorama Chattree’s litigation expenses and substantially all of her attorney fees.
- The trial court erred by finding Arun Chattree in contempt in regard to the temporary support order.
Appellee’s Cross-Assignments of Error:
- The trial court erred and abused its discretion in determining the value of Community Behavioral Health Center was $1,500,000 when the evidence demonstrated that the fair market value of the business was $1,919,000.
- The trial court erred and abused its discretion in omitting the shareholder loan from the property division and not awarding it to appellee or appellant or allocating it between the parties.
- The trial court erred and abused its discretion in determining that the line of credit balance of $224,650.07 is a marital debt.
The trial court erred and abused its discretion in determining that the fair market value of the real property located at 6584 SOM Court, Mayfield Village, Ohio 44143 is $351,500 and consequently decreasing the equity associated with the real property. - The trial court erred when it failed to incorporate the magistrate’s recommendation regarding the allocation of the federal court judgment.
- The trial court abused its discretion in sustaining appellant’s objection to the magistrate’s recommendation that he surrender his passport to the trial court’s bailiff.