SUSANA E. LYKINS v. DONALD H. LYKINS
CASE NOS. CA2017-06-028, CA2017-06-032
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
6/4/2018
2018-Ohio-2144
Heyman Law, LLC, D. Andrew Heyman, 1212 Sycamore Street, Suite 36, Cincinnati, OH 45202, for appellee/cross-appellant
The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, OH 45202, for appellant/cross-appellee
S. POWELL, P.J.
{¶ 1} Appellant/cross-appellee, Donald H. Lykins (“Husband“), and appellee/cross-appellant, Susana E. Lykins (“Wife“), appeal from a final decree of divorce issued by the Clermont County Court of Common Pleas, Domestic Relations Division, in this highly
{¶ 2} Husband and Wife were married on August 31, 1996 in Cincinnati, Ohio. The couple have two children born issue of the marriage; specifically, two daughters, Emma and Lilly, born on November 28, 2004 and September 6, 2006, respectively. On June 2, 2015, after being married for nearly 19 years, Wife, who is Peruvian and speaks Spanish as her native language, filed a complaint for divorce. In support of her complaint, Wife alleged Husband was guilty of gross neglect of duty and extreme cruelty, thereby rendering her and Husband incompatible as marriage partners. Two weeks later, on June 16, 2015, Husband filed his answer denying Wife‘s allegations. The trial court thereafter issued a number of temporary orders regarding the children, generally referred to as a “nesting plan” in that the children remained in the marital residence with Husband and Wife exercising their parenting time with the children in the home. The trial court also appointed the children with a guardian ad litem.
{¶ 3} After numerous pre-trial motions were decided, including seemingly endless competing motions for contempt, an initial hearing on Wife‘s complaint for divorce was held on January 23 through 25, 2017, with a final hearing scheduled to take place on May 5, 2017. At this initial hearing, the trial court heard lengthy testimony from numerous witnesses regarding the grounds for divorce, allocation of parental rights, and division of property, including testimony from both Husband and Wife, as well as the guardian ad litem.
{¶ 4} At the conclusion of this hearing, the trial court issued a judgment entry finding
{¶ 5} On February 3, 2017, the trial court issued a 23-page decision expounding upon its prior judgment entry designating Wife as the children‘s sole residential parent. As part of this decision, the trial court summarized the relevant testimony and determined that a shared parenting plan was not in the best interest of the children given the history of conflict between Husband and Wife, as well as Husband‘s demeanor throughout the lengthy divorce proceedings.3 Specifically, as the trial court found, and which the record confirms,
{¶ 6} On April 28, 2017, the trial court issued a 36-page decision regarding contested property issues, the allocation of debt and expenses, child support, spousal support, and income. As relevant here, the trial court found it necessary to impute $38,682 in income to Husband resulting from the parties’ rental properties Husband received as part of their stipulated partial property settlement. The trial court reached this figure by reducing Husband‘s $58,000 in imputed gross annual rental income by $19,318, the amount Husband would spend on normal and expected expenses for the rental business based on the record properly before the trial court. The trial court, however, did not impute any income to Wife, an attorney licensed in both Ohio and Indiana, upon finding Wife made
{¶ 7} Continuing, as it relates to the rental properties, the trial court found the “retro appraisal methodology” used by Husband‘s expert witness, Robert Binger, “appropriate for the appraisal industry and for purposes of establishing fair market values at the time near the date of the marriage in 1996, October or November 1996.” However, as it relates to the fair market value of those same properties as of March 1, 2016, the trial court determined Wife‘s expert witness, Martin Rueve, “provided a fair market appraisal of the properties which the Court finds was appropriate for purposes of the appraisal industry and purposes of this case.” Therefore, based on those figures adopted by the trial court, the change in fair market value for those rental properties were as follows:
| Property | 1996 Value | 2016 Value | Increase/Decrease |
|---|---|---|---|
| 2875 Millbank Road | $69,000 | $90,000 | $21,000 |
| 8413 Reading Road | $95,000 | $45,000 | ($50,000) |
| 8415 Reading Road | $90,000 | $39,000 | ($51,000) |
| 8424 Reading Road | $125,000 | $150,000 | $25,000 |
| Total | $379,000 | $324,000 | ($55,000) |
{¶ 8} As for who managed these properties, the trial court found Husband actively managed the rental properties both before and after his marriage to Wife, thereby finding Husband‘s testimony that some other person managed the properties not credible. As it relates to the net income from these rental properties, the trial court found “the net income from the four rentals was marital income due to being placed in the joint bank account, but the reduction of the mortgage balances in the properties is not marital property.” In so holding, the trial court found that it would be inequitable “to find that the reduction in equity of [Husband‘s] separate property should be found to be marital property, particularly in light
{¶ 9} As it relates to spousal support, the trial court found that for purposes of spousal support determination, Husband had an annual income of just under $134,000, whereas Wife had an annual income of $75,000, a difference of nearly $60,000. The trial court also determined that after an equitable division of all assets and the deduction of liabilities, Husband had a net worth of over $1,000,000, which was almost $400,000 more than that of Wife. The trial court, therefore, found it equitable to award Wife spousal support in the amount of $75,000. The trial court based its decision on the fact that the parties had been married for nearly 19 years at the time Wife filed for divorce, that Wife owed Husband over $115,000 for his interest in the marital residence, that Husband was receiving nearly $80,000 more in assets than Wife, that Husband “has approximately 30% more in annual income than [Wife],” and that Wife had been designated as the residential parent of the parties’ two minor children, who at that time were ages ten and twelve. As for how that spousal support was to be paid, the trial court awarded Wife “an additional $75,000 as spousal support in the parties’ marital residence,” which was to be deducted from the amount Wife owed Husband for his interest in the marital home.
{¶ 10} As for child support, the trial court determined that Husband would pay spousal support, the amount of which would be determined following the final hearing scheduled on May 5, 2017 after accepting additional testimony and evidence on Wife‘s then current income. The trial court also found it necessary to accept additional testimony and evidence regarding Wife‘s request for attorney fees, as well as Husband‘s parenting time based on “what has occurred since the Court announced and filed the [judgment entry] on allocation of parental rights” on January 25, 2017.
{¶ 12} In regards to the trial court‘s award of spousal support, the trial court decided that it was necessary to reconsider its prior decision and modify its $75,000 spousal support award. To that end, the trial court instead ordered Husband to pay Wife spousal support in the amount of $600 per month (or $7,200 annually) for a period of seven years (for a total of $50,400), or until Wife remarries or establishes cohabitation with another person, whichever occurs first. As for the trial court‘s award of child support, since Wife would provide for the children‘s health insurance, the trial court ordered Husband to pay approximately $1,800 per month in child support (or nearly $21,600 annually). The record, however, indicates the trial court came to this figure without first deducting Husband‘s annual spousal support obligation from his income on the child support computation worksheet, nor did the trial court include Wife‘s annual spousal support award as part of her income on that same child support computation worksheet.
{¶ 14} The trial court also found Husband had refused to provide Wife with a detailed accounting of the rental properties, “such as leases for the units, actual rental receipt records, receipts for alleged cash expenditures and for credit card entries that he claimed were for the rentals.” According to the trial court, Husband‘s failure to provide such documentation required both Wife‘s trial counsel and the trial court to review the extensive records submitted in this case and “extrapolate or impute the rental income” to Husband, a daunting task that took many hours to complete. Or, as Wife‘s trial counsel stated, this required him to “go to extenuating circumstances to get the information as best as he could” despite the trial court ordering Husband to provide Wife the requested documentation.
{¶ 15} Furthermore, as it relates to Husband‘s demeanor throughout the pendency of this case, the trial court found:
[Husband‘s] demeanor throughout this case has been one of
disparaging [Wife],6 her counsel,7 the magistrate and judges, even the entire Domestic Relations Court staff in his motions for a change of venue, to reconsider, to modify and in his testimony.8 [Husband] contacted [Wife‘s] counsel even while he was represented and sent him emails threatening to sue him for any fees incurred by [Husband] if he did. He and his counsel of record filed motions that were duplicative. By the Court‘s calculation, [Husband] filed eight motions seeking to modify the original temporary orders filed on July 29, 2015 or other orders that were filed in response to those motions. Several motions to “reconsider” prior rulings were filed. Clearly, his actions have made this case far more complicated and time consuming than it should have been and has caused [Wife] to incur additional attorney fees as well as causing additional court costs.
{¶ 16} Finally, in regards to Husband‘s parenting time, the trial court determined that Husband‘s parenting time would generally remain the same as outlined in its January 25, 2017 judgment entry allocating parental rights and responsibilities, except now that if either of the children have sports practice on Thursday evenings, Husband shall now be permitted to have the children on another weekday evening. In so holding, the trial court noted that since issuing that judgment entry, Husband had spent less time with the children than what was originally allocated by the trial court, that he had not communicated as frequently with the children, that he had not yet moved into his new residence, and that he had not attended most of the children‘s sporting events.
{¶ 17} On May 23, 2017, the trial court issued its final decree of divorce. Husband
{¶ 18} Husband‘s Assignment of Error No. 1:
{¶ 19} THE TRIAL COURT ERRED AS A MATTER OF LAW IN ALLOCATING PARENTAL RIGHTS AND RESPONSIBILITIES AS IT WAS NOT IN THE BEST INTEREST OF THE CHILDREN.
{¶ 20} In his first assignment of error, Husband argues the trial court erred by designating Wife as the children‘s sole residential parent rather than ordering shared parenting. Husband also argues the trial court erred by awarding him less than equal parenting time with the children. We disagree.
Wife Designated Children‘s Sole Residential Parent
{¶ 21}
{¶ 22} With regard to whether shared parenting is in the child‘s best interest, the trial court must consider the additional factors set forth in
{¶ 23} An appellate court reviews a trial court‘s custody determination for an abuse of discretion. In re S.K., 12th Dist. Butler No. CA2013-06-108, 2014-Ohio-563, ¶ 12. An abuse of discretion implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. In re B.K., 12th Dist. Butler No. CA2010-12-324, 2011-Ohio-4470, ¶ 12, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The discretion that a trial court enjoys in custody matters ““should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.“” In re J.M., 12th Dist. Warren No. CA2008-12-148, 2009-Ohio-4824, ¶ 17, quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “[A]n appellate court affords deference to a judge or magistrate‘s findings regarding witnesses’ credibility.” In re D.R., 12th Dist. Butler Nos. CA2005-06-150 and CA2005-06-151, 2006-Ohio-340, ¶ 12.
{¶ 24} As noted above, Husband argues the trial court erred by designating Wife as
{¶ 25} It is clear that Husband vehemently disagrees with the trial court‘s decision to designate Wife as the children‘s sole residential parent. Yet, other than highlighting the testimony indicating he was a loving, affectionate, and engaged parent that was actively involved in the children‘s lives, including the children‘s activities in their school‘s drama, chess, and robotics clubs, Husband has failed to demonstrate how the trial court abused its discretion in issuing such a decision. This is because, as noted above, the discretion that a trial court enjoys in custody matters ““should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned.“” In re J.M., 2009-Ohio-4824 at ¶ 17, quoting Miller, 37 Ohio St.3d at 74.
{¶ 26} Husband believes the trial court‘s decision to designate Wife as sole residential parent was meant to “punish” him for his “strong personality.” Nothing in the record supports such a claim. Rather, as the trial court specifically stated, “I think you‘re a
{¶ 27} There is also nothing in the record to support Husband‘s claim that the guardian ad litem “hates” him and was biased against him. This is true despite Husband‘s unbecoming, aggressive behavior directed at the guardian ad litem throughout the pendency of this matter.9 Nor is there any evidence to indicate the guardian ad litem‘s recommendation to designate Wife as the children‘s sole residential parent was based on her “lack of experience in handling family law and GAL matters” as Husband now suggests. This is particularly true here considering the guardian ad litem has served in that capacity for over five years.
{¶ 28} Again, after a full and thorough review of the record, we find the trial court‘s decision to designate Wife as the children‘s sole residential parent was not an abuse of discretion. This includes, as the trial court found, “overwhelming” evidence that Wife was more likely to honor and facilitate court ordered parenting time. As Wife testified:
[WIFE‘S TRIAL COUNSEL]: And you have all intentions of honoring any court order with regard to parenting time for either you or [Husband]?
[WIFE]: Yes.
[WIFE‘S TRIAL COUNSEL]: So you have an expectation that [Husband] would follow all court orders, do you believe that he would?
[WIFE]: If history has anything to say I‘m sure that if he doesn‘t agree with the court order he will defy it, he will most certainly defy it, I don‘t expect him to follow a court order that he doesn‘t agree with.
[WIFE‘S TRIAL COUNSEL]: And that‘s based on just innuendo or past examples of that?
[WIFE]: No, the past examples, you know, the temporary orders with respect to occupancy, the temporary orders with respect to covering certain bills, yeah, no, the Court‘s order specifically not to talk to the girls about what happened in chambers.
Wife also testified, “I have always and I will always check with [Husband] when it has anything to do with the girls, I will always get his input because they‘re both our girls. It‘s just that I don‘t get the same courtesy from him.” We agree with the trial court‘s findings for the record fully supports Wife‘s testimony.
{¶ 29} In reaching this decision, we find it appropriate to further note that there is nothing in the record to support Husband‘s claims that Wife is an alcoholic who is “addicted to the internet” as Husband alleged during the initial hearing before the trial court. We also reject Husband‘s claim that Wife should shoulder all the blame for their current situation and that of their children, both of whom the record indicates have faced some difficulty during these highly contentious divorce proceedings. As the trial court found, Husband‘s reaction to any perceived slight was to “blame [Wife] instead of thinking about what was good for the child.” The best interest of the children should take priority over all else. Therefore, finding no error in the trial court‘s decision, a decision we note comports with the guardian ad litem‘s recommendation, Husband‘s argument that the trial court abused its discretion in designating Wife as the children‘s sole residential parent rather than ordering shared
Husband‘s Parenting Time
{¶ 30} Just as with the trial court‘s decision regarding the award of parental rights and responsibilities, in determining parenting time for a nonresidential parent, the primary concern is the best interest of the children. Carr v. Carr, 12th Dist. Warren Nos. CA2015-02-015 and CA2015-03-020, 2016-Ohio-6986, ¶ 47. “In establishing a specific parenting time schedule, a trial court is required to consider the factors set forth in
{¶ 31} “The trial court has broad discretion in deciding matters regarding the visitation rights of nonresidential parents.” Shafor v. Shafor, 12th Dist. Warren No. CA2008-01-015, 2009-Ohio-191, ¶ 7. Therefore, while a trial court‘s decision regarding visitation time must be just, reasonable, and consistent with the best interest of the child, this court will not reverse the trial court‘s decision absent an abuse of discretion. Lott v. Naylor, 12th Dist. Butler No. CA2017-02-029, 2017-Ohio-9267, ¶ 12, citing Wilson v. Redmond, 12th Dist. Madison No. CA2003-09-033, 2004-Ohio-3910, ¶ 9. As noted above, an abuse of
{¶ 32} Husband argues the trial court erred by awarding him with less than equal parenting time with the children. In support, Husband initially argues the trial court failed to make any findings concerning the factors set forth in
{¶ 33} Although the record is clear that the children love Husband and enjoy spending time with him, the trial court‘s decision awarding Husband with less than equal parenting time with the children was not an abuse of discretion, a decision that we again note comports with the guardian ad litem‘s recommendation. Husband argues the trial court‘s decision “unreasonably” limits his ability to be actively involved in the children‘s academics and extracurricular activities. We find this argument disingenuous considering the fact that, during the May 5, 2017 final hearing, Husband specifically stated that he “can‘t afford to take the kids on weekends because [he] can‘t afford to feed them.” Husband cannot have it both ways.
{¶ 34} Moreover, as the trial court found as part of its May 16, 2017 decision outlining
{¶ 35} In reaching this decision, we again reject Husband‘s claim that the trial court “appear[s] to punish him for what it perceived as his behavior [.]” As noted above, nothing in the record supports such a claim. There is also nothing to support Husband‘s claim that the trial court judge is “a biased judge,” a claim Husband admitted to saying to his children prior to their in camera interviews. Rather, as the trial court stated during the initial hearing in this matter, “I don‘t take offense to you calling me biased, if you hadn‘t I‘d have been shocked because you‘ve called everybody biased in this, but that‘s got nothing to do with my ruling.” (Emphasis sic.)
{¶ 36} Finding no error in the trial court‘s decision, Husband‘s argument that the trial court abused its discretion by awarding him with less than equal parenting time lacks merit. If Husband, who has an annual salary of $95,000 per year, truly believes that his parenting time with his children would merely consist of “sit[ting] at home all day and eating baloney sandwiches” as he stated during the May 5, 2017 final hearing, Husband should not now be arguing the trial court‘s decision to award him with less than equal parenting time constitutes an abuse of discretion. Parenting is not about how much money you can spend,
{¶ 37} Husband‘s Assignment of Error No. 2:
{¶ 38} THE TRIAL COURT ERRED AS A MATTER OF LAW BY AWARDING SPOUSAL SUPPORT TO WIFE.
{¶ 39} In his second assignment of error, Husband argues the trial court erred by awarding Wife $600 in monthly spousal support. We find no merit to Husband‘s claim.
{¶ 40} Pursuant to
{¶ 41} A trial court has broad discretion in determining spousal support awards.
No Imputed Income to Wife
{¶ 42} Husband initially argues the trial court erred by not imputing additional income to Wife in considering its award of spousal support because she was voluntarily underemployed. We disagree.
{¶ 43} In determining an award of spousal support, the trial court must determine both parties’ annual income. Marron v. Marron, 12th Dist. Warren Nos. CA2013-11-109 and CA2013-11-113, 2014-Ohio-2121, ¶ 44. The statutory section on spousal support,
{¶ 44} As with other spousal support determinations, findings of whether a party is voluntarily underemployed, and the amount of income that should be imputed, if any, are factual determinations to be made by the trial court based on the circumstances of each
{¶ 45} It is undisputed that Wife is an attorney licensed in both Ohio and Indiana who, at the time of the final hearing held on May 5, 2017, had an annual income of $76,500 per year with the potential of making $105,000 per year if she obtained certain incentives set forth by her employer. Although Wife testified that she was “[a]bsolutely” working towards meeting those incentives, Husband faults Wife for not yet reaching those incentives claiming Wife “made excuses” for why she had yet to receive any increases to her annual salary. Husband, however, failed to provide any evidence that Wife was not working up to her abilities as a licensed attorney, nor any evidence that she may have been neglecting her duties set forth by her employer.
{¶ 46} Moreover, just as the trial court found, the determination of whether Wife has met her employer‘s performance goals, thereby entitling her to an increase in her annual salary, is up to her employer, not the trial court. The same is true for this court on appeal. This was confirmed by Wife‘s testimony, wherein Wife agreed that it was up to her employer, not her, as to whether she was entitled to an increased annual salary. Simply stated, the fact that Wife had yet to obtain an increase in her salary – a decision that is left to the sole discretion of her employer – does not mean Wife is voluntarily underemployed. Husband‘s claim otherwise lacks merit.
{¶ 47} We also find no merit to Husband‘s claim that Wife should be found underemployed based on the testimony of Robert Breslin, a vocational expert Husband
retained for the purposes of assessing Wife‘s earning potential based on her age, education, prior work history, and acquired skills as an attorney employed in the greater Cincinnati area. According to Breslin, based on her fourteen years of experience as an attorney, Wife had a reasonable earning capability of $135,305 per year. Yet, as the record reveals, Breslin based his opinion on public statistical data of attorneys employed in the greater Cincinnati area, for which there is no valid data for earnings of attorneys based on practice area or specialty, such as creditor‘s rights. Breslin also testified that he did not take into consideration the time it might take for an attorney to obtain employment or the employment rates, nor was Breslin aware of the number of job openings for attorneys within the geographical area from which his data was derived.{48} Despite this, Husband claims Wife is underemployed because she was earning approximately $60,000 less than what Breslin opined was a reasonable estimate of her earning capability. However, as this court has stated previously, “the trial court is free to accept or reject the opinion of a vocational expert witness who testifies to [a husband or wife‘s] earning capacity.” Sheehy v. Sheehy, 12th Dist. Clermont No. CA2010-01-007, 2010-Ohio-2967, ¶ 16. This is particularly true here considering Breslin never testified that Wife was underemployed, instead testifying, “I don‘t know if I would say she was underemployed,” only that Wife was earning less than what he believed was Wife‘s earning capability. Explaining further, when specifically asked on cross-examination if Wife was underemployed, Breslin testified, “No. As I said, I... what I‘d said was that her earnings were less than... they‘re below average.” Even though working as an attorney since graduating law school in 2002, it is undisputed that Wife has never earned an annual salary of more than $99,000 per year.
{49} We agree with the trial court that Wife made bona fide good faith efforts to
{50} In reaching this decision, we note that while Husband is now employed at an annual salary of $95,000 per year (with the potential for an additional $6,100 incentive bonus), Wife does not claim that Husband is underemployed merely because he had previously been employed at an annual salary of $120,000 per year. As the trial court found, and with which we agree, “the fact that a person‘s reemployment at a lower salary than a prior job or even at less than the average for a geographical area does not mean that the person is voluntarily underemployed.” Therefore, finding no error in the trial court‘s decision denying Husband‘s request to impute additional income to Wife in considering its award of spousal support, Husband‘s argument to the contrary lacks merit.
Imputed Income to Husband
{51} Husband next argues the trial court erred by imputing an additional $31,482 in income to him from the parties’ rental properties. We disagree.
{52} As noted above, in determining an award of spousal support, the trial court must determine both parties’ annual income. Marron, 2014-Ohio-2121 at ¶ 44. In making such a determination, the trial court “may impute income to a party who is voluntarily unemployed, voluntarily underemployed, or otherwise not working up to his or her full earning potential.” Moore, 2007-Ohio-4355 at ¶ 66. The decision to impute income for purposes of spousal support is within the discretion of the trial court and shall not be overruled absent an abuse of that discretion. Corwin, 2013-Ohio-3996 at ¶ 63.
{53} Husband claims the trial court erred by imputing an additional $31,482 in income to him from the rental properties because the “rental properties did not actually earn income[.]” In support of this claim, Husband relies heavily on his own testimony, and that of the Schedule E submitted as part of the parties’ 2015 jointly filed tax return, wherein he claimed all rental revenue he received from the rental properties went towards paying expenses to maintain the properties, including taxes and insurance. The trial court, however, found the total rental income listed on the Schedule E had been grossly understated based on number of fair rental days reported. For instance, as it relates to the house located at 8413 Reading Road rented at $600 per month, although claiming that property had been rented for 300 fair rental days (10 months) on the Schedule E, thus generating $6,000 in rental income, no income was reported. The same is true regarding the warehouse on that same property, which Husband reported as being rented for a full 365 fair rental days, yet no income was reported. This comports with Wife‘s testimony that Husband routinely told her not to worry about money since “we have the rentals,” “[w]e have money coming from there. We‘re fine, don‘t worry,” as well as testimony and evidence indicating the rental properties generated income averaging $5,000 to $6,000 a month.
{54} The trial court also found Husband‘s testimony that he had no records as to
{55} In reaching this decision, we reject Husband‘s claim that the trial court should have concluded the rental properties did not actually earn any income based on a letter from an accountant, Robert L. Sicking, Jr., wherein Sicking stated that he had reviewed the parties’ joint income tax returns from 1996 to 2015 and believed the expenses listed for the rental properties during those years appeared to be normal and reasonable, thereby establishing no income from the rental properties for those tax years.10 As this court has
Spousal Support Award to Wife
{56} Husband argues the trial court erred by awarding Wife with $600 in monthly spousal support because it failed to consider all statutory factors listed in
{57} We also find no merit to Husband‘s claim that awarding Wife with $600 in monthly spousal support was “grossly inequitable and unreasonable” when considering the duration of their marriage and the parties’ individual incomes. As the trial court found, the parties maintained an upper middle-class standard of living during the marriage, thus necessitating some type of spousal support award since Husband received nearly $80,000 more than Wife after the division of assets and deduction of their liabilities. The record further indicates that Husband has a net worth of over $1,000,000, which is almost $400,000 more than Wife. Therefore, when considering the record properly before this court, we find no error in the trial court‘s decision to award Wife with $600 in monthly spousal support. Accordingly, having found no merit to any of the claims Husband raised herein, Husband‘s second assignment of error is overruled.
{58} Husband‘s Assignment of Error No. 3:
{59} THE TRIAL COURT ERRED BY INCORRECTLY CALCULATING HUSBAND‘S CHILD SUPPORT OBLIGATION.
{60} In his third assignment of error, Husband argues the trial court erred by calculating his monthly child support obligation. In support, Husband again argues the trial court erred by imputing income to him without also imputing income to Wife. As discussed more fully above, we find no merit to Husband‘s claims. However, we do find merit to Husband‘s claim that the trial court erred by failing to deduct Husband‘s annual spousal support obligation from his income on the child support computation worksheet, while also failing to include Wife‘s annual spousal support award as part of her income on that same child support computation worksheet. “Pursuant to
{61} Husband‘s Assignment of Error No. 4:
{62} THE TRIAL COURT ERRED BY ORDERING HUSBAND TO CONTRIBUTE TOWARDS WIFE‘S ATTORNEY FEES.
{63} In his fourth assignment of error, Husband argues the trial court erred by ordering him to pay $10,000 towards Wife‘s attorney fees. We disagree.
{64} Pursuant to
{65} It is well-established that an award of attorney fees is within the sound discretion of the trial court. Casper v. Casper, 12th Dist. Warren Nos. CA2012-12-128 and CA2012-12-129, 2013-Ohio-4329, ¶ 62. Therefore, a trial court‘s decision to award attorney
{66} The trial court did not err by ordering Husband to pay $10,000 towards Wife‘s attorney fees. As noted above, while the trial court went into great detail further explaining its decision regarding its award of attorney fees, suffice it to say we find no error in the trial court‘s decision finding such an award was appropriate considering Husband “fail[ed] to comply with discovery requests, filed improper discovery requests and filed numerous repetitive or unnecessary motions that caused [Wife] to incur an extraordinary amount of attorney fees in this case.” This also includes, as the trial court found, “numeral motions that were frivolous such as a motion to limit the guardian ad litem‘s activities in the case and repeated motions to reconsider or to modify temporary orders when he had been informed that the final determination of those matters would be made at the final hearing.”
{67} Although Husband appeared pro se during a majority of these proceedings, we find that to be no excuse for Husband‘s actions. That is because individuals who appear “pro se are held to the same standard as litigants who are represented by counsel.” Jones v. Nichols, 12th Dist. Warren No. CA2012-02-009, 2012-Ohio-4344, ¶ 23, citing State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688, ¶ 1. The same is true regarding Husband‘s demeanor and unnecessary hostility towards Wife, Wife‘s trial counsel, and the trial court and its staff. Therefore, finding no error in the trial court‘s decision ordering Husband to pay $10,000 towards Wife‘s attorney fees, Husband‘s fourth assignment of error is overruled.
{68} Wife‘s Cross-Assignment of Error:
{69} THE TRIAL COURT ERRED IN FAILING TO AWARD WIFE AN EQUITABLE SHARE OF THE CURRENT VALUE OF THE RENTAL PROPERTIES.
{70} In her single cross-assignment of error, Wife argues the trial court erred by failing to award her with an equitable share of the current value of the rental properties. We disagree.
Rental Properties’ Fair Market Value
{71} Wife initially argues the trial court erred by finding the “retro appraisal methodology” used by Husband‘s expert witness, Robert Binger, “appropriate for the appraisal industry and for purposes of establishing fair market values at the time near the date of the marriage in 1996, October or November 1996.” Wife instead argues that the trial court should have based its decision on the testimony from her expert witness, Martin Rueve. Wife‘s argument is essentially that her expert witness was more credible than that of Husband‘s expert witness. We disagree.
{72} As this court has stated previously, as the trier of fact, the trial court was in the best position to judge the credibility of her expert‘s testimony regarding the fair market value of the rental properties, as well as the processes used by the parties’ expert witnesses in reaching the conclusions that they did. McCarty v. McCarty, 12th Dist. Warren Nos. CA2016-07-055 and CA2016-07-056, 2017-Ohio-5852, ¶ 46. Therefore, while the record contains contradictory evidence regarding the rental properties’ true fair market value, we find no abuse of discretion in the trial court‘s decision to utilizing the figures espoused by Husband‘s expert rather than that of Wife‘s expert. In so holding, we note that Binger himself testified that “it‘s not unusual for [him] to do this type of work” and that it was “no different than the way we would do it today.” Binger also testified that the purchase of the
Equitable Distribution of Property
{73} Wife next argues the trial court erred by failing to award her with her equitable share of the rental properties, a figure she calculates to be nearly $100,000. Based on the parties’ stipulated partial property settlement, Husband was to receive all of the rental properties as part of the trial court‘s decision regarding the distribution of property, which the trial court determined had a fair market value as of March 1, 2016 of $324,000. The trial court also determined, and Wife does not dispute, that the mortgages on the rental properties were paid from the rental proceeds deposited into the parties’ joint marital account, not from either parties’ annual salaries earned from their respective employers.
{74} Although not explicit, the record is clear that the trial court found an equal division of marital property would be inequitable, a finding that is permitted under
{75} In this case, the trial court fashioned what it determined to be an equitable division of property in this highly contentious divorce proceeding after hearing four days of testimony and reviewing documentary evidence totaling thousands of pages. After a full
{76} Judgment affirmed in part, reversed in part, and remanded to the trial court for a redetermination of Husband‘s child support obligation.
HENDRICKSON and M. POWELL, JJ., concur.