NATALIE L. DEMCHIK MADCHARO v. DAVID L. MADCHARO
C.A. No. 14CA010547
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 8, 2015
[Cite as Madcharo v. Madcharo, 2015-Ohio-2191.]
HENSAL, Presiding Judge.
STATE OF OHIO COUNTY OF LORAIN ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11 DR 073454
Dated: June 8, 2015
HENSAL, Presiding Judge.
{¶1} Natalie Madcharo appeals a judgment entry of divorce from the Lorain County Court of Common Pleas. For the following reasons, this Court affirms in part and reverses in part.
I.
{¶2} David and Natalie Madcharo married in January 2003. Husband has a Master’s of Business Administration and works as a college instructor. Wife did not work throughout the marriage because of health issues. She began receiving Social Security Disability benefits in 2008. The parties have no children together.
{¶3} In March 2011, Wife filed a complaint for divorce. Following a hearing, the trial court divided the parties’ debts and assets and granted them a divorce. In its judgment, the court ordered Husband to pay Wife $800.00 for 30 months in spousal support. Wife has appealed the court’s decision, assigning two errors.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S DECLARATION THAT THE ENTIRE BALANCE OF APPELLANT’S FIFTH THIRD BANK ACCOUNT NO. X98320 CONSISTED ENTIRELY OF MARITAL FUNDS IS AGAINST THE MANFIEST WEIGHT OF THE EVIDENCE.
{¶4} Wife argues that the trial court incorrectly found that a savings account that she has at Fifth Third Bank was marital property. Although she admits that $15,000 of the funds that were in the account came from the parties’ joint checking account, she contends the rest was her separate property. She argues that the court’s finding was against the manifest weight of the evidence.
{¶5}
{¶6} When reviewing the manifest weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001). Manifest weight of the evidence pertains to
{¶7} Wife testified that her Fifth Third savings account had a balance of $48,312.66. When asked whether she had that money before the marriage, Wife answered: “The vast majority of the money, yes, was transferred from my Third Federal checking account * * * [a]nd there is some that was transferred from our joint account.” Wife had previously testified that the source of the funds in her Third Federal checking account was “deposits from my Social Security Disability,” which she began receiving during the marriage. On cross-examination, she admitted that Husband’s temporary spousal support payments had also gone into the checking account.
{¶8} “The party seeking to have a particular asset classified as separate property has the burden of proof, by a preponderance of the evidence, to trace the asset to separate property.” Fetzer at ¶ 24, quoting Eikenberry v. Eikenberry, 9th Dist. Wayne No. 09CA0035, 2010-Ohio-2944, ¶ 19. Wife did not present any evidence regarding what the balance of her savings account was at the time of the marriage, and her testimony suggests that the money in the account was from marital sources. Accordingly, we conclude that the trial court did not lose its way when it found that Wife failed to establish that the majority of the funds in her savings account were separate property. We cannot say that the trial court’s finding was against the manifest weight of the evidence. Wife’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING APPELLANT AN INEQUITABLE AND UNCONSCIONABLE AMOUNT OF SPOUSAL SUPPORT.
{¶9} Wife argues that the trial court abused its discretion when it determined her spousal support.
{¶10} One of the factors that a court must consider in determining spousal support is the “relative earning abilities of the parties.”
{¶11} In a divorce action, a spouse does not have to present expert testimony that her medical problems prevent her from earning a living. See DeRaud v. DeRaud, 7th Dist. Mahoning No. 89 C.A. 137, 1991 WL 83069, *3 (May 13, 1991); Bunjevac v. Bunjevac, 8th Dist. Cuyahoga No. 80069, 2002-Ohio-2956, ¶ 45-51. “[T]he crucial focus is whether the party asserting a disability presents evidence explaining how her disability limits his or herself.” Albrecht v. Albrecht, 11th Dist. Trumbull No. 2013-T-0124, 2014-Ohio-5464, ¶ 22.
{¶12} Wife testified that she suffers from an extensive list of health problems, some of which were a consequence of her treatment for cancer. She testified that one of her most
{¶13} Although the trial court found that Wife is in poor health, it found that there was “no proof” of a causal relationship between her health condition and her ability to work, apparently, because she did not present an expert witness. As explained earlier, however, Wife was not required to submit expert testimony on causation.
{¶14} Wife also argues that the trial court erred when it found that her claimed monthly expenses were in excess of her monthly income and that the excess expenses “were composed of medical expenses and attorney’s fees.” According to Wife, the court failed to acknowledge that, even if you deduct the medical expenses and attorney fees from her monthly budget, her claimed monthly expenses still exceed her income by about $400.
{¶15} Having reviewed Wife’s expense report and supporting documentation, we notice a few discrepancies. First, while she claimed that her monthly cell phone bill was $140, the bill she submitted indicated that her balance for the prior month was only $66. The electric bill she
{¶16} Wife next argues that the trial court incorrectly calculated Husband’s monthly income and expenses. According to Husband, his base salary is $44,100. He also receives $1,288 per month to purchase benefits such as health insurance. Husband testified that he was currently spending $1,000 on health insurance, but that it would drop to $500 after the divorce. Husband admitted that he will continue receiving the full $1,288 each month after the divorce even though his health insurance costs are halved.
{¶17} The trial court calculated Husband’s “total salary compensation” by adding the unspent part of his benefits allowance to his base salary, and finding that his total income is $47,100. The court did not appear to take into consideration Husband’s uncontested testimony that the unspent part of his benefits allowance will be increasing by $500 a month or $6,000 a year after the divorce. We, therefore, conclude that the court lost its way when it found that Husband’s total salary compensation was only $47,100.
{¶18} In light of the trial court’s failure to determine Wife’s earning ability and its miscalculation of Husband’s total salary compensation, we conclude that the court’s spousal
III.
{¶19} The trial court’s findings about Wife’s earning ability and Husband’s total compensation are not supported by the record. The judgment of the Lorain County Court of Common Pleas is affirmed in part and reversed in part, and this matter is remanded for further proceedings consistent with this decision.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
JENNIFER HENSAL
FOR THE COURT
CONCURS.
CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶20} I concur with the majority’s opinion with regard to Wife’s first assignment of error and with regard to most aspects of the second assignment of error.
{¶21} Wife argues in the second assignment of error that the trial court erred by finding that her excess expenses were solely comprised of medical expenses and attorney fees which could be properly deducted from her monthly expenses, thereby allowing her to live within her monthly budget. The majority considered other of Wife’s claimed expenses in concluding that the trial court did not mischaracterize Wife’s excess monthly expenses. I would constrain the analysis to the expenses Wife identified in her argument, rather than other expenses that no party has challenged.
APPEARANCES:
MICHAEL K. ASHAR, Attorney at Law, for Appellant.
PATRICK D. RILEY, Attorney at Law, for Appellee.