Morrison v. WaltersMorrison v. Walters
Zachary D. Smith, LLC, and Zachary D. Smith, for Plaintiff-Appellee,
Cornetet, Meyer, Rush & Stapleton and Karen P. Meyer, for Defendant-Appellant.
{1} After nearly a quarter-century of marriage, the parties here decided to part ways. Thе trial court accordingly sorted through their finances and assets, issued a divorce decree, and exercised its discretion to allocate assets and liabilities. Unsatisfied with this result, defendant-appellant Frank Walters appeals the judgment, maintaining that the trial court erred in its findings regarding spousal suрport and financial misconduct, and that it inequitably divided marital assets. On the record at hand, however, we find that the trial court properly exercised its discretion, and we accordingly affirm its judgment.
I.
{2} Mr. Walters and plaintiff-appellee Lisa Morrison came to the domestic relations court seеking a divorce after nearly 25 years of marriage. Throughout their marriage, the parties accumulated a number of real estate properties, automobiles, and financial assets. The magistrate sifted through the evidence at two hearings before setting forth detailed findings of fact and cоnclusions of law resolving the issues and divvying up the assets. Mr. Walters timely objected to four of the findings. In short, Mr. Walters contended that he should have been granted spousal support in light of the parties differing earning abilities; that Ms. Morrison committed financial misconduct by gambling and making interest-only payments on a homе equity line of credit; that a brokerage account was divided inequitably; and that Ms. Morrison should not be removed from the parties’ limited liability holding company until all the rental properties are sold. After the trial court overruled these objections and entered a final decree of divorcе, Mr. Walters now marshals those same objections before this court.
A.
{3} In his first assignment of error, Mr. Walters challenges the trial court‘s determination that the parties possess similar earning potential and its concomitant denial of spousal support. “A trial court has broad discretion in determining whether an award of spousal support is appropriate and the proper amount of the award. * * * A decision regarding spousal support will not be reversed on appeal absent an abuse of discretion.” Reese v. Reese, 2019-Ohio-2810, 139 N.E.3d 1288, ¶ 11 (1st Dist.). Mr. Walters urges us to find an abuse of discretion in the trial court‘s conclusion that he сould find gainful employment in light of uncertainty as to how much he could earn. On appeal, we will not reverse unless the court exercised its discretionary judgment over the determination of spousal support in an unwarranted way or committed legal error. See Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304, ¶ 35.
{4} At a hearing on the property division, Mr. Walters testified that he worked in information technology at Proctor and Gamble for most of his adult life before accepting a voluntary early retirement package in June 2015 (at approximately 50 years of age). After retirement, Mr. Walters supported himself with income from the couplе‘s rental properties and by drawing money from his investment accounts. Mr. Walters’ income for the three years directly preceding retirement averaged $127,000 per year; after retirement, his income dropped to approximately $35,000 per year. The parties agreed to sell the rentаl properties as part of the divorce, thus depriving Mr. Walters of any income from managing the properties going forward.
{5} Ms. Morrison, on the other hand, testified that she declined to retire completely from her nursing occupation alongside Mr. Walters in 2015. Instead, she
{6} While a considerable difference exists in the current incomes of the parties, “the burden of establishing the need for spousal support rests with the party that is seeking such support.” Banchefsky v. Banchefsky, 10th Dist. Franklin No. 13AP-300, 2014-Ohio-899, ¶ 28. Prior to his retirement, Mr. Walters earned income comparable to what Ms. Morrison now makes. In addition to his IT skills, he has cultivated new skills in property management during his retirement. To counter his earning potential, Mr. Walters offers little more than speculation. He surmises that because he has done nothing since retirement to mаintain his computer skills from Proctor and Gamble, his skills are six years out of date, which would make it difficult to find employment. He guesses that due to a back surgery in 2015, he likely would not be able to stand or sit for long periods of time—despite the lack of any doctor‘s restrictions from obtaining employment. And even though he managed his own rental properties for a number of years, he assumes that no company would hire him as a property manager. These conclusory statements fail to convince us that Mr. Walters does not have viable, marketable skills that could generate substantial income if he sо desired.
{7} In any event, while Mr. Walters narrows in on the court‘s finding of similar earning potential, courts must consider a variety of factors in an award of spousal support.
{8} Given this settlement, Mr. Walters left the marriage with no debt, ample financial resources, and assets and skills substantial enough to provide a standard of living comparable to the one he enjoyed during the marriage. “[E]ach party has the burden of producing evidence as to any of the
B.
{9} In his second assignment of error, Mr. Walters asserts that the trial court abused its discretion by not finding that Ms. Morrison‘s gambling and interest-only loan payments constituted financial misconduct, and by failing to factor that misconduct into the overall financial calculus. Genеrally, the division of marital property shall be equal.
{10} Contrary to Mr. Walters’ characterization on appeal, he presented no evidence that Ms. Morrison engaged in any deceitful conduct to conceal her gambling. Quite the contrary, Mr. Walters admitted that hе accompanied her on sundry gambling trips to Las Vegas during the marriage. During these excursions, Ms. Morrison remained at the hotel casino all morning and afternoon to gamble while he enjoyed other activities outside of the hotel. When Mr. Walters returned to the hotel,
{11} Moreover, the case law cited by Mr. Walters in his appellate brief does not support his stance on appeal. He relies on Putnam v. Putnam, 12th Dist. Clermont No. CA2008-03-029, 2009-Ohio-97, to bolster his assertion of financial misconduct. In Putnam, the Twelfth District affirmed a finding of misconduct where the ex-wife concealed the extent of her gambling losses by withdrawing funds frоm her own 401(k) plan, cashing checks from a home equity line of credit, and failing to disclose her gambling receipts to the IRS. The ex-wife‘s gambling was a source of contention during the marriage in Putnam, and the husband had no knowledge of the gambling receipts or 401(k) withdrawals until the IRS conducted an audit and forced the Putnаms to file an amended tax return. See Putnam at ¶ 16. “Substantial, undisputed evidence was introduced at trial demonstrating that [Ms. Putnam] continually engaged in deceptive practices regarding her gambling.” Id. The same cannot be said here.
{12} Mr. Walters accused Ms. Morrison of shredding her bank statements before he could review them, but nothing in the record suppоrts that allegation. And unlike the Putnam case, the gambling wins and losses by Ms. Morrison were properly recorded on the couple‘s jointly-filed tax returns. Ms. Morrison was not incurring or hiding other outstanding debts, she never withdrew money from the parties’ retirement funds, and the evidence does not suggest that the gambling was a source оf
{13} The same result holds true for the home equity line of credit jointly taken out against the marital home, and Ms. Morrison‘s decision to pay interest only on the loan. Mr. Walters testified that he never inquired about the status of the loan because “[t]hat was Lisa‘s responsibility to manage that.” Mr. Walters may personally consider her chosen repayment method to be financial misconduct, but neither party disputed that the loan contained an interest-only payment as an option and Mr. Walters cited to no authority finding wrongdoing based on spousal disagreement of loan repayment strategies. Mr. Walters delegated the responsibility of paying the loan to Ms. Morrison, which she did in accordance with the terms presumably allowed by the bank. The trial court did not abuse its discretion by refusing to find financial misconduct on the part of Ms. Morrison regarding the home equity line of credit, and we accordingly overrule Mr. Walters’ second assignment of error.
C.
{14} In his third assignment of error, Mr. Walters suggests that the trial court erred by dividing a joint brokerage account before he cоuld use the funds to pay his attorney fees, medical expenses, and appraisal costs for the parties’ marital properties. As explained above, the trial court should generally divide the marital property equally
{15} Even if we considered the merits of this argument, Mr. Walters’ brief fails to acknowledge separate property interests of over a half million dollars that reverted to him before the division of the marital assets. His protestation that the trial сourt “forced” him to pay his attorney fees out of a marital brokerage account because he lacked other funds strains credulity. The trial court did not abuse its discretion by declining to impose upon Ms. Morrison all of her attorney fees plus half of Mr. Walters‘, and we accordingly overrule the third assignment of error.
{16} In his final assignment of error, Mr. Walters argues that the trial court abused its discretion by ordering him to remove Ms. Morrison‘s name from BMLL, LLC, a marital asset used by the parties as the holding company for their rental properties. Mr. Walters seemingly believes that removing her name from the business leaves him solely responsible for liabilities incurred until the sale of the properties, and leaves Ms. Morrison with all of the proceeds but none of the costs. Here again, Mr. Walters developed no legal argument in this assignment of error. See
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{17} In light of the foregoing analysis, we overrule all four of Mr. Walters’ assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
ZAYAS, P. J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.