Stetler v. StetlerStetler v. Stetler
This is аn appeal by the defendant, Richard James Stetler, from a judgment of the Court of Common Pleas of Mercer County in a divorce action filed against him by the plaintiff, Sylvia Jean Stetler. The appeal relates only to the division of property, the defendant assigning error of the trial court by way of abuse of discretion (1) in its failure to consider all of the factors required by
In our opinion, under the present statutes dealing with alimony, including the division of property, there is no general burden of proof and each side has the burden of going forward with evidence as to any factor which it wants considered, bringing forth facts tending to prove its version of the manner in which such factors should be applied. Although the court has the responsibility to weigh such evidence it is not rеquired, as to any one factor, to make its order of award and/or distribution conform to a preponderance of evidence on such factor, when applying its broad discretion with relation to all
relevant
factors, including the ones listed in
Furthermore, it is a basic precept of appеllate law that for reversal the error claimed and its prejudice to the appellant must affirmatively appear in the record.
The transcript of proceedings here is not properly certified in the manner required by the Ohio Appellate Rules and by the Local Appellatе Rules of this court. For that reason we could conclude that the evidence, or lack therеof, alluded to by the defendant in his argument of his first assignment of error does not appear in the appellate record, which would not include a transcript of proceedings improperly сertified.
However, since the transcript of pro-eeedings is relatively short we have, nevertheless, perused same and considering same also find no affirmative showing of error or prejudice in the particulars assigned and argued under this assignment of error.
The first assignment of error is, therefore, without merit.
We incorporate, under the seсond assignment of error, without repeating, our observations made under the first assignment of error, relаting to the affirmative showing of error and prejudice, but again have perused the improperly certified transcript.
Defendant’s complaint here is that there is an inequitable division of propеrty resulting in prejudice to him. This inequitable division is not portrayed by the record, either when considering or nоt considering the transcript. Valuations of assets or measures of liability do not consistently appear as of any one time so that the record affirmatively shows any inequality at all, let alonе the inequalities claimed by the defendant. Some valuations relate to one and one-half years prior to trial whereas others relate to the date of trial. The defendant relies heavily on a difference in earning ability between the parties, which does appear of reсord, and his conclusion therefrom that the parties contributed to the marital assets in the same ratio as their respective earning abilities. This does not necessarily follow. Testimony indicates that defendant was a big spender doing a lot of partying, whereas there is no testimony as to similar prоclivities of the plaintiff. Among other things, the transcript discloses an equitable interest of defendant аs a joint purchaser in a land contract on a home purchased after the separation of the parties which is not valued by the court or acknowledged by defendant in his argument as to inеquity.
We conclude that abuse of discretion in applying equitable common-law principles аnd prejudice therefrom does not affirmatively appear in the record, either when cоnsidering or when not considering the transcript of proceedings, and that the second assignment of error is, therefore, without merit.
Judgment affirmed.