Lead Opinion
{¶ 2} Jay and Jane were married on July 29, 1983 and had three children together, the youngest still a minor and living with Jane at the time of trial. After over 20 years of marriage, on April 15, 2005, Jane filed for divorce, which Jay answered аnd counterclaimed for divorce. The matter proceeded to a four-day trial where each party presented evidence as to the value of the marital assets, Jay's income, and compliance with temporary court orders, including child and spousal support.
{¶ 3} The parties are both in their late forties and both graduated from John Carrоll University. Jay, a certified public accountant, obtained his CPA shortly before the parties were married. Jane graduated with a degree in teaching and was a school teacher at the time of their marriage but stopped teaching to care for and raise their children. She was a homemaker for 22 years. During the course of their marriage, the partiеs enjoyed a high standard of living, resulting from Jay's success in operating his own accounting firm and real estate investment company. Jay also has ownership interests in a number of other entities.
{¶ 4} At trial, the parties disputed the value of the marital assets and Jay's current income.
{¶ 5} On February 5, 2007, the trial court issued a judgment dividing the marital property and assets, and awarded apрellee spousal and child support. *4
{¶ 6} On March 2, 2007, appellant filed a motion for relief from judgment, which included as exhibits various documents that were not part of the record at the time of judgment. On March 6, 2007, Jay filed the instant appeal, and on September 17, 2007, we granted Jane's request to have the post-judgment documents stricken from the record, pursuant to App. R. 9(A).
{¶ 7} Jay appeals, raising the following three assignments of error:
{¶ 8} "[I.] The trial court erred when it did not treat the entities owned by the parties in a consistent manner resulting in an inaccurate valuation of the marital assets distribute to the parties.
{¶ 9} "[II.] The trial court erred when it totally disregarded the testimony and evidence presented by the appellant and adopted the erroneous and misleading conclusions of the plaintiff's expert witness as to the income of the appellant.
{¶ 10} "[III.] The trial court erred by awarding spousal support to the plaintiff which was not fair, equitable and in accordance with the law."
{¶ 12} Applying the foregoing standard of review, we will address each of Jay's assignments of error.
{¶ 14} Initially, we note that Jay's attempt to support his argument with the affidavits of a tax attorney (attached to his motion for relief from judgment) fails. Jay relies on these affidavits to support the financial documents preparеd in his own defense and to bolster his claim that the trial court erroneously valued the marital *6
assets. But these documents were not properly before the trial court when it issued its judgment on February 5, 2007; nor are they properly before us now, as they were stricken from the record as "post-judgment documents," per App. R. 9(A). Jay cannot attack the final judgment of the trial сourt in a direct appeal with documents attached to a pending Civ. R. 60(B) motion. See Russell v. Russell (July 24, 1985), 2d Dist. No. 2039. Indeed, we may review only what was before the trial court at the time it issued the order being appealed. See Hornung v.Hornung, 10th Dist. No. 06AP-304,
{¶ 15} Contrary to Jay's assertion, we find no abuse of discretiоn by the trial court in valuing the marital assets. Although Jay complains of the value that the trial court gave certain marital assets, the record reflects that the trial court primarily relied on either stipulated valuations or a value presented by Jay, when such valuation was substantiated by a bank document or other independent documentation. As to Jay's claim that the trial court failed to account for the negative value of the property located at 140 Middle Avenue, Jay failed to present any independent documentation to support his self-serving claim. The mere fact that the trial court found Jay's claim not credible does not amount to an abuse of discretion. See, e.g., Ockunzzi v.Ockunzzi, 8th Dist. No. 86785,
{¶ 16} We likewise find no merit to Jay's general claim that the trial court failed to accept his testimony that the properties incurred additional debt, thereby reducing their overall value. He appears to argue that the trial court abused its discretion by not accepting his proposed finаncial statement of the different properties' value. Although Jay testified that the real estate market drastically declined since 2004 and that he incurred renovation costs related to some of his properties, he fails to identify what debts exactly were incurred. Again, the fact-finder is free to reject self-serving testimony, especially when it is not supported by suitable documentation.Ockunzzi, supra; see, also, Bach v. Bach (Sept. 10, 1999), 2d Dist. No. 17497 (rejecting husband's claim of the value of the property when self-serving claim was not supported by any other evidence). The mere fact that Jay listed debts on a financial statement (prepared by him for trial) does not require the trial court to accept the calculations.
{¶ 17} Next, Jay argues that the trial court fаiled to take into consideration the alleged $387,235 debt owed to Independence Bank, which should have reduced the overall value of JGT Enterprises, Inc. Although the debt was generally listed on the financial statement prepared by Jay, he failed to introduce any evidence of the loan at *8
trial or evidence that Jane was a guarantor on the lоan. Indeed, the trial court expressly recognized in its opinion that Jay failed to offer any evidence of the property associated with this alleged debt. To the extent that Jay attempted to attach evidence of the loan to his appellate brief, this exhibit has been stricken from the record and cannot be considered on appeal. Accordingly, because Jay failed to present credible documentation of this alleged loan or that Jane was a guarantor at the time of trial, the trial court did not abuse its discretion in disregarding Jay's self-serving statement. See, e.g.,Verplatse v. Verplatse (1984),
{¶ 18} Finally, as for Jay's contention that the trial court abused its discretion in not including the purported $390,000 negative value of JGTMI in the marital debt, we disagree. Aside from Jay's own self-serving statement of the purported negative value of the entity as listed in his personal financial statement, the only testimony offered regarding the alleged investment was testimony thаt Jay and others owned interests in JGTMI. Indeed, Jay did not offer any documentation of the entity's existence, let alone credible evidence of this alleged negative equity. Here, Jay utterly failed to demonstrate that this was a marital debt that Jane should be obligated to pay one-half. See, generally,Keating v. Keating, 8th Dist. No. 90611,
{¶ 20} In this case, the trial court was required to determine both parties' annual income for purposes of computing child support and spousal support obligations. See R.C.
{¶ 21} As for the trial court's reliance on Weinberg's testimony over Jay's self-serving testimony regarding inсome, we find no abuse of discretion. Indeed, issues of credibility fall squarely within the province of the fact-finder. Ewing v. Ewing, 5th Dist. No. 06-CA-148,
{¶ 22} Here, the trial court's determination of income is supported by competent, credible evidence. To determine an equitable income, the trial court averaged the last three years of Jay's reported IRS income, along with his average cash flow, and split the difference. Although Jay argued that his average annual income was $140,598 (the average of his reported IRS income for the last three years), the trial court determined his income to be $257,679 for purposes of support.
{¶ 23} To determine Jay's cash flow, Jane offered the expert report and testimony of Weinberg, who prepared an analysis of the revenue and taxable income generated by Jay for the period December 31, 2002 to December 31, 2005. He based his analysis on tax returns, financial statements and general ledgers, which were all prepared by Jay in his capacity as a CPA. To arrive at Jay's cash flow, *11 Weinberg added Jay's taxable income, benefits received, and distributions. To the extent that Weinberg ignored certain self-serving documents or statements prepared by Jay, he explained that they were misleading and incorrect. For example, Jay erroneously represented that his country club dues, gifts for and vacations with his girlfriend, and other personal items were standard business expenses. Weinberg further excluded Jay's claimed contributions and loans to various entities because he found insufficient documentation (such as а check) to support Jay's purported reduction in gross income. Based on Weinberg's testimony and report, in conjunction with Jay's IRS reported income, the trial court's determination of income was based on competent and credible evidence.1
{¶ 24} Jay argues that Weinberg's report is riddled with errors. In support of this claim, Jay again attempts to rely on еvidence, namely, the affidavit of a tax attorney, that was not before the trial court at the time of trial and has been stricken from the record. Thus, we summarily reject his argument.
{¶ 25} We likewise find no merit to Jay's claim that the trial court erred in including the entirety of the benefits he received from JGT Enterprises, Inc. and Tokar Co. as part of his income. The trial court rejected Jay's claim that the "benefits received" constituted valid business expenses that should not be considered as income. Notably, Jay failed to substantiate his claim that he used this money solely for business-related purposes. Further, to the extent that some of these expenses *12
were listed as deductions, this court has repeatedly recognized that "[a] trial cоurt is not required to blindly accept all of the expenses an appellant claims to have deducted in his tax returns as ordinary and necessary expenses incurred in generating gross receipts."Ockunzzi, supra, at ¶ 53, citing Flynn v. Sender, 8th Dist. No. 84406,
{¶ 26} Finally, we reject Jay's claim that Weinberg's report was inaccurate because it failed to account for Jay's alleged contributions and loans to his variоus entities, which would have reduced his income. Weinberg explained his reasoning for disregarding purported contributions and loans: they were not substantiated by the usual documentation. Indeed, Jay failed to attach a single check to the journal entries reflecting that a contribution was made. Jay offered no evidence to counter Weinberg's opinion other than his own self-serving testimony. Because Jay failed to offer competent, credible supporting documentation as to the contributions and loans, we find no abuse of discretion by the trial court in disregarding Jay's claim. SeeGerlach v. Gerlach, 10th Dist. Nos. 03AP-22, 03AP-872,
{¶ 27} Accordingly, because the trial court's determination of Jay's income is supported by competent, credible evidence, we find no abuse of discretion and overrule Jay's second assignment of error. *13
{¶ 29} 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 R.C.
{¶ 30} Here, the record clearly reflects that the trial court considered the 14 factors. Indeed, the trial court expressly discussed every factor except for two, factors (j) and (l), but there is no evidence that the trial court did not consider these two factors. Notably, of all 14 factors, Jay only complains that the trial court erred in *14 its consideration of the first factor: the income from all sources. But, having already found that the trial court did not abuse its discretion in determining Jay's income, we reject this argument. Accordingly, given the trial court's consideration of the factors, including its detailed analysis, we cannot say it abused its discretion in awarding spousal support.
{¶ 31} The third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, J., CONCURS; ANTHONY O. CALABRESE, JR., P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
Notes
Dissenting Opinion
{¶ 32} I respectfully dissent in part from the majority's opinion. I wоuld overrule appellant's second and third assignments of error; however, I would sustain appellant's first assignment of error because, in my opinion, the court abused its *15 discretion in calculating the parties' marital assets. Specifically, there are inconsistencies in the court's valuation of certain assets and decision to disregard various liabilities, as appellant presented evidence that questioned the $2 million figure that the court used in calculating the support order. *1