Brown v. Brown, 2009 Ohio 2204 (Ohio App. 5/11/2009)

Page 1

2009 Ohio 2204

Sharyn J. Brown, Plaintiff-Appellant, v. Darrell J. Brown, Jr., Defendant-Appellee.

No. CA2008-08-021.

Court of Appeals of Ohio, Twelfth District, Madison County.

May 11, 2009.

Civil Appeal from Madison County Court of Common Pleas, Case No. 2003DR-09-151.

Patrick B. Phillips, 26 South Main Street, London, OH 43140, for plaintiff-appellant.

David H. Jackman, 60 South Main Street, London, OH 43140, for defendant-appellee.

OPINION

POWELL, J.

{¶1} Plaintiff-appellant, Sharyn J. Brown, appeals the Madison County Court of Common Pleas' decision regarding property division and valuation, joint custody of the children's investment accounts, child and spousal support, and restoration of her maiden name. We reverse the trial court's decision.

{¶2} On October 11, 1978, Sharyn and defendant-appellee, Darrell J. Brown, Jr., were married. During the marriage, Darrell completed his undergraduate degree and then obtained his medical degree, while Sharyn worked full-time to support the family. After medical school and his residency, Darrell began working as a physician for several hospitals until he opened his own obstetrician/gynecological (OB/GYN) practice in New London, Ohio. Sharyn in turn worked part-time in Darrell's practice performing various office-related functions. The parties also had two children during their marriage.¹

{¶3} In 2003, the parties filed for divorce. After two days of trial, on October 28, 2004 and February 3, 2005, the magistrate issued a decision 30 months later on August 7, 2007. Sharyn received custody of the parties' minor child and $814.46 per month in child support with an effective date of January 23, 2006.² Sharyn was also awarded $1,000 per month in spousal support for 144 months. Both parties were named joint custodians of their children's investment accounts. Darrell received a few items of electronic equipment and a $2,000 credit for the remaining household goods. Additionally, the magistrate equally divided four investment accounts, debt on three credit cards, and the home equity loan balance between the parties. Finally, the magistrate valued Darrell's medical practice at $40,000, which was also equally divided between the parties.

{¶4} Sharyn filed objections to the magistrate's decision, but they were overruled by the trial court in a single sentence entry issued on October 30, 2007. On December 5, 2007, using an entry form, the trial court adopted the magistrate's decision. Because the trial court provided no additional analysis, we must rely on the magistrate's decision in addressing the assignments of error. The trial court filed the final decree of divorce on August 20, 2008. Sharyn filed an appeal raising six assignments of error.

{¶5} Assignment of Error No. 1:

{¶6} "THE TRIAL COURT ERRED BY NOT MAKING AN EQUITABLE DIVISION OF THE PARTIES['] MARITAL ASSETS AND DEBTS."

{¶7} In her first assignment of error, Sharyn argues that the trial court erred in equally dividing, rather than equitably dividing, the parties' assets. In particular, she asserts that the trial court should not have equally split the investment accounts, credit card debt, or home equity debt between the parties based on the particular circumstances of this case. Sharyn also argues that the trial court should not have given Darrell a $2,000 household goods credit.

{¶8} "A trial court has broad discretion in making divisions of property in domestic cases." Middendorf v. Middendorf, 82 Ohio St.3d 397, 401, 1998-Ohio-403, citing Berish v. Berish (1982), 69 Ohio St.2d 318. As such, "[a] trial court's decision will be upheld absent an abuse of discretion." Id., citing Holcomb v. Holcomb (1989), 44 Ohio St.3d 128; Martin v. Martin (1985), 18 Ohio St.3d 292, 294-295. "`Abuse of discretion' is more than an error of law or judgment; it implies that the court acted in an unreasonable, arbitrary, or unconscionable fashion." Id., citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. "The abuse of discretion standard is based upon the principle that a trial court must have the discretion in domestic relations matters to do what is equitable given the facts and circumstances of each case." Jefferies v. Stanzak (1999), 135 Ohio App.3d 176, 179, citing Booth v. Booth (1989), 44 Ohio St.3d 142 144.

{¶9} Pursuant to R.C. 3105.171(C)(1), "the division of marital property shall be equal." Only when equal division is determined to be inequitable can the trial court proceed from an equal division to an equitable division of marital property. R.C. 3105.171(C)(1). It is axiomatic that "[e]quitable need not mean equal." Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355. However, this does not mean that equal division can never be equitable. Instead, the trial court's decision is dependent on the facts and the circumstances of each case. Id.

{¶10} In her first sub-issue, Sharyn argues that the trial court's $2,000 credit to equalize the household goods was not supported by the evidence because there was no testimony as to the value of the items which essentially made the trial court's valuation "pure speculation."

{¶11} Prior to making any division of property, the trial court must determine what property is marital and what property is separate, and then determine the value of the marital property. R.C. 3105.171(B); Donovan v. Donovan (1996), 110 Ohio App.3d 615, 620-21. While the trial court has broad discretion in valuing property, this discretion is not unlimited. James v. James (1995), 101 Ohio App.3d 668, 681. This discretion, however, does extend to "develop[ing] some measure of value." Willis v. Willis (1984), 19 Ohio App.3d 45, 48, citing Berish. Nevertheless, "[t]he trial court is not privileged to omit valuation altogether." Id. at 48. "A party's failure to put on any evidence does not permit assigning an unknown as value." Id. A trial court commits reversible error if it makes a division of marital property and was not presented with any evidence of valuation of marital property and where it failed to assign a value in its decree. Wright v Wright (Nov. 10, 1994), Hocking App. No. 94CA02, 1994 WL 649271, at *9, overruled on other grounds by Liming v. Liming, Athens App. No. 05CA3, 2005-Ohio-2228.

{¶12} In addition, "[i]t would be virtually impossible to achieve either an equal or an equitable division of marital property without valuing those assets." Id. at *8. More importantly, "[a]s a practical matter, for an appellate court to review a trial court's division of property * * * findings of value should be determined." Willis v. Willis (1984), 19 Ohio App.3d 45, 48.

{¶13} Neither party submitted any evidence as to the value of the household goods, because they had decided to split those items between themselves. Since there was a complete lack of evidence as to value for those items, it was impossible for the trial court to order a $2,000 setoff for the household goods. Also, we are unable to determine whether the property division of household goods was equitable, as no findings of value were ever made. We must therefore reverse the trial court's decision regarding the $2,000 setoff.

{¶14} Sharyn's second sub-issue argues that the trial court erred in equalizing the contents of the parties' four investment accounts. While each party received the accounts in their respective names, Darrell was given a setoff of $9,478.97 because his account only had $4,151 and the accounts given to Sharyn totaled $23,108.93. Sharyn contends it would have been equitable to award her the investment accounts, in her name, without a setoff.

{¶15} "In dividing property in divorce proceedings, the trial court is required to classify assets as marital or nonmarital and then award each spouse his or her separate, nonmarital property." Peck v. Peck (1994), 96 Ohio App.3d 731, 734. Generally, "* * * the holding of title to property by one spouse individually * * * does not determine whether the property is marital property or separate property." R.C. 3105.171(H). Thus, "[t]he party [who] seek[s] 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." Peck at 734. Otherwise, "`marital property is presumed to include all property acquired during the marriage or those assets produced or earned as a result of the parties' mutual efforts.'" Moro v. Moro (1990), 68 Ohio App.3d 630, 636, quoting Avis v. Avis (May 23, 1985), Cuyahoga App. No. 48832, 1985 WL 9027, at *6.

{¶16} The record indicates there was only testimony as to the names on the accounts and the contents of the accounts. No testimony was offered to prove that the accounts should have been awarded to the parties separately. In other words, neither party testified that the accounts were acquired before marriage, by gift, bequest, devise or descent. R.C. 3105.171(A)(6)(a); Moro at 636. The magistrate correctly presumed the accounts to be marital and divided them equally which was well within its discretion.

{¶17} In Sharyn's third sub-issue, she argues that the trial court should not have equally divided the parties' credit card debt between them. She contends that one of the cards had business related debt and was accounted for in the valuation of the business. In addition, Sharyn claims that the card she primarily used was utilized during the pendency of the case in lieu of child support. Therefore, she asserts that the debt on that card should be Darrell's sole responsibility. Finally, Sharyn argues that because she only earned a small percentage of the parties' income during the marriage, she should not now be assigned half of the parties' marital debt.

{¶18} "In exercising [its] discretion, the [trial] court not only allocates and equitably divides the marital assets, but also provides for the payment of all marital obligations and debts." Minges v. Minges (Feb. 29, 1988), Butler App. No. CA87-06-085 at 4. See, also, R.C. 3105.171(...