[Cite as Smallwood v. Smallwood, 2018-Ohio-1008.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                          BUTLER COUNTY




LORI M. SMALLWOOD,                                  :

        Plaintiff-Appellant,                        :    CASE NO. CA2017-03-030

                                                    :         OPINION
    - vs -                                                     3/19/2018
                                                    :

KENNETH RYAN SMALLWOOD,                             :

        Defendant-Appellee.                         :



             APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                            Case No. DR15-10-0917



The Lampe Law Office, M. Lynn Lampe, Adam C. Gedling, 9277 Centre Pointe Drive, Suite
100, West Chester, Ohio 45069, for plaintiff-appellant

Kenneth Ryan Smallwood, 1813 Galway Circle, Middletown, Ohio 45042, defendant-
appellee, pro se



        RINGLAND, J.

        {¶ 1} Appellant, Lori Smallwood ("Wife"), appeals from a decision of the Butler

County Court of Common Pleas, Domestic Relations Division, following her divorce from

appellee, Kenneth Smallwood ("Husband"). For the reasons detailed below, we affirm in part,

reverse in part, and remand this matter to the trial court.

        {¶ 2} Husband and Wife were married on February 18, 2006 and have two children,
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M.S., born on December 12, 2006, and L.S., born on July 22, 2010. In 2015, M.S. was

diagnosed with cancer and there are major medical bills associated with her care. The

parties have PNC bank accounts that they agree are largely used for those expenses.

       {¶ 3} On October 29, 2015, Wife filed a complaint for divorce and the matter

proceeded to final hearings held on May 27, 2016 and July 26, 2016. The parties introduced

testimony with respect to parenting arrangements and allocation of marital property and

debts. The parties generally agreed to many issues with respect to property valuations,

however there were concerns about Husband's Fidelity IRA.

       {¶ 4} The record reflects that Husband's Fidelity IRA account was valued at

$54,919.50 on December 31, 2015. Though there was a restraining order prohibiting the

depletion of assets of the Fidelity IRA account, there was evidence that Husband had been

withdrawing funds from the account prior to the May 27, 2016 hearing.

       {¶ 5} The Fidelity IRA statements were entered into evidence, which reflect the

distributions that Husband was taking from the account and also the investment losses or

gains that occurred during the relevant timeframe. As of January 31, 2016, the Fidelity IRA

was valued at $45,694.65, which reflects the fact that Husband withdrew $5,000 in cash, an

additional $1,250 in taxes as a result of the distribution, and a change of investment value in

the form of a $2,974.85 loss.

       {¶ 6} The statements also show that Husband took a $1,250 deduction in February, a

$11,583.33 deduction in March, and a $8,000 deduction in April. Factoring in the additional

losses and gains sustained during the relevant timeframe shows that the Fidelity IRA had a

value of $27,444.44 on April 30, 2016.

       {¶ 7} At the conclusion of the May 27 hearing, the case was continued in progress.

On July 26, 2016, the parties introduced additional testimony and entered into an agreement

as to the division of household goods and furnishings. Wife, however, raised the issue of
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Husband's deductions from the Fidelity IRA:

             [Wife's counsel]: We – we wanna [sic] put one thing on the
             record, Your Honor, though on that because my client – Uh,
             based on the testimony, most of the property division when you
             got to trial was stipulated in terms of the real estate stipulation;
             the vehicle value; –

             [Husband's counsel]: Correct.

             [Wife's counsel]: – retirement values; uh, tracing and non-marital
             property versus marital, and as well as the credit card debts. Uh,
             but the – the – my client's position on the household goods has
             always been conditioned on this assumption that Mr. Smallwood
             had not cashed out any more of his retirement plan after the
             hearing date. And we've not been able to get confirmation from
             Fidelity that that happened, so I – Counsel has assured me that
             hasn't, but I would like to have that on the record.

             [Husband's counsel]: My client has indicated that he has not
             cashed out or withdrawn any further sums from the Fidelity
             account since the final hearing, that's correct. In fact, I believe
             Fidelity was – prior to the final hearing and during the pendency
             of the case, they were given a copy of the Restraining Order by
             [defense counsel] and they froze the account. So, uh, so no
             problem.

             ***

             [Wife's counsel]: There was cash – There were cash-outs by Mr.
             Smallwood up until the trial date that we found out about.

             [Husband's counsel]: Correct.

             [Wife's counsel]: And that was put into evidence.

             [Trial court]: Uh-huh.

             [Wife's counsel]: And, uh, my client is amenable and agreeable
             to the household goods settlement that we negotiated in the
             hallway, but she wants to be clear that that's – that her
             agreement was based on an assumption that that Fidelity
             account is still intact.

Wife raised the issue of the Fidelity IRA account later during the hearing, presumably after

having acquired additional information as to the account.

             [Wife's counsel]: I have one other small issue I need to address,

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              Judge.

              [Trial court]: Okay.

              [Wife's counsel]: So I had subpoenaed the Fidelity records after
              Court last time because I wasn't – because I got the, uh, – faxed
              them over. After I got the records from Fidelity, you heard
              testimony that we were able to see that Mr. Smallwood was
              taking withdrawals out of the Fidelity account. So we came in
              Court in May, he had acknowledged that there were no other
              withdrawals taken out of the account. I just got the records
              opened this morning and there was another $5,000 withdrawal
              out of the Fidelity account in May, so the balance is now down by
              another $5,000.

              [Trial court]: Is that correct?

              [Husband's counsel]: According to the records, the $5,000
              withdrawal was on May 4th, prior to the final hearing. I don't
              recall his exact testimony. I know he said he wasn't sure, but we
              – at the time of the final hearing, we thought there was 27,000
              left. There apparently is 22,000 let [sic]. The bottom line to that
              is that may be accurate, that he withdrew another 5,000. I don't
              recall his testimony, but it certainly occurred. He did do it, it did
              occur prior to the final hearing. In the overall picture, I realize
              that it matters, but at the same time, given the assets that we
              have, uh, it – it's money that can be accounted for with other
              assets. So –

              [Wife's counsel]: Actually it's not possible now. I sent a
              settlement proposal over on May the – After the trial. I did a
              summary of assets and debts based on all stipulations and
              based on the withdrawals that had already been made, uh, from
              the Fidelity account. There was 54,919 when the case started.

       {¶ 8} Following the hearing, the trial court divided and allocated the parties' property

and issued its final judgment entry. Wife now appeals the decision of the trial court, raising

five assignments of error for review.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO VALUE

HUSBAND'S FIDELITY IRA PURSUANT TO PARTIES' [sic] STIPULATIONS.

       {¶ 11} In her first assignment of error, Wife argues the trial court erred by improperly


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valuing Husband's Fidelity IRA contrary to the parties' stipulations. Wife's assignment of

error is without merit.

       {¶ 12} Property division in a divorce proceeding is a two-step process that is subject

to two different standards of review. Smith v. Smith, 12th Dist. Clermont No. CA2016-08-059,

2017-Ohio-7463, ¶ 8. Initially, pursuant to R.C. 3105.171(B), "the court shall * * * determine

what constitutes marital property and what constitutes separate property." An appellate court

reviews the trial court's classification of property or debt as marital or separate under the

manifest weight of the evidence standard. Oliver v. Oliver, 12th Dist. Butler No. CA2011-01-

004, 2011-Ohio-6345, ¶ 8.

       {¶ 13} After classifying the property as separate or marital, "the court shall disburse a

spouse's separate property to that spouse" and divide the marital property equally. R.C.

3105.171(C)(1) and (D). However, if the court finds an equal division would be inequitable,

then the court must divide the property in a manner it determines is equitable. R.C.

3105.171(C)(1); Warman v. Warman, 12th Dist. Butler No. CA2016-08-170, 2017-Ohio-7462,

¶ 16. The trial court is given broad discretion in fashioning a property or debt division and will

not be reversed absent an abuse of discretion. Williams v. Williams, 12th Dist. Warren No.

CA2012-08-074, 2013-Ohio-3318, ¶ 54. To find abuse of discretion, we must determine that

the trial court's decision was unreasonable, arbitrary, or unconscionable, and not merely an

error of law or judgment. Warman at ¶ 16.

       {¶ 14} In the present case, Husband had a Fidelity IRA. In Wife's exhibit 12A, the

value of the IRA was estimated at $55,000. Husband agreed and testified that the value of

the IRA was about $55,000. Wife testified that the value of the IRA was $54,919. Exhibit 4C

reflects the account value as $54,919.50 on December 31, 2015.

       {¶ 15} Wife argues that the trial court erred by using the parties' "stipulation" to value

the account at $54,919.50. We find Wife's argument to be without merit.
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       {¶ 16} As an initial matter, we disagree with Wife's position that the parties had a

binding stipulation as to the value of the Fidelity IRA. A stipulation is "a voluntary agreement

entered into between opposing parties concerning the disposition of some relevant point in

order to avoid the necessity for proof on an issue" or to "narrow the range of issues to be

litigated." Rarden v. Rarden, 12th Dist. Warren No. CA2013-06-054, 2013-Ohio-4985, ¶ 21.

Once a stipulation is entered into, filed, and accepted by the court, it is binding upon the

parties as "a fact deemed adjudicated for purposes of determining the remaining issues in

the case." Roetting v. Roetting, 12th Dist. Butler No. CA2014-06-128, 2015-Ohio-2461, ¶ 24.

       {¶ 17} The record reflects that the parties were in general agreement as to the value

of the Fidelity IRA, however, there is no evidence that the parties entered into a binding

stipulation that was accepted by the trial court. Though the parties valued the Fidelity IRA

similarly, Exhibit 12A plainly states that the $55,000 valuation was an estimation, and

Husband's testimony valued such similarly. The trial court, in making its determination,

chose to value the Fidelity IRA according to actual Fidelity IRA statements, rather than an

estimation.

       {¶ 18} Similarly, we find no error in the trial court's decision to use the January 2016

balance, as opposed to the December 31, 2015 balance in its decision calculating the value

of the Fidelity IRA. As the trial court noted in its decision, the Fidelity IRA account had

sustained market losses, and the trial court took that information into account. Such a

decision is not "unreasonable, arbitrary, or unconscionable" for purposes of showing an

abuse of discretion.

       {¶ 19} In sum, the trial court ultimately calculated the marital amount in the Fidelity

IRA at $51,944.65. This value represents the total value of the account in January 2016 –

$45,694.65 – plus $6,250 that the trial court found Husband improperly withdrew.

Accordingly, we find the trial court did not abuse its discretion by setting the value of the IRA
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at $51,944.65. Wife's first assignment of error is without merit.

       {¶ 20} Assignment of Error No. 2:

       {¶ 21} THE TRIAL COURT ABUSED ITS DISCRETION BY INCLUDING WIFE'S

BANK ACCOUNT TWICE WHEN PERFORMING AN EQUALIZATION OF THE ASSETS

AND ALSO BY DEFINING THESE FUNDS AS MARITAL.

       {¶ 22} In her second assignment of error, Wife argues the trial court erred by

including the same bank account asset twice in performing the equalization calculation. Wife

also argues the trial court erred in declaring these accounts to be marital property. We

sustain Wife's argument in part.

       {¶ 23} Again, property division in a divorce proceeding is a two-step process that is

subject to two different standards of review. Smith, 2017-Ohio-7463 at ¶ 8. The issue here

concerns Wife's PNC accounts. We again disagree with Wife's contention that there was a

valid and binding stipulation in the record. However, as in the previous instance, the parties

do agree that the money used to pay for M.S.'s medical care should not be considered a

marital asset.

       {¶ 24} A review of the accompanying documents and testimony reveals the following:

                 PNC Account 3862: [M.S.] Medical Spending Account is a
                 checking account that can be drawn off.

                 PNC Account 3889: [M.S.] Medical Reserve Account is a short
                 term saving account that Wife uses as an intermediary account.

                 PNC Account 3897: This fund is associated with a "virtual wallet"
                 and contained $106,933.01, which constitutes the bulk of the
                 funds used for M.S.'s care.

       {¶ 25} Because the parties agreed that M.S. will have substantial future medical costs

and there was nonmarital money to pay for those costs, the following discussion was held on

the record:

                 [Trial court]: Can we get an agreement on the nature of that
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             medical fund? Because it's quite large. If it's come from other
             sources specifically for her medical bills, I'm going – I've not had
             this come up before, but I would treat it – I would not treat this as
             marital retained by Wife, I wouldn't think.

             [Husband's counsel]: No. We have no objection to the account
             being maintained for the benefit of [M.S.] She's gonna [sic] have
             expenses and needs, medical, a lot of things. No objection to
             that being maintained, no objection to Mrs. Smallwood, uh, being
             the person primarily responsible to manage the account, with the
             understanding there would be –

             [Trial court]: An accounting.

             [Husband's counsel]: Quarterly statements are fine. It doesn't
             have to be monthly, –

             [Wife's counsel]: Quarterly.

             [Husband's counsel]: – but quarterly statements.

             [Trial court]: Quarterly, okay.

             [Wife's counsel]: Okay.

             [Husband's counsel]: But it should be maintained for the benefit
             of the child.

             [Trial court]: Okay.

             [Husband's counsel]: Otherwise, the parties could get into tax
             trouble.

             [Trial court]: Sure.

      {¶ 26} The confusion arises here because Wife comingled a small amount of marital

funds in this account. The testimony is that Wife had PNC accounts and Wife utilized a

feature termed a "virtual wallet." As explained by Wife:

             It's a virtual wallet that PNC has. So you get a checking account
             with it, a reserve account and then a savings account. And in the
             savings account – I've had, uh, a couple of these. I like it
             because inside the savings, you can make sub accounts and –
             or they're known as wish lists, and you can start saving for a
             particular amount of money to start saving. So I have always
             used that account to keep different accounts in there. So I've
             always kept [M.S.] and [L.S.'s] account in there; I have kept our

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              HOA account in there, where I have made sure that the money is
              in there to pay our HOA; uh, I keep money in there to pay for our
              hair; uh –

       {¶ 27} Exhibit 12A provides a summary of the funds included in PNC Account 3897:

2000 Honda                      $2,920.77                      "Used to purchase 2016
                                                               Honda Odyssey"
Settlement—Justice              $462.17                        "Lori's money for kids
                                                               clothes"
Tax Prep                        $200.00                        "Money set back to pay for
                                                               2015 taxes"
Hair                            $73.00                         "Lori and [L.S.'s] money"
HOA                             $161.00                        "Will transfer $125 to be
                                                               HOA by March 31, 2016"
Interest                        $64.07                         "This is [M.S.'s] money"
[L.S.] Savings                  $250.00                        "[L.S.'s] money"
[M.S.] Savings                  $250.00                        "[M.S.'s] money"
[M.S.] Birthday                 $1,010.00                      "[M.S.'s] money"
[M.S.] Medical                  $100,400.00                    "[M.S.'s] money"
Rainy Day                       $0.00
Vacation                        $1,142.00                      "Lori's money for vacation"
Christmas                       $0.00

As such, while the vast majority of the money maintained in PNC Account 3897 is reserved

solely for M.S.'s medical care, Wife also has other money in that account, which she is able

to segregate in the "virtual wallet."

       {¶ 28} In the present case, the trial court included a recapitulation index in its

judgment entry. The index lists the marital component of the three PNC accounts as

$2,102.24 and includes that amount in line 3 of its recapitulation index. However, the same

marital component figure of the PNC Account 3897 is also included in line 12.

       {¶ 29} Based on our review, we find that this matter should be reversed and

remanded. The trial court counted $2,102.24 twice in its recapitulation index, therefore

impacting the accuracy of the recapitulation index. The trial court's decision twice accounted

for those funds and this matter must be remanded for proper resolution. On remand, the trial

court should account for those funds once, instead of twice, as it did in lines 3 and 12 of the

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recapitulation index. As a result, we sustain Wife's argument as to the double-counting.

        {¶ 30} However, we find the trial court's decision classifying $2,102.24 of PNC

Account 3897 as marital property was supported by the manifest weight of the evidence.

Here, the record supports the finding that the trial court used the following amounts to justify

its finding of $2,102.24 in marital assets:


Settlement—Justice                  $462.17                              "Lori's money for kids
                                                                         clothes"
Tax Prep                            $200.00                              "Money set back to pay for
                                                                         2015 taxes"
Hair                                $73.00                               "Lori and [L.S.'s] money"
HOA                                 $161.00                              "Will transfer $125 to be
                                                                         HOA by March 31, 2016"
Interest1                           $64.07                               "This is [M.S.'s] money"
Vacation                            $1,142.00                            "Lori's money for vacation"

        {¶ 31} Though Wife claims otherwise, these assets are clearly not reserved for M.S.'s

medical expenses. Those funds were used to pay for personal expenses like vacations,

HOA fees, and hair appointments. As a result, we find the trial court's decision to classify

$2,102.24 of PNC Account 3897 as marital property is supported by the manifest weight of

the evidence.

        {¶ 32} As a result, we sustain Wife's second assignment of error as to the double-

counting. In all other respects, Wife's second assignment of error is overruled.

        {¶ 33} Assignment of Error No. 3:

        {¶ 34} THE TRIAL COURT ERRED IN FAILING TO ADOPT THE STIPULATIONS

OF THE PARTIES CONCERNING THE USAGE OF THE MEDICAL ACCOUNT

ESTABLISHED FOR THE PARTIES' DAUGHTER.

        {¶ 35} In her third assignment of error, Wife argues the trial court abused its



1. Wife testified that she takes the interest earned from the money in the account and places it in a separate
interest account.
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discretion "when it failed to adopt the stipulation of the parties concerning the maintenance of

an account held for the benefit of the parties' child and instead ordered more restrictions than

the parties intended and agreed to." Wife's argument is without merit.

       {¶ 36} In the present case, the trial court ordered:

              PNC Accounts #3862, #3889, and #3897: The parties stipulate
              that these are non-marital accounts for medical and other
              expenses related to [M.S.'s] illness. However, a review of the
              summary (with no underlying documentation) reveals that Wife
              has commingled at least one of these accounts with funds not
              related to [M.S.'s] illness, and uses the account for non-medical
              purposes, such as tax preparation, haircuts, and payment of the
              homeowner's association fees related to the residence.

              Based on Wife's testimony, the Court finds that $2,102.24 of the
              #3897 account is used for nonmedical purposes (i.e.: Justice
              settlement, funds for tax prep, HOA fees, "Lori's money for kids
              clothes, hair expenses, and vacation). [sic]

              The Court finds a marital value in the amount of $2,102.24,
              which shall be retained by Wife as an offset against marital
              assets retained by Husband. Wife shall retain these accounts for
              the benefit of the children.

              Wife shall immediately discontinue the use of these accounts for
              HOA fees, haircuts, vacation funds, and all other non-medical
              uses. Wife has her own account to use for this purpose. She
              shall provide full quarterly statements for all three (3) accounts,
              including subaccounts and transaction, to Husband within five (5)
              days of receipt.

       {¶ 37} Again, we disagree with Wife's assertion that the trial court was bound by any

alleged binding stipulation, as there is no record that the trial court accepted any such

stipulation. Though the parties were in general agreement as to the nature of the PNC

accounts, i.e., medical funds for M.S., the evidence directly contradicts Wife's assertion. As

previously addressed, Wife used a small, separate, portion of the money contained in PNC

Account 3897 for personal expenses unrelated to M.S.'s medical care. As correctly noted by

the trial court, Wife has her own accounts that she may use for nonmedical purposes. The

large amount of money in the PNC accounts was for M.S.'s medical expenses, and the trial

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court specifically excluded that money from the equitable division of property. As a result, we

find the trial court did not abuse its discretion by ordering Wife to discontinue use of PNC

accounts for any personal expenses. Wife's third assignment of error is without merit.

       {¶ 38} Assignment of Error No. 4:

       {¶ 39} THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO INCLUDE

THE ENTIRE STIPULATION OF HUSBAND AND WIFE REGARDING THE DIVISION OF

HOUSEHOLD GOODS AND FURNISHINGS.

       {¶ 40} In her fourth assignment of error, Wife claims the trial court erred in its

decision with respect to the parties' stipulation regarding the household goods and

furnishings. Wife's assignment of error is sustained.

       {¶ 41} The trial court's entry reflects that it accepted the parties' stipulation as to the

division of household goods and furnishings, but declined to note that the agreement was

conditioned upon Husband not making additional withdrawals from the Fidelity IRA. As

previously noted, Wife stated that she agreed to the parties' division of household goods and

furnishings, but expressly conditioned her agreement on Husband's word that there had been

no further withdrawals from the Fidelity IRA account.

       {¶ 42} Upon review of the record, we find that this matter must be remanded for

clarification. Here, the trial court relied on the parties' stipulation as to the division of

household goods and furnishings, but did not address the conditional nature of that

agreement. The evidence at the July 26, 2016 hearing established that Husband had taken

an additional withdrawal following the May 17, 2016 hearing, which was previously unknown.

Husband did not dispute that an additional withdrawal had occurred. Nevertheless, the trial

court still found that the parties had stipulated as to the division of household goods and

furnishings. Because Husband had violated the condition of the agreement, there was no

stipulation that the trial court could rely on with respect to the division of household goods
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and furnishings. As a result, we find this matter must be remanded for further clarification as

to the trial court's decision with regard to the division of household goods and furnishings.

Wife's fourth assignment of error is sustained.

       {¶ 43} Assignment of Error No. 5:

       {¶ 44} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MADE A FINDING

THAT HUSBAND ENGAGED IN FINANCIAL MISCONDUCT BUT DID NOT COMPENSATE

WIFE, THE OFFENDED SPOUSE.

       {¶ 45} In her fifth assignment of error, Wife argues the trial court erred "by failing to

compensate Wife in any manner for Husband's continued financial misconduct." We

disagree. "If a spouse has engaged in financial misconduct, including, but not limited to, the

dissipation, destruction, concealment, or fraudulent disposition of assets, the court may

compensate the offended spouse with a distributive award or with a greater award of marital

property." R.C. 3105.171(E)(3); Smith, 2017-Ohio-7463 at ¶ 12. Since the trial court's

decision on this issue is discretionary, we will not reverse it absent an abuse of that

discretion. Brown v. Brown, 12th Dist. Madison No. CA2008-08-021, 2009-Ohio-2204, ¶ 26.

       {¶ 46} As previously noted, Husband has depleted a large portion of the Fidelity IRA.

The trial court found Husband's conduct amounted to financial misconduct. The trial court

relied on the January 2016 IRA statement, which stated that the IRA was valued at

$45,694.65. Because the trial court found that Husband had improperly withdrawn $6,250

from that account, the trial court set the value of the IRA at $51,944.65. Though Husband

made additional improper withdraws from that account, the marital value of that account was

still valued at $51,944.65.

       {¶ 47} Wife complains that if Husband continues to withdraw money from the Fidelity

IRA, he may be unable to make the full equalization payment to Wife. The trial court

determined that if Husband was unable to make the entire equalization payment at once,
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Wife would be awarded $150 per month until payment was made in full. Wife argues that

this arrangement "essentially entices Husband to continue to make unauthorized withdrawals

from his IRA and argue at a later date that the only remedy is for him to pay the amounts

back at $150.00 per month."

       {¶ 48} We conclude the trial court did not abuse its discretion. The trial court's

decision set the marital value of the Fidelity IRA at the appropriate value. Though Husband

has withdrawn funds from that account, the marital value remains the same and the parties

are required to equalize their assets based on that value. Wife's argument as to Husband

being enticed to further deplete the Fidelity IRA and instead pay $150 a month requires this

court to speculate as to Husband's motivations, which we decline to do. As a result, we find

the trial court did not abuse its discretion. Wife's fifth assignment of error is overruled.

       {¶ 49} Judgment affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion regarding the computation of the recapitulation index

and the division of household goods and furnishings.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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