[Cite as Holston v. Holston, 2019-Ohio-3649.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



JERRY LEE HOLSTON                               :   JUDGES:
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                     :   Hon. Craig R. Baldwin, J.
                                                :   Hon. Earle E. Wise, Jr., J.
-vs-                                            :
                                                :
PATRICIA HOLSTON                                :   Case No. 18CA17
                                                :
        Defendant-Appellee                      :   OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Knox County
                                                    Domestic Relations Court, Case No.
                                                    17DV01-0006




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   September 9, 2019




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

JOHN S. DILTS                                       ALYSSA L. GILES
28 South Park Street                                109 East High Street
Mansfield, OH 44902                                 Mt. Vernon, OH 43050
Knox County, Case No. 18CA17                                                           2




Wise, Earle, J.

      {¶ 1} Plaintiff-Appellant Jerry Holston appeals the September 11, 2018 judgment

entry of the Knox County Court of Common Pleas Division of Domestic Relations which

adopted the decision of the magistrate granting appellant’s divorce, determining marital

property, and awarding appellee spousal support and a personal property settlement.

Defendant-appellee is Patricia Holston.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} Appellant and appellee entered into an antenuptial agreement on March 2,

1992 wherein each waived any interest in the property of the other during marriage, and

upon termination of the marriage by divorce, dissolution, or death. The two married on

May 23, 1992 and were married for 25 years. No children were born during the marriage.

      {¶ 3} In 2001, appellant was involved in a motorcycle accident. As a result, he

was unable to return to his job at General Motors. In 2003, appellant received $900,000

in a personal injury suit stemming from the accident. The proceeds of the settlement were

placed in to several different accounts and CDs, some jointly owned by the parties.

Appellee managed the household finances from one such account.

      {¶ 4} Also during the marriage the parties purchased a property located at 0

Yankee Street in Knox County (the "0 Property"). Improvements were made to the

property in 2003, before appellant's settlement was received and paid for with savings

from both parties. The parties stipulated that its value with improvements is $17,500 and

$2,000 without. Appellant purchased the adjoining property, 13001 Yankee Street, before

the marriage, however the property was encumbered by a mortgage when he and
Knox County, Case No. 18CA17                                                            3


appellee married. The parties stipulated the value of 13001 Yankee Street is $122,850.

Both properties were held in appellant's name alone.

      {¶ 5} On January 12, 2017, appellant filed a complaint for Divorce which included

a separation agreement signed by the parties and financial affidavits from both parties in

the Knox County Court of Common Pleas Division of Domestic Relations. The separation

agreement addressed division of personal property which included appellant retaining all

real property, a 2003 Chevy Silverado, a 2014 Chevy Cruze, a 2012 Harley Davidson,

and accounts, life insurance and retirement in his name alone. Appellee was to retain a

2007 Chevy Trailblazer and accounts, life insurance and retirement in her name alone.

Further, the agreement stated the parties would retain all clothing, personal effects,

household goods, furnishings and equipment as the parties had agreed upon.

      {¶ 6}   On February 23, 2017, appellee filed a Motion to Set Aside Separation

Agreement and the Validity of the Ante-Nuptial Agreement. On November 9, 2017 a

magistrate's order indicated the parties agreed:



              The ante-nuptial agreement is valid and enforceable as it pertains to

              the property listed on attached Exhibit A and Exhibit B of the ante-

              nuptial agreement. * * * However, the ante-nuptial agreement does

              not address spousal support or the real property purchased during

              the marriage. Therefore, the portions of the separation agreement

              that address spousal support and the real property purchased during

              the marriage will be set aside. Those issues shall be presented at a
Knox County, Case No. 18CA17                                                            4


             final hearing. All other portions of the separation agreement shall be

             enforced.



      {¶ 7} Exhibits A and B of the antenuptial agreement listed property owned by the

parties at the time the antenuptial agreement was drafted. Most of the items listed were

no longer owned by the parties by the time the divorce was filed. Neither party filed a

Civ.R. 53 motion to set aside the magistrate's order.

      {¶ 8} Final hearing on the matter took place on April 26, 2018. Counsel for

appellee indicated his client would be asking for a monetary property settlement as she

believed appellant was receiving the greater portion of marital property. Counsel for

appellant asked the court to abide by the separation agreement.

      {¶ 9} During the hearing, the court heard testimony pertaining to the real property

as well as tools and other equipment remaining in appellant's possession which had not

been disclosed on his financial affidavit. Appellant objected only to appellee's actual

knowledge of the value of the tools and equipment and their relevance, claiming the items

had been purchased with his settlement funds. The trial court limited appellee's testimony

to those items for which she knew the actual value.

      {¶ 10} On June 4, 2018 the magistrate issued findings of fact and conclusions of

law. Appellee was awarded spousal support in the amount of $400 a month plus

processing for a period of nine years, as well as a cash settlement of $29,894.50.

      {¶ 11} Appellant filed objections and supplemental objections to the magistrate's

findings. Relevant to this appeal, appellant again never challenged the magistrate's

November 9, 2017 finding that the antenuptial agreement did not address spousal
Knox County, Case No. 18CA17                                                              5


support. Appellant did, however, object to the magistrate's finding that the 0 Property was

marital property as well as the magistrate's use of values of property retained by the

parties to calculate appellee's cash settlement.

       {¶ 12} The trial court sustained appellant's objection regarding the 0 Property,

finding the deed to the property is in appellant's name only. However, the trial court

overruled appellant's objection to the magistrate's finding that the improvements to the

property were made with marital funds. The trial court further found that because spousal

support was a contested issue, it was necessary and proper for the magistrate to

determine what was marital and separate property, the value of that property, and then

to divide that property equitably. The trial court further found that each party was awarded

the same property agreed upon in their separation agreement, and that any additional

property awarded was due to both parties failure to disclose all property in their financial

agreement. Finally, the trial court noted that without the property settlement, appellant's

spousal support would potentially increase.

       {¶ 13} Appellant filed an appeal and the matter is now before this court for

consideration. He raises three assignments of error;

                                              I

       {¶ 14} "THE COURT DID NOT FOLLOW THE ANTENUPTIAL AGREEMENT

EXECUTED BY EACH PARTY AND FULLY EXPLAINED BY INDEPENDENT COUNSEL

PRIOR TO THE MARRIAGE."

                                              II
Knox County, Case No. 18CA17                                                               6


       {¶ 15} "THE COURT DID NOT FOLLOW THE SEPARATION AGREEMENT

EXECUTED       BY    EACH     PARTY      WHICH     INVOLVED       SIX   (6)   WEEKS      OF

NEGOTIATIONS."




                                             III

       {¶ 16} "THE COURT ERRED IN HOLDING THAT DEFENDANT/APPELLEE HAD

NOT COMMITTED FINANCIAL MISCONDUCT THROUGHOUT THE TERM OF THIS

MARRIAGE."

                                              I

       {¶ 17} In his first assignment of error appellant argues the trial court abused its

discretion when it failed to follow the terms of the antenuptial agreement by awarding

appellee spousal support, contrary to the terms of the agreement. We disagree.

       {¶ 18} Civ.R. 53(D)(3)(b)(iv) provides:

       {¶ 19} "Except for a claim of plain error, a party shall not assign as error on appeal

the court's adoption of any factual finding or legal conclusion, whether or not specifically

designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless

the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b)."

       {¶ 20} Appellant asks us to find the antenuptial agreement prohibits an award of

spousal support. Appellant never objected to the November 9, 2017 order, and has

thereby waived his right to raise this issue on appeal. Even if that were not so, appellant's

argument would fail. As outlined in our statement of facts, the November 9, 2017
Knox County, Case No. 18CA17                                                            7


magistrate's order indicated that while the parties agreed that the antenuptial agreement

was a valid and enforceable document insofar as the property the parties had listed in

their exhibits, the parties also agreed that the document did not address spousal support.

We cannot interpret a document that does not address spousal support at all as

prohibiting the same.

      {¶ 21} The first assignment of error is overruled.



                                               II

      {¶ 22} Appellant next argues the trial court abused its discretion by awarding

appellee a personal property settlement of $29,894.50. Specifically, appellant argues the

separation agreement was valid, and based on "the court's own conduct during trial" the

settlement award was unjust. Appellant argues the trial court based the award on his

failure to enter evidence of personal property after the trial court stated no evidence of

personal property was to be presented. We disagree.

      {¶ 23} First, in order to find an abuse of discretion, we must determine the trial

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

of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

      {¶ 24} Next, spousal support was the central issue during the final hearing in this

matter. As discussed above, both parties agreed that the antenuptial agreement did not

address spousal support. R.C. 3105.18(B) provides a trial court may award reasonable

spousal support to either party upon request and after the court determines the division

or disbursement of property under R.C. 3105.171.
Knox County, Case No. 18CA17                                                              8


       {¶ 25} In determining whether spousal support is appropriate and reasonable, and

in determining the nature, amount, terms of payment, and duration of spousal support,

R.C. 3105.18(C)(1) directs the trial court to consider the following 14 factors:



              (a) The income of the parties, from all sources, including, but not

              limited to, income derived from property divided, disbursed, or

              distributed under section 3105.171 of the Revised Code;

              (b) The relative earning abilities of the parties;

              (c) The ages and the physical, mental, and emotional conditions of

              the parties;

              (d) The retirement benefits of the parties;

              (e) The duration of the marriage;

              (f) The extent to which it would be inappropriate for a party, because

              that party will be custodian of a minor child of the marriage, to seek

              employment outside the home;

              (g) The standard of living of the parties established during the

              marriage;

              (h) The relative extent of education of the parties;

              (i) The relative assets and liabilities of the parties, including but not

              limited to any court-ordered payments by the parties;

              (j) The contribution of each party to the education, training, or earning

              ability of the other party, including, but not limited to, any party's
Knox County, Case No. 18CA17                                                             9


              contribution to the acquisition of a professional degree of the other

              party;

              (k) The time and expense necessary for the spouse who is seeking

              spousal support to acquire education, training, or job experience so

              that the spouse will be qualified to obtain appropriate employment,

              provided the education, training, or job experience, and employment

              is, in fact, sought;

              (l) The tax consequences, for each party, of an award of spousal

              support;

              (m) The lost income production capacity of either party that resulted

              from that party's marital responsibilities;

              (n) Any other factor that the court expressly finds to be relevant and

              equitable.”



       {¶ 26} Appellant does not argue that the trial court failed to comply with these

statutory requirements. Instead he complains that the trial court based its award on his

failure to enter evidence of personal property after stating no evidence of the value of

personal property was to be presented at trial. The record does not support appellant's

position.

       {¶ 27} As discussed above, before final hearing in this matter, the magistrate found

the separation agreement was valid and enforceable except for the issues of spousal

support and real property purchased during the marriage which would be addressed at

the final hearing. At final hearing, the following exchange took place:
Knox County, Case No. 18CA17                                                        10




           The Court: Okay. Do you have the stipulations and the division of

           property, is it confined to any type of writing?

           [Counsel for appellee]: No. [counsel for appellant] and I just

           discussed it beforehand.

           ***

           [Counsel for appellee] I have a balance sheet that would reflect our

           position but, we don't have a Separation Agreement.

           The Court: Okay. If there's - - if there's an agreement in regards to

           the division how - - I mean, I don't want - - there's no reason to

           present that through testimony. I think you have an agreement

           written out it will be more clear to the court, unless I'm missing

           something.

           [Counsel for appellee]: Yeah, the key would be that Ms. Holston is

           going to ask for - - for a monetary settlement because her position

           will be that Mr. Holston is receiving a greater portion of the marital

           property, and so in order to make it equitable she's going to ask for

           some cash.

           The Court: Okay.

           [Counsel for appellant]: And we believe there indeed is a Separation

           Agreement that was signed and we're going to be putting that on.

           T. 5-6, emphasis added.
Knox County, Case No. 18CA17                                                                     11

       {¶ 28} Thus, the trial court recognized that the parties had agreed as to the division

of property, and it did not change anything the parties had agreed to; the parties were

awarded the same property they had agreed to in their separation agreement. The court

was nonetheless required to determine the value of that property in order to calculate

spousal support. Any additional property included in the trial court's calculations was the

result of failure by the parties to disclose all of their property in their financial affidavits. T.

62-64. Nowhere in the record does the trial court indicate the value of personal property

will not be addressed, and appellant was not prohibited from presenting his own evidence

of the same. We therefore find no abuse of discretion in the trial court's use of the value

of property retained by each party to arrive at a property settlement and spousal support.

       {¶ 29} Under this same assignment of error, appellant further argues numerous

items of property considered by the court were purchased with his personal injury

settlement, and therefore should have been excluded from spousal support calculations,

as those items were separate property. The spouse seeking to identify and protect his

own separate property, however, bears the burden of tracing the existence of the

separate property within otherwise commingled property. Peck v. Peck, 96 Ohio App.3d

731, 734, 645 N.E.2d 1300 (12th Dist. 1994).

       {¶ 30} Our examination of the record reveals appellant failed to meet this burden.

He testified he had no idea which accounts he had deposited his settlement into, and that

some funds were placed in joint accounts. T. 85. He further presented no evidence to

show any personal property was purchased with separate funds.

       {¶ 31} Having found no abuse of discretion, the second assignment of error is

overruled.
Knox County, Case No. 18CA17                                                           12


                                           III

      {¶ 32} In his final assignment of error, appellant argues the trial court abused its

discretion by finding appellee had not committed financial misconduct throughout the term

of the marriage by withdrawing "over $100,000" from appellant's bank accounts." We

disagree.

      {¶ 33} R.C. 3105.171(E)(3) provides “[i]f 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.” The burden of proving

financial misconduct is on the complaining spouse.

      {¶ 34} It is within the trial court's discretion to determine whether a spouse

committed financial misconduct, subject to a review of whether the determination is

against the manifest weight of the evidence. Boggs v. Boggs, 5th Dist. Delaware App. No.

07 CAF 02, 2008-Ohio-1411 ¶ 73, citing Babka v. Babka, 83 Ohio App.3d 428, 615 N.E.2d

247 (1992).

      {¶ 35} In Kilpatrick v. Kilpatrick 5th Dist. Delaware No. 2011-Ohio-443, ¶ 30-32 we

stated:



              Financial misconduct implies some type of wrongdoing such as

              interference with the other spouse's property rights. Bucalo v.

              Bucalo, 9th Dist. Medina App. No. 05CA0011-M, 2005-Ohio-6319.

              The burden of proving financial misconduct is on the complaining
Knox County, Case No. 18CA17                                                            13

            party. Gallo v. Gallo, 2002-Ohio-2815, 8th Dist. Lake App. No. 2000-

            L-208.



            In Mikhail v. Mikhail, 6th Dist. Lucas App. No. L-03-1195, 2005-Ohio-

            322, the Sixth District found that financial misconduct must be based

            on “wrongdoing.” In describing the wrongdoing, the court stated

            “[t]ypically, the offending spouse * * * either profit[s] from the

            misconduct or intentionally defeat[s] the other spouse's distribution

            of marital assets.” Id. at ¶ 28.



            In Eggeman v. Eggeman, 3rd Dist. Auglaize App. No. 02-04-06,

            2004-Ohio-6050, the Third Appellate District also found that “[b]efore

            a compensating award is made * * * there must be a clear showing

            that the offending spouse either profited from the alleged misconduct

            or intentionally defeated the other spouse's distribution of assets.” Id.

            at ¶ 24. The court found while the husband did engage in financial

            misconduct, the distributive award to the wife was not warranted

            because the record failed to show the husband personally gained or

            profited from his misconduct or that the wife's interest was defeated.

            Id.



      {¶ 36} Appellant presented no evidence to show appellee personally profited from

withdraws made nor that she made withdraws in order to interfere with appellant's
Knox County, Case No. 18CA17                                                             14


distribution of assets. The withdraws were made over many years, and years before

appellant filed for a divorce.

       {¶ 37} Out of the claimed $100,000, appellant points to one specific withdraw by

appellee of $42,000 from a certificate of deposit (CD). The withdraw was made four years

before he filed for a divorce. Appellant testified the CD was in his name only, but appellee

testified it was in both their names. Appellant produced no documentation to demonstrate

it was in his name only. T. 19, 53. He also testified that these funds were proceeds of his

personal injury settlement, which was his separate property. However, he also testified

that proceeds from the settlement were placed into accounts that both he and appellee

had access to. Appellee testified that she withdrew $42,000 from the CD at appellant's

direction as appellant had been gambling heavily and directed her to place the funds into

an account he could not access. Appellee stated she then later used the funds to

purchase a Chevy Cruze for appellant and a car for her daughter from a previous

relationship. T. 19-20. Appellant testified he purchased the Cruze with lottery winnings,

but produced no evidence of the same. T. 51-52.

       {¶ 38} Appellant further testified that appellee made other withdrawals without his

knowledge, but he could not remember which accounts appellee had access to nor could

he definitively state how much money she allegedly took, when she took it, or what she

did with the money. T. 52.

       {¶ 39} We have reviewed the record and find the trial court's determination that

appellee did not engage in financial misconduct is not against the manifest weight of the

evidence. Appellant failed to produce evidence to demonstrate that appellee personally

gained or profited from her activities, or that his interest was defeated.
Knox County, Case No. 18CA17                                            15


      {¶ 40} The final assignment of error is overruled.

      {¶ 41} The judgment of the Knox County Court of Common Pleas Domestic

Relations Court is affirmed.



By Wise, Earle, J.

Hoffman, P.J. and

Baldwin, J. concur.


EEW/rw
