[Cite as Kinkaid v. Kinkaid, 2016-Ohio-7680.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BETH KINKAID                                    :   JUDGES:
                                                :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                                :   Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :
CHARLES KINKAID, JR.                            :   Case No. 2016CA00001
                                                :
        Defendant-Appellant                     :   OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Domestic Relations Division,
                                                    Case No. 2014DR01153



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   November 7, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

LORRIE FUCHS                                        SANDRA K. CHESHIRE
3974 Wales Avenue, NW                               1401 South Main Street
Massillon, OH 44646                                 Suite 102
                                                    North Canton, OH 44720
Stark County, Case No. 2016CA00001                                                    2

Farmer, P.J.

        {¶1}   Appellant, Charles Kinkaid, Jr., and appellee, Beth Kinkaid, were married

on June 18, 1988.      On November 4, 2014, appellee filed a complaint for divorce.

Hearings before a magistrate were held on April 30, June 29, and August 26, 2015. By

decision filed October 15, 2015, the magistrate divided the parties' property, found

appellant had committed financial misconduct, and ordered appellant to pay appellee

spousal support in the amount of $2,080 per month for one hundred and two months.

Appellant filed objections. A hearing was held on December 14, 2015. By judgment

entry filed December 16, 2015, the trial court overruled the objections and approved and

adopted the magistrate's decision. A final decree of divorce was filed on January 19,

2016.

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

consideration. Assignments of error are as follows:

                                            I

        {¶3}   "THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT ADOPTED FINDINGS OF FACTS

REGARDING FINANCIAL MISCONDUCT WITH THE 2013 TESPHE LOAN, BY

DEFENDANT, WHICH WERE NOT SUPPORTED BY THE FACTUAL RECORD AND

WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                            II

        {¶4}   "THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT ADOPTED FINDINGS OF FACTS

REGARDING FINANCIAL MISCONDUCT WITH THE 2014 TESPHE LOAN, BY
Stark County, Case No. 2016CA00001                              3


DEFENDANT, WHICH WERE NOT SUPPORTED BY THE FACTUAL RECORD AND

WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                     III

     {¶5}    "THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT ADOPTED FINDINGS OF FACTS

REGARDING VALUATION OF THE 1998 JEEP, WHICH WAS NOT SUPPORTED BY

THE FACTUAL RECORD AND WERE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE."

                                     IV

     {¶6}    "THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT ADOPTED FINDINGS OF FACT

WHEN IT CHARGED THE HUSBAND IN CONNECTION WITH THE DISTRIBUTION

OF ASSETS AND DEBTS, FOR $10,956.94 OF MONIES EARNED AND KEPT,

WHICH WAS NOT SUPPORTED BY THE FACTUAL RECORD AND WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE."

                                     V

     {¶7}    "THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT ADOPTED FINDINGS OF FACTS

REGARDING HUSBAND'[S] ANNUAL EARNINGS, WHICH WERE NOT SUPPORTED

BY THE FACTUAL RECORD AND WERE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE."
Stark County, Case No. 2016CA00001                                                 4


                                         VI

      {¶8}   "THE COURT OF COMMON PLEASE (SIC) COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION BY USING WIFE'S PART-TIME EARNINGS

FOR PURPOSES OF DETERMINE SPOUSAL SUPPORT, WHEN SHE IS CAPABLE

OF OBTAINING FULL TIME WORK."

                                        VII

      {¶9}   "THE COURT OF COMMON PLEASE (SIC) COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION BY FAILING TO ACCOUNT FOR AND

DETERMINE HUSBAND'S REASONABLE LIVING EXPENSE, FOR PURPOSES OF

DETERMINING SPOUSAL SUPPORT."

                                        VIII

      {¶10} "THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT ADOPTED FINDINGS OF FACTS

REGARDING WIFE'S REASONABLE LIVING EXPENSES, WHICH WERE NOT

SUPPORTED BY THE FACTUAL RECORD AND WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

                                         IX

      {¶11} "THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION IN THE AWARD OF SPOUSAL SUPPORT

TO THE WIFE, FOR $2,080 A MONTH FOR 108 (SIC) MONTHS, BY FAILING TO

CONSIDER AND PROPERLY APPLY ALL THE FACTORS OF O.R.C. 3105.18."

      {¶12} The assignments of error will be reviewed under the standards of abuse of

discretion and manifest weight.
Stark County, Case No. 2016CA00001                                                       5


       {¶13} 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 (1983).

       {¶14} On review for manifest weight, the standard in a civil case is identical to

the standard in a criminal case: a reviewing court is to examine the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52;

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179. In weighing the evidence,

however, we are always mindful of the presumption in favor of the trial court's factual

findings. Eastley at ¶ 21. "In a civil case, in which the burden of persuasion is only by a

preponderance of the evidence, rather than beyond a reasonable doubt, evidence must

still exist on each element (sufficiency) and the evidence on each element must satisfy

the burden of persuasion (weight)." Id. at ¶ 19.

       {¶15} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).

The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility

of each witness, something that does not translate well on the written page." Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
Stark County, Case No. 2016CA00001                                                      6


                                          I, II

      {¶16} Appellant claims the trial court erred and abused its discretion in finding he

committed financial misconduct related to the 2013 and 2014 TESPHE loans. Appellant

claims the decision was not supported by the record and was against the manifest

weight of the evidence. We disagree.

      {¶17} In its judgment entry filed January 19, 2016, the trial court adopted and

incorporated the magistrate's October 15, 2015 decision.          In said decision, the

magistrate found the following under "DEBTS":



             18. On May 1, 2013, Husband took out a loan from his TESPHE in

      the amount of $28,000.00. Per Ford Motor Company, prior to May 1, 2013

      Husband did not have an outstanding loan balance prior to taking the

      $28,000.00 loan per Ford Motor Company. Of the $28,000.00, Husband

      took $16,000.00 and bought the Victory Vision Motorcycle which is listed

      in the Dimmerling appraisal. He cannot remember what became of the

      remaining $12,000.00. Wife gave credible testimony that she was not

      aware of the extra $12,000.00 nor was Wife aware of the fact that

      Husband was going to take a loan out for $28,000.00 when the motorcycle

      cost $16,000.00.    Husband concealed the $12,000.00 from the Wife.

      Neither Wife nor the marital estate ever benefitted from the $12,000.00

      obtained by Husband. Husband profited from the extra $12,000.00 to the

      detriment of Wife's property interests.      Husband committed financial

      misconduct with regard to the $12,000.00.
Stark County, Case No. 2016CA00001                                                  7


             19. On January 3, 2014, Husband took out a loan from his TESPHE

      in the amount of $11,700.00. That sum was deposited into his account.

      Husband then deposited the sum of $3,100.00 into the joint account and

      also paid $4,706.16 toward the outstanding TESPHE loan leaving

      $3,893.84. Husband could not remember what he did with the $3,893.84

      which remained from the $11,700.00 January 3, 2014 TESPHE loan.

      Husband concealed the $3,893.84 from the Wife.           Wife gave credible

      testimony that neither she nor the marital estate benefitted from the

      $3,893.84. Husband profited from the extra $3,893.84 to the detriment of

      Wife's property interests. Husband committed financial misconduct with

      regard to the $3,893.84.

             20. Due to his financial misconduct, Husband is solely responsible

      for a total of $15,893.84 of the outstanding TESPHE loan which then

      leaves $65.24 as marital debt from the TESPHE loan.



      {¶18} Appellant testified appellee knew of the loans, and some of the funds were

used to pay back other loans. April 30, 2015 T. at 125-126; June 29, 2015 T. at 4-5.

However, appellant was unable to give any accounting for the use of the funds except

for the $16,000.00 motorcycle. April 30, 2015 T. at 124-126; June 29, 2015 T. at 8-10.

Appellee denied any knowledge of what happened to the remainder of the funds or that

it was used for the family. April 30, 2015 T. at 30-34, 134-136.
Stark County, Case No. 2016CA00001                                                      8


       {¶19} The trial court awarded appellant the motorcycle, but because of his

inability to account for the remainder of the loaned amounts, assigned the debt to

appellant.

       {¶20} We find the trial court's decision is not contrary to the evidence presented.

The trial court chose to believe appellee over appellant which is clearly within the trial

court's province.

       {¶21} Upon review, we find the trial court did not err or abuse its discretion in

finding appellant committed financial misconduct.

       {¶22} Assignments of Error I and II are denied.

                                            III

       {¶23} Appellant claims the trial court erred and abused its discretion in assigning

the valuation of a 1998 Jeep. We disagree.

       {¶24} In its decision filed October 15, 2015, the magistrate found the following

under "STIPULATIONS AND SUMMARY OF ISSUES":



              6. The 1998 Jeep Wrangler with 200,000 miles on it is valued at

       $6,475.00. During these proceedings, Husband drove the vehicle to Stark

       County without getting it viewed by the appraiser despite being required to

       do so. Wife gave credible testimony that the 1998 Jeep Wrangler has a

       new engine in it and submitted a NADA value as to the Jeep. Wife also

       gave credible testimony that Husband admitted to her that he knew he

       could get at least $5,500 for the Jeep. The 1998 Jeep is awarded to

       Husband.***
Stark County, Case No. 2016CA00001                                                       9




      {¶25} The only evidence presented as to the Jeep's value was the amount

assigned by the "NADA book value" and appellee ($6,475.00). April 30, 2015 T. at 35-

36; Plaintiff's Exhibits 9A. The appraiser, Rodney Dimmerling, listed a $3,800.00 value

for the Jeep, but never viewed the vehicle in person. April 30, 2015 T. at 38, 40, 117;

August 26, 2015 T. at 41; Plaintiff's Exhibits 10 and 11. Appellant objected to the

amount, but never offered an alternative valuation. April 30, 2015 T. at 117.

      {¶26} Upon review, we find the trial court did not err or abuse its discretion in its

valuation of the Jeep.

      {¶27} Assignment of Error III is denied.

                                           IV

      {¶28} Appellant claims the trial court erred and abused its discretion in charging

him with $10,956.94 of monies kept and earned in connection with the distribution of

assets and debts. We disagree.

      {¶29} In its decision filed October 15, 2015, the magistrate found the following

under "STIPULATIONS AND SUMMARY OF ISSUES":



             8. On the division of property Husband is credited with receiving

      $10,956.94 in monies he earned and then kept after the filing of the

      Complaint for Divorce. Husband failed to deposit the $10,956.94 into the

      parties['] joint account or provide same to Wife as was the past practice.

      Husband was given credit for $2,000.00 he gave to Wife per entry dated

      12/16/14. Husband kept the $10,956.94 and profited from same to the
Stark County, Case No. 2016CA00001                                                          10


       detriment of Wife's property interests. This court did not include the lost or

       refused overtime of $3,539.74 in calculating the figure of $10,956.94.



       {¶30} During the course of the proceedings, appellant unilaterally switched the

direct deposit of his salary from the parties' joint account at FirstMerit Bank to a PNC

Bank account in his name only. April 30, 2015 T. at 19-21, 24, 135-136; Plaintiff's

Exhibit 8. Appellee was left without funds to pay the mortgage, to the extent that she

had to borrow money from friends and family.                T at 59-60; Plaintiff's Exhibit 40.

Appellant admitted to this diversion of funds. June 29, 2015 T. at 68.

       {¶31} Upon review, we find the trial court did not err or abuse its discretion in

charging him with the $10,956.94 amount.

       {¶32} Assignment of Error IV is denied.

                                     V, VI, VII, VIII, IX

       {¶33} Appellant claims the trial court erred and abused its discretion relative to

the spousal support award. Specifically, appellant claims the trial court erred on the

issues of his annual earnings, appellee's annual earnings, his living expenses,

appellee's living expenses, and in ordering him to pay appellee $2,080 per month for

one hundred and two months. We disagree.

       {¶34} R.C. 3105.18 governs spousal support.                Subsection (C) states the

following:



              (C)(1) In determining whether spousal support is appropriate and

       reasonable, and in determining the nature, amount, and terms of payment,
Stark County, Case No. 2016CA00001                                                      11


     and duration of spousal support, which is payable either in gross or in

     installments, the court shall consider all of the following 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

     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
Stark County, Case No. 2016CA00001                                                   12


     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.



     {¶35} In its decision filed October 15, 2015, the magistrate found the following

under "INCOMES":



            25. Wife, age 48, is in good physical health. She is not in good

     mental and emotional health due to the stresses caused by the breakup of

     the twenty-seven year marriage. Wife is a high school graduate with 2

     years of education toward becoming a minister in theology. Wife stopped

     her schooling once she became engaged to Husband. Wife's employment

     history consists mostly of jobs where she earned minimum wage or a little

     over minimum wage. After the parties daughter, Danielle, turned 1 ½ Wife

     quit her job in order to take care of Danielle as Danielle became very ill.

     Wife returned to work once Danielle became healthy.          Currently, Wife

     works at RiverTree in children ministry and pastoral care. Wife works
Stark County, Case No. 2016CA00001                                               13


     thirty-two hours a week earning $22,853.63 in gross annual income. Wife

     has worked at RiverTree for seven years.        Wife does have health

     insurance available to her through RiverTree at a cost of $190.00 per

     month. RiverTree does have a 401K, but Wife is not invested in it. Wife

     does not have a pension.      Wife has reasonable living expenses of

     $2,702.00 which includes the monthly cost of insurance. Some of Wife's

     expenses were inflated because she included expenses that she pays for

     others, such as phone and food expenses.

           26. Husband, age 48, is in good physical health. Husband appears

     to be in good physical and emotional health. Husband is a high school

     graduate. Husband currently works night shift at the Ford Motor Company

     in Kentucky. He has worked at the facility in Kentucky since moving there

     is 2012. He has worked for Ford since 1994 and now works Tuesday

     through Friday. Husband works on the production line at Ford earning

     $28.59 per hour. In addition to his hourly wage, Husband can receive

     profit sharing checks, overtime, bonuses, and shift differential. Husband

     pays union dues of $72.00 per month and he is paid weekly. Husband

     also pays $1,000.00 per month toward the outstanding TESPHE loans.

     Husband testified that he also volunteers his time at Danny's Gun Shop,

     although from Husband's posts ("Started Working at Danny's Gun

     Repair"), it appears that the Danny's Gun Shop time is more than

     volunteer time or a hobby. In 2011, Husband earned gross annual income

     of $82,198.00.    In 2012, Husband earned gross annual income of
Stark County, Case No. 2016CA00001                                                   14


       $148,522.87.     In 2013, Husband earned gross annual income of

       $85,680.09.     In 2014 Husband earned gross annual income of

       $91,997.24.    During cross examination, counsel for Wife confronted

       Husband with her calculations for what should be Husband's projected

       income for 2015. Specifically, counsel indicated that he should be on

       track to earn $83,840.00 to which Husband responded: Sure we'll go with

       that. In addition to the $83,840.00, Attorney Fuchs argued that Husband

       could have earned additional sums for shift differential and vacation time

       worked. From the testimony and evidence presented, it is obvious that

       Husband refused extra shift opportunities for reasons that were clearly set

       forth in the testimony and in his text messages regarding his feelings

       about his Wife. This court finds Husband's gross annual income should

       equate to $86,940.00.    This sum is reasonable in light of Husband's

       historical earnings.   Husband has health insurance and a pension.

       Husband's monthly living expenses have been reviewed.



       {¶36} In its judgment entry filed January 19, 2016, the trial court concluded the

following:



             The court considered all of the spousal support factors and finds

       spousal support to be appropriate and reasonable in this case.         RC

       3105.18(C)(1). Spousal support shall be taxable to Wife and deductible to

       Husband.
Stark County, Case No. 2016CA00001                                                15


            Commencing November 1, 2015, and subject to the continuing

     jurisdiction of the court, the Husband shall pay to the Wife the sum of

     $2,080.00 per month, plus 2% processing fee. This spousal support shall

     terminate upon either party's death, the Wife's remarriage or 102 months,

     whichever first occurs.

            This court may modify the amount or term of this spousal support

     order upon the change of circumstances of a party, which includes, but is

     not limited to, any increase or involuntary decrease in the party's wages,

     salary, overtime, bonuses, living expenses or medical expenses.       RC

     3105.18(3)(1), (F).

            The obligations set forth in this order are deemed to be necessary

     domestic support obligations which are non-dischargeable in bankruptcy.

     However, should a bankruptcy court permit discharge, this court reserves

     jurisdiction to continue and/or modify spousal support.

            Unless agreed otherwise, all spousal support ordered herein shall

     be withheld from the wages or assets of the Husband pursuant to a

     withholding or deduction notice or appropriate court order. All necessary

     withholding language shall be included within the final entry.

            Each party shall be responsible for their own health insurance and

     related expenses.

            Commencing November 1, 2015, Wife shall immediately seek full

     time employment as set forth within this entry or at forty (40) hours per

     week and Wife shall keep a written record of her seek work efforts.
Stark County, Case No. 2016CA00001                                                   16




      {¶37} The trial court’s valuation of appellant’s earnings was based upon his W-2

earnings for the years 2011 to 2014. Plaintiff's Exhibits 15-18. The amount chosen

($86,940.00) was a median amount between $82,198.00 to $98,522.87 ($148,522.87

earned in 2012 minus a $50,000.00 extraordinary bonus).         On cross-examination,

appellant agreed his average income for 2011 to 2014 was $91,566.00. June 29, 2015

T. at 33. Appellant also agreed in 2015, the year of the hearings, his income would be

$83,840.00. Id. at 38.

      {¶38} Upon review, we find the trial court did not abuse its discretion in

determining appellant's income.

      {¶39} Appellant argues appellee's income should have been imputed to an

amount greater than an income based on thirty-two hours per week. We find the trial

court acknowledged appellee only worked thirty-two hours, and ordered her to seek

employment to reach forty hours per week.       The trial court retained jurisdiction to

address this issue given the fact that appellee was relatively new to the work force

(seven years), and during the marriage, had been a part time worker and/or a stay-at-

home spouse caring for the children, one of which had medical issues. April 30, 2015

T. at 10-14; June 29, 2015 T. at 34-35.

      {¶40} Upon review, we find the trial court did not abuse its discretion in

determining appellee's income.

      {¶41} Appellant also challenges the trial court's determination of the living

expenses of each party. Appellant argues some of appellee's living expenses were

inflated, yet adopted by the trial court, whereas the trial court disregarded his living
Stark County, Case No. 2016CA00001                                                          17


expenses which should have totaled $2,200.00, thereby missing $1,128.00 in expenses.

Appellant's Brief at 29-30.

       {¶42} Appellant challenges the credibility of appellee’s testimony relative to her

living expenses. Appellee testified her anticipated expenses based on needs to be

$3,468.00 per month. April 30, 2015 T. at 40-42; Plaintiff's Exhibit 12. As cited above,

the trial court determined appellee's living expenses to be $2,702.00 per month, a

difference of $766.00 less per month.

       {¶43} Appellant testified to his living expenses amounting to approximately

$1,150.00 per month. June 29, 2015 T. at 79-81; Plaintiff's Exhibit 29. Yet appellant

argues the trial court deflated his anticipated expenses of $2,200.00 per month by

$1,128.00 per month, for a net amount of $1,072.00 per month, a difference of $78.00

less per month.      Any monthly union dues and/or loan payments deducted from

appellant's paycheck are employment expenses and payments for loans from his

pension accounts facilitated by his own choices. April 30, 2015 T. at 103-104.

       {¶44} Upon review, we find the trial court did not abuse its discretion in

determining the living expenses of each party.

       {¶45} Appellant argues the spousal support award of $2,080.00 to be an abuse

of discretion. In considering the gross income of each party and their respective living

expenses, the spousal support award to appellee gives her approximately $16,400.00

less per year than appellant to live on for one hundred and two months. Considering

the marriage was a long term marriage of twenty-seven years, appellant has the ability

to earn overtime, and the trial court retained jurisdiction over the issue, we fail to find the
Stark County, Case No. 2016CA00001                                                   18


spousal support determination to be an abuse of discretion. June 29, 2015 T. at 19;

Plaintiff's Exhibits 26, 26A, and 27.

       {¶46} Upon review, we find the trial court did not err or abuse its discretion in

fashioning the spousal support award.

       {¶47} Assignments of Error V, VI, VII, VIII, and IX are denied.

       {¶48} The judgment of the Court of Common Pleas of Stark County, Ohio,

Domestic Relations Division is hereby affirmed.

By Farmer, P.J.

Hoffman, J. and

Baldwin, J. concur.




SGF/sg 9/27
