[Cite as Budd v. Budd, 2013-Ohio-2170.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

ROBERT J. BUDD                                        C.A. No.       26132

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LINDA M. BUDD nka MUNKA                               COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   2004-09-3850

                                DECISION AND JOURNAL ENTRY

Dated: May 29, 2013



        BELFANCE, Judge.

        {¶1}    Appellant Linda Budd, nka Munka (“Wife”), appeals from the decision of the

Summit County Court of Common Pleas, Domestic Relations Division. For the reasons set forth

below, we affirm in part and reverse in part.

                                                 I.

        {¶2}    This Court summarized much of the facts of this matter in one of the prior

appeals:

        Plaintiff–Appellee, Robert Budd (“Husband”), and Wife were married in May
        1976 and had three children together, all of whom [were] emancipated at the time
        the parties’ divorce proceeding commenced. At the time of the divorce, Wife,
        who was 51 years old, was employed as a computer teacher in Garfield Heights
        City School District. Husband, who was 56 years old at the time, worked as a beer
        delivery driver for The House of LaRose in Akron.

        In September 2004, shortly after Wife had left the marital residence, Husband
        filed for divorce and Wife filed an answer and counterclaim for the same. The
        trial court held a hearing in September 2005, at which point the parties agreed to a
        division of property and waived any request for spousal support. After several
        unsuccessful attempts to obtain Wife’s approval, Husband submitted an entry to
        the court, without Wife’s signature, purporting to represent the parties’ agreement
                                                  2


       from the September 2005 hearing. The trial court entered the order as submitted
       and granted the parties a divorce on March 1, 2006.

       Shortly thereafter, Wife filed a motion for relief from judgment, arguing that the
       trial court had entered the terms of the parties’ divorce decree without giving her
       the opportunity to be heard on her objections to the proposed entry. Specifically,
       Wife complained that Husband’s entry failed to incorporate information related to
       his Social Security and retirement health insurance benefits, in addition to a
       certificate of deposit held in his name. The trial court granted Wife’s motion to
       vacate and held a new trial in the matter on November 9, 2006. Later that month,
       the trial judge recused himself from the case before issuing a decision because he
       had received [] an ex parte communication from Wife. Wife’s attorney also
       withdrew based on the contents of the letter she submitted to the trial court about
       his performance. A new judge was assigned to the case, and Wife obtained a new
       attorney. Husband requested the division of property be decided based on the
       transcript of the November 2006 hearing, which Wife opposed. Wife then filed a
       motion for a new trial, which Husband opposed. The matter was reset for trial on
       May 20, 2008. The trial court received updated pension information in June
       2008, and in October 2008, issued a decision dividing the parties’ assets and
       ordering Wife to pay $400 per month in spousal support to Husband for a period
       of ten years.

       Wife appealed from the trial court’s decision, and this Court reversed after
       concluding that the trial court had not specified the precise date upon which the
       marriage was terminated for purposes of valuing the marital assets. Budd v. Budd,
       9th Dist. No. 24485, 2009–Ohio–2674. Upon remand, the trial court issued a
       revised decision in which it reached the same division of assets and established
       the final hearing date of May 20, 2008, as the termination date of the marriage.
       Wife again appealed. This Court reversed the trial court’s decision because,
       despite the trial court’s assertion that it valued the assets as of the date of the final
       hearing, the record demonstrated otherwise. Budd v. Budd, 9th Dist. No. 24899,
       2010–Ohio–55. We held that, to the extent that the trial court chose different
       valuation dates for some of the parties’ marital assets, it failed to explain its
       reasoning for doing so. Therefore, we remanded the matter for the requisite
       findings to support the trial court’s division of marital assets. Id. at ¶ 7. Upon
       remand, the trial court indicated that it relied upon the valuation evidence as
       presented at the May 20, 2008 hearing, but noted that, where the parties were able
       to update the information with their testimony at the hearing, it used the updated
       values for several assets, rather than the amounts indicated on past account
       statements that were introduced into evidence.

Budd v. Budd, 9th Dist. No. 25469, 2011-Ohio-565, ¶ 2-5.

       {¶3}    Wife again appealed raising twelve assignments of error. Id. at ¶ 6. We sustained

a portion of Wife’s assignments of error and concluded that “the trial court abused its discretion
                                                 3


in establishing the final hearing date of May 20, 2008, as the termination date of the parties’

marriage.” Id. at ¶ 15. We stated that

       the evidence indicates that the parties had bilaterally agreed that their marriage
       had ended and had acted to unwind their personal, financial, and living
       arrangements at a point well in advance of the May 20, 2008 hearing. Though the
       exact date a marriage ends is “extremely difficult to determine,” the practical
       considerations of this case require us to conclude that the marriage was terminated
       as of the date of the first hearing in this matter, November 9, 2006. Berish[ v.
       Berish], 69 Ohio St.2d [318, 320 (1982)]. Thus, the trial court abused its
       discretion in concluding otherwise and is directed to divide the parties’ marital
       assets according to the values established at the November 2006 hearing.
       Accordingly, Wife’s first, second, third, and fourth assignments of error are
       sustained.

Budd, 2011-Ohio-565, at ¶ 15.

       {¶4}    Upon remand, the trial court considered oral argument on the issues raised and

issued a decision attempting to comply with this Court’s remand. Wife has again appealed,

asserting five assignments of error for our review.

                                                II.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION TO THE DETRIMENT OF THE APPELLANT BY ISSUING A
       DECREE WHICH SUBSTANTIALLY FAVORS HUSBAND OVER WIFE,
       ESPECIALLY BY USING AN APPRAISAL DATE FOR THE MARITAL
       RESIDENCE FROM DECEMBER 22, 2004 RATHER THAN THE DE FACTO
       TERMINATION DATE SET AT NOVEMBER 9, 2006.

       {¶5}    Essentially, Wife asserts in her second assignment of error that the trial court

erred in using $175,000 as the value of the parties’ home. We do not agree.

       {¶6}    In this Court’s 2011 opinion, we ordered the trial court “to divide the parties’

marital assets according to the values established at the November 2006 hearing.” Budd, 2011-

Ohio-565, at ¶ 15. The parties stipulated at the November 2006 hearing that the value of the

marital residence was $175,000. The trial court stated “[t]he real estate, the stipulated value is
                                                   4


175,000. As I understand it, there’s no mortgage on that property?” Both parties’ counsel

answered that that was correct, and neither party raised an objection to the trial court’s

understanding of the stipulation. Accordingly, Wife’s argument is without merit and her second

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR I

          THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
          DISCRETION TO THE DETRIMENT OF THE APPELLANT BY GRANTING
          AN UNEQUAL AND INEQUITABLE DIVISION OF PROPERTY IN
          VIOLATION OF STATUTORY AUTHORITY AND THIS COURT’S
          MANDATES.

          {¶7}   Wife asserts in her first assignment of error that the trial court’s property division

was unequal and inequitable. Wife takes issue with the trial court’s listing, valuation, and

distribution of assets.

          {¶8}   “A trial court has broad discretion in making divisions of property in domestic

cases.”    (Internal quotations and citation omitted.)      Hines v. Hines-Ramsier, 9th Dist. No.

09CA0022, 2010-Ohio-2996, ¶ 4.

          {¶9}   As noted above, this Court instructed the trial court “to divide the parties’ marital

assets according to the values established at the November 2006 hearing.” Budd, 2011-Ohio-

565, at ¶ 15. Thus, in reviewing the trial court’s current decision, this Court began by reviewing

the transcript of the November 2006 hearing. Review of that transcript revealed that the parties

stipulated to a joint exhibit which supposedly listed “a vast majority of the assets” and their

values.    That exhibit was referred to as “Joint Exhibit 1” and was subsequently admitted.

Accordingly, given our instruction to the trial court in our prior opinion, that exhibit would be

vital in reviewing whether the trial court complied with our prior remand. This is especially so
                                                  5


because during the November 2006 hearing the parties referenced the exhibit but did not reiterate

its entire contents in the record.

        {¶10} Unfortunately, and through no apparent fault of the parties, that exhibit is not part

of the record on appeal and cannot be located, despite two show cause orders initiated by this

Court. Wife, in response to the show cause order, also stated that the parties do not agree what

information should have been in the joint exhibit. Accordingly, it is difficult for this Court to

conduct a meaningful review of the trial court’s property division.            However, while it is

impossible for us to know whether the trial court abused its discretion in its property division in

light of the absence of Joint Exhibit 1, we do have enough of a record to determine that the

property division is erroneous. It is apparent from the face of the record that the trial court’s

property division is problematic. For example, the transcript of the November 2006 hearing

indicates that the Teamster’s 401(k) pension was valued at $96,000, yet, the trial court valued it

at $97,292 in its entry. The transcript of the November 2006 hearing also seems to indicate that

Husband’s social security benefits totaled $244,000, while the trial court’s entry lists the benefits

as $224,074. This Court does not maintain that the transcript values are precise or even accurate,

only that the trial court’s entry does not reflect the values in the transcript leading us to be unable

to presume that the trial court’s values reflect the stipulated values found in the missing joint

exhibit.    Further, we note that the transcript seems to imply that Husband also possessed a

Putnam Investment account and that account is not listed in the trial court’s entry as a marital

asset.1 Additionally, in offsetting Wife’s STRS pension (listed as $167,106) with Husband’s

social security benefits (listed as $224,074), the trial court concludes that this would mean



        1
        Husband was asked, “And you have a Putnam Investments which is an IRA?” Husband
responded affirmatively.
                                                 6


Husband is owed $8,375. Such is clearly erroneous, even when using the trial court figures.

Further, both parties agree that the property division is erroneous. Husbands notes in his

appellate brief that “Appellant appears to be correct that the trial court erred in some of the

division of additional assets.”

       {¶11} Finally, the trial court’s property division impermissibly commingles spousal

support with the property division. The trial court concluded that, after dividing the property,

Husband owed Wife $138,390. It seems that the trial court recognized that, in order to equalize

the property division, Wife was owed $138,390. The trial court then concluded Wife owed

Husband $1500 per month in spousal support for 120 months or a total of $180,000. This Court

makes no determination as to the appropriateness of either calculation, but does take issue with

what the trial court did next: the trial offset the $138,390 property division award to Wife with

what Wife owed Husband in spousal support (i.e. $180,000), thereby concluding that ultimately

Husband owed Wife no money and Wife owed Husband $41,610 in spousal support, payable at a

rate of $347 per month over 120 months.

       {¶12} Such is clearly prohibited by R.C. 3105.171. R.C. 3105.171(C)(3) states that

“[t]he court shall provide for an equitable division of marital property under this section prior to

making any award of spousal support to either spouse under section 3105.18 of the Revised Code

and without regard to any spousal support so awarded.” See also Vincent v. Vincent, 9th Dist.

No. 15016, 1991 WL 231563, *2 (Nov. 6, 1991) (“When the trial court ordered ‘this debt shall

be paid as spousal support’ it impermissibly merged the distributive award and spousal

support.”); McMahon v. McMahon, 11th Dist. No. 2001-P-0042, 2002-Ohio-3378, ¶ 10 (noting

that R.C. 3105.171(C)(3) “clearly reveals that the General Assembly intended to stop the trial

court from combining the award of marital property and the spousal support award[]”); Jendrusik
                                                 7


v. Jendrusik, 7th Dist. No. 00 BA 54, 2001 WL 1667871, *3 (Dec. 17, 2001) (“The statutory

scheme now clearly distinguishes the two determinations and requires the trial court to equitably

divide the marital property prior to deciding whether to grant spousal support. The statute also

requires that spousal support not be considered in determining the division of marital property.”);

Krisher v. Krisher, 82 Ohio App.3d 159, 165 (3d Dist.1992) (“[T]he trial court committed error

in awarding a setoff against spousal support to compensate appellant for a cash award he is

entitled to receive from appellee to achieve equity in the distribution of marital assets. We

believe that the better approach to enforcing the award would have been to allow appellant a

‘distributive award’ pursuant to R.C. 3105.171(E)(1) and (2).”).

       {¶13} Given these numerous problems in the property division apparent on the face of

the record, we cannot presume that the trial court properly considered the missing joint exhibit in

ordering the property division. In light of the foregoing, we sustain Wife’s first assignment of

error and remand the matter to the trial court for further proceedings. Upon remand, if the trial

court has the exhibits from the November 2006 hearing in its possession, it should ensure that

such are made part of the record. If Joint Exhibit 1 or any other trial exhibits are truly lost, the

trial court is instructed to conduct a hearing at which the parties shall set forth what each side

believes constitutes Joint Exhibit 1 and any other missing exhibits admitted at the November

2006 hearing. Additionally, to the extent the parties disagree as to contents of the exhibits that

were admitted at the November 2006 hearing, then the trial court may take any testimony or

evidence necessary to resolve the dispute. Thereafter, the trial court shall determine the item or

items that represent the exhibits admitted at the November 2006 hearing.2 The trial court shall



       2
        To the extent that the parties did not provide the value of a particular asset at the time of
the 2006 hearing, nothing in this opinion should be construed to prevent the parties from
                                                 8


utilize those exhibits, particularly Joint Exhibit 1, in conducting the property division according

to the appropriate statutory provisions and case law. See, e.g., R.C. 3105.171. After the trial

court has determined the property division, it can then decide if a spousal support award is

appropriate. See R.C. 3105.171(C)(3). Wife’s first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION TO THE DETRIMENT OF THE APPELLANT BY IGNORING
       R.C. 3105.18 ET SEQ. IN ORDERING SPOUSAL SUPPORT.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION TO THE DETRIMENT OF APPELLANT BY SETTING
       SPOUSAL SUPPORT USING INCOME FIGURES AND OTHER R.C. 3105.18
       FACTORS AS THEY EXISTED IN 2008 RATHER THAN NOVEMBER 9,
       2006, THE DE FACTO TERMINATION DATE.

                                  ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION TO THE DETRIMENT OF THE APPELLANT BY FAILING TO
       FIND THAT THE HUSBAND IS VOLUNTARILY UNEMPLOYED.

       {¶14} In light of our resolution of Wife’s first assignment of error, her third, fourth, and

fifth assignments of error are not properly before us as the trial court will be required to

reconsider its spousal support award after it conducts an appropriate property division. See R.C.

3105.171(C)(3) (“The court shall provide for an equitable division of marital property under this

section prior to making any award of spousal support to either spouse under section 3105.18 of

the Revised Code and without regard to any spousal support so awarded.”).




obtaining such value and stipulating to such value as of the date of the November 2006 hearing
or, in the absence of a stipulation, presenting competing values for the trial court’s consideration.
                                                 9


                                                III.

       {¶15} In light of the foregoing, we sustain Wife’s first assignment of error, overrule her

second assignment of error, and decline to address her remaining assignments of error. The

judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is

affirmed in part, reversed in part, and the matter is remanded for proceedings consistent with this

opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
                                         10



MOORE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

SUSAN K. PRITCHARD, Attorney at Law, for Appellant.

RANDAL A. LOWRY and KENNETH L. GIBSON, Attorneys at Law, for Appellee.
