[Cite as Raykov v. Raykov, 2012-Ohio-2611.]


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

PAUL A. RAYKOV                                      C.A. No.      26107

        Appellee/Cross-Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
NANCY E. RAYKOV                                     COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant/Cross-Appellee                    CASE No.   2010-01-0077

                                DECISION AND JOURNAL ENTRY

Dated: June 13, 2012



        WHITMORE, Presiding Judge.


        {¶1}    Appellant/Cross-Appellee, Nancy Raykov (“Wife”), appeals from the judgment of

the Summit County Court of Common Pleas, Domestic Relations Division.             Additionally,

Appellee/Cross-Appellant, Paul Raykov (“Husband”), cross-appeals from the trial court’s

judgment. This Court affirms in part and reverses in part.


                                                I


        {¶2}    Husband and Wife were married in 1985. Two children were born during their

marriage. The youngest child is scheduled to graduate high school in 2012.

        {¶3}    Before the parties were married Husband had completed his medical degree and

residency, and Wife had obtained an associate’s degree in medical technology and a bachelor of

fine arts degree. Wife worked outside of the home until the birth of their first child, at which

time she focused on tending to the children and maintaining the home.         Shortly after the
                                                 2


marriage, Husband accepted a position as an emergency room physician in Hawaii. The couple

remained in Hawaii until 1997, when Husband accepted a job in Ohio and the family relocated.

       {¶4}    By the time the couple moved to Ohio in 1997 there was trouble in the marriage.

Husband and Wife moved into separate bedrooms and ceased all sexual relations. The couple

continued to live in the same home and continued to raise the children together. Husband

continued providing the financial support for the family and helped maintain the home by doing

yard work and repairs. Wife continued to focus on raising the children, shopping for groceries,

cooking, and cleaning.

       {¶5}    In January 2010, Husband filed for divorce. Shortly thereafter, Wife filed a

counterclaim for divorce. The final hearing was held in June 2011. The parties stipulated to the

division of the marital assets, custody, and child support. The only remaining issue was spousal

support. After trial, the court awarded Wife $6,100 a month in spousal support for a term of

seven years. The court retained jurisdiction over the amount of support, but not the duration.

       {¶6}    Wife now appeals and raises three assignments of error for our review. Husband

has filed a cross appeal and also raises three assignments of error for our review. For ease of

analysis, we consolidate some assignments of error.

                                                II

                            Wife’s Assignment of Error Number One

       THE TRIAL COURT’S FINDING THAT BOTH PARTIES WILL, AFTER
       DIVISION, HAVE WELL OVER ONE MILLION IN RETIREMENT ASSETS
       IS NOT SUPPORTED BY THE RECORD AND AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶7}    In her first assignment of error, Wife argues that the court erred when it found that

both Husband and Wife “will have well over one million in retirement assets.” We agree.
                                                 3


       {¶8}    The Ohio Supreme Court has recently clarified the civil manifest weight analysis

in Eastley v. Volkman, Slip Opinion No. 2012-Ohio-2179. The Eastley Court held that “[i]n civil

cases, as in criminal cases, the sufficiency of the evidence is quantitatively and qualitatively

different from the weight of the evidence.”          Eastley at paragraph two of the syllabus.

“‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to determine * * *

whether evidence is legally sufficient to support [a finding] as a matter of law.” State v.

Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶9}    A verdict that is legally sufficient may still be against the manifest weight of the

evidence. In a challenge as to the weight of the evidence:

       [t]he [reviewing] court * * * weighs the evidence and all reasonable inferences,
       considers the credibility of the witnesses and determines whether in resolving
       conflicts in the evidence, the [finder of fact] clearly lost its way and created such a
       manifest miscarriage of justice that the [judgment] must be reversed and a new
       trial ordered.

Eastley at ¶ 20, quoting Thompkins at 387. Sufficiency challenges the burden of production,

while manifest weight challenges the burden of persuasion. Eastley at ¶ 19.

       {¶10} While Wife argues that the trial court’s finding is against the manifest weight of

the evidence, we conclude that Wife’s challenge is to the burden of production and not to the

burden of persuasion, and therefore, analyze her argument as a challenge to the sufficiency of the

evidence.

       {¶11} R.C. 3105.18(C)(1) lists factors that the court must consider when determining the

amount and duration of spousal support. One such factor is “[t]he retirement benefits of the

parties.” R.C. 3105.18(C)(1)(d). Here, the trial court made “specific findings with respect to

request by Wife for spousal support.” In these findings the court stated “Retirement is divided

equally. Both will have well over one million in retirement assets.” Wife argues that once the
                                                   4


retirement accounts are divided, she will have less than, and not well over, one million dollars in

retirement.

        {¶12} There are three retirement accounts to be split evenly between Husband and Wife:

Hawaii Permanente Medical Group Profit Sharing, Ohio Permanente Medical Group Profit

Sharing, and Physicians Retirement Plan for Ohio Medical Group. At the time of trial, the

approximate values of these accounts were $1,000,000, $250,000, and $709,247, respectively; a

total of $1,959,247. An equal division entitles Wife to $979,623.50. Wife also retained 100% of

her IRA account with an approximate balance of $13,000. After a division of the retirement

accounts, therefore, Wife would have a total of $992,623.50 in retirement.

        {¶13} Husband argues that the phrase “retirement assets” was meant to include Wife’s

share of the value of the marital home, which puts her share over a million dollars. This is not a

fair reading of the court’s judgment entry. The court addressed the retirement accounts and

assets on separate lines. On line 7(d) the court found that “Retirement is divided equally. Both

parties will have well over one million in retirement assets.” On line 7(i) the court found that the

“[p]arties have divided assets and liabilities equally.” Husband had agreed to pay Wife $190,000

for her share of the marital property by June 30, 2012. It is not reasonable to read this payment

into the line dividing retirement equally.

        {¶14} Husband further argues that the court meant that the parties will both have well

over one million dollars when they retire at some point in the future. We disagree. There is no

indication that the court was trying to predict what the value of the retirement investments would

be on some undetermined future date. Because Wife’s retirement will be less than one million

dollars and the trial court found that both parties would have “well over one million” dollars, we

conclude the trial court erred in its factual finding.
                                               5


       {¶15} The trial court was required to consider the factors listed in R.C. 3105.18(C)(1)

when determining the terms and duration of spousal support.          These factors include the

retirement benefits of the parties and “income derived from property divided, disbursed, or

distributed.” R.C. 3105.18(C)(1)(a), (d). Because the amount of retirement divided between the

parties is a factor that must be considered when determining spousal support, we are unable to

determine what impact, if any, the factual error had on the spousal support. Accordingly, Wife’s

first assignment of error is sustained.

                             Wife’s Assignment of Error Number Two

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT LIMITED THE
       DURATION OF SPOUSAL SUPPORT.

                            Wife’s Assignment of Error Number Three

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
       RESERVE JURISDICTION OVER THE TERM OF SPOUSAL SUPPORT.

       {¶16} In her second and third assignments of error, Wife argues that the court erred

when it limited the duration of spousal support and when it did not retain jurisdiction over the

term. Because we have concluded that Wife’s first assignment of error requires a remand, we

decline to address Wife’s second and third assignments of error. See App.R. 12(A)(1)(c).

                           Husband’s Assignment of Error Number One

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION BY FAILING TO FIND THAT THE APPELLANT/CROSS-
       APPELLEE, NANCY RAYKOV, WAS STILL MARRIED AT THE TIME
       THAT SHE ENTERED INTO THE MARRIAGE WITH THE
       APPELLEE/CROSS-APPELLANT, PAUL RAYKOV.

       {¶17} In his first assignment of error, Husband argues that the court erred when it failed

to find that Wife was still married to her previous husband. Specifically, Husband argues that it

was Wife’s burden to show that her divorce from her first husband was final and that she failed

to meet this burden. We disagree.
                                                  6


       {¶18} Failure to raise an issue “which [] is apparent at the time of trial, constitutes a

waiver of such issue * * *, and therefore need not be heard for the first time on appeal.” State v.

Awan, 22 Ohio St.3d 120 (1986), syllabus.

       {¶19} Husband argues that the burden of proving the validity of the marriage lies with

Wife because of her previous marriage and that Wife failed to provide proof that she was

divorced at the time of entering into the marriage with Husband. However, there is no evidence

in the record that Husband ever disputed the validity of his 26-year marriage to Wife before this

appeal. In all of the cases cited by Husband in his brief, there was a legal dispute over the

validity of a marriage. See Indus. Comm. v. Dell, 104 Ohio St. 389 (1922) (two different women

seeking compensation as widow from deceased’s employer); Dibble v. Dibble, 88 Ohio App. 490

(5th Dist.1950) (two different women claiming to be widow and surviving spouse of Herbert

Dibble); Kaur v. Bharmota, 182 Ohio App.3d 696, 2009-Ohio-2344 (10th Dist.) (two different

women seeking compensation from estate as surviving spouse); Bajurczak v. Estate of

Bajurczak, 139 Ohio App.3d 78 (9th Dist.2000) (two different women seeking to be recognized

as surviving spouse by probate court). These cases are distinguishable from this case where

Husband never raised the issue of the validity of the marriage at the trial level.

       {¶20} Husband repeatedly acknowledged that he was married to Wife in 1985 and never

challenged the validity of his marriage at the trial court level. We conclude, therefore, that he

has forfeited this issue on appeal. Husband’s first assignment of error is overruled.
                                                7


                          Husband’s Assignment of Error Number Two

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE
       DETRIMENT OF THE APPELLEE/CROSS-APPELLANT BY FAILING TO
       RULE ON HIS MOTION TO COMPEL DISCOVERY.

       {¶21} In his second assignment of error, Husband argues that the court erred when it

failed to rule on his motion to compel discovery. We disagree.

       {¶22} A trial court’s decision in a discovery matter is reviewed for an abuse of

discretion.   Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342, ¶ 18.            An abuse of

discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶23} “A motion not expressly decided by the trial court when the case is concluded is

ordinarily presumed to have been overruled.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-

2985, ¶ 13. Husband’s motion, therefore, is deemed to have been denied.

       {¶24} Additionally, Summit County Domestic Relations Court Loc.R. 20.05 requires

“[a]ll motions to compel discovery * * * be filed no later than seven days before the status

conference, initial pretrial conference or any hearing subsequent thereto.” Husband filed his

motion to compel discovery on June 28, 2011. The record is unclear as to whether the trial took

place on June 28 or 29, 2011. Either way, however, the motion was not filed seven days before

trial. Moreover, during trial Husband made no mention of his motion to compel or that he was

lacking access to necessary documents. Because Husband’s motion to compel was untimely and

not brought to the attention of the trial court, we cannot conclude that the trial court abused its

discretion by not ruling on his motion. Husband’s second assignment of error is overruled.
                                                 8


                         Husband’s Assignment of Error Number Three

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION BY FAILING TO DETERMINE THAT THE PARTIES’
       MARRIAGE HAS ENDED ON DECEMBER 31, 1997.

       {¶25} In his third assignment of error, Husband argues that the court erred when it failed

to find that the marriage had a de facto termination date in 1997, when the parties moved into

separate bedrooms. We disagree.

       {¶26} When determining an equitable division of marital property and for calculating

spousal support, it is necessary for the court to define the duration of the marriage. See R.C.

3105.171 and 3105.18. Unless it would be inequitable, the duration of a marriage is the period

of time between the date of the marriage and the date of the final divorce hearing. R.C.

3105.171(A)(2)(a). To avoid inequity, the court may find that the marriage ended prior to the

final hearing. See R.C. 3105.171(A)(2)(b). “A trial court’s determination of the dates used in

accordance with R.C. 3105.171(A)(2) is reviewed on appeal under an abuse of discretion

standard.” Dus v. Dus, 9th Dist. No. 18770, 1998 WL 733724, *3 (Oct. 21, 1998). An abuse of

discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore, 5 Ohio St.3d at 219.

       {¶27} Husband argues that it was inequitable, and an abuse of discretion, for the court to

find that the marriage ended on the date of the final divorce hearing. Specifically, Husband

argues that the court should have found that the marriage was effectively over in 1997 and the

court should have used this date to calculate his spousal support obligation.

       {¶28} Husband and Wife moved to Ohio in 1997, about which time they each moved

into separate bedrooms. Despite not having sexual relations, there is evidence in the record that

Husband and Wife were still functioning as a family unit. Husband and Wife continued to live
                                                 9


under the same roof. Husband paid the bills and maintained the home by doing lawn work and

repairs. Wife took care of the children, did the grocery shopping, and the cooking and cleaning.

While there is evidence that Wife did not clean Husband’s bedroom or prepare all of Husband’s

meals, this is not dispositive. After reviewing the record, we cannot conclude that the trial court

abused its discretion when it declined to find that the marriage had a de facto end in 1997.

Husband’s third assignment of error is overruled.

                                                III

       {¶29} Wife’s first assignment of error is sustained, and her remaining assignments of

error are moot. Husband’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, is affirmed in part, reversed in

part, and the cause is remanded for further proceedings consistent with the foregoing 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.
                                             10


      Costs taxed equally to both parties.




                                                  BETH WHITMORE
                                                  FOR THE COURT



CARR, J.
CONCURS.

DICKINSON, J.
CONCURRING.

      {¶30} I concur in the majority’s judgment and all of its opinion except paragraph 24.


APPEARANCES:

KENNETH L. GIBSON and RANDAL A. LOWRY, Attorneys at Law, for Appellant/Cross-
Appellee.

SUSAN K. PRITCHARD, Attorney at Law, for Appellee/Cross-Appellant.
