[Cite as Rollins v. Rollins, 2014-Ohio-5441.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


JEFFREY ROLLINS                                 :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
Plaintiff-Appellant                             :   Hon.Sheila G. Farmer, J.
                                                :   Hon. Patricia A. Delaney, J.
-vs-                                            :
                                                :   Case No. 14 CAF 04 0018
                                                :
KATRINA ROLLINS                                 :
                                                :
                                                :
Defendant-Appellee                              :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Delaware County Court
                                                    of Common Pleas, Domestic Relations
                                                    Division Case No. 13 DR B 01 0001



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             December 10, 2014




APPEARANCES:

For Plaintiff-Appellant:                            For Defendant-Appellee:

NICHOLAS W. YAEGER                                  ANTHONY M. HEALD
SEAN P. SHERIDAN                                    Heald Law
Mowery, Youell & Galeano, Ltd.                      125 N. Sandusky St.
425 Metro Place North, Suite 420                    Delaware, OH 43015
Powell, OH 43017
Delaware County, Case No. 14 CAF 04 0018                                                2

Delaney, J.

      {¶1} Plaintiff-Appellant Jeffrey Rollins appeals the March 11, 2014 judgment

entry of the Delaware County Court of Common Pleas, Domestic Relations Division.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} Plaintiff-Appellant Jeffrey Rollins ("Husband") and Defendant-Appellee

Katrina Rollins ("Wife") were married on December 12, 1992. One child was born as

issue of the marriage on May 5, 1994.

      {¶3} Husband and Wife separated on or about June 24, 2006 after 13.5 years

of marriage. Husband left the marital residence and Wife remained at the residence with

the child. Husband did not tell Wife where he was living. During the parties’ separation,

the parties filed joint tax returns and Husband continued to provide health insurance

coverage for Wife and child. Husband and Wife purchased joint Christmas presents for

the child. Husband and Wife had a joint checking account. Wife paid her own car

payment. Wife paid for her and the child’s expenses, including the child’s orthodontics.

Husband paid Wife $1,400.00 per month during the separation.

      {¶4} Husband was employed and earned approximately $180,000 to $190,000

per year. Husband’s employer leased a car for Husband as part of his employment.

Wife was self-employed doing business as the Skin Spa of Powell. Wife made no

income in 2011.

      {¶5} In May 2011, Husband returned to the marital residence and maintained

sole possession of the residence. Wife moved to a different residence with the child.

      {¶6} Husband filed a complaint for divorce on January 2, 2013. Wife filed an

answer and counterclaim on March 18, 2013.
Delaware County, Case No. 14 CAF 04 0018                                                    3


       {¶7} A trial was held before the magistrate on December 11, 2013.

       {¶8} The magistrate issued his decision on December 17, 2013. One issue was

the date of the termination of the marriage. The magistrate determined the parties

separated on June 24, 2006 and the de facto termination date of the marriage was

December 11, 2013, equating to 21 years of marriage. The magistrate ordered Husband

to pay spousal support to Wife in the amount of $5,000.00 per month starting January

2014. Spousal support was to be paid for 72 months.

       {¶9} Husband filed objections to the magistrate’s decision and a Praecipe to

Court Reporter for Transcript of Proceedings on December 31, 2013. The trial court

issued a judgment entry on January 7, 2014 ordering the transcript of the magistrate’s

hearing to be filed on or before January 30, 2014. The trial court stated if the Husband

failed to file the transcript without an extension, the trial court would rule on the

objections without the transcript. Wife filed a response to Husband’s objections and

cross-objections to the magistrate's decision on January 9, 2014. By entry dated

January 18, 2014, the parties were granted leave to file supplemental objections within

fourteen days following the filing of the transcript. The trial court again stated that if the

parties failed to file a transcript on or before January 30, 2014, the trial court would rule

on the objections without the transcript.

       {¶10} On March 11, 2014, the trial court filed its judgment entry overruling

Husband and Wife’s objections to the magistrate’s decision. The trial court noted the

transcript of the magistrate's hearing had not been filed and the court made its decision

on the objections pursuant to guidelines of Civ.R. 53.

       {¶11} Husband filed the transcript with the trial court on March 25, 2014.
Delaware County, Case No. 14 CAF 04 0018                                                  4


       {¶12} The Husband now appeals the March 11, 2014 judgment entry.

                              ASSIGNMENTS OF ERROR

       {¶13} Husband raises three Assignments of Error:

       {¶14} "I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION BY FAILING TO ORDER A DEFACTO TERMINATION OF

MARRIAGE CONSISTENT WITH THE EVIDENCE PRESENTED AT TRIAL AND IN

ACCORDANCE WITH OHIO REVISED CODE §3105.171(A)(2) RESULTING IN THE

COURT FASHIONING AN UNEQUAL AND INEQUITABLE PROPERTY DIVISION IN

VIOLATION OF R.C. §3105.171.

       {¶15} "II. EVEN WITHOUT ASSIGNING A DEFACTO TERMINATION OF

MARRIAGE DATE, THE TRIAL COURT'S PROPERTY DIVISION IS UNEQUAL, THE

TRIAL COURT FAILED TO ASSIGN VALUES TO ASSETS, AND THE COURT FAILED

TO GIVE ANY FINDINGS AS TO WHY THE PROPERTY DIVISION IS UNEQUAL.

       {¶16} "III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN THE

CALCULATION OF THE PARTIES' INCOMES RESULTING IN AN AMOUNT OF

SPOUSAL SUPPORT PAYABLE FROM APPELLANT TO APPELLEE THAT IS NOT

REASONABLE AND APPROPRIATE UNDER OHIO REVISED CODE 3105.18 AS TO

AMOUNT AND DURATION."

                                        ANALYSIS

       {¶17} Husband argues in his three Assignments of Error the trial court erred

when it overruled his objections to the magistrate's decision. The record shows

Husband failed to timely file a transcript of the magistrate's hearing for the trial court's
Delaware County, Case No. 14 CAF 04 0018                                                 5


consideration when the trial court ruled on Husband's objections to the magistrate's

decision.

       {¶18} Civ.R. 53 governs matters referred to magistrates. Civ.R. 53(D) states in

pertinent part:

       (3) Magistrate's decision; objections to magistrate's decision.

       ***

       (b) Objections to magistrate's decision.

       (i) Time for filing. A party may file written objections to a magistrate's

       decision within fourteen days of the filing of the decision, whether or not

       the court has adopted the decision during that fourteen-day period as

       permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any

       other party may also file objections not later than ten days after the first

       objections are filed. If a party makes a timely request for findings of fact

       and conclusions of law, the time for filing objections begins to run when

       the magistrate files a decision that includes findings of fact and

       conclusions of law.

       (ii) Specificity of objection. An objection to a magistrate's decision shall be

       specific and state with particularity all grounds for objection.

       (iii) Objection to magistrate's factual finding; transcript or affidavit. An

       objection to a factual finding, whether or not specifically designated as a

       finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a

       transcript of all the evidence submitted to the magistrate relevant to that

       finding or an affidavit of that evidence if a transcript is not available. With
Delaware County, Case No. 14 CAF 04 0018                                                 6


       leave of court, alternative technology or manner of reviewing the relevant

       evidence may be considered. The objecting party shall file the transcript or

       affidavit with the court within thirty days after filing objections unless the

       court extends the time in writing for preparation of the transcript or other

       good cause. If a party files timely objections prior to the date on which a

       transcript is prepared, the party may seek leave of court to supplement the

       objections.

       (iv) Waiver of right to assign adoption by court as error on appeal. 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).

       {¶19} This court has held, “where an appellant fails to provide a transcript of the

original hearing before the magistrate for the trial court's review, the magistrate's

findings of fact are considered established and may not be attacked on appeal.” Oyler v.

Oyler, 5th Dist. Stark No. 2014CA00015, 2014-Ohio-3468, ¶ 27 quoting Doane v.

Doane, 5th Dist. Guernsey No. 00CA21, 2001 WL 474267 (May 2, 2001); State v. Leite,

5th Dist. Tuscarawas No.1999AP090054, 2000 WL 502819 (Apr. 11, 2000); Fogress v.

McKee, 5th Dist. Licking No. 99CA15, 1999 WL 668580 (Aug. 11, 1999); and Strunk v.

Strunk, 5th Dist. Muskingum No. CT96–0015, 1996 WL 787981 (Nov. 27, 1996). When

a party objecting to a magistrate's decision has failed to provide the trial court with the

evidence and documents by which the trial court could make a finding independent of
Delaware County, Case No. 14 CAF 04 0018                                                  7


the report, the appellate court is precluded from considering the transcript of the hearing

submitted with the appellate record. State ex rel. Duncan v. Chippewa Twp. Trustees,

73 Ohio St.3d 728, 1995–Ohio–272, 654 N.E.2d 1254.

       {¶20} Accordingly, we review Husband's three Assignments of Error only to

analyze whether the trial court abused its discretion in reaching specific legal

conclusions based upon the established facts. Oyler, supra at ¶ 28 citing He v. Zeng,

5th Dist. Licking No. 2009–CA–00060, 2010–Ohio–2095, ¶ 23.

                                             I.

       {¶21} Husband argues in his first Assignment of Error that the trial court erred

when it established the de facto date of termination of the marriage as December 11,

2013. We disagree.

       {¶22} R.C. 3105.171(A)(2) provides that, except when the court determines that

it would be inequitable, the date of the final hearing is the date of termination of the

marriage. Giltz v. Giltz, 5th Dist. Stark No. 2011 CA00173, 2012–Ohio–1727, ¶ 31,

citing Combs v. Combs, 5th Dist. Stark No. 2008CA00169, 2009–Ohio–1683, ¶ 21. As

we have previously found, R.C. 3105.171(A)(2) “creates a statutory presumption that

the proper date for the termination of a marriage is the date of the final divorce hearing.”

Giltz, supra, 2012–Ohio–1727, ¶ 31, citing Bowen v. Bowen, 132 Ohio App.3d 616, 630,

725 N.E.2d 1165 (9th Dist.1999).

       {¶23} However, the trial court has broad discretion in choosing the appropriate

marriage termination date and this decision cannot be disturbed on appeal absent an

abuse of discretion. See Berish v. Berish, 69 Ohio St.2d 318, 321, 432 N.E.2d 183
Delaware County, Case No. 14 CAF 04 0018                                                8


(1982). R.C. 3105.171(A)(2) establishes an alternative date for determining the end of

the marriage:

      (A) As used in this section:

      ****

      (2) “During the marriage” means whichever of the following is applicable:

      (a) Except as provided in division (A)(2)(b) of this section, the period of

      time from the date of the marriage through the date of the final hearing in

      an action for divorce or in an action for legal separation;

      (b) If the court determines that the use of either or both of the dates

      specified in division (A)(2)(a) of this section would be inequitable, the court

      may select dates that it considers equitable in determining marital

      property. If the court selects dates that it considers equitable in

      determining marital property, “during the marriage” means the period of

      time between those dates selected and specified by the court.

      {¶24} Courts should be reluctant to use a de facto termination of marriage date

unless the evidence clearly and bilaterally shows that it is appropriate based on the

totality of the circumstances. Boggs v. Boggs, 5th Dist. Delaware No. 07 CAF 02 0014,

2008–Ohio–1411, ¶ 66 citing Day v. Day, 40 Ohio App.3d 155, 158, 532 N.E.2d

201(10th Dist.1988); Stafinsky v. Stafinsky, 116 Ohio App.3d 781, 689 N.E.2d 112 (11th

Dist.1996); Schnieder v. Schnieder, 110 Ohio App.3d 487, 674 N.E.2d 796 (11th

Dist.1996). Generally, the trial court has broad discretion in choosing the appropriate

marriage termination date and this decision cannot be disturbed on appeal absent an

abuse of discretion. Boggs, supra citing Berish, supra. “The abuse of discretion
Delaware County, Case No. 14 CAF 04 0018                                                  9


standard is based upon the principle that a trial court must have the discretion in

domestic relations matters to do what is equitable given the facts and circumstances of

each case.” Jefferies v. Stanzak, 135 Ohio App.3d 176, 179, 733 N.E.2d 305 (12th

Dist.1999) citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).

Therefore, in order to find an abuse of discretion there must be a determination that the

trial court's judgment is “unreasonable, arbitrary, or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶25} Based on the record before us reviewed under the constraints of Civ.R.

53, we find no abuse of discretion for the trial court to find the de facto termination date

of marriage was December 11, 2013. Husband's first Assignment of Error is overruled.

                                             II.

       {¶26} Husband contends in his second Assignment of Error that the trial court

inappropriately valued the parties' assets and the division of property was unequal. We

disagree.

       {¶27} An appellate court generally reviews the overall appropriateness of the

trial court's property division in divorce proceedings under an abuse of discretion

standard. Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). In order to find

an 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.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). In order to make

an equitable division of property, the trial court should first determine the value of the

marital assets. See Eisler v. Eisler, 24 Ohio App.3d 151, 152, 493 N.E.2d 975 (11th

Dist.1985). In performing this function, the trial court has broad discretion to develop
Delaware County, Case No. 14 CAF 04 0018                                                  10

some measure of value. See Berish v. Berish, 69 Ohio St.2d 318, 432 N.E.2d 183

(1982). Thus, “[t]he valuation of marital assets is typically a factual issue that is left to

the discretion of the trial court.” Roberts v. Roberts, 10th Dist. Franklin No. 08AP–27,

2008–Ohio–6121, ¶ 18 citing Berish, supra. Generally, as an appellate court, we are not

the trier of fact. Our role is to determine whether there is relevant, competent, and

credible evidence upon which the fact finder could base his or her judgment. Tennant v.

Martin–Auer, 188 Ohio App.3d 768, 2010–Ohio–3489, 936 N.E.2d 1013, ¶ 16 (5th

Dist.), citing Cross Truck Equipment Co. v. Joseph A. Jeffries Co., 5th Dist. Stark No.

CA–5758, 1982 WL 2911 (Feb. 10, 1982).

       {¶28} “Trial court decisions on what is presently separate and marital property

are not reversed unless there is a showing of an abuse of discretion.” Valentine v.

Valentine, 5th Dist. Ashland No. 95COA01120, 1996 WL 72608 (Jan. 10, 1996), citing

Peck v. Peck, 96 Ohio App.3d 731, 734, 645 N.E.2d 1300 (12th Dist.1994). Specifically,

“[w]hen considering a fair and equitable distribution of pension or retirement benefits in

a divorce, the trial court must apply its discretion based upon the circumstances of the

case, the status of the parties, the nature, terms and conditions of the pension or

retirement plan, and the reasonableness of the result.” Hoyt v. Hoyt, 53 Ohio St.3d 177,

559 N.E.2d 1292 (1990), paragraph one of syllabus.

       {¶29} Pursuant to R.C. 3105.171(B), “[i]n divorce proceedings, the court shall * *

* determine what constitutes marital property and what constitutes separate property. In

either case, upon making such a determination, the court shall divide the marital and

separate property equitably between the spouses, in accordance with this section. * * * ”
Delaware County, Case No. 14 CAF 04 0018                                                  11


       {¶30} R.C. 3105.171(C)(1) further states: “Except as provided in this division or

division (E)(1) of this section, the division of marital property shall be equal. If an equal

division of marital property would be inequitable, the court shall not divide the marital

property equally but instead shall divide it between the spouses in the manner the court

determines equitable. In making a division of marital property, the court shall consider

all relevant factors, including those set forth in division (F) of this section.”

       {¶31} The fair and equitable division of pension or retirement benefits in a

divorce matter in Ohio is left to the trial court's discretion. Hoyt, supra, at paragraph one

of the syllabus. Pension or retirement benefits earned during the marriage are marital

assets and a factor to be considered in the just division of property. Id. at 178.

       {¶32} The trial court awarded Husband the marital home, the family boat,

Husband's life insurance policy, and Husband's checking account. Husband was made

responsible for the mortgage on the marital home, the lines of credit in his name, and

the loan on the boat. Wife was awarded her checking and savings account, a QDRO for

Husband's two pension plans, and the Skin Spa of Powell. Wife was made responsible

for the lines of credit in her name.

       {¶33} Because there was no transcript of the magistrate's hearing filed with the

objections to the magistrate's decision, this Court must hold that the magistrate's

findings of fact are established. The valuation of assets is a factual determination. We

review the matter only to determine whether the trial court abused its discretion in

reaching specific legal conclusions based upon the established facts.

       {¶34} In this case, we find no abuse of discretion in the trial court's division of

the assets. The Ohio Revised Code does not require the trial court to make an equal
Delaware County, Case No. 14 CAF 04 0018                                               12


division of marital property but an equitable division of marital property. Further, based

on the trial court's determination the de facto termination date of the marriage was

December 11, 2013, Husband's pension plans were marital assets and subject to the

trial court's division as marital assets.

       {¶35} Husband's second Assignment of Error is overruled.

                                             III.

       {¶36} Husband argues in his third Assignment of Error that the trial court

incorrectly calculated the parties' income to find a spousal support award that was

unreasonable as to amount and duration. We disagree.

       {¶37} A trial court's decision concerning spousal support may be altered only if it

constitutes an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d

83 (1990). An abuse of discretion connotes more than an error of law or judgment; it

implies that the court's attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). R.C.

3105.18(C)(1)(a) through (n) sets forth the factors a trial court is to consider in

determining whether spousal support is appropriate and reasonable, and in determining

the nature, amount, terms of payment, and duration of spousal support:

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

       reasonable, and in determining the nature, amount, and terms of payment,

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

       installments, the court shall consider all of the following factors:
Delaware County, Case No. 14 CAF 04 0018                                                  13


      (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 so that

      the spouse will be qualified to obtain appropriate employment, provided

      the education, training, or job experience, and employment is, in fact,

      sought;
Delaware County, Case No. 14 CAF 04 0018                                               14


       (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.

       {¶38} Trial courts must consider all the factors listed in R.C. 3105.18(C). This

court has previously held that a trial court need not acknowledge all evidence relative to

each and every factor listed in R.C. 3105.18(C), and we may not assume that the

evidence was not considered. Hutta v. Hutta, 177 Ohio App.3d 414, 2008–Ohio–3756,

894 N.E.2d 1282, ¶ 27 (5th Dist.), citing Clendening v. Clendening, 5th Dist. Stark No.

2005CA00086, 2005–Ohio–6298, ¶ 16, citing Barron v. Barron, 5th Dist. Stark No.

2002CA00239, 2003–Ohio–649. The trial court need set forth only sufficient detail to

enable a reviewing court to determine the appropriateness of the award. Id., citing

Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988).

       {¶39} The magistrate's decision in the present case conducted a review the R.C.

3105.18(C) factors. This was a marriage of long duration, 21 years. Under the totality of

the circumstances based on our limited review of the record, we find no abuse of

discretion in the trial court's decision regarding spousal support. Husband's third

Assignment of Error is overruled.
Delaware County, Case No. 14 CAF 04 0018                                             15


                                    CONCLUSION

       {¶40} The three Assignments of Error filed by Plaintiff-Appellant Jeffrey Rollins

are overruled.

       {¶41} The judgment of Delaware County Court of Common Pleas, Domestic

Relations Division is affirmed.

By: Delaney, J.,

Hoffman, P.J. and.

Farmer, J., concur.
