[Cite as Buckingham v. Buckingham, 2014-Ohio-5798.]




             IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

JAY A. BUCKINGHAM                                        :

       Plaintiff-Appellant                               : C.A. CASE NO.      2013 CA 77

v.                                                       : T.C. NO.    13DR153

NANCY J. BUCKINGHAM                                      :   (Civil appeal from Common
                                                              Pleas Court, Domestic Relations)
       Defendant-Appellee                   :

                                                         :

                                          ..........

                                         OPINION

           Rendered on the        30th          day of           December        , 2014.

                                          ..........

KENT J. DePOORTER, Atty. Reg. No. 0058487, 7501 Paragon Road, Lower Level,
Dayton, Ohio 45459
      Attorney for Plaintiff-Appellant

F. ANN CROSSMAN, Atty. Reg. No. 0043525 and MICHELLE M. MACIOROWSKI,
Atty. Reg. No. 0067692, 7051 Clyo Road, Centerville, Ohio 45459
       Attorneys for Defendant-Appellee

                                          ..........
                                                                                               2

FROELICH, P.J.

               {¶ 1} Jay A. Buckingham appeals from a Final Judgment and Decree of

Divorce entered by the Greene County Court of Common Pleas, Domestic Relations

Division. The judgment and decree were based upon an agreement read into the record by

the parties; the court adopted an entry drafted by Nancy J. Buckingham’s attorney. Mr.

Buckingham disputes some of the terms contained in this agreement and the court’s decision

not to adopt his proposed entry.

       {¶ 2}    For the following reasons, the judgment of the trial court will be affirmed.

       {¶ 3}    Following 17 years of marriage, Mr. Buckingham filed a complaint for

divorce in June 2011, and Mrs. Buckingham filed a counterclaim for divorce; there were no

children of the marriage. The parties agreed to use June 30, 2011, as the date of separation.

 The court entered temporary orders with respect to the parties’ ongoing expenses and

spousal support (payable to Mrs. Buckingham).           In April 2013, the parties filed a

hand-written agreed entry which stated that the case would be dismissed without prejudice

and that it would be continued upon the filing of a new complaint, answer, and counterclaim.

       {¶ 4}    The second complaint was filed in June 2013 and, by agreement of the

parties, their prior arrangement with respect to temporary spousal support remained in effect.

 The parties also filed an agreed entry in June 2013, which reflected the issues that the

parties had agreed upon up to that point. Hearings were held on April 22, April 23, and July

22, 2013, at which the parties read their agreements as to property division and spousal

support into the record.

       {¶ 5}     After the final hearing, Mrs. Buckingham’s attorney was ordered to prepare
                                                                                            3

a decree of divorce and other documents to effectuate the parties’ agreement; she filed these

documents on October 8, 2013. After a telephone conference with the court, it became

apparent that there were some points of disagreement as to the content of the proposed

agreement. Mr. Buckingham was given two weeks to submit his own version of the parties’

agreement, which he did on October 25, 2013. On November 25, 2013, the trial court

adopted Mrs. Buckingham’s proposed Final Judgment and Decree of Divorce.

       {¶ 6}     Mr. Buckingham appeals, raising two assignments of error.

       {¶ 7}     In his first assignment of error, Mr. Buckingham contends that the

agreement adopted by the trial court did not reflect the parties’ agreement in three respects:

the deductibility of spousal support; the source of the funds from which he could pay for the

division of marital assets; and the amount Mrs. Buckingham was permitted to retain from

certain financial accounts.

       Tax Consequences of Spousal Support Payments

       {¶ 8}    In August 2011, the trial court established Mr. Buckingham’s temporary

spousal support payment to Mrs. Buckingham. Its order stated, in pertinent part: “Plaintiff

[Mr. Buckingham] shall pay for temporary nontaxable spousal support to the Defendant

[Mrs. Buckingham] the amount of $5000.00 per mont[h] beginning October 1, 2011. * * *”

(Emphasis sic.) When the parties filed an agreed entry with the court in June 2013, which

was intended to reflect their areas of agreement from the prior case, it stated: “The

Temporary Order of Spousal Support effective August 1, 2011 in the amount of $5,000.00

per month shall remain in full force and effect through the filing of the new case.” The June

2013 agreed entry further stated that Mr. Buckingham would receive credit for the length of
                                                                                          4

time he had paid spousal support under the temporary order when the court ultimately

resolved this issue.

       {¶ 9}    Pursuant to their final agreement, Mr. Buckingham was to pay spousal

support in the amount of $9,500 per month for a period of six years. Due to the parties’

prior agreement, Mr. Buckingham was entitled to credit for the length and amount of spousal

support he had already paid under the temporary order. Although Mr. Buckingham was

current on his support obligation of $5,000 per month under the temporary order, the final

order created an arrearage of $117,000 (the difference between the temporary $5,000/month

and the new $9,500/month orders); Mr. Buckingham agreed to make a lump sum payment of

$40,000 and to pay the balance over two years. Mr. Buckingham expressed his agreement

to these terms at the April 23, 2013 hearing, without any discussion of the deductibility or

tax consequences of the arrearage payments or of any change to the “nontaxable” nature of

the temporary support orders.

       {¶ 10} At the July 22, 2013, final hearing, Mr. Buckingham’s attorney stated that,

with respect to spousal support, all money paid “will be deductible from Mr. Buckingham’s

income and taxable to Mrs. Buckingham.”          Similarly, the final judgment stated: “The

parties further agree that the spousal support shall be included as income to the Defendant

[Mrs. Buckingham] and shall be tax deductible to the Plaintiff [Mr. Buckingham]. The

parties agree that the arrearage of $117,000.00 on the spousal support is taxable.”

       {¶ 11} We begin our discussion of this issue with some clarification of our

understanding of what the record reflects regarding the tax status of the spousal support

payments through the course of these proceedings. The parties’ and court’s statements that
                                                                                            5

spousal support was “taxable,” made at several different junctures, are ambiguous; such

statements do not make clear to whom the funds are taxable.           Based on the parties’

arguments and the “nontaxable”/“taxable” designations in the trial court’s entries, as well as

the fact that the inclusion of the “nontaxable” designation in the temporary order is

surplusage unless it relates to the recipient (Mrs. Buckingham), we conclude that the spousal

support was not treated as income to Mrs. Buckingham under the temporary spousal support

order, but that it was treated as income under the final order. In other words, the tax

treatment regarding the arrearage and support going forward was favorable to Mr.

Buckingham under the final order, but was favorable to Mrs. Buckingham under the

temporary order.

        {¶ 12}     In his brief on appeal, Mr. Buckingham seems to contend that none of the

spousal support payments (temporary or otherwise) should have been taxable to him. At oral

argument, however, Mr. Buckingham asserted that the dispute over the taxability of spousal

support centered on the treatment of the support payments made from January through July

2013.

        {¶ 13} . Mr. Buckingham’s assertion at oral argument that his spousal support

argument on appeal relates only to a 7-month period cannot be reconciled with the argument

in his brief, nor can it be viewed as a reasonable extension of that argument. To allow an

appellant to raise a new argument in this manner would be unfair to the appellee, who had no

notice of this argument and no opportunity to prepare a thorough response.     Just as a party

is not permitted to raise new arguments in a reply brief, we cannot consider the presentation

of a novel argument at oral argument. See Ameritech Publishing, Inc. v. Griffin, 2d Dist.
                                                                                             6

Clark No. 2009 CA 18, 2009-Ohio-5602, ¶ 13, citing Hoskins v. Simones, 173 Ohio

App.3d 186, 2007-Ohio-4084, 877 N.E.2d 1008, 1015 (2d Dist.2007); Durham v. Pike Cty.

Joint Vocational School, 150 Ohio App.3d 148, 2002-Ohio-6300, 779 N.E.2d 1051, ¶ 12

(4th Dist.); State v. Hubbard, 10th Dist. Franklin No. 03AP-286, 2004-Ohio-553, fn. 2;

App.R. 16(C).

       {¶ 14} Regardless, having reviewed the record of the case with this new argument

in mind, we have found no support for Mr. Buckingham’s assertion at oral argument that

there was a distinct agreement for the period encompassing January through July, 2013, or

that the parties agreed to alter the tax treatment of the temporary spousal support as of

January 2013.

       {¶ 15} Mr. Buckingham argues in his brief that the spousal support payments

should have been treated as income to Mrs. Buckingham (and therefore taxable to her and

deductible by him) throughout the divorce proceedings.

       {¶ 16} Under the court’s temporary support order, Mrs. Buckingham did not treat

the support payments as income and therefore did not pay taxes on them; thus, Mr.

Buckingham treated the amount he paid as spousal support as his income for tax purposes.

Although the temporary support order was not an agreed order (i.e., Mr. Buckingham did not

consent to the “nontaxable” nature of the temporary spousal support payments), he did

consent to the continuation of this order in the agreed entry dated June 3, 2013. Moreover,

at no point did Mr. Buckingham challenge the court’s tax treatment of the temporary

payments or ask the court to revisit this issue. Under these circumstances, the trial court did

not err in failing to modify the tax consequences of the temporary support payments when it
                                                                                                 7

addressed the treatment of prospective spousal support payments and those attributable to

the newly-created arrearage, at the time of the final judgment. The trial court reasonably

concluded that the temporary spousal support payments were taxable to Mr. Buckingham

and that the spousal support payments remaining to be paid at the time of the divorce and the

arrearage created by the final award were taxable to Mrs. Buckingham.

       Source of Funds from which Property Settlement Would Be Paid

       {¶ 17} Second, Mr. Buckingham contends that the terms of the property settlement

upon which the parties had agreed called for him to pay Mrs. Buckingham $1.2 million from

qualified or non-qualified sources, but that the final entry “limited [him] to the use of cash or

qualified funds from retirement accounts” for the payment of this obligation.

       {¶ 18}     After a careful review of the final judgment and decree of divorce, we find

no language imposing any such restriction. In fact, the only reference to qualified or

unqualified funds in the section related to the property settlement states that Mr.

Buckingham’s attorney “shall prepare the necessary orders in the event that qualified funds

from retirement accounts are used.” (Emphasis added.) This language does not require or

prohibit the use of any particular type of funds for the payment of the property settlement

and even implicitly approves the usage of qualified funds.

       Financial Accounts

       {¶ 19} Third, Mr. Buckingham asserts that he was entitled to some funds that were

contained in financial accounts awarded to Mrs. Buckingham. He claims that, by agreement

of the parties, he “was to retain as his sole property all assets, as of June 30, 2011, the date of

the separation of the parties, other than” those assets specified to go to Mrs. Buckingham.
                                                                                               8

On this basis, he contends that he was entitled to the balance in certain financial accounts “in

the names of either party as of June 30, 2011.” The trial court’s final judgment and decree

of divorce states that “each party shall retain their individual checking and savings accounts

presently in their individual names. The Division of the various investment accounts has

been taken into consideration in the Property Settlement paragraph set forth herein.”

       {¶ 20}     Mrs. Buckingham’s response to this argument assumes that Mr.

Buckingham is disputing how the appreciation on the financial accounts in Mrs.

Buckingham’s name should be distributed.          Rather, it appears to this court that Mr.

Buckingham is claiming a right to the entire amount of each account as of June 30, 2011, the

date of the parties’ separation, i.e., that, if anything, Mrs. Buckingham is only entitled to the

appreciation after that date.

       {¶ 21} Mr. Buckingham’s argument relies on a statement by his attorney at the

beginning of the July 22, 2013, hearing, wherein he lists several items or amounts to which

Mrs. Buckingham is entitled under the agreement (not including the accounts in her name),

then states: “The husband is to retain all other assets and liabilities, except for what was

previously read today and what was previously personal property that was read into the

record * * *.” Mr. Buckingham advocates for an expansive reading of this statement, such

that even amounts in financial accounts under Mrs. Buckingham’s name were awarded to

him. However, such an interpretation is not the only reasonable interpretation, given the

entire context of the hearings and negotiations. For example, at another part of the July

hearing, after Mr. Buckingham’s counsel’s statement about who shall be entitled to which

assets, Mrs. Buckingham’s attorney states that “[e]ach party will retain their own checking
                                                                                                  9

and savings accounts,” and Mr. Buckingham’s attorney appears to agree.           Mr. Buckingham

himself also states at the end of the hearing (after the statement about the parties’ retaining

their own accounts) that he agreed with everything that had been read into the record.

        {¶ 22}    The inconsistency of these statements created some ambiguity about the

parties’ intentions with respect to these accounts. Because the statement related to the

financial accounts is more specific than the general, “catch-all” statement upon which Mr.

Buckingham’s argument relies, we cannot conclude that the trial court abused its discretion

in concluding that the agreed entry submitted by Mrs. Buckingham accurately reflected the

parties’ agreement and that the parties intended to keep the accounts in their own names.

Moreover, insofar as the parties’ retention of their own accounts, according to the final

judgment, was factored into the property settlement, any adjustment to the distribution of

these accounts would necessitate a corresponding adjustment of the property settlement.

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

        {¶ 24} In his second assignment of error, Mr. Buckingham asserts that the decree

approved by the trial court was against the manifest weight of the evidence, because it

“chang[ed]” the terms of the parties’ agreement. He relies on the same arguments set forth

under the first assignment of error.

        {¶ 25} The manifest weight of the evidence analysis rests on the strong presumption

that the trial court, as the trier of fact, is in the best position to weigh the evidence presented,

to assess the credibility of the witnesses, and to make an informed factual determination

therefrom. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

        {¶ 26} Where, as here, the parties have read an agreement into the record, the
                                                                                           10

enforcement of an agreed entry presented by one of the parties or the determination which of

two competing entries more accurately reflects the parties’ agreement, does not require the

trial court to weigh evidence or to assess the credibility of witnesses. Rather, the court

reviews the record of the parties’ agreement and determines which entry best reflects that

agreement.

       {¶ 27} We interpret Mr. Buckingham’s weight of the evidence argument as

challenging the trial court’s conclusion that Mrs. Buckingham’s entry accurately reflected

the parties’ agreement. Having thoroughly reviewed the record and the specific issues

raised in Mr. Buckingham’s first assignment of error, we conclude that the trial court did not

abuse its discretion in finding that Mrs. Buckingham’s agreement reflected the parties’

agreement, as stated in open court.

       {¶ 28} The second assignment of error is overruled.

       {¶ 29} The final judgment and decree of divorce will be affirmed.

                                         ..........

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Kent J. DePoorter
F. Ann Crossman
Michelle M. Maciorowski
Hon. Steven L. Hurley
