[Cite as Collins v. Collins, 2012-Ohio-749.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




AMANDA M. COLLINS,

        PLAINTIFF-APPELLEE,                                CASE NO. 9-11-32

        v.

DAVID W. COLLINS,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Marion County Common Pleas Court
                                   Family Division
                            Trial Court No. 2009 DR 0329

                                       Judgment Affirmed

                           Date of Decision: February 27, 2012




APPEARANCES:

        Kevin P. Collins for Appellant

        Keith A. Kochheiser for Appellee
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WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, David W. Collins (“David”), appeals the

judgment of the Marion County Court of Common Pleas, Family Division,

finalizing the property division and other issues in his divorce from Plaintiff-

Appellee, Amanda M. Collins, nka Amanda M. Wood (“Amanda”). On appeal,

David contends that the family court erred in calculating his salary for child

support purposes; that it erred in valuing one of the vehicles; and that the property

division was unequal and inequitable.          For the reasons set forth below, the

judgment is affirmed.

       {¶2} Amanda and David were married on August 17, 2002, and two

children were born during the marriage. On November 4, 2009, Amanda filed a

complaint for divorce, and David also filed a counterclaim for divorce. The parties

participated in mediation as to issues regarding the children and agreed on a

shared parenting plan.

       {¶3} The final divorce hearing in this matter was held on April 26 and June

30, 2010. The parties had reached agreement on a number of matters, so the

primary issues that still remained to be decided were the division of Amanda's and

David's debts, consisting mostly of student loan debt; child support; and the

division of assets, consisting primarily of their retirement funds. Both Amanda



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and David testified at the hearing and presented exhibits for the family court to

consider in dividing their marital and separate property.

       {¶4} On August 26, 2010, the family court filed its judgment entry in this

matter. The court ordered that the parties equally divide their retirement funds by

QDRO (Amanda had one, with STRS, and David had two, with STRS and PERS).

The court awarded the marital home to David and ordered that he be responsible

for the mortgage debt thereon. The court further awarded both of the parties the

vehicles each had in their respective possession, including any debt on the vehicle

in his or her possession. Amanda was ordered to pay child support of $123.73 per

month, and David was to continue to provide health insurance coverage. Amanda

was ordered to pay 60% of the daycare expenses of the children, and David was to

pay the remaining 40%.

       {¶5} As to their student loan debts, the family court ordered that Amanda

would be responsible for paying $14,700.00 on a Great Lakes student loan that

was in her name and was taken out before the marriage, and David would be

responsible for paying $13,000.00 on two student loans that were in his name and

had also been taken out before the marriage. In addition, the parties jointly owed

$39,000 to CFS for a consolidated student loan taken out during the marriage that

served to consolidate loans that both Amanda and David had incurred. The parties

had agreed that David would be responsible for paying 60% of this consolidated

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loan and Amanda would pay 40%, meaning that David and Amanda would each

pay $23,400 and $15,600 respectively. There were also two credit card debts of

$1,000 and $3,000 that the parties were ordered to pay.

       {¶6} In 2010, Amanda appealed this decision, raising three assignments of

error, and David filed a cross appeal, setting forth six assignments of error. See,

Collins v. Collins, 3d Dist. No. 9–10–53, 2011-Ohio-2339, affirmed in part and

reversed in part (hereinafter, “Collins I”). This Court found merit in some of

Amanda and David’s assignments of error and remanded with the following

instructions.

       In summation, we reverse this matter for the trial court's failure to
       (1) restore Amanda to her prior name; (2) properly calculate child
       support based upon the evidence presented as to David's actual
       income; (3) determine the date of termination of the marriage; (4)
       explain why each party was ordered to pay the credit card debts that
       were in the other party's name or to order the parties to be
       responsible for the credit card debt incurred in each party's
       respective name; (5) explain the valuation placed on the 2000 Ford
       Explorer; (6) explain the division of the student loans obligations
       between the parties; and (7) either distribute the marital
       property/debt equally or explain how the significant discrepancy in
       the distribution is, nevertheless, equitable. In addition, as previously
       noted, upon remand the trial court should also correct its error in
       unilaterally modifying a portion of the shared parenting plan by
       following the mandates of R.C. 3109.04. Id. at ¶48.

       {¶7} Without holding any further hearings, the family court reviewed the

record and filed its judgment entry on June 29, 2011, addressing the issues raised



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by this Court.     David now appeals this order, raising the following three

assignments of error.

                            First Assignment of Error

      The family court erred to the prejudice of David by determining
      Amanda’s child support obligation to be $123.73.

                           Second Assignment of Error

      The family court erred to David’s prejudice by changing the
      valuation of the 1995 Ford Explorer despite the fact that neither
      party had assigned that vehicle’s valuation as an error on
      appeal.

                            Third Assignment of Error

      The family court erred to David’s prejudice by dividing the
      marital estate inequitably and unequally.

                 First Assignment of Error—Income/Child Support

      {¶8} In making the determination that Amanda was obligated to pay

$123.73 child support to David, the family court entered $39,689 for Amanda’s

annual gross income and $27,248 for David’s annual gross income on the child

support worksheet.      In our previous review, we found that the family court

correctly listed Amanda’s gross income based upon her 2009 W-2, but we did not

find sufficient support for the family court’s determination as to David’s income.

Collins I at ¶ 20. Upon remand, the family court explained that it based the

computation of David’s income upon his testimony that he earned $13.10 per hour


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at his full-time employment with the grounds maintenance division of OSU-

Marion. (See Tr. at p. 26 and Defendant’s Ex. 21, paystubs). After explaining its

calculations, the court ordered that child support would remain as previously

ordered.

        {¶9} David asserts that the family court abused its discretion because it

based Amanda’s income on her 2009 W-2, but his income was based on his

testimony as to his salary in April of 2010, instead of using “$22,277.36” as his

income “as established by his 2009 W-2.” (Appellant’s Brief, p. 7.) David

complains that the court’s computations were “arbitrary and inequitable” by using

Amanda’s income as a teacher from 2009. He argues that the court should have

projected her income for 2010, “which would have included a 15% raise during

the school year beginning in September, 2010,” according to Amanda’s testimony.

(Id.)

        {¶10} Pursuant to R.C. 3119.02, a court or child-support-enforcement

agency must calculate the amount of a child support obligation according to the

schedules and worksheets provided in R.C. 3119.02 to 3119.24. The family court

may deviate from the amount determined by using the appropriate worksheet only

if after considering the factors and criteria set forth in R.C. 3119.23, it finds that

the amount “would be unjust or inappropriate and would not be in the best interest

of the child.” R.C. 3119.22. The applicable worksheet for this case is found in

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R.C. 3119.022, entitled “Child Support Computation Worksheet for Sole

Residential Parent or Shared Parenting Order,” because the family court ordered

shared parenting.    “Gross income” is defined as “the total of all earned and

unearned income from all sources during a calendar year, whether or not the

income is taxable.” R .C. 3119.01(C)(7).

       {¶11} David’s arguments fail on several points. First, his 2009 W-2 lists

his total wages as over $25,000, not $22,277, which only represents his federal

taxable income. Furthermore, even the $25,000 figure does not appear to be

accurate, as his paystub from December 4, 2009, lists his wages as $13.10 per

hour, for a forty-hour week, and lists his total year-to-date earnings as of early

December as $25,666.17. (Def.’s Ex. 21.) It is evident that $13.10 per hour was

his salary in 2009 as well as 2010. Based upon these figures in the record, along

with David’s testimony that he earned $13.10 per hour, we do not find any error in

the family court’s computation of David’s gross income.

       {¶12} In his previous appeal, David raised the issue concerning the

inclusion of Amanda’s potential salary increase. This Court found that the family

court would have been engaging in speculation as to her future earnings and held

that “the trial court did not err in relying upon the evidence actually before it to

determine Amanda’s gross income.” Collins I at ¶ 21. Therefore, this issue is

barred by res judicata. Furthermore, the record also shows that David testified that

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he was due to receive a salary increase on July 1, 2010. By not engaging in

speculation and disregarding both parties’ potential, but not yet realized, 2010

salary increases, the family court was completely consistent in its calculation of

their gross incomes.

       {¶13} We find no error in the family court’s computations of David’s and

Amanda’s gross incomes, which are fully supported by the evidence in the record.

The first assignment of error is overruled.

                Second Assignment of Error –Valuation of Vehicles

       {¶14} The parties had agreed that they would each keep the vehicle that

they were currently driving.     In the original judgment entry, for purposes of

valuation and the division of property, the family court awarded Amanda the 2000

Ford explorer “valued at $3,850.00 and debt on same” and it awarded David the

1995 Ford Explorer “valued at $1,950.00” (with no outstanding debt). (Aug. 26,

2010 J.E.)

       {¶15} In Collins I, we found these valuations to be incorrect because there

was testimony from Amanda that the 2000 Explorer was valued “in the $5,000.00

range” and David testified that the Kelley Blue Book showed that the 2000

Explorer was valued at $5,495.00. Collins I at ¶ 42. David also supported his

testimony with a Blue Book website printout, admitted as Defendant’s Exhibit 7.

We found that the family court’s incorrect evaluation left a discrepancy in the

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division of assets and debts, and remanded with instructions for the division of

property to be “based upon accurate values of that property * * *.” Id. at ¶ 47.

The family court corrected this error in the June 29, 2011 judgment entry, stating

the following:

      [Amanda] was Ordered to retain the 2000 Ford Explorer valued at
      $5,495.00, with an outstanding debt on same to Citigroup of $768.00
      for a net value of $4,727.00. [David] was Ordered to retain the 1995
      Ford Explorer valued at $2,500.00.

      {¶16} In his second assignment of error, David agrees that the family court

properly corrected the wrong valuation assigned to the 2000 Explorer. However,

he complains that neither party had assigned the 1995 Explorer’s valuation of

$1,950 as an error and that the family court abused its discretion by changing this

finding when this Court did not order a change in the 1995 vehicle’s valuation.

      {¶17} We do not find any basis for David’s argument, as our previous

opinion clearly directed the trial court to base the property divisions “upon

accurate values” of the property.     Collins I at ¶ 47.     The record contains

considerable evidence that the correct valuation of the 1995 Explorer was

approximately $2,500. David’s Pre-Trial Statement lists the value of the 1995

vehicle as $2,500; the Kelly Blue Book printout for the 1995 Explorer, admitted as

Defendant’s Exhibit 8, lists its value as $2,975 (Tr. p. 103); David’s sworn

affidavit of November 2009 lists the 1995 Explorer with a value of $3,000;


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Amanda’s trial testimony stated that she thought the vehicle’s value was $2,500

(Tr. p. 64); and, when asked what his opinion was for the value of the 1995

Explorer, David testified that “$2,500 is an accurate statement” (Tr. p. 103).

       {¶18} For whatever reason, the trial court mistakenly used incorrect

numbers for the valuation of both vehicles in the original judgment entry. The

trial court was directed on remand to utilize the correct valuations in order to

effectuate an equal or equitable property division.       The trial court had the

jurisdiction to correct all of the inaccuracies in the original judgment entry. To

have utilized a clearly erroneous valuation for the 1995 Explorer would have been

inconsistent and incorrect. David’s second assignment of error is overruled.

             Third Assignment of Error – Equitable Property Division

       {¶19} In Collins I, this Court directed the family court to “explain the

division of the student loans obligations between the parties; and * * * either

distribute the marital property/debt equally or explain how the significant

discrepancy in the distribution is, nevertheless, equitable.” Collins I at ¶ 48. In

the new judgment entry, the trial court explained why it assigned David the entire

balance of the mortgage, along with awarding him the house, and it explained why

it made David responsible for 60% of the consolidated student loan.              After

providing the required explanation, the family court stated that it had considered

all of the relevant factors as set out in the Revised Code and concluded that the

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“assignment of assets and indebtedness as contained herein is an equitable division

of same pursuant to Ohio Revised Code Section 3105.171(B).” (6/29/11 J.E., p. 4)

       {¶20} In this third assignment of error, David claims that the property

division was still inequitable. He asserts that he never agreed to assume the

responsibility for the larger portions of the debts without it being taken into

account in the property distribution, and that Amanda should pay him $8,969 in

order to effectuate an equal division of the marital property.

       {¶21} The Ohio Revised Code requires a trial court to “determine what

constitutes marital property and what constitutes separate property.”           R.C.

3105.171(B). The court is then required to “divide the marital and separate

property equitably between the spouses.” Id. The Revised Code further requires

that a trial court divide the marital property equally unless an equal division would

be inequitable, in which case “the court shall not divide the marital property

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

determines equitable.” R.C. 3105.171(C)(1).

       {¶22} Trial courts have “broad discretion to determine what property

division is equitable in a divorce proceeding.” Cherry v. Cherry, 66 Ohio St.2d

348, 421 N.E.2d 1293 (1982), paragraph two of the syllabus. A trial court's

decision allocating marital property and debt will not be reversed absent an abuse

of discretion. Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597

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(1989). An abuse of discretion is more than a mere error; it implies that the court's

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

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

        {¶23} In the June 29, 2010 Judgment Entry, the trial court stated the

following concerning the allocation of the house and mortgage to David:

        Although the Court accepted the Marion County Auditor assessed
        value for the marital residence of $78,370.00, which was agreed by
        the parties, no formal appraisal of same was conducted. In addition,
        both parties agreed the approximated indebtedness owed on the
        marital residence was $83,000.00 which [David] was willing to
        assume to keep the real estate and he did not request any credit for
        his assumption of this joint marital debt. Both parties remain
        obligated on the original mortgage debt to Fifth Third Bank, and the
        Court finds assignment of the entire mortgage balance to [David] is
        equitable based upon his interest in retaining the residence and his
        lack of any objection to same. The Court is unable to speculate
        whether [David] will be able to refinance the mortgage debt, and
        thereby eliminate [Amanda’s responsibility to repay same, whether
        [Amanda] may ultimately be held responsible for this debt by the
        mortgagee, or whether the accepted value of the marital residence is
        even accurate. (Emphasis added, J.E., p. 4)

David now disputes that he was willing to assume the debt without any set-off

credit for it.

        {¶24} The parties purchased their home in 2004 for $84,000. A few years

later they refinanced the home, and the testimony established that there was

currently an outstanding balance of approximately $83,643 on the mortgage. No

appraisal was done on the property. The only valuation discernible from the


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record was a copy of the Marion County Auditor’s valuation of the property at

$78,370. There was some testimony by each of the parties as to the value of the

home, but much of that was not transcribed and marked as “inaudible.”1 (See, e.g.,

Tr. at p. 58-59 and 102-103).

        {¶25} At the conclusion of the hearing in June of 2010, the family court

noted that there was no clear consensus as to what the parties wished to do with

the marital home.

        The Court: Okay. I have one question that both of you need to
        answer right now. What do you want to do with this house?
        Because if I don’t get one of you asking for it, I’m going to order it
        be sold. I have no other choice. I just can’t leave the biggest asset
        or obligation out there subject to no one asking what their position is
        on it. So either it’s gonna – one of you is going to take it and
        assume whatever I feel is appropriate as far as the financial
        responsibility for it, or I’m going to order it be sold for whatever
        price it brings and assign whatever equity or proceeds would be
        appropriate under the circumstances. So I need to know that aspect.
        ***

        Amanda:          I have no intention of living in it.

        The Court:       All right.

        David:           I will keep it, Your Honor.

(Emphasis added, Tr. pp. 133-134)




1
  The transcription, done from a tape recording, contained numerous places where the testimony was not
transcribed and was marked as “inaudible.” No supplementation of the incomplete transcription was
made, as provided for in App.R.9(C) and (D).

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       {¶26} The testimony above shows that David was willing to keep the house

along with whatever financial responsibility for it that the trial court felt was

appropriate.   Although David contends that it was unfair to assign him the

approximately $5,000 in negative equity in the home (if the auditor’s valuation

was accurate), the record shows that David agreed to accept the benefits of the

owning the house, along with its liabilities. Amanda had no desire to keep the

house, so it was David’s choice not to have it sold and settle the financial

ramifications at that time. And, there was also testimony from Amanda that she

had been paying thousands of dollars toward the mortgage and utility payments for

the home since the previous October or November, even though she had not been

living in the house nor obtaining any benefit from it. (Tr. p. 77, where Amanda

testified that there was “$3,908.50 that was going toward the mortgage on a house

that I didn’t have access to * * *.”)

       {¶27} Furthermore, the comments by the trial court in the judgment entry

indicated that it was not completely convinced that the auditor’s valuation was

accurate. The record indicates that there was testimony and discussion concerning

the value of the property, but it was “inaudible.” In the absence of a complete

transcript of the proceedings, a statement of the evidence pursuant to App.R. 9(C),

or an agreed statement pursuant to App.R. 9(D), an appellate court “has no

alternative but to indulge the presumption of the regularity of the proceedings and

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the validity of the judgment in the trial court.” Tyler v. Tyler, 3d Dist. No. 9-88-50,

1990 WL 97662 (Jul. 16, 1990), quoting Ostander v. Parker-Fallis Insulation

Co., Inc., 29 Ohio St.2d 72, 74, 278 N.E.2d 363 (1972); Beer v. Beer, 10th Dist.

No. 04AP-93, 2004-Ohio-4559, ¶ 9. Based on all of the above, we cannot say that

the trial court’s decision concerning the property and its associated debt was

unreasonable, arbitrary, or unconscionable.

       {¶28} David also complains about being required to pay for 60% of the

approximate $39,000 consolidated student loan. However, there was considerable

testimony indicating the majority of the consolidated loan was used to pay for

loans incurred exclusively for David’s schooling.          Both parties agreed that

Amanda only had loans covering about two years out of the two-and-a-half years

it took her to complete her education, while David took out loans covering about

three-and-a-half to four years of the five years he attended college. (Tr. pp. 94-95

and 100) Amanda had records for her three federal student loans, originally

totaling $6,000, which she testified were incorporated into the consolidated loan.

(Tr. p. 93) David testified that her share was higher than that, but did not provide

any figure or records to support his testimony. Amanda testified that she could not

provide additional records because David had taken care of the entire

consolidation process and she did not have access to his passwords to obtain any

records from CFS. (Tr. p. 90)

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       {¶29} Although there was more testimony concerning the student loans,

and the parties’ prior agreement as to how they arrived at their respective

payments towards the loan prior to the hearing, much of that testimony was also

marked as “inaudible.” Multiple portions of testimony concerning the student

loans were marked as “inaudible” on pages:           86, 88, 90-92, 98-100 of the

transcript. As stated above, without a complete record, we must presume that the

findings of the fact-finder are correct, as the fact-finder based the decision upon

hearing all of the testimony at the time of the hearing. Given the testimony that

was in the record, along with the presumption of regularity as to the trial court’s

findings concerning the missing testimony, we again cannot find that the trial

court’s decision concerning the division of the consolidated student loan was

unreasonable, arbitrary, or unconscionable.

       {¶30} Based on the above, we do not find the trial court abused its

discretion in its division of property and debts, and its explanation as to why it was

equitable. David’s third assignment of error is overruled.

       {¶31} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgment of the family court.

                                                                 Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr

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