[Cite as Martin v. Martin, 2016-Ohio-7551.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


ERIC MARTIN,                                   :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2015-T-0025
        - vs -                                 :

DENISE M. CARRADINE MARTIN,                    :

                 Defendant-Appellant.          :


Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 09 DR 333.

Recommendation: Modified in part, and affirmed as modified.


Eric Martin, pro se, P.O. Box 735, Vienna, OH 44473 (Plaintiff-Appellee).

Charles E. Dunlap, 7330 Market Street, Youngstown, OH 44512 and Stanley
Morganstern, 28482 North 77th Street, Scottsdale, AZ 85266 (For Defendant-
Appellant).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Dr. Denise M. Carradine Martin appeals from the judgment entry of the

Trumbull County Court of Common Pleas, Domestic Relations Division, granting a

divorce between Dr. Carradine Martin and Eric Martin. We modify in part, and affirm as

modified.

        {¶2}     The parties were married in June 1998.       Dr. Carradine Martin is a

successful chiropractor; Mr. Martin is a financial advisor. Mr. Martin filed for divorce in
September 2009; Dr. Carradine Martin answered and counterclaimed. The proceedings

were bitter and lengthy, including multiple interlocutory appeals to this court. February

11, 2015, the trial court filed the judgment entry at issue on appeal. The trial court

granted the divorce on the basis of incompatibility. It determined the extent of the

parties’ separate property, and divided the marital property.1 The trial court also made

an award in Mr. Martin’s favor for financial misconduct by Dr. Carradine Martin, totaling

nearly $800,000.

       {¶3}    Dr. Carradine Martin timely noticed this appeal, assigning nine errors. The

first reads: “The Trial Court erred by reserving jurisdiction to in effect modify its division

of property award, contrary to law.” In its judgment entry, the trial court held, “the court

shall reserve jurisdiction to enter further order to divide the assets of Defendant-Wife for

the division of property[.]”      Dr. Carradine Martin contends this is an impermissible

reservation of jurisdiction to modify the property award.        Pettit v. Pettit, 12th Dist.

Fayette No. CA2011-08-018, 2012-Ohio-1801, ¶58.              Mr. Martin contends it is a

permissible reservation of jurisdiction to enforce the property award. Id. We find the

clear language of the judgment entry constitutes an attempt to reserve jurisdiction to

enforce the award.

       {¶4}    The first assignment of error lacks merit.

       {¶5}    Dr. Carradine Martin’s third assignment of error reads: “The Trial Court

erred and abused its discretion by failing to limit the distributive award to Appellee to

Appellant’s separate property as required by law.”          From 2006 through 2009, Dr.

Carradine Martin transferred some $854,261.10 to Attorney D. Keith Roland. Attorney

Roland would put the funds into his IOLTA accounts. They were then transferred by

1. The marital property was $2,329,040.07.


                                              2
wire to the firm of Maerki Baumann & Co. in Zurich, Switzerland. Mr. Martin had no idea

of this activity. His private investigator discovered the practice during the pendency of

the divorce.

       {¶6}    As a result, the trial court granted an award to Mr. Martin for Dr. Carradine

Martin’s financial misconduct, pursuant to R.C. 3105.171(E).          The award included

$739,390.27 in the Maerki Baumann account as of December 31, 2009; $40,155.07

from Attorney Roland’s IOLTA account; and $10,767.01 from accounts Dr. Carradine

Martin kept at Consumers National Bank. In its judgment entry, the trial court described

this award as a “distributive award.”

       {¶7}    Former R.C. 3105.171(E)(3) allowed a trial court to make either a

distributive award for financial misconduct by a party regarding marital property, or a

greater award of marital property.      The statute was amended in September 2010.

Former R.C. 3105.171(E)(3) was renumbered (E)(4), and new R.C. 3105.171(E)(5) was

added. This allows the court to make the distributive award or award of a greater

portion of the marital property for financial misconduct up to three times the value of the

property concealed. The parties spend considerable effort in their briefs arguing the

applicability of the old or new statutes.

       {¶8}    We respectfully find this issue irrelevant. The question before this court is

the nature of the award made. As Dr. Carradine Martin points out, a distributive award

for financial misconduct can only be made from the offending party’s separate property.

Dilley v. Dilley, 11th Dist. Geauga No. 2010-G-2957, 2011-Ohio-2093, ¶26-34. The

award made in this case was from marital property. Mr. Martin contends any error by




                                             3
the trial court in naming the award is harmless, since the trial court had the power to

make him an award from the marital property.

       {¶9}     We find Mr. Martin’s argument persuasive. The trial court had the power

to make an award for financial misconduct from the marital property, and did so. Calling

it a “distributive” award is harmless error.

       {¶10} The third assignment of error lacks merit.

       {¶11} Dr. Carradine Martin’s fourth assignment of error reads: “The Trial Court

erred and abused its discretion in awarding Appellee distributive awards so punitive as

to make the entire division of property not only unequal, but grossly inequitable under

the entire facts and circumstances of the case.” Dr. Carradine Martin argues that even

if she committed financial misconduct, the award in favor of Mr. Martin is inequitable

and punitive.

       {¶12} Once a finding of financial misconduct is made under R.C. 3105.171(E),

the trial court’s decision regarding an award is reviewed for abuse of discretion.

Epperson v. Epperson, 6th Dist. Wood No. WD-14-054, 2015-Ohio-2443, ¶41.

Regarding this standard, we recall the term “abuse of discretion” is one of art, connoting

judgment exercised by a court which neither comports with reason, nor the record.

State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be

found when the trial court “applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176

Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.) In this case, the trial court devoted

more than 12 pages of its judgment entry to describing Dr. Carradine Martin’s careful

concealment of funds in Switzerland, etc., and her repeated attempts through discovery,




                                               4
and under oath at trial, to obfuscate the matter. Under the circumstances, we cannot

find the trial court abused its discretion in making the award it did.

       {¶13} The fourth assignment of error lacks merit.

       {¶14} Dr. Carradine Martin’s seventh assignment of error reads: “The Trial Court

erred and abused its discretion by concluding Appellee’s conduct to have been

negligent due to ignorance, or inappropriate at times, but not rising to financial

misconduct.” Dr. Carradine Martin argues that Mr. Martin, a financial expert, failed to

disclose or properly account for various assets. Mr. Martin rejoins that, ultimately, most

of these assets folded into accounts which he did disclose.

       {¶15} On this issue, the trial court noted that some of Mr. Martin’s records were

unavailable to him, since they were stored at the marital residence, and that he made

others available at his attorneys’ office for inspection. The trial court concluded Mr.

Martin’s conduct may have been negligent, or even inappropriate, but did constitute

financial misconduct under R.C. 3105.171(E). Nothing Dr. Carradine Martin points to

convinces us this conclusion was error.

       {¶16} The seventh assignment of error lacks merit.

       {¶17} Dr. Carradine Martin’s second assignment of error reads: “The Trial Court

erred by classifying the mortgage on 1281 Sharrott Run Place, North Lima, Ohio as

Appellant’s separate debt as there was insufficient evidence to rebut the presumption

that the debt was marital.” 1281 Sharrott Run Place, North Lima, was the marital home,

owned by Dr. Carradine Martin before the marriage. The mortgage existing when the

marriage took place was paid off in 2003. In May 2006, a new mortgage loan was taken

out. Dr. Carradine Martin presented the testimony of the notary allegedly witnessing Mr.




                                              5
Martin sign the mortgage. However, that notary could not identify Mr. Martin at trial. Mr.

Martin testified he did not remember signing the mortgage. The trial court found that all

the proceeds of the mortgage were received by Dr. Carradine Martin in a bank check

issued to her alone, and that Dr. Carradine Martin shortly thereafter deposited the same

amount into a certificate of deposit, also in her name alone. On this basis, it determined

the debt was Dr. Carradine Martin’s separate debt.

       {¶18} A trial court’s decision to classify property as separate or marital is

reviewed under the manifest weight of the evidence. Gosser v. Gosser, 11th Dist.

Trumbull No. 2006-T-0029, 2007-Ohio-3201, ¶6. This standard of review is the same in

civil as criminal cases: i.e., did the trier of fact clearly lose its way? Patterson v. Godale,

11th Dist. Lake Nos. 2014-L-034 and 2014-L-042, 2014-Ohio-5615, ¶12-13.                 Every

presumption must be made in favor of the trial court’s judgment. Id. at ¶14

       {¶19} Applying this standard of review, we cannot find the trial court lost its way

in determining the debt on 1281 Sharrott Run Place was Dr. Carradine Martin’s

separate debt. There was evidence presented on each side of the issue.

       {¶20} The second assignment of error lacks merit.

       {¶21} Dr. Carradine Martin’s sixth assignment of error reads: “The Trial Court

erred and abused its discretion by adopting Appellee’s expert opinion of the valuation of

Carramar Financial, contrary to the preponderance of the competent credible evidence.”

Carramar Financial is Mr. Martin’s business. Dr. Carradine Martin’s expert opined its

value was $383,000. Mr. Martin’s expert opined the value was $117,000.

       {¶22} In Huelskamp v. Huelskamp, 185 Ohio App.3d 611, 2009-Ohio-6864 (3d

Dist.), ¶27, the court stated:




                                              6
       {¶23} “A trial court enjoys broad discretion in determining the value of a marital

asset and is not required to adopt any particular method of valuation. James v. James

(1995), 101 Ohio App.3d 668, 680, * * *. It is not an abuse of discretion when the trial

court assigns value to real estate in an amount that is supported by competent, credible

evidence. Osting v. Osting, 3d Dist. No. 1-03-88, 2004-Ohio-4159, ¶21. ‘(W)hen the

parties present substantially different valuations of an asset, it may believe all, part, or

none of any witness’s testimony.’ Covert v. Covert, 4th Dist. No. 03CA778, 2004-Ohio-

3534, ¶29. Furthermore, ‘(a) reviewing court should be guided by a presumption that

the findings of a trial court are correct, since the trial judge is best able to view the

witnesses and observe their demeanor, gestures, and voice inflections, and use those

observations in weighing the credibility of the testimony.’ DeWitt v. DeWitt, 3d Dist. No.

9-02-42, 2003-Ohio-851, ¶11, quoting Barkley v. Barkley (1997), 119 Ohio App.3d 155,

159, * * *.” (Parallel citations omitted.)

       {¶24} In this case, each side presented valuation testimony, which varied

considerably. The trial court found Mr. Martin’s expert more credible. Dr. Carradine

Martin does not tell us specifically why this is error, and we conclude it was not.

       {¶25} The sixth assignment of error lacks merit.

       {¶26} Dr. Carradine Martin’s eighth assignment of error reads: “The Trial Court

erred and abused its discretion by awarding Appellee the commercial building at 8261

Market Street, Youngstown, Ohio, which houses Appellant’s principal place of business,

and awarding Appellee other properties without consideration of the expenses incurred

to maintain them during the pendency of the divorce case.” The building mentioned is

largely occupied by Dr. Carradine Martin’s office. Mr. Martin also maintains a smaller




                                             7
office in it. Dr. Carradine Martin asserts it was inequitable to award the building to Mr.

Martin, since she is the principal tenant. The trial court had further ordered Mr. Martin to

pay 25% of the expenses for the building during the pendency of the divorce. Dr.

Carradine Martin argues it should have been 50% of the expenses.

       {¶27} We do not find any abuse of discretion by the trial court. As it observed,

Dr. Carradine Martin had placed a large portion of the marital property outside the

country, and outside the trial court’s jurisdiction, thus requiring the trial court to fashion

Mr. Martin’s portion of the marital property out of marital assets within the trial court’s

reach. Regarding expenses, the trial court observed that Dr. Carradine Martin reaped

all of the benefits of rent, etc., and that her own records regarding expenses incurred

were of dubious validity. This comports with the record.

       {¶28} The eighth assignment of error lacks merit.

       {¶29} Dr. Carradine Martin’s fifth assignment of error reads: “The Trial Court

erred and abused its discretion by classifying and valuing various assets as marital

property contrary to the manifest weight of the evidence.” Under this assignment of

error, Dr. Carradine Martin challenges the trial court’s classification of numerous assets

as marital. We review these challenges under the civil manifest weight standard. Dr.

Carradine Martin further challenges the valuations assigned certain assets by the trial

court. We review these challenges for abuse of discretion.

       {¶30} Dr. Carradine Martin’s principal business, Carradine Chiropractic Center,

maintained a bank account at Consumers National Bank, with account number ending

5260, which the trial court characterized as marital. Dr. Carradine Martin objects that,

since the business is her separate property, so is the account. The trial court found Dr.




                                              8
Carradine Martin used the account to transact her personal business, including the

forwarding of money to Attorney Roland for her secret Swiss account. Its determination

that the account was marital is not against the manifest weight of the evidence. This

issue lacks merit.

       {¶31} Dr. Carradine Martin maintained an investment account, Commonwealth

Financial Account Number HDM-161860.            She asserts the trial court ignored a

stipulation by the parties that this was her separate property. This appears from the

record. This issue has merit. We modify the trial court’s judgment finding this to be

marital property. Rather, it was Dr. Carradine Martin’s separate property.

       {¶32} Dr. Carradine Martin maintained a 401K Commonwealth profit sharing

account. Dr. Carradine Martin argues the trial court erred in valuing the account, and

ignored the agreement of the parties as to its value.          Conflicting evidence was

presented to the trial court on this issue, and it was entitled to choose the value it did.

This issue lacks merit.

       {¶33} Dr. Carradine Martin maintained savings accounts at Home Savings &

Loan, account ending in 6002; and at Farmers National Bank, account ending in 0206.

Dr. Carradine Martin withdrew funds from the first account on February 24, 2009, and

asserts the evidence shows she deposited the monies in the latter the same day. She

asserts the trial court erred by double-counting the values of these accounts. The trial

court found it could not trace the monies removed from the Home Savings & Loan

account. On the evidence presented, this was not error: Dr. Carradine Martin testified

she had no idea what happened to the monies she withdrew from that account. This

issue lacks merit.




                                            9
      {¶34} Mr. Martin had an account at Cortland Bank, number 4602278, which the

trial court determined was his separate property, being an asset of his financial

business, and accounted for in its valuation. Dr. Carradine Martin objects. There is

conflicting evidence – the trial court could choose to credit Mr. Martin’s, rather than Dr.

Carradine Martin’s. This issue lacks merit.

      {¶35} Dr. Carradine Martin established two LLC’s during the marriage, Tudor

Properties and Juniper Properties. She argues the trial court erred by classifying their

attendant bank accounts as marital property, particularly as the accounts were owned

by third party entities, not the parties to the divorce. Mr. Martin counters that the LLC’s

were third party defendants below, acquired with marital funds, and that the accounts

were thus properly divisible by the trial court. This seems correct. The trial court’s

decision is not against the manifest weight of the evidence. This issue lacks merit.

      {¶36} Dr. Carradine Martin made loans of personal funds to her chiropractic

business, and another business she owned, Breath of Vitality, Inc. The trial court found

these loans to be marital assets. Dr. Carradine Martin objects that the loans were made

to businesses found to be her separate property, and cannot be considered marital. We

respectfully disagree. The loans were made by Dr. Carradine Martin from her marital

funds, without input from Mr. Martin. It was not error for the trial court to conclude the

loans were marital. However, we note the trial court appears both to have included the

value of the loans in the marital property, which it divided between the parties, and to

have ordered the corporations and/or Dr. Carradine Martin to repay Mr. Martin his half

of the value of the loans. This is a windfall for Mr. Martin. Consequently, we modify the

trial court’s judgment, in that neither Dr. Carradine Martin nor her two corporations are




                                              10
responsible for paying Mr. Martin his half of the loans, as these are already included in

his half of the marital property.

       {¶37} The trial court concluded that funds in Attorney Roland’s IOLTA account

were martial property, resulting from Dr. Carradine Martin’s funneling of money to him to

supply her Swiss bank account.      On appeal, she essentially argues that he did put all

funds received from her into that account, and the money remaining in the IOLTA is not

hers. This assertion is not supported by the record. The trial court did not err in finding

the IOLTA funds to be marital property.

       {¶38} Finally, Dr. Carradine Martin challenges the trial court’s valuation of the

Maerki Baumann & Co. account using the December 31, 2009 value. The termination

of the marriage was determined to be April 9, 2009: Dr. Carradine Martin argues the trial

court abused its discretion in not using the accounts value as of December 31, 2008,

since that date was closer to the date the marriage terminated.

       {¶39} When a precise evaluation date for an asset is unavailable, a trial court

does not abuse its discretion by choosing another date based on the evidence before it.

Homme v. Homme, 12th Dist. Butler No. CA2010-04-093, 2010-Ohio-6080, ¶62. In this

case, the trial court stated it chose a date following the termination of marriage, to make

certain any marital value in the Maerki Baumann & Co. account was captured. It did not

abuse its discretion in so doing. This issue lacks merit.

       {¶40} The fifth assignment of error has merit in part, and lacks merit in part.

       {¶41} Dr. Carradine Martin’s ninth assignment of error reads: “The Trial Court

erred and abused its discretion in the amount of its award of attorney fees to Appellee.”

Pursuant to R.C. 3105.73(A), a trial court in a divorce proceeding has discretion to




                                            11
award attorney fees. Huffer v. Huffer, 10th Dist. Franklin No. 09AP-574, 2010-Ohio-

1223, ¶19. In doing so, the trial court may consider the income of the parties, awards of

temporary spousal support, the conduct of the parties, and any other factor it deems

equitable. Id. In this case, Mr. Martin requested $100,337.90 in attorney fees. The trial

court awarded him $37,076.53 for the extra costs he incurred due to Dr. Carradine

Martin’s financial misconduct. This was not an abuse of discretion.

       {¶42} The ninth assignment of error lacks merit.

       {¶43} The judgment of the Trumbull County Court of Common Pleas, Domestic

Relations Division, is modified in part, and affirmed as modified.



DIANE V. GRENDELL, J., concurs in judgment only,

TIMOTHY P. CANNON, J., concurs in judgment only in part and dissents in part with a
Concurring and Dissenting Opinion.


                                _____________________


TIMOTHY P. CANNON, J., concurring in judgment only in part and dissenting in part.

       {¶44} Respectfully, I concur in judgment only in part and dissent in part from the

opinion of the majority. There are numerous arguments raised by both parties that

should be further addressed and clarified.

       {¶45} As her first assignment of error, appellant asserts the trial court erred by

“reserving jurisdiction to in effect modify its division of property award, contrary to law.”

The majority states that the “clear language of the judgment entry constitutes an attempt

to reserve jurisdiction to enforce the award.” I believe the trial court’s order on this point

is less than clear. For example, the trial court’s entry states “that the Court shall reserve



                                             12
jurisdiction to enter further order to divide assets of [appellant] for the division of

property as well as amounts awarded by the Court to be paid by [appellant] to [appellee]

for compensatory damages and attorney fees.” I concur with the majority that to the

extent the trial court attempted to reserve jurisdiction solely for the purpose of enforcing

its own order—and not to consider any further modification of the division of property—

this assignment of error is without merit. The trial court is not permitted, however, to

retain jurisdiction to further modify the division of property. See Pettit v. Pettit, 12th Dist.

Fayette No. CA2011-08-018, 2012-Ohio-1801, ¶58, quoting Schiavone v. Schiavone,

126 Ohio App.3d 780, 782 (12th Dist.1998), quoting R.C. 3105.171(I).

       {¶46} Appellant’s third and fourth assignments of error state:

              [3.] The Trial Court erred and abused its discretion by failing to limit
              the distributive award to Appellee to Appellant’s separate property
              as required by law.

              [4.] The Trial Court erred and abused its discretion in awarding
              Appellee distributive awards so punitive as to make the entire
              division of property not only unequal, but grossly inequitable under
              the entire facts and circumstances of the case.

I believe we should more fully address the specific arguments raised by appellant, to

wit: (1) the initial finding of financial misconduct; (2) the amount and source of the

distributive award; and (3) whether the division of marital assets is equitable.

       {¶47} “[W]hile a trial court enjoys broad discretion in deciding whether to

compensate one spouse for the financial misconduct of the other, the initial finding of

financial misconduct must be supported by the manifest weight of the evidence.”

Calkins v. Calkins, 11th Dist. Geauga Nos. 2014-G-3203 & 3218, 2016-Ohio-1297, ¶17,

citing Davis v. Davis, 11th Dist. Geauga No. 2011-G-3018, 2013-Ohio-1118, ¶77, and

Smith v. Emery-Smith, 190 Ohio App.3d 335, 2010-Ohio-5302, ¶50 (11th Dist.).



                                              13
              [W]hile R.C. 3105.171(E)(3) does not set forth an exclusive listing
              of acts constituting financial misconduct, those acts that are listed
              (dissipation, destruction, concealment, or fraudulent disposition) all
              contain some element requiring wrongful scienter. Typically, the
              offending spouse will either profit from the misconduct or
              intentionally defeat the other spouse’s distribution of marital assets.

Hammond v. Brown, 8th Dist. Cuyahoga No. 67268, 1995 Ohio App. LEXIS 3975, *9

(Sept. 14, 1995); see also Gentile v. Gentile, 8th Dist. Cuyahoga No. 97971, 2013-Ohio-

1338, ¶55. The burden of proving financial misconduct is on the complaining party.

Emery-Smith, supra, at ¶50 (citation omitted).

       {¶48} I believe there is competent, credible evidence to support the trial court’s

determination that appellant engaged in financial misconduct. It appears the majority

has simply taken this initial legal conclusion for granted.

       {¶49} A trial court is vested with broad discretion when fashioning a division of

both marital property and marital debt. Onyshko v. Onyshko, 11th Dist. Portage No.

2008-P-0035, 2010-Ohio-969, ¶43 (citation omitted); see also Dilley v. Dilley, 11th Dist.

Geauga No. 2010-G-2957, 2011-Ohio-2093, ¶16. A potentially equal division is to be

the starting point in determining an equitable distribution of property. Cherry v. Cherry,

66 Ohio St.2d 348 (1981), paragraph one of the syllabus; see also R.C. 3105.171(C)(1).

In the end, “[t]he award need not be equal, but it must be equitable.” Bisker v. Bisker,

69 Ohio St.3d 608, 609 (1994) (citation omitted). Further, “[i]f a spouse has engaged in

financial misconduct, * * * the court may compensate the offended spouse with a

distributive award or with a greater award of marital property.” R.C. 3105.171(E)(4).

       {¶50} As the reviewing court, “we must view the property division in its entirety,

consider the totality of the circumstances, and determine whether the trial court abused

its discretion when dividing the spouses’ marital assets and debts.” Baker v. Baker, 4th



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Dist. Washington No. 07CA24, 2007-Ohio-7172, ¶28, citing Briganti v. Briganti, 9 Ohio

St.3d 220, 222 (1984). We are not to substitute our judgment for that of the trial court

“unless the trial court’s decision is unreasonable, arbitrary or unconscionable.” Bisker,

supra, at 609, citing Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶51} Here, the trial court granted appellee a “distributive award” as a result of

appellant’s financial misconduct.     A distributive award can only be made from the

offending party’s separate property.         See Dilley, supra, at ¶27, quoting R.C.

3105.171(A)(1). Appellee’s distributive award, on the other hand, exceeded the value of

appellant’s separate property and was thus taken from marital property.

       {¶52} The majority concludes this was merely an error in “naming the award”

and that it was harmless error because the trial court “had the power to make [appellee]

an award from the marital property.” However, it is not clear the trial court recognized

this or that the court made what it considered to be an “equitable division” of marital

assets when it granted the “distributive award.”

       {¶53} Because the amount of the “distributive award” was greater than the

amount of appellant’s separate property, I would find the trial court abused its discretion.

In order for this court to review whether the division of marital property was “equitable”

or “punitive,” however, we need to know what that award actually is. This case should

be remanded for the trial court to perform another calculation in accordance with the

statute. The trial court must determine what amount of the distributive award is to be

paid from appellant’s separate property and what portion of the marital property should

be divided in order for that division to be “equitable.”




                                              15
       {¶54} Appellant’s seventh assignment of error states: “The Trial Court erred and

abused its discretion by concluding Appellee’s conduct to have been negligent due to

ignorance, or inappropriate at times, but not rising to financial misconduct.” Again, we

do not review this determination for an abuse of discretion. Rather, a legal conclusion

on the issue of financial misconduct must be supported by the manifest weight of the

evidence. See Calkins, supra, at ¶17 (citations omitted). I agree with the majority’s

disposition of this assignment of error because the weight of the evidence supports the

conclusion that appellee’s conduct did not rise to the level of financial misconduct under

R.C. 3106.171(E)(4).

       {¶55} Under her sixth assignment of error, appellant asserts “[t]he Trial Court

erred and abused its discretion by adopting Appellee’s expert opinion of the valuation of

Carramar Financial, contrary to the preponderance of the competent credible evidence.”

The majority finds this argument without merit because appellant does not explain why it

was error for the trial court to find appellee’s expert more credible. I do not agree with

this statement. In her appellate brief, appellant specifically contends her expert was

more credible with regard to use of a multiplier and inclusion of certain assets in the

valuation.

       {¶56} We should also clarify the standard of review regarding adopting an

expert’s valuation of an asset. Many cases have conflated abuse of discretion review

with the manifest weight standard. In reviewing the adoption of an expert’s valuation, I

believe we should simply determine whether competent, credible evidence exists to

support that decision.




                                           16
       {¶57} Under her fifth assignment of error, appellant states: “The Trial Court erred

and abused its discretion by classifying and valuing various assets as marital property

contrary to the manifest weight of the evidence.” I first take issue with the majority’s

analysis; although it concludes many of appellant’s challenges are without merit, it does

not indicate what the specific challenge is with respect to each of the assets discussed.

       {¶58} Further, the standard of review must again be clarified. Contrary to the

majority opinion, a “civil manifest weight standard” no longer exists. See Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶17-23, citing State v. Thompkins, 78

Ohio St.3d 380 (1997) (holding the criminal standard of review for manifest weight of the

evidence applies in civil cases). “‘When reviewing a trial court’s designation of property

as marital or separate, an appellate court applies a manifest weight of the evidence

standard of review.’ The designation of separate property by the trial court will be

upheld on appeal if it is supported by competent, credible evidence.” Gosser v. Gosser,

11th Dist. Trumbull No. 2006-T-0029, 2007-Ohio-3201, ¶6, quoting Seybert v. Seybert,

11th Dist. Trumbull No. 99-T-0119, 2001-Ohio-7066, ¶19, and citing Fletcher v.

Fletcher, 68 Ohio St.3d 464, 468 (1994). This standard should also be applied to the

valuation of property. The value chosen by the trial court must be based on the more

persuasive competent, credible evidence.

       {¶59} For all of the foregoing reasons, I respectfully concur in judgment only in

part and dissent in part from the majority opinion.




                                            17
