[Cite as Sears v. Sears, 2012-Ohio-5968.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

CATHY A. SEARS                                    JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 12-CA-09
JERRY E. SEARS, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Knox County Court of
                                               Common Pleas, Case No. 10 DV 11-0224


JUDGMENT:                                      Affirmed in part, Reversed in part, and
                                               Remanded


DATE OF JUDGMENT ENTRY:                        December 12, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


GREGG R. LEWIS                                 ANTHONY M. HEALD
ERIC E. WILLISON                               125 North Sandusky Street
625 City Park Avenue                           Delaware, Ohio 43015
Columbus, Ohio 43206-1003
Knox County, Case No. 12-CA-09                                                        2

Hoffman, J.


       {¶1}   Defendant-appellant Jerry E. Sears (“Husband”) appeals the March 28,

2012 Judgment Entry entered by the Knox County Court of Common Pleas, which

overruled his objections to the magistrate’s December 6, 2011 decision, and approved

and adopted said decision as order of the court. Plaintiff-appellee is Cathy A. Sears

(“Wife”).

                         STATEMENT OF THE FACTS AND CASE

       {¶2}   Husband and Wife were married on October 26, 1990, in Gambier, Ohio.

No children were born as issue of the marriage. Wife filed a complaint for divorce on

April 6, 2010. Wife dismissed the complaint on May 4, 2010, but subsequently re-filed it

on November 6, 2010. Husband filed an answer and counterclaim on December 21,

2010. Wife filed an answer to Husband’s counterclaim.

       {¶3}   The matter came on for final hearing before the magistrate on November

7, and 9, 2011. The following evidence was adduced at the hearing. Husband was 43

years old. He worked as a crew foreman for Hills Blacktop, and earned $40,000/year as

a salaried employee. The work Husband performs is seasonal. However, as a salaried

employee, he does not receive unemployment compensation during the winter months.

Husband has health insurance coverage through his employer.

       {¶4}   Wife was 40 years old at the time of the final hearing. She has been

employed for the last fifteen years with Options Plus, Inc. Wife works 32.5 hours per

week and is paid $15/hour, earning an annual income of $25,350.00. Wife’s boss

testified he had reduced the hours of all of his employees due to a 35% decrease in the

business. In order to earn additional money, Wife mowed lawns for her employer. She
Knox County, Case No. 12-CA-09                                                            3


earned $50 for each mowing. Health insurance was available as a fringe benefit to

Wife.

        {¶5}   The marital residence was located at 22096 Danville-Amity Road in Knox

County, Ohio. The fair market value of the property was $86,500.00. The parties also

owned one-half interest in a vacant lot which sits adjacent to the marital residence. The

fair market value of the vacant lot was $3,850.00.

        {¶6}   The trial court awarded Wife the 2002 Ford Escort and Husband the 2004

F250 truck.

        {¶7}   Wife had a 401(K) account through her employer which had a balance of

$12,953.67, as of September 30, 2011. Husband had an IRA with Ameriprise which

had a total value of $33,334.87. On August 25, 2010, Husband withdrew the funds from

the account, receiving $25,784.64. The remaining $7,550.23 was withheld for taxes.

Husband had a whole life insurance policy with a cash value of $7,607.78. Wife filed a

separate tax return for 2010, and received a refund in the amount of $1,426.00. Despite

a temporary restraining order, Wife kept the refund rather than placing the monies into

her attorney’s escrow account.

        {¶8}   During the marriage, Wife’s parents loaned her $18,000.00, which Wife

used to purchase a horse. Wife subsequently sold the horse for $25,000.00. Wife did

not repay her parents the original $18,000.00, but rather purchased another horse for

$22,500.00, in March, 2006. Wife transferred title of the horse to her mother on or

about January 25, 2010. Wife’s mother commenced paying the insurance premiums on

the horse in February, 2011. Wife testified at deposition she transferred the title in order

to protect her parents’ investment. Wife argued the fair market value of the horse was
Knox County, Case No. 12-CA-09                                                          4


only $3,000.00, as the animal was lame. Husband testified at deposition he withdrew

the funds from the IRA as a “tit for tat” reaction to Wife’s transferring the title of the

horse to her mother.

       {¶9}   The parties’ household goods and furnishings, less the motor vehicles,

were appraised at $15,063.00, of which $8,689.00 was marital. The parties’ liabilities

totaled $21,170.00.

       {¶10} The magistrate issued her decision on December 6, 2011, recommending

the parties be granted a divorce on the grounds of incompatibility. The magistrate found

Husband had committed financial misconduct, and divided the parties’ marital assets in

light of such finding. The magistrate ordered Husband pay spousal support to Wife in

the amount of $650/month for six years.         Husband filed timely objections to the

magistrate’s decision.   After the transcript was prepared, Husband filed additional

objections.

       {¶11} Via Judgment Entry filed March 28, 2012, the trial court overruled

Husband’s objections in toto, and approved and adopted the magistrate’s decision as

order of the court.

       {¶12} It is from the March 28, 2012 Judgment Entry Husband appeals, raising

the following assignments of error:

       {¶13} “I. THE FINDING OF FINANCIAL MISCONDUCT BY THE APPELLANT

WAS ERRONEOUS UNDER THE FACTS OF THIS CASE AND EVEN ASSUMING

THAT IT WAS PROPER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

IN FASHIONING A REMEDY WITHOUT ANY REASONABLE AND PROPER

JUSTIFICATION FOR ITS REMEDY.
Knox County, Case No. 12-CA-09                                      5


     {¶14} “II. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION IN REPEATEDLY PERMITTING THE APPELLEE TO

INTRODUCE TESTIMONY FOR THE PURPOSE [SIC] ATTEMPTING TO SHOW THE

BAD CHARACTER OF THE APPELLANT IN DERROGATION OF OHIO RULE OF

EVIDENCE 608(b).

     {¶15} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT AND ABUSED ITS DISCRETION BY ESTABLISHING SPOUSAL

SUPPORT WITHOUT FIRST CONSIDERING ALL THE FACTORS AS SET FORTH IN

3105.18 AND 3105.171 AND, IN PARTICULAR, THE INCOME OF THE PARTIES AND

THE NEED OF THE COURT TO CONSIDER THE PARTIES’ POSITION AFTER THE

DIVISION OF ASSETS BEFORE CONSIDERING THE ISSUE OF THE PROPRIETY

OF SPOUSAL SUPPORT.

     {¶16} “IV. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION IN IT’S [SIC] DETERMINATION OF THE LEVEL OF

INCOME THAT THE APPELLANT AND APPELLEE SHOULD BE FOUND TO MAKE

FOR SETTING SPOUSAL SUPPORT.

     {¶17} “V. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION BY FAILING TO DIVIDE THE PARTIES’ ASSETS

AND LIABILITIES IN AN EQUITABLE FASHION.

     {¶18} “VI. THE COURT ERRED TO THE PREJUDICE OF THE APPELLANT

AND ABUSED ITS DISCRETION IN ITS AWARD OF ATTORNEY FEES. THERE WAS

NO PROPER AWARD OF ATTORNEY FEES AND APPARENTLY APPEARS TO BE

PART OF THE ONGOING DESIRE TO PUNISH THE APPELLANT.”
Knox County, Case No. 12-CA-09                                                           6


                                                I, II

       {¶19} Because Husband’s first and second assignments of error involve similar

analysis, we shall address said assignments together. In his first assignment of error,

Husband contends the trial court’s finding of financial misconduct was not supported by

the evidence.     Husband further maintains, assuming arguendo, the finding was

appropriate, the trial court erred and abused its discretion in fashioning a remedy

without reasonable justification for doing so.          In his second assignment of error,

Appellant submits the trial court erred and abused its discretion in permitting Wife to

introduce testimony for the purpose of showing Husband’s bad character.

       {¶20} Civ.R. 53(D)(3)(b)(iv) provides:

       {¶21} “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).”

       {¶22} Husband raised four objections to the magistrate’s decision. Husband’s

first objection addressed the characterization of the 1999 Chevrolet Cavalier as marital

property. The second objection focused on the property division. In his third objection,

Husband took issue with the figure the magistrate utilized for Wife’s income and the

award of and length of the spousal support award. Husband’s fourth and final objection

challenged the award of attorney fees. Husband did not object to the magistrate’s

finding of financial misconduct or the magistrate’s admission of alleged bad acts

evidence.
Knox County, Case No. 12-CA-09                                                            7


       {¶23} Because Husband failed to object to the magistrate's finding of financial

misconduct and admission of bad acts evidence, we find he has waived his right to raise

these issues on appeal.

       {¶24} Husband’s first and second assignments of error are overruled.

                                              III, IV

       {¶25} Husband’s third and fourth assignments of error both center on the trial

court’s spousal support award; therefore, we shall address these assignments of error

together. In his third assignment of error, Husband asserts the trial court erred and

abused its discretion in establishing spousal support without considering the factors set

forth in R.C. 3105.18 and 3105.171.        In his fourth assignment of error, Husband

contends the trial court erred and abused its discretion in determining the parties’

incomes for calculating spousal support.

       {¶26} It is well-established that the trial court enjoys wide latitude in determining

the appropriateness as well as the amount of spousal support. Bolinger v. Bolinger

(1990), 49 Ohio St.3d 120, 551 N.E.2d 157. Such an award will not be reversed unless

a reviewing court, after considering the totality of the circumstances, finds that the trial

court abused its discretion. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E.2d

83; Cherry v. Cherry (1981), 66 Ohio St.2d 348, 352, 421 N.E.2d 1293. “The term

‘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, supra at 219,

450 N.E.2d 1140.

       {¶27} “In making a spousal support award, a trial court must ‘consider all of the

relevant factors in [R.C. 3105.18] * * * then weigh the need for support against the ability
Knox County, Case No. 12-CA-09                                                             8

to pay’.” Layne v. Layne (1992), 83 Ohio App.3d 559, 562–563, 615 N.E.2d 332. The

resulting award must be “fair, equitable and in accordance with the law.” Kaechele v.

Kaechele (1988), 35 Ohio St.3d 93, 94, 518 N.E.2d 1197. An equitable result requires

that “to the extent feasible, each party should enjoy, after termination of a marriage, a

standard of living comparable to that established during the marriage as adjusted by the

various factors of [R.C. 3105.18].” Buckles v. Buckles (1988), 46 Ohio App.3d 102, 110,

546 N.E.2d 950

       {¶28} R.C. 3105.18(C)(1) provides:

       {¶29} “(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:

       {¶30} “(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;

       {¶31} “(b) The relative earning abilities of the parties;

       {¶32} “(c) The ages and the physical, mental, and emotional conditions of the

parties;

       {¶33} “(d) The retirement benefits of the parties;

       {¶34} “(e) The duration of the marriage;

       {¶35} “ * * *;

       {¶36} “(g) The standard of living of the parties established during the marriage;

       {¶37} “(h) The relative extent of education of the parties;
Knox County, Case No. 12-CA-09                                                               9


       {¶38} “(i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;

       {¶39} “ * * *;

       {¶40} “(l) The tax consequences, for each party, of an award of spousal support;

       {¶41} “ * * *;

       {¶42} “(n) Any other factor that the court expressly finds to be relevant and

equitable.” R.C. 3105.18(C).

       {¶43} 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 the evidence was not

considered. Barron v. Barron, Stark App. No.2002CA00239, 2003-Ohio-649 at

paragraph 25. The statute directs the court to consider all fourteen factors, and a

reviewing court will presume the trial court did so absent evidence to the contrary.

Cherry, supra. The court must only set forth sufficient detail to enable a reviewing court

to determine the appropriateness of the award. See, e.g., Kaechele v. Kaechele (1988),

35 Ohio St.3d 93, 518 N.E.2d 1197.

       {¶44} The magistrate addressed each of the R.C. 3105.18(C) factors in her

decision. The magistrate found Husband earns $20,430.00/year more than Wife. The

parties had been married for 21 years, had modest assets and minimal debt. They did

not live an extravagant lifestyle. Both parties had high school educations.

       {¶45} Upon review of the record, we do not find the trial court was unreasonable,

arbitrary or unconscionable in determining the amount or duration of the spousal

support award. Furthermore, the trial court specifically retained jurisdiction to modify the

spousal support order in the future according to the best interest of either party.
Knox County, Case No. 12-CA-09                                                        10


      {¶46} Husband also takes issue with the income figures the trial court utilized in

calculating the spousal support award.

      {¶47} In his Objections to the Magistrate’s Decision, Husband objected to the

magistrate’s calculation of Wife’s income for determining spousal support as well as the

amount of spousal support the magistrate ordered him to pay. Husband did not object

to the magistrate’s calculation of his own income. Because Husband failed to object to

the magistrate's finding relative to his income, we find Husband has waived the issue on

appeal.

      {¶48} In the court below, Husband did object to the income figure assigned to

Wife. Accordingly, this portion of his fourth assignment of error is ripe for review. The

trial court set Wife’s income at $25,350.00.

      {¶49} Joe Chattin, Wife’s employer testified at the final hearing.         Chattin

indicated he is the general manager of Options Plus, Inc., the business for which Wife

works. Chattin stated Wife has worked at Options Plus for fifteen years, and for the

majority of the time, she worked forty hours/ week. However, a month or two before the

final hearing, because business had declined by 35%, Wife, along with all of the other

employees, was only working a 32 ½ hour work week. On cross-examination, Chattin

stated Wife earns approximately $15/hour. Wife’s hours had been reduced for a period

of time during the 2010 calendar year. Chattin acknowledged the business pays its

employees’ medical insurance premiums. Wife’s 2010 tax return showed her income at

$30,196.80.

      {¶50} Husband asserts the trial court should have attributed a greater income to

Wife because Wife’s hours were also reduced in 2010, and yet she earned $30,196.20
Knox County, Case No. 12-CA-09                                                                11


for that year. Additionally, Wife’s tax return did not include the $50/week Wife earned

for mowing grass during the months of April through October.

       {¶51} Upon review of the record, we find there was competent, credible

evidence to support the trial court’s determination Wife’s earning ability was $25,350.00.

Accordingly, we find the trial court did not abuse its discretion in utilizing this figure.

       {¶52} Husband’s third and fourth assignments of error are overruled.

                                                   V

       {¶53} In his fifth assignment of error, Husband submits the trial court erred and

abused its discretion in failing to order an equitable division of the parties’ assets and

liabilities. Specifically, Husband takes issues with the trial court’s classification of the

1999 Chevrolet Cavalier as marital property, the court’s valuation of Wife’s horse at

$3,000, and the trial court’s crediting him $30,334.87, the amount of the funds he

removed from the 401K plan, as an asset.

       {¶54} In divorce proceedings, a trial court must classify property as marital or

separate property.     R.C. 3105.171(B). Then, the trial court must divide the marital

property equally or, if an equal division is inequitable, the court must divide the marital

property equitably. R.C. 3105.171(C)(1); Neville v. Neville, 99 Ohio St.3d 275, 791

N.E.2d 434, 2003–Ohio–3624, ¶ 5. A trial court has broad discretion in the allocation of

marital property, and an appellate court will not disturb its judgment absent an abuse of

discretion. Id.

       {¶55} A court may find an equal division of marital property inequitable if one

spouse demonstrates that the other has committed financial misconduct. “If a spouse

has engaged in financial misconduct, including, but not limited to, the dissipation,
Knox County, Case No. 12-CA-09                                                          12


destruction, concealment, nondisclosure, or fraudulent disposition of assets, 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). Financial misconduct occurs when one

spouse engages in some type of knowing wrongdoing, by which the spouse either

profits or intentionally interferes with the other spouse's property rights. Taub v. Taub,

10th Dist. No. 08AP–750, 2009–Ohio–2762, ¶ 33; Heller v. Heller, 10th Dist. No. 07AP–

871, 2008–Ohio–3296, ¶ 27; Hamad v. Hamad, 10th Dist. No. 06AP–516, 2007–Ohio–

2239, ¶ 62.

       {¶56} In this case, the trial court found Husband's financial misconduct justified a

distributive award. We do not disagree. R.C. 3105.171(E)(4) allows a trial court to

“compensate the offended spouse with a distributive award or with a greater award of

marital property.” However, the trial court not only compensated Wife with a distributive

award, but also attributed $30,334.87 to Husband as part of his assets. By ascribing

the funds Husband removed from the 401K as part of the marital assets, the trial court

effectively penalized Husband twice for his misconduct. We find the trial court is not

authorized to assess such a penalty under the statute.

       {¶57} Husband’s fifth assignment of error is sustained.

                                                VI

       {¶58} In his final assignment of error, Husband maintains the trial court abused

its discretion in ordering him to pay $5000 of Wife’s attorney fees.

       {¶59} R.C. 3105.73(A) governs the award of attorney fees and litigation

expenses in domestic relations cases and provides: “In an action for divorce * * * or an

appeal of that action, a court may award all or part of the reasonable attorney's fees and
Knox County, Case No. 12-CA-09                                                         13


litigation expenses to either party if the court finds the award equitable. In determining

whether an award is equitable, the court may consider the parties' marital assets and

income, any award of temporary spousal support, the conduct of the parties, and any

other relevant factors the court deems appropriate.”

      {¶60} “An award of attorney fees in a domestic relations action is within the

sound discretion of the trial court and will not be reversed on appeal absent an abuse of

discretion.” McEnery v. McEnery, 10th Dist. No. 00AP–69, 2000 WL 1863370 (Dec. 21,

2000) at *3, citing Goode v. Goode, 70 Ohio App.3d 125, 134, 590 N.E.2d 439

(10thDist.1991).

      {¶61} Upon our review of the record, we do not find the trial court abused its

discretion in ordering Husband to pay a portion of Wife’s attorney fees.

      {¶62} Husband’s sixth assignment of error is overruled.

      {¶63} The judgment of the Knox County Court of Common Pleas is affirmed in

part, reversed in part and remanded.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ W. Scott Gwin_____________________
                                             HON. W. SCOTT GWIN


                                             s/ Julie A. Edwards___________________
                                             HON. JULIE A. EDWARDS
Knox County, Case No. 12-CA-09                                                  14


              IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


CATHY A. SEARS                           :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
JERRY E. SEARS, JR.                      :
                                         :
       Defendant-Appellant               :         Case No. 12-CA-09


       For the reasons stated in our accompanying Opinion, the judgment of the Knox

County Court of Common Pleas is affirmed in part, reversed in part and remanded.

Costs to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ W. Scott Gwin_____________________
                                         HON. W. SCOTT GWIN


                                         s/ Julie A. Edwards___________________
                                         HON. JULIE A. EDWARDS
