[Cite as Bennett v. Bennett, 2016-Ohio-462.]



                          STATE OF OHIO, COLUMBIANA COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

FRIEDA L. BENNETT                                )
                                                 )
        PLAINTIFF-APPELLANT                      )
                                                 )             CASE NO. 14 CO 8
VS.                                              )
                                                 )                  OPINION
BRIAN D. BENNETT                                 )
                                                 )
        DEFENDANT-APPELLEE                       )

CHARACTER OF PROCEEDINGS:                        Civil Appeal from Court of Common
                                                 Pleas of Columbiana County, Ohio,
                                                 Domestic Relations Division
                                                 Case No. 11 DR 197

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellant                          Attorney Christopher Maruca
                                                 201 East Commerce Street, Suite 316
                                                 Youngstown, Ohio 44503

For Defendant-Appellee                           Attorney Elise Burkey
                                                 200 Chestnut Avenue, NE
                                                 Warren, Ohio 44483




JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                                 Dated: February 5, 2016
[Cite as Bennett v. Bennett, 2016-Ohio-462.]
DeGENARO, J.

        {¶1}     Plaintiff-Appellant, Frieda L. Bennett, appeals the judgment of the
Columbiana County Court of Common Pleas that adopted the magistrate's decision
and granted a divorce between Frieda and Defendant-Appellee, Brian D. Bennett.
On appeal, Frieda asserts that the trial court erred by failing to examine financial
misconduct in the aggregate and by failing to properly calculate Brian's income for
the purpose of spousal and child support.           For the following reasons, Frieda's
arguments are meritless. Accordingly, the judgment of the trial court is affirmed.
                                  Facts and Procedural History
        {¶2}     Brian and Frieda were married in September of 2001 and they have two
minor children. The parties separated in February of 2011. During the marriage,
Brian worked as the owner and operator of Bennett Construction. Brian used an
accountant in keeping his construction company's records, and Frieda actively
participated in Brian's company, including writing checks and providing information to
the accountant.        The other businesses the two parties engaged in were never
profitable, one of which netted annual losses over $25,000.00 more than once.
        {¶3}     The magistrate found Brian's average income from 2009-2011 was
approximately $18,958.33 per year.             Frieda worked at Mountaineer Casino,
Racetrack and Resort until her termination in August 2010. In January 2011, Frieda
found another job but was unemployed as of August 2011, and remained so at the
time of trial.
        {¶4}     The couple borrowed money from their respective families to help the
businesses stay afloat and pay living expenses.             Brian used money from the
custodial account of the parties' two children to pay a business debt, and at some
point Frieda became aware of this, and the debt payoff resulted in a tax refund to
both Brian and Frieda. The money used from this account was never returned. At
another time, Brian declined to enter into an oil and gas lease that would have
provided additional income to the parties. The two parties later entered into a lease
which Frieda contends was less profitable.
        {¶5}     In April 2011, Frieda filed for divorce.    A trial was held before the
                                                                               -2-


magistrate who issued a decision granting the parties a divorce. Pertinent to the
objections and issues on appeal, the magistrate found that Brian did not commit
marital waste by refusing to sign an earlier proposed oil and gas lease. The
magistrate further found that both parties had "robbed Peter to pay Paul in order to
support the lifestyle they previously enjoyed when the construction business was
going strong." This included Frieda cashing in her 401K, borrowing from family and
spending her inheritance money. And Brian also borrowed from family and cashed in
the children's accounts. Regarding the parties' income the magistrate found:

      [Brian] is the self-employed owner of Bennett Construction, which was
      established prior to the marriage. No appraisals of Bennett Construction
      were submitted. The value of the business, other than tangible assets
      described herein, is $0.00. For child support purposes, the most current
      income information comes from 2011. In 2011 [Brian] had income of
      $15,039.00; in 2010 his income was less than minimum wage, so he is
      imputed minimum wage of $15,080.00; in 2009 his income was
      $18,623.00. The average of those three years is $18,958.33. His
      annual income for 2011 and 2009 was determined by taking his net
      profit as shown on line 31 of Schedule C [on joint income tax returns
      signed by both parties] and adding back depreciation claimed on line 13
      of Schedule C. [Frieda] urges the Court to base [Brian's] current income
      on deposits made into the Bennett Construction account in 2012
      (totaling   approximately   $155,000.00).    The       Court   notes   that
      approximately $45,000.00 of that total came from deposits out of an
      account [Brian] owns with his mother. The Court also notes that this
      argument ignores that [Brian] would have cost of goods and operating
      expenses to pay, which have historically significantly lowered the "gross
      profit" of his business according to the parties [sic] jointly filed tax
      returns from 2006-2011. The Court will not use the 2012 gross deposits
      as a basis for determining [Brian's] current income.
                                                                                -3-


      ***
      [Frieda] is currently unemployed, but she is actively seeking
      employment. Her unemployment compensation has expired, and at this
      time she has no income. In the past she has earned in excess of
      $50,000.00 annually. She suffers from no disabilities, which would
      prevent her from obtaining full-time employment. For child support
      purposes she will be imputed minimum wage.

      {¶6}     After analyzing the statutory factors, the magistrate found spousal
support was unwarranted for either party. Frieda was named residential parent of the
parties' minor children, Brian was ordered to pay child support.
      {¶7}     The court initially adopted the magistrate's decision the same day, and
both parties filed objections. Frieda argued, inter alia: 1) imputing minimum wage to
Brian grossly minimized his income; 2) as a result of the minimum wage imputation,
the magistrate failed to properly calculate spousal and child support payments; 3) it
was marital waste for Brian to refuse to sign the oil and gas lease; and, 4) the
magistrate erred by not awarding Frieda one-half the value of the children's accounts
that were liquidated by Brian without her knowledge and consent, which were
additional actions by Brian that supported a finding of financial misconduct.
      {¶8}     In a January 10, 2014 judgment, the trial court overruled all of Frieda's
objections, finding that since there was no showing that Brian behaved in a manner
that was either abusive or destructive in regarding the oil and gas lease, allegation of
marital waste was unsupported. Regarding the children's custodial accounts, the trial
court found:

               Based on the record, even if no agreement existed regarding the
      use of the funds [withdrawn from the accounts], it is evident that at least
      a portion was withdrawn and used to pay some or all of the parties' tax
      liability that arose during the marriage, sometime after 2006. Ultimately
      the parties received a significant refund that was split equally by order
                                                                              -4-


      of the Court after the payment of taxes. Under this scenario FLB's
      request to be awarded 1/2 of the value of funds withdrawn from the
      custodial accounts is not supported by the record inasmuch as she
      benefited from the payment of her tax liability.

      {¶9}   The trial court further found that the magistrate's calculations were
supported by the record and there was insufficient evidence to prove Brian had
underreported his income on his tax returns or otherwise committed financial
impropriety so as to support a higher figure.
      {¶10} The trial court sustained one of Brian's objections involving his separate
property claims, which are not at issue on appeal; all other objections were overruled.
Accordingly, the trial court determined, after its independent review of the record and
the facts and conclusions contained in the magistrate's decision, that the magistrate
properly determined the factual issues and appropriately applied the law, except
regarding two pieces of Brian's personal property, which are not at issue on appeal.
In all other respects the trial court overruled the objections to the magistrate's
decision.
                           Financial Misconduct Analysis
      {¶11} In her first of two assignments of error, Frieda argues:

             The trial court abused its discretion and committed reversible
      error by examining the instances of financial misconduct and spoliation
      solely on an individual basis instead of the aggregate.

      {¶12} An appellate court reviews a trial court's decision regarding financial
misconduct for an abuse of discretion. Carpenter v. Carpenter, 7th Dist. No. 06-NO-
331, 2007-Ohio-1238, ¶ 14. An abuse of discretion "means an error in judgment
involving a decision that is unreasonable based upon the record; that the appellate
court merely may have reached a different result is not enough."            Downie v.
Montgomery, 7th Dist. No. 12 CO 43, 2013-Ohio-5552, ¶ 50. "The decision of a trial
                                                                                -5-


court will not be reversed as being against the manifest weight of the evidence if the
trial court's judgment is supported by some competent, credible evidence." DeWitt v.
DeWitt, 3d Dist. No. 9-02-42, 2003-Ohio-851, ¶ 10.
       {¶13} R.C. 3105.171(E) defines financial misconduct as, among other things,
"dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of
assets." "Typically, the offending spouse will either profit from the misconduct or
intentionally defeat the other spouse's distribution of marital assets."       Gentile v.
Gentile, 8th Dist. No. 97971, 2013-Ohio-1338, ¶ 55. If financial misconduct is found
by the trial court, R.C. 3105.171(E) allows for a distributive award or a greater award
of marital property to the offended spouse. See R.C. 3105.171(E). The offended
party bears the burden of proving allegations of financial misconduct.          Ballas v.
Ballas, 7th Dist. No. 04 MA 60, 2004-Ohio-5128, ¶ 50. R.C. 3105.171(E)(3) has
been interpreted so that there must be some wrong intent, or scienter. Further, the
complaining party may not have unclean hands. Ballas at ¶48-53.
       {¶14} Frieda identifies three alleged instances of financial misconduct: Brian's
failure to sign an earlier oil and gas lease that would have proved more lucrative than
the one the parties ultimately signed; Brian's act of cashing in the children's custodial
accounts; and Brian's allegedly underreporting of his income. The income issue is the
subject of the second assignment of error and will be discussed therein.
       {¶15} The trial court's analysis regarding the oil and gas lease is thorough.
Frieda argued in her objections that it was marital waste for Brian to refuse to sign an
oil and gas lease in a timely fashion. The trial court found the record did not support a
finding that Brian acted in an "abusive or destructive" manner towards the signing of
the lease, further finding:

       There is no evidence that failure to sign the lease was somehow
       beneficial or profitable to BDB [Brian] and detrimental to FLB [Frieda.]
       Instead both parties lost equally. There is no evidence in the record
       demonstrating     disobedience   with   a   court   order   regarding   the
       Chesapeake lease.      Rather, the evidence supports that the parties
                                                                                  -6-


       simply were at an impasse on how they should proceed.

       {¶16} Regarding the children's custodial accounts, the trial court's analysis is
also quite thorough, concluding that regardless of whether Frieda was aware of
Brian's withdrawals, she ultimately benefited insofar as the money was used to pay
some or all of the parties' prior tax liability resulting in a significant tax refund which
the parties divided equally. Thus it was not necessary for the trial court to adjust
Frieda's property award simply because Brian withdrew money from these accounts.
       {¶17} Further, the record is replete with evidence that both parties spent
money that they did not have to maintain an artificial lifestyle; both had inheritances
that they spent during the marriage, among other issues. The magistrate as fact-
finder determined the parties have "robbed Peter to pay Paul to support the lifestyle
they previously enjoyed when the construction business was going strong, and the
Plaintiff had a good job."
       {¶18} In addition, Frieda has failed to provide any support for her argument
that claims of financial misconduct must be viewed in the aggregate; she does not
point to, and we do not find, any guiding authority mandating the manner in which a
trial court will consider alleged actions that amount to financial misconduct. Plainly
put, there is no basis for an argument alleging that the trial court acted improperly
without citing authority showing that the court deviated from a standard. And
regardless, here the trial court considered the evidence from a global stand-point and
did not just look at each individual act.
       {¶19} In sum, the trial court did not abuse its discretion with regard to the
financial misconduct allegations. Accordingly Frieda's first assignment of error is
meritless.
                                  Income Calculations
       {¶20} In her second assignment of error, Frieda asserts:

              The trial court abused its discretion and committed reversible
       error by failing to properly calculate Appellee/Husband's income.
                                                                                -7-


       {¶21} Frieda argues the trial court's child support award and its decision not
to order spousal support were erroneous insofar as it used an improper income figure
for Brian.
       {¶22} An appellate court reviews matters of spousal support for an abuse of
discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990). The
decision to impute income to one or both parents in order to calculate support is also
reviewed for an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144, 541
N.E.2d 1028 (1989). An abuse of discretion "means an error in judgment involving a
decision that is unreasonable based upon the record; that the appellate court merely
may have reached a different result is not enough." Downie, supra, at ¶ 50. A trial
court has broad discretion when determining the amount of spousal support. Gilson
v. Gilson, 7th Dist. No. 10 HA 03, 2011-Ohio-6640, ¶ 13.
       {¶23} R.C. 3105.18 governs the calculation of spousal support. If a court
deems that a spousal award is appropriate and reasonable, the amount is
determined by applying the fourteen statutory factors listed in R.C. 3105.18(C).
Kennedy v. Kennedy, 7th Dist. No. 2002 CO 09, 2003-Ohio-495, ¶ 16. The factors
are as follows:

       (a) The income of the parties, from all sources, including, but not limited
       to, income derived from property divided, disbursed, or distributed
       under section 3105.171 of the Revised Code;
       (b) The relative earning abilities of the parties;
       (c) The ages and the physical, mental, and emotional conditions of the
       parties;
       (d) The retirement benefits of the parties;
       (e) The duration of the marriage;
       (f) The extent to which it would be inappropriate for a party, because
       that party will be custodian of a minor child of the marriage, to seek
       employment outside the home;
       (g) The standard of living of the parties established during the marriage;
                                                                              -8-


      (h) The relative extent of education of the parties;
      (i) The relative assets and liabilities of the parties, including but not
      limited to any court-ordered payments by the parties;
      (j) The contribution of each party to the education, training, or earning
      ability of the other party, including, but not limited to, any party's
      contribution to the acquisition of a professional degree of the other
      party;
      (k) The time and expense necessary for the spouse who is seeking
      spousal support to acquire education, training, or job experience so that
      the spouse will be qualified to obtain appropriate employment, provided
      the education, training, or job experience, and employment is, in fact,
      sought;
      (l) The tax consequences, for each party, of an award of spousal
      support;
      (m) The lost income production capacity of either party that resulted
      from that party's marital responsibilities;
      (n) Any other factor that the court expressly finds to be relevant and
      equitable.

R.C. 3105.18(C).
      {¶24} All of the statutory factors must be considered, and a trial court must
"not consider any one factor taken in isolation." Kennedy, supra, at ¶ 32, citing
Kaechele v. Kaechele, 35 Ohio St.3d 93, 96, 518 N.E.2d 1197 (1988).
      {¶25} Revised Code Chapter 3119 governs child support, and when
determining an appropriate amount, the trial court must calculate the income of both
parents consistent with the statute. R.C. 3119.05. A parent that is unemployed or
underemployed will be given potential income that may be imputed for purposes of
income calculation. R.C. 3119.01(C)(5)-(11). The income of a parent for support
purposes is equal to either gross income for a parent employed to full capacity, or the
sum of gross income of the parent and any potential income.                 See R.C.
                                                                                -9-


3119.01(C)(5). "Potential income is determined by considering all relevant factors,
including the parent's education, skills, training, experience, and earning capacity; the
availability of jobs and prevailing wages in the parent's geographic area; any mental
or physical disabilities of the parent; the ages and special needs of the children; and
whether evidence demonstrates that the parent can earn the imputed income."
Ramsey v. Ramsey, 7th Dist. No.13 JE 17, 2014-Ohio-1227, ¶ 38.
       {¶26} The first aspect of Frieda's argument centers on her allegations that
Brian was minimizing or underreporting the income from his business, essentially an
allegation of financial impropriety. However, Frieda has not demonstrated that any
financial impropriety occurred. Ms. Archer, Brian's accountant, was familiar with both
Brian and Frieda as an accountant for their joint tax returns and Brian's business and
she found no apparent impropriety with regard to the financial records. Moreover,
Brian's construction business profit fluctuated based on the demand for his work, and
the parties lived beyond their means.
       {¶27} Frieda's testimony at trial that Brian was hiding or underreporting
income is not supported by any financial documentation. And the fact that Brian
overstated his income on a credit application is not necessarily proof he was
underreporting his income, but could merely show that he was trying to obtain a
higher credit line. Thus, financial impropriety was not proven at trial.
       {¶28} The trial court did not abuse its discretion in calculating Brian's income.
The joint tax returns signed by both Brian and Frieda from 2009-2011 showed an
average income of $18,958.33.           No appraisals of Bennett Construction were
submitted. Further, Frieda's argument that $155,000.00 in deposits were made in
2012 is not indicative of an income figure as this argument ignores the cost of goods
and of operating expenses.
       {¶29} The trial court's analysis of Frieda's objections regarding the income
calculation for Brian was thorough and is supported by the record:

              Heidi Archer, the parties' tax preparer testified at length. She has
       worked with BDB regarding his tax returns since 1995 and with the
                                                                          - 10 -


parties regarding their joint tax returns the entire time of their marriage.
BDB is a self-employed contractor. For the years 2009, 2010, and 2011
BDB had average income of $18,958.33 based upon the parties' jointly
filed tax returns in evidence. For the years 2009 and 2011, BDB's
annual income was determined by taking his net profits as shown on
Line 31 of Schedule C and adding back depreciation claimed on Line
13 of Schedule C. The resulting amount is above the minimum wage
rate of $15,080.00. This comports with R.C, § 3119.01(C)(9)(a)-(b),
and (13), which sets forth the method to establish self-generated
income for purposes of child support,
       FLB claims that using minimum wage for BDB grossly minimizes
his income. However, courts typically require evidence of demonstrated
financial impropriety before accepting this argument.
***
       Such facts have not been sufficiently proven here. Ms. Archer
testified the ratio between the gross receipts of Brian D. Bennett
Construction and the cost of goods sold was consistent in most years,
except 2006 and 2010. The record establishes that the income of BDB
as a contractor is linked with the economy. The record is replete with
the parties' financial difficulties. That BDB overstated his income on a
credit application is evident, however, it does not change these
conclusions or the actual tax records in evidence. FLB acknowledged
that she signed the parties' joint tax returns without reading them and
had no Information that any of the returns were erroneous. Similarly Ms.
Archer testified she had no reason to doubt the information provided to
her by BDB. BDB was questioned about some of the deposits in the
construction account and testified they were actually transfers of money
from the joint account he has with his mother at CF Bank.            It was
therefore correct to exclude these deposits as income to Brian D.
                                                                             - 11 -


      Bennett Construction.

      {¶30} The trial court did not err in its calculation of child support, or in its
decision to not award spousal support to either party. The income figures used for
child support purposes were reasonable based upon the evidence presented at trial.
The spousal support factors were carefully considered. What is readily apparent
from the record is that neither party is in a workable financial position so that an
award of spousal support would be reasonable. The trial court found that "the parties
struggled when they lived together, and the struggle has only worsened now that
they are trying to support two households," and that neither Brian nor Frieda has
virtually any liquid assets or money saved. Thus, the spousal support decision was
reasonable. As a result of the foregoing, Frieda's second assignment of error is also
meritless.
                                    Conclusion
      {¶31} Both of Frieda's assignments of error are meritless. Frieda failed to
prove financial misconduct by Brian. The trial court's calculation of Brian's income
was reasonable and supported by the evidence at trial. Thus, Frieda also cannot
show that it was an abuse of discretion for the trial court to decline to award her
spousal support or that the child support order was too low. Accordingly, both of
Frieda's assignments of errors are meritless, and the judgment of the trial court is
affirmed.

Donofrio, P. J., concurs

Robb, J., concurs
