[Cite as Havrilla v. Havrilla, 2014-Ohio-2747.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

JULIA M. HAVRILLA                                     C.A. No.    27064

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRIAN K. HAVRILLA                                     COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellee                                      CASE No.   2011-08-2343

                                  DECISION AND JOURNAL ENTRY

Dated: June 25, 2014



        WHITMORE, Judge.

        {¶1}     Appellant, Julia Havrilla (“Wife”), appeals from the judgment of the Summit

County Court of Common Pleas, Domestic Relations Division. This Court affirms in part and

reverses in part.

                                                  I

        {¶2}     Brian Havrilla (“Husband”) and Wife were married in 1993, and had two children

from the marriage. In August 2011, Husband and Wife both filed for divorce. The court issued

a temporary order, granting Wife the use of the martial residence and requiring her to pay the

first mortgage. The court ordered Husband to pay child support and the second mortgage.

During discovery, Wife hired a forensic accountant to determine if Husband had committed

financial misconduct. Subsequently, Wife filed a motion for contempt, arguing that Husband

had not provided a full financial accounting in compliance with a temporary order. The court
                                                2


held Wife’s motion in abeyance until trial. A trial was held on November 1, 2012, November 2,

2012, and April 24, 2013.

       {¶3}    In December 2012, Husband filed a motion for contempt because Wife had

stopped paying the mortgage as required under the temporary orders. After a hearing in March

2013, the court found Wife in contempt. The court ordered Wife to reimburse Husband for

mortgage payments he had made on her behalf and attorney’s fees. The court sentenced Wife to

10 days in jail, but allowed Wife to purge the contempt if she paid the amount owed in full

before September 9, 2013. Wife did not appeal this order.

       {¶4}    In July 2013, the court entered a final divorce decree. As part of the decree, the

court ordered Wife to pay Husband $1,500 a month in spousal support and set Husband’s child

support payments at $0.1 After the court denied her motion for a new trial, Wife filed a timely

notice of appeal. Wife raises nine assignments of error for our review.

                                                II

                               Assignment of Error Number One

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN VIOLATION OF
       R.C. 3105.16 TO THE PREJUDICE OF WIFE BY FAILING TO RESTORE
       WIFE’S NAME AS WIFE REQUESTED.

       {¶5}    In her first assignment of error, Wife argues that the court erred in failing to

restore her to her maiden name. Husband concedes the error, and we agree.

       {¶6}    “When a divorce is granted the court of common pleas shall, if the person so

desires, restore any name that the person had before the marriage.” R.C. 3105.16. At trial, Wife


1
   After the notice of appeal was filed the trial court modified the parties’ spousal and child
support obligations. Wife’s request to modify the support orders was not made pursuant to
Civ.R. 75(H). Therefore, the court did not have jurisdiction to modify the support orders while
the appeal was pending and that order is void. See Howard v. Catholic Social Serv. of Cuyahoga
Cty., Inc., 70 Ohio St.3d 141, 146 (1994).
                                                 3


requested the court restore her to her maiden name. The divorce decree, however, is silent on the

issue. In light of Wife’s request and pursuant to R.C. 3105.16, the court was required to restore

Wife to her maiden name. Wife’s first assignment of error is, therefore, sustained.

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED AS A MATTER OF LAW TO THE PREJUDICE
       OF WIFE WHEN IT ORDERED, EX PARTE, IN CONTRAVENTION OF ITS
       OWN ORDER STAYING PROCEEDINGS, WITHOUT JURISDICTION,
       WITHOUT A MOTION, WITHOUT NOTICE TO WIFE AND WITHOUT A
       HEARING THAT THE MARTIAL HOME BE TRANSFERRED TO
       HUSBAND’S SOLE NAME.

       {¶7}    In her second assignment of error, Wife argues that the court erred in entering a

post-decree order transferring her interest in the martial home to Husband.

       {¶8}    On July 18, 2013, the court issued a final divorce decree. As part of the decree,

Wife was ordered to quitclaim the deed to the martial property within 30 days to Husband. The

decree further provided that “[i]f either party fails to execute, transfer, or deliver any such

documents to the other party, this Order may be presented to the county auditor, clerk of courts,

county recorder, and any other public or private officials, in lieu of the document that is regularly

required to convey or transfer the property.”

       {¶9}    On July 25, 2013, Wife filed a motion for a new trial and requested the court stay

any enforcement of the final decree. On August 1, 2013, the court granted Wife’s motion to stay

until it ruled on her motion for a new trial. On August 9, 2013, the court denied Wife’s motion

for a new trial and vacated its order staying the divorce decree. On September 5, 2013, Wife

filed an appeal and a motion to stay, pending the resolution of the appeal. On September 27,

2013, the court granted Wife’s motion “upon [Wife’s] posting a supersedeas bond with the Clerk

of Court in the amount of $35,834.46 within thirty (30) days * * *.” On October 7, 2013, prior

to Wife posting a bond, the court ordered the Summit County Fiscal Officer to transfer Wife’s
                                                 4


interest in the martial property to Husband. Wife did not appeal this order, but instead filed a

motion to vacate the transfer order. The court denied Wife’s motion.

       {¶10} Wife argues that the court erred in ordering the property to be transferred, in part,

because a stay was in effect. Wife further argues that the court erred in entering an order

transferring the property without providing her notice and an opportunity to respond. However,

Wife has not appealed from this order; therefore, these arguments are not properly before us.

       {¶11} Because Wife did not appeal from the order transferring her interest in the marital

property, Wife’s second assignment of error is overruled.

                               Assignment of Error Number Three

       THE TRIAL COURT ERRED AS A MATTER OF FACT AND LAW TO THE
       PREJUDICE OF WIFE BY AWARDING SPOUSAL SUPPORT TO HUSBAND
       BASED ON ITS “RELEVANT AND DECISIVE” FINDING THAT WIFE
       CAUSED HUSBAND TO LOSE HIS JOB WHEN HUSBAND ADMITTED HE
       WAS TERMINATED FOR AN ALTOGETHER DIFFERENT AND
       INDEPENDENT, BOTH LEGALLY AND PRACTICALLY, CAUSE,
       NAMELY HUSBAND’S POOR JOB PERFORMANCE.

       {¶12} In her third assignment of error, Wife argues that the court erred in awarding

Husband spousal support based on the finding that Wife was responsible for Husband being

fired. Specifically, Wife argues that the court’s finding that she was involved in his termination

is not supported by credible evidence.

       {¶13} “While the decision to award support is discretionary, an appellate court reviews

the factual findings to support that award under a manifest-weight-of-the-evidence standard.”

Wallace v. Wallace, 195 Ohio App.3d 314, 2011-Ohio-4487, ¶ 10 (9th Dist.). When reviewing

the manifest weight of the evidence in civil matters:

       The [reviewing] court * * * weighs the evidence and all reasonable inferences,
       considers the credibility of the witnesses and determines whether in resolving
       conflicts in the evidence, the [finder of fact] clearly lost its way and created such a
                                                 5


       manifest miscarriage of justice that the [judgment] must be reversed and a new
       trial ordered.

Zaccardelli v. Zaccardelli, 9th Dist. Summit No. 26262, 2013-Ohio-1878, ¶ 7, quoting Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.

       {¶14} Husband worked for Rockwell Automation (“Rockwell”) for 18 and-a-half years.

His last position was Global Account Team Leader. Husband testified that he was terminated

from his employment in April 2013 after a “360 review.” As part of the 360 review, Rockwell

sent out letters to various co-workers and clients seeking feedback on his performance.

According to Husband, he was fired for “performance reasons.” Husband said the reasons given

for his termination “were pretty vague,” but included things like “bad feedback, [and] lack of

sales.” However, Husband also testified that he believed Wife had something to do with his

termination.

       {¶15} Husband stated that Wife had an affair with his boss at the time, Paul McRoberts.

Husband testified that while McRoberts was not his boss when he was terminated, McRoberts

was friends with that boss. According to Husband, McRoberts was talking to his boss and

“trying to undermine [his] performance.”        Husband believed Wife was still romantically

involved with McRoberts and said that McRoberts was applying for internal positions in

Columbus, where Wife was now residing. Husband testified that he had received threats from

both Wife and McRoberts that they were going to have him fired.

       {¶16} Wife admitted to the affair with McRoberts and said that she had threatened to get

Husband fired. However, Wife explained that she did so only out of anger. According to Wife,

she did not act on her threat and did not have the ability to get him fired. Wife testified that she

was still friends with McRoberts and kept in touch with him.
                                                6


        {¶17} The court found that “[a] relevant and decisive factor in this case is the role Wife

played causing Husband to lose his job with Rockwell.” The court further found that Wife did

not offer any credible testimony to support her belief that Husband was fired for cause. In

reaching its conclusion, the court noted that “[its] decision on this issue turns in-part on the

parties’ credibility.”

        {¶18} While Husband did testify that he was told that he was fired for “performance

reasons,” he also testified that he believed Wife had something to do with it because she was

dating his former boss, who was friends with his most recent boss. Further, Husband testified

that he had been repeatedly threatened by Wife and McRoberts that they were going to have him

fired. This Court has repeatedly held that the trier of fact is in the best position to judge

credibility of the witnesses. See Nemeckay v. Upp, 9th Dist. Summit No. 24874, 2010-Ohio-

1966, ¶ 17.

        {¶19} After reviewing the evidence, we cannot conclude that the court clearly lost its

way and created a manifest miscarriage of justice in finding that Wife played some role in

causing Husband to lose his job at Rockwell. Therefore, Wife’s third assignment of error is

overruled.

                               Assignment of Error Number Four

        THE TRIAL COURT ERRED AS A MATTER OF LAW TO THE PREJUDICE
        OF WIFE AND AGAINST THE BEST INTEREST OF THE PARTIES’ MINOR
        CHILD WHEN [IT] OFFSET HUSBAND’S OBLIGATION TO PAY CHILD
        SUPPORT WITH WIFE’S OBLIGATION TO PAY SPOUSAL SUPPORT.

        {¶20} In her fourth assignment of error, Wife argues that the court erred by offsetting

Husband’s child support obligation against Wife’s spousal support obligation.

        {¶21} We review a trial court’s calculation of child support for an abuse of discretion.

Fetzer v. Fetzer, 9th Dist. Wayne No. 12CA0036, 2014-Ohio-747, ¶ 44. “Accordingly, we will
                                                 7


not reverse a trial court’s decision on child support unless it is ‘unreasonable, arbitrary or

unconscionable’ in its ruling.” Id., quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

          {¶22} If the combined gross income of both parents is greater than $150,000 per year,

the court shall determine child support on a “case-by-case basis and shall consider the needs and

the standard of living of the children who are subject of the child support order and of the

parents.” R.C. 3119.04(B). In calculating the amount of child support, the court shall award “no

less than the obligation that would have been computed under the basic child support schedule

and applicable worksheet for a combined gross income of [$150,000], unless the court * * *

determines that it would be unjust or inappropriate and would not be in the best interest of the

child, obligor, or obligee to order that amount.” R.C. 3119.04(B).

          {¶23} Using the basic child support schedule and a combined gross income of $150,000,

the court determined an annual amount of $15,218 in child support. The court calculated $8,257

as Husband’s percentage. However, the court found that the calculated amount was “unjust and

inappropriate and not in the best interest of the child” because the court had ordered Wife to pay

spousal support. See R.C. 3119.23(C). The court concluded that Husband’s child support

obligation should be offset with Wife’s spousal support obligation.        To do this, the court

explained that it had subtracted the full amount of child support ($15,218) from Wife’s income

and then equalized the parties’ net income to determine the amount of spousal support. The

court noted that the parties’ incomes were not set exactly equal because their incomes fluctuated

based on periodic bonuses.

          {¶24} Wife argues that the court erred in offsetting her spousal support with Husband’s

obligation of child support. By offsetting these obligations, Wife asserts, she was “denied a tax
                                                8


deduction for the full amount of her spousal support payments.” However, the court “considered

the tax consequences of an award of spousal support as set forth in the [c]ourt’s FinPlan analysis.

Court Exhibit 1.”

       {¶25} “If, in exercising its discretion, the domestic court’s reasoning process in support

of its order was sound, we will not disturb its judgment.” Longo v. Longo, 11th Dist. Geauga

Nos. 2008-G-2874 & 2009-G-2901, 2010-Ohio-3045, ¶ 12.              Having reviewed the record,

including the court’s “FinPlan analysis,” we cannot conclude that the court acted unreasonably,

arbitrarily, or unconscionably in offsetting Wife’s spousal support with Husband’s child support.

       {¶26} Wife’s fourth assignment of error is overruled.

                                Assignment of Error Number Five

       THE TRIAL COURT ERRED AS A MATTER OF LAW TO THE PREJUDICE
       OF WIFE AND AGAINST THE BEST INTERESTS OF THE PARTIES’
       MINOR CHILD BY GRANTING HUSBAND A DOWNWARD DEVIATION
       IN HIS CHILD SUPPORT OBLIGATION BASED ON WIFE’S PAYMENT OF
       SPOUSAL SUPPORT TO HUSBAND INCREASING, NOT DECREASING,
       HUSBAND’S TOTAL INCOME.

       {¶27} In her fifth assignment of error, Wife argues that the court erred in calculating

Husband’s child support obligation. Specifically, Wife argues that the court failed to account for

Husband’s increased income due to her spousal support payments to him.

       {¶28}    Because Wife’s fifth assignment of error also challenges the order of child

support, we incorporate the standard of review set forth in her fourth assignment of error and

review for an abuse of discretion. See Fetzer, 2014-Ohio-747, at ¶ 44.

       {¶29} R.C. 3119.23(C) permits a court to consider “[o]ther court-ordered payments”

when determining whether to grant a deviation from the basic child support schedule. Wife

argues that the court misapplied R.C. 3119.23(C) because it should only be used as a basis for

deviation when the obligor’s income is reduced by the other court-ordered payments, not when
                                               9


the obligor’s income is increased. While Wife cites an example of the statute applied this way,

she does not cite any authority to support her argument that it may only be used in those

circumstances. See White v. Yuhas, 9th Dist. Medina No. 03CA0135-M, 2004-Ohio-5449.

       {¶30} Here, the court determined that Wife owed Husband spousal support and Husband

owed Wife child support. After considering the tax implications, the court determined that it

would offset the amount of spousal support with the child support, resulting in only one monthly

payment being made from Wife to Husband. We have found no authority restricting R.C.

3119.23(C) to circumstances in which the obligor’s income is reduced because of the other

court-ordered payments. Further, Wife does not explain why the court could not have considered

the cross obligations under R.C. 3119.23(P) (“[a]ny other relevant factor”) in its decision to

offset the payments.

       {¶31} Having reviewed the record, we cannot conclude that the court abused its

discretion in deviating Husband’s child support obligation downward to $0. The court, after

considering the relevant tax implications, properly offset Wife’s spousal support obligation with

Husband’s child support obligation.

       {¶32} To the extent that Wife argues that the court erred in using the shared parenting

plan to calculate the amount of Husband’s child support, we do not agree. Wife argues that she

is providing “full-time care” for the minor child, A.H. However, Wife acknowledges that A.H.

is with Husband on alternating weekends. The child support computation worksheet indicated

that Wife had the child 54.65% of the time.

       {¶33} Wife’s fifth assignment of error is overruled.

                               Assignment of Error Number Six

       THE TRIAL COURT ERRED AS A MATTER OF LAW TO THE PREJUDICE
       OF WIFE AND AGAINST THE BEST INTEREST OF THE PARTIES’ MINOR
                                                10


       CHILD BY ADOPTING A SHARED PARENTING PLAN THAT IS
       CONTRARY TO THE AGREEMENT OF THE PARTIES REACHED ON THE
       RECORD DURING TRIAL.

       {¶34} In her sixth assignment of error, Wife argues that the court erred in adopting

Husband’s proposed shared parenting plan.

       {¶35} “A trial court’s decision to adopt a shared parenting plan is reviewed under an

abuse of discretion standard.” Braidy v. Braidy, 9th Dist. Summit No. 26608, 2013-Ohio-5304, ¶

22. An abuse of discretion indicates that the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore, 5 Ohio St.3d at 219.

       {¶36} Wife argues that the court erred in adopting Husband’s proposed shared parenting

plan because, according to Wife, the proposed plan does not articulate the agreement between

them. The only specific error Wife cites to is Article I(B) which states: “Unless otherwise

mutually agreed, [A.H.] shall continue to attend school in the Twinsburg Public School District.”

       {¶37} On the second day of trial, Wife informed the court that she had accepted a new

job offer in Columbus and requested the court permit her to move to Columbus with A.H. The

attorneys for both parties attempted to put an agreed shared parenting plan on the record.

Husband’s attorneys agreed not to object to Wife’s move to Columbus. Wife’s attorneys “agreed

to the concept of shared parenting,” but objected to the adoption of the written shared parenting

plan. Wife, however, did not articulate any specific objections to the written parenting plan.

Nevertheless, in the final divorce decree, the court adopted Husband’s proposed shared parenting

plan “except * * * [that] Wife shall be the residential parent for school purposes.” Because Wife

was designated the residential parent for school purposes and the court and the parties were

aware that Wife was living in Columbus with A.H. at the time the order was entered, Art. I(B) of

the shared parenting plan does not apply.
                                                11


       {¶38} To the extent that Wife argues the Shared Parenting Plan does not accurately

reflect the parties’ agreement, she has not cited us to any particular provision that conflicts with

the testimony at trial. “If an argument exists that can support [Wife’s] assignment of error, it is

not this [C]ourt’s duty to root it out.” Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998

WL 224934, *8 (May 6, 1998).

       {¶39} Wife’s sixth assignment of error is overruled.

                               Assignment of Error Number Seven

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY ISSUING A
       SEPARATE ORDER HOLDING WIFE IN CONTEMPT FOR PAYMENTS
       NOT INCLUDED IN THE MOTION FOR CONTEMPT AND THEN
       INCORPORATING AN AWARD OF THOSE ADDITIONAL PAYMENTS
       INTO THE DECREE.

       {¶40} In her seventh assignment of error, Wife argues that the court erred in finding her

in contempt for matters that were not included in Husband’s motion for contempt and for

incorporating that judgment into the final divorce decree.

       Contempt of court consists of two elements. The first is a finding of contempt of
       court and the second is the imposition of a penalty or sanction, such as a jail
       sentence or fine. Until both a finding of contempt is made and a penalty imposed
       by the court, there is not a final order.

Keating v. Keating, 9th Dist. Lorain No. 02CA007984, 2002-Ohio-3865, ¶ 4. An ability to purge

the contempt does not prevent a final, appealable order. See Hetterick v. Hetterick, 12th Dist.

Brown No. 2012-02-002, 2013-Ohio-15, ¶ 17-20.

       {¶41} In December 2012, Husband filed a motion for contempt, asserting that Wife was

not paying the first mortgage in compliance with the court’s temporary order. A hearing was

held in March 2013. A magistrate found Wife in contempt and sentenced her to 10 days in jail,

but suspended the sentence until September 9, 2013, giving Wife the opportunity to purge the

contempt by paying $18,034 in missed mortgage payments, and $625 in Husband’s attorney’s
                                                12


fees. Wife filed objections to the magistrate’s decision. On July 16, 2013, the court overruled

Wife’s objections, found her guilty of contempt, and imposed the same sentence recommended

by the magistrate (including the ability to purge). Wife did not appeal this order.

       {¶42} To the extent that Wife challenges the court’s finding of contempt, this argument

is not properly before this court on appeal. The court’s July 16, 2013 order was a final,

appealable order. However, Wife has appealed only from the final divorce decree.

       {¶43} Therefore, we limit our review to her argument that the amount due from the

contempt finding could not be included in the final decree because it stemmed from a temporary

order. Wife’s citation to Colom v. Colom, 58 Ohio St.2d 245 (1979), to support her argument is

confusing at best. Colom does not stand for the proposition that amounts due under temporary

orders cannot be entered into a final decree. Instead, Colom states that the right to enforce a

temporary order “does not extend beyond the decree, unless [the temporary orders] have been

reduced to a separate judgment or they have been considered by the trial court and specifically

referred to within the decree.” Colom at syllabus. The court found Wife to be liable for

payments she had not made according to the temporary orders and entered a judgment against

her. We are not aware of any authority that prohibits the court from including a reference to this

amount in the final decree.

       {¶44} Wife’s seventh assignment of error is overruled.

                               Assignment of Error Number Eight

       THE TRIAL COURT ERRED AS A MATTER OF LAW TO WIFE’S
       PREJUDICE IN THE DIVISION OF PROPERTY BY THE TRIAL COURT’S
       ERRONEOUS CHARACTERIZATION OF WHAT CONSTITUTES MARTIAL
       PROPERTY.
                                                13


       {¶45} In her eighth assignment of error, Wife argues that the court erred in finding that

Wife had not proven financial misconduct. Specifically, Wife argues that the court erred in “not

hold[ing] Husband accountable for squandering and hiding marital property[.]”

       {¶46} A trial court’s determination as to whether a party has committed financial

misconduct is reviewed for an abuse of discretion. Orwick v. Orwick, 7th Dist. Jefferson No. 04

JE 14, 2005-Ohio-5055, ¶ 26. An abuse of discretion indicates that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.

       {¶47} “If a spouse has engaged in financial misconduct, including, but not limited to, the

dissipation, 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).     “The term ‘financial misconduct’ implies some type of

wrongdoing such as interference with the other spouse’s property rights.” (Internal citations

omitted.) Najmi v. Najmi, 9th Dist. Lorain No. 07CA009293, 2008-Ohio-4405, ¶ 23, quoting

Bucalo v. Bucalo, 9th Dist. Medina No. 05CA0011-M, 2005-Ohio-6319, ¶ 23.                  Financial

misconduct, in the context of R.C. 3105.171(E)(4), requires “some element of wrongful intent or

scienter[.]” Orwick at ¶ 25. “Because financial misconduct involves some element of profit or

interference with another’s property rights, the time frame in which the alleged misconduct

occurs may often demonstrate wrongful scienter.” Downey v. Downey, 9th Dist. Summit No.

23687, 2007-Ohio-6294, ¶ 17, quoting Rinehart v. Rinehart, 4th Dist. Gallia No. 96 CA 10, 1998

WL 282622, *12 (May 18, 1998). If there is a significant gap in time between the alleged

financial misconduct and the filing of divorce, some other evidence must be presented to

establish a wrongful intent. Orwick at ¶ 34. The party complaining of financial misconduct has

the burden of proof. Najmi at ¶ 23.
                                                14


       {¶48} Wife testified that she had placed a recording device in the marital bedroom and

had recorded Husband on the phone telling his girlfriend that he wanted to send her $30,000 so

that Wife would not receive a portion of the money. While the court did not allow this recording

to be admitted into evidence, Husband acknowledged that he had a discussion with his girlfriend

about possibly sending her money to avoid having to split it with Wife. However, Husband

testified that he did not do so because both his attorney and his girlfriend told him not to hide

money. Husband denied hiding any marital monies.

       {¶49} Husband testified that he travelled extensively for work and was enrolled in

various reward programs, including frequent flyer miles and Marriott Rewards. Husband stated

that the family used the rewards programs during the marriage, but that Wife had not used any

since the separation because they were all in his name. Husband admitted to using 150,000 miles

to fly his girlfriend to Phuket, Thailand and another 70,000 to fly his girlfriend to meet him on a

different occasion. Husband further testified that he used Marriott Rewards points for his stay in

Phuket and for a stay in Hilton Head with another girlfriend. These trips were all taken during

the pendency of the divorce. There was no testimony regarding when the various rewards would

expire or the monetary value of the rewards spent on Husband’s girlfriends.

       {¶50} Husband testified that he lost approximately $6,740 in martial money gambling.

The report of Husband’s financial expert, Mark Bober, show that these losses occurred

approximately two weeks before Husband filed for divorce and at the same time Husband paid

$3,000 to retain a divorce attorney and set aside another $13,000 for attorney fees that he

expected to incur during the divorce. Husband testified that he sometimes gambled on family

vacations, but that the $6,740 in gambling losses was not part of a family vacation. Bober’s

report did not include any other cash withdrawals for gambling within the prior two years. Wife
                                                15


testified that she did not know anything about Husband’s gambling in the weeks preceding the

divorce until she reviewed Bober’s report in preparation for trial.

       {¶51} In the final divorce decree, the court stated that “Wife’s allegations about

Husband’s financial misconduct focused on his being unable to account fully for how his income

was spent and for the proceeds from the loans against the parties’ 401(K) accounts.” However,

at trial, Wife also argued that Husband’s gambling losses of $6,740 just before filing for divorce

was financial misconduct.     During the trial, the court found that both parties occasionally

gambled so that Husband’s $6,740 loss was not a waste of marital assets. The evidence does not

support this finding. Husband did testify that he would occasionally gamble on family vacations

and that he and Wife had taken a couple of trips to Las Vegas during their marriage. However,

in the two years prior to the divorce, the only withdrawals for gambling noted on the financial

report submitted by Husband’s financial expert were in the two weeks prior to the divorce. In

light of the gambling losses occurring at the same time Husband was retaining a divorce

attorney, Wife’s testimony that she did not know anything about Husband’s gambling at that

time, Husband’s own financial statement that did not note other gambling in the prior two years,

and Husband’s testimony that he had considered hiding assets from Wife, we conclude the court

abused its discretion in finding that Wife had not met her burden of establishing financial

misconduct with respect to the $6,740.

       {¶52} Wife’s eighth assignment of error is sustained and the case is remanded for the

court to consider whether Wife should have been compensated for Husband’s $6,740 in

gambling losses.
                                                  16


                               Assignment of Error Number Nine

       THE TRIAL COURT ERRED AS A MATTER OF LAW TO THE PREJUDICE
       OF WIFE BY FAILING TO ENFORCE ITS ORDER THAT HUSBAND
       ACCOUNT FOR $167,000 GONE MISSING.

       {¶53} In her ninth assignment of error, Wife argues that the court erred by failing to

enforce its order for Husband to account for $167,000 of marital funds. Specifically, Wife

argues that the court erred in not finding Husband in contempt for his failure to provide her with

a full accounting.

       {¶54} “This [C]ourt will not overturn a lower court’s determination in a contempt

proceeding absent an abuse of discretion.” In re A.S., 9th Dist. Summit No. 26731, 2013-Ohio-

4170, ¶ 8, quoting Malson v. Berger, 9th Dist. Summit No. 22800, 2005-Ohio-6987, ¶ 6. An

abuse of discretion indicates that the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore, 5 Ohio St.3d at 219.

       {¶55} In preparation for trial, Wife hired a forensic accountant and requested that

Husband provide an accounting of his income from January 2009 until December 2011. At an

April 2012 hearing, Wife explained that her expert could not account for a total of $167,000 of

Husband’s income and needed additional documents. Husband argued that he did not have the

ability to provide an accounting of every penny he had spent over the past three years. The court

ordered “both parties to provide and exchange an accounting of all monies withdrawn from any

account since July 15, 201[1], to the best of their ability.” In September 2012, Wife filed a

motion for contempt, arguing that Husband had not accounted for the $167,000. The court

deferred Wife’s motion until the final hearing.

       {¶56} At trial, Wife’s financial expert, Raymond Dunkle II, testified that he could not

account for approximately $60,000 of Husband’s income that had been earned during the
                                               17


pendency of the divorce (from August 2011 through December 2011). Husband’s W2s and tax

returns were admitted into evidence at trial. Wife does not argue that Husband failed to disclose

his income documents, only that she does not know what he was spending his money on during

the divorce. Under the circumstances of this case, we fail to see the import of what Husband was

spending his money on during the divorce. The court was aware of both parties’ incomes and

had issued temporary orders allocating the marital debts.      Further, the court, after hearing

evidence, ordered Wife to pay Husband “$2,419.24 to equalize payment of household expenses

for the period [of] August 5, 2011, to September 30, 2011” (from the time the complaint for

divorce was filed until Husband moved out of the martial residence).

       {¶57} As to the remaining funds unaccounted for, approximately $107,000 in total,

Dunkle testified that all of those funds were directly deposited into a bank account, but he was

unable to determine how those funds were spent. Bober, Husband’s financial expert, testified

that numerous cash withdrawals were made by both parties over the years, and therefore, no

documents existed to account for how that money was spent. Husband testified that he provided

Bober with a verbal explanation of how he spent the cash that he withdrew.

       {¶58} After reviewing the record, we cannot conclude that the court abused its

discretion when it declined to hold Husband in contempt. Wife’s ninth assignment of error is

overruled.

                                               III

       {¶59} Wife’s first and eighth assignments of error are sustained. Wife’s remaining

assignments of error are overruled. The judgment of the Summit County Court of Common

Pleas, Domestic Relations Division, is affirmed in part and reversed in part, and the cause is

remanded for further proceedings consistent with the foregoing opinion.
                                                18


                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     BETH WHITMORE
                                                     FOR THE COURT


MOORE, J.
CONCURS.

CARR, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

DEAN S. HOOVER, Attorney at Law, for Appellant.

DAVID H. FERGUSON and LYNNE M. EARHART, Attorneys at Law, for Appellee.
