[Cite as Pancake v. Pancake, 2013-Ohio-2294.]


                                      COURT OF APPEALS
                                   ASHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



JAMES S. PANCAKE                                   JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                        Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 12-COA-038
ALONA O. PANCAKE

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                        Civil Appeal from the Court of Common
                                                Pleas, Domestic Relations Division, Case
                                                No. 09-DIV-160


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         June 3, 2013



APPEARANCES:

For Plaintiff-Appellant                         For Defendant-Appellee

CATHERINE D. GOLDMAN                            RENEE J. JACKWOOD
WELDON, HUSTON & KEYSER                         JACKWOOD LAW OFFICE
76 +North Mulberry Street                       132 East Liberty Street
Mansfield, Ohio 44902                           Wooster, Ohio 44691
Ashland County, Case No. 12-COA-038                                                   2

Wise, J.

       {¶1}   Appellant James S. Pancake appeals from his judgment entry of divorce

from Appellee Alona O. Pancake in the Ashland County Court of Common Pleas,

Domestic Relations Division. The relevant procedural facts leading to this appeal are as

follows.

       {¶2}   Appellant James and Appellee Alona were married in May 2004 in Forest

Lake, Minnesota. When they first met in 2003, appellant was approximately forty-two

years old, while appellee, then a citizen of Ukraine, was twenty-one years old and spoke

very little English. She has since become a naturalized United States citizen.

       {¶3}   Two children were born of the parties’ marriage. At the times pertinent to

this matter, appellant was self-employed as a dealer of granite products, while appellee

was employed full-time at a frozen foods company. On August 29, 2009, appellant filed

an action for divorce against appellee in the Ashland County Court of Common Pleas,

Domestic Relations Division.

       {¶4}   The case proceeded to evidentiary hearings before a magistrate over the

course of five days, concluding on June 6, 2011.

       {¶5}   On January 30, 2012, the magistrate filed a sixty-three page decision

addressing the various contested issues in the divorce. Among other things, the

magistrate set child support at $1,051.58 per month per child, assuming a provision of

health insurance for the children. The court also ordered appellant to pay appellee

spousal support of $1,000.00 per month for six years, effective August 31, 2010, with no

retention of jurisdiction. Said spousal support was ordered to be terminated upon the

death of either party, or remarriage or cohabitation by appellee.
Ashland County, Case No. 12-COA-038                                                      3


        {¶6}   Appellant filed objections to the decision of the magistrate on February 13,

2012.

        {¶7}   The trial court reviewed the matter and issued a judgment entry on July

19, 2012 adopting the decision of the magistrate, except that an additional $1,386.00

was deducted as an ordinary and necessary business expense from appellant’s self-

employment income for child support purposes.

        {¶8}   A final decree of divorce was filed on September 25, 2012.

        {¶9}   On October 24, 2012, appellant filed a notice of appeal. He herein raises

the following five Assignments of Error:

        {¶10} “I. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

THE CALCULATION OF APPELLANT'S CHILD SUPPORT OBLIGATION BY: (A)

FAILING TO INCLUDE ALL OF APPELLANT'S ORDINARY AND NECESSARY

BUSINESS EXPENSES IN CALCULATING HIS INCOME, AND (B) INCLUDING A

NONRECURRING ‘SHAREHOLDER LOAN’ TO APPELLANT AS INCOME.

        {¶11} “II. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

AWARDING SPOUSAL SUPPORT BY: (A) FAILING TO INCLUDE ALL OF

APPELLANT'S        ORDINARY       AND      NECESSARY       BUSINESS      EXPENSES       IN

CALCULATING HIS INCOME, (B) INCLUDING A NONRECURRING ‘SHAREHOLDER

LOAN’ TO APPELLANT AS INCOME, (C) AWARDING AN UNREASONABLE

AMOUNT OF SPOUSAL SUPPORT, AND (D) ORDERING AN UNREASONABLE

DURATION FOR SPOUSAL SUPPORT.

        {¶12} “III. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN

THE DIVISION OF PROPERTY BY AWARDING APPELLEE THE ENTIRE $25,000.00
Ashland County, Case No. 12-COA-038                                                      4


CASH CONTENTS OF THE PARTIES' SAFETY DEPOSIT BOX AND INEQUITABLY

OFFSETTING THAT AWARD WITH AN AWARD TO APPELLANT OF A PHANTOM

$10,000.00 TO $25,000.00 OF OTHER SAFETY BOX CASH THAT WAS FOUND TO

EXIST CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

        {¶13} “IV. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY

FAILING TO IDENTIFY ALL OF THE DEBTS OF THE PARTIES AND EQUITABLY

ALLOCATE RESPONSIBILITY FOR THEIR PAYMENT.

        {¶14} “V. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY

ITS AWARD OF ATTORNEY FEES TO APPELLEE IN THE AMOUNT OF $5000.00.”


                                                I.

        {¶15} In his First Assignment of Error, appellant contends the trial court erred in

calculating his annual income for purposes of the child support worksheet. We disagree.

        {¶16} In Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028, the Ohio

Supreme Court determined that the abuse-of-discretion standard is the appropriate

standard of review in matters concerning child support. In order to find an abuse of

discretion, we must determine that the trial court's decision was unreasonable, arbitrary,

or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Furthermore, as an appellate court, we

are not the trier of fact. Our role is to determine whether there is relevant, competent,

and credible evidence upon which the factfinder could base his or her judgment.

Tennant v. Martin–Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010–Ohio–3489, ¶

16, citing Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA–5758, 1982 WL

2911.
Ashland County, Case No. 12-COA-038                                                    5


      {¶17} R.C. 3119.01(C)(7) defines “gross income” as, with certain statutory

exceptions, “ *** the total of all earned and unearned income from all sources during a

calendar year, whether or not the income is taxable, and includes income from salaries,

wages, overtime pay, and bonuses to the extent described in division (D) of section

3119.05 of the Revised Code; commissions; royalties; tips; rents; dividends; severance

pay; pensions; interest; trust income; annuities; social security benefits, including

retirement, disability, and survivor benefits that are not means-tested; workers'

compensation benefits; unemployment insurance benefits; disability insurance benefits;

benefits that are not means-tested and that are received by and in the possession of the

veteran who is the beneficiary for any service-connected disability under a program or

law administered by the United States department of veterans' affairs or veterans'

administration; spousal support actually received; and all other sources of income.” R.C.

3119.01(C)(7) also states in pertinent part that gross income “includes *** self-

generated income; and potential cash flow from any source.”

      {¶18} R.C. 3119.01(C)(13) defines “self-generated income” as “gross receipts

received by a parent from self-employment, proprietorship of a business, joint

ownership of a partnership or closely held corporation, and rents minus ordinary and

necessary expenses incurred by the parent in generating the gross receipts. ***.” R.C.

3119.01(C)(9)(a) in turn defines “ordinary and necessary expenses incurred in

generating gross receipts” as “actual cash items expended by the parent or the parent's

business and includes depreciation expenses of business equipment as shown on the

books of a business entity.”
Ashland County, Case No. 12-COA-038                                                       6


       {¶19} Appellant in the case sub judice first contends the trial court, in assessing

appellant’s self-employment income for use in the child support worksheet, improperly

accounted for the expense of a forklift purchased as an asset in his business. As

indicated in our recitation of facts, appellant is self-employed in a one-person business

known as “Spectrum Granite.” At trial, appellant asserted that the forklift, with an alleged

cost basis of $9,386.00, was paid for using one of Spectrum’s credit cards with charges

spread out as follows: $4,000.00 in April 2010, $2,000.00 in June 2010, and $2,000.00

in October 2010. A final payment of $1,386.00 was then made via a Spectrum check in

December 2010. The trial court allowed only the check payment of $1,386.00 as an

ordinary and necessary business expense for the forklift purchase against appellant’s

income.

       {¶20} However, because the trial court relied on the “actual cash items

expended” language of R.C. 3119.01(C)(9) in disallowing the deductions for the credit

card forklift payments, which could theoretically be deferred over time, we are

disinclined upon review to find the court’s treatment of this issue constituted an abuse of

discretion.

       {¶21} Appellant secondly contends the trial court improperly treated a

shareholder loan to appellant as income for child support purposes. Specifically,

appellant directs us to the trial court’s conclusion that a $28,500.00 increase on

Spectrum Granite’s IRS Form 1120S sheet under “loans to shareholders" should be

treated as income to appellant.
Ashland County, Case No. 12-COA-038                                                        7


       {¶22} R.C. 3119.01(C)(7)(e) excludes “nonrecurring or unsustainable income or

cash flow items” from the categorization of gross income.         This is clarified in R.C.

3119.01(C)(8), which reads as follows:

       {¶23} “ ‘Nonrecurring or unsustainable income or cash flow item’ means an

income or cash flow item the parent receives in any year or for any number of years not

to exceed three years that the parent does not expect to continue to receive on a

regular basis. ***.”

       {¶24} In the case sub judice, the magistrate concluded as follows in regard to

this issue:

       {¶25} “The Plaintiff [Appellant] though, as the sole shareholder, received a cash

payment in 2010 from the corporation of $28,500.00, that is reflected on line 7 of

Schedule L of the Form 1120S. Although referred to as a loan to shareholders, the

$28,500.00 is not a one-time payment to the Plaintiff from his corporation as the return

indicates that $55,000.00 has previously been paid to the Plaintiff prior to 2010. The

$28,500.00 is included in the Plaintiff’s 2010 income for support purposes.”

       {¶26} Magistrate’s Decision, January 30, 2012, at 20-21.

       {¶27} The trial court, in adopting the magistrate’s decision on this point, held:

       {¶28} “In weighing the credibility of the witnesses, and the implausible testimony

of Plaintiff, the Court finds that the Magistrate was correct to include the shareholder

loans as income.”

       {¶29} Judgment Entry, July 19, 2012, at 3.

       {¶30} Appellant maintains that the mere existence of a "beginning of the year''

balance on the "Loans to Shareholders" item on the Spectrum Granite tax and
Ashland County, Case No. 12-COA-038                                                     8


accounting documents does not necessarily imply that the current year loan continued a

pattern of more than three years or that it could be expected to continue on a regular

basis. He maintains that testimony from himself and his accountant both indicated the

use of such loans was unsustainable in the long term. See Tr. at 850, 947. Appellant

further maintains that the court’s decision cannot be justified as a credibility call, as

appellee purportedly offered no evidence of a pattern of loan taking that could support a

conclusion that the loan was historically recurring for more than three years or would be

sustainable in the future. There is no additional dispute, however, as to the accuracy of

the magistrate’s fundamental observation that the tax return documents indicated earlier

such loans prior to 2010.

       {¶31} We have recognized that “[t]he definitions of income under R.C. 3119.01

are broad and expansive to protect the child's best interests.” Vonderhaar–Ketron v.

Ketron, Fairfield App.No. 10 CA 22, 2010–Ohio–6593, ¶ 48, citing Bishop v. Bishop,

Scioto App.No. 03CA2908, 2004–Ohio–4643, ¶ 16 (additional citation omitted). Upon

review, we hold the trial court’s decision as to appellant’s income in regard to the

shareholder loan issue did not rise to the level of an abuse of discretion.

       {¶32} Appellant's First Assignment of Error is overruled.

                                                II.

       {¶33} In his Second Assignment of Error, appellant argues the trial court abused

its discretion in its award of spousal support to appellee. We disagree.

       {¶34} A trial court's decision concerning spousal support may only be altered if it

constitutes an abuse of discretion. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67,

554 N.E.2d 83. An abuse of discretion connotes more than an error of law or judgment;
Ashland County, Case No. 12-COA-038                                                            9


it implies that the court's attitude is unreasonable, arbitrary or unconscionable.

Blakemore, supra.

       {¶35} R.C. 3105.18(C)(1)(a) thru (n) provides the factors that a trial court is to

review in determining whether spousal support is appropriate and reasonable and in

determining the nature, amount, terms of payment, and duration of spousal support:

       {¶36} “(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; (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
Ashland County, Case No. 12-COA-038                                                       10


from that party's marital responsibilities; (n) Any other factor that the court expressly

finds to be relevant and equitable.”

         {¶37} R.C. 3105.18 does not require the lower court to make specific findings of

fact regarding spousal support awards. While R.C. 3105.18(C)(1) does set forth

fourteen factors the trial court must consider, if the court does not specifically address

each factor in its order, a reviewing court will presume each factor was considered,

absent evidence to the contrary. Carroll v. Carroll, Delaware App.No. 2004-CAF-05035,

2004-Ohio-6710, ¶ 28, citing Watkins v. Watkins, Muskingum App. No. CT 2001-0066,

2002-Ohio-4237, (additional citations omitted).

         {¶38} Appellant first reiterates his basic arguments as raised in his first assigned

error; i.e., appellant essentially contends the trial court improperly calculated his income

by including the non-cash payments for the forklift purchase and by including his

“shareholder loan,” thus creating an inaccurate basis for the calculation of spousal

support. Based on our analysis in the first assigned error, we find these claims lack

merit.

         {¶39} Appellant next challenges the magistrate's utilization of a “FinPlan”

worksheet that included an alleged overstatement of the Line 2 "self-employment

income" figure by at least $32,000.00. Appellant asserts that this numerical figure is

unexplained by any of the issues in the present appeal, has no basis in the evidence,

and was presumably an input error by the magistrate. Appellant lastly maintains that the

six-year duration of spousal support is excessive given the limited duration of the

marriage (approximately five years, using the filing date of the divorce in 2009 as the

end parameter).
Ashland County, Case No. 12-COA-038                                                     11


      {¶40} “A FinPlan analysis is a computer generated calculation performed by the

magistrate that determines the amount of money each parent contributes to the

household.” Carter v. Carter, Summit App. No. 21156, 2003-Ohio-240, f.n. 1. “Many

appellate districts have acknowledged the use of the FinPlan software when

determining spousal and/or child support.” Cramblett v. Cramblett, Harrison App.No. 05

HA 581, 2006-Ohio-4615, ¶55 (additional citations omitted).

      {¶41} The record reveals that the trial court, upon reviewing appellant’s

objections to the decision of the magistrate, did not specifically revisit the FinPlan

information, but it noted that “this case involves significant and unique facts regarding

defendant’s circumstances as a foreign national prior to the marriage and the nature of

[the] establishment of the marital relationship.” Judgment Entry, July 19, 2012, at 3.

Because we indulge in the presumption that the court considered all the statutory

factors (Carroll, supra), we are unpersuaded upon review of the record that the court

abused its discretion in awarding spousal support of $1,000.00 per month, with the

parameters set forth in the decree.

      {¶42} Appellant's Second Assignment of Error is overruled.

                                               III.

      {¶43} In his Third Assignment of Error, appellant challenges the trial court’s

decision as to the division of property, particularly regarding cash funds held in safes or

deposit boxes.

      {¶44} Pursuant to R.C. 3105.171(B), “[i]n divorce proceedings, the court shall ***

determine what constitutes marital property and what constitutes separate property. In

either case, upon making such a determination, the court shall divide the marital and
Ashland County, Case No. 12-COA-038                                                        12


separate property equitably between the spouses, in accordance with this section.” R.C.

3105.171(C)(1) further states: “Except as provided in this division or division (E)(1) of

this section, the division of marital property shall be equal. If an equal division of marital

property would be inequitable, the court shall not divide the marital property equally but

instead shall divide it between the spouses in the manner the court determines

equitable. In making a division of marital property, the court shall consider all relevant

factors, including those set forth in division (F) of this section.”

         {¶45} “The concept of marital property is derived from the premise that marriage

is a voluntary partnership of co-equal partners with a division of duties and labor that

entitles each partner to a one-half interest in the assets accumulated from the fruits of

the partnership activity while the marriage is functioning.” Tomlin v. Tomlin (March 16,

1987), Montgomery App. No. 10094, citing Wolfe v. Wolfe (1976), 46 Ohio St.2d 399,

350 N.E.2d 413. An appellate court generally reviews the overall appropriateness of the

trial court's property division in divorce proceedings under an abuse of discretion

standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. In order to find

an abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore,

supra.

         {¶46} Although appellant insists that there was no direct evidence of $35,000.00

to $50,000.00 in marital cash, as determined by the trial court, the record reveals

testimony by Victoria Tanner and Gale Tanner, who lived next door to the marital

residence. Their testimony, read together, indicates that appellee obtained about one-

half of a large sum of cash from a safe. The Tanners then assisted appellee in putting
Ashland County, Case No. 12-COA-038                                                     13


$3,000.00 of it down on the purchase of a vehicle and turning the remaining $22,000.00

over to appellee’s attorney’s office. See Tr. at 1066-1078.

       {¶47} In conducting our review, we are guided by the presumption that the trier

of fact is best able to view the witnesses and observe their demeanor, gestures, and

voice inflections, and use these observations in weighing the credibility of the testimony.

See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.

Furthermore, this Court has expressed its reluctance to engage in piecemeal review of

individual aspects of a property division taken out of the context of the entire award. See

Harper v. Harper (Oct. 11, 1996), Fairfield App.No. 95 CA 56, citing Briganti v. Briganti

(1984), 9 Ohio St.3d 220, 459 N.E.2d 896.

       {¶48} Upon review, we are unpersuaded that the trial court abused its discretion

in its distribution of property as urged by appellant.

       {¶49} Appellant's Third Assignment of Error is overruled.

                                                 IV.

       {¶50} In his Fourth Assignment of Error, appellant contends the trial court

abused its discretion by failing to adequately address certain credit card debts and

money he purportedly owes his attorney. We disagree.

       {¶51} Although Ohio's divorce statutes do not generally articulate debt as an

element of marital and separate property, the rules concerning marital assets are

usually applied to marital and separate debt as well. Rowan v. Kemery, Licking App. No.

10 CA 117, 2011–Ohio–2307, ¶ 49, citing Vergitz v. Vergitz, Jefferson App.No. 05 JE

52, 2007–Ohio–1395, ¶ 12.
Ashland County, Case No. 12-COA-038                                                     14


          {¶52} Appellant herein specifically asserts that his Citi credit card statements

reflect charges incurred for the payment of his attorney fees and guardian ad litem fees

he was ordered to pay during the pendency of this case in the amount of $16,000.00.

See Plaintiff's Exhibit 16. Appellant further asserts that he owes his attorney an

additional amount of $23,953.10. See Plaintiff's Exhibit 34.

          {¶53} Although the magistrate's decision did not discuss the details of either of

the aforesaid debts, the trial court concluded as follows in addressing appellant’s

objections:

          {¶54} “The objection basically is an objection on the allocation of attorney and

guardian ad litem fees which the Plaintiff has been ordered to pay through either

Magistrate Orders issued throughout the litigation (GAL fees) or pursuant to the

Magistrate’s Decision (attorney fees). Plaintiff asserts that since he paid for those

expenses through the use of his credit card, and since the credit card was a debt, said

debt should have been accounted for in the property division. To do as the Plaintiff

suggests would result in an inequitable shift of debt to require the Defendant to be liable

for half of the attorney fees and guardian ad litem fees for which the Plaintiff should be

liable.    The Court finds that there was sufficient credible evidence to support the

allocation of attorney fees and GAL fees throughout the case and the Magistrate

appropriately applied the law.”

          {¶55} Judgment Entry, July 19, 2012, at 5.

          {¶56} Upon review, we find the trial court fully considered the issue, and its

redress thereof did not constitute an abuse of discretion or an improper division of the

parties’ property and debt.
Ashland County, Case No. 12-COA-038                                                    15


      {¶57} Appellant's Fourth Assignment of Error is overruled.

                                               V.

      {¶58} In his Fifth Assignment of Error, appellant maintains the trial court abused

its discretion in ordering him to pay attorney fees of $5,000.00. We disagree.

      {¶59} An award of attorney's fees lies within the sound discretion of the trial

court. Rand v. Rand (1985), 18 Ohio St.3d 356, 481 N.E.2d 609.

      {¶60} R.C. 3105.73(A) states as follows:

      {¶61} “In an action for divorce, dissolution, legal separation, or annulment of

marriage or an appeal of that action, a court may award all or part of reasonable

attorney's fees and 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.”

      {¶62} Appellant essentially contends the attorney fee award of $5,000.00 was an

abuse of discretion where the trial court had issued a temporary order allowing appellee

to use marital cash in the amount of $22,000.00 for her attorney fees and litigation

expenses. Thus, appellant argues, the trial court has effectively allowed appellee a

combined $27,000.00 for her attorney fees, while, as he has previously argued, the

court did not consider for property division purposes the debt he incurred directly to his

counsel, and refused to consider for property division purposes the credit card debt he

used to pay his counsel and the guardian ad litem.

      {¶63} However, in consideration of the disparate economic situations of the

parties after separation and the protracted nature of these divorce proceedings, we are
Ashland County, Case No. 12-COA-038                                                   16


unable to conclude that the $5,000.00 attorney fee award to appellee rose to the level of

an abuse of discretion.

       {¶64} Appellant's Fifth Assignment of Error is therefore overruled.

       {¶65} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Domestic Relations Division, Ashland County, is hereby affirmed.


By: Wise, J.

Baldwin, J., concurs.

Hoffman, P. J., concurs in part and dissents in part.




                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                JUDGES
JWW/d 0503
Ashland County, Case No. 12-COA-038                                                        17

Hoffman, P.J., concurring in part and dissenting in part

      {¶66} I concur in the majority’s analysis and disposition of Appellant’s fourth and

fifth assignments of error.

      {¶67} I also concur in the majority’s disposition of Appellant’s third assignment of

error. I write separately thereon only to note my disapproval of reference to this

Court’s “reluctance to engage in piecemeal review” as additional justification for

overruling the third assignment of error.

      {¶68} I further concur in the majority’s analysis and decision to affirm the trial

court’s handling of the fork lift purchase. While Appellant argues the fork lift was “paid

for in its entirety” in 2010, and “the method of payment should not control”, the fact

remains credit card charges are not the same as actual cash expenditures. Only when

the credit card charges are paid off may the amounts be excluded from gross income

as actual cash expenditures. The method of payment does, indeed, matter.

      {¶69} I respectfully dissent from the majority’s decision to include the $28,500.00

shareholder “loan” made in 2010 as income. I find there is insufficient evidence to

conclude it was a recurring or sustainable income or cash flow as defined in R.C.

3119.01(C)(8). While I find it error to have included it as “income”, I would note it is

within the trial court’s discretion to justify deviation upward from the child worksheet

because of the subject loan as there was evidence of a prior $55,000.00 shareholder

loan and Appellant is solely responsible for making the loan and possibly forgiving it at

any time.

                                                 ________________________________
                                                 HON. WILLIAM B. HOFFMAN
Ashland County, Case No. 12-COA-038                                             18


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




JAMES S. PANCAKE                         :
                                         :
       Plaintiff-Appellant               :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
ALONA O. PANCAKE                         :
                                         :
       Defendant-Appellee                :         Case No. 12-COA-038




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Domestic Relations Division, Ashland County,

Ohio, is affirmed.

       Costs assessed to appellant.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                           JUDGES
