[Cite as Herndon v. Herndon, 2011-Ohio-888.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                       JUDGES:
RODNEY H. HERNDON                              :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                       Plaintiff-Appellant     :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2010-CA-00245
WENDY L. HERNDON                               :
                                               :
                    Defendant-Appellee         :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Domestic Relations
                                                   Division, Case No. 2007DR01366

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            February 22, 2011




APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

DAVID S. AKE                                       JOHN R. GIUA
101 Central Plaza South, Ste. 600                  220 Market Avenue S.
Canton, OH 44702                                   Suite 400
                                                   Canton, OH 44702
[Cite as Herndon v. Herndon, 2011-Ohio-888.]


Gwin, P.J.

         {¶1} Plaintiff-appellant Rodney H. Herndon appeals a judgment of the Court of

Common Pleas, Domestic Relations Division, of Stark County, Ohio, which adopted the

decision of the magistrate overruling his motion to modify the spousal support he pays

to defendant-appellee Wendy L. Herndon. Appellant assigns two errors to the trial

court:

         {¶2} “I. THE TRIAL COURT ERRED IN NOT REDUCING OR TERMINATING

THE      APPELLANT’S         SPOUSAL           SUPPORT   RETROACTIVE   TO    THE    DATE

APPELLANT’S MOTION WAS FILED.

         {¶3} “II. THE COURT ERRED IN NOT ORDERING THE APPELLEE TO

REIMBURSE THE APPELLANT FOR ONE-HALF OF THE DEFICIENCY IN THE SALE

OF THE MARITAL RESIDENCE FROM THE APPELLANT’S SPOUSAL SUPPORT.”

         {¶4} The record indicates the parties were divorced in December 2008. The

court ordered appellant to pay appellee’s spousal support in the amount of $2,000.00

per month for 84 months, terminating on the death of either party, remarriage of the

defendant, or her cohabitation with an unrelated male. The court also ordered the

marital residence be sold or auctioned; appellee would receive the net proceeds of the

sale after discharge of the mortgage and payment of normal selling costs.

         {¶5} Appellant appealed the matter to this court, and we affirmed in Herndon v.

Herndon, Stark App. No. 2008-CA-00289, 2009-Ohio-3261. In the prior appeal, we

found the trial court’s award of spousal support was within its discretion, based as it was

on appellant’s income from his business. Herndon I, at paragraph 11.             We also

reviewed the trial court’s order that appellee would receive the proceeds from the sale
Stark County, Case No. 2010-CA-00245                                                    3


of the home. The difference between the listing price on the property and the

indebtedness on the home was $70,000.00, but we noted the actual sale could be

different. We found no error. Herndon I , at paragraph 16 through 19.

                                                    I.

       {¶6} In his first assignment of error, appellant argues the trial court should have

reduced his spousal support obligation. The trial court’s original award was based upon

its finding that appellant’s income was $69,000.00. At the hearing on the motion for

modification, appellant testified his income for 2008 was actually $79,000.00, but his

2009    income    was    approximately    $3,580.00,     plus   approximately   $21,000.00

depreciation, as evidenced by his 2009 federal income tax return. Appellant testified he

removed over $80,000.00 in assets from his company in 2009, of which he used

$18,000.00 to pay his spousal support obligations and $26,000.00 on the deficiency on

the sale of the marital residence. See II, infra.

       {¶7} Appellant presented the evidence of a certified public accountant, who

stated the funds appellant removed from the company should not be considered

income. The total assets of the company had decreased by approximately $72,000.00,

while the company debt had increased about $15,000.00.             The CPA stated if the

appellant continued to remove assets from the business while increasing the debt, he

would be out of business within a year.

       {¶8} The magistrate found appellant had taken at least $63,000.00 from the

business and his company had directly paid $18,000.00 towards his spousal support

obligation. Appellant paid additional personal expenses through the business and the
Stark County, Case No. 2010-CA-00245                                                    4


magistrate found appellant had benefited from at least $81,000.00 from his business.

The magistrate concluded the money drawn from the business was income to appellant.

      {¶9} Our standard of reviewing the decisions of a domestic relations court is

generally the abuse of discretion standard, see Booth v. Booth (1989), 44 Ohio St. 3d

142, 541 N.E. 2d 1028. The Supreme Court made the abuse of discretion standard

applicable to alimony orders in Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 450

N.E. 2d 1140. The Supreme Court has repeatedly held the term abuse of discretion

implies the court’s attitude is unreasonable, arbitrary, or unconscionable. Id. at 219. In

applying the abuse of discretion standard, this court may not substitute our judgment for

that of the trial court, Pons v. Ohio State Medical Board, 66 Ohio St. 3d 619, 1993-

Ohio-122, 614 N.E. 2d 748.

      {¶10} We find the trial court did not err in treating the funds drawn from the

business as income to appellant. We conclude the court did not abuse its discretion in

overruling the motion to modify spousal support.

      {¶11} The first assignment of error is overruled.

                                               II.

      {¶12} In his second assignment of error, appellant argues the funds from the sale

of the marital home were insufficient to discharge all the indebtedness, and appellant

paid the deficiency of $26,378.25 to close the sale. He moved the court to order

appellee to reimburse him for half the deficiency.

      {¶13} The court awarded appellee the “net proceeds” of the sale of the residence,

but did not place a value on this award. This court affirmed the trial court’s decision in
Stark County, Case No. 2010-CA-00245                                                       5

Herndon I. Unfortunately, there were no net proceeds of the sale so appellee received

nothing.

       {¶14} The magistrate declined to order appellee to assume one-half of the cost to

discharge the mortgages, finding the trial court lacked jurisdiction to alter the division of

assets and debts. It is well settled a trial court lacks jurisdiction to make substantive

changes to a property division order, although it retains the power to clarify and

construe its original property division in order to effectuate its judgment.       Jones v.

Jones, 178 Ohio App. 3d 618, 2008-Ohio-6069, 903 N.E. 2d 329.

       {¶15} In the divorce decree, the court found appellant’s financial actions and

decisions had created additional indebtedness, requiring a second mortgage or line of

equity, which at the time of divorce was approximately $23,000.00. The magistrate

found particularly given that the deficiency was fairly similar to the increased

indebtedness appellant had caused, she could not order appellee to pay half the

deficiency. We agree the trial court’s final order in the divorce decree indicated appellee

was to benefit from the sale of the home, not to incur additional expenses.

       {¶16} We find the trial court did not err as a matter of law or abuse its discretion

in failing to order appellee to share in the deficiency payment.

       {¶17} The second assignment of error is overruled.
Stark County, Case No. 2010-CA-00245                                             6


      {¶18} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, of Stark County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. SHEILA G. FARMER

                                             _________________________________
WSG:clw 0210                                 HON. JULIE A. EDWARDS
[Cite as Herndon v. Herndon, 2011-Ohio-888.]


               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


RODNEY H. HERNDON                               :
                                                :
                          Plaintiff-Appellant   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
WENDY L. HERNDON                                :
                                                :
                                                :
                       Defendant-Appellee       :       CASE NO. 2010-CA-00245




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

the Court of Common Pleas, Domestic Relations Division, of Stark County, Ohio, is

affirmed. Costs to appellant.




                                                    _________________________________
                                                    HON. W. SCOTT GWIN

                                                    _________________________________
                                                    HON. SHEILA G. FARMER

                                                    _________________________________
                                                    HON. JULIE A. EDWARDS
