[Cite as Galinis v. Galinis, 2017-Ohio-7831.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

JOSEPH R. GALINIS                                  JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                        Hon. William B. Hoffman, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 2017CA00020
CHRISTINE M. GALINIS

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Stark County Court of
                                                Common Pleas, Family Court Division,
                                                Case No. 2015DR00885


JUDGMENT:                                       Affirmed

DATE OF JUDGMENT ENTRY:                         September 26, 2017

APPEARANCES:

For Plaintiff-Appellant                         For Defendant-Appellee

JEFFREY R. JAKMIDES                             JASON P. REESE
325 East Main Street                            101 Central Plaza South
Alliance, Ohio 44601                            Suite 1003
                                                Canton, Ohio 44702
Stark County, Case No. 2017CA00020                                                         2

Hoffman, J.



       {¶1}   Plaintiff-appellant Joseph R. Galinis (“Husband”) appeals the January 24,

2017 Judgment Entry entered by the Stark County Court of Common Pleas, Family Court

Division, which overruled his objections to the magistrate’s September 19, 2016 decision,

and approved and adopted said decision as order of the court. Defendant-appellee is

Christine M. Galinis (“Wife”).

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   Husband and Wife were married on June 18, 1994. Three children were

born as issue of the marriage, two of the children are emancipated. All three children live

in the marital residence.

       {¶3}   Husband filed a Complaint for Divorce on September 2, 2015. Upon the

filing of the Complaint, the trial court issued an Exhibit D Order which required the parties

to deposit their paychecks into a joint account. Husband filed motions to show cause on

January 27, 2016, February 16, 2016, and March 23, 2016. In each motion, Husband

alleged Wife was making unauthorized withdrawals and stealing marital funds.

       {¶4}   The magistrate conducted a final divorce hearing on April 19, 2016, and

June 28, 2016, during which he also heard Husband’s motions to show cause.

       {¶5}   The following evidence was presented at the hearing.

       {¶6}   Husband owns one half of Aspen Homes, Inc., an S corporation. His

brother owns the other half. Aspen Homes is in the business of residential construction.

Aspen showed an annual loss of approximately $20,000/year during the last two years.

According to Social Security records, Husband earned $37,200.00, in 2015. Between
Stark County, Case No. 2017CA00020                                                        3


2004, and 2012, Aspen consistently paid dividends. Aspen paid $15,000.00, in dividends

in 2012.

        {¶7}   Wife works for the Marlington Public School District as a teacher. Wife

worked part-time prior to the 2014-2015 academic year, during which she became full-

time. Wife’s income was $33,516.00, in 2012, and $37,921.00, in 2013. Her W-2 wages

for 2015 were $55,851.00.

        {¶8}   The parties agreed to the appraiser’s valuation of $265,000.00, of the

marital residence situated on 25.83 acres located at 15545 Georgetown Road, Minerva,

Ohio.      Wayne Savings Bank holds the mortgage on the property with a balance of

$194,314.00, as well as a home equity line of credit with a balance of $16,461.00. The

equity in the marital residence was $54,225.00.

        {¶9}   Wife drives a 2015 Ford Focus, which is titled in her name. Wife’s vehicle

was valued at $12,944.00. Husband has a 2006 Ford truck which he uses for business

and pleasure. The truck was valued at $4,208.00. Husband also has a 1999 TC 29 New

Holland tractor, valued at $8,000.00; a 2000 Polaris Scrambler ATV, valued at $3,000.00;

and a 2006 Yamaha Warrior, valued at $1,500.00.

        {¶10} The parties had joint bank accounts at First Merit and Huntington. They

had equal access to these accounts. When the trial court issued the Exhibit D Order, it

did not specify into which joint account the parties were to deposit their paychecks. Wife’s

pay was directly deposited into the Huntington account. Wife paid the household bills

and her credit cards from the Huntington account. However, in December, 2015, she

began transferring the remaining funds into the First Merit account. Husband opened a
Stark County, Case No. 2017CA00020                                                     4


personal account in January, 2016, and completely stopped depositing his paychecks

into the joint accounts after February 16, 2016.

       {¶11} In December, 2015, Husband wrote a check for $1,000.00, on the

Huntington account, which resulted in an overdraft. Wife covered the overdraft by

transferring funds from the First Merit account. Husband wrote a $900.00 check on the

First Merit account which resulted in three overdraft charges. On January 9, 2016, Wife

wrote a check to herself for $9,800.00, from the First Merit account. Wife applied those

funds to the Wayne Savings home equity line of credit. The $9,800.00 was part of the

insurance proceeds the parties received after Husband’s 2006 Chevrolet truck was

totaled. The parties originally had used the Wayne Savings line of credit to purchase the

totaled vehicle. The balance of the insurance proceeds remained in the First Merit

account.

       {¶12} Throughout the proceedings, Husband and Wife each used their credit

cards and made payments in excess of the minimum payments as required by the Exhibit

D Order. The parties failed to keep receipts to substantiate their expenditures from the

joint accounts.

       {¶13} The magistrate issued his decision on September 19, 2016. The magistrate

denied all of Husband’s motions to show cause. The magistrate awarded the marital

residence to Husband as he operated his business from the home and the adult children

who were attending college resided with him. The magistrate found an award of spousal

support to either party would not be reasonable or appropriate. Likewise, the magistrate

determined an award of child support would be unjust, inappropriate, and not in the best

interest of the child. With respect to the parties’ retirement benefits, the magistrate
Stark County, Case No. 2017CA00020                                                          5


awarded Husband 10% of the marital portion of Wife’s STRS account. The magistrate

based the award on the fact Husband “received virtually all of the marital assets including

his interest in Aspen” and the fact the trial court “offset the marital portion of his social

security account against WIFE’s STRS account.” Magistrate’s Decision at 14.

         {¶14} Husband filed objections on September 30, 2016. Via filed January 24,

2017, the trial court overruled Husband’s objections, and approved and adopted the

magistrate’s decision as order of the court.

         {¶15} It is from this entry Husband appeals, raising the following assignments of

error:



               I. THE MAGISTRATE’S FINDINGS WERE AGAINST THE

         MANIFEST WEIGHT OF THE EVIDENCE, CONTRARY TO THE

         TESTIMONY PROVIDED AT TRIAL, AND INCLUDED ERRORS OF FACT.

               II. THE MAGISTRATE MISAPPLIED THE LAW IN TERMS OF AN

         EQUITABLE DISTRIBUTION OF THE MARTIAL [SIC] PROPERTY.



                                                   I

         {¶16} In his first assignment of error, Husband contends the magistrate’s findings

were against the manifest weight of the evidence, contrary to the testimony adduced at

trial, and included errors of fact. We disagree.

         {¶17} When reviewing a trial court's decisions in a divorce proceeding, an

appellate court will not reweigh the evidence introduced in a trial court, but will uphold the

findings of the trial court when the record contains some competent evidence to sustain
Stark County, Case No. 2017CA00020                                                         6

the trial court's conclusions. Fletcher v. Fletcher (1994), 68 Ohio St.3d 464, 468. See

also Ross v. Ross (1980), 64 Ohio St.2d 203, 414 N.E.2d 426.

        {¶18} Husband argues the trial court failed to consider critical testimony in

reaching its decision. Husband points to Wife’s cross-examination during which she

admitted she failed to abide by the trial court’s Exhibit D Order. According to Husband,

although Wife’s testimony established she did not deposit her paychecks into the joint

accounts, made unauthorized withdrawals, continued to use her credit cards, and made

more than the minimum payments on her credit cards, the trial court absolved Wife of any

wrongdoing and overlooked “her willful violation” of the Exhibit D Order. Brief of Appellant

at 9.

        {¶19} As set forth, supra, in our Statement of the Facts and Case, the parties had

two joint bank accounts, one at First Merit and the other at Huntington. They had equal

access to these accounts. Wife’s pay was directly deposited into the Huntington account

from which she paid household bills and her credit cards. Wife testified, after Husband

overdrew the Huntington account, she began using the First Merit account.               Wife

acknowledged writing a check to herself for $9,800.00, from the First Merit account on

January 9, 2016. Wife testified she applied those funds to the Wayne Savings home

equity line of credit. The $9,800.00 was part of the insurance proceeds the parties

received after Husband’s 2006 Chevrolet truck was totaled. The parties originally had

used the Wayne Savings line of credit to purchase the totaled vehicle. The balance of

the insurance proceeds remained in the First Merit account.

        {¶20} Wife provided the trial court with a detailed accounting of where she

expended the parties’ joint funds, including assisting the adult children with their tuition.
Stark County, Case No. 2017CA00020                                                      7


Husband, on the other hand, wrote a check for $1,000.00, in December, 2015, and a

second check for $900.00, without offering an explanation for these expenditures. Both

of these checks resulted in the joint accounts being overdrawn.        Husband stopped

depositing his paychecks into the joint accounts in February, 2016. The parties each used

their credit cards at will and paid more than the minimum payments each month.

       {¶21} Husband also raises questions about Wife’s commitment to the family by

moving out of the marital residence during the pendency of the proceedings. Husband

submits Wife’s departure from the residence was a violation of the Exhibit D Order which

required the parties to stay under the same roof.

       {¶22} Wife offered detailed testimony about the tension in the home which existed

while the parties remained together. Wife also testified, when she returned home, she

would find no hot water, the garage doors disabled, and her clothes placed in the garage.

Husband would stand over Wife while she slept. The atmosphere became unbearable

for Wife.

       {¶23} In light of the foregoing, we find the magistrate’s findings were not against

the manifest weight of the evidence and supported by the testimony.

       {¶24} Husband’s first assignment of error is overruled.

                                               II

       {¶25} In his second assignment of error, Husband asserts the magistrate

misapplied the law in terms of an equitable division of marital property. Specifically,

Husband argues the magistrate should have awarded him 50% of $138,234.38, which
Stark County, Case No. 2017CA00020                                                        8


represents the marital portion of Wife’s STRS account, $276,468.75, less an offset of the

marital portion of Husband’s social security account, $138,367.72.1

       {¶26} An appellate court 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 v. Blakemore

(1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.

       {¶27} R.C. 3105.171(C)(1) states, “Except as provided in this division * * * 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.”

       {¶28} The trial court awarded Husband marital property valued at $273,305.00,

and Wife marital property valued at $261,766. Husband maintains, although the trial court

acknowledged Aspen Homes had suffered an annual loss of approximately $20,000/year

during the two years preceding the divorce, the trial court did not consider Husband’s

financial position and future earning ability when it divided the marital property. Husband

adds the trial court’s attempt to justify the distribution based upon his being awarded the




1When we calculate the difference between the marital portion of Wife’s STRS account
and the marital portion of Husband’s social security account, we arrive at a figure of
$138,101.03.
Stark County, Case No. 2017CA00020                                                      9


recreational vehicles was misplaced as the vehicles were required for the maintenance

of the marital/business property.

      {¶29} The trial court assigned a value of $12,500.00, for all three recreational

vehicles. Assuming, arguendo, the trial court erroneously assigned the value of the

recreational vehicles to Husband’s total distribution, we find any error is harmless as he

and Wife would receive virtually equal distributions if the value of the vehicles was

reduced from Husband’s award.

      {¶30} As for the trial court assigning a value of $10,000.00, for Aspen Homes, we

find such to be supported by the record. Husband assigned this figure as the value of

Aspen Homes on his financial statement. Aspen Homes owned a building worth over

$40,000.00. Husband pays the electric, cable, cell phones, house phone, garbage pick-

up, home security, and vehicle expenses including some gasoline from Aspen Homes’

accounts.   These expenses total approximately $1,300.00/month.          Further, despite

showing losses over the two years preceding the parties’ divorce, Aspen Homes began

paying Wife $5,200.00/year for services for which she had not been paid in the past. The

trial court clearly chose not to believe Husband’s claims Aspen Homes was going

bankrupt.

      {¶31} Given the total distribution of marital assets to Husband, we find the trial

court did not abuse its discretion in only awarding Husband 10% of the marital portion of

Wife’s STRS account.

      {¶32} Husband’s second assignment of error is overruled.
Stark County, Case No. 2017CA00020                                            10


       {¶33} The judgment of the Stark County Court of Common Pleas, Family Court

Division, is affirmed.



By: Hoffman, J.

Delaney, P.J. and

Baldwin, J. concur
