[Cite as Haven v. Haven, 2012-Ohio-5347.]


                                      COURT OF APPEALS
                                   ASHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


STEPHEN HAVEN                                :      JUDGES:
                                             :
                                             :      Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellant                   :      Hon. W. Scott Gwin, J.
                                             :      Hon. William B. Hoffman, J.
-vs-                                         :
                                             :      Case No. 12-COA-013
THERESE HAVEN                                :
                                             :
                                             :
       Defendant-Appellee                    :      OPINION


CHARACTER OF PROCEEDING:                         Appeal from the Ashland County Court of
                                                 Common Pleas, Domestic Relations
                                                 Division, Case No. 10-DIV-157



JUDGMENT:                                        AFFIRMED




DATE OF JUDGMENT ENTRY:                          November 9, 2012




APPEARANCES:

For Appellant:                                      For Appellee:

JEFFREY V. HAWKINS                                  MELISSA K. TOMMELLEO
One Cascade Plaza, Suite 2210                       76 N. Mulberry St.
Akron, OH 44308-1135                                Mansfield, OH 44902
Delaney, P.J.

       {¶1} Plaintiff-Appellant Stephen Haven appeals the March 28, 2012 Decree of

Divorce issued by the Ashland County Court of Common Pleas, Domestic Relations

Division.

                          FACTS AND PROCEDURAL HISTORY

       {¶2} Plaintiff-Appellant Stephen Haven (“Husband”) and Defendant-Appellee

Therese Haven (“Wife”) were married on July 3, 2004. Husband filed a complaint for

divorce on July 30, 2010. The matter came on for hearing before the magistrate on

May 26, 2011. The issues at the hearing were the division of the marital home and

the appropriateness of a distributive award, the division of certain personal property,

and spousal support.

       {¶3}     The parties stipulated the duration of the marriage was from July 3,

2004 through May 26, 2011.        No children were born as issue of the marriage.

Husband has two children from a previous marriage. Wife has four children from a

previous marriage. At the time of the magistrate’s hearing, the children were in either

high school or college.

       {¶4} At the time of the divorce, Husband was 54 years old and in good health.

Husband has two master’s degrees and a doctorate.         He is employed at Ashland

University as the director of the graduate creative writing program in poetry and

creative nonfiction, earning $66,000 as a base salary and $10,000 as a summer

supplemental income for being the director of the program.         Ashland University

determines yearly whether Husband will continue as the director of the program. If
Husband were not selected to direct the program, he would continue as a professor at

Ashland University.

      {¶5} Wife was 50 years old and in good health. Wife has a master’s degree in

business administration. She is employed at Benedictine High School with an annual

income of $57,600. Wife was unemployed from August 2010 to January 2011.

      {¶6} Prior to the marriage, the parties owned separate residences. Husband

owned a home on Smith Road in Ashland, Ohio (“Smith Road Home”). Wife owned a

home on Michaels Road in Fremont, Ohio (“Michaels Road Home”).          The parties

became engaged in 2003. Wife listed the Michaels Road Home for sale and the

parties resided together at the Smith Road Home. Survivorship deeds were prepared

for both parties’ names to be added to the deeds of the Smith Road and Michaels

Road homes.

      {¶7} Husband and Wife determined the Smith Road Home was too small for

the family of eight. The Smith Road Home was placed on the real estate market and

the parties commenced construction on a home located on Williamsburg Court,

Ashland, Ohio (“Williamsburg Court Home”). In order to finance the construction of

the Williamsburg Court Home, Wife took out a bridge loan on the Michaels Road

Home. The Michaels Road Home sold in 2006. The bridge loan was paid off and

Wife earned $100,000 as profit from the sale of the Michaels Road Home.         The

$100,000 was used as a down payment on the Williamsburg Court Home.

      {¶8} At the time of the marriage, Husband had a line of credit on the Smith

Road Home with a balance of $12,117.98. The line of credit on the Smith Road Home

was solely in Husband’s name and Wife had no access to this account. Prior to the
sale of the Smith Road Home, the parties moved to the Williamsburg Court Home.

The Smith Road Home was sold in 2008. At the time of the sale, the balance of the

line of credit on the Smith Road Home was $27,006.10.

      {¶9} In 2006, the parties opened a home equity line of credit with the

Williamsburg Home in the amount of $100,000. The HELOC was used to (1) pay off

Husband’s premarital credit card debt for $8,350; (2) to purchase a 2006 Ford Taurus

for $10,632.90; (3) to retire the $27,006.10 owed on Husband’s line of credit on the

Smith Road Home to complete the sale of that home; and (4) for the children’s

educational expenses and wedding expenses in the amount of $42,500. Wife argued

it was her intention to use the $100,000 HELOC for the children’s college education

only. Husband made $22,032.69 in payments against the HELOC.

      {¶10} The parties stipulated Husband would receive the 2006 Ford Taurus.

      {¶11} The magistrate’s decision was issued on October 26, 2011. Relevant to

this appeal, the magistrate recommended that Husband pay Wife a distributive award

of $23,956.31. The amount represented $8,350 of Husband’s premarital credit card

debt, $10,632.90 for the Ford Taurus, $27,006.10 for the Smith Road House line of

credit, and less the $22,032.69 of Husband’s payments to the Williamsburg Court

Home HELOC.

      {¶12} The magistrate further recommended it was reasonable and appropriate

for Husband to pay Wife spousal support in the amount of $500 per month for twelve

months.

      {¶13} Husband filed objections to the magistrate’s decision.   The trial court

filed a judgment entry on February 2, 2012 overruling Husband’s objections and
adopting the magistrate’s decision. A final decree of divorce was filed on March 28,

2012.

        {¶14} It is from this decision Husband now appeals.

                             ASSIGNMENTS OF ERROR

        {¶15} Husband raises three Assignments of Error:

        {¶16} “I. THE TRIAL COURT ERRED IN SUSTAINING THE MAGISTRATE’S

DECISION THAT ISSUED A DISTRIBUTIVE AWARD IN FAVOR OF THE

DEFENDANT/APPELLEE AND AGAINST THE PLAINTIFF/APPELLANT.

        {¶17} “II. THE TRIAL COURT ERRED IN SUSTAINING THE MAGISTRATE’S

DECISION      THAT     AWARDED      SPOUSAL          SUPPORT   IN   FAVOR    OF   THE

DEFENDANT/APPELLEE.

        {¶18} “III. THE TRIAL COURT ERRED IN SUSTAINING THE MAGISTRATE’S

DECISION THAT          FOUND    THE   EVIDENCE         PRESENTED AT     TRIAL WAS

SUFFICIENT        TO     ALLOW        A     DISTRIBUTIVE       AWARD        TO    THE

DEFENDANT/APPELLEE AND AGAINST THE PLAINTIFF/APPELLANT.”

                                      ANALYSIS

                                          I., III.


        {¶19} We consider Husband’s first and third Assignments of Error together

because the assignments raise the $23,956.31 distributive award given to Wife.

Husband argues the trial court erred in ordering Husband to pay a distributive award

to Wife because the evidence was insufficient to support such an award.           We

disagree.
        {¶20} R.C. 3105.171(B) requires the trial court to 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 separate property equitably

between the spouses * * *.” R.C. 3105.171(B). The Revised Code further requires

that a trial court divide the marital property equally unless an equal division would be

inequitable, in which case “the court shall not divide the marital property equally but

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

equitable.”     R.C. 3105.171(C)(1).     The court may make a distributive award to

facilitate,   effectuate,   or   supplement   a   division     of   marital   property.   R.C.

3105.171(E)(1). Under R.C. 3105.171(F), the trial court must consider the following

factors in determining whether to make and the amount of a distributive award:

        (1) The duration of the marriage;

        (2) The assets and liabilities of the spouses;

        (3) The desirability of awarding the family home, or the right to reside in

        the family home for reasonable periods of time, to the spouse with

        custody of the children of the marriage;

        (4) The liquidity of the property to be distributed;

        (5) The economic desirability of retaining intact an asset or an interest in

        an asset;

        (6) The tax consequences of the property division upon the respective

        awards to be made to each spouse;

        (7) The costs of sale, if it is necessary that an asset be sold to effectuate

        an equitable distribution of property;
      (8) Any division or disbursement of property made in a separation

      agreement that was voluntarily entered into by the spouses;

      (9) Any retirement benefits of the spouses, excluding the social security

      benefits of a spouse except as may be relevant for purposes of dividing a

      public pension;

      (10) Any other factor that the court expressly finds to be relevant and

      equitable.

Husband has not made any argument that the trial court failed to properly apply R.C.

3105.171(F) in making the distributive award.

      {¶21} Trial courts have “broad discretion to determine what property division is

equitable in a divorce proceeding.” Cherry v. Cherry, 66 Ohio St.2d 348, 421, 421

N.E.2d 1293 (1981), paragraph two of the syllabus. A trial court's decision allocating

marital property and debt will not be reversed absent an abuse of discretion. “Abuse

of discretion” connotes more than an error of law or judgment; it implies that the

court's attitude is unreasonable, arbitrary, or unconscionable.         Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

      {¶22} We review a trial court's classification of property as marital or separate

under a manifest weight of the evidence standard and we will affirm if some

competent, credible evidence supports the classification.    Thomas v. Thomas, 5th

Dist. No. 11CAF090079, 2012-Ohio-2893, ¶ 31 citing Taub v. Taub, 10th Dist. No.

08AP750, 2009-Ohio-2762, ¶ 15. Valuing property involves factual inquiries and also

requires an appellate court to apply a manifest weight of evidence standard of review.

Wright v. Wright, 4th Dist. No. 94CA02, 1994 WL 649271 (November 10, 1994). An
appellate court will not reverse a trial court's valuation if it is supported by some

competent, credible evidence. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461

N.E.2d 1273 (1984).

         {¶23} Husband argues the distributive award was in error because while the

$100,000 from the sale of the Michaels Road Home was Wife’s separate property,

when Wife used that property as a down payment on the Williamsburg Court Home, it

became comingled with marital property and was no longer traceable as separate

property. Husband further argues the debts paid with the $100,000 were marital debts

and not Husband’s separate debts.       “Pursuant to R.C. 3105.171(B), a spouse’s

separate property should be distributed to that spouse and it is error to award

separate property as marital property.” Furman v. Furman, 10th Dist. No. 10AP-407,

2011-Ohio-6558, ¶ 25 citing Colley v. Colley, 10th Dist. No. 09AP-333, 2009-Ohio-

6776. “When assessing whether an asset is marital property or separate property, the

presumption is that an asset acquired during the course of marriage is martial property

unless proved otherwise.     R.C. 3105.171(A)(6)(b).    A party in a divorce action

requesting classification of a commonly-held asset as separate property, therefore,

bears the burden of tracing that asset to his or her separate property. Dunham v.

Dunham, 171 Ohio App.3d 147, 870 N.E.2d 168, 2007–Ohio–1167, ¶ 20.” Furman,

supra.

         {¶24} The distributive award was based on the sale of the Michaels Road

Home. The Michaels Road Home sold in 2006 and Wife earned $100,000 as profit

from the sale of the Home. The $100,000 was used as a down payment on the
Williamsburg Court Home. Husband does not dispute the $100,000 from the sale of

the Michaels Road home was Wife’s premarital asset.

      {¶25} In 2006, the parties opened a home equity line of credit with the

Williamsburg Home in the amount of $100,000. The HELOC was used to (1) pay off

Husband’s premarital credit card debt for $8,350; (2) to purchase a 2006 Ford Taurus

for $10,632.90; (3) to retire the $27,006.10 owed on Husband’s line of credit on the

Smith Road Home to complete the sale of that home; and (4) for the children’s

educational expenses and wedding expenses in the amount of $42,500. Wife argued

it was her intention to use the $100,000 HELOC for the children’s college education

only. Husband made $22,032.69 in payments against the HELOC.

      {¶26} The magistrate’s decision recommended that Husband pay Wife a

distributive award of $23,956.31.     The amount represented $8,350 of Husband’s

premarital credit card debt, $10,632.90 for the Ford Taurus, $27,006.10 for the Smith

Road House line of credit -- less the $22,032.69 of Husband’s payments to the

Williamsburg Court Home HELOC.

      {¶27} Husband states the evidence show the debts paid by the Williamsburg

Court Home HELOC were debts incurred after the marriage on July 3, 2004. We will

examine each debt based on the evidence presented at trial.

      {¶28} (A) $8,350 Credit Card Debt

      {¶29} Husband argues there is no evidence that the $8,350 debit from the

Williamsburg Court Home HELOC was Husband’s premarital debt.              He states the

$8,350 listed on the HELOC account statement as a cash advance is insufficient to

establish it was Husband’s debt. Wife testified at trial it was her recollection that the
$8,350 was used to pay off the balance of Husband’s credit card that had zero percent

interest for twelve months. The twelve month period was to expire and the parties

used the Williamsburg Court Home HELOC to pay off the balance of the credit card.

(T. 70-71.) Husband did not provide any details in his testimony as to the origin of the

$8,350 debt.

      {¶30} (B) $10,632.90 Ford Taurus Purchase

      {¶31} The 2006 Ford Taurus was purchased during the marriage with funds

from the Williamsburg Court Home HELOC. Husband primarily drove the vehicle.

Wife testified she disagreed with the purchase of the vehicle, and she disagreed with

the use of the Williamsburg Court Home HELOC to purchase the vehicle because the

HELOC was to be used for the children’s education.         (T. 68-69).   In the parties’

stipulations to the divorce decree, the parties agreed Husband would receive the Ford

Taurus.

      {¶32} (C) $27,006.10 Smith Road Home Line of Credit Payoff

      {¶33} At the time of the parties’ marriage, the line of credit on the Smith Road

Home was $12,117.98. Only Husband had access to this line of credit. At the time of

the sale of the Smith Road Home, the line of credit was $27,006.10.

      {¶34} Husband testified the line of credit was used for family expenses. (T.

38.) The Smith Road Home line of credit was also used to pay mortgage and other

expenses on the Smith Road Home, because for a period of time, the parties owned

both the Smith Road Home and the Williamsburg Court Home.             (T. 37-38). Wife

testified she had no control over the Smith Road Home line of credit. She discussed
with Husband that the sale price of the Smith Road Home should be lowered rather

than incurring further expenses on the line of credit. (T. 63-64).

       {¶35} There is no dispute the $100,000 profit from the sale of the Michaels

Road Home was Wife’s separate property and that separate property was used as a

down payment on the Williamsburg Court Home. A HELOC was then established on

the Williamsburg Court Home in the amount of $100,000.           Certain debts incurred

before and during the marriage were paid from the Williamsburg Court Home HELOC,

of which caused the trial court to grant Wife a distributive award in order to effectuate

a fair and equitable distribution of the marital and separate property and debt.

       {¶36} Based on the evidence presented, we find no abuse of discretion in the

trial court’s division of the separate and marital property and debt. The trial court’s

determinations are supported by competent and credible evidence.

       {¶37} Husband’s first and third Assignments of Error are overruled.

                                            II.

       {¶38} Husband argues in his second Assignment of Error the trial court erred in

granting Wife spousal support in the amount of $500 per month for twelve months.

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

it constitutes an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554

N.E.2d 83 (1990). An abuse of discretion connotes more than an error of law or

judgment; it implies that the court's attitude is unreasonable, arbitrary, or

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

       {¶40} R.C. 3105.18(C)(1)(a) through (n), which sets forth the factors a trial

court is to consider in determining whether spousal support is appropriate and
reasonable and in determining the nature, amount, terms of payment, and duration of

spousal support, provides:

      (C)(1) In determining whether spousal support is appropriate and

      reasonable, and in determining the nature, amount, and terms of

      payment, and duration of spousal support, which is payable either in

      gross or in installments, the court shall consider all of the following

      factors:

      (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 from

      that party's marital responsibilities;

      (n) Any other factor that the court expressly finds to be relevant and

      equitable.

      {¶41} In     his decision,   the   magistrate   considered   the parties’ factual

stipulations, the educational backgrounds, and employment histories. Husband has

two master’s degrees and a doctorate.          He works at Ashland University earning

$66,000 per year and $10,000 as a supplemental income for directing the graduate

creative writing program in poetry and creative nonfiction. Husband foresees he will

be the director of the program for at least one year. Wife has her master’s degree in

business administration. She was unemployed from August 2010 to January 2011,

but now currently earns $57,600 at Benedictine High School. The parties divided their
retirement benefits. The parties were married seven years and enjoyed an upper

middle class standard of living during their marriage.

       {¶42} We find the trial court considered the appropriate factors and did not

abuse its discretion in ordering Husband to pay Wife spousal support in the amount of

$500 per month for twelve months.

       {¶43} Husband’s second Assignment of Error is overruled.

                                    CONCLUSION

       {¶44} The three Assignments of Error of Plaintiff-Appellant Stephen Haven are

overruled.

       {¶45} The judgment of the Ashland County Court of Common Pleas, Domestic

Relations Division is affirmed.

By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. WILLIAM B. HOFFMAN




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


                                        :
STEPHEN HAVEN                           :
                                        :
   Plaintiff - Appellant                :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   12-COA-013
THERESE HAVEN                           :
                                        :
   Defendant - Appellee                 :
                                        :


       For the reasons stated in our accompanying Opinion on file, the judgment of the

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

Costs assessed to Appellant.




                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. WILLIAM B. HOFFMAN
