[Cite as Thomaselli v. Thomaselli, 2014-Ohio-2469.]
                              STATE OF OHIO, JEFFERSON COUNTY
                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

CONSTANCE THOMASELLI,                                 )
                                                      )
        PLAINTIFF-APPELLANT,                          )
                                                      )             CASE NO. 13 JE 18
V.                                                    )
                                                      )                     OPINION
ARTHUR M. THOMASELLI,                                 )
                                                      )
        DEFENDANT-APPELLEE.                           )

CHARACTER OF PROCEEDINGS:                             Civil Appeal from Court of Common
                                                      Pleas, Domestic Relations Division of
                                                      Jefferson County, Ohio
                                                      Case No. 12DR146

JUDGMENT:                                             Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellant                               Attorney Mary F. Corabi
                                                      424 Market Street
                                                      Steubenville, Ohio 43952

For Defendant-Appellee                                Attorney Gary M. Stern
                                                      231 Dusty Lane
                                                      Steubenville, Ohio 43952




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                      Dated: June 2, 2014
[Cite as Thomaselli v. Thomaselli, 2014-Ohio-2469.]
DONOFRIO, J.

        {¶1}    Plaintiff-appellant, Constance Thomaselli, appeals from a Jefferson
County Common Pleas Court judgment granting a divorce between her and
defendant-appellee, Arthur Thomaselli.
        {¶2}    The parties in this case were married on November 10, 1989.              No
children were born as issue of the marriage. On May 4, 2012, appellant filed a
complaint for divorce.
        {¶3}    The matter proceeded to a trial where the court heard testimony from
both parties regarding their debts and assets. The court made numerous valuations
of property and divided the property and debt. The findings relevant to this appeal
will be discussed in detail in appellant’s assignments of error. The court granted the
parties a divorce and entered judgment accordingly.
        {¶4}    Appellant filed a timely notice of appeal on July 2, 2013.
        {¶5}    Appellant raises four assignments of error, the first of which states:

                THE COURT FAILED TO RETAIN JURISDICTION ON THE
        ISSUE OF SPOUSAL SUPPORT IN CONSIDERATION OF THE
        DURATION OF THE MARRIAGE, THE AGE AND HEALTH OF THE
        APPELLANT.

        {¶6}    Appellant requested a spousal support award. The court did not award
spousal support. It noted that appellant claimed several disabilities but is still working
full time and earning more than appellee. Appellant earns $32,000 annually and
appellee earns $30,000. Thus, the court found appellant’s claim for spousal support
was inappropriate.        Additionally, the court did not retain jurisdiction over spousal
support.
        {¶7}    Appellant argues the trial court should have retained jurisdiction over
the issue of spousal support, even though the court did not make a spousal support
award. She claims the evidence demonstrated that she has physical and mental
problems and is facing the unknown with her health issues.              And she asserts
appellee is younger and healthier than she is.
                                                                                 -2-


       {¶8}   It is important to note that appellant does not challenge the trial court’s
decision not to award spousal support at this time.           Instead, appellant is only
challenging the court’s decision not to retain jurisdiction over the issue of spousal
support.
       {¶9}   We review a trial court’s decision not to retain jurisdiction over the issue
of spousal support for abuse of discretion. Molnar v. Molnar, 7th Dist. No. 10-JE-19,
2011-Ohio-4318, ¶26. Abuse of discretion connotes more than an error of law or
judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
       {¶10} The trial court did not abuse its discretion in deciding not to retain
jurisdiction over the issue of spousal support.
       {¶11} Appellant testified that, in 2013, at the time of the divorce hearing, she
was earning an annual salary of $32,916 as a property manager where she had
worked for the past 13 years. (Tr. 6-7). Appellant also testified as to her medical
history. She stated that in 2007, she tore both rotator cuffs. (Tr. 34). She had
surgery in 2008 and 2009 to repair them.          (Tr. 34).   She suffered 34 percent
permanent partial disability in her right arm. (Tr. 34). Appellant stated that through
all of her injuries and surgeries she has continued to work. (Tr. 35). Appellant
testified she continues to have pain in her arm. (Tr. 35). Appellant also testified that
she is depressed and has attended counseling. (Tr. 35). She again emphasized that
she has never missed work. (Tr. 35).
       {¶12} Appellee’s only testimony on the subject was that his annual income is
$30,000. (Tr. 81).
       {¶13} The parties’ income is almost identical, with appellant earning slightly
more than appellee. That is the reason the court did not award spousal support. The
court apparently saw no reason to retain jurisdiction over the issue of spousal support
when it did not even put on an order of spousal support. Even though appellant
testified that she had some physical and mental health issues, these issues have
                                                                                  -3-


been ongoing since 2007. By her own testimony, appellant’s health issues have
never prevented her from working. She has been at the same job since before her
injuries and has continued that job up through the present time. Thus, she gave no
indication that her physical or mental health issues would have any impact on her
ability to work and maintain her current job. Therefore, the trial court did not abuse
its discretion in not retaining jurisdiction over the issue of spousal support.
       {¶14} Accordingly, appellant’s first assignment of error is without merit.
       {¶15} Appellant’s second assignment of error states:

              THE TRIAL COURT FAILED TO AWARD THE SEPARATE
       REAL ESTATE INTEREST OF THE APPELLANT.

       {¶16} The evidence in this case demonstrated that appellant purchased the
marital home in 1987, two years prior to the marriage, for $35,000.               (Tr. 14).
Appellant put $10,000 down on the house and took out a $25,000 mortgage. (Tr.
14).   After the parties were married, in 1994 they refinanced the mortgage and
financed $44,704. (Tr. 14). Later that same year, the parties took out a home equity
loan for $11,000. (Tr. 14-15). In 1998, the parties refinanced again, this time for
$55,000. (Tr. 15). Additionally, both parties testified that appellee had been making
the mortgage payments. (Tr. 52-53, 81).
       {¶17} The court found that the home was currently worth approximately
$126,000 and that it was encumbered by a mortgage and a home equity loan totaling
approximately $99,000. It noted that appellant purchased the home two years prior
to the marriage. It appears the court treated the home as marital property without
specifically making such a finding and without setting out its reasons for making the
finding.
       {¶18} Here appellant contends the trial court should have awarded separate
interest in the marital residence to her because she purchased the house two years
prior to the marriage. She claims the undisputed evidence showed that she had a
separate property interest of $45,000, which exceeded the value of the equity in the
                                                                                 -4-


marital residence.
      {¶19} A trial court's decision regarding whether property is marital or separate
is reviewed under an abuse of discretion standard. Maloney v. Maloney, 160 Ohio
App.3d 209, 826 N.E.2d 864, 2005-Ohio-1368, ¶8, citing Neville v. Neville, 99 Ohio
St.3d 275, 791 N.E.2d 434, 2003-Ohio-3624.
      {¶20} “Marital property” includes real property, or any interest in real property,
that is currently owned by either or both spouses and that was acquired during the
marriage. R.C. 3105.171(A)(3)(a)(i) and (ii). “Separate property,” on the other hand,
includes real property, or any interest in real property, that was acquired by one
spouse prior to the date of the marriage. R.C. 3105.171(A)(6)(ii). The commingling
of separate property with other property does not destroy the identity of the separate
property,   except   when   the   separate    property   is   not   traceable.      R.C.
3105.171(A)(6)(b).
      {¶21} “In divorce proceedings, the court shall * * * determine what constitutes
marital property and what constitutes separate property.” (Emphasis added), R.C.
3105.171(B). See also, Silicia v. Silicia, 7th Dist. No. 99-CO-66, 2001-Ohio-3364.
This duty, to classify property in a divorce proceeding as marital or separate before
dividing it, is mandatory. Girton v. Girton, 4th Dist. No. 08CA30, 2009-Ohio-4458, ¶6.
Additionally, the trial court must make findings in sufficient detail to allow for
meaningful appellate review. Woody v. Woody, 4th Dist. No. 09CA34, 2010-Ohio-
6094, ¶24; R.C. 3105.171(G) (“the court shall make written findings of fact that
support the determination that the marital property has been equitably divided.”)
      {¶22} In this case, the trial court failed to determine whether the home was
entirely marital property or if appellant owned a separate property interest in the
home since she purchased it prior to the marriage. The court acknowledged in a
footnote that appellant purchased the property prior to the marriage for $35,000 and
that a mortgage balance of $24,000 remained at the time of the marriage. And in its
division of assets, the court awarded the house to appellant, along with its
outstanding mortgage and equity loan. But the court never performed its statutory
                                                                                 -5-


duty to make a determination as to whether appellant owned a separate property
interest in the house. The court should have made this determination, along with
sufficient findings in support, prior to awarding the house. The court’s failure to make
such a determination warrants a remand of this case so that the court can make its
statutorily-required findings. See Fordyce v. Fordyce, 7th Dist. No. 10 NO 372, 2011-
Ohio-3406; Silicia, 2001-Ohio-3364.
       {¶23} Accordingly, appellant’s second assignment has merit.
       {¶24} Appellant’s third assignment of error states:

               THE TRIAL COURT ERRED IN FAILING TO DIVIDE ALL THE
       ASSETS AND DEBTS OF THE PARTIES.

       {¶25} In this assignment of error, appellant asserts the trial court failed to
divide numerous assets. The assets appellant asserts the court neglected to divide
are:

   1. First Choice America Federal Credit Union IRA with a $409.86 value
   2. WesBanco Account with a $265.78 value
   3. WesBanco Account with a $350.00 value
   4. Parkvale Account with a $50.00 value
   5. West Mark Account with a $3,030.50 value
   6. First Choice America Federal Credit Union Saving Account with a $20.20
       value
   7. First Choice America Federal Credit Union Checking Account with a $14.71
       value

       {¶26} Additionally, appellant argues the trial court assigned values to various
assets that are not supported by the evidence. Specifically, she points to the values
assigned by the court to the Cadillac, the Chevrolet truck, and the West Virginia
house.
       {¶27} The trial court failed to include several assets in its division of property.
                                                                               -6-


None of the accounts listed above appear in the trial court’s division of assets with
the exception of the WesBanco account with a $350-value (the court actually listed
the value as $353). But appellant testified regarding each of these accounts and
each account, along with the last four digits of each account number, is listed in her
proposed division of assets. Additionally, in appellee’s proposed division of assets,
he lists three of the accounts as his separate property (WesBanco accounts ending in
42000, 3897, and 1210). The court awarded account 3897 to appellant; however, it
did so without making a determination as to whether it was separate or marital
property. The court did not make any determination as to the separate or marital
characterization of the other two accounts nor does it appear that the court awarded
these assets. The trial court did find that two accounts are the property of appellee
and his parents. But it is not entirely clear, without reference to account numbers,
whether these are the same accounts appellant listed above because appellee
characterized them as his separate property and not as the property of his parents.
And the court makes no mention of the First Choice accounts.           Thus, we must
remand this matter to the trial court so that the court can make a complete
classification of all accounts as marital or separate and then divide all of the
accounts.
         {¶28} Appellant also takes issue with the value the court assigned to the
parties’ second home, known as the “lake house,” the Cadillac, and the Chevrolet
truck.
         {¶29} As to the lake house, appellant testified that its value was $85,500
because that it is how much it is insured for. (Tr. 12). Appellee testified the house is
worth $35,000 because that is what the parties paid for it less than five years ago.
(Tr. 78). The parties both testified that they only own the house, however, and not
the real estate on which it sits. (Tr. 13, 78-79). They only own a 99-year lease on
the land, of which 65 years remain. (Tr. 13, 78-79).
         {¶30} The trial court valued the lake house at $35,000.      It found the fair
market value to be more accurately determined by the recent purchase price than by
                                                                               -7-


the replacement price. And the court also took into consideration that the lake house
is located on property that the parties do not own. It was within the trial court’s
discretion to determine which testimony was more credible in this case.
       {¶31} As to the Cadillac, appellant testified that she owns a 2004 Cadillac
Deville that is appraised at $6,200. (Tr. 16-17). Appellee did not testify as to a value
for the Cadillac.
       {¶32} And as to the truck, appellant testified that appellee owns a 1996
Chevrolet K1500 truck valued at approximately $5,000. (Tr. 17). Appellant testified
that the truck was worth “maybe less” than $5,000. (Tr. 80).
       {¶33} The trial court used the Kelly Blue Book value for a 2004 Cadillac
Seville [sic.], which was $6,000, and for a 1996 Chevrolet 1500 truck, which was
$3,400. In so doing, the court used information from outside the record to come to
these values. This was in error. A court cannot consult the NADA Blue Book on its
own and take judicial notice of the average listed retail value of a vehicle. Blake v.
Blake, 3d Dist. No. 10-05-07, 2005-Ohio-4186, ¶29; Jones v. Cynet, Inc., 8th Dist.
No. 79769, 2002-Ohio-2617, ¶31. Thus, the court’s valuation of the parties’ vehicles
was in error.
       {¶34} Accordingly, appellant’ third assignment of error has merit in part.
       {¶35} Appellant’s fourth assignment of error states:

                THE   TRIAL   COURT      ERRED     IN   FINDING     FINANCIAL
       MISCONDUCT ON THE PART OF THE APPELLANT.

       {¶36} The trial court found that appellant “has a huge gambling problem.” It
found that in 2010, appellant reported $11,390.00 in gambling winnings and offsetting
losses on her taxes.     And in 2011, appellant reported $21,950.00 in gambling
winnings and offsetting losses. In 2012, appellant won $14,000.00 and presumably
claimed offsetting losses. The court noted that appellant claimed her losses should
be determined by her tax returns.         But the court found this would grossly
underestimate her losses. The court then made the following findings:
                                                                                 -8-


               All of wife’s gambling is done on machines common in Weirton,
       West Virginia. The payout per dollar wagered is well known to range
       from 28% to 40%. In order to win $46,485.00 over the past three (3)
       years from constant gambling at machines over the long haul one
       would have to wager many times that amount. Using the 40% return as
       an average (greatly favors Plaintiff) then one would have to wager
       $116,212.00 to win $46,485.00. Those gross winnings of $46,485.00
       over three (3) years therefore actually represent $69,727.00 in net
       losses. But it is worse than that. The winnings Plaintiff reported to the
       IRS are only those winnings that exceeded $1,200.00 in a single pot.
       All of the winnings less than $1,200.00 are not reported to the IRS and
       are not claimed on her tax return. Those gross winnings would also
       represent a net loss of 1.5 times the gross winnings. Another huge net
       loss.

       {¶37} Appellant challenges the trial court’s finding that her gambling
constituted financial misconduct. She first argues the court erred in taking judicial
notice of the gambling pay-out rates of certain machines in West Virginia and then
using these pay-out rates to compute her annual gambling losses. Second, she
argues that her gambling does not constitute financial misconduct. Appellant points
out that she started gambling three years before the parties’ separation and appellee
was aware of it and even gave her funds with which to gamble. Thus, she claims
there was no wrongdoing on her part. For these reasons, appellant argues the trial
court erred in offsetting the distribution in favor of appellee by $69,727.00, which it
found to be the minimal amount of appellant’s gambling losses.
       {¶38} Pursuant to Evid.R. 201(B), a court may take judicial notice of a fact
that is “not subject to reasonable dispute in that it is either (1) generally known within
the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.”
                                                                                  -9-


         {¶39} No evidence of the payout rates of West Virginia gaming machines was
offered at the trial. On its own initiative the trial court took judicial notice of these
“facts.” It is within a court’s discretion to take judicial notice whether or not requested
by a party. Evid.R. 201(C). But a court may not take judicial notice of a fact simply
because the court has personal knowledge of that fact. Staffrey v. Smith, 7th Dist.
No. 09-MA-107, 2010-Ohio-1296, ¶38.
         {¶40} The court erred in including the “well known” payout per dollar wagered
rate. What the payout rate may be on certain gaming machines is not a fact that is
generally known within the territorial jurisdiction of the trial court. Moreover, the court
did not give any sources where this “well known” information could be found or that
the information came from sources whose accuracy cannot reasonably be
questioned. The court took it upon itself to include the payout rates that it obtained
from some unknown source and then to use averages to determine what it believed
appellant’s gambling losses to be (in excess of $69,727.00). The court then used
this figure to offset the discrepancy between the parties’ asset division.
         {¶41} Appellee concedes that the court may have erred in taking judicial
notice of these payout rates. But he argues there was enough evidence to support
the trial court’s findings without reference to the gaming payout rates. The only
specific evidence as to appellant’s losses was the information provided on her tax
forms.     These amounts were $11,390.00 in 2010, $21,095.00 in 2011, and
$14,000.00 in 2012, for a total of $46,485.00. (Tr. 44, 47, 54; Exs. 1, 2). This is a
$23,242.00 difference from the figure that the trial court used.         There are other
references in the record as to appellant’s gambling losses, but the figures are not
exact. Thus, the trial court erred in finding that appellant incurred $69,727.00 in
gambling losses and using this amount to offset the discrepancy between the parties’
total distribution of assets.
         {¶42} Accordingly, appellant’s fourth assignment of error has merit.
         {¶43} For the reasons stated above, the trial court’s judgment is hereby
reversed and the matter is remanded. On remand, the court shall determine whether
                                                                                - 10 -


appellant has a separate property interest in the marital home, shall classify all of the
parties’ accounts as separate or marital property and then distribute all accounts,
shall re-value the parties’ vehicles based on the evidence offered, and shall
reconsider its finding of appellant’s financial misconduct without reference to facts
outside of the record. Once the trial court has done these things, it will be necessary
for it to enter a new equitable division of assets.

Waite, J., concurs.

DeGenaro, P.J., concurs.
