[Cite as Hostetler v. Hostetler, 2019-Ohio-609.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



PATRICIA A. HOSTETLER                                 JUDGES:
                                                      Hon. John W. Wise, P. J.
        Plaintiff-Appellee/Cross-Appellant            Hon. W. Scott Gwin, J.
                                                      Hon. Earle E. Wise, Jr., J.
-vs-
                                                      Case Nos. 2018 CA 00052
GARY L. HOSTETLER                                           and 2018 CA 00054

        Def.-Appellant/Cross-Appellee
                                                      OPINION




CHARACTER OF PROCEEDING:                           Civil Appeal from the Court of Common
                                                   Pleas, Domestic Relations Division, Case
                                                   No. 2017 DR 00207


JUDGMENT:                                          Affirmed in Part; Reversed in Part and
                                                   Remanded



DATE OF JUDGMENT ENTRY:                            February 19, 2019



APPEARANCES:

For Plaintiff-Appellee/Cross-Appellant             For Defendant-Appellant/Cross-Appellee

JOHN H. SIMPSON                                    ARNOLD F. GLANTZ
2859 Aaronwood Avenue NE                           3722 Whipple Avenue NW
Massillon, Ohio 44646                              Canton, Ohio 44718
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                 2

Wise, John, P. J.

      {¶1}   Defendant-Appellant/Cross-Appellee Gary L. Hostetler appeals from his

judgment entry of divorce from Plaintiff-Appellee/Cross-Appellant Patricia A. Hostetler in

the Stark County Court of Common Pleas, Domestic Relations Division. The relevant

facts leading to this appeal are as follows.

      {¶2}   Appellant Gary and Appellee Patricia were first married in April 1967. That

marriage ended in a divorce.

      {¶3}   On January 8, 1982, they were married again. They had two children

together, both of whom are now adults.

      {¶4}   At some point in December 2016, appellee moved out of the marital

residence. Appellee asserts appellant refused to allow her to return home following a

surgery. She then filed a complaint for divorce in Stark County on March 10, 2017.

Appellant filed an answer and counterclaim on January 19, 2018. Appellee filed an

answer to the counterclaim on March 5, 2018.

      {¶5}   In the meantime, appellee was forced to file motions to compel discovery

three times. Furthermore, appellant failed to appear for scheduled depositions on March

16, 2018, and March 23, 2018.

      {¶6}   After two continuances, the case proceeded to a bench trial on March 29,

2018. A judgment entry of divorce was issued on April 10, 2018. The parties had no

marital debts at the time of the divorce, and the court rendered a division of property as

further discussed infra. The court also awarded no spousal support, finding that

“[appellee] has sufficient liquid assets to support herself in a comfortable manner.”
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                             3


Judgment Entry at 7. However, the court ordered appellant to pay $2,646.00 to appellee

for attorney fees and costs. Id. at 8.

      {¶7}   On May 9, 2018, Appellant Gary filed a notice of appeal (2018CA00052).

He herein raises the following two Assignments of Error:

      {¶8}   “I. THE TRIAL COURT ERRED IN EQUALLY DIVIDING [APPELLANT]

GARY'S PENSION.

      {¶9}   “II.   THE TRIAL COURT ERRED IN ORDERING GARY TO PAY

[APPELLEE] PATRICIA'S ATTORNEY'S FEES.”

      {¶10} Appellee Patricia also filed a notice of appeal on May 9, 2018

(2018CA00054). On July 11, 2018, this Court issued an order consolidating the two

appeals, and designating appellee as the cross-appellant. She herein raises the

following four Assignments of Error as if on cross-appeal:

      {¶11} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN ALLOWING APPELLANT/CROSS-APPELLEE AN ADDITIONAL

30 DAYS TO SHOW THAT A PORTION OF THE TD AMERITRADE ACCOUNT WAS

PREMARITAL.

      {¶12} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN TREATING THE TRANSFER OF THE COLUMBIANA COUNTY,

OHIO REAL ESTATE AS A GIFT.

      {¶13} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN ITS DIVISION OF ASSETS AS THE TRIAL COURT FAILED TO

SUBTRACT        THE     VALUE      OF    THE   VEHICLE       PURCHASED     BY    THE
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                     4


APPELLEE/CROSS-APPELLANT USING A WITHDRAWAL FROM HER SAVINGS

ACCOUNT PRIOR TO DIVIDING THE ASSETS.

      {¶14} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

AWARD SPOUSAL SUPPORT.”

                                        Final Appealability

      {¶15} Before we reach the merits of the present appeal and cross-appeal, it is

incumbent that we consider our jurisdiction to hear this appeal. The existence of a final

appealable order is a jurisdictional question that an appellate court can raise sua sponte.

McHenry v. McHenry, 5th Dist. Stark No. 2014 CA 00146, 2015–Ohio–2479, ¶ 23, citing

Savage v. Cody–Ziegler, Inc., 4th Dist. Athens No. 06CA5, 2006–Ohio–2760, 2006 WL

1514273, ¶ 31. As a general rule, a judgment that leaves issues unresolved and

contemplates that further action must be taken is not a final appealable order. See

Moscarello v. Moscarello, 5th Dist. Stark No. 2014CA00181, 2015–Ohio–654, ¶ 11,

quoting Rice v. Lewis, 4th Dist. Scioto No. 11CA3451, 2012–Ohio–2588, ¶ 14 (additional

citations omitted).

      {¶16} Two facets of the divorce decree at issue in this matter warrant a closer look

in this regard. The first is the trial court’s order that Appellant Gary’s TD Ameritrade stock

account would be recognized as his separate property if he could document to counsel

that the stocks were premarital, within thirty days of the decree. Judgment Entry of

Divorce, April 10, 2018, at 6. The trial court added: “If no documentation is provided, then

the stocks are all deemed marital.” Id. Appellant, in his cross-appellee’s brief, informs us

that “as it turns out,” he did not provide the necessary documentation regarding the
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                  5


Ameritrade account. Brief of Cross-Appellee at 3. Accordingly, we deem the trial court’s

ruling on said asset now resolved.

      {¶17} The second issue to consider concerns the contents of a safe in the marital

residence. Due to appellant’s inaction during the divorce, the trial court issued the

following order:

             Husband is ordered to allow a lock smith access to the safe and

      permission to open the safe, in any way feasible, even if the safe has to be

      drilled or damaged. All attempts should be made to open the safe without

      damage. Husband shall permit an appraiser from Dutton [Auctions] to

      inventory and appraise the contents of the safe and Husband's guns. The

      items shall be divided equally, or at Husband's discretion, Husband shall pay

      to Wife one half of the value of the items. Cost of the lock smith and appraiser

      shall be divided equally.

      {¶18} Judgment Entry of Divorce at 7-8.

      {¶19} While the aforesaid provision presumably hampered an exact accounting

on the court’s property division chart attached to the decree, we note R.C. 3105.171(J)

states that a court addressing marital and/or separate property “may issue any orders

under this section that it determines equitable ***.” Furthermore, on appellate review, the

trial court's property division should be viewed as a whole in determining whether it has

achieved an equitable and fair division of marital assets. See Briganti v. Briganti, 9 Ohio

St.3d 220, 459 N.E.2d 896 (1984). We find the court’s aforesaid ruling as to the safe

does not create an issue of lack of final appealability under the circumstances presented.

      {¶20} We will therefore proceed to an analysis of the claims herein presented.
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                    6

                                  Appellant Gary’s Direct Appeal

                                                  I.

      {¶21} In his First Assignment of Error, appellant, a retired police officer, maintains

the trial court erred in dividing his public pension.

      {¶22} 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

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

      {¶23} 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.”

      {¶24} 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 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, 450 N.E.2d 1140. In order to make an equitable

division of property, the trial court should first determine the value of the marital assets.

See Eisler v. Eisler (1985), 24 Ohio App.3d 151, 152, 493 N.E.2d 975. In performing this
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                  7

function, the trial court has broad discretion to develop some measure of value. See

Berish v. Berish (1982), 69 Ohio St.2d 318, 432 N.E.2d 183.

      {¶25} Generally, pension or retirement benefits earned during the marriage are

marital assets and a factor to be considered in the just division of property. Hoyt v. Hoyt

(1990), 53 Ohio St.3d 177, 178, 559 N.E.2d 1292. Specifically, “[w]hen considering a fair

and equitable distribution of pension or retirement benefits in a divorce, the trial court

must apply its discretion based upon the circumstances of the case, the status of the

parties, the nature, terms and conditions of the pension or retirement plan, and the

reasonableness of the result.” Id., at paragraph one of syllabus.

      {¶26} In the case sub judice, appellant is retired from the Massillon Police

Department, drawing as of the date of trial $5,060.37 per month on his Ohio Police and

Fire Pension, while appellee is retired from the Massillon City Schools, where she worked

as a bus driver and custodian. She draws $1,075.91 per month on her SERS pension.

The trial court, referencing the date of the parties’ marriage, ruled as follows on the

subject of their public pensions:

             The parties shall divide equally by QDRO/DOPO, the marital portion

      of [Appellant] Husband's and [Appellee] Wife's pensions using the 1982

      date. If possible, Wife's pension shall be offset against Husband's pension

      and then an equal division.

      {¶27} Judgment Entry of Divorce at 6-7.

      {¶28} Based on the first sentence of the above provision, it appears the trial court

in this case initially chose to apply a coverture fraction approach, using the dates of the

marriage’s duration. A coverture fraction is generally structured as follows: “The
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                     8


numerator of the coverture fraction is the number of years the [party] participated in the

pension plan during the marriage and the denominator is the total number of years the

[party] participated in the plan.” Ferris v. Ferris, 5th Dist. Fairfield 00 CA 58, 2001 WL

194779.

      {¶29} However, it is not clear to this Court if the second sentence is an alternate

order, mandating a set-off of both parties’ full pension amounts “if possible,” or if the

second sentence is merely intended to logistically reinforce the first. In any case,

appellant maintains that it would have been more equitable to simply have permitted

each party to retain his or her pension. However, upon review, we find the proper remedy

is to remand the pension division issue for clarification by the trial court. See, e.g., Balog

v Balog, 12th Dist. Warren No. CA96-08-077, 1997 WL 311587.

      {¶30} Appellant’s First Assignment of Error is sustained to the extent that further

clarification by the trial court is required.

                                                 II.

      {¶31} In his Second Assignment of Error, appellant maintains the trial court

abused its discretion in ordering him to pay appellee’s attorney fees of in the amount of

$2,646.00. We disagree.

      {¶32} An award of attorney fees in a domestic relations action is within the sound

discretion of the trial court and will not be reversed on appeal absent an abuse of

discretion. Chattree v. Chattree, 8th Dist. Cuyahoga No. 99337, 8 N.E.3d 390, 410,

2014–Ohio–489, ¶ 79, citing Wildman v. Wildman, 5th Dist. Licking No. 12–CA–21,

2012–Ohio–5090, ¶ 79. “*** [A] domestic relations court, well-versed in the ordinary flow

of divorce litigation through its doors, is in a much better position to determine whether
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                  9


a particular case has been unduly hampered by one or more of the participants.”

Compton v. Compton, 5th Dist. Stark No. 2015CA00199, 2016-Ohio-4626, ¶ 14.

      {¶33} The pertinent statute, R.C. 3105.73(A) states: “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.” (Emphasis added).

      {¶34} In the case sub judice, the trial court determined appellant had not

cooperated with the necessary inventory and appraisal of items in the parties’ safe, even

refusing admittance of an appraiser ordered by the court. Accordingly, the court ordered

payment of $2,646.00 for appellee’s attorney fees and costs that she was "forced to incur

when [appellant] failed to comply with discovery orders, attend depositions and permit

appraisals." Judgment Entry of Divorce at 5, 8.

      {¶35} Appellant essentially urges that appellee will be left with significant assets

via the marital property division, as well as her monthly pension amounts and smaller

social security and annuity income, such that she should be responsible for the entirety

of her legal expenses. However, upon review of the record and the history of the divorce

proceedings in the trial court, we are unable to conclude the attorney fee award to

appellee rose to the level of an abuse of discretion.

      {¶36} Appellant's Second Assignment of Error is therefore overruled.
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                      10

                                 Appellee Patricia’s Cross-Appeal

                                                  I.

      {¶37} In her First Assignment of Error on cross-appeal, appellee maintains the

trial court erred and/or abused its discretion in allowing appellant an additional thirty days

to show what portion of the TD Ameritrade account was premarital.

      {¶38} Based on our conclusions above concerning the issue of final appealability,

we find appellee’s First Assignment of Error on cross-appeal to be moot.

                                                  II.

      {¶39} In her Second Assignment of Error on cross-appeal, appellee contends the

trial court erred and/or abused its discretion in treating the prior alleged transfer of certain

real estate in Columbiana County to the parties’ son as a gift. We agree.

      {¶40} In the case sub judice, there were four real estate parcels mentioned in the

divorce, all of them unencumbered by any debt. The first was the marital residence in

Massillon, valued at $110,000.00. The second was an unoccupied additional residential

property in Massillon, valued at $50,000.00. The third was a rural property of

approximately twelve acres, valued at $75,000.00, near the western edge of Stark

County. These three parcels were treated as marital property by the trial court.

      {¶41} However, a fourth property, located in Columbiana County and purchased

with funds supplied by appellant approximately in 2013, was exempted from the marital

estate by the trial court as follows:

             The Court finds that property located at *** Columbiana OH was

      gifted to the parties' son. Husband testified it was a gift, but he never got

      around to finalizing the deed. Wife knew of the gift, but felt that if their son
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                       11


          ever sold the property, he would give the money back. The court determines

          that this property was a gift, and is not marital property, and orders a deed

          prepared and filed within 30 days to finalize the gift.

          {¶42} Judgment Entry of Divorce at 3.

          {¶43} In Ohio, the essential elements of a valid inter vivos gift are (1) the intent to

    make a gift, (2) delivery of the gift to the donee and (3) acceptance of the gift by the

    donee. Blackburn v. Ward, 4th Dist. Scioto No. 05CA3014, 2006-Ohio-406, ¶ 23, citing

    Bolles v. Toledo Trust Co. (1936), 132 Ohio St. 21, 4 N.E.2d 917, at paragraph one of

    the syllabus.

          {¶44} Nonetheless, “[w]hen the gift is real property, delivery is complete upon

    recording of the deed.” Blackburn, supra., citing Romaniw-Dubas v. Polowyk (Aug. 10,

    2000), Cuyahoga App. No. 75980; Wood v. Wade (Aug. 14, 1986), Stark App. No. CA-

    6790, 1986 WL 4631 . In other words, “[a] person may intend to make an inter-vivos gift

    of real property, but that intent can only be accomplished by the execution and delivery

    of a deed, which is not an unfair or burdensome requirement.” In the Matter of the Estate

    of Van Camp, 4th Dist. Washington No. 84X27, 1985 WL 9415.

          {¶45} While a less strict application of the deed requirement might be justified in

    this type of scenario were the donor’s actions closer to the time of the divorce, it appears

    undisputed herein that appellant had withheld transfer of the deed to the parties’ son for

    approximately five years, even though the son was residing there with his family.1 Under




1  According to the son, the property remained titled to “Hostetler Trusts,” which he
described as appellant’s trust. See Tr. at 59-60.
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                   12


these circumstances, we find the failure to include the Columbiana property in the

division of marital assets was erroneous as a matter of law.

      {¶46} Appellee’s Second Assignment of Error on cross-appeal is sustained, and

the matter will be remanded for the trial court to amend its property division orders.

                                                III.

      {¶47} In her Third Assignment of Error on cross-appeal, appellee contends the

trial court erred and/or abused its discretion by failing to subtract, prior to dividing the

marital assets, the value of a Buick automobile appellee had purchased using a

withdrawal from her savings account. We disagree.

      {¶48} “The valuation of marital assets is typically a factual issue that is left to the

discretion of the trial court.” Roberts v. Roberts, Franklin App.No. 08AP–27, 2008–Ohio–

6121, ¶ 18 citing Berish, supra. An appellate court reviews the property division in a

divorce as a whole in determining whether it has achieved an equitable and fair division

of marital assets. Briganti, supra. Generally, 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 fact finder could base his or her judgment. Tennant v. Martin–Auer, 188

Ohio App.3d 768, 2010–Ohio–3489, 936 N.E.2d 1013, ¶ 16, citing Cross Truck

Equipment Co. v. Joseph A. Jeffries Co. (Feb. 10, 1982), Stark App. No. CA–5758, 1982

WL 2911.

      {¶49} Appellee specifically argues that the court erred in failing to account for the

$16,000.00 she used to buy a 2015 Buick, in cash, after she had totaled her previous

car a few weeks before the divorce trial. The court awarded her the Buick in the property
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                 13


division chart, in addition to her $24,201.00 Chase Bank savings account, but did not

subtract the $16,000.00 from that account that she withdrew to buy this car.

      {¶50} However, this appears to be merely a temporary disparity in assets.

Appellee testified that the car that had been crashed was fully insured. Tr. at 39. She

also testified that the insurance company would be issuing her a check for the car,

although the amount was still being negotiated at the time of the divorce trial. See Tr. at

40, 44. Thus, the disparity created will only last until she receives a check from the

insurance company, although it is unknown whether the full $16,000.00 replacement cost

will be covered. While the timing of these events has unfortunately worked against

appellee, we find no abuse of discretion by the trial court in proceeding to a final

resolution using the information it had before it at the time.

      {¶51} Appellee’s Third Assignment of Error on cross-appeal is overruled.

                                                IV.

      {¶52} In her Fourth Assignment of Error on cross-appeal, the trial court abused its

discretion in failing to award her any spousal support.

      {¶53} 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:

             (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
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                   14


     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.

     {¶54} 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;

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). “Although a trial

court has discretion when fashioning its spousal support award, it does not have
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                    15

discretion to disregard the statutory mandates that control spousal support.” Palazzo v.

Palazzo, 9th Dist. Summit No. 27932, 2016-Ohio-3041, ¶ 21. Nonetheless, 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), supra, 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, 5th Dist. Delaware No. 2004–CAF–05035, 2004–Ohio–6710,

¶ 28, citing Watkins v. Watkins, 5th Dist. Muskingum No. CT 2001–0066, 2002–Ohio–

4237, ¶ 21 (additional citations omitted). Similarly, “[w]hen a trial court indicates that it

has reviewed the appropriate statutory factors, there is a strong presumption that the

factors were indeed considered.” Mavity v. Mavity, 12th Dist. Butler No. CA2000-12-244,

2002-Ohio-556.

      {¶55} The trial court’s final redress of the issue of spousal support is as follows:

             The Court considered all of the spousal support factors and finds that

      spousal support is neither appropriate nor reasonable. §3105.18(C)(1). The

      Court has equally divided the assets and pensions. Wife has sufficient liquid

      assets to support herself in a comfortable manner.

      {¶56} Judgment Entry of Divorce at 7.

      {¶57} Under the present circumstances, because our decision to remand for

clarification the issue of pension division (see Assignment of Error I) might affect the trial

court’s consideration of spousal support (see R.C. 3105.18(C)(1)(i), supra), we also

remand the latter issue for discretionary review by the court. See Passyalia v. Moneir,

95 N.E.3d 723, 2017-Ohio-7033, ¶28 (5th Dist.).
Stark County, Case Nos. 2018 CA 00052 and 2018 CA 00054                                16


       {¶58} Appellee’s Fourth Assignment of Error on cross-appeal is therefore

sustained to that extent.

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

Common Pleas, Domestic Relations Division, Stark County, Ohio, is hereby affirmed in

part, reversed in part, and remanded.


By: Wise, John, P. J.

Gwin, J., and

Wise, Earle, J., concur.


JWW/d 0116
