[Cite as Lee v. Lee, 2019-Ohio-61.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

MICAH LEE                                              C.A. No.        17CA011235

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
ANGIE LEE, et al.                                      COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellees                                      CASE No.   11 DU 074016

                                 DECISION AND JOURNAL ENTRY

Dated: January 14, 2019



        CALLAHAN, Judge.

        {¶1}     Appellant, Micah Lee, appeals the judgment of divorce entered by the Lorain

County Court of Common Pleas, Domestic Relations Division. This Court reverses the trial

court’s judgment and remands this matter for a new trial.

                                                  I.

        {¶2}     Micah and Angie Lee married on March 15, 1991. Their first child was born

shortly thereafter and is now emancipated. Their second child was born in 2002. Mr. Lee filed a

complaint for divorce on July 11, 2011. While the divorce was pending, the trial court restrained

the parties from “concealing, selling, transferring, encumbering or otherwise disposing [of] any

of the marital assets of the parties without prior Court order.” When Ms. Lee retained counsel,

she moved the trial court to add Mr. Lee’s paramour as a necessary party under Civ.R. 75(B)(1),

alleging that she held marital property subject to the court’s jurisdiction. On the first day of trial,

Ms. Lee also moved for leave to file an amended answer naming several third-party defendants
                                                  2


and asserting claims against them related to alleged dissipation of marital assets. The trial court

granted leave, but severed adjudication of the third-party claims from the trial of the divorce

action.

          {¶3}   The trial court heard seven days of testimony over two months in 2014, but—by

its own admission—delayed in entering judgment until more than two years after the date trial

commenced.       Mr. Lee attempted two previous appeals, but on each occasion, this Court

determined that the trial court had not yet entered a final appealable order. On November 2,

2017, the trial court entered the judgment from which Mr. Lee has now appealed. His seven

assignments of error are rearranged for purposes of discussion.

                                ASSIGNMENT OF ERROR NO. 1

          THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
          ENTERED JUDGMENT FINDING HUSBAND’S PREMARITAL 1968 GTO
          HAD BEEN FRAUDULENTLY CONVEYED TO CHRISTOPHER COLLIER;
          AND HUSBAND HAD ENGAGED IN FINANCIAL MISCONDUCT BY
          USING MARITAL MONIES MEANT TO SUPPORT THE WIFE FOR LARRA
          DOUGLAS AND, BY SELLING THE GTO AND THE HOT TUB IN
          VIOLATION OF THE MUTUAL RESTRAINING ORDER, WHERE THE
          JUDGMENT WAS CONTRARY TO LAW, AND THE FINDINGS WERE
          AGAINST THE WEIGHT OF THE EVIDENCE.

          {¶4}   Mr. Lee’s first assignment of error is that the trial court erred by concluding that

he had fraudulently conveyed or otherwise disposed of certain property in violation of the trial

court’s temporary orders. This Court agrees.

          {¶5}   R.C. 3105.171(B) provides that “[i]n divorce proceedings, the court shall * * *

determine what constitutes marital property and what constitutes separate property.” This is a

fact-based determination that falls squarely within the province of the trial court. See Suppan v.

Suppan, 9th Dist. Wayne No. 17AP0015, 2018-Ohio-2569, ¶ 23. The failure to classify property

as marital or separate property is error. See Girton v. Girton, 4th Dist. Athens No. 08CA30,
                                                  3


2009-Ohio-4458, ¶ 8. In this case, the trial court determined that Mr. Lee wrongfully disposed of

certain items of property without first classifying whether those items were martial or separate

property and despite the fact that the record contains conflicting evidence on this point. Mr.

Lee’s first assignment of error is sustained on that basis.

                               ASSIGNMENT OF ERROR NO. 6

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ENTERED
       JUDGMENT ORDERING HUSBAND TO REIMBURSE CHRISTOPHER
       COLLIER FOR THE PURCHASE PRICE OF THE GTO, WHERE NO
       DEMAND WAS MADE BY COLLIER.

       {¶6}    Mr. Lee’s sixth assignment of error argues that the trial court erred by requiring

him to refund the purchase price of a vehicle to the purchaser as a consequence of fraudulent

conveyance. This Court has sustained Mr. Lee’s first assignment of error with respect to the

vehicle at issue, and Mr. Lee’s sixth assignment of error is, therefore, moot. See App.R.

12(A)(1)(a).

                               ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       ORDERED HUSBAND TO PAY SPOUSAL SUPPORT TO WIFE IN THE
       AMOUNT OF $1,500.00 PER MONTH, FOR 60 MONTHS, PLUS
       POUNDAGE,   WHERE   THE   AMOUNT    OF   SUPPORT   WAS
       UNREASONABLE.

       {¶7}    Mr. Lee’s second assignment of error argues that the trial court’s spousal support

determination reflects an abuse of discretion. Within this assignment of error, he has argued,

among other things, that the trial court’s calculation of his income is against the manifest weight

of the evidence. This Court agrees.

       {¶8}    As a general rule, a spousal support award is reviewed for an abuse of discretion.

Hirt v. Hirt, 9th Dist. Medina No. 03CA0110-M, 2004-Ohio-4318, ¶ 8, citing Schindler v.

Schindler, 9th Dist. Summit No. 18243, 1998 Ohio App. LEXIS 263, *20-21. In this case,
                                                 4


however, Mr. Lee’s second assignment of error challenges the trial court’s finding that his

income for purposes of R.C. 3105.18 should include $20,000 for side jobs based on the evidence

presented at the hearing. As such, the substance of his assignment of error argues that this

finding is against the manifest weight of the evidence. See Walters v. Walters, 9th Dist. Medina

No. 12CA0017-M, 2013-Ohio-636, ¶ 7. When the weight of the evidence is challenged in a civil

case, this Court “weighs the evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be

reversed and a new trial ordered.” (Alterations in original.) Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th

Dist.2001).

       {¶9}    A trial court must consider the factors set forth in R.C. 3105.18(C)(1)(a)-(n) “[i]n

determining whether spousal support is appropriate and reasonable,” and in determining the

nature, amount, terms, and duration of a spousal support payment. R.C. 3105.18(C)(1). These

factors include “[t]he income of the parties, from all sources” and “[t]he relative earning abilities

of the parties[.]” R.C. 3105.18(C)(1)(a) and (b). With respect to the earning abilities of the

parties, this Court has noted that “[t]he end result is * * * to consider and weigh the spouses’

relative earning abilities along with the other factors in arriving at reasonable spousal support

both as to amount and term.” Collins v. Collins, 9th Dist. Wayne No. 10CA0004, 2011-Ohio-

2087, ¶ 19.

       {¶10} As an initial matter, this Court notes that Ms. Lee did not file an appellate brief.

Under App.R. 18(C), therefore, this Court may “accept [Mr. Lee’s] statement of the facts and

issues as correct and reverse the judgment if [his] brief reasonably appears to sustain such
                                                 5


action.” See also Kish v. Kish, 9th Dist. Lorain No. 12CA010185, 2012-Ohio-5430, ¶ 8, citing

Bank of New York v. Smith, 9th Dist. Summit No. 21534, 2003 Ohio 4633, ¶ 2.

       {¶11} The trial court concluded that, for purposes of determining the level of spousal

support, Mr. Lee’s annual income consisted of $29,000 net income from his flooring business

plus $20,000 reflecting “side jobs” that occur on a regular basis. Mr. Lee argues that the trial

court’s inclusion of this $20,000 attributable to side jobs is against the manifest weight of the

evidence. According to the statement of facts in his appellate brief, Mr. Lee testified that for the

years 2012 and 2013, his net income from his business was $28,062.88 and $29,908.00,

respectively. He acknowledged that he took in gross income of $28,000 for a full-time, three-

month job in 2008. Mr. Lee did not characterize this work as a side job. He also testified that he

grossed $12,000 for a single side job in 2011. Mr. Lee notes that Ms. Lee did testify about both

the 2008 and the 2011 work, but he argues that although Ms. Lee maintained the couple’s

financial records until 2011, she did not substantiate her claim that Mr. Lee took in $15,000 to

$20,000 in additional work on an annual basis.

       {¶12} Although Mr. Lee’s statement of the facts would reasonably sustain a reversal on

this basis, this Court has also reviewed the extensive record on appeal and concludes that the trial

court’s decision in this respect is against the manifest weight of the evidence. In doing so, this

Court is compelled to observe that much of the testimony at trial—elicited by counsel for both

parties and permitted by the trial court—was at best irrelevant to the matters at hand and, at

worst, inappropriate in substance and tone.

       {¶13} To the extent that the record bears on the matter at hand, however, Mr. Lee’s

statement of facts is also supported by the record. Ms. Lee testified that Mr. Lee received

income from the two side jobs in 2008 and 2011 that were also the subject of Mr. Lee’s
                                                 6


testimony. Although Ms. Lee confirmed that she managed the couple’s finances, she did not

identify any other side jobs that Mr. Lee worked and did not introduce any supporting

documentation, but stated her belief that he earned $15,000 to $20,000 on side jobs every year.

       {¶14} On the other hand, Mr. Lee testified that significant side jobs are “slim and none.”

He introduced financial records that verified the 2011 job and reflected a corresponding increase

in income. Mr. Lee also testified that the 2008 job was not a side job at all, but was his full-time

work for a three-month period. He also did not identify any other jobs in addition to his regular

work. Mr. Lee rejected Ms. Lee’s supposition that he earned an additional $15,000 to $20,000

per year; he also testified that an estimate of $5,000 to $10,000 per year was “[a]bsolutely not” a

reasonable approximation. He estimated that he may earn approximately $1,000 per year in side

jobs. Three contractors who perform work with Mr. Lee testified: one stated that he had done “a

few” side jobs, and another testified that the source of Mr. Lee’s jobs varied. Neither offered

further testimony about the nature of the work that they did for Mr. Lee, the degree to which the

work was side work on his part, or the monetary value of any such work.

       {¶15} Despite the disparity of this testimony, the trial court accepted Ms. Lee’s

unsubstantiated belief that Mr. Lee earns an additional $15,000 to $20,000 per year because it

was “credible.” This Court acknowledges the generally accepted principle that a trier of fact is

in the best position to determine the credibility of witnesses. Nonetheless, considering the

credibility of witnesses and resolving conflicts in the evidence of record is part and parcel of this

Court’s review when an appellant maintains that a judgment is contrary to the weight of the

evidence. See Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, at ¶ 20. Having reviewed the

record and considered the credibility of the witnesses—and viewing these determinations in the
                                                7


entire context of the record on appeal—this Court concludes that this is the exceptional case in

which a reversal based on the weight of the evidence is warranted.

       {¶16} Mr. Lee’s second assignment of error is sustained.

                              ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED WHEN IT FAILED TO INCLUDE THE
       AMOUNT OF SPOUSAL SUPPORT ORDERED TO BE PAID BY HUSBAND
       TO WIFE AS INCOME TO WIFE AND INCLUDED NON-RECURRING
       INCOME FOR HUSBAND AS INCOME TO HUSBAND, ON THE CHILD
       SUPPORT WORKSHEET.

                              ASSIGNMENT OF ERROR NO. 5

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       DEVIATED FROM THE AMOUNT OF CHILD SUPPORT PAYABLE
       UNDER THE CHILD SUPPORT WORKSHEET TO ZERO, WHERE THE
       TRIAL COURT FAILED TO ENTER FINDINGS INDICATING HOW IT WAS
       NOT IN THE BEST [INTEREST] OF THE CHILD FOR SUPPORT TO BE
       PAID.

       {¶17} Mr. Lee’s third and fifth assignments of error challenge aspects of the trial court’s

determination of child support. “In determining the appropriate level of child support, a trial

court must calculate the gross income of the parents.” Bajzer v. Bajzer, 9th Dist. Summit No.

25635, 2012-Ohio-252, ¶ 11, citing R.C. 3119.05. “Gross income” includes “the total of all

earned and unearned income from all sources during a calendar year[.]” R.C. 3119.01(C)(7).

Because this Court has determined that the trial court’s calculation of Mr. Lee’s income is

against the manifest weight of the evidence in connection with his second assignment of error,

his third and fifth assignments of error are moot. See App.R. 12(A)(1)(c).

                              ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, WHEN IT
       ENTERED JUDGMENT IN THE AMOUNT OF $32,000.00 AS ARREARAGE
       IN HUSBAND’S OBLIGATION TO PAY TEMPORARY SPOUSAL
       SUPPORT, WHERE THERE WAS NO EVIDENCE TO SUPPORT THE
       JUDGMENT.
                                               8


       {¶18} Mr. Lee’s fourth assignment of error is that the trial court’s decision to enter a

judgment for an arrearage attributable to failure to pay temporary spousal support between the

conclusion of trial and entry of the divorce decree is supported by insufficient evidence or is

against the manifest weight of the evidence.

       {¶19} When an appellant challenges the evidence supporting the amount of a judgment

for arrearage, this Court considers whether the trial court’s decision is supported by sufficient

evidence or conforms to the weight of the evidence, as appropriate under the circumstances. See

Shih v. Byron, 9th Dist. Summit No. 25319, 2011-Ohio-2766, ¶ 33. “A civil judgment is based

upon sufficient evidence if it is supported by some competent, credible evidence going to all the

essential elements of the case.” Brown v. Harrison, 9th Dist. Summit No. 23108, 2006-Ohio-

6231, ¶ 5, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

       {¶20} The trial in this case was conducted on seven days between March 4, 2014, and

May 14, 2014. More than two years passed before the trial court issued a judgment in the case,

and during that interval, the trial court did not consider any further motions related to the

arrearage or hear any additional evidence. Consequently, as Mr. Lee notes, the trial court had no

evidence before it relating to the two-year period between May 14, 2014, and the trial court’s

initial entry of judgment. Nonetheless, the trial court concluded that an arrearage “may [have]

increased since the final trial date at $825.00 per month over the past twenty-four (24) months

equaling $19,800” and entered a total judgment in favor of Ms. Lee on the arrearage in the

amount of $32,800, to be paid in monthly payments of $200. In other words, the trial court

presumed that because Mr. Lee had been in arrears in the past that he was also in arrears for the

two years since the date of trial and entered judgment on that basis alone. There was no
                                                  9


evidence establishing that such an arrearage existed, so the trial court’s decision in this respect is

based on insufficient evidence.

       {¶21} Mr. Lee’s fourth assignment of error is sustained.

                               ASSIGNMENT OF ERROR NO. 7

       THE TRIAL COURT ERRED IN VIOLATION OF ORC 3105.73, WHEN IT
       ENTERED JUDGMENT PROSPECTIVELY FOR ATTORNEY FEES AND
       LITIGATION EXPENSES TO THE PREVAILING PARTY IN A
       POSTJUDGMENT PROCEEDING TO “EFFECTUATE PERFORMANCE OF
       ANY PROVISION OF” THE JUDGMENT ENTRY.

       {¶22} Mr. Lee’s final assignment of error argues that the trial court erred by ordering

attorney fees and expenses prospectively.

       {¶23} “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.” R.C. 3105.73(A). See

also R.C. 3105.73(B). Although Mr. Lee’s assignment of error refers to the award of attorney’s

fees and litigation expenses as an award to the “prevailing party,” this Court notes that pursuant

to R.C. 3105.73, such an award can be made to either party as a matter of equity. R.C.

3105.73(A)/(B). The determination of whether such an award is equitable is based on all

relevant factors, including “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.” R.C. 3105.73(A). See also R.C. 3105.73(B). In light of this Court’s disposition of

Mr. Lee’s first, second, and fourth assignments of error, his seventh assignment of error is

premature.

                                                 III.
                                                10


       {¶24} Mr. Lee’s first and second assignments of error are sustained. His third,

fifth, and sixth assignments of error are moot.           His seventh assignment of error is

premature. In light of the numerous errors noted above and the record in this case, as

discussed in this Court’s resolution of Mr. Lee’s second assignment of error, a remand for

a new trial is appropriate under the unique circumstances in this case. See Eastley, 132

Ohio St.3d 328, 2012-Ohio-2179, at 20.

                                                                              Judgment reversed
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.



                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT
                                         11


TEODOSIO, P. J.
CARR, J.
CONCUR.


APPEARANCES:

HOLLACE B. WEIZEL, Attorney at Law, for Appellant.

JAMES V. BARILLA, Attorney at Law, for Appellee.
