[Cite as Hawkins v. Hawkins, 2017-Ohio-4201.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    CHAMPAIGN COUNTY

 DONNA HAWKINS                                       :
                                                     :
         Plaintiff-Appellee                          :   C.A. CASE NO. 2016-CA-26
                                                     :
 v.                                                  :   T.C. NO. 2013-DR-190
                                                     :
 GREGORY D. HAWKINS                                  :   (Civil Appeal from Common Pleas
                                                     :   Court, Division of Domestic Relations)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                            OPINION

                             Rendered on the 9th day of June, 2017.

                                                ...........

RONALD C. TOMPKINS, Atty. Reg. No. 0030007, 121 S. Main Street, Urbana, Ohio
43078
      Attorney for Plaintiff-Appellee

JOHN C.A. JUERGENS, Atty. Reg. No. 0037120, 1504 N. Limestone Street, Springfield,
Ohio 45503
      Attorney for Defendant-Appellant

                                           .............

DONOVAN, J.
                                                                                   -2-




       {¶ 1} Defendant-appellant Gregory D. Hawkins appeals from a decision of the

Champaign County Court of Common Pleas, Domestic Relations Division, granting

him and plaintiff-appellee Donna Hawkins “Judgment Order and Decree of Divorce”

on September 20, 2016. Gregory filed a timely notice of appeal with this Court on

October 20, 2016.

       {¶ 2} Gregory and Donna were originally married in 1976, but divorced four

years later in 1980.      Although they were divorced, the parties continued to

cohabitate with one another for the next twenty-two years. In 2002, the parties

remarried in Las Vegas, Nevada. We note that two children were born as a result

of the parties’ union, but both children were emancipated at the time that the instant

litigation occurred.

       {¶ 3} The parties are owners of real property located at the following

addresses: 2529 St. Rt. 245, Cable, Ohio (the marital residence), and a 5.708 acre

lot located next to the marital residence. The parties purchased the properties in

1995 and 1998, respectively, prior to their remarriage in 2002. Also at issue was

Gregory’s business, Pro-Rite Mufflers, located at 396 E. 9th Street in Marysville,

Ohio. The evidence established that Gregory opened his business in 1988, but did

not purchase the property on which the business is situated in Marysville until during

the parties’ second marriage. Both parties’ names are on the deed to the business

property in Marysville.   The record established that although the business was

started by Gregory, it later became a marital asset as a result of the actions taken

by the parties.
                                                                                    -3-


       {¶ 4} On July 25, 2013, Donna filed a complaint for divorce. On September

23, 2013, Gregory filed his answer and counterclaim. Thereafter, Donna filed her

answer to Gregory’s counterclaim on September 27, 2013.            Both parties hired

appraisers in order to valuate the marital assets for distribution, specifically the

muffler business. Gregory hired Heather Deskins, d/b/a P.D. Eye Forensics, to

appraise the business.     Deskins testified that she calculated the value of the

business to be $0.00 (zero dollars). Donna hired an individual named Bill Ditty to

appraise the business. Ditty testified that he calculated the value of the business

to be approximately $86,000.00.

       {¶ 5} We also note that evidence was adduced regarding the parties’ marital

debts, consisting primarily of tax liens levied because Gregory failed to file his

business taxes. From 2002 until 2007, the parties filed their taxes jointly, but the

record establishes that they did not file their federal taxes in 2005 and therefore owe

approximately $19,000.00 for that year. At the time of final hearing, Donna was

employed as a mail carrier for the United States Postal Service and her wages were

being garnished by the federal government for her share of the unpaid taxes from

2005. In 2008, the parties separated, and Gregory separately owes federal taxes

from 2008 until the present. Donna’s wages were also being garnished for the

years of 2008 through 2014 when she refused to file jointly with Gregory.

       {¶ 6} Furthermore, evidence was adduced which established that the marital

residence was encumbered by two mortgages. Gregory paid off the first mortgage

in the amount of $60,203.53 between the years 2008 and 2013. However, at the

time of the final divorce hearing, there was a second mortgage on the marital
                                                                                  -4-


property in the amount $73,142.82. It is undisputed that the funds from the second

mortgage were used to purchase the property where Gregory’s muffler business is

currently situated. The evidence also established that there were tax liens on the

marital residence in the amount of approximately $182,000.00 from Gregory’s failure

to pay his income taxes from 2008 until the present. The record establishes that

Gregory made some payments towards the liens while the parties were separated.

It is also important to note that Gregory lived alone in the marital residence from

2010 until the date of the final divorce hearing.

       {¶ 7} Evidentiary hearings were held before the trial court on July 10, 2014,

August 4, 2014, and June 23, 2015. As previously stated, on September 20, 2016,

the trial court issued the parties’ final judgment and decree of divorce in which it

ordered that the parties’ marital residence be sold, and the profits from the sale to

first be used to pay for the parties’ second mortgage and tax liens, with any

remaining amount to be distributed equally between Gregory and Donna. Donna

was awarded the 5.708 acre lot located next to the parties’ former marital residence.

Donna was also awarded her retirement pension free and clear of any claim of

Gregory. Gregory was awarded the muffler business, as well as the building and

real property upon which the business is located. The remaining marital property

was divided equitably amongst the parties. We note that neither party requested

nor received any spousal support award.

       {¶ 8} It is from this judgment that Gregory now appeals.

       {¶ 9} Gregory’s first assignment of error is as follows:

       {¶ 10} “THE TRIAL COURT ERRED TO FIND THAT THE APPELLEE’S
                                                                                      -5-


EXPERT WITNESS WAS MORE CREDIBLE THAN THE APPELLANT’S.”

       {¶ 11} In his first assignment of error, Gregory contends that Deskins

provided a more credible appraisal regarding the value of his muffler business than

the appraisal provided by Ditty, Donna’s appraiser. Specifically, Gregory argues

that the trial court gave undue weight to Ditty’s appraisal. Gregory also asserts that

Ditty was not qualified to appraise the value of the muffler business.

       {¶ 12} “In reviewing the trial court's judgment, it is well established that every

reasonable presumption must be made in favor of the judgment and findings of

fact.” Shemo v. Mayfield Hts., 88 Ohio St.3d 7, 10, 722 N.E.2d 1018 (2000). An

appellate court must give deference to a trial court's findings because the trial court

is “best able to view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered

testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984). Any issues relating to witness credibility and/or the weight to be given to

their testimony is the function of the trier of fact. Bechtol v. Bechtol, 49 Ohio St.3d

21, 23, 550 N.E.2d 178 (1990); Seasons Coal at 80, 461 N.E.2d 1273. Thus, a

judgment which is supported by competent, credible evidence will not be reversed

on appeal. C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d

578 (1978).

       {¶ 13} Because of its discretion, “[a] trial court has some latitude in the means

it uses to determine the value of a marital asset.” Kevdzija v. Kevdzija, 166 Ohio

App.3d 276, 850 N.E.2d 734, 2006-Ohio-1723, ¶ 23 (8th Dist.). “When valuing a

marital asset, a trial court is neither required to use a particular valuation method nor
                                                                                   -6-

precluded from using any method.” James v. James, 101 Ohio App.3d 668, 661, 656

N.E.2d 399 (2d Dist.1995).

       {¶ 14} During the course of the trial, both Gregory and Donna introduced

testimony from experts regarding the valuation of the muffler business. Each expert

also offered a report of his or her findings, which contained criticisms of the other

expert’s appraisal. Gregory's expert, Deskins, based her appraisal on the “income

and asset” valuation method. According to Deskins, the muffler business was worth

$0.00 under the “income and asset” approach. In her valuation, Deskins imputed a

yearly income to Gregory as CEO of the business in the amount of $70,000.00 per

year. Deskins also factored the cost of the mortgage on the building where the

muffler business was located into her analysis.

       {¶ 15} Conversely, Donna's expert, Ditty, made his valuation based on a

normalized profit approach. Under the profit approach, Ditty testified the business

is worth $86,000.00. Ditty also imputed a yearly income to Gregory as CEO of the

business in the amount of $46,000.00 per year. Ditty testified that he did not factor

the cost of the building where the muffler business was located into his analysis

because the building was not owned by the company.              Rather, the records

established that the building was jointly owned by both Gregory and Donna. On

that basis, Ditty testified that he did not believe the monthly mortgage cost should

factor into the overall valuation of the business because the building was marital

property.

       {¶ 16} Initially, we note that both Deskins and Ditty were qualified as experts

in the field of business valuation. Each appraiser testified extensively regarding the
                                                                                     -7-


method they utilized in order to provide a valuation for Gregory’s muffler business.

More importantly, however, there is no indication in the final judgment and decree of

divorce that the trial court gave undue weight to the appraisal provided by Ditty. It

is clear, however, that the trial court did not believe that Gregory’s muffler business,

from which he had clearly been profiting in the years since the parties had separated,

was, according to his expert, worth nothing. The evidence established that the

muffler business was marital property from which Gregory had been receiving at

least $46,000.00 per year in compensation according to Ditty.             Significantly,

between 2008 and the date of the final hearing in 2014, the parties had been

separated, and Donna had not been receiving any compensation or profits from the

business in which she had an ownership interest.

       {¶ 17} Nevertheless, in an effort to equalize distribution of the marital

property, Gregory was awarded the muffler business (building and land included)

free and clear of any claim of Donna. In addition to his salary from the muffler

business of (at least) $46,000.00, the tractor worth $20,000.00, and a lawn mower

worth $1,000.00, Gregory received approximately $67,000.00 as a result of the

divorce, even accepting Deskins’ business appraisal of $0.00. Donna received

approximately $66,000.00 as a result of the divorce, including an additional

$30,000.00 she received as a result of Gregory paying off the first mortgage on the

marital residence between 2008 and 2014 in the amount of $60,000.00. Upon

review, we find that the record establishes that the trial court did not give undue

weight to the business appraisal of Donna’s expert, Ditty, over that of Deskins,

Gregory’s expert. In fact, it actually inured to the benefit of Gregory that the trial
                                                                                     -8-


court relied on Ditty’s estimation of his yearly salary at $46,000.00, rather than

Deskins’ estimation of $70,000.00, in order to equalize distribution of the marital

assets.

       {¶ 18} Gregory’s first assignment of error is overruled.

       {¶ 19} Because     they   are   interrelated,   Gregory’s   second   and    third

assignments of error will be discussed together as follows:

       {¶ 20} “THE TRIAL COURT ERRED TO MAKE AN INEQUITABLE,

UNEQUAL DISTRIBUTION OF THE PARTIES['] PROPERTY WHEN IT FAILED TO

VALUE THE PARTIES’ REAL AND PERSONAL PROPERTY IN RESPECT TO

THEIR DEBT RATIO.”

       {¶ 21} “THE TRIAL COURT ERRED WHEN IT FAILED TO CREDIT THE

APPELLANT THE FIRST MORTGAGE PAYOFF AMOUNT AND THEN ORDERED

THE SALE OF THE MARITAL PROPERTY SITUATED AT 2529 STATE ROUTE

245, IN CABLE, OHIO.”

       {¶ 22} In his second assignment, Gregory argues that the trial court made an

inequitable distribution of marital property in light of the expert testimony of Deskins

regarding the parties’ debt ratio. In his third assignment, Gregory argues that the

trial court erred when it ordered the sale of the marital residence after he had paid

off the first mortgage on the property.

       {¶ 23} R.C. 3105.171(B) requires that marital property be divided equitably,

and an equal division is presumed to be equitable. “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
                                                                                     -9-


equitable.” R.C. 3105.171(C)(1). “Equality” is the “starting point” for dividing any

marital assets and debts; however, the court may divide the marital assets and debt

in some other fashion if it finds that an equal division would be inequitable. Kraft v.

Kraft, 2d Dist. Montgomery No. 25982, 2014–Ohio–4852, ¶ 62, citing Arnett v.

Arnett, 2d Dist. Montgomery No. 20332, 2004–Ohio–5274, ¶ 8; see also Neville v.

Neville, 99 Ohio St.3d 275, 2003–Ohio–3624, 791 N.E.2d 434, ¶ 5. In order to

determine what is equitable, a trial court must consider the factors set forth in R.C.

3105.171(F).

       {¶ 24} Because a trial court must consider the assets and liabilities of both

parties, dividing marital property requires the trial court to also divide marital debt.

See R.C. 3105.171(F)(2). Moreover, a reviewing court should not review discrete

aspects of the property division out of the context of the entire award, but should

consider the distribution within the context of the entire award. James, 101 Ohio

App.3d 668, 680, 656 N.E.2d 399 (2d Dist.1995).

       {¶ 25} The trial court has broad discretion to divide property in domestic

relations cases, and its decision will not be disturbed on appeal absent

unreasonable, arbitrary, or unconscionable conduct. Middendorf v. Middendorf, 82

Ohio St.3d 397, 401, 696 N.E.2d 575 (1998) (citations omitted); Majeski v.

Majeski, 2d Dist. Montgomery No. 24668, 2012–Ohio–731, ¶ 11. “If there is some

competent, credible evidence to support the trial court's decision, there is no abuse

of discretion.” Middendorf at 401. The question before this court is not whether the

trial court's division of marital assets was the only way or even the best way to divide

the parties' assets; rather, we must determine whether the division was inequitable
                                                                                     -10-


as a matter of law or whether the specific method of division chosen by the trial court

demonstrated an abuse of discretion.

       {¶ 26} It is undisputed that the entire debt load of the parties consisted of tax

liens on earnings from Gregory’s muffler business and the second mortgage on the

martial residence.      Specifically, the tax liens (2005, 2008-2014) totaled

$100,500.00. The second mortgage totaled $73,142.82. Thus, the parties’ debt

load at the time of the final hearing was $173,642.82. In order to pay off the entire

debt, the trial court ordered the sale of the marital residence, and any sum remaining

is to be split equally between the parties. Simply put, by ordering the sale of the

marital residence, the trial court provided a reasonable solution by which the parties

could pay off all of their tax and mortgage debts, thereby exiting the marriage

relatively unencumbered.

       {¶ 27} As her portion of the divorce, Donna received her retirement fund

valued at approximately $6,000.00 (as of 2012), the vacant lot located next to the

marital residence valued at approximately $30,000.00, and personal property valued

at approximately $1,100.00. Gregory contends that Donna effectively received an

additional $30,000.00 when he paid off the first mortgage on the marital residence

between 2008 and 2014 in the amount of $60,000.00.

       {¶ 28} For his part of the distribution, Gregory received the muffler business

appraised at somewhere between $0.00 and $86,000.00, a tractor worth

approximately $20,000.00, and a lawn mower worth approximately $1,000.00.

Gregory argues that since his business has no value (based upon Deskins’

appraisal), he only received $21,000.00 in the distribution while Donna received
                                                                                      -11-


approximately $66,000.00.        Gregory therefore asserts that the trial court’s

distribution of the marital property was clearly inequitable.

       {¶ 29} Gregory, however, fails to take into account that even if the muffler

business is worth nothing, Ditty testified that he has been receiving at least

$46,000.00 per year in compensation from his management of said business. The

evidence further established that the muffler business was marital property.

Between 2008 and the date of the final hearing in 2014, the parties had been

separated, and Donna had not been receiving any compensation or profits from the

business in which she had an ownership interest. In addition to his salary from the

muffler business of $46,000.00, the tractor worth $20,000.00, and a lawn mower

worth $1,000.00, Gregory received approximately $67,000.00 as a result of the

divorce, even accepting Deskins’ business appraisal of $0.00. Donna received

approximately $66,000.00 as a result of the divorce, including the $30,000.00 she

received as a result of Gregory paying off the first mortgage on the marital residence.

       {¶ 30} The trial court's ruling allowed the business to remain intact, and

allowed Gregory to maintain his business as he had been operating it, while giving

Donna financial credit for her marital share of the property, as well as the first

mortgage paid off solely by Gregory. We also note that neither party requested nor

was awarded spousal support. The trial court’s equitable distribution of marital

property therefore allowed the parties to leave the marriage on even footing.

Accordingly, we find that the trial court did not abuse its discretion in distributing the

parties' assets as it did.

       {¶ 31} Gregory’s second and third assignments of error are overruled.
                                                                                      -12-




            {¶ 32} All three of Gregory’s assignments of error having been overruled, the

     judgment of the trial court is affirmed.

                                          .............

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Ronald C. Tompkins
John C.A. Juergens
Hon. Lori L. Reisinger
