[Cite as Kautz v. Kautz, 2011-Ohio-6547.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

FLORENCE KAUTZ                                   JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                      Hon. John W. Wise, J.
                                                 Hon. Patricia A. Delaney, J.
v.
                                                 Case No. 2011CA00034
WILLIAM KAUTZ

        Defendant-Appellee                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Family Court Division,
                                              Case No. 2010DR0210


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       December 12, 2011


APPEARANCES:


For Plaintiff-Appellant                       For Defendant-Appellee


DAVID S. AKE                                  STANLEY R. RUBIN
101 Central Plaza, South, Ste. 600            437 Market Avenue North
Canton, Ohio 44702                            Canton, Ohio 44702
Stark County, Case No. 2011CA00034                                                     2

Hoffman, P.J.


      {¶ 1} Plaintiff-appellant Florence Kautz appeals the January 27, 2011 Judgment

Entry entered by the Stark County Court of Common Pleas, Family Court Division,

which overruled her objections to the magistrate’s December 13, 2010 Final Entry –

Decree of Divorce, and approved and adopted said entry as order of the court.

Defendant-appellee is William Kautz.

                          STATEMENT OF THE FACTS AND CASE

      {¶ 2} Appellant and Appellee were married on March 1, 1974. Two children

were born as issue of said union, both of whom are now emancipated. Appellant filed a

Complaint for Divorce on February 23, 2010, asserting as grounds, gross neglect of

duty, extreme cruelty, and incompatibility.      Appellee filed a timely Answer and

Counterclaim. Appellant filed her Answer to Appellee’s Counterclaim on May 7, 2010.

The parties stipulated they were incompatible, but contested spousal support and the

division of property. The matter came on for final hearing before the magistrate on

November 17, and 19, 2010.

      {¶ 3} At the time of the hearing, Appellant was 55 years old, and had a high

school diploma. Appellant worked for GE Capital for 16 years, until 2005, when she

voluntarily quit because she was “afraid [she] was going to be fired” and her pride would

not allow such to occur. Appellant earned $12/hour at GE Capital, and in 2002, earned

in excess of $31,000. Appellant’s salary in 2005, was $25,392. Appellant has a pension

from GE Capital, but “was not aware” of its value and offered no evidence of value at

the hearing. Appellant had a problem with alcohol and was committed to rehab twice

during the course of the marriage. Currently, Appellant cleans houses, working for six or
Stark County, Case No. 2011CA00034                                                       3


seven clients. Appellant stated she originally charged $15/hour, but now charges by the

job.

       {¶ 4} Appellee paid all of the household expenses, including the mortgage,

utilities, and car loans. Appellant was free to use her income for whatever she desired.

During the marriage, Appellant ran up credit card debt on four occasions. Appellee paid

off the debt on three occasions.      At the time of the hearing, Appellee owed over

$34,000, in revolving debt, which was incurred as the result of her purchasing non-

necessities, including furniture, a grandfather clock, a desk, curtains, rugs, and other

decorative items for the home. Appellant also incurred charges against the line of equity

on the marital residence, and sold gold and jewelry, in violation of the restraining order.

Appellant drives a 2004 Jeep Liberty, which is valued at $6,298. The vehicle is paid off.

       {¶ 5} Appellee was 57 years old at the time of the hearing. He earned a GED

and served in the United States military. Appellee is employed by Schory Builders as a

truck driver. He has worked for the company for 32 years, and earns $15.60/hour with

occasional overtime. In 2009, Appellee earned over $51,000, which included overtime.

During 2010, Appellee was unable to work as much overtime due to the economy, and

he expected to make approximately $32,000, as his base salary plus some overtime, for

a total income of $38,948. Appellee drives a 2004 Corvette, which is valued at $16,340.

Appellee still owes $10,148, on the vehicle. Appellee has a pension through his

employer, but neither he nor Appellant presented evidence as to its value.

       {¶ 6} The magistrate issued a Final Entry – Decree of Divorce on December 13,

2010. The magistrate ordered Appellee to pay Appellant spousal support in the amount

of $350/month for seven years. The magistrate found Appellant had committed “various
Stark County, Case No. 2011CA00034                                                         4


acts of financial misconduct” by dissipating assets, concealing debts, and by selling

jewelry in violation of the restraining order. As a result, the magistrate concluded to

achieve an equitable division of property each party would be responsible for his/her

own credit card debts, and each party would be allowed to keep his/her own retirement

account, noting, “No evidence was presented as to the value of the . . . accounts.”

       {¶ 7} Appellant filed timely objections to the magistrate’s decision. Specifically,

Appellant objected to the magistrate’s finding she had committed financial misconduct;

to the magistrate’s failure to value and equally divide the parties’ retirement benefits; the

amount and duration of spousal support; and the magistrate’s ordering her to pay the

majority of the parties’ marital debt.

       {¶ 8} Via Judgment Entry filed January 27, 2011, the trial court overruled

Appellant’s objections, and approved and adopted the magistrate’s decision as order of

the court.

       {¶ 9} It is from this judgment entry Appellant appeals, raising the following

assignments of error:

       {¶ 10} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING EACH

PARTY THEIR OWN PENSION BENEFITS WITHOUT PLACING A VALUE ON THE

BENEFITS IT AWARDED.

       {¶ 11} “II. THE TRIAL COURT ERRED IN FAILING TO AWARD SUFFICIENT

SPOUSAL SUPPORT TO THE APPELLANT.

       {¶ 12} “III. THE TRIAL COURT ERRED IN FINDING THE APPELLANT HAD

COMMITTED FINANACIAL MISCONDUCT.”
Stark County, Case No. 2011CA00034                                                       5


                                                I

       {¶ 13} In her first assignment of error, Appellant contends the trial court erred in

awarding each party his/her own pension benefits without placing a value on those

benefits.

       {¶ 14} A trial court has broad discretion in making divisions of property in

domestic cases. Middendorf v. Middendorf (1998), 82 Ohio St.3d 397, 401, 696 N.E.2d

575 citing Berish v. Berish (1982), 69 Ohio St.2d 318, 432 N.E.2d 183. In order to make

an equitable division of property, the trial court should first determine the value of the

marital assets. Eisler v. Eisler (1985), 24 Ohio App.3d 151, 152, 493 N.E.2d 975. In

performing this function, the trial court has broad discretion to develop some measure of

value. Berish, supra. “The valuation of marital assets is typically a factual issue that is

left to the discretion of the trial court.” Roberts v. Roberts, 10th Dist. No. 08AP–27,

2008–Ohio–6121, ¶ 18 citing Berish, supra.

       {¶ 15} The parties herein did not present any evidence as to the valuation of

either of their pension benefits to allow the trial court to make an equitable division of

the property between the parties. In Roberts v. Roberts, Franklin App. No. 08AP–27,

2008–Ohio–6121, the Tenth District Court of Appeal held:

       {¶ 16} “if a party fails to present sufficient evidence of valuation, that party has

presumptively waived the right to appeal the distribution of those assets because the

trial court can only make decisions based on the evidence presented[.]” Id. at ¶ 22,

citing Hruby v. Hruby (June 11, 1997), Columbiana App. No. 93–C–9. “[W]hen a party

fails to present evidence as to the value of an item, it is akin to invited error and the

party has waived the right to appeal in regard to that asset.” Roberts, supra at ¶ 21.
Stark County, Case No. 2011CA00034                                                       6


        {¶ 17} We find this reasoning persuasive. The trial transcript shows the parties

presented no evidence at all regarding the pension benefits. We find no reversible error

on the trial court's division of the pension benefits based on the lack of evidence before

it. Appellant failed to present sufficient evidence of valuation; therefore, has waived her

right to appeal the division of the benefits. Appellant’s argument is further diminished

because of her own financial misconduct which the trial court had the right to consider

when dividing the marital assets.

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

                                                  II

        {¶ 19} In her second assignment of error, Appellant challenges the trial court’s

spousal support award. Appellant maintains the trial court determined the award based

upon the relative earning abilities of the parties and such is not supported by the

evidence.

        {¶ 20} This Court reviews the trial court's decision relative to spousal support

under an abuse of discretion standard. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67,

554 N.E.2d 83. In order to find an abuse of discretion, we must determine 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.

        {¶ 21} R.C. 3105.18(C)(1)(a) thru (n) sets forth the factors a trial court must

consider in determining whether spousal support is appropriate and reasonable and in

determining the nature, amount, terms of payment, and duration of spousal support.

These factors include:
Stark County, Case No. 2011CA00034                                                             7


        {¶ 22} “(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;

        {¶ 23} “(b) The relative earning abilities of the parties;

        {¶ 24} “(c) The ages and the physical, mental, and emotional conditions of the

parties;

        {¶ 25} “(d) The retirement benefits of the parties;

        {¶ 26} “(e) The duration of the marriage;

        {¶ 27} “(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;

        {¶ 28} “(g) The standard of living of the parties established during the marriage;

        {¶ 29} “(h) The relative extent of education of the parties;

        {¶ 30} “(i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;

        {¶ 31} “ * * *;

        {¶ 32} “(l) The tax consequences, for each party, of an award of spousal support;

        {¶ 33} “ * * *;

        {¶ 34} “(n) Any other factor that the court expressly finds to be relevant and

equitable.”

        {¶ 35} In examining the magistrate's findings relative to spousal support as

adopted by the trial court, we find no abuse of discretion in the order of spousal support.

The magistrate considered the factors set forth in R.C. 3105.18 in determining the
Stark County, Case No. 2011CA00034                                                      8


amount of spousal support. The record reveals Appellant voluntarily quit a job in which

she was making $12/hour.       Appellant “replaced” that salary by cleaning houses at

$15/hour.     The trial court, nonetheless, computed Appellant’s income for spousal

support purposes using her most recent W-2 hourly rate of $12. The trial court used

Appellee’s most recent annual income of $32,448, for spousal support calculations.

The trial court noted Appellee’s income had declined as a result of the current housing

market.     The trial court ordered Appellee to pay Appellant $350/month as spousal

support. The amount equalized the parties’ incomes. We find no abuse of discretion.

       {¶ 36} Appellant’s second assignment of error is overruled.

                                                III

       {¶ 37} In her final assignment of error, Appellant asserts the trial court erred in

finding she had committed financial misconduct. Specifically, Appellant submits the

evidence presented at the final hearing did not support the trial court’s determinations

she had “dissipated assets of the parties”, “concealed debt”, “hid items that she bought

on credit”, and sold jewelry in violation of a restraining order. We disagree.

       {¶ 38} Pursuant to R.C. 3105.171(E)(3), “If a spouse has engaged in financial

misconduct, including, but not limited to, the dissipation, destruction, concealment, or

fraudulent disposition of assets, the court may compensate the offended spouse with a

distributive award or with a greater award of marital property.”

       {¶ 39} As the inclusion of the term “may” in R.C. 3105.171(E)(3) indicates, the

decision regarding whether to compensate a party for the financial misconduct of the

opposing party is discretionary with the trial court. Leister v. Leister (Oct. 23, 1998),

Delaware App. No. 97CA-F-07027, unreported. Therefore, a trial court's decision on this
Stark County, Case No. 2011CA00034                                                    9


issue will not be reversed on appeal absent a showing of an abuse of discretion; i.e. a

showing that the trial court's decision is arbitrary, unreasonable 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.

      {¶ 40} The evidence presented at the final hearing belies Appellant’s assertions.

Appellant answered affirmatively when asked if she sold jewelry in violation of the

restraining order. Appellee was unaware Appellant had the credit card bills mailed to

their daughter’s address, and as a result, Appellee knew nothing of the debt which

accumulated after 2002. Appellee could only recall two pieces of furniture Appellant

had purchased as part of the $50,000 in debt she accumulated prior to 2002. Appellant

claimed the debt arose out of her need to purchase household necessities, but

subsequently acknowledged she also purchased items for her granddaughter and

daughter.

      {¶ 41} Based upon the foregoing and the entire record in this matter, we find the

trial court did not abuse its discretion in finding Appellant had committed financial

misconduct.
Stark County, Case No. 2011CA00034                                                 10


      {¶ 42} Appellant’s third assignment of error is overruled.

      {¶ 43} The judgment of the trial court is affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ John W. Wise _____________________
                                             HON. JOHN W. WISE


                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY
Stark County, Case No. 2011CA00034                                                 11


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


FLORENCE KAUTZ                             :
                                           :
       Plaintiff-Appellant                 :
                                           :
v.                                         :        JUDGMENT ENTRY
                                           :
WILLIAM KAUTZ                              :
                                           :
       Defendant-Appellee                  :        Case No. 2011CA00034


       For the reasons stated in our accompanying Opinion, the judgment entry entered

by the Stark County Court of Common Pleas, Family Court Division, is affirmed. Costs

to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY
