[Cite as Harding v. Harding, 2016-Ohio-7028.]


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

CATHERINE IRENE HARDING                              C.A. No.      27464

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DOUGLAS PAUL HARDING, et al.                         COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   2012-03-0823

                                DECISION AND JOURNAL ENTRY

Dated: September 28, 2016



        CARR, Presiding Judge.

        {¶1}    Plaintiff-Appellant, Catherine Harding (“Wife”), appeals from the judgment of

the Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms.

                                                I.

        {¶2}    Wife and Defendant-Appellee, Douglas Harding (“Husband”), were married in

May 1987 and had three children during the course of their marriage. Throughout the marriage,

Husband and Wife both developed their own careers. Wife ultimately became the owner and

manager of a hair salon in Hudson. Meanwhile, Husband ultimately became the second largest

shareholder of The Robbins Company (“TRC”) while also acquiring interests in several affiliated

organizations. With his earnings, the parties were able to purchase the hair salon business for

Wife, as well as a one-third portion of the real estate holding company that owned the building in

which the salon was located. They also were able to enjoy a very comfortable standard of living

with their three children, all of whom are now adults.
                                                 2


       {¶3}    In March 2012, Wife filed a complaint for divorce against Husband and also

named as defendants numerous business entities in which either she, Husband, or both she and

Husband possessed an interest. Of particular concern to the instant appeal, Wife named as

defendants TRC, Robbins International, Inc. (“Robbins International”), Boretec Properties, Inc.

(“Boretec”), LDDJ, LLC (“LDDJ”), and Robbins Holdings, LLC (“Robbins Holdings”)

(collectively, “the Defendant Companies”). TRC is a privately owned, international corporation

that manufactures tunnel boring machinery. Robbins International is a separate corporation, but

one that TRC established for the purpose of conducting its sales so as to reap certain tax

advantages for itself and its shareholders. Meanwhile, Boretec, LDDJ, and Robbins Holdings

are all real estate investing companies from which TRC leases various buildings for its

operations. There is no dispute that Husband owns shares or units of interest in all five of the

foregoing companies.

       {¶4}    Husband answered Wife’s complaint for divorce and also filed a counterclaim for

divorce. Meanwhile, the Defendant Companies jointly filed an answer. Following a lengthy

period of discovery and motion practice, the matter went to trial. Husband and Wife largely

agreed on how to split their assets and Husband’s interests in Boretec, LDDJ, and Robbins

Holdings, but disagreed as to how to divide his shares and stock options in TRC, as well as

certain promissory notes that he received from TRC. The trial court heard significant valuation

testimony and evidence, but ultimately declined to value Husband’s interests in TRC. Instead, it

ordered an equal division of Husband’s interests, with Wife receiving one half of his shares,

stock options, and promissory notes. The court also divided the remainder of the parties’ assets

and liabilities and entered a judgment of divorce.
                                                 3


        {¶5}    Wife now appeals from the trial court’s judgment and raises five assignments of

error for our review. For ease of analysis, we combine several of the assignments of error.

                                                II.

                                  ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED WHEN IT DENIED WIFE’S MOTIONS TO
        COMPEL DISCOVERY FROM HUSBAND AND FROM HUSBAND’S
        COMPANIES.

        {¶6}    In her first assignment of error, Wife argues that the trial court erred by denying

her motions to compel the discovery of certain financial records from Husband and the

Defendant Companies. She argues that the court’s refusal to order Husband and the Defendant

Companies to provide her with the financial information she sought made her “unable to put

forth a strong claim at trial.”

        {¶7}    “[C]ourts have broad discretion over discovery matters.” State ex rel. Citizens for

Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, ¶ 18.

As such, this Court “reviews a trial court’s disposition of discovery matters for an abuse of

discretion.” Lampe v. Ford Motor Co., 9th Dist. Summit No. 19388, 2000 WL 59907, *3 (Jan.

19, 2000). An abuse of discretion implies that a trial court was unreasonable, arbitrary or

unconscionable in its judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). As a

reviewing court applying the abuse of discretion standard, we may not substitute our judgment

for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

        {¶8}    Wife filed several motions to compel in this matter. On February 15, 2013, she

filed a motion to compel Husband to “fully respond” to her interrogatories, requests for

admissions, and requests for the production of certain documents. She indicated that she found

Husband’s previous responses inadequate and alleged that he had failed to produce financial
                                               4


records that would allow her to value his interests in the Defendant Companies. Similarly, on

August 30, 2013, she filed a motion to compel the Defendant Companies to provide more

complete responses to her discovery requests. That same day, Wife filed a motion asking the

court to rule on her February 15th motion to compel Husband to respond to her requests. She

also later filed amendments to her memorandums in support of her motions to compel.

       {¶9}   According to Wife, the parties came before the court for a pretrial in September

2013 and, at that time, the court declined to rule on her outstanding motions to compel. She

avers that the court told her to limit her discovery request to ten items that Husband and/or the

Defendant Companies could readily produce so that the matter could proceed to trial as

scheduled. Yet, the record does not contain a transcript of the September 2013 pretrial or any

ruling from the court, limiting Wife’s discovery requests in the aforementioned manner. Even

assuming, as Wife suggests, that no court reporter was present at the September pretrial, Wife

had the ability to provide this Court with a statement of the evidence or proceedings if no

transcript was available. See App.R. 9(C). This Court’s review on appeal “is restricted to the

record provided by the appellant * * *.” Bank of Am., N.A. v. Wiggins, 9th Dist. Wayne No.

14AP0033, 2015-Ohio-4012, ¶ 13, quoting State v. Browne, 9th Dist. Wayne No. 01CA0056,

2002-Ohio-2434, ¶ 6. Wife cannot demonstrate error by referring to matters that do not appear

in the record. See, e.g., Swedlow v. Riegler, 9th Dist. Summit No. 26710, 2013-Ohio-5562, ¶ 14-

16. Rather, this Court must presume regularity in those matters. See No-Burn, Inc. v. Murati,

9th Dist. Summit No. 25495, 2011-Ohio-5635, ¶ 22, quoting State v. Jones, 9th Dist. Summit

No. 22701, 2006-Ohio-2278, ¶ 39.

       {¶10} The trial court never expressly ruled on Wife’s motions to compel, so we presume

that it denied them. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 13 (“A motion not
                                                5


expressly decided by a trial court when the case is concluded is ordinarily presumed to have been

overruled.”). The trial in this matter began on May 7, 2014, and lasted for several days. At no

point in time during the trial did Wife renew her motions to compel or indicate that she did not

have access to necessary documents. See Raykov v. Raykov, 9th Dist. Summit No. 26107, 2012-

Ohio-2611, ¶ 24. The parties introduced a wealth of financial information and were largely able

to agree on how to divide their assets. Wife never asked for a continuance to review any of the

information Husband introduced and never identified any particular item(s) without which she

could not make her case. If Wife believed that there were outstanding issues with discovery, it

was her duty to bring those matters to the trial court’s attention for resolution. See King v.

Rubber City Arches, L.L.C., 9th Dist. Summit No. 25498, 2011-Ohio-2240, ¶ 12. Because she

did not do so, Wife cannot now complain that the trial court erred by not granting the motions

she filed the year before the trial. Wife has not shown that the trial court erred by not granting

her motions to compel. Accordingly, her first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S CONCLUSION THAT THE ROBBINS COMPANY
       BEGAN EXPERIENCING A FINANCIAL CRISIS BEGINNING IN 2009,
       WHICH ULTIMATELY LED TO THE COMPANY REFINANCING ITS DEBT
       THROUGH AN AGREEMENT WITH CRYSTAL FINANCIAL, IS AGAINST
       THE MANIFEST WEIGHT OF THE EVIDENCE.

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED BY FAILING TO DETERMINE THE VALUE
       OF HUSBAND’S SHARES OF COMMON STOCK AND VESTED OPTIONS
       IN THE ROBBINS COMPANY.

                               ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED BY REFUSING TO RECOGNIZE THE VALUE
       OF THE PROMISSORY NOTES ISSUED BY THE ROBBINS COMPANY TO
       HUSBAND AT FACE VALUE.
                                                 6


                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED WHEN IT FAILED TO ORDER THE ROBBINS
       COMPANY TO REPURCHASE ONE-HALF OF HUSBAND’S SHARES OF
       COMMON STOCK AND STOCK OPTIONS, WHICH HUSBAND
       TRANSFERRED TO WIFE.

       {¶11} In her remaining assignments of error, Wife argues that the trial court erred in its

disposition of Husband’s interests in TRC. She argues that there was no support for the court’s

conclusion that TRC began experiencing financial difficulties in 2009. She further argues that

the court erred by not valuing Husband’s shares in TRC, by not valuing the promissory notes he

received from TRC at face value, and by not ordering TRC to repurchase the shares that the court

awarded her. Because all of the foregoing assignments of error are interrelated, we address them

together.

       {¶12} “Our review of a trial court’s division of marital property is whether the trial court

abused its discretion in dividing the property, under the totality of circumstances.” Najmi v.

Najmi, 9th Dist. Lorain No. 07CA009293, 2008-Ohio-4405, ¶ 23. “Since a trial court has broad

discretion in the allocation of marital assets, its judgment will not be disturbed absent an abuse of

discretion.” Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, ¶ 5. An abuse of discretion

implies that a trial court was unreasonable, arbitrary or unconscionable in its judgment.

Blakemore, 5 Ohio St.3d at 219. As a reviewing court applying the abuse of discretion standard,

we may not substitute our judgment for that of the trial court. Pons, 66 Ohio St.3d at 621.

       {¶13} “In any divorce action, the starting point for a trial court’s analysis is an equal

division of marital property.” Daniel v. Daniel, 139 Ohio St.3d 275, 2014-Ohio-1161, ¶ 7.

Moreover, “trial courts, when circumstances permit, should strive to resolve the issues between

[divorcing] parties so as to disassociate the parties from one another or at least minimize their

economic partnership.” Hoyt v. Hoyt, 53 Ohio St.3d 177, 182 (1990). The Ohio Supreme Court
                                                 7


has recognized, however, that “some circumstances may warrant joint ownership after a divorce

and situations may evolve where joint decisions must be made.” Id. at 182-183. “[W]hile it is

desirable to bring finality to the parties’ marriage by dividing assets once and for all, doing so is

not possible in all cases.” Daniel at ¶ 13. “In these matters, trial courts must exercise their

fullest discretion.” Hoyt at 183.

       {¶14} There is no dispute that TRC is a closed-corporation that consists of a handful of

shareholders. Husband acknowledged that he is TRC’s second-largest shareholder and owns

2,400 shares in the company, as well as 1,400 stock options. The company operates by way of a

closed-corporation agreement, which Husband signed in 1999. With regard to a transfer of a

shareholder’s shares, the closed-corporation agreement provides as follows:

       [I]n the case of the attempted transfer or disposition of Shares in any voluntary or
       involuntary manner * * *, including, but not limited to, passage or disposition
       under judicial order [or] legal process, * * * [TRC] may purchase and the
       Shareholder, purchaser or one to whom the shares passed or are disposed shall sell
       all of their Shares of the Corporation pursuant to Sections 11 and 13 of this
       Agreement.

Sections 11 and 13 of the agreement govern the repurchase price of shares and the manner in

which TRC will make payment on any repurchase. With respect to the repurchase price, the

agreement provides instructions for the determination of an “Agreed Value” that will “be the fair

market value of the stock * * *.”

       {¶15} At trial, the parties introduced a significant amount of valuation testimony. Wife

relied upon the “Agreed Value” definition in the closed-corporation agreement to argue that she

should receive the fair market value of half of Husband’s shares and stock options. Meanwhile,

Husband proposed simply splitting the shares and options. He testified that he had asked TRC’s

Board of Directors to repurchase half of his shares and options, but they had declined his offer.

It was TRC’s position that the plain language of the closed-corporation agreement did not require
                                                8


it to repurchase transferred shares. Moreover, there was evidence that TRC was undergoing

financial strain.

        {¶16} TRC’s financial statements evidence that TRC had the following net incomes in

the following years: (1) a net income of $11,304,618 in 2009; (2) a net income of $21,037,876 in

2010; (3) a net income of $3,575,512 in 2011; (4) a net income of $685,221 in 2012; and (5) a

net income of $16,962,932 in 2013. Clark Lubaski, TRC’s chief financial officer, testified that

TRC began experiencing financial difficulties after its successful year in 2010. TRC’s financial

statements confirm that, in September 2010, the company entered into a $65 million credit

agreement with KeyBank. The agreement was initially set to expire in September 2013, but

Lubaski confirmed that, in 2011 and 2012, TRC breached several of the financial covenants set

forth in its agreement with KeyBank. The breaches led to TRC’s outstanding debts with the

bank being reclassified as currently payable. Although TRC was able to enter into a forbearance

agreement with KeyBank, it had to agree to a multitude of financial restrictions. Additionally, it

had to agree to seek refinancing through a separate lender.

        {¶17} Lubaski confirmed that TRC ultimately refinanced its debt with KeyBank by

entering into an agreement with Crystal Financial. TRC’s financial statements provide that TRC

signed a $57 million credit agreement with Crystal Financial in May 2013, a large portion of

which it used to satisfy its outstanding obligation to KeyBank. Part and parcel to the credit

agreement that TRC signed with Crystal Financial, each of TRC’s shareholders signed a separate

shareholder acknowledgement and agreement with Crystal Financial. As part of that agreement,

the shareholders agreed to forego any cash distributions or payments from Robbins International
                                               9


that exceeded their tax liabilities.1 They further agreed that they would automatically loan to

TRC their dividends and any other distributions they might otherwise receive in exchange for

TRC issuing them promissory notes that would be subordinated to the bank’s loan. Additionally,

the agreement (1) prohibited TRC/the shareholders from making any cash payments to

repurchase shares under TRC’s closed-corporation agreement, and (2) provided that any

outstanding amounts already owed in connection with such repurchases would be subordinated

to the bank’s loan.

       {¶18} Lubaski testified that TRC hoped to be able to refinance and repay its loan to

Crystal Financial by September 2015, but that, when it did so, it would owe Crystal Financial a

facility extension fee in addition to the amount due on the loan. It was undisputed that the

facility extension fee would be $4 million if repaid before the end of September 2015, but would

increase steadily every few months if TRC was incapable of doing so.           TRC’s financial

documents evidence that, if TRC could not repay the loan before January 2017, the extension fee

would be $20 million. Both Lubaski and several of the experts who testified at trial agreed that

TRC was in a financially precarious position due to the sizeable amount of debt that it owed.

The parties presented the court with different expert opinions as to whether TRC’s financial

outlook would improve in the future.

       {¶19} Both Wife and Husband set forth expert testimony about the value of Husband’s

shares and stock options in TRC, as well as the value of the promissory notes that he received

from TRC as a result of the obligation to Crystal Financial. The valuation evidence varied

greatly. Although the face value of Husband’s promissory notes totaled more than $2.5 million,


1
  Because Robbins International conducts TRC’s sales, TRC’s shareholders receive their
distributions and/or other cash payments from Robbins International rather than directly from
TRC.
                                                 10


his expert testified that their actual value was closer to $1 million. The parties’ experts also

disagreed as to the value of Husband’s shares with their estimates spanning between $4,000 per

share to $522 per share. Even if his notes, shares, and options were valued at the lower end of

the spectrum, however, Husband testified that he did not have sufficient liquid assets to

compensate Wife for her interest in them, should he retain them. The parties had agreed to

divide equally Husband’s interests in Boretec, LDDJ, and Robbins Holdings, the proceeds from

the sale of their marital residence, their timeshare, and their investment accounts. Further,

Husband had agreed that Wife could retain outright her hair salon and their interest in the real

estate holding company that owned the salon’s building. Husband’s interests in his promissory

notes, shares, and stock options from TRC were the only significant assets that remained for the

court to divide.

       {¶20} In its judgment entry, the trial court determined that TRC began experiencing

financial difficulties in 2009 and ultimately refinanced its debt structure through a credit

agreement with Crystal Financial. The court noted that TRC’s closed-corporation agreement

gave it the option to repurchase involuntarily transferred shares, but that it was not required to do

so. More importantly, the court noted that Husband’s interests in TRC had been subordinated to

Crystal Financial by virtue of the credit agreement and shareholder acknowledgement and

agreement that Husband had signed. The court found that Husband’s promissory notes from

TRC were not currently payable due to the agreements with Crystal Financial and that it was

unclear whether they would become payable in the future, given that TRC might require further

refinancing. The court further found that Husband did not have sufficient funds to pay Wife for

her marital portion of his interests.      Consequently, rather than assigning a value to the

promissory notes or the shares and options for distribution, the court ordered (1) Husband to
                                              11


assign to Wife one-half of his interest in the promissory notes he received during the marriage,

and (2) TRC to transfer to Wife one-half of Husband’s shares and options. The court concluded

that the division would ensure that Wife would “receive certain payments only if [] Husband

receive[d] [them]” and would “receive an amount of gross income in dividends or interest equal

to Husband’s either in cash or notes.”

       {¶21} Wife first argues that the court’s finding that TRC began experiencing financial

difficulties in 2009 is against the manifest weight of the evidence. She notes that TRC had its

most successful year in 2010 and that there was evidence that TRC had projected sizeable net

profits for the next few years. According to Wife, the court lost its way when it failed to

conclude that TRC “was and is projecting to be a profitable company.”

       {¶22} When reviewing a trial court’s factual finding to determine if it is against the

weight of the evidence, a reviewing 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.

Zaccardelli v. Zaccardelli, 9th Dist. Summit No. 26262, 2013-Ohio-1878, ¶ 7, quoting Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. Even if a trial court makes an incorrect

factual finding, however, the appellant must show “that the court’s erroneous factual finding

prejudiced [his or her] substantial rights.” Ulinski v. Byers, 9th Dist. Summit No. 27267, 2015-

Ohio-282, ¶ 29. Absent a showing of prejudice, the error will be deemed harmless. See id.

       {¶23} The record does not support the trial court’s finding that TRC’s financial troubles

began in 2009. The evidence was that TRC breached several of its lender’s financial covenants

in 2011 and 2012, following an extremely successful year in 2010.         TRC did not sign a

forbearance agreement with KeyBank until 2012 and did not enter into its credit agreement with
                                                   12


Crystal Financial until 2013. Accordingly, to the extent the trial court found that TRC started

having financial troubles before 2010, that finding was incorrect. The issue is whether Wife was

prejudiced by the court’s incorrect finding. Id.

       {¶24} There was evidence before the trial court that TRC breached its loan agreement

with KeyBank and, as a result, had to agree to more restrictive financial covenants and seek

refinancing. There also was evidence that the credit agreement and shareholder acknowledgment

and agreement that TRC and its shareholders signed with Crystal Financial placed significant

restrictions on TRC’s income flow and the ability of its shareholders to receive any distributions,

dividends, or other cash payments. Although the parties presented the court with competing

views about the financial future of the company, the trial court chose to lend more weight to

Husband’s evidence. A judgment is not against the manifest weight of the evidence simply

because the trier of fact chose to believe one version of the evidence over another. See Donovan

v. Donovan, 9th Dist. Lorain No. 11CA010072, 2012-Ohio-3521, ¶ 18.

       {¶25} Wife has not shown that the trial court erred when it ultimately concluded that

TRC was experiencing financial difficulties and that those difficulties affected Husband’s

interests in the company. Consequently, she has not shown that she was prejudiced by the

court’s erroneous reference to TRC’s financial difficulties beginning in 2009. See Ulinski at ¶

29. Wife’s second assignment of error is overruled.

       {¶26} Wife’s remaining assignments of error all relate to her desire to receive a cash

payment for her 50% interest in Husband’s shares, options, and promissory notes rather than an

in-kind distribution. She argues that the court erred by not valuing the shares/options, by not

valuing the notes at face value, and by not ordering TRC to repurchase half of Husband shares

and options.    As previously set forth, in equitably dividing marital property, economic
                                                 13


disentanglement is preferable, but “doing so is not possible in all cases.” Daniel, 139 Ohio St.3d

275, 2014-Ohio-1161, at ¶ 13. In cases where it is not possible to divide the assets so as to

“disassociate the parties from one another[,] * * * trial courts must exercise their fullest

discretion.” Hoyt, 53 Ohio St.3d at 182-183.

       {¶27} The parties here agreed that Wife was entitled to half of Husband’s interests in

TRC. They could not agree, however, on the value of Husband’s interests or the manner in

which Wife would receive her half-interest. Even valuing Husband’s notes, shares, and options

at the lowest values presented, however, the evidence was such that they were the largest marital

asset to be divided. In accordance with the evidence produced at trial, the court determined that

Husband did not have sufficient liquid assets to retain his interests in TRC while compensating

Wife for her one-half interest. It also identified several other points of concern in the division of

the shares, options, and notes.

       {¶28} First, there was evidence that TRC’s closed-corporation agreement did not require

the company to repurchase shares in the event of an involuntary transfer. The closed-corporation

agreement made a repurchase optional, at the discretion of the company. Husband presented

evidence that he specifically asked the company before trial to repurchase half of his shares, and

the company declined. Accordingly, any order by the trial court to force TRC to repurchase one-

half of Husband’s shares would have been an order in violation of the company’s closed-

corporation agreement.

       {¶29} Second, there was evidence that Husband’s shares, options, and notes were

encumbered by virtue of the agreements that he and TRC had signed with Crystal Financial. The

shareholder acknowledgement and agreement that TRC’s shareholders signed with the bank

prohibited outright the repurchasing of any transferred shares and the distribution of any cash
                                                  14


payments or dividends in excess of tax liabilities. There was testimony that the agreement with

Crystal Financial would remain in place until TRC could secure the means to repay the loan as

well as a facility extension fee that could range from $4 million to $20 million. Accordingly, if

TRC repurchased one-half of Husband’s shares before its agreements with Crystal Financial

concluded, it and its shareholders would be violating the terms of those agreements.

       {¶30} Third, there was evidence that TRC faced an uncertain financial future. Several

witnesses described TRC as being in a precarious financial position. It was unclear at what point

in time, if ever, TRC’s shareholders would be able to recover the money due on the promissory

notes they received from TRC. Moreover, Husband owned more than simply a nominal number

of shares and options in the company. Husband was the company’s second-largest shareholder

and, if the court were to accept Wife’s valuations of his interests, the cost of repurchasing one-

half of his interest would be significant. Although Wife argues that she was entitled to the value

of her half of the shares and options “regardless of whether [TRC] suffered a business reversal

that reduced its profitability or value,” it was the trial court’s duty to divide Husband’s interest in

the manner “most appropriate to preserve the * * * asset so that each party [might] derive the

most benefit.” Hoyt, 53 Ohio St.3d at 181.

       {¶31} We find the instant matter analogous to the case of DeMarco v. DeMarco, 10th

Dist. Franklin No. 09AP-405, 2010-Ohio-445. In DeMarco, divorcing parties jointly owned

interests in several entities and, rather than making a distributive award, the court awarded them

each half of the marital shares in the entities. See DeMarco at ¶ 4-5. In reviewing the trial

court’s decision to split the shares, the Tenth District noted that there were not sufficient assets in

the marital estate to compensate the wife for her shares and there was no evidence that the

husband could raise the funds to do so. Id. at ¶ 14. It further noted that “either [the husband] or
                                                 15


the companies still owe[d] significant sums to several individuals, thereby rendering it even less

likely that [he] or the companies [could] generate income to pay [the wife].” Id. The Tenth

District concluded that the trial court acted within its sound discretion when it ordered a division

of the parties’ shares in the company rather than a distributive award. Id. at ¶ 17.

       {¶32} The trial court here, in attempting to equally divide the parties’ marital property,

exercised its discretion and ordered a 50% division of Husband’s shares, options, and promissory

notes rather than selecting an alternative that either would not have been feasible or would have

caused Husband and/or TRC to breach one or more of their agreements with Crystal Financial.

Much like DeMarco, there were not sufficient assets left in the parties’ marital estate to

otherwise equalize the division of their marital assets. See id. at ¶ 14-17. Moreover, there was

evidence that Husband’s interests in TRC were dependent upon the company’s ability to profit in

the future and emerge from the financial restrictions to which it was bound. See id. Having

reviewed the record, we cannot conclude that the court acted in an unreasonable, arbitrary, or

unconscionable matter when it determined that a 50/50 split of Husband’s interests in TRC was

the only viable option in this matter. As such, we reject Wife’s arguments that the court erred by

not valuing the shares/options, by not valuing the notes at face value, and by not ordering TRC to

repurchase half of Husband’s shares and options.          Wife’s second, third, fourth, and fifth

assignments of error are overruled.

                                                III.

       {¶33} Wife’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas, Domestic Relations Division, is affirmed.

                                                                                Judgment affirmed.
                                                16




       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 Summit, 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 Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



WHITMORE, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JORGE L. PLA and NADIA R. ZAIEM, Attorneys at Law, for Appellant.

KATHRYN A. BELFANCE and TODD A. MAZZOLA, Attorneys at Law, for Appellee.

BRIAN J. KELLY, Attorney at Law, for Appellee.
