Ohio Appellate Reports
Unpublished
AN v. MANSON, Unpublished Decision (12-19-2006)
2006-Ohio-6733 Angela An, Plaintiff-Appellant, v. Anthony
J. Manson, Defendant-Appellee. No. 06AP-90. Court of
Appeals of Ohio, Tenth District. Rendered on December 19,
2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] APPEAL from the Franklin County Court of
Common Pleas, Division of Domestic Relations.
Hillman & Wolery, and Steven E. Hillman, for appellant.
Babbitt & Weis, LLP, Gerald J. Babbitt, and C. Gustav
Dahlberg, for appellee.
OPINION
SADLER, J.
{¶ 1} Plaintiff-appellant, Angela An
(“appellant”), appeals from a judgment entry and decree of
divorce entered by the Franklin County Court of Common
Pleas, Division of Domestic Relations.
{¶ 2} Appellant and defendant-appellee,
Anthony J. Manson (“appellee”), were married in 1999 and
separated in September 2004. No children were born of the
marriage. The couple initially resided in Salt Lake City,
Utah, where appellee worked two [D1] 2 jobs as a pharmacist
earning approximately $90,000 a year and appellant worked as
an on — air personality in the television industry
earning approximately $30,000 a year. Appellant then
accepted a career — advancing position with a
Columbus television station earning approximately $65,000 a
year (net of agent’s commission) at the time of separation.
For the final three years of the marriage appellee worked
very limited hours as a pharmacist while he attended The
Ohio State University Medical School. The couple resided in
Columbus in a home purchased with a down payment produced
by the sale of appellant’s prior home in Salt Lake City.
{¶ 3} The trial court found that the valuation of
the couple’s property, both separate and marital, was
complicated by a number of factors. Chief among these was
the fact that the couple benefited greatly in maintaining
their standard of living during the period in which
appellee was a full — time medical student due to the
generosity of appellant’s parents, who currently reside in
Taiwan. Appellee admits appellant’s parents largely paid
for his first three years of medical school, although he
was constrained to obtain a $40,000 loan after the marriage
collapsed in order to pay for his final year of medical
school tuition and living expenses.[fn1] In addition,
appellant claimed during proceedings in the trial court
that much of the personal property held by the couple,
including two automobiles, in fact belonged to her parents
and was merely held in appellant’s name until the day when
her parents would return to the United States to live.
{¶ 4} After considering the trial testimony and
documentary evidence, the trial court rendered findings of
fact and conclusions of law allocating the separate and
marital property as follows. The court found that the
couple were joint owners of the marital residence on
Chesterfield Road in Columbus, that the stipulated fair
market value was $165,000, and that of the $141,000
purchase price in August 2000, $33,200 was directly
traceable to appellant’s separate property generated by the
sale of her pre-marital residence. After
subtracting a first mortgage of $104,134 the court found
that after setting aside appellant’s separate contribution
the balance of the net equity in the house, $27,666, was a
marital asset to be equitably divided between the parties.
The court further found that a second mortgage in the form
of a home equity line of credit with a balance due of
$28,530 was opened by the parties in November 2003, with
the intent that the parties would pay off existing credit
card debt with the proceeds, but that the best
interpretation of the scant information on this expenditure
indicated that appellant used funds from the home equity
loan to purchase a 2002 Lexus vehicle rather than to pay
off the credit card debt. The court accordingly found that
the balance due on the home equity line of credit would be
attributed to appellant as her separate debt and not
divided between the parties. The court, as a result, also
found that the 2002 Lexus automobile, with a fair market
value of $23,950, would also be allocated as appellant’s
separate property due to her assumption of the
corresponding debt burden.
{¶ 5} With respect to the parties’ other vehicles,
the court found that appellee is the titled owner of a 1999
Toyota Solara automobile with a market value of $9,666 and
that this vehicle would be considered a marital asset with
its value subject to equitable division between the
parties. With respect to a 1990 Mazda Miata titled in
appellant’s name, the court found that this was stipulated
by the parties to be a separate asset belonging to
appellant and not subject to equitable distribution.
{¶ 6} Addressing the parties’ retirement assets, the
court found that appellant was the named owner of three
retirement accounts: (A) a Cap One Group IRA with a fair
market value of $11,152, which the court found to be a
marital asset; (B) a Dispatch Printing Company 401(k)
account with a market value of $14,191, which the court
found to be a marital asset; and (C) a WBNS 401(k) with a
fair market value of $20,531, of which the court found
$14,978 to be a separate property representing appellant’s
401(k) plan from a prior employer and the balance of $5,553
to be a marital asset. The court found that appellee held a
premarital 401(k) retirement account that was entirely his
separate property.
{¶ 7} The court found that appellant would retain
title to a Fidelity Mutual Fund account in her name with a
balance of $6,833 as her separate property.
{¶ 8} Turning to the parties’ credit card debt, the
trial court found that the parties had significant balances
on three different credit cards totaling $29,237 as of the
date of separation, that all these debts were marital
obligations, and that this debt would be equitably
distributed by the court. The court further found that
appellant entered the marriage with a significant amount of
credit card debt, which the court valued at $15,000 based
on appellee’s testimony, that the parties paid this debt
using funds acquired during the marriage from appellee’s
pharmacy student loan, and that appellee would receive
credit in the allocation of marital property for repayment
of one-half of this separate debt.
{¶ 9} Finally, the trial court allocated appellee’s
student loans incurred prior to the marriage for payment of
his pharmacy schooling and late in the marriage for payment
of his last year of medical school as his separate debt.
{¶ 10} In allocating the marital assets, the court
awarded the marital residence to appellant, the Lexus to
appellant, the Toyota Solara to appellee, with one-half of
its value as compensation to appellant, and the
parties’ respective current checking accounts each free and
clear of the claims of the other. The trial court awarded
each party one-half of the marital portion of the
retirement accounts described above, to be distributed
where necessary by means of a qualified domestic relations
order (QDRO).
{¶ 11} Based upon this distribution of marital
assets and debts, the court ordered appellee to pay $1,185
to equalize the distributions to appellant.
{¶ 12} The trial court then made findings pursuant
to R.C. 3105.18(C) in determining whether spousal support
would be paid by either party. The trial court noted
appellant’s 2004 income of $65,000, appellee’s 2004 income
of just over $8,000, and his current income of $37,000
earned in the first year of a four-year
anesthesiology residency. The court found that both parties
were fully employed, educated, and in good health. The
court consequently found that no award of temporary or
permanent spousal support was appropriate. The court divided
court costs equally between the parties and found the
parties each to be responsible for their own attorney’s
fees.
{¶ 13} Appellant has timely appealed and brings the
following four assignments of error:
Assignment of Error One The trial court failed to follow
and abide by Section 3105.171 of the Ohio Revised Code.
Assignment of Error Two The trial court failed to make
independent Findings of Fact and Conclusions of Law as
required by Rule 52 of the Ohio Rules of Civil Procedure.
Assignment of Error Three The trial court’s findings are
against the manifest weight of the evidence. Assignment of
Error Four The trial court failed to award spousal support
dictated by ORC 3105.18.
{¶ 14} For convenience of analysis, we will address
these assignments of error out of numerical order.
{¶ 15} Appellant’s second assignment of error
asserts that the trial court did not fulfill its duty to
make independent findings of fact and conclusions of law,
apparently because the trial court adopted more or less
verbatim the proposed findings of fact and conclusions of
law submitted by appellee. Civ.R. 52 imposes a mandatory
duty on a trial court to provide written findings of fact
and conclusions of law upon request from either party when
a case is tried to a court without a jury. Werden v.
Crawford (1982), 70 Ohio St.2d 122, 24 O.O.3d 196, 435
N.E.2d 424. The rule allows the court to request the parties
to submit proposed findings, and adoption of one party’s
findings in preference to another’s will not of itself
constitute error on the part of the trial court, Adkins v.
Adkins (1988), 43 Ohio App.3d 95, 539 N.E.2d 686, absent
strong indication that the trial court, in adopting
proposed findings without modification, failed to take the
time to carefully review the facts of law surrounding the
case. Gotlieb v. Gotlieb (1991), Franklin App. No.
98AP1131.
{¶ 16} A review of both the trial court’s decision
and the conduct of the trial court as reflected in the
transcript indicates that the trial court in this case in
no way abdicated its responsibility to review the testimony
and documentary evidence and reach its own independent
conclusions. The proposed findings of fact and conclusions
of law submitted by Appellee do not uniformly reflect his
positions at the outset of proceedings in this case, and
were manifestly shaped by the trial court’s interlocutory
pronouncements and ultimate judgment during the course of
the trial. As such, the findings appropriately reflect the
determinations by the court, and the court did not abdicate
its responsibility to adjudicate the matter before it
merely by adopting the proposed findings submitted by
Appellee in preference to those submitted by appellant. We
accordingly find no procedural error on the part of the
trial court in adopting Appellee’s proposed findings of fact
and conclusions of law, although the actual content of
those findings may be again reviewed for substantive error
in connection with appellant’s other assignments of error.
Appellant’s second assignment of error is overruled.
{¶ 17} Appellant’s first and third assignments of
error present interrelated issues and will be addressed
together. In substance, these assignments of error assert
that the trial court’s allocation of marital and separate
property and division of the marital property are not
supported by the manifest weight of the evidence and do not
comply with R.C.3105.171, the statute governing this
process.
{¶ 18} When reviewing a trial court’s decision on a
manifest weight of the evidence basis, we are guided by the
presumption that the factual findings of the trial court
were correct. The weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of
fact. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d
366, 227 N.E.2d 212, paragraph one of the syllabus. The
rationale for this presumption is that the trial court is
in the best position to evaluate the evidence by viewing
witnesses and observing their demeanor, voice inflections,
and gestures. Seasons Coal Co. v. Cleveland (1984), 10 Ohio
St.3d 77, 10 OBR 408, 461 N.E.2d 1273. Likewise, documentary
evidence is best viewed in the context of the entire scope
of evidence heard at trial, and the trier of fact is in the
best position to assess the global weight of all evidence
heard. Thus, judgments supported by some competent,
credible evidence going to all the essential elements will
not be reversed by a reviewing court as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley
Const. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376
N.E.2d 578.
{¶ 19} R.C. 3105.171 provides for the distribution
of separate and marital property in a divorce or
dissolution:
(B) In divorce proceedings, the court shall, and in legal
separation proceedings upon the request of either spouse,
the court may, 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. For purposes of
this section, the court has jurisdiction over all property
in which one or both spouses have an interest. (C)(1)
Except as provided in this division or division (E) 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. (2) Each spouse shall be
considered to have contributed equally to the production
and acquisition of marital property. (3) The court shall
provide for an equitable division of marital property
under this section prior to making any award of spousal
support to either spouse under section 3105.18 of the
Revised Code and without regard to any spousal support so
awarded. * * * (D) Except as otherwise provided in
division (E) of this section or by another provision of
this section, the court shall disburse a spouse’s separate
property to that spouse. If a court does not disburse a
spouse’s separate property to that spouse, the court
shall make written findings of fact that explain the
factors that it considered in making its determination
that the spouse’s separate property should not be
disbursed to that spouse. (E)(1) The court may make a
distributive award to facilitate, effectuate, or
supplement a division of marital property. The court may
require any distributive award to be secured by a lien on
the payor’s specific marital property or separate
property. (2) The court may make a distributive award in
lieu of a division of marital property in order to achieve
equity between the spouses, if the court determines that a
division of the marital property in kind or in money would
be impractical or burdensome. * * * (F) In making a
division of marital property and in determining whether to
make and the amount of any distributive award under this
section, the court shall consider all of the following
factors: (1) The duration of the marriage; (2) The assets
and liabilities of the spouses; (3) The desirability of
awarding the family home, or the right to reside in the
family home for reasonable periods of time, to the spouse
with custody of the children of the marriage; (4) The
liquidity of the property to be distributed; (5) The
economic desirability of retaining intact an asset or an
interest in an asset; (6) The tax consequences of the
property division upon the respective awards to be made to
each spouse; (7) The costs of sale, if it is necessary
that an asset be sold to effectuate an equitable
distribution of property; (8) Any division or disbursement
of property made in a separation agreement that was
voluntarily entered into by the spouses; (9) Any other
factor that the court expressly finds to be relevant and
equitable. (G) In any order for the division or
disbursement of property or a distributive award made
pursuant to this section, the court shall make written
findings of fact that support the determination that the
marital property has been equitably divided and shall
specify the dates it used in determining the meaning of
“during the marriage.” (H) Except as otherwise provided
in this section, the holding of title to property by one
spouse individually or by both Spouses in a form of co-
ownership does not determine whether the property
is marital property or separate property.
{¶ 20} In applying this statutory provision, a trial
court has broad discretion in determining the allocation of
marital and separate property and the division of marital
property in a divorce case. Berish v. Berish (1982), 69
Ohio St.2d 318, 319, 23 O.O.3d 296, 432 N.E.2d 183. It is
inadvisable, and in practice impossible, for any court to
attempt to set down a flat rule concerning property division
in a divorce. Cherry v. Cherry (1981), 66 Ohio St.2d 348,
355, 20 O.O.3d 318, 421 N.E.2d 1293. A trial court’s
decision in such matters will be reversed only upon showing
of an abuse of discretion, meaning that the trial court’s
decision reflects an attitude that is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.
{¶ 21} When making the equitable division of marital
property, the trial court must rely on competent, credible
evidence in ascertaining the value of marital assets.
Hightower v. Hightower, Franklin App. No. 02AP-37,
2002-Ohio-5488, at ¶ 22; Moro v. Moro (1990), 68
Ohio App.3d 630, 637, 589 N.E.2d 416. A trial court must
have a rational, evidentiary basis for assigning value to
marital property. McCoy v. McCoy (1993), 91 Ohio App.3d
570, 576-578, 632 N.E.2d 1358.
{¶ 22} The first division of marital property
complained of by Appellant is the allocation of the 2002
Lexus vehicle as marital property rather then separate
property, its distribution to her in the property division,
and the corresponding assignment to her of the home equity
line of credit debt which the trial court found to have
financed the purchase of the vehicle. Appellant asserts
that the Lexus vehicle was purchased by her parents as a
gift to her, and is not traceable to specific debt in the
form of the home equity line of credit.
{¶ 23} In assessing the testimony and evidence on
this point, the trial court was handicapped, as elsewhere
in this case, by the unconventional state of the couple’s
finances during the marriage due to extremely large cash
gifts from Appellant’s parents and a lack of documentary
evidence or even specific recollection by the parties to
trace such gifts to subsequent acquisitions of assets.
There was conflicting testimony over how the Lexus vehicle
was acquired, and the trial court chose to give greater
credence to Appellee’s recollection and reconstruction of
the couple’s finances during this period. When addressing
proposed error under manifest weight of the evidence
standard, we are hesitant to freely substitute our judgment
for that of the trial court when assessing the relative
credibility of testimony, particularly where testimony to
the contrary is hardly less vague or unsupported. We
accordingly find no error on the part of the trial court in
allocating the Lexus vehicle and home equity line of credit
debt as it did.
{¶ 24} The next item complained of by Appellant is
the allocation of the Toyota Solara automobile as marital
property. Appellant asserts that she entered the marriage
with a Toyota 4-Runner as her separate property,
and that during the marriage, this vehicle was stolen and
the insurance money then went to pay for the Solara, which
should consequently be traceable as separate property. As
the trial court noted, evidence supported that the parties
did purchase the Solara as a replacement for the 4-Runner,
but also establishes that they incurred a loan for
the purchase of the Solara rather than immediately paying
cash from the insurance proceeds. The parties disagreed on
how the insurance money was disposed of and what funds were
subsequently used to pay off the loan. The presumption is
that assets acquired during the course of the marriage are
marital property, Barkley v. Barkley (1997), 119 Ohio
App.3d 155, 694 N.E.2d 989, and the state of the record
does not support a conclusion that the trial court abused
its discretion in relying on this presumption, in the face
of conflicting testimony, to determine that the Solara
constituted a marital asset.
{¶ 25} Appellant also asserts that the trial court
erred in determining that she entered the marriage with
approximately $15,000 credit card debt, that the debt had
been paid down either with marital funds or the proceeds
from appellee’s pharmacy school loans, and that appellee
should consequently be given credit for one-half
this amount as disposing of a pre-marriage
liability belonging to appellant. This finding by the trial
court essentially and accurately reflects testimony by
Appellee which the trial court was free to believe.
Appellant presented no conclusive documentary evidence to
the contrary and her testimony in fact is extremely vague
on the question of how her acknowledged premarital credit
card debt was retired. There is no basis for a finding of
an abuse of discretion on the part of the trial court in
making this determination.
{¶ 26} Finally, appellant argues that the trial
court failed to take into account the large sums of money
received from her parents and expended on appellee’s
medical school tuition during the marriage. Appellee did
not dispute that these sums were received and expended on
his medical school tuition. The trial court concluded,
however, that to the extent that these amounts were gifts
to the couple, they had been dissipated and represented
neither an asset nor liability. The trial court further
found, moreover, that if the sums were in fact an interest-free
loan, as is contended in the companion action
brought by appellant’s parents to recover from appellee,
this debt would represent a separate liability belonging
solely to appellee. This last conclusion is not at all
disadvantageous to appellant. While appellant
understandably attempts to articulate a sense of injustice
over the fact that appellee entered the marriage without a
medical degree and emerged having largely attained one
while incurring very little debt due to the generosity of
appellant’s parents, Ohio does not permit valuation and
distribution of a mere professional license or degree (as
opposed to an active professional practice) in making a
property distribution. Stevens v. Stevens (1986) 23 Ohio
St.3d 115, 117-118, 230 OBR 273, 492 N.E.2d 131. As such,
appellee’s medical degree was properly omitted from marital
assets by the trial court. Appellant cannot now, based upon
the failure of the marriage, claim to herself take back in
some form or another that which her parents freely gave (or
loaned) and the couple freely spent, regardless of whether
her parents ultimately prevail in their action to recoup
those funds. We accordingly find no error on the part of
the trial court in this aspect of the valuation and division
of marital property.
{¶ 27} Based upon the foregoing, we find that the
trial court did not abuse its discretion or fail to comply
with R.C. 3105.171, and appellant’s first and third
assignments of error are overruled.
{¶ 28} Appellant’s fourth and final assignment of
error asserts that the trial court erred in failing to
award spousal support pursuant to R.C. 3105.18. The statute
provides that the trial court shall consider the following
factors in such an award:
(C)(1) In determining whether spousal support is
appropriate and reasonable, and in determining the nature,
amount, and terms of payment, and duration of spousal
support, which is payable either in gross or in
installments, the court shall consider all of the
following factors: (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
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. (2) In determining whether
spousal support is reasonable and in determining the
amount and terms of payment of spousal support, each party
shall be considered to have contributed equally to the
production of marital income.
{¶ 29} Reviewing these factors, we acknowledge that
the trial court was in a difficult position when assessing
the relative financial positions of the parties and the
appropriateness of an award of spousal support. While Ohio,
in contrast to other states, does not allow for a
capitalized valuation of a professional degree in a property
division, such a degree may be considered an award of
spousal support. Stevens, supra, at 118. Appellee’s
projected income during his four-year residency
program would increase little if at all over his income of
$37,000 per year at the time of trial. Appellant earned
approximately $70,000, less agent’s fees, at the time of
trial. Appellee concedes that his prospective income, once
his medical residency is completed, is likely to be
$250,000 yearly or more. Thus, the relative income of the
parties and the contribution of each party to the education,
training, and earning ability of the other would support an
award of spousal support to appellant in this case if one
takes the long view of appellee’s income prospects. In the
short run, however, an award is inappropriate due to
appellee’s lower income, Appellant’s higher income and
other resources, and the distant and still somewhat
speculative increase in appellee’s future income stream,
which was still over three years from realization at the
time of trial. The parties have furnished no case directly
on point with these unique facts, nor would we feel
compelled to follow such authority if it were found, given
the mandate to assess such questions on a case-by-case
basis. However, in view of the relatively long-term of
appellee’s reduced income during his residency,
appellant’s relative financial security, and the
rather short duration of the marriage, we do not find any
abuse of discretion of the trial court’s decision not to
award spousal support to appellant. Appellant’s fourth
assignment of error is accordingly overruled.
{¶ 30} In accordance with the foregoing, appellant’s
first, second, third and fourth assignments of error are
overruled, and the judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations, is affirmed.
Judgment affirmed.
PETREE, J., concurs. BRYANT, J., concurs separately.
[fn1] Appellant’s parents have sought to characterize past
payment of tuition as no-interest loans and are
seeking to recover some $68,000 from appellee in a separate
action in the General Division of the Franklin County Court
of Common Pleas. Appellee characterizes such payments as
gifts.
BRYANT, J., concurring.
While I have some difficulty with the division of marital
assets in light of the circumstances of this case, I
nonetheless cannot conclude the trial court abused its
discretion. I therefore concur in the majority’s
disposition of appellant’s appeal.