Elliot v. Elliot

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[Cite as Elliot v. Elliot, 2003-Ohio-1939.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY Bessie R. Elliott, : : Plaintiff-Appellee : Case No. 02CA2655 : vs. : : Beryl E. Elliott, : : Defendant-Appellant. : : : Bessie R. Elliott, : : Plaintiff-Appellant, : Case No. 02CA2656 : vs. : : Beryl E. Elliott, : DECISION AND JUDGMENT ENTRY : Defendant-Appellee. : RELEASED: 4-16-03 ________________________________________________________________ APPEARANCES: J. Jeffrey Benson, Chillicothe, Ohio, for Bessie R. Elliott. Scott W. Nusbaum, Chillicothe, Ohio, for Beryl E. Elliott. ________________________________________________________________ Kline, J: {¶1} Beryl E. Elliott appeals the judgment entry entered by the Ross County Court of Common Pleas. He argues that the trial court erred in determining the value of Westside Ceramic & Vinyl Tile ( Westside Ceramic ), which the parties owned. Because we find that the trial court testimony of did not one abuse expert its over discretion the other, in believing the we disagree. He also argues that the trial court erred in finding that a savings account was his property instead of property of the business. Because Beryl failed to object to this finding by the Magistrate, he has waived this argument. Bessie R. Elliott cross-appeals and asserts that the trial court s division of marital debt was neither equal nor equitable. We are unable to address this issue because the trial court did not support its conclusion with adequate written findings of fact as required by R.C. 3105.171. Thus, we sustain Bessie s assignment of error without any issuing opinion as to properly allocated the marital debt. whether the trial court Accordingly, we affirm in part and reverse in part the judgment of the trial court and remand this cause to the trial court for further proceedings consistent with this opinion. I. {¶2} The parties married in 1968. filed a complaint for divorce. dismissal of Bessie s In August 1999, Bessie Beryl filed an answer seeking complaint and a cross-complaint for divorce. {¶3} After a hearing on temporary spousal support and allocation of marital debts, the magistrate ordered Beryl to pay temporary spousal support to Bessie in a fifty-dollar cash payment and payment of the Clinton Road residence mortgage. The magistrate also ordered Bessie to pay the Lazarus, Penney s, MasterCard, VISA, First Card, Sears, Chase and Elder-Beerman debts during the pendency of this action and ordered Beryl to pay the Bank One VISA, Associate s VISA, Mellon Bank VISA, Dr. Chen, and all mortgages owed on the rental properties during the pendency of this action. {¶4} In December 2000, the trial court entered a decree of divorce. The trial court adopted the parties partial agreement regarding the division of marital property. The only remaining issues were the division of the remainder of marital property and allocation of the marital debt. {¶5} In June 2001, the magistrate issued a decision dividing the remainder of the marital property and the marital debts. In so doing, the magistrate made findings of fact, including that Westside Ceramic, a sole proprietorship owned worth fifty-three thousand three hundred dollars. by Beryl, was Additionally, the magistrate attributed Beryl s account at Oak Hill Bank to the value of marital Westside Ceramic. property rather than to the value of The magistrate ordered the parties to pay the debts as previously ordered. {¶6} Beryl filed objections. He asserted that the magistrate erred in its valuation of Westside Ceramic. He did not object to the classification of the Oak Hill Bank account as marital property. {¶7} Bessie also filed objections and asserted, among other things, that the allocation of debts was not equal or equitable as required by R.C. 3105.171 because proceeds from the sale of the parties real estate had been used to pay off the Dr. Chen debt. {¶8} In March 2002, the trial court overruled the parties objections to the magistrate s decision.1 Beryl appealed and asserted two assignments of error: I. The trial court erred in determining that the value of [Westside Ceramic] is fifty-three thousand three hundred dollars ($53,300). II. The trial court erred in attributing the eight-thousand nine hundred twenty-six dollar ($8926.00) Oak Hill Bank Account to [Beryl] instead of including the account in the valuation of [Westside Ceramic]. Bessie also appealed and asserted a single assignment of error: The trial court s allocation of marital debt was neither equal nor equitable and was therefore an abuse of discretion. We consolidated the appeals for all purposes. 1 The trial court also overruled objections to the Magistrate s decisions on contempt actions filed by each party. Because the allegations of contempt are not at issue on appeal, we have not included the details in our summary of the proceedings before the trial court. II. In his first assignment of error, Beryl argues that the {¶9} trial court erred in valuing his business. He argues that the trial court should have believed his expert s valuation of the business rather than the valuation by Bessie s expert, Steve Dawes. He asserts that the trial court should not have believed Dawes because he admitted during cross-examination that he made at least fifteen mistakes in his valuation. {¶10} We review a property division in a divorce proceeding to determine whether the trial court abused its discretion. v. Booth (1989), 44 Ohio St.3d (1985), 18 Ohio St.3d 292, 294. 142, 143; Martin v. Booth Martin An abuse of discretion consists of more than an error of judgment; it connotes an attitude on the part of the trial unconscionable, or arbitrary. court that is unreasonable, State v. Lessin (1993), 67 Ohio St.3d 487; Rock v. Cabral (1993), 67 Ohio St.3d 108. When applying the abuse of discretion standard of review, we are not free to merely substitute our judgment for that of the trial court. In re Jane Doe I (1991), 57 Ohio St.3d 135, citing Berk v. Matthews (1990), 53 Ohio St.3d 161. {¶11} We also review a trial court s determination of the value of marital property for an abuse of discretion. Green v. Green (Jun. 30, 1998), Ross App. No. 97CA2333, citing Spychalski v. Spychalski (May 8, 1992), 80 Ohio App.3d 10, 15; Bowling v. Bowling (Mar. 3, 1998), Franklin App. No. 97APF08-1001; Scalero v. Scalero (Jan. 22, 1998), Cuyahoga App. No. 71738; Rogers v. Rogers (Aug. 2, 1995), Miami App. No. 95-CA-7. {¶12} It is the trial court's job, as trier of fact, to resolve disputes of fact and weigh the credibility of the testimony and evidence. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23, 550 N.E.2d 178. We give deference to the trial court because the trial judge is best able to view the witnesses and observe their demeanor, gestures, observations testimony. in and voice weighing the inflections, credibility and of the use these proffered Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. {¶13} Here, we cannot say that the trial court abused its discretion in deciding to believe Bessie s expert, Dawes, even though he admitted on cross-examination that he had made some mistakes in his valuation. Dawes testified that the mistakes that Beryl s counsel pointed out to him during cross-examination were just typos and did not change his opinion about the value of Beryl s business. Thus, we do not find that the court acted unreasonable, arbitrary or unconscionable in believing Dawes s valuation of Beryl s business. first assignment of error. Accordingly, we overrule Beryl s III. In his second assignment of error, Beryl argues that the {¶14} trial court erred by attributing an account at Oak Hill Bank as general marital property instead of including it in the assets of Beryl s business. hearing that He asserts that there was testimony at the Beryl s business had a checking account at Oak shall be Hill. Civ.R. {¶15} 53(E)(3)(b) provides: Objections specific and state with particularity the grounds of objection. * * * A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected rule. Thus, directly from object. we to that will findings finding not of or consider fact to conclusion arguments which the under that party this derive did not State ex rel. Booher v. Honda of Am. Mfg., Inc. 88 Ohio St.3d 52, 2000-Ohio-269 (Court refused to consider conclusions of law because claimant did not timely object to them); Cunningham v. Cunningham, Scioto App. No. 01CA2810, 2002-Ohio4094. {¶16} Here, because Beryl failed to object to the magistrate s attribution of the account at Oak Hill Bank, he has waived this argument. error. Accordingly, we overrule his second assignment of IV. {¶17} In her only assignment of error, Bessie argues that the trial court abused its discretion in allocating the marital debt because it was not equal. She asserts that it is clear that the magistrate and the court attempted to equally divide the marital assets, but that the magistrate simply incorporated the temporary order, which had equally divided the marital debt that each party was responsible for paying during the proceeding. The temporary order required Beryl to pay the Dr. Chen bill. Bessie argues that the magistrate did not consider that the proceeds from the party s real estate, which were to be evenly split, had already been used to pay off the debt owed to Dr. Chen. Thus, she concludes, the division of marital debt was not equal, as the magistrate intended. {¶18} Trial courts are required to divide marital and separate property equitably between the spouses. requires, equally. in most cases, that R.C. 3105.171(C)(1). R.C. 3105.171(B). marital property be This divided However, if equal division would produce an inequitable result, the property must be divided in such a way as the court determines to be equitable. Id. As the trial court possesses a great deal of discretion in attaining an equitable distribution, the court's division of property shall not be reversed absent an abuse of discretion. Holcomb v. Holcomb (1989), Worthington 44 Ohio (1986), 21 St.3d Ohio 128, St.3d 73, (1985), 18 Ohio St.3d 292, 294-295. discretion, a division of Pickaway App. reviewing marital No. court debt. 95CA11, will Eitel 131; 76; Worthington Martin v. v. Martin Thus, absent an abuse of affirm v. the Eitel unreported. trial (Aug. See, court's 23, also, 1996), Mulvey Mulvey (Dec. 4, 1996), Summit App. No. 17707, unreported. v. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the trial court that is unreasonable, Sheriff's unconscionable, Dept. v. State or Emp. arbitrary. Relations Franklin Bd. (1992), 63 Cty. Ohio St.3d 498, 506. {¶19} Beryl argues that the trial court must have considered the following in reaching its decision: (1) that he had made payments on all of the secured debt during the proceedings below, (2) that he had paid Bessie temporary spousal support in the form of her house payment and a cash payment, and (3) that Beryl testified that Bessie subjected them both to debts of which he had no knowledge and to which he did not consent. {¶20} fact Here, the trial court must have sufficient findings of to enable a reviewing court to determine whether decision is fair, equitable and in accordance with law. R.C. 3105.171(G). the See See, also, Szerlip v. Szerlip (1998), 129 Ohio App.3d 506; Manemann v. Manemann (April 20, 2001), Clark App. No. 2000CA76. findings of fact marital debt. However, we cannot tell by looking at the if the trial court equitably divided the Hence, we sustain Bessie s assignment of error without expressing any opinion as to whether the trial court abused its discretion in allocating the marital debt. We remand this have cause to the trial court so that it opportunity to explicitly address this issue. may the Accordingly, we sustain Bessie s only assignment of error. V. {¶21} In sum, we overrule both of Beryl s assignments of error and sustain Bessie s only assignment of error. Accordingly, we affirm in part and reverse in part the judgment of the trial court. We remand this cause to the trial court for further proceedings consistent with this opinion. JUDGMENT AFFIRMED IN PART AND REVERSED IN PART AND CAUSE REMANDED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED IN PART AND REVERSED IN PART AND THIS CAUSE IS REMANDED TO THE TRIAL COURT for further proceedings consistent with this opinion. Appellant and Appellee shall evenly split the costs herein taxed. The appeal. Court finds there were reasonable grounds for this It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution. Any stay previously granted by this terminated as of the date of this entry. Court is hereby A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Evans, P.J. and Abele, J.: Concur in Judgment and Opinion. For the Court BY: ______________________ Roger L. Kline, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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