The opinion
[Cite as Stewart v. Stewart, 2025-Ohio-1635.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
REBECCA L. STEWART, : APPEAL NO. C-240350
TRIAL NO. DR-2200237
Plaintiff-Appellee, :
vs. :
JUDGMENT ENTRY
THOMAS B. STEWART, :
Defendant-Appellant. :
This cause was heard upon the appeal, the record, and the briefs.
The judgment of the trial court is affirmed for the reasons set forth in the
Opinion filed this date.
Further, the court holds that there were reasonable grounds for this appeal,
allows no penalty, and orders that costs are taxed under App.R. 24.
The court further orders that 1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and 2) the mandate be sent to the trial
court for execution under App.R. 27.
To the clerk:
Enter upon the journal of the court on 5/7/2025 per order of the court.
By:_______________________
Administrative Judge
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
REBECCA L. STEWART, : APPEAL NO. C-240350
TRIAL NO. DR-2200237
Plaintiff-Appellee, :
vs. :
OPINION
THOMAS B. STEWART, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 7, 2025
Keating Muething & Klekamp, PLL, Kellan H. Coffey and Bryce J. Yoder, for Plaintiff-
Appellee,
Cornetet, Meyer, Rush & Spillane and Karen P. Meyer, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Defendant-appellant Thomas B. Stewart (“husband”) appeals from the
final judgment and decree of divorce from plaintiff-appellee Rebecca L. Stewart
(“wife”) issued by the Hamilton County Court of Common Pleas, Domestic Relations
Division. He raises four assignments of error, challenging four specific property
awards by the trial court. For the reasons that follow, we affirm the judgment of the
trial court.
I. Factual and Procedural History
{¶2} Wife and husband each filed for divorce. The property issues proceeded
to a two-day trial before the magistrate on July 19 and August 16, 2023. Wife
presented her own testimony, as well as the testimony of a real estate appraiser and
her attorney (for purposes of fees). Husband presented his own testimony, plus the
testimony of a real estate appraiser. Both parties also submitted numerous exhibits.
{¶3} On November 29, 2023, the magistrate entered an order on all issues
except the merits utilizing a de facto termination date of December 31, 2022. Relevant
to this appeal, the magistrate awarded husband the real property located at 2333 and
2325 Sherman-Newtown Road (“the Farm”), including the house, trailer, and barns
associated with the property at the time of transfer as well as the residential home built
on the property in 2019. Additionally, the magistrate awarded wife the 2018 Toyota
Highlander and awarded husband the 2001 Mercedes-Benz CLK430, the 1998
Chevrolet pickup, the 2002 Harley Davidson Dyna Motorcycle, the 1964 Triumph
Tiger T100SC motorcycle, and the 2010 Polaris Sportsman 550 UTV. Further, the
magistrate awarded wife $63,112.76 for “inequitable disposition of marital assets post-
filing” by husband. Lastly, the magistrate awarded wife $35,612.65 by way of a
property equalization payment for her portion of the equity in the parties’ divisible
OHIO FIRST DISTRICT COURT OF APPEALS
traveler points.
{¶4} Both husband and wife filed objections to the magistrate’s decision.
Relevant to this appeal, husband raised four objections to the magistrate’s decision
that are substantially similar to the issues now raised here on appeal that relate to the
four above-mentioned awards. The trial court overruled the objections and “affirmed”
the magistrate’s decision on April 12, 2024.
{¶5} A final merits hearing was held before the magistrate by consent of the
parties on May 13, 2024, and a final decree of divorce was ultimately entered on May
20, 2024, which fully incorporated the magistrate’s November 29, 2023 decision.
Husband now appeals, raising four assignments of error for this court’s review related
to the four above-mentioned awards.
II. Analysis
{¶6} In a divorce proceeding, the trial court must “determine what
constitutes marital property and what constitutes separate property,” and then “shall
divide the marital property and separate property equitably between the spouses” in
accordance with R.C. 3105.171. R.C. 3105.171(B). “The statute requires an equal
distribution of marital property unless an equal division would be inequitable.” Devito
v. Devito, 2024-Ohio-2234, ¶ 13 (1st Dist.), citing R.C. 3105.171(C)(1). “In making a
division of marital property, the court shall consider all relevant factors, including
those set forth in [R.C. 3105.171(F)].” R.C. 3105.171(C)(1).
{¶7} In other words, “there is no one-size-fits-all formula for fashioning an
equitable division of property.” Edje v. Holmes, 2024-Ohio-1663, ¶ 15 (1st Dist.),
citing Berish v. Berish, 69 Ohio St.2d 318, 321 (1982). “Therefore, in divorce cases,
[this court] afford[s] deference to the lower court as it ‘fulfill[s] its weighty
responsibility [and] resolv[es] the property issues based on the relevant facts and
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circumstances of each unique case.’” Id., citing Stapleton v. Stapleton, 2022-Ohio-
3018, ¶ 27 (1st Dist.).
{¶8} So, as a general matter, “‘[t]his court reviews “the manner in which a
domestic-relations court executes an equitable division of property for an abuse of
discretion.”’” Tyra v. Tyra, 2022-Ohio-2504, ¶ 11 (1st Dist.), citing Boolchand v.
Boolchand, 2020-Ohio-6951, ¶ 9 (1st Dist.). “An abuse of discretion occurs when a
court exercises its judgment, in an unwarranted way, in regard to a matter over which
it has discretionary authority.” (Cleaned up.) Mallory v. Mallory, 2024-Ohio-5458,
¶ 13 (1st Dist.), citing Johnson v. Abdullah, 2021-Ohio-3304, ¶ 39.
{¶9} However, “[t]rial ‘courts lack discretion to make errors of law,
particularly when the trial court’s decision goes against the plain language of a statute
or rule.’” Gadson v. Scott, 2025-Ohio-7, ¶ 16 (8th Dist.), citing Johnson at ¶ 39. Thus,
this court reviews “the trial court’s adherence to R.C. 3105.171’s statutory directives de
novo.” Edje at ¶ 14, citing Stapleton at ¶ 23.
{¶10} Further, factual issues, such as the classification and valuation of
property, are reviewed under the sufficiency-and-weight-of-the-evidence standards.
Tyra at ¶ 11, citing McKenna v. McKenna, 2019-Ohio-3807, ¶ 9 (1st Dist.). Sufficiency
is a test of adequacy and looks to whether the evidence is legally sufficient as a matter
of law. Eastley v. Volkman, 2012-Ohio-2179, ¶ 11, quoting State v. Thompkins, 78
Ohio St.3d 380, 386 (1997). Weight concerns “‘the inclination of the greater amount
of credible evidence, offered at trial, to support one side of the issue rather than the
other.’” (Emphasis deleted.) Id., quoting Thompkins at 387.
{¶11} “In reviewing a weight of the evidence challenge, [this court] weigh[s]
the evidence and all reasonable inferences, consider[s] the credibility of the witnesses,
and determine[s] whether in resolving conflicts in the evidence, the trial court clearly
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lost its way and created such a manifest miscarriage of justice that the judgment must
be reversed and a new trial ordered.” McKenna at ¶ 10, citing In re A.B., 2015-Ohio-
3247, ¶ 14 (1st Dist.).
A. First Assignment of Error
{¶12} In the first assignment of error, husband argues that the trial court erred
in adopting wife’s appraisal of the Farm when determining the value of the property.
A challenge to the valuation of property where the court had before it two competing
expert appraisals is a challenge to the weight of the evidence. See McKenna at ¶ 10.
Regarding the Farm, the magistrate made the following findings:
[Husband] inherited [the Farm] during the course of the
marriage. The [Farm] consists of rural land in the amount of 179 acres.
No valuation at the time of the initial conveyance to [husband] of the
referenced real property on July 3, 2003[,] was provided at [the]
hearing of the matter. The parties provided a Joint Exhibit
demonstrating that they had transferred the referenced real property
into a trust on or about October 2, 2019; at this time, the total fair
market value of the as-yet developed real estate was listed at $85,000.
The parties subsequently built a house on this real estate in 2019 which
was not utilized as a home address for either party; the parties agree
that the house alone should be counted as a marital asset but left
valuation of the residence to the Court.
[Wife] asserted that the parties had made marital improvements
to the property in addition to construction of the referenced house;
these improvements allegedly made with marital assets included, but
were not limited to, installation of a gravel driveway to the residence,
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landscaping of the property, installation of a septic system with leach
field, installation of geothermal environmental system and excavation
of a pond associated with the house. The property was reported as being
subject to no note or financial encumbrance at present. [Wife]
requested that the residence be valued at $678,500.00 as per the report
of her expert and that the parties share equally in the equity value of the
property.
Ken Carroll testified on behalf of [wife] as an expert certified
residential appraiser having appraised the house built on the farm
property in 2019. Mr. Carroll confirmed that he personally conducted
the appraisal of the referenced property. He noted that he valued the
home using the structure itself plus eleven acres of real estate; due to
the rural nature of the build site, significant tax breaks are available to
individuals owning land in excess of ten acres (qualifying as a small
farmstead). Mr. Carroll noted that the house could not be valued with
less than one acre of land as the existence of the septic system and leach
field would necessitate purchase of land in excess of one acre. He noted
that the home was a custom-designed property that was not in a high-
demand area; his valuation of the property (inclusive of 11 acres of real
estate) was $115,000.00 for the site value plus $563,500.00 for the
residential value totaling $678,500.00. When asked about the content
of the competing valuation, Mr. Carroll indicated that he felt the
approach utilized by [husband]’s appraiser was ‘odd’ and did not
account for necessary land requirements and market value of the
property in question.
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[Husband] asserts that the farm was initially established by his
great-great-grandfather and included barns, a family home and a trailer
on the land; this party requested that he be awarded the farm free and
clear of any interest on the part of [wife], acknowledging that she was
entitled to a measure of the equity value on the new home built on the
land in 2019.
Dale Crump testified on behalf of [husband] as an expert
residential appraiser having appraised the house built on the farm
property in 2019. Mr. Crump confirmed that he personally conducted
the appraisal of the referenced property. He noted that he valued the
home using a ‘reasonable’ half acre site and arrived at a value based
upon the cost of construction of the residence rather than a market value
approach. Mr. Crump confirmed the valuation of the property
(inclusive of ½ acre of real estate) was $344,000.00 for the entirety of
the subject property.
For purposes of the valuation of the home built on the farm
property in 2019, the Court deems the report and analysis of Ken Carroll
to be more credible in nature. The cost-based approach utilized by Dale
Crump did not account for some three years’ lapse in time between build
and valuation of the residence, only accounted for part of the expenses
associated with the construction of the home, did not account for the
septic/leach field associated with the property and utterly omitted
consideration as to the land and value of the driveway that would be
required for an arms-length buyer to access the real estate. The value
of the property shall be considered at the market/comparable amount
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OHIO FIRST DISTRICT COURT OF APPEALS
of $678.500.00.
{¶13} The trial court overruled husband’s objection to the magistrate’s
decision on this issue, finding that the magistrate relied on the “credible testimony” of
Mr. Carroll. The magistrate’s decision was then fully incorporated into the final
divorce decree.
{¶14} Husband argues that the valuation of the farm was in error as “the only
marital asset that needed to be valued was the house that was built on the farm during
the marriage,” and wife’s appraisal went beyond just the house and used inappropriate
comparable sales. In doing so, he fails to point to any legal authority in support of his
position. Rather, he simply suggests that wife’s appraisal was not credible as no reason
was given for the inclusion of 11 acres of land and the report used comparable sales
that were “better developed” than the house built in 2019.
{¶15} Wife argues the trial court did not err in valuing the farm where the
parties offered competing expert testimony and reports from certified property
appraisers as to the value of the home and the trial court expressly found that Mr.
Carroll offered the more credible valuation based on competing methodologies.
{¶16} As an initial matter, husband appears to argue that there was a specific
agreement that only the house itself would be counted as a martial asset. However,
the parties entered into certain trial stipulations prior to the start of trial, and nothing
in these stipulations was relevant to this property. Thus, there is no indication in the
record of any agreement as to what would be included for purposes of valuing this
property. Consequently, while it seems the parties agreed that the home was marital
property, the record does not show any agreement as to what would be included with
the home for purposes of valuation.
{¶17} Wife’s expert appraiser was Mr. Carroll. His report begins by stating,
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The subject property consists of 95.9 acres, one house that is less
than 2 years old, and an older farm house that was constructed in 1908.
There are 2 older barns on the property that have minimal value. Per
the instructions of [wife], I have divided a portion of the property that
would reasonably be sold with the newer home, if the property were
subdivided.
{¶18} The report then indicates that “a parcel was carved around the area of
the subject improvement’s foot print,” and “[t]he property carved out included only
the ridge upon which the house is built.” It then states that, based upon a rough
drawing, “the house and 11 acres seems to be a reasonable site size.” It further said that
another reason for the 11 acres was so that the property owner could take advantage of
the tax break associated with a farm exemption. Consequently, the appraisal included
the house and 11 acres, “with a deeded easement via the gravel drive back to the 11
acres area.”
{¶19} Mr. Carroll testified at trial that he was “to appraise the home for
market value and to assign it a site size that would. . . most likely accompany a home
of that type. . . given the way that the land sat and what the amenities were[.]” He
denied that wife told him what acreage to use. Rather, he said that his decision was
based on his “professional opinion.” When asked how he determined 11 acres, he said,
I know that the couple had about 200 acres. The way that the
land sits and having a drive going back to the house, I had no idea who
would end up with the house, if it would [be] the gentleman or if it would
be the wife. Kentucky allows for anything over ten acres to have a tax
break as a small farm, and that is very highly sought after in rural areas
so that people can get that tax break. The house sitting on one acre, in
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my opinion, would be very difficult to sell.
He also testified that it would not be typical for homes in that area to include only one
acre “unless there were public utilities, and it was sitting closer to town.”
{¶20} Beyond that, Mr. Carroll testified as to the differences that he
considered in his report when comparing this house to the comparable sales that he
used. For example, he considered that this home had a geothermal heating system—
which is expensive and preferable over a home with a propane or electric furnace—and
a pond. He also made adjustments based on differences such as gross living area, time
of sale, age, and condition of the home, and different features. He expressly testified
that he “made the different adjustments for the differences in the different homes.”
Further, he testified that this home was a custom build, and not a “builder design.”
Ultimately, he testified that his opinion as to the value of the home was $678,500. Of
that price, $115,000 was attributable to the “site value,” with the remainder
attributable to the house itself.
{¶21} Further, when asked his opinion on using only a half acre when valuing
the home, Mr. Carroll said, “It’s –that’s impossible. You just can’t do that. The
Department of health wouldn’t allow that because of the leach lines and the septic, that
sort of thing.” He further opined that, even if the health department would allow it,
people looking at the home would think half an acre was “absurd” because of how far
back the home sits and try to offer to buy more land around it.
{¶22} Husband’s expert appraiser, Mr. Crump, did testify as to a number of
“errors” he believed Mr. Carroll made in his report regarding adjustments made when
considering comparable sales. However, it was within the purview of the trial court to
determine credibility when resolving evidentiary conflicts. See Iranpour-Boroujeni v.
Emami, 2024-Ohio-2546, ¶ 94 (1st Dist.), citing Kinnett v. Corporate Document
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Solutions, Inc., 2019-Ohio-2025, ¶ 21 (1st Dist.) (“It is well established that ‘the
determination of witnesses’ credibility and the resolution of conflicts in the evidence
are matters for the trier of facts.’”); Eastley, 2012-Ohio-2179, ¶ 21, quoting Seasons
Coal Co. Inc. v. Cleveland, 10 Ohio St.3d 77, 80, fn. 3 (1984) (“‘If the evidence is
susceptible of more than one construction, the reviewing court is bound to give it that
interpretation which is consistent with the verdict and judgment, most favorable to
sustaining the verdict or judgment.”). The trial court expressly found that Mr. Carroll
provided a more credible valuation.
{¶23} The most notable differences between the two appraisals were the
acreage included and the type of appraisal (market value vs. cost).
{¶24} Mr. Crump’s report explains that, at the request of the client, “the newly
constructed residence will be carved out of the parent tract and sit on one half (1/2)
acre tract with ingress and egress to the property.” When asked at trial if a half acre
was a reasonable amount of land for the house, Mr. Crump said,
It could be. It’s not uncommon in Grant county in a rural county.
So, there are different parcels all over the board down there. You know,
there are a lot of single-wide mobile homes, a lot of double-wide homes,
and it’s not uncommon for, you know, a child to put some type of trailer
or a modular home on their parents’ farm, and they do a carve out of
whatever they want to do, yes.
{¶25} He was then asked if it was reasonable for this particular house, and he
simply said “yes” without any further explanation. He later agreed on cross-
examination that he used a half acre of land in his valuation because that is what
husband told him to use. When questioned by the court, he denied that the half acre
included the driveway to get to the home.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} Further, when discussing the value of the house, Mr. Crump said that
“the value of the residence was taken from a contract from the contractor who had
built the house for the client.” He said, “And then what I did, is I found some land
sales and applied the value of the land and added it to the value of that cost of the
house, which was built new, and came up with a final opinion of value.” He valued the
half acre of land at $12,019, and “just rounded it to $12,000.” He then added this to
the “cost of the residence” and “came up with $344,000.” As to the cost of the
residence, the paperwork that he was given showed the cost at $331,923 and he
“rounded it up” to $332,000. He did not use comparable sales for the value of the
residence.
{¶27} When discussing the information he used to determine the cost, Mr.
Crump said he had “a copy of what the contractor charged [husband], and [husband]
had receipts that he could show [him].” On cross-examination, he agreed that his
value was based only on information he was given from husband. More specifically,
regarding his methodology, he was asked to confirm that he used land value for half
an acre, plus “the cost to build the home as determined by information provided by
and requests made by [husband],” and he said, “That’s correct.” Mr. Crump
acknowledged in his testimony that the market had “gone up” between the time when
the house was built and when he completed his report.
{¶28} Significantly, wife testified in response to Mr. Crump’s testimony and
said that the one-page letter from the contractor that Mr. Crump relied upon for his
report for the value of the home “definitely” did not encompass everything involved in
the cost to build and construct the property. She said, “aside from paying the builder,
we bought several things directly, like appliances, cabinets for the laundry room, the
kitchen, the bathroom, countertops that went with those all came from the same
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OHIO FIRST DISTRICT COURT OF APPEALS
supplier, light fixtures, other things that I may not be thinking of right now.” She also
added “landscape plants, that sort of thing,” and the pond.
{¶29} Thus, the evidence supports the magistrate’s finding that
[t]he cost-based approach utilized by Dale Crump did not
account for some three years’ lapse in time between build and valuation
of the residence, only accounted for part of the expenses associated with
the construction of the home, did not account for the septic/leach field
associated with the property and utterly omitted consideration as to the
land and value of the driveway that would be required for an arms-
length buyer to access the real estate.
{¶30} Based on this evidence, we cannot conclude that the trial court clearly
lost its way and created a manifest miscarriage of justice by relying on the report and
testimony of Mr. Carroll, rather than Mr. Crump. Consequently, we cannot say that
the trial court’s decision as to the valuation of the farm was against the manifest weight
of the evidence. Therefore, we overrule the first assignment of error.
B. Second Assignment of Error
{¶31} In the second assignment of error, husband argues that the trial court
erred in using the values of the vehicles set forth by wife at the hearing, rather than
the values of the vehicles set forth by wife in her initial property statement. The
magistrate found that “[v]aluation of the vehicles in question shall be set at present
third-party sale value of the vehicles.” This was based on the magistrate’s finding that
“the present market value of the vehicles as presented by [wife] is more credible and
shall serve for valuation of the vehicles for purposes of asset equalization.” The trial
court overruled husband’s objection on this issue, finding that the values presented by
wife in her property statement were “preliminary and were not substantially different
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than the values presented by her a year and a half later at trial.” The magistrate’s
decision was then fully incorporated into the final divorce decree.
{¶32} Husband argues that this valuation was in error as no explanation or
evidence was given to support the change in value for the vehicles. In doing so, he fails
to point to any legal authority in support of his position.
{¶33} Wife argues that the valuation was proper where the trial court
determined that the vehicles should be valued by their present value as of the date of
the hearing, and her property statement was submitted nearly a year and a half prior
to the trial.
{¶34} “Prior to dividing a couples’ property and debts, the trial court must
determine the duration of the marriage by pinpointing the time period that will be
considered ‘during the marriage.’” Owens v. Owens, 2022-Ohio-3450, ¶ 18 (1st Dist.),
citing Elliot-Thomas v. Lewis, 2019-Ohio-3870, ¶ 5 (9th Dist.). “‘The term “during
the marriage” is a term of art and is the period that is used to identify separate and
marital property and debts and to value the couples’ property and debt.’” Id., citing
Elliot-Thomas at ¶ 5. However, “[a]s an exercise of its discretion, the ‘court may use
alternative valuation dates to achieve the equitable distribution of marital assets.’”
Iranpour-Bouroujeni v. Emami, 2024-Ohio-2546, ¶ 97 (1st Dist.).
{¶35} Here, the trial court determined that the de facto marriage termination
date was December 31, 2022. At the hearing, the parties submitted competing
evidence as to the value of the vehicles. Husband requested that the trial court utilize
the current trade-in value of the vehicles, as set forth in his Exhibit U. On the other
hand, wife requested that the court utilize the current private party value of the
vehicles, as set forth in her Exhibit 30. Notably, there was no request by husband at
the hearing for the trial court to use the values set forth in wife’s initial property
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statement. Further, he did not object to wife’s evidence at the hearing.
{¶36} Now, husband argues that it was an abuse of discretion for the trial court
to use the values set forth by wife at the hearing “with no evidence whatsoever to
support why the values changed from her earlier sworn statement.”
{¶37} Wife’s initial property statement was filed on February 15, 2022, which
was over ten months prior to the marriage termination date. Looking to the evidence
presented at the hearing, the values submitted by both parties appear to be the value
as of July 2023, which was at the time of trial and only seven months after the marriage
termination date. No other values were submitted to the court for consideration that
would pertain to December 2022, which was the marriage termination date, nor was
any evidence offered as to the value of vehicles as of August 2022, which was the date
that the parties physically separated and the date that husband argued should be the
marriage termination date.
{¶38} Because no evidence of value was offered as of the marriage termination
date and the evidence of value presented at the hearing was more close in time to the
marriage termination date than wife’s initial property statement, we cannot determine
that it was an abuse of discretion for the trial court to use the evidence presented by
the parties at the hearing when determining the value of the vehicles. Therefore, we
overrule the second assignment of error.
C. Third Assignment of Error
{¶39} In the third assignment of error, husband argues that the trial court
erred in finding that he inequitably disposed of marital assets and awarding wife
$63,122.76 as a result. Regarding this award, the magistrate made the following
findings:
Regarding issues involving marital liabilities, debts or
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OHIO FIRST DISTRICT COURT OF APPEALS
obligations, the parties did not address expenses on a prospective basis.
[Wife] presented detailed financial records at [the] hearing of this
matter demonstrating that [husband] had inequitably paid expenses
and/or received monies that were not divided by the parties (i.e. these
payments or pre-payments and receipt of monies such as rental income
from the trailer located on the farm property had been withheld from
[wife]) during the course of this litigation and after the issuance of the
Administrative Restraining Order as regarding this matter.
Additionally, [husband] had elected to forego [sic] payment on certain
debts (such as the ongoing private school tuition of the minor child) that
were borne solely by [wife]. This documentation demonstrated that the
inequitable financial impact to [wife] amounted to $63,112.76 during
the time period in question.
{¶40} The trial court overruled husband’s objection on this issue, finding that
the magistrate’s award was based on the finding that husband inequitably paid
expenses and received monies that were not divided by the parties and that such
actions had a significant financial impact on wife. The magistrate’s decision was then
fully incorporated into the final divorce decree.
{¶41} Husband argues that this award was in error as the magistrate
improperly treated his gross income as an asset and divided it between the parties. In
doing so, the only legal authority he points to is R.C. 3119.01(C)(9)(a) and (b). R.C.
3119.01 is the definitional section for calculation of child support and does not contain
a (C)(9)(a) or (b) provision. Rather, R.C. 3119.01(C)(9) contains only one definition
for “federal poverty level.” Presumably, husband meant R.C. 3119.01(C)(10)(a) and
(b), which collectively provide the definition of “income.” If husband did mean to
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reference (C)(10), rather than (C)(9), this section simply provides that income, for a
parent who is fully employed, means the gross income of the parent. See R.C.
3119.01(C)(10)(a). Husband does not point to any other legal authority in support of
his argument.
{¶42} Wife argues that this award was proper where she provided “detailed
financial records supporting $98,900.22 that she either paid with separate funds to
cover certain marital expenses, including their child’s school tuition and the parties’
credit card debt, or that [husband] diverted away from their joint account.”
{¶43} “The general rule in Ohio is that income earned by labor performed
during the marriage is marital property whether received during the marriage or after
the marriage.” Victor v. Kaplan, 2020-Ohio-3116, ¶ 79 (8th Dist.), citing
Schweinfurth v. Meza, 2002-Ohio-6316, ¶ 19 (8th Dist.), and R.C.
3105.171(A)(3)(a)(iii).
{¶44} At trial, the parties submitted lengthy, competing exhibits (extensive
bank records) on this issue, with each party testifying in support of his or her own
assertions. Wife’s exhibits consisted of a self-made list that was color coded and listed
funds that husband allegedly contributed and took away from their joint account
during the period between February 2022 to December 2022 (between time of filing
and the marriage termination date) and payments she allegedly made from her own
separate funds during that period, and over 400 pages of bank records (from multiple
relevant accounts) to support her assertions. Husband’s evidence consisted of over 70
pages of bank records with certain highlights to assert who made certain transactions.
{¶45} When testifying about this evidence, wife said, “This is my reconciliation
of what happened with the money when he moved everything out of where it had been
historically in the joint account and he started a separate account. And, therefore, I
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didn’t have access to any of our income.” She further indicated that she had to use her
personal funds, from her half of the proceeds of a separate real property that the
parties already sold, to cover certain joint debts or obligations. Ultimately, she
asserted that husband owed her $63,112.76 as reconciliation. Husband testified and
disputed certain assertions made by wife about the funds and debts/obligations at
issue. Eventually, when asked if he was “agreeable” to the amount asserted by wife,
the following interaction occurred:
Counsel: Are you agreeable to that [amount]?
Husband: I don’t – no.
Counsel: Tell us why.
Husband: I mean, it seems to me, I have to be paying the bills.
Counsel: Okay.
Husband: And it seems to me, we pay the bills.
Counsel: And so you believe that her request for her paying the bills
and that you should reimburse her for the bills she paid –
Husband: It doesn't seem (indiscernible).
{¶46} Ultimately, the magistrate apparently found wife’s evidence to be more
credible on this issue as the court awarded wife the amount that she requested as
reconciliation. The entry expressly stated that the award was based on the “detailed
financial records” provided by wife. Notably, husband does not directly challenge here
on appeal the finding that he took improper financial actions.
{¶47} Instead, he seems to assert that the trial court considered income that
was not marital property. However, he fails to point to or challenge any specific
transaction from the financial records relied upon by the trial court when making this
award. Rather, he simply makes generalized arguments about the income supposedly
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OHIO FIRST DISTRICT COURT OF APPEALS
deposited into the joint account during the litigation and the amount allegedly
withdrawn by wife, on average, during that same period. He does not go into detail
about any of the transactions or deposits at issue in the financial records that were
relied upon by the trial court when making this award.
{¶48} “The appellant bears the burden of ‘identify[ing] in the record the error
on which [an] assignment of error is based.’” Rummelhoff v. Rummelhoff, 2020-
Ohio-2928, ¶ 23 (1st Dist.), quoting App.R. 12(A)(2).
{¶49} By submitting only generalized arguments here on appeal with no
citations to any specific transactions from the “extensive financial records” relied upon
by the trial court or any relevant legal authority, husband has failed to meet his burden
to demonstrate error in the trial court’s award. See generally In re J.G.S., 2019-Ohio-
802, ¶ 31 (1st Dist.), citing State v. Brown, 2013-Ohio-2720, ¶ 24 (1st Dist.) (“‘If an
argument exists that can support [an] assignment of error, it is not this court’s duty to
root it out.’”). Therefore, we overruled the third assignment of error.
D. Fourth Assignment of Error
{¶50} In the final assignment of error, husband argues that the trial court
erred in awarding wife a monetary value for her portion of the traveler points, rather
than distributing them in kind. Regarding the traveler points, the magistrate made
the following findings:
Due to the nature of [husband]’s profession, this party is
required to frequently travel to provide audiovisual services on a
contracted basis. This frequent travel resulted in accumulation of
significant amounts of award points as regarding this party. [Wife]
requested that the parties equitably divide the cash value of the points,
while [husband] requested that the existing point balances be divided
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OHIO FIRST DISTRICT COURT OF APPEALS
equally between the parties and that points be transferred into reward
accounts to be established by [wife]. [Wife] countered, noting that a
significant number of Delta points had been liquidated by [husband]
during the pendency of this matter, with an estimated 2,470,655 points
out of 2,763,485 being utilized by [husband] for personal trips. Notable
among this point liquidation was the utilization of 1,710,000 miles to
purchase tickets for [husband] and his children for a trip to Rome that
was subsequently cancelled; the unused points were never returned to
the master account and were asserted by [wife] to have been ‘paid out’
via voucher for future travel.
For purposes of reconciliation, the value of Hyatt points was
demonstrated to amount to $13,337.49, the value of Marriott points was
demonstrated to amount to $16,105.29, the value of the Hilton points
was demonstrated to amount to $2,659.43, the value of IHG points was
demonstrated to amount to $799.56, the value of Wyndam points was
demonstrated to amount to $15.29, the value of the United Airlines
points was demonstrated to amount to $6,146.02. Exclusive of Delta
Airlines points, the cash value of the referenced traveler’s points
amounts to $39,493.45.
Regarding the Delta Airlines points, some 540,485 points
remain in the account net of the allegedly personal trips taken by
[husband] during the course of this action. While it is at least arguable
that the trips to Boston, Florida, Denver and Las Vegas may have been
somehow work-related, it is inarguable that the 1.7 million points
associated with the cancelled trip to Rome were never credited back to
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OHIO FIRST DISTRICT COURT OF APPEALS
the account. For purposes of asset equalization, the Court determines
that 2,250,485 Delta Airlines credits are subject to valuation and
division (the remaining 540k points plus the 1.7 million points
associated with the Rome trip); the total cash value of the referenced
points is deemed to be $31,731.84. The total cash value of all traveler’s
points is deemed to amount to $71,225.28 ($39,493.45 non-Delta assets
and $31,731.84 Delta assets).
{¶51} Accordingly, the magistrate attributed $35,612.65 (half of $71,225.28)
to each party for purposes of property equalization and ultimately ordered, as part of
the property equalization payment, that husband pay wife this estimated cash value
for her half of the points. The trial court overruled husband’s objection as to this issue,
finding that wife was entitled to the cash value of her share of the points. The
magistrate’s decision was then fully incorporated into the final divorce decree.
{¶52} Husband argues that this award was in error as the trial court did not
make any finding that distributing the traveler points in kind would be impractical or
burdensome. In doing so, he points to R.C. 3105.171(E)(2), which states, “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.”
{¶53} Wife argues the trial court did not make a distributive award as it was
undisputed that the points were marital property, so the award did not come from
separate property, as is necessary for a distributive award.
{¶54} A “distributive award” is defined as “any payment or payments, in real
or personal property, that are payable in a lump sum or over time, in fixed amounts,
that are made from separate property or income, and that are not made from
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OHIO FIRST DISTRICT COURT OF APPEALS
marital property and do not constitute payments of spousal support, as defined in
section 3105.18 of the Revised Code.” (Emphasis added.) R.C. 3105.171(A)(1).
{¶55} In Schwark v. Schwark, 2012-Ohio-3902 (3d Dist.), the court held that
the trial court’s order for husband to pay an equalization payment to wife in order to
effectuate an equal division of marital assets was not a distributive award because the
court was ordering “a division of the martial assets to equalize the division of marital
property between the parties,” so “there was no award of separate property.”
(Emphasis in original.) Schwark at ¶ 9-11, 33, 35.
{¶56} Similarly, in O’Rourke v. O’Rourke, 2010-Ohio-1243 (4th Dist.), the
court held that the trial court did not make a distributive award by ordering husband
to pay an equalization payment where the property at issue was marital because the
payment was “an award to equalize the division of marital property,” rather than an
award from husband’s separate property. O’Rourke at ¶ 19.
{¶57} Here, the trial court determined the total value of the parties’ traveler
points, which were considered to be marital property, and then awarded wife the cash
value for her equity in these points for the purposes of calculating the ultimate
property equalization payment to divide the marital property. In doing so, the trial
court was not making a distributive award as there was no award from husband’s
separate property. Consequently, because the trial court was not making a distributive
award, the trial court was not required to make a finding under R.C. 3105.171(E)(2)
that distribution of the marital property in kind would be impractical or burdensome.
Therefore, we overrule the fourth assignment of error.
III. Wife’s Motion for Expenses under App.R. 23
{¶58} Post-briefing, wife filed a motion for attorney fees and costs under
App.R. 23, asserting that husband’s appeal was frivolous and stated no reasonable
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OHIO FIRST DISTRICT COURT OF APPEALS
grounds for review.
{¶59} App.R. 23 provides, “If a court of appeals shall determine that an appeal
is frivolous, it may require the appellant to pay reasonable expenses of the appellee
including attorney fees and costs.” “An appeal is deemed frivolous under App.R. 23
when it does not present any reasonable question for review.” Burdge v. Supervalu
Holdings, Inc., 2007-Ohio-1318, ¶ 22 (1st Dist.), citing Riley v. Supervalu Holdings,
Inc., 2005-Ohio-6996, ¶ 29 (1st Dist.). “The decision of whether to award attorney
fees for frivolous conduct rests within the sound discretion of this court.” Rodriguez
v. Catholic Charities Corp., 2022-Ohio-1317, ¶ 59 (8th Dist.), citing Cominsky v.
Malner, 2004-Ohio-2202, ¶ 26 (11th Dist.).
{¶60} Wife argues that husband’s appeal does not present a reasonable
question for review as his arguments are not grounded in fact or law. In support of
this argument, she points to Hunter v. Rhino Shield, 2024-Ohio-261 (10th Dist.). In
Hunter, the Tenth District held that an appeal was not grounded in fact or law, and
thus frivolous, where “[s]ettled legal questions that were the law of the case were
treated as unresolved and subject to dispute.” Id. at ¶ 47. Further, the party at issue
in that appeal attempted to bring breach-of-contract claims against multiple parties
who were not parties to the contract, one of which was not even in existence at the time
the contact was formed, and the party failed to make any good-faith argument for
extension, modification, or reversal of existing law, or establishment of new law. Id.
Thus, the party was bringing claims/making an argument that was clearly not
supported under existing law.
{¶61} Here, we do not have a situation where arguments were presented that
were already addressed in previous appeals, nor any claims or arguments that were
clearly not supported under existing law.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶62} Wife further asks this court to find that husband’s appeal was frivolous
because he failed to cite any legal authority for even the standard of review, let alone
the issues raised. In support of this request, she first points to Cominsky v. Malner,
2006-Ohio-6205 (11th Dist.). However, a review of this case reveals that the court
held the appeal to be frivolous where the appeal raised issues that the court had
already addressed in previous appeals, as well as raised an issue with no citation to
relevant legal authority. Id. at ¶ 26-46. Here, husband did not raise any issues that
were already addressed in previous appeals.
{¶63} Wife further points to Winkle v. Southdown, Inc., 1993 Ohio App.
LEXIS 4295 (2d Dist. Sep. 3, 1993) in support of this argument. However, the court
in Winkler held that the appeal was frivolous where “all assignments of error [were]
clearly without merit under settled principles of law.” Id. at *20. The court did not
hold that the appeal was frivolous for failing to point to relevant legal authority.
{¶64} It is true that husband failed to point to any relevant legal authority in
bringing this appeal. However, he included citations to the record, and this was
ultimately a fact-intensive appeal. And while his arguments could have been more
well-developed and were ultimately not meritorious, it cannot be said that the appeal
presented no reasonable question for review. Therefore, this court finds wife’s motion
for expenses under App.R. 23 not well taken and denies the same.
IV. Conclusion
{¶65} For the foregoing reasons, we overrule husband’s assignments of error
and affirm the judgment of the trial court. Further, we deny wife’s motion for expenses
under App.R. 23. Costs will be awarded under App.R. 24 in the judgment entry
accompanying this opinion.
Judgment affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
BOCK and MOORE, JJ., concur.
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