COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59675 MONICA ANGELONE : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JAMES A. ANGELONE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. D-190160 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: EDWARD L. JOSEPH Celebrezze & Joseph 668 Euclid Avenue Atrium Office Plaza, Suite 100A Cleveland, Ohio 44114 For Defendant-Appellant: GEORGE C. ZUCCO 1525 Leader Building Cleveland, Ohio 44114 -2- SPELLACY, J.: On October 26, 1973, plaintiff-appellee Monica Angelone ("appellee") and defendant-appellant James Anthony Angelone ("appellant") were married. Four children were born as issue of said marriage, to-wit: Augustine, d.o.b. July 3, 1976; James Anthony, Jr., d.o.b. September 12, 1977; Ann Marie, d.o.b. January 20, 1980; and Francis, d.o.b. February 9, 1982. On November 3, 1988, appellee filed a complaint for divorce. On January 25, 26 and 29, 1990, the trial court conducted a trial regarding the issues raised in appellee's complaint and appellant's answer. Appellant did not contest custody of the minor child, thus, the only issues to address were a division of the marital assets and an award of child support and/or alimony. At trial, appellee testified about her earning capabilities and the marital assets that were accumulated during the marriage. Appellee further testified about her living expenses and costs of raising the four minor children. Appellee then presented the testimony of Wayne Wachtell, a real estate broker. Wayne Wachtell conducted an appraisal of the marital home located at 7571 Dawn Haven Drive in Parma, Ohio. He stated that the fair market value of the property was $77,200, subject to a first mortgage with $20,000 still due and owing. Wayne Wachtell also testified about his appraisal of the commercial building which housed DAK's Tavern in Parma, Ohio, a -3- business which appellant had a one-third interest in. Wayne Wachtell appraised the building at $148,000./1\ Appellee also presented the testimony of Martha Johnston, a self-employed accountant. Martha Johnston was hired by appellee in order to audit and value the three businesses that appellant had interests in, i.e. DAK Management, N.J.F. Incorporated, and Genco Olive Oil Company./2\ Martha Johnston testified that appellant's one-third interest in DAK's Management could be as low as $23,000 or as high as $30,000. With regard to Genco Olive Oil Company and N.J.F., Inc., Martha Johnston provided extensive testimony pertaining to both Taverns in Wickliffe and Parma, Ohio. Martha Johnston analyzed the income, expenses and the assets of the respective businesses. Martha Johnston claimed that appellant had some unreported income. Appellant testified at trial, but he was called to the stand by appellee as if on cross-examination. Appellant testified that he earns approximately $33,000 a year from the three businesses. Appellant presented further testimony regarding the three /1\ One page of the trial transcript indicates that the appraisal was for $548,000. However, reviewing the entire testimony of Wayne Wachtell, we find that the value of $548,000 was a typographical error. /2\ N.J.F., Inc. owns the DAK's Tavern which is located in Wickliffe, Ohio; Genco Olive Oil Company owns the DAK's Tavern which is located in Parma, Ohio; and DAK Management owns the building which houses the DAK's Tavern in Parma, Ohio. -4- businesses, the marital assets, his expenses and other interests he may have. The first witness appellant called to testify on his own behalf was Ronald Monyak, a real estate appraiser. Ronald Monyak testified that he also did an appraisal of the marital home located at 7571 Dawn Haven Road in Parma, Ohio. He came to the conclusion that the fair market value was $84,536. Paul Ballou, a real estate appraiser, was the next witness to testify on behalf of the appellant. It was Paul Ballou's opinion that the building which housed the DAK's Tavern in Parma, Ohio had a value of $110,000. The last witness to testify was Bernard McKinney, the accountant for the three businesses in which appellant had interests. Bernard McKinney stated that the average value of appellant's one-third interest in all three business was $15,820./3\ On March 23, 1990, the trial court issued its judgment entry of divorce./4\ For purposes of this appeal, the trial court made the following relevant findings: Appellant is gainfully employed and earns approximately $75,000 to $100,000 gross annually. Appellant is the owner of three undivided one-third interests in DAK Management, Genco /3\ Bernard McKinney's analysis of the valuations of the three businesses used a "high, low and average" comparison. /4\ It must be noted that the trial court's judgment entry of divorce basically adopted appellee's proposed judgment entry which was filed on February 22, 1990. -5- Olive Oil Company, and N.J.F., Inc. His financial interests in the three businesses are $29,541.66, $28,394.00, and $25,882.50, respectively. In the divorce judgment entry, the trial court awarded custody of the minor children to appellee and ordered appellant to pay child support based upon a salary of $75,000 to $100,000. The trial court also divided the marital assets with appellee receiving the marital home, the household goods and furnishings, the 1987 Dodge Caravan, and fifty per cent (50%) of appellant's pension plan. Appellant was awarded his one-third interests in DAK Management, Genco Olive Oil Company and N.J.F., Inc. and the 1986 Dodge Truck. Appellant was ordered to continue to pay the first mortgage on the marital home for a period of five years and to make payments on the 1987 Dodge Caravan. Appellant was also ordered to pay appellee $15,669.08, at $200 per month, representing the difference between the assets awarded to each party. Finally, the trial court ordered appellant to pay appellee's attorney's fees in the amount of $5,038.00. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE JUDGMENT OF THE TRIAL COURT IS CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THAT IT RELIED UPON AN UNQUALI- FIED EXPERT'S OPINION REGARDING THE VALUE OF APPELLANT'S BUSINESS. II. THE TRIAL COURT ABUSED ITS DISCRETION AND ENTERED JUDGMENT AGAINST THE MANIFEST WEIGHT -6- OF THE EVIDENCE IN THAT ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE INCONSISTENT. Appellant's assignments of error will be addressed together since they both argue that the trial court's findings were against the manifest weight of the evidence. The trial court is vested with broad discretion in fashion- ing an equitable division of property and alimony arrangement in divorce proceedings. Cherry v. Cherry (1981), 66 Ohio St. 2d 348, paragraph two of the syllabus. However, that discretion is not without limits. Worthington v. Worthington (1986), 21 Ohio St. 3d 73. A reviewing court should determine whether the award is fair, equitable and in accordance with the law. Kaechele v. Kaechele (1988), 35 Ohio St. 3d 93, 94. Further, a reviewing court should not substitute its judgment for that of the trial court unless, considering the totality of the circumstances, it finds that the trial court exhibited an attitude which was unreasonable, arbitrary or unconscionable. Cherry, supra. In the instant case, appellant initially argues that the trial court erred in finding that his annual salary is approximately $75,000 to $100,000. At trial, appellant explicitly stated that he earns $33,000 annually. The only evidence that tends to prove that appellant earns more was in the testimony of Martha Johnston. Martha Johnston testified that there is some "unreported income" somewhere. However, there is nothing in the record that -7- demonstrates that appellant's annual income is $75,000 to $100,000. Furthermore, appellee submitted tax returns for the years 1986, 1987 and 1988, but none of them reflects an annual income of $75,000 to $100,000. Appellee failed to provide any evidence that shows appellant's actual income. Moreover, the discrepancy between $75,000 and $100,000 clearly indicates that the trial court was unable to determine appellant's annual income. It appears that the trial court speculated as to his income. Thus, we conclude that there was not a proper determination of appellant's annual income. Appellant next argues that the trial court erred in failing to properly value his one-third interests in DAK Management, Genco Olive Oil Company, and N.J.F. Inc. Upon a review of the trial court's findings regarding appellant's interests in the three businesses, we find no evidence or any testimony that supports said findings. Admittedly, both parties presented conflicting evidence pertaining to this issue, and the trial court was required to arrive at a proper valuation. However, there is nothing in the record to support the trial court's findings that appellant's financial interests in the three businesses were $29,541.66, $28,394.00, and $25,882.50. The figures presented by appellee's expert witness, Martha Johnston, are completely inconsistent with the trial court's findings. Likewise, the valuations presented by appellant's -8- expert witness, Bernard McKinney, were totally irreconcilable with the trial court's findings. Based upon a careful review of the record, we find that the trial court erroneously adopted inaccurate values as to appellant's one-third interests in DAK Management, Genco Olive Oil Company and N.J.F., Inc. Accordingly, we conclude that the trial court's order was not fair and equitable considering the circumstances of the case. Clearly, the trial court abused its discretion in its division of marital assets and its award. Appellant's assignments of error are well taken and are sustained. The trial court's division of marital assets and award of child support are reversed. We remand the case for further proceedings in order to establish appellant's annual income and the present values of appellant's interests in DAK Management, Genco Olive Oil Company and N.J.F., Inc. Trial court judgment is reversed and this case is remanded for further proceedings consistent with this opinion. -9- This cause is reversed and remanded for further proceedings consistent with this journal entry and opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. FRANCIS E. SWEENEY, P.J., AND BLACKMON, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .