COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60812 LINDA R. NEHODA : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION SCOTT F. NEHODA : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : SEPTEMBER 10, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Domestic Relations Division : Case No. CP D-195453 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: ROBERT S. PASSOV, ESQ. NEAL P. LAVELLE, ESQ. 75 Public Square 860 Leader Building Suite 914 Cleveland, Ohio 44114 Cleveland, Ohio 44113 - 2 - ANN McMANAMON, P.J.: Scott Nehoda ("the husband") appeals an order of the Common Pleas Court, Division of Domestic Relations, granting a divorce to the parties by reason of incompatibility. In five assignments 1 of error the husband principally challenges the division of property as well as rulings on evidence and post trial motions. In 1987, the year the wife commenced these proceedings, the parents had three children, aged thirteen, ten, and seven. The husband, who was a self employed construction contractor, purportedly suffered from recurrence of a depression during pendency of the suit and ceased working. The wife maintained full time employment while she completed studies for an undergraduate degree. A referee ultimately conducted a series of hearings which concluded on April 13, 1990. On May 11, 1990, the referee issued her report and recommendations. Both parties objected to the report. Four months later, the trial court overruled the wife's objections and sustained the husband's in part, approving the recommendation of the referee with modifications. On October 11, 1990, the court journalized the entry of divorce, which is the subject of this appeal. During pendency of the matter in this court, the husband filed motions for relief from judgment and new trial pursuant to Civ. R. 60(B)(3) and 59(A)(1), (2) and (3) without first 1 See Appendix - 3 - obtaining a remand. The trial court overruled both of these motions without a hearing. A year later, on February 12, 1992, the husband sought and was granted a limited remand to file motions for relief from judgment pursuant to Civ. R. 60(B)(5) and for new trial pursuant to Civ. R. 59. The trial court overruled both of these motions on May 11, 1992. These matters are not presently before us. In his first assignment of error, the husband posits that the trial court's findings are against the manifest weight of the evidence. In his second assignment, he urges the court abused its discretion in granting the wife the use of the marital residence for five years without compensating the husband since he had operated his business from a basement office in the house. Because these assignments are related, they will be addressed together. The husband essentially argues that the trial court, in adopting the referee's report, erred in finding that the earning abilities of the parties were the same and in granting the wife the free use of the parties' residence. In reviewing a judgment of the trial court, we are guided by the presumption that the findings of the trier-of-fact were correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. It is well established that judgments will not be reversed - 4 - by a reviewing court as being against the manifest weight of the evidence, where they are "supported by some competent, credible evidence going to all the essential elements of the case." C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. In the present case, the court expressly adopted the findings of fact and conclusions of law contained in the referee's report, with minor modifications, incorporating them into his order. A review of the husband's objections indicates that he did not object to the following language in the referee's report at page five, "The parties' earning abilities are similar." Civ. R. 53(E)(6) provides, "a party may not assign as error the court's adoption of a referee's finding of fact unless an objection to that finding is contained in that party's written objections to the referee's report." See, also, Proctor v. Proctor (1988), 48 Ohio App.3d 55. Since the husband failed to make such an objection to the finding of fact he now disputes, we deem the issue waived for appellate purposes. The husband, however, did preserve for appeal the court's award of the marital home for the use of the wife for a period of five years, after which it was to be sold and the proceeds divided equally among the parties. It is well established that a trial court has broad discretion to determine equitable property division in a divorce proceeding. Worthington v. Worthington (1986), 21 Ohio St.3d 73; - 5 - Cherry v. Cherry (1981), 66 Ohio St.2d 348. We will not disturb the trial court's division of marital property absent an abuse of discretion, which implies the court's judgment is "unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. The division of property should not be guided by flat rules, rather, it must depend upon the facts and circumstances of each case. Cherry, supra at 355. In Ranz v. Ranz (1988), 51 Ohio App.3d 66, the court considered a husband's challenge of the award of the marital residence to the wife, arguing that, since he purchased it before the marriage, it should be awarded to him. The court held the award was not an abuse of discretion since the wife was granted custody of the couple's two children, the monthly mortgage payment was low and "such housing expense for a family of three likely could not have been found elsewhere," and the husband was reimbursed his purchase money and one half of the appreciation in the value of the house during the marriage. Id. at 67. In the present case, the wife was awarded custody of the couple's three minor children. Although the wife is not required to make mortgage payments on the house as in Ranz, she is ordered to pay the taxes and insurance as well as all repairs of under one hundred dollars during her occupancy. We do not find that this order, which provides a home for the minor children and their custodial parent for five years, to be unreasonable. We also hold this disposition is equitable since the proceeds of the - 6 - sale of the property at the later date are to be divided equally among the parties. During the course of the marriage, the husband operated a construction business out of the marital residence and stored his equipment, including a truck and cement mixer, in an extended garage on the property. Although the husband may incur additional expenses in securing office space and a garage, the court could reasonably conclude these efforts would be preferable to dislocating the children and their caretaker from their home. We further note that the husband will share equally with the wife any appreciation of the value when the house is eventually sold. Thus, we conclude the court did not abuse its discretion in any aspect of this award. In a supplemental brief, the husband cites additional authority to demonstrate the court failed to consider the tax consequences in its disposition of the marital residence. We hold that the husband is precluded from raising this issue on appeal since he did not raise it in his objections to the referee's report. Proctor, supra. Accordingly, the first and second assignments of error are not well taken. In the third assignment of error, the husband argues the court erred in failing to take tax consequences into consideration when it ordered that the parties' stocks be sold - 7 - and the proceeds applied to reduce a home equity loan balance at Trans Ohio Savings. The husband correctly observed in his brief on appeal that, "[t]ax consequences of property division are proper considerations for the court so long as those consequences are not speculative." Day v. Day (1988), 40 Ohio App.3d 155, 159. Upon review, we find the husband has not demonstrated that the court did not consider the tax consequences in regard to the sale of the securities. The matter was, in fact, fully argued and briefed in the course of the proceedings. The record reflects that, two days after the wife filed for divorce, the husband withdrew $49,000 from a home equity line of credit. He testified he did so because he suffered from depression and was unable to work. He averred he used the money for living expenses for himself and his children. It is undisputed that the wife worked full time during this period and attended college. By the time the divorce was granted the husband had paid back $34,000, leaving an outstanding balance of almost $15,000. The satisfaction of this marital debt at the time of the divorce was necessarily a primary concern of the trial court. A review of the parties' assets as well as the parties' patent inability to resolve their differences, financial or otherwise, made an immediate resolution of property issues both necessary - 8 - and beneficial to them. We find no abuse of discretion in the court's order that the securities be sold to achieve this end. We note that the husband cites R.C. 3105.17.1(F)(6) which mandates consideration of tax consequences in making a property division. This statute was not effective until three months after the divorce decree and is thus inapplicable. A statute may not be retrospectively applied unless there has been a prior determination that the General Assembly has specified that the statute so apply. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, paragraph two of syllabus. See, also, R.C. 1.48 ("A statute is presumed to be prospective in its operation unless expressly made retrospective.") R.C. 3105.17.1 does not contain any language, expressly or otherwise, indicating that the General Assembly intended that it be applied retrospectively. Therefore, we conclude the statute has no retrospective application and cannot be considered on appeal. Accordingly, the third assignment of error is not well taken. In his fourth assignment of error, the husband posits that the trial court erred on February 8, 1991, in overruling his motions for relief from judgment pursuant to Civ. R. 60(B)(3) and for new trial, both of which were filed on January 11, 1991. He also urges error in the court's failure to conduct an oral hearing on them. - 9 - As we have already noted, the husband filed these motions in the trial court during the pendency of this appeal without an order of remand from this court. On January 29, 1991, we denied the husband's motion for a limited remand. Based upon this ruling, the trial court had no jurisdiction to entertain the motions. Thus, both motions were presumptively denied on procedural grounds. In Majnaric v. Majnaric (1975), 46 Ohio App.2d 157, the court stated: "When an appeal is pending, the trial court is divested of jurisdiction except to take action in aid of the appeal. The trial court is without power to grant relief under Civ. R. 59 or to vacate, alter, or amend the judgment under Civ. R. 60(B) whether the 60(B) motion is made prior to or after the appeal is taken, except with permission of the appellate court ***." Id. at paragraph one of syllabus. The court added: "Where a motion to vacate a judgment is pending in the trial court and an appeal is also pending from the same judgment, the appellant may move the appellate court, for good cause, to remand the matter to the trial court for a hearing on the motion to vacate." Id. at paragraph two of syllabus. Accordingly, the fourth assignment of error is overruled. In his final assignment of error, the husband contends the referee erred in refusing to admit two exhibits labeled "F" and "G" at the hearing. - 10 - Exhibit F is styled "Linda's cash accounting (1988)" and Exhibit G is titled "Deposits - Cash Back Cash Withdrawals Possible Cash." These unadmitted exhibits contain a synopsis of purported deposits and withdrawals made by the wife in 1988 and 1989 on jointly owned accounts. Both exhibits were admittedly prepared by the husband because "he needed [them] to testify to the facts that they set forth." The record reflects that, although papers labelled "F" and "G" are in the file, the husband did not proffer them for our review. By reason of this failure, there is no basis upon which to review the alleged error. United Department Stores No. 1, et al v. Continental Casualty Co. (1987), 41 Ohio App.3d 72, 75. Even if the exhibits were proffered for our review, they were properly excluded since an examination demonstrates they constitute inadmissible hearsay proscribed by Evid. R. 801(C). In the divorce judgment entry, the court observed: "Defendant prepared financial statements called questionable deposits and withdrawals from plaintiff's account but was unable to show accuracy of the numbers." The court correctly observed there were serious doubts as to their accuracy since they were prepared in anticipation of litigation. The fifth assignment of error is not well taken and the judgment of the trial court is affirmed. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas, Domestic Relations Division 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. JAMES D. SWEENEY, J., and HARPER, J., CONCUR. ANN McMANAMON PRESIDING 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. - 13 - APPENDIX I. "The court erred in approving the trial referee's findings and recommendations which were erroneous and against the manifest weight of the evidence." II. "The court erred in abusing its discretion by giving appellee exclusive use of the marital home for five years or until her death or remarriage and ordering appellant to remove his business from the home, effectively destroying appellant's construction business, all without compensation to the appellant." III. "The court erred in not taking into consideration the tax consequences of its order for the sale of the appellant's stocks." IV. "The court erred in denying appellant's motion for new trial and his 60(B) motion for relief from judgment without a hearing where there has been properly raised by motion and supported by affidavits the allegation of fraud, misconduct and impropriety of the trial referee." V. "The court erred in refusing to admit appellant's evidentiary exhibits and 'F' and 'G'." .