COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67268 VERA HAMMOND : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION MARK BROWN : : Defendant-appellee : : DATE OF ANNOUNCEMENT : SEPTEMBER 14, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. D-214135 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: KEVIN J.M. SENICH, ESQ. DANIEL S. CHAPLIN, ESQ. Suite 525 330 Standard Bldg. 75 Public Square Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, C.J. At issue in this domestic relations appeal is the trial court's division of marital assets accumulated during the marriage of plaintiff-wife Vera Hammond and defendant-husband Mark Brown. The wife maintains the trial court abused its discretion by adopting a referee's report which (1) failed to equitably divide marital property; (2) failed to find the husband had engaged in financial misconduct through dissipation of marital assets; and (3) ignored relevant equitable factors favoring a distributive award of marital assets. A referee conducted a trial and issued a report and recommendations. The factual findings contained in the report are not contested. The parties lived as husband and wife from 1982 through July 1991. They had no children. The wife is a nurse; the husband is an engineer, although for the first five and one half years of the marriage he attended college and worked part time as a bartender. Because the parties maintained separate checking accounts, the referee was able to trace which spouse paid for a particular expense. At the start of the marriage, the wife contributed nearly all of the living expenses, including paying for about ninety-five percent of the husband's college education. In 1986, the parties listed combined net income of approximately $30,000. When the husband finished his schooling and became employed, that figure rose to approximately $78,000 by 1990. Despite the increased net - 3 - income, the wife continued to pay the household bills with her own funds. In 1984, the parties purchased a house which was cited with over fifty building code violations. The parties agreed the husband would perform the work needed to bring the house up to code. While the husband remedied the code violations, it took over four years to do so and he did not completely finish all the work he had started. The wife paid the remodeling expenses. The parties stipulated to the value of the marital assets, differing only as to the proper division of those assets. The referee recommended a nearly equal division of the net marital estate of $50,930. The wife received title to the house and her pension valued at $6,070. The husband received a $3,200 bank account held by the wife and a judgment in the amount of $22,300. Both parties filed objections to the referee's recommendations, but 1 they were overruled by the trial court. I. The wife first argues the trial court erred by approving the referee's recommendations because they do not divide the property equitably. She maintains the referee ignored the relative contributions of the spouses, instead opting to divide the marital 1 There is a discrepancy in the trial court's judgment relating to the amount of the wife's pension. The court listed the pension as valued at $6,700, while the referee valued the pension at $6,070. This discrepancy is of no moment, however, since the court clearly intended the wife receive the value of the pension itself, regardless of the amount. In any event, the husband does not contest the valuation for purposes of appeal. - 4 - assets equally. In the wife's view, this created an inequitable division of marital assets because she made the greater financial contribution to the marital estate. Each spouse is considered to have contributed equally to the production and acquisition of marital property. R.C. 3105.171(C)(2). R.C. 3105.171(C)(1) directs the court to divide marital property equally; however, if an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide the property between the spouses in the manner the court determines to be equitable. In making a division of marital property, the court is required to consider the factors set forth in R.C. 3105.171(F). The trial court has broad discretion when dividing marital property. Berish v. Berish (1982), 69 Ohio St.2d 318, 319. It is apparent that R.C. 3105.171 provides no set rules for the division of marital property, so each case depends upon its facts. Cf. Cherry v. Cherry (1981), 66 Ohio St.2d 348; Briganti v. Briganti (1984), 9 Ohio St.3d 217, 218. The scope of our review is limited to a determination whether the trial court abused its discretion. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217; Terry v. Terry (1994), 99 Ohio App.3d 228, 232. An "abuse of discretion" is action that is unreasonable, arbitrary or unconscionable. Blakemore, supra. The referee did not err by refusing to consider one spouse's financial contribution to the marriage as an equitable factor - 5 - favoring a larger award of the marital estate. The referee addressed the wife's arguments as follows: "It is impossible to quantify each spouse's contribution to the marital estate, in this or any other case, because not all contributions are financial. Is a housewife who never earns any money in the work place entitled to less than half of the marital assets because the husband's income produced all the assets? Should the court consider the quality of her housekeeping abilities in determining property division? If one spouse has employment which generates less income than the other should the court compensate the other more highly paid spouse with a greater amount of property? If a spouse is just `lazy' and fails to help with maintenance and repairs to the marital home, should the `worker' spouse be awarded more than half the marital estate?" R.C. 3105.171(C)(2) states, "[e]ach spouse shall be considered to have contributed equally to the production and acquisition of marital property." Thus, the statute contemplates the individual abilities of the spouses are intangible assets that contribute equally to the partnership formed upon marriage. See Clark v. Joseph (1994), 95 Ohio App.3d 207, 213-214; Dreher v. Dreher (Mar. 29, 1995), Pike App. No. 93 CA 537, unreported. R.C. 3105.171(C)(2) wisely removes the considerations the wife advocates from the courts since it is impossible to quantify the non- 2 financial contribution one spouse makes to a marriage. 2 We note R.C. 3105.18(B), which sets forth factors the court should consider when making a determination of spousal support, specifically directs the court to consider the contribution of a spouse as a homemaker. See R.C. 3105.18(B)(11). Had the General Assembly intended the courts consider the contribution of a spouse when dividing the marital estate, it could have done so. The absence of such a requirement - 6 - Our review of the record fails to show the trial court acted in an arbitrary or unreasonable manner by overruling objections to the referee's report and recommendations; therefore, no abuse of discretion has been shown. II. The wife next argues the trial court's adoption of the referee's recommendation the husband had not engaged in financial misconduct is against the manifest weight of the evidence. She further argues the referee improperly placed the burden of establishing financial misconduct on her. She maintains the difficulty of proving financial misconduct suggests a spouse need only establish a prima facie case of financial misconduct so as to shift the burden to the other spouse to rebut or explain the alleged misconduct. R.C. 3105.171(E)(3) states, "[i]f a spouse has engaged in financial misconduct, including, but not limited to, the dissipation of assets, the court may compensate the offended spouse with a distributive award or with a greater award of marital property." A finding of financial misconduct is subject to review based on the weight of the evidence supporting that finding. Babka v. Babka (1992), 83 Ohio App.3d 428, 436. The court's decision to compensate the offended spouse with a distributive award or with a therefore suggests all property should be considered a joint enterprise of the marriage. - 7 - greater award of marital property is subject to review for an abuse of discretion. Berish v. Berish, supra. Addressing the issue of burden of proof, we find the referee did not err by placing the burden of proving financial misconduct on the wife. In Ayers v. Woodward (1957), 166 Ohio St. 138, paragraph three of the syllabus states: "A presumption is a procedural device which is resorted to only in the absence of evidence by the party in whose favor a presumption would otherwise operate; and where a litigant introduces evidence tending to prove a fact, either directly or by inference, which for procedural purposes would be presumed in the absence of such evidence, the presumption never arises and the case must be submitted to the jury without any reference to the presumption in either a special instruction or a general charge." Presumptions are indulged in only to supply facts; they must be based upon some necessity and will not be used when direct proof can be obtained. Id. at 144. "Thus, if a plaintiff has sought the aid of a presumption by nonproduction of evidence and the defendant introduces evidence of a substantial nature which at least counterbalances the presumption, then it disappears." Id. at 144- 145; Moore v. Retter (1992), 72 Ohio App.3d 167, 176. An implicit element of financial misconduct is wrongdoing. Thus, while R.C. 3105.171(E)(3) does not set forth an exclusive listing of acts constituting financial misconduct, those acts that are listed (dissipation, destruction, concealment, or fraudulent disposition) all contain some element requiring wrongful scienter. Typically, the offending spouse will either profit from the - 8 - misconduct or intentionally defeat the other spouse's distribution of marital assets. Because financial misconduct involves some element of profit or interference with another's property rights, the time frame in which the alleged misconduct occurs may often demonstrate wrongful scienter. For example, diminution of the marital estate during the pendency of a divorce action might create an inference of misconduct. See e.g., Spychalski v. Spychalski (1992), 80 Ohio App.3d 10 (dissipation of wrongful death settlement obtained while parties divorce complaint pending); Hamblin v. Hamblin (Oct. 18, 1993), Butler App. Nos. CA93-03-044 and CA93-03-048, unreported (buying new truck and redeeming life insurance policy contrary to restraining order). In addition, actions diminishing marital assets at the time of the parties' permanent separation could be considered misconduct. See e.g., Babka, supra (account liquidated "just prior to the parties' divorce"); Gray v. Gray (Dec. 8, 1994), Cuyahoga App. No. 66565, unreported (transferring or withdrawing funds during separation period in order to secret them from the other spouse); Lott v. Lott (Sept. 30, 1993), Cuyahoga App. No. 63854, unreported (selling rental property in direct contravention of pending restraining order). In this case, the wife did not allege the financial misconduct occurred at a time that would create a presumption in her favor. She simply argued the alleged financial misconduct occurred before the parties separated in July 1991, at a point before which we - 9 - cannot presume intentional misconduct. There are no allegations the husband personally profited from his actions or engaged in misconduct solely to defeat the wife's interest in the marital estate. Consequently, the trial court did not err by failing to afford the wife a presumption of financial misconduct. The wife's contentions the referee erred by failing to award her a greater share of the marital assets due to the husband's alleged financial misconduct are grounded on two points. First, she complains she and the husband saw no rise in their standard of living, despite seeing their combined incomes more than double in less than four years. Second, the husband could not account for approximately $10,000 withdrawn from his personal checking account in a one year period, other than to say he spent the money on ordinary living expenses such as clothing, food, entertainment and the like. The wife maintains this lack of accountability amounts to financial misconduct. We agree with the referee's conclusions concerning the absence of evidence to support a finding of financial misconduct. The evidence may show the husband spends money more freely than the wife, but that spending, standing alone, does not amount to financial misconduct under the circumstances. Accordingly, we conclude the trial court did not abuse its discretion by adopting the referee's report and recommendations. III. - 10 - Finally, the wife argues the trial court abused its discretion by adopting the referee's report and recommendations because there were relevant and equitable factors beyond those listed in R.C. 3105.171(F) which favored awarding her a larger distributive share of the marital property. R.C. 3105.171(F) sets forth various factors the court shall consider when making a division of marital property. R.C. 3105.171(F)(9) allows the court to consider "any other factor that the court expressly finds to be relevant and equitable." The wife maintains the court should have considered two factors not listed in the statute. First, she believes she should have been reimbursed for paying the husband's tuition because he testified he did not need a college degree in order to obtain his current employment. Second, she believes the husband's ineffectual attempts to repair and remodel the house weighed heavily in her favor, but the referee ignored this fact, instead focusing on her own failure to repair the house after the husband moved out. We find the trial court did not abuse its discretion by adopting the referee's findings because the wife's assertions are not borne out in the record. The wife testified to the parties' understanding she "would assist him [the husband] in obtaining his education by taking care of the household expenses." Even after the husband became employed as an engineer, the parties had no formal understanding as to who would pay the bills. Only in 1988, after the wife had financed a new car, did they agree the husband - 11 - would assume the mortgage payments. The wife also testified she and the husband agreed he would make the necessary repairs to their house, realizing that work could take five to ten years to complete. Those repairs did bring the house up to code, albeit in four years rather than the three years ordered by the city. The facts do not demonstrate the trial court's judgment entry ignored equitable factors favoring a different division of marital property. Accordingly, we find the trial court did not abuse its discretion by adopting the referee's report. The assigned errors are overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant his 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 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. HARPER, J. PORTER, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .