COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67557 VIOREL TARACHIU : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MARCELA TARACHIU : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Court, No. D-211241. JUDGMENT: AFFIRMED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Dale Powers, Esq. 720 Leader Building Cleveland, OH 44114 For Defendant-Appellant: John J. Montello, Esq. 653 Broadway Avenue Suite 200 Bedford, OH 44146 -2- DAVID T. MATIA, P.J.: Defendant-appellant, Marcela Tarachiu, appeals the trial court's adoption of the referee's report and recommendation. Appellant presents four assignments of error concerning the referee's calculation of gross income for child support purposes and the failure of the referee to find plaintiff-appellee's, Viorel Tarachiu, actions constitute financial misconduct. I. STATEMENT OF FACTS On June 25, 1991, plaintiff-appellee, Viorel Tarachiu, filed for divorce. On March 2, 1994, the trial referee issued a report and recommendation granting a divorce as the parties had lived separate and apart, without cohabitation and interruption, for more than one year. See R.C. 3105.01. One child, Christina, was born as issue of the marriage on February 2, 1989. The parties agreed to share parental rights and responsibilities. Christina resides with defendant-appellant, Marcela Tarachiu, pursuant to the parties partial settlement agreement. Appellee is a self-employed truck driver. The referee determined appellee's gross income for purposes of determining child support obligations totaled $17,500 per year. Appellant's gross income was calculated as being $15,184 per year. The referee recommended appellee pay approximately $204 per month in child support. The referee further found the parties' marital assets consisted of a 1984 Mack truck and the couple's residence. The referee concluded an equal division of marital assets was appropriate and awarded the parties $10,200 each. -3- On March 17, 1994, appellant objected to the referee's report and recommendation. Appellant argued the referee erred in calculating appellee's gross income at $17,500 as opposed to the more accurate assessment of $19,859. Appellant further argued that appellee's concealment of marital assets amounts to economic misconduct. Finally, appellant argued the referee erred in failing to award attorney fees based upon appellee's economic misconduct. Appellant's objections were overruled on April 20, 1994. On June 13, 1994, the trial court issued its judgment entry of divorce adopting the referee's report and recommendation. The trial court further ordered appellee to pay $204 per month for the support of the minor child. Appellant timely filed this appeal. II. FIRST ASSIGNMENT OF ERROR Defendant-appellant's, Marcela Tarachiu's, first assignment of error states: THE TRIAL COURT ERRED IN DETERMINING APPELLEE'S INCOME FOR CHILD SUPPORT PURPOSES GIVEN APPELLEE'S SELF-EMPLOYMENT, VOLUNTARY UNEMPLOYMENT, QUESTIONABLE BUSINESS DEDUCTIONS AND IN-KIND PAYMENTS RECEIVED. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN CALCULATING APPELLEE'S GROSS INCOME FOR CHILD SUPPORT PURPOSES. Appellant argues the trial court abused its discretion in adopting the referee's calculations pertaining to appellee's gross income for child support purposes under R.C. 3113.215. Specifically, appellant argues the referee erred in determining -4- appellee's income at $17,500 after finding appellee's lack of income to be "inconsistent" with the evidence and that appellee's overall testimony lacked credibility. Appellant believes appellee's extrapolated gross income for 1990, $19,232, is a more accurate figure to be used for child support purposes. Additionally, appellant argues the referee erred in including only one-half of appellee's meal and entertainment reimbursement as income while R.C. 3113.215 requires the entire reimbursement as income. Thus, an accurate gross income figure for child support purposes would total approximately $21,300. Appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: CALCULATING CHILD SUPPORT R.C. 3113.215 is a comprehensive enactment governing the procedures a court must follow in calculating and awarding child support. Rock v. Cabral (1993), 67 Ohio St.3d 108. The overriding concern of the legislature was to ensure the best interest of the child. See Marker v. Grimm (1992), 65 Ohio St.3d 139. In Marker, the Ohio State Supreme Court summarized the statutory requirements: R.C. 3113.215(B)(1) requires that a calculation of the amount of an obligor's child support obligation must be made "in accordance with" the basic child support schedule set forth in R.C. 3113.215(D), the applicable worksheet in R.C. 3113.215(E) or (F), and other requirements of the law. R.C. 3113.215(E) and (F) both provide a sample or "model" worksheet and each provision directs -5- the court to "use a worksheet that is identical in content and form" to the applicable model provided. R.C. 3113.215(B)(1) further provides that the amount calculated using the schedule and worksheet (through line 18 of the worksheet) is "rebuttably presumed" to be the correct amount of child support due and that amount must be ordered to be paid unless both of the following apply: (a) The court, after considering the factors and criteria set forth in division (B)(3) of this section, determines that the amount calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet, through line 18, would be unjust or inappropriate and would not be in the best interest of the child. (b) The court enters in the journal the amount of child support calculated pursuant to the basic child support schedule and pursuant to the applicable worksheet, through line 18, its determination that the amount would be unjust or inappropriate and would not be in the best interest of the child, and findings of fact supporting that determination. 65 Ohio St.3d 139, 141. Stated differently, "[t]he amount calculated through line 18 of the applicable child support computation worksheet is `rebuttably presumed' to be the correct amount of child support due. Court-ordered deviations from the schedule and worksheet are not permitted absent full and strict compliance with the requirements of R.C. 3113.215(B)(1)(a) and (b)." Rock v. Cabral, 67 Ohio St.3d at 110 (citations omitted). It is well established a trial court's findings and/or computations made in compliance with R.C. 3113.215 will not be disturbed absent an abuse of discretion. See Rock, supra; Booth -6- v. Booth (1989), 44 Ohio St.3d 142. In order for there to be an abuse of discretion on the part of the trial court, its findings must be unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN CALCULATING APPELLEE'S INCOME FOR CHILD SUPPORT PURPOSES. In the case sub judice, the trial court adopted the referee's recommendation that appellee pay $204 per month in child support. The referee not only came to this figure through the application of R.C. 3113.215, but had included the actual child support computation worksheet to the back of her recommendation. See Ingalls v. Ingalls (1993), 88 Ohio App.3d 570. The referee determined appellee's income at $17,500 for purposes of child support obligations. We agree with plaintiff- appellee that from the referee's report, it appears the figure was reached by taking the average of appellee's 1990 and 1991 income pursuant to R.C. 3113.215(A)(5). Appellee's 1990 net profit of $9,300 extrapolated over a twelve month period amounted to $11,200. Added to this figure was $5,665 in deductions not considered an ordinary and necessary expense incurred in generating gross receipts. See R.C. 3113.215(A)(4)(a). Finally, the referee added $2,367, which is one half of what she reasoned was an equitable meal reimbursement appellee received as a truck driver pursuant to R.C. 3113.215(A)(3). -7- We find defendant-appellant's assertion that the referee erred in failing to include the total amount appellee received for reimbursed meals to be merely an unsupported allegation. There is nothing in R.C. 3113.215(A)(3) mandating inclusion of all reimbursed payments as income. Rather, a court, in its discretion, may determine what constitutes gross income after taking into consideration expense reimbursements received by a parent. It is apparent from the recommendation that the referee made a reasoned decision to only include half of appellee's self employed meal reimbursement in the calculation of gross income. The referee did not abuse her discretion in calculating appellee's 1990 gross income for purposes of child support at $19,232. Appellee's 1991 income was calculated to be approximately $14,500. Since appellee only worked two months, his earnings of $2,403 was again extrapolated over a twelve month period to be approximately $14,500. While the precise average of these two incomes would be $16,866, the record reflects an upward adjustment for what the referee found to be a "not very reliable" income figure for 1991. From our review of the record, we cannot agree with appellant that the trial court abused its discretion in adopting the referee's recommendation that appellee's income for child support purposes was $17,500. However, while we agree with the referee that appellee's gross income for child support purposes is $17,500, a review of the computation worksheet reveals the amount of $15,000 was used as -8- appellee's gross income. Since this discrepency affects the monthly child support figure, the case must be remanded back to the trial court for recalculation. While appellant's first assignment of error is not well taken, the case must be remanded for this limited purpose. -9- III. SECOND, THIRD AND FOURTH ASSIGNMENTS OF ERROR Since defendant-appellant's, Marcela Tarachiu's, second, third and fourth assignments of error contain similar issues of law and fact, we will consider them concurrently: II. THE TRIAL COURT ERRED IN NOT FINDING APPELLEE GUILTY OF FINANCIAL MISCONDUCT. III. THE TRIAL COURT ERRED IN DIVIDING THE MARITAL PROPERTY EQUALLY GIVEN APPELLEE'S FINANCIAL MISCONDUCT. IV. THE TRIAL COURT ERRED IN NOT AWARDING DEFENDANT ATTORNEY FEES GIVEN APPELLEE'S FINANCIAL MISCONDUCT. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING AN EQUAL DIVISION OF MARITAL PROPERTY AND IN FAILING TO AWARD APPELLANT ATTORNEY FEES. Defendant-appellant, Marcela Tarachiu, argues the trial court abused its discretion in not finding plaintiff-appellee guilty of financial misconduct. Specifically, appellant argues that appellee dissipated approximately $35,000 in marital funds through, among other things, the purchase on a home in Palm Springs, a van for appellee's parents and questionable investments in Romania. Additionally, appellant claims appellee concealed finances, commingled funds with his parents and spent funds that did not coincide with the lifestyle of the parties. Since these actions constitute financial misconduct, appellant argues the trial court erred by: 1) dividing the marital property equally, and 2) failing to award reasonable attorney fees. Appellant's second, third and fourth assignments of error are not well taken. -10- B. STANDARD OF REVIEW: FINANCIAL MISCONDUCT R.C. 3105.171 requires the trial court to divide marital property in an equitable manner but prescribes no specific method of valuation to be used by the trial court. Focke v. Focke (1992), 83 Ohio App.3d 552. In fashioning an equitable property division, a court starts from the premise that marital property should be equally divided between the parties, with each spouse receiving his or her own separate property. R.C. 3105.171(C), (D); Gray v. Gray (Dec. 8, 1994), Cuyahoga App. No. 66565, unreported. However, there are certain circumstances under which an unequal distribution of marital property is warranted. Pursuant to R.C. 3105.171(E)(3), if a spouse has engaged in financial misconduct, including, but not limited to, the dissipation, destruction, concealment, or fraudulent disposition of assets, the trial court may compensate the offended spouse with a distributive award or with a greater award of the marital property. When reviewing a trial court's division of marital property, an appellate court is limited to determining under the totality of circumstances whether the trial court abused its discretion. Kimber v. Kimber (September 6, 1990), Cuyahoga App. No. 57436, unreported; Verplatse v. Verplatse (1984), 17 Ohio App.3d 99; Holcomb v. Holcomb (1989), 44 Ohio St.3d 128; Gullia v. Gullia (1994), 93 Ohio App.3d 653. -11- C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FAILING TO AWARD AN UNEQUAL DISTRIBUTION OF MARITAL PROPERTY AND ATTORNEY FEES FOR FINANCIAL MISCONDUCT. In the instant case, the referee determined for purposes of R.C. 3105.171, the parties were married from 1986 to 1991. The couples marital property consisted of a 1984 Mack truck and the parties residence totalling $20,400. The referee determined an equal division of property of $10,200 to both parties was warranted pursuant to R.C. 3105.171(C). Appellant cites to several instances where appellee either dissipated, destroyed or concealed their marital assets. However, after reviewing the record, we find appellee countered these assertions by presenting evidence addressing and explaining each alleged act of financial misconduct. Further, we agree with appellee in describing appellant's claims as "mischaracterizations" of appellee's conduct. Appellant has simply failed to provide any substantial and/or credible evidence establishing financial misconduct on the part of appellee. For these reasons, the trial court did not err in awarding the parties an equal division of marital property and in failing to award appellant attorney fees. Appellant's second, third and fourth assignments of error are not well taken. Judgment of the trial court is affirmed; however, the case must be remanded for recalculation of appellee's child support obligation. -12- It is ordered that appellee recover of appellant 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 Domestic Relations 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. TERRENCE O'DONNELL, J. and DIANE KARPINSKI, J., CONCUR. DAVID T. MATIA 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 .