COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69043 JILL K. SAVIOLI : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL SAVIOLI : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. DR-206689 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: WILLIAM F. SNYDER, ESQ. JOAN JACOBS RASMUSSEN, ESQ. One Erieview Plaza, Suite 1200 25000 Center Ridge Road, #6 Cleveland, Ohio 44114 Westlake, Ohio 44145 - 2 - DYKE, J.: Defendant-appellant Michael A. Savioli appeals a decree of 1 divorce granted to him and plaintiff herein, Jill K. Savioli by the Cuyahoga County Court of Common Pleas, Domestic Relations Division. In five assignments of error, appellant claims that the trial court abused its discretion by granting spousal support in the amount of $200 per month for 24 months, by awarding $20,000 or a 29.48% share of his pension plan as well as the marital residence to plaintiff in its marital property division, by awarding attorneys' fees in the amount of $6,000, by changing the possession schedule set forth in his proposed, shared parenting plan and by determining that a $21,000 downpayment on the mortgage of the marital residence constituted separate property of the plaintiff. Upon review, we find appellant's assignments of error to be without merit. Accordingly, we affirm the decree of the domestic relations court. Appellant and plaintiff were married on October 1, 1977. Four children were born as issue of the seventeen and one-half year marriage to wit, Emily (dob; 10/18/78) Regina (dob: 2/11/81), Carmela (dob: 7/13/82) and Pietro (dob: 12/20/84). Plaintiff and appellant filed their claim and counter claim for divorce on 1 Jill K. Savioli did not file an appellee brief in this matter. - 3 - November 16 and December 26, 1990. The matter was heard on January 2 23, February 11, March 5, 16, 30 and April 29, 1992. Appellant, age 39, testified that he was employed as a police detective with an annual income of $36,000; that he worked overtime and that he operated a motor officer equipment business on a limited basis. Plaintiff, age 37, testified that she functioned as the primary caregiver for the parties' four children; that she maintained the running of the family household and that the last time she had been employed was approximately 1983. Testimony and recommendations on issues of shared parenting, primary possession and visitation were offered and submitted to the court by appointed experts Nancy Hunstman, Ph.D., a psychologist with Family Conciliation Services, Kent Minshall, Esq., the children's Guardian Ad Litem and Robert Kirkhart, Ph.D. a psychologist in private practice. A twenty-three page judgment was issued on April 25, 1995 granting both parties a decree of divorce on the ground of incompatibility. The instant appeal followed. I THE TRIAL COURT ERRED IN ITS AWARD OF SPOUSAL SUPPORT TO PLAINTIFF/APPELLEE. 2 The referee issued his report and recommendation on August 6, 1992. The domestic relations court adopted same journalizing its judgment entry on January 11, 1993. Appellant herein appealed and judgment was reversed on the sole procedural ground that the trial court had failed to provide sufficient time for appellant to file objections. Appellant subsequently filed objections which were overruled. The matter is now before this court on the merits. - 4 - In his first assignment of error, appellant claims that the trial court's award of spousal support constituted an abuse of discretion because no substantial evidence was presented that plaintiff was unable to work for her father's company and because plaintiff acquired $100,000 prior to the filing of the action and spent same. In making a spousal support determination, the trial court is required to consider the enumerated factors set forth in R.C. 3105.18(C)(1) which include, inter alia, the income of the parties; the relative earning abilities of the parties; the ages, physical, mental and emotional conditions of the parties; the duration of the marriage; the extent to which it would be appropriate for a party, because he or she will be custodian of minor children, to seek employment outside the home and the lost income production capacity which results from either party's marital responsibilities. The trial court has broad discretion in determining what amount of spousal support is equitable under the facts and circumstances of each case. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 68-69 citing Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355. A reviewing court cannot substitute its judgment for that of the trial court unless the trial court abuses its discretion. Id. citing Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131. Our review of the record and the court's decree indicates that evidence was adduced with respect to all of the relevant criteria set forth in R.C. 3105.18(C)(1) and that the court considered such - 5 - criteria in its award. While appellant insists that plaintiff could work for her father, the record demonstrates that the last time plaintiff worked for the family corporation was 1977; that she was so employed for only four months having been fired by her brother for failing to pick him up after he had a flat tire and that she never returned to work for the family corporation choosing instead to pursue part-time, minimum wage employment on a sporadic 3 basis elsewhere. Significantly, however, the court imputed $10,000 in annual income to the plaintiff despite the fact that she never earned same during any one year of the marriage. Accordingly, appellant has failed to establish his claim of prejudicial error as the court's decree clearly contemplates employment even if it is not with plaintiff's father. Also, the $100,000 to which appellant refers represents proceeds from the redemption family stock issued to plaintiff well 4 in advance of the marriage. While these proceeds may be considered income, the record clearly demonstrates that they were the separate property of the plaintiff. R.C. 3105.171(3)(b), (6)(a),(i),(ii). Moreover, plaintiff testified that she paid 3 In light of the alleged arbitrary nature of the plaintiff's termination and her subsequent avoidance of such employment, it would not be unreasonable for a fact finder to infer that plaintiff would not return to work for the family corporation. 4 William Lovell, Secretary/Treasurer of the Kleco Corporation, testified and presented corporate records which demonstrated that stock had been issued to the plaintiff as early as 1971 and that it was redeemed by the plaintiff on July 24, 1989. (Tr. 21-33) - 6 - $28,000 in taxes on the proceeds and that she utilized portions, inter alia, to replace the furnace, to install air conditioning and to purchase a motor home for vacation purposes. The court noted that the stock redemption "made life more comfortable" for plaintiff and the children at the end of the marriage. (Decree, Pg. 10) In light of the fact that plaintiff acquired no additional education or training during the marriage and had not been employed since 1983, we cannot say that the court's award of $50 per week for a two-year period constituted an abuse of discretion where appellant earns $39,000 in gross income, is not burdened with mortgage payments and was ordered to pay less than the standard schedule of child support, to wit, $175.00 instead of $237.50 per child, per month. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN ITS DIVISION OF PROPERTY BY EQUALLY DIVIDING THE DEFENDANT/APPELLANT'S OP & F (Ohio Police and Firemen's) PENSION PLAN. In his second assignment of error, appellant claims that the court's marital property division was inequitable because the combined value of the marital residence and the $20,000 lump sum payment from his pension fund amounted to over half of the value of his pension fund. Appellant also claims that the division is inequitable because plaintiff can enjoy immediate benefits from her - 7 - 5 award and he cannot. Appellant further claims that the $20,000 sixty-day payment is inequitable because the terms of his pension fund preclude withdrawal until retirement. Upon review, we find appellant's arguments to be devoid of merit. With regard to the trial court's division of the parties' marital assets, there is no requirement it be precisely equal, rather, a potentially equal division is the starting point from which the trial court then considers the relevant factors in formulating an equitable distribution. See, Cherry, supra. An employee spouse's retirement or pension plan, to the extent it was accumulated during the marriage, constitutes a marital asset subject to division by the court. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128. Ohio courts have recognized several alternative methods for equitably distributing the spouses' proportionate interest in the fund. One alternative is to withdraw the funds from the plan and apportion and distribute them at the time of the divorce. Blair v. Blair (1983), 11 Ohio App.3d 117 and Day v. Day (1988), 40 Ohio App.3d 155 (Parallel citations omitted) * * * Another alternative is for the trial court, based on the evidence presented, to determine the present value of the pension fund, calcu- late the nonemployee spouse's proportionate share and offset that amount with other marital assets, a lump sum payment, or with installment 5 In claiming that the court's division was inequitable, Appellant relates the value of a portion of plaintiff's award to the value of his pension fund. However, the proper standard for determining whether property division is equitable is not by comparing it to the value of a party's pension fund. Rather a court makes its award upon considering the factors set forth in R.C. 3105.171. Additionally, we find appellant's reliance on Martin v. Martin (December 5, 1991), Cuyahoga App. No. 509029, unreported and Ralston v. Ralston (1989), 69 Ohio App.3d 346 to be misplaced as the facts of these cases can be clearly distinguished from the instant case. - 8 - payments from the employee spouse. Blair, supra. Of course, for this method to be feasible, there must be sufficient marital assets to accomplish an equitable offset or a lump sum payment. * * * Recently, this court in Powell v. Powell (1989), 49 Ohio App.3d 56 (parallel cite omitted) recognized that all of the above alternatives are viable ones for allocating the spouses' proportionate interest in a pension fund in the formulation of an equitable division of all of the marital assets. Difenthaler v. Difenthaler (1989), 63 Ohio App.3d 845, 851- 852. Accordingly, we find that the court's property division including its lump-sum award of a 29.48% share of the $67,840 stipulated present value of appellant's pension fund to be entirely proper. We find the court's award of the marital residence to be proper as plaintiff purchased same utilizing a $21,000 inheritance. This "separate property" (See, Assignment of Error V) combined with her half, marital interest in the house amounts to over half its market value. Moreover, since plaintiff was designated to be the residential parent, we cannot say that the award was an abuse of discretion. Moreover, our review of the entire marital property division demonstrates that the value of appellant's award is greater than plaintiff's even though her award provides more 6 immediate benefit. While appellant complains about the lack of 6 Plaintiff's award of marital property included the marital residence with a net value of $38,379; a Ginnie Mae-Fidelity Investment account valued at $4,590 and a $20,000 payment representing approximately 29.48% of appellant's pension fund amounting to a $62,969 award. Appellant was awarded a Susuki - 9 - immediate benefit, he fails to realize that plaintiff's award carries the immediate burden of making payments on a $56,000 7 mortgage as well as meeting tax, insurance and maintenance costs. Appellant also fails to realize that he will enjoy a substantial amount of appreciation on his deferred compensation and pension funds. We also find appellant's lump sum payment argument to be unpersuasive as the court's decree provides a number of methods, consistent with Diefenthaler, supra, to enable him to comply with its order which provides in relevant part as follows: Plaintiff hereby is awarded as property division: * * * -$20,000 (or 29.48% of the $67,840 present value) from the Defendant's Police's and Fireman's Pension Fund. Any tax liability shall be paid by the Plaintiff. The Plaintiff may elect to defer her interest until the plan is in pay out status. If the parties agree, and it is possible the $20,000 may be paid dollar for dollar from Defendant's Compen- sation, again with any tax liability paid by Plaintiff. Defendant may borrow against his interest in this fund or may obtain the $20,000 from any other source so long as payment is made to Plaintiff within 60 days of the filing of this Journal Entry. (Decree, Pg. 19, 20) Samurai vehicle valued at $5,000; a motor home valued at $6,000, his entire deferred compensation account in the amount of $17,676 and a 69.52% share of his pension valued at $47,840 amounting to a $76,516 award. 7 Even if plaintiff sold the residence and moved into a more modest home, she would still have the burden of providing long term housing for herself and the four children. - 10 - Accordingly, in lieu of plaintiff's election to wait until payout, appellant has the option of selling his $6,000 motor home and financing the remaining $14,000 by borrowing against his $17,676 deferred compensation fund, by withdrawing monies from same or by securing a loan from his credit union or another lender. We note that the court's decree leaves appellant free from third party debt. We also note that appellant failed to attach affidavits to the objections he filed below indicating substantial debt, a change in financial circumstances or an inability to obtain credit. Under Ohio law, plaintiff is entitled to her proportionate interest in the fund. The court's award is consistent with Difenthaler, supra, and Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, syllabus, which provides that courts "should attempt to preserve the pension or retirement asset in order that each party can procure the most benefit, and should attempt to disentangle the parties' economic partnerships so as to create a conclusion and finality to that marriage." Appellant's second assignment of error is overruled. III THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES IN THE SUM OF $6,000 TO THE PLAINTIFF/APPELLEE TO BE PAID BY DEFENDANT/APPELLANT. Appellant's third assignment error is without merit as the record demonstrates that plaintiff's counsel testified to all the relevant factors set forth in Swanson v. Swanson (1976), 48 Ohio App.2d 85. Counsel testified that plaintiff incurred $22,852 in - 11 - fees and expenses from November, 1990 through January 1992; that those fees, detailed in his report, were based upon reasonable rates and that he and the other attorney who rendered services were qualified to do so. Counsel also testified that his firm spent a relatively inordinate amount of time on the case (approximately 220 hours) and that the case was not difficult from a "conceptual standpoint" but was "very difficult from the standpoint of having to deal with all manners of minuscule problems which were initiated on the defendant's side of the case." (Tr. 822-823) Counsel further testified that his firm had not filed more than three responsive motions but that appellant had filed thirty. (Tr. 831) Hence, the court's award which amounts to less than 30% of the fees, does not constitute an abuse of discretion. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED IN MODIFYING THE PROPOSED SHARED PARENTING PLAN OF THE DEFENDANT/APPELLANT BY CHANGING THE POSSESSION SCHEDULE OF THE CHILDREN TO BE PRIMARILY WITH PLAINTIFF/APPELLEE DESPITE THE TESTIMONY AND RECOMMEN- DATION TO THE CONTRARY BY THE TRIAL COURT'S EXPERT WITNESS AS IT RELATES TO THE TO THE TWO YOUNGEST CHILDREN OF THE PARTIES. We find appellant's fourth assignment of error to be unpersuasive. The record demonstrates that Dr. Kirkhart's recommendation that the two younger children be placed with appellant during the week thereby necessitating their separation from the older siblings, was contrary to the recommendation of Family Conciliation Services, the children's Guardian Ad Litem and - 12 - the referee who conducted in camera interviews with the children. The record also demonstrates that three additional witnesses to wit, the children's school principal, their babysitter and their maternal grandmother, testified that plaintiff spent relatively more time with the children and that she was a caring and child 8 oriented mother. Where an award of custody is supported by a substantial amount of credible, competent, evidence, such award will not be reversed as being against the manifest weight of the evidence. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, syllabus. Our review of appellant's modified, shared parenting plan demonstrates that it is highly detailed; that it includes numerous safeguards and that it provides appellant with generous visitation, including three full weekends per month, regular midweek visitation and holiday and vacation visitation. Appellant's fourth assignment of error is overruled. V THE TRIAL COURT ERRED IN ITS PROPERTY DIVISION BY AWARDING THE VALUE OF $21,000 AS SEPARATE PROPERTY TO PLAINTIFF/APPELLEE. 8 While appellant was also described as a very caring and suitable parent, concern was expressed that his tendency to view himself primarily as an economic provider, despite statements that he would alter his work schedule, would leave him less time and flexibility to serve as the primary caretaker for the children. Concern was also expressed that if appellant were given primary possession, there was a possibility that the children might increasingly be cared for by his parents in their home. - 13 - As a general rule, property acquired during a marriage by either of the parties is considered marital property. Nonetheless, properties acquired by gift, bequest, devise or descent are considered non-marital assets. Kuehn v. Kuehn (1988), 55 Ohio 9 App.3d 245, 246. See, also R.C. 3105.171(3)(b) and (6)(a). While non-marital property may be converted to marital property through transmutation, the fact that the allegedly transmuted property is titled jointly in the names of both parties is not dispositive of its character. Id. and Khan v. Khan (1987), 42 Ohio App.3d 61, 65- 66. Rather, under the "source of funds theory," the trial court, in its discretion, examines several equitable considerations. Kahn, supra, at 66. These considerations include, the source of the funds used to acquire the property and the circumstances surrounding the acquisition of the property. Plaintiff and her mother testified that plaintiff inherited stock from her maternal grandmother; that these shares were put into a trust; that the terms of the trust prohibited access until plaintiff reached the age of twenty four (24) and that plaintiff received her inheritance at age twenty-two (22) only after an 9 R.C. 3105.171(3)(b) provides that "Marital Property" does not include any separate property. R.C. 3105.171(6)(a) provides that: "Separate Property" means all real and personal property and any interest in real or personal property that is found by the court to be any of the following: (i)An inheritance by one spouse, by bequest, devise, or descent during the course of the marriage; - 14 - appeal was made to the trustee. Plaintiff's mother also testified that she did not attend plaintiff's wedding ceremony. Hence, the record demonstrates the $21,000 downpayment clearly constituted the pre-marital, separate property of the plaintiff; that the $21,000 was acquired in derogation of the express terms of the trust and that plaintiff's decision to marry was not without opposition. In light of the fact that plaintiff utilized her inheritance before the specified age of maturity, it was not an abuse of discretion for the court to protect her $21,000 equity. While the home was jointly owned and plaintiff's separate property was commingled, sufficient evidence of traceability was presented to support the court's finding that plaintiff's downpayment had not been 10 transmuted. Appellant's fifth assignment of error is overruled. Judgment is affirmed. 10 R.C. 3105.171(6)(b) provides that: The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable. - 15 - 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 Common Pleas Court, 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. SPELLACY, C.J., AND KARPINSKI, J., CONCUR ANN DYKE JUDGE 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, .