COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70465 DEBRA TRACY, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION DENNIS TRACY, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 13, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Domestic Relations : Division : Case No. D-234820 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Louis J. Carlozzi 668 Euclid Avenue 1717 East Ninth Street Suite 535 Cleveland, Ohio 44114 For defendant-appellant: Margaret Kazdin Standard REID, BERRY & STANARD 1300 Illuminating Building 55 Public Square Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Dennis Tracy ("Mr. Tracy"), appeals from a judgment rendered by the Domestic Relations Division of the Cuyahoga County Common Pleas Court in favor of appellee, Debra Tracy ("Mrs. Tracy"). For the following reasons, we affirm the judgment of the trial court. The parties were married in 1988. They had one child together. Appellant is now 48 years old; appellee is currently 32 years of age. Neither party had any significant employment during the marriage. Neither party was educated beyond the high school level and both parties received public assistance while they were married. At all relevant times, appellee had custody of two children from a previous relationship. In June, 1994, appellee commenced a divorce proceeding against appellant. In her Complaint, appellee sought a judgment entry of divorce and attendant awards with respect to real and personal property, parental rights, spousal support and child support. Besides miscellaneous personal property, the parties only significant asset was the marital residence. Mr. Tracy owned the residence prior to the marriage. At trial, the parties stipulated to the existence of statutory grounds for divorce. The parties agreed upon custody of their child and division of much of the personalty. After a four-day bench trial, the court issued its judgment entry of divorce with findings of fact and conclusions of law. In its award, the court determined that appellee should have the exclusive right to occupy -3- the marital home until the year 2006. Further, in its property distribution, the court concluded that a three thousand dollar gift from appellant's stepfather was marital property. Additionally, in determining child support obligations, the court imputed to appellant an annual income of nine thousand six hundred dollars despite appellant's testimony that he earned between five and six thousand dollars per year. Appellant's assignments of error challenge these three conclusions and their operation in the court's award. I. We address Mr. Tracy's first and third assignments of error together as each involves analysis of the court's property division. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN AWARDING PLAINTIFF EXCLUSIVE OCCUPANCY OF THE MARITAL RESIDENCE WHICH WAS THE PREMARITAL PROPERTY OF THE DEFENDANT. Mr. Tracy's third assignment of error states: THE TRIAL COURT ERRED IN RULING THAT THE THREE THOUSAND DOLLAR GIFT FROM DEFENDANT'S STEPFATHER WAS MARITAL PROPERTY. A domestic relations court has broad discretion to fashion an equitable division of marital property. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218, 5 OBR 481, 450 N.E.2d 1140. "There are no set rules for determining the division of marital property." Terry v. Terry (1994), 99 Ohio App.3d 228, 232, 650 N.E.2d 184. It is well established that we review a trial court's property division under the abuse of discretion standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 20 O.O.3d 318, 421 N.E.2d 1293. An -4- abuse of discretion connotes more than an error of law or judgment, it implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore, supra, at 219. Ultimately, "a domestic-relations award should be fair, equitable, and in accordance with law," and "[a] reviewing court should * * * not substitute its judgment for that of the trier-of-fact * * *." Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 94, 518 N.E.2d 1197. With respect to the marital residence, appellant argues that it was improper to award appellee the ten-year right to exclusively occupy the home because the home was separate property under the applicable statute. R.C. 3105.171(A)(6)(a)(ii) defines separate property and states: [Separate property means] [a]ny real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of marriage * * *. Further, R.C. 3105.171(D) states in pertinent part: Except as otherwise provided in division (E) of this section or by another provision of this section, the court shall disburse a spouse's separate property to that spouse. See Simoni v. Simoni (1995), 102 Ohio App.3d 628, 638-39, 657 N.E.2d 800, discretionary appeal not allowed, 73 Ohio St.3d 1453 (applying R.C. 3105.171(D)). The parties stipulated that the husband owned the marital residence prior to their marriage. At the time of the marriage, the home had an appraised value of $27,514.00 with a mortgage balance of $11,509.79. In 1995, the home had an appraised value of $35,514.00 and carried and outstanding mortgage of $8,407.00. The -5- court recognized that "the $16,000.00 equity in the home at the time of the marriage" was the separate property of appellant. Incongruously, the trial court treated the marital residence as marital property throughout its property division analysis. Regardless, the residence falls squarely within the scope of R.C. 3105.171(A)(6)(a)(ii) and is separate property. While the court did not err when it apportioned the appreciated equity in the home, see, e.g., Shapiro v. Shapiro (1992), 83 Ohio App.3d 744, 748, 615 N.E.2d 727, it could not, absent statutory authority, ignore the clear mandate of law to award the residence to appellant. However, such statutory authority exists. R.C. 3105.171(E)(1) states in pertinent part: The court may make a distributive award to facilitate, effectuate, or supplement a division of marital property. A "distributive award" is defined by R.C. 3105.171(A)(1) as "any payment or payments, in real or personal property, that are payable in a lump sum or over time, in fixed amounts, that are made from separate property or income * * *." [Emphasis added.] Accordingly, the issue becomes whether the court abused its discretion in making such an award. We find that the court did not abuse its discretion. R.C. 3105.171(D) governs distributive awards and states in pertinent part: If a court does not disburse a spouse's separate property to that spouse, the court shall make written findings of fact that explain the factors that it considered in making its determination that the spouse's separate property should not be disbursed to that spouse. -6- In turn, R.C. 3105.171(F) governs the factors a trial court must consider when making a distributive award. In accordance with these statutory provisions, the trial court indicated the factors which contributed to its decision to award the temporary right to occupy the house to appellee. These factors included: 1) appellee's limited earning capacity; 2) that the child born of the relationship will reside with the appellee and further limit her employment options; 3) that it is in the best interest of the child to continue living in the marital home; 4) appellant's historical underemployment, his lack of support for the couple's child during the divorce proceeding, and the prognosis that he will be unable or unwilling to satisfy his child support obligations; 5) the desire to avoid further burdening the state with the additional costs of housing appellee and child; 6) Mr. Tracy's current assets and his expectancy interest in his stepfather's estate; 7) appellee's lack of assets; and, 8) the desirability of keeping the marital home intact. The court's discussion of these factors and its subsequent property division complies with R.C. 3105.171(D) and (F). Accordingly, the award is not an abuse of discretion. At oral argument, appellant contended that the distributive award is a veiled attempt to award child support and is therefore improper. See, e.g., Swartz v. Swartz (April 1, 1996), Warren App. No. CA95-05-048, unreported (a distributive award is improper where it is merely an attempt to award spousal support). However, this argument is unpersuasive. R.C. 3105.171(F)(3) states: -7- (F) In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider the following factors; * * * (3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage * * *. It is clear that the trial court was motivated heavily by its concern for the welfare of the parties' child. The court determined, as required by R.C. 3105.171(F)(3), that the child was best served by remaining in the marital residence. Consequently, the court provided the custodial parent with an exclusive right of occupancy which would terminate when the child became emancipated. This decision is in accordance with R.C. 3105.171(F) and does not manifest error. Furthermore, contrary to the logic of appellant's argument, the court did not attempt to direct every available source of funds into support of the child. In fact, under the court's award, appellee forfeits her share of the marital property if she lives in marital residence beyond two years. Certainly, if the court was merely attempting to secure as much of the parties' property for the support of the child, it never would have conditioned appellee's right in her share of the marital property. This fact weighs heavily against appellant's conclusion that the trial court attempted to effectuate a child support payment through the use of a distributive award. -8- Additionally, appellant's reliance on Irwin v. Irwin (May 11, 1993), Greene App. No. 92-CA-0054, unreported, is misplaced because the facts of the case sub judice do not resemble those in Irwin. In Irwin, the parties had significant sources of income and many assets. No children were produced by the marriage. The owner of the marital home had custody of two children from a previous marriage. With these children, the Irwin appellant lived in the marital home before the parties married. The parties were married less than a year. Because of these and other facts, the court did not investigate the propriety of making a distributive award of the marital home and accordingly, Irwin is inapposite to the instant matter. We find that despite appellant's claims, the lower court did not abuse its discretion by granting appellee a temporary interest in the marital home. Appellant's first assignment of error lacks merit and is overruled. Appellant's second challenge to the property division attacks the trial court's finding that a gift of three thousand dollars from his stepfather was marital property. In order to be separate property under R.C. 3105.171(A)(6)(vii), "[a]ny gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage" must be "proven by clear and convincing evidence to have been given to only one spouse." Accordingly, appellant must have demonstrated by clear and convincing evidence that his stepfather intended the gift to him alone. Pettry v. Pettry (1991), 81 Ohio App.3d 30, 35, 610 -9- N.E.2d 443; Marsala v. Marsala (July 6, 1995), Cuyahoga App. No. 67301, unreported (gifts are presumed to be marital property unless demonstrated otherwise by the party seeking to characterize the gift as separate property). In this respect, appellant failed and the trial court correctly treated the gift as marital property. Appellant's trial testimony indicates that in 1993, his stepfather gave him a cash gift of three thousand dollars. Mr. Tracy used this money to satisfy the outstanding mortgage on the marital residence. On appeal, appellant fails to cite any evidence in the record demonstrating that the gift was intended only to him. No testimony was taken from appellant's stepfather on the issue. No exhibits were admitted indicating the nature of the gift. The mere fact that appellant received cash directly from his stepfather does not overcome the presumption that the gift is marital property. Accordingly, appellant's third assignment of error lacks merit. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN IMPUTING AN INCOME OF NINE THOUSAND SIX HUNDRED DOLLARS TO DEFENDANT AND ORDERING CHILD SUPPORT BASED UPON THAT IMPUTED INCOME WHEN TESTIMONY CLEARLY INDICATED THAT HE HISTORICALLY EARNED ONLY FIVE THOUSAND TO SIX THOUSAND DOLLARS. A trial court may, pursuant to R.C. 3113.215(A)(5), impute income to a parent for purposes of determining child support where it finds that the parent is "voluntarily unemployed or underemployed." English v. Rubino (April 4, 1996), Cuyahoga App. -10- No. 68901, unreported, citing, Rock v. Cabral (1993), 67 Ohio St.3d 108, 616 N.E.2d 218. Whether a parent is "voluntarily under-employed" * * * [is a matter] to be determined by the trial court based upon the facts and circumstances of each case. The determination will not be disturbed on appeal absent an abuse of discretion. Slivka v. Slivka (March 7, 1996), Cuyahoga App. No. 69146, unreported, quoting, Rock, 67 Ohio St.3d 108 at paragraph three of the syllabus. The trial court found appellant to be voluntarily underemployed and imputed a minimum wage income to him. This conclusion does not manifest error. At trial, Mr. Tracy testified that he was employed by Display Works Incorporated as a display erector. He indicated that the work was sporadic and as an hourly employee, appellant had no steady source of income. Indeed, appellant estimated that he worked only one hundred and twenty hours in the six months preceding trial. Moreover, Mr. Tracy admitted that he was capable of obtaining and holding a minimum wage job. He indicated that the last time he had applied for a job was 1994. In light of these facts, the trial court did not abuse its discretion by finding him voluntarily underemployed and imputing a minimum wage income to him. We overrule appellant's second assignment of error. 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 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. BLACKMON, P.J., and McMONAGLE, TIMOTHY E., J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .