COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71177 GLORIA DANIELS : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION ALFONZO DANIELS : : Defendant-appellant : : : OCTOBER 2, 1997 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. D-229823 : JUDGMENT : AFFIRMED. : DATE OF JOURNALIZATION : APPEARANCES: For defendant-appellant: For plaintiff-appellee: RAMON BASIE, ESQ. NEAL P. LAVELLE, ESQ. 3669 Lee Road 522 Leader Building Shaker Heights, OH 44120 Cleveland, OH 44114 PATTON, J. The domestic relations court granted plaintiff-wife Gloria Daniels and defendant-husband Alfonzo Daniels a divorce. In this - 2 - appeal, husband assigns errors challenging trial court orders relating to (1) child support, (2) spousal support and (3) the valuation of marital assets. We find no reversible error and affirm the judgment. The parties tried the matters before a magistrate. As relevant to the issues raised in this appeal, the magistrate decided that husband should pay child support of $510 for the parties' sole child, and an additional $102 per month on an accrued child support arrearage of $3459.60. In a spousal support award, the magistrate decided husband should provide rent-free accommoda- tions to wife through 1998 in an apartment building husband owned prior to the marriage. The magistrate found wife worked exten- sively at the apartment building during the marriage, so he recommended wife receive one-half the accumulated equity in the building by the year 2000, or $20,000. Husband filed objections to the magistrate's decision, claiming the magistrate overstated husband's income from both a second job and rents at the apartment building. Additionally, husband argued the apartment building should not have been considered marital property. The domestic relations court overruled those objections and issued a journal entry incorporating the magistrate's decision. I In his first and second assignments of error, husband complains the domestic relations court erred by adopting the magistrate's decision on child support, claiming the magistrate overstated - 3 - husband's income and further erred by using that income in the child support equation. When calculating husband's income, the magistrate found husband derived income from three sources: (1) $22,182 from his job with the Federal Reserve Bank of Cleveland, (2) $16,000 from the Plain Dealer, and (3) $5,460 in rents from the apartment building. Husband argues the magistrate erred when calculating income from the latter two sources. He maintains he earned only $4,800 per year from the Plain Dealer and did not show any income from the apartment building because only three of the six units were occupied during the year. A The domestic relations court's authority to award spousal support is found in R.C. 3105.18. Subsection (C) to R.C. 3105.18 sets forth various factors the domestic relations court must consider when ordering spousal support. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, paragraph one of the syllabus. Among thosefactors is R.C. 3105.18(C)(1)(a), which directs the domestic relations court to determine the income of the parties, from all sources ***. The court has broad discretion when applying these factors to the facts and circumstances existing in each case. Cherry v. Cherry (1981), 66 Ohio St.3d 348, 355. We review the domestic relations court's findings for an abuse of discretion, keeping in mind the totality of the circumstances. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67. B - 4 - We cannot find the trial court abused its discretion by adopting the magistrate's decision as to the amount of income husband earned from any of the three sources listed by the magis- trate. As of the July 1995 trial date, husband had not filed income tax returns for tax years 1993 and 1994, so he could not provide current income tax records to show his income from the Plain Dealer or the apartment building. This left the magistrate with the task of imputing income to husband. Husband gave somewhat evasive testimony as to his earnings from the Plain Dealer route, denying any ability to establish an average number of customers per week or the price he charged those custom- ers. When confronted with Plain Dealer records showing the number of papers he bought on a weekly basis, he flatly contradicted those numbers, stating I don't care what's on that piece of paper ***. This statement formed the sole basis for his opposition, however, because husband failed to submit documentary evidence of any form to contradict the Plain Dealer records. Given husband's inability (or refusal) to establish any firm figures, the magistrate concluded husband had 220 customers per week. To arrive at this figure, the magistrate considered husband's testimony that he regularly would draw between 1500 and 1600 newspapers per week. Husband also testified he charged different rates to different customers. A very large proportion of his customers were charged a weekly rate of $3.45 per week, although others were charged $2.25 and $1.95 per week. Husband testified only 15 or 20 customers received the $1.95 rate, and that some - 5 - customers were charged the $2.25 rate. The magistrate decided to apply the regular $3.45 weekly rate to eighty percent of the customers, the $1.95 rate to ten percent of the customers, and the $2.25 rate to ten percent of the customers. Using these figures, the magistrate found husband's average customer paid $3.18 per week. Husband testified he paid $1.58 per week to buy his newspapers, so the magistrate found husband earned $1.60 per week per customer ($3.18 - $1.58 = $1.60). The magistrate apparently multiplied this figure by just over forty-five weeks to arrive at a total estimated income of $16,000 per year. Husband asserts his testimony showed he only earned $4,800 yearly from his route, and the magistrate speculated the $16,000 figure. The transcript flatly contradicts this assertion. Tellingly, husband cites to no evidence substantiating this point, and we can find none in the record. Under the circumstances, we cannot say the magistrate's decision to impute $16,000 in income was so arbitrary, unreasonable or unconscionable as to constitute an abuse of discretion. C Husband next complains the domestic relations court erred by adopting the magistrate's decision that husband realized net income of $5,460 per year from the apartment building. He claims this figure overstates the actual income he realizes because only three of the six units are rented during the year. Of the six units in the building, only five were available for rent wife lived rent-free in the sixth unit after the parties - 6 - separated. Husband testified he could collect rents of $1,370 per month if all five units were rented. The magistrate listed this figure as about $1400 per month. Husband testified that at the time, only three of the five apartments were occupied, and he collected current rent from only one of those three occupied apartments. The magistrate considered this concern by imputing rents of $12,000 per year to husband, or seventy-five percent of what husband would collect had all five apartments been rented. Husband also testified he paid $490 per month in total mortgages: $370 per month to Society Bank and $120 per month to the city of Cleveland. The magistrate listed this figure as $545 per month in expenses. Subtracting these expenses from the anticipated rent, the magistrate arrived at total income of $5,460 per year. We find no abuse of discretion with the magistrate's calcula- tions. Husband simply argues only three of the six units are rented during the year, but he provided no figures to substantiate this claim. As previously noted, husband had no current tax records or other documentation to show occupancy rates in the building. On the other hand, wife submitted figures for a ten month period in 1994 showing husband collected an average of $1,135 per month. The magistrate calculated total yearly rents at $12,000, an average of $1,000 per month. This appears to be a generous figure for husband in light of wife's uncontradicted, if incomplete, evidence. Apparently sensitive to husband's testimony on the occupancy rates of the apartments, the magistrate computed rents based on a seventy-five percent occupancy rate of the five available - 7 - apartments. Under the circumstances, we cannot say this finding constituted an abuse of discretion, and the trial court did not err by adopting this aspect of the magistrate's decision. - 8 - D Finally, the child support ordered by the magistrate is derived from the mandatory calculations contained in the child support worksheet set forth in R.C. 3113.215. See Rock v. Cabral (1993), 67 Ohio St.3d 108. Husband does not question the results of the calculations, only the income figures used by the magistrate. Having found the trial court did not abuse its discretion by adopting the magistrate's calculations on husband's income, we find no error with the court's application of the child support guide- lines. The first and second assignments of error are overruled. II In his third assignment of error, husband complains the magistrate abusedhis discretion by determining that $40,000 of the valueof the apartment building was marital in nature and husband had a separate interest of $7,000 in the property. Husband argues he owned the building prior to the marriage and wife presented no evidence to show her contributions to the care and upkeep of the building were responsible for appreciation of that asset. The division of marital property is a second component of spousal support (the other being alimony), and the trial court has wide discretion in deciding how to divide the property. Bisker v. Bisker (1994), 69 Ohio St.3d 608, 609. Marital property is generally definedin R.C. 3105.171(A)(3)(a) as property acquired by either or both spouses during the marriage. Separate property, as relevant to this appeal, is defined in R.C. 3105.171(A)(6)(a) as any real or personal property or interest in real or personal - 9 - property that was acquired by one spouse prior to the date of the marriage. Marital property does not include separate property, R.C. 3105.171(A)(3)(b), but 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. R.C. 3105.171(A)(6)(b). Separate property owned by one spouse prior to marriage may become marital property if significant marital funds were invested in the property and the parties expended time and effort to improve and maintain the property. Worthington v. Worthington (1986), 21 Ohio St.3d 73, syllabus. The party seeking to have a particular asset declared separate property bears the burden of showing by a preponderance of the evidence that the appreciation in the asset may be traced to the initial investment. See Peck v. Peck (1994), 96 Ohio App.3d 731, 734. We find the trial court did not abuse its discretion by adopting the magistrate's factual determination concerning the apartment building because husband failed to carry his burden of proving the entire amount of appreciation on the building could be traced to his initial investment in that property. He did not give any testimony that would permit the magistrate to find the total amount of appreciation in the property could be traced to the initial investment. Conversely, wife testified that she performed many maintenance, superintendence and custodial duties in the apartment. For example, she testified she did plaster repair work and painting in every unit. She swept and mopped floors, showed - 10 - units to prospective tenants, collected rents and escorted repairmen throughout the building. These actions amply justified the magistrate's finding that wife's efforts improved and maintained the property. Worthington, supra. Consequently, the trial court did not abuse its discretion by finding some of the property became marital property. We likewise find the trial court did not abuse its discretion when computing appreciation to husband's separate property. Husband made a very small original investment in the apartment building only months before his marriage, and the magistrate properly considered that small investment would not have appreciated to any great extent over the period of the marriage. Wife's substantial contributions to the maintenance and upkeep of the apartment building were significant enough that the magistrate would have been justified in finding they would have contributed to the appreciation of the apartment building to a much greater extent than husband's original investment. The magistrate's decision reflects this fact by finding the appreciation of the husband's separate property to be minimal. Under the circumstances, we cannot say the trial court abused its discretion by adopting this finding, particularly in light of husband's failure to present any contrary evidence. The third assignment of error is overruled. III In his fourth assignment of error, husband complains the trial court erred by adopting the magistrate's decision to grant wife, as - 11 - spousal support, the right to live rent-free in one of the apart- ments until December 31, 1998. Husband has not separately argued this assignment of error as required by App.R. 16(A). Pursuant to App.R. 12(A)(2), we disregard this assignment of error. See Taylor v. Franklin Blvd. Nursing Home, Inc. (1996), 112 Ohio App.3d 27, 32-33. Judgment affirmed. - 12 - 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 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. KARPINSKI, J., CONCURS. JUDGE JOHN T. PATTON 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 .