COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73368 NOLA BRISKEY, Plaintiff-appellant JOURNAL ENTRY vs. AND EDDIE BRISKEY, OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: JULY 23, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Domestic Relations Division of the Common Pleas Court, Case No. D- 213352 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: ROBERT I. ZASHIN MARY BOYLE ZASHIN, RICH & SATULA 1490 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 For defendant-appellee: JACOB A. KRONENBERG KRONENBERG & KRONENBERG 410 Midland Building 101 Prospect Avenue W. Cleveland, Ohio 44115-1092 -2- KARPINSKI, J.: Plaintiff-appellant, Nola Briskey ( Wife ) appeals from the judgment of the trial court which granted a divorce from defendant- appellee, Eddie Briskey ( Husband ). In the divorce decree, the trial court divided the marital assets of the parties and determined the issues of spousal support. On appeal, Wife raises fourteen assignments of error which generally contest the trial court judgment regarding (1) spousal support, (2) the division of the marital estate, (3) the award of attorney fees, (4) the grounds for divorce, and (5) discovery. Additionally Husband raises two cross-assignments of error, which contest the termination date of the marriage and the award of attorney fees. Having reviewed the entire record, we find no reversible error and affirm the judgment of the court below. The relevant facts follow. Husband and Wife were married for almost 26 years. Entering the State Teachers Retirement System in 1961, Wife worked as a teacher and administrator for the Cleveland Public Schools for almost 30 years. She contributed to this pension program for 6 years prior to her marriage on December 23, 1967. She retired in July of 1991. The court-appointed expert, David Kelly, valued her STRS pension at $411,723.34. Wife is currently in payout status and receives $3,047.67 a month or $36,572.04 a year. As she points out, her pension is subject to federal income tax, cannot be sold or transferred, and terminates upon her death. -3- Husband has various degrees, including a bachelor of arts degree in marketing, a master's degree in business, and a master's in science and industrial engineering. He owns his own engineering and consulting firm, The Brisky Group. Husband stipulated that his gross annual income is $55,000.00. Additionally, Husband has his own STRS pension, which is valued at $69.498.00 and not in pay-out status. One issue at trial was the value of The Brisky Group. Wife's expert, Carl Monastra, valued the equipment and fixtures at $7,000. Monastra specifically stated that he was not provided with sufficient documents to conduct a thorough evaluation. The marital estate also contained the following property: the marital residence on Severn Road, the rental property on Idarose, investments totaling $11,865.00, and bank accounts of $10,462.83. Wife filed a complaint for divorce on September 16, 1991. Trial began on July 22, 1993 before a referee. After almost three years of litigation, the trial court issued its judgment entry dated February 15, 1996. The final judgment entry divided the parties' property, awarded no spousal support, and ordered Husband to pay $7,500.00 toward Wife's attorney's fees. The court added all the assets of the marital estate and found the value of the marital estate to equal $811,727.61. The trial court found the following assets comprised the marital estate. REAL ESTATE, RETIREMENT EQUITY VALUE ACCOUNTS, AND ANNUITIES Severn Rd. Home $ 77,582.00 Idarose Home $ 28,742.00 Husband's Social Security $ 42,721.89 -4- Husband's STRS Pension $ 69,498.79 Husband's N.L. Annuity $ 14,054.11 Husband's business equipment $ 7,000.00 Wife's Aetna Annuity $121,577.65 Wife's STRS Pension (marital)$411,723.34 SUBTOTAL $772,899.78 INVESTMENTS VALUE Jones & Babson $ 1,500.00 Columbia Fund $ 1,000.00 T.Rowe Price $ 3,044.00 Scudder $ 1,700.00 Financial Program $ 512.00 Steinroe IRA (Wife) $ 500.00 Steinroe IRA (Husband) $ 500.00 Financial Fund Inc. (Wife) $ 523.00 Financial Fund Inc. (Husband) $ 534.00 20th Century IRA (Wife) $ 2,052.00 SUBTOTAL $11,865.00 LIFE INSURANCE CASH SURRENDER VALUE Penn Mutual $ 5,228.68 Grange $ 1,045.80 All America Life $ 571.60 N.Y. Life $ 3,180.75 Banker's Life $ 436.00 SUBTOTAL $10,462.83 MISCELLANEOUS ASSETS VALUE Household Furnishing $ 7,500.00 1985 Cressida $ 3,000.00 1986 Honda $ 3,500.00 1989 Horizon $ 1,000.00 Boat $ 1,500.00 SUBTOTAL $ 16,500.00 TOTAL VALUE $811,727.61 Wife assigns fourteen errors for our review. Additionally, Husband has filed two cross-assignments of error. We will address some of these assignments together. Wife's first three assignments of error state as follows: -5- I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY COUNTING THE VALUE OF APPELLANT'S STRS PENSION AND AETNA ANNUITY ONCE FOR PURPOSES OF DIVIDING THE MARITAL ASSETS AND A SECOND TIME IN DETERMINING SPOUSAL SUPPORT. II. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY DIVIDING THE PARTIES' PROPERTY IN AN INEQUITABLE MANNER RESULTING FROM ITS FAILURE TO CONSIDER THE PROPER NATURE OF PENSIONS IN PAY-OUT STATUS. III. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY IGNORING THE TESTIMONY OF EXPERT, DAVID KELLEY, REGARDING THE PENSION CONSIDERATIONS. In these three assignments, Wife argues that the trial court should not have engaged in double-dipping, that is, counting her STRS pension in the division of assets and again in determining whether she is entitled to spousal support. Wife claims this practice leads to a patently inequitable result. Husband counters that the court did not abuse its discretion because the Ohio Revised Code specifically mandates that a pension must be considered in the property division and when determining spousal support. While there is support for Wife's arguments1, we cannot hold that the trial court abused its discretion, however, because the judgment of the trial court is consistent with the applicable legislative and decisional law of this state. Contending that the rule is inequitable, Wife points out that while Husband's assets may increase in value, her assets will deplete over time because the actuarial present value of a pension drops as a retiree ages. Additionally, Wife's pension cannot be 1 See Griffith v. Griffith (June 20, 1988), Butler App. No. 87-10-129, unreported; Parsons v. Parsons (Oct. 15, 1985), Butler App. No. CA 840940943, unreported. -6- assigned, and it will terminate upon her death. Finally, as further evidence of the inequity, Wife points out that Husband has the ability to sell the majority of his assets; she cannot. Wife acknowledges a pension earned during marriage is a property interest that the trial court has broad discretion to divide as part of the marital estate. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128. To support her position that the trial court abused its discretion, Wife cites to Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, for the proposition that a trial court may consider pension benefits as either an asset when it divides property or an income stream for determining spousal support, but not both. The Hoyt court stated as follows, [W]hether the parties are of retirement age or close to retirement age, it may be in the parties' best interest for the trial court to consider the pension or retirement benefits as income. Likewise, in another given situation it may be more advantageous to determine the present cash value or theoretical liquidation value. Hoytat 182. Husband counters that Wife has cited this case out of context. We agree. The Hoyt court did not address the issue in the case at bar -- double dipping. The dicta cited by Wife merely explained alternatives available to the trial court. Hoyt does not hold that these alternatives are exclusive of each other. The Revised Code is unambiguous regarding how pension benefits should be considered in divorce proceedings. A trial court is required to divide marital property equitably between the spouses. R.C. 3105.171(B). Revised Code 3105.171(A)(3)(a)(i) defines marital property, inter alia, as follows: -7- (3)(a) Marital property means, *** all of the following: (i) All real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during marriage; Revised Code 3105.18 covers spousal support and states in pertinent part as follows: (C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171[3105.17.1] of the Revised Code; *** (d) the retirement benefits of the parties. Thus, when a court awards spousal support under R.C. 3105.18, a trial court must consider income in the form of retirement benefits, even if they already were distributed as marital property under R.C. 3105.171. Holcomb, supra, syllabus. The judgment of the trial court follows the unambiguous language of the Revised Code. Other courts have rejected the argument that considering retirement benefits for both spousal support and property division constitutes inequitable double dipping. In Lindsay v. Curtis (1996), 115 Ohio App.3d 742, 746, the court stated as follows: In determining whether to grant spousal support and in determining the amount and duration of the payments, the trial court must consider the factors listed in R.C. 3105.18(C)(1)(a) through (n). R.C. 3105.18(C)(1)(a) specifically states that when determining whether spousal support is appropriate and reasonable, the court must consider [t]he income of the parties, from all sources, -8- including, but not limited to, income derived from property divided, disbursed, or distributed pursuant to an equitable division of the parties' marital and separate property. Consequently, a trial court may order the payment of spousal support from income which is all or in part derived from retirement benefits. Enix v. Enix (Feb. 4, 1993), Montgomery App. No. 13535, unreported, 1993 WL 26775. See, also, Roach v. Roach (1989), 61 Ohio App.3d 315, 319, 572 N.E.2d 772, 774, (monthly retirement benefits received by husband included in his income for spousal support calculation); Beyer v. Beyer (1979), 64 Ohio App.2d 280, 18 O.O.3d 267, 413 N.E.2d 844, paragraph two of the syllabus (Social Security benefits received by a party included in income for spousal support purposes); Deaton v. Deaton (Dec. 18, 1995), Butler App. No. CA95-04-077, unreported, 1995 WL 746230 (retirement benefits received by husband constitute income for spousal support calculation). In E nix v. Enix (Feb. 4, 1993), Montgomery App. No. 13535, unreported, the Second District reached the same conclusion: It is clear that under R.C. 3105.18 the trial court was required to consider James Enix's income from his pension and from PERS. James Enix argues, inter alia, that the trial court abused its discretion by including the pension and PERS income in the pool of income from which spousal support could be drawn because inclusion amounted to double dipping in that James Enix's pension benefits had previously been divided as part of the property settlement. We see no abuse of discretion. In calculating the spousal support, the trial court, as required by R.C. 3105.18(A)(1)(a), considered the income of both parties. It included James Enix's portion of the property settlement in the calculation of his income. *** It is clear that a trial court may order the payment of spousal support from income which is all or in part derived from retirement benefits. Seer v. Seer (September 18, 1991), Montgomery App. No. 12332, unreported. In Guidubaldiv. Guidubaldi (Sept. 12, 1997), Portage App. No. 96- P-0022, unreported, the Eleventh District stated as follows: The cases cited above support the proposition that when a trial court has awarded a lump-sum cash payment to the payee spouse, in an amount equal to the present value of the payor spouse's pension benefits at the time of the -9- award, as payment for the payee spouse's interest in the payor's pension, then the income stream from that pension may be reconsidered in determining the total available income for purposes of *** spousal support. Guidubaldi, supra, at 10. See also, Meinke v. Meinke (Dec. 30, 1996), Lucas App. No. L-95-282, unreported. We agree with these authorities. In considering the STRS pension for property division and spousal support, the trial court did not abuse its discretion but merely followed the unambiguous language of the Ohio legislature. Moreover, it is axiomatic that a trial court is vested with broad discretion in fashioning an equitable award in a divorce proceeding. Cherry v. Cherry (1981), 66 Ohio St.2d 340. In reviewing the marital estate, Wife's pension accounted for almost half of the estate. This pension is a stable, guaranteed source of income and a valuable asset that will provide her security in the form of $36,572,00 a year for the rest of her life.2 Because Ohio law favors disentangling the parties, especially regarding pensions, the trial court chose the favorable course of action by awarding the entire pension to Wife. Once the pension was awarded to her, the court was required to consider the guaranteed stream of income she will receive. To not consider her pension benefits as both part of the marital estate and her income source would be to improperly ignore R.C. 3105.18 and R.C. 3105.171. Accordingly, having found no abuse of discretion by the 2 Specifically, in regard to Wife's fourth assignment of error, the court did not ignore the testimony of David Kelly. In fact the court referred to his testimony in the judgment entry and used his valuation of the pension. -10- trial court, we overrule Wife's first three assignments of error. Her fourth states as follows. IV. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY FAILING TO CONSIDER THE TAX RAMIFICATIONS REGARDING THE DIVISION OF PROPERTY AND SPOUSAL SUPPORT. In this assignment, Wife argues that the trial court abused its discretion by making no finding as to the rate at which the pension and annuity payments would be taxed. Revised Code 3105.171(F)(6) requires the court to consider the tax consequences regarding the property division. Revised Code 3105.18(C)(1)(l) similarly requires the court to consider tax consequences when determining spousal support. The trial court determined the amount Wife will receive from her pension each year but did not determine the tax rate. In the journal entry the trial court stated as follows: The Court finds that spousal support is taxable to the recipient and deductible by the payor. This assignment should be overruled. Initially, it must be pointed out that the tax consequences are but one factor that must be considered in the overall equitable division of property and determination of spousal support. Moreover, while Ohio law instructs the trial court to consider the tax consequences, it is not an abuse of discretion for the court not to use a specific tax rate. Ordinarily, an examination of the tax consequences involves considering whether the spousal support or property division will be considered income to the recipient spouse and a deduction from income of the payor spouse. See, generally, Baldwin's Ohio -11- Domestic Relations Law (1992), 326, Section 13.03(B)(11). Nothing in either statute mandates that a trial court speculate as to what the tax rates would be in the future. Day v. Day (1988), 40 Ohio App.3d 155. Indeed, the court in the case at bar did consider the fact that the pension and annuity payments would be taxable. On page 11 of the Referee's Report the referee specifically found that the Wife's sources of income, the annuity and pension, were subject to federal income tax. The court then went on to state that it was making no finding as to what the specific tax rate would be. Accordingly, the court complied with the requirements of R.C. 3105.171(F)(6) and R.C. 3105.18(C)(1)(l). The fourth assignment of error is overruled. Wife's fifth assignment of error states as follows: V. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY FAILING TO ABIDE BY THE STIPULATIONS ENTERED INTO BETWEEN THE PARTIES. In this assignment, Wife argues that the trial court committed reversible error by disregarding a stipulation between the parties, Number 24, which states as follows: Parties are in dispute as to husband's income. Husband states his income is $55,000 gross annually. Wife's income is received from her retirement,[sic] total amount received annually equals $46,805.91 gross excluding taxes. (Emphasis added.) Wife argues that the trial court disregarded this stipulation when it determined Husband's annual income to be $35,630.00. This assignment does not warrant a reversal. A stipulation is an agreement. The only agreement in the 24th stipulation is that the parties agree that the Husband's income is in dispute. -12- They never agreed that his income was $55,000. Therefore, because the trial court did not disregard the 24th stipulation, Wife's fifth assignment of error is overruled. Wife's sixth, seventh, and tenth assignments concern the trial court's decision not to award spousal support. They state as follows: VI. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY DENYING APPELLANT SPOUSAL SUPPORT. VII. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN DECIDING SPOUSAL SUPPORT ISSUES BY USING THE APPELLANT'S GROSS ANNUAL INCOME BUT USING THE APPELLEE'S NET ANNUAL INCOME. X. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN THAT THE COURT'S FINDINGS REGARDING APPELLANT'S EARNING CAPACITY WERE CONTRARY TO EVIDENCE. In these three assignments, Wife challenges findings by the trial court that Husband has a greater earning ability, that his income cannot be determined with certainty, and that he can control how much he can earn. Revised Code 3105.18 governs an award of spousal support. The findings of the trial court mirrored this code section. The court stated as follows: The Court further finds, in accordance with Revised Code 3105.18(C)(1)(a) through (n), as follows: a. Income. The Plaintiff/wife has an STRS pension in payout status from which she receives $3,047.67 per month, plus proceeds of a tax sheltered annuity from which she receives an annual payment of $10,233.00 in gross, which is subject to tax withholding, resulting in a net current annual payment of $8,257.00, all resulting in total payments, in gross, of $46,805.04 (12 times $3,047.67, plus $10,233.00), which are, as testified to by David Kelley, subject to federal income taxation; the Court makes no finding as to the rate at which this income would be taxed. -13- The Defendant/husband acknowledged in the stipulations, Joint Exhibit A q24 of a gross annual income of $55,000.00, an amount which Plaintiff/wife disputes. His 1991 Form 1040, Plaintiff's Exhibit 15, reflects gross receipts of $55,325.00, interest and divided income of $495.00, business expenses of $37,883.00 and business income of $17,442.00. Further, this exhibit reflects a loss of $3,620.00 upon the parties' rental property, all resulting in an adjusted gross income of $14,317.00. His 1992 Form 1040, Plaintiff's Exhibit 16, reflects gross receipts of $76,708.00, interest and dividend income of $1,026.00, business expenses, not including the use of the home, of $42,103.00, resulting in net income of $35,630.00 In addition, this exhibit reflects a loss of $5,321.00 upon the parties' rental property, all resulting in an adjusted gross income of $30,956.00. The Defendant testified that his peak earning years were in 1989 or 1990, at which time he earned between $55,000.00 and $60,000.00. In 1992, Plaintiff's Exhibit 17 revealed interest income of $594.65 from a total of five (5) separate accounts. He additionally realized $431.35 in interest income from other sources. The parties stipulated that the rental income is $700.00 per month, of which $200.00 per month is used to pay the rental property's mortgage, taxes, insurance, water and sewage. b. Relative Earning Abilities Defendant/husband has the greater earning ability. Subsequent to her retirement as a principal, Plaintiff worked part time with at-risk children to teach them positive methods of dispute resolution. She testified that she found she lacked patience, but completed the program for which she had committed. The Court finds that Mrs. Brisky is punctual, articulate and appears to be very intelligent. No extrinsic evidence of her earning ability was tendered other than the testimony of her counselor, Vicki Friedman Goes, not a qualified vocational expert, that she believed Mrs. Brisky incapable of working. The Court finds that she could excel in a low stress job, should she choose to secure one, and that it would be an affront to the strength, poise and tenacity she exhibited during the course of an extended divorce trial to suggest otherwise. Regardless, she has achieved the apex of her chosen field, education, and in all likelihood, her highest earning years are behind her. c. Ages and physical, mental and emotional conditions of the parties -14- On the date of the hearing, Plaintiff was 53 years old, and Defendant was 55 years old. d. Retirement benefits of the parties The Plaintiff's pension benefits are in payout status (See, section a., above). The Defendant's pension benefits are detailed in the section on the division of property. These benefits are not substantial as an income source and are being treated as marital assets an valued at their present value. e. Duration of the marriage The parties were married for 26 years. f. Inequitability for a party to be employed because of that party's status as a custodial parent This section has no application to this case. g. Standard of living of the parties No evidence was presented that the parties had led either a particularly extravagant nor an overly frugal lifestyle, but rather that their standard of living was fairly typical of households with like incomes. They took few vacations and apparently invested much of their income. h. Relative extent of education of the parties The parties have stipulated that Mrs. Brisky obtained her Bachelor of Arts in education prior to the marriage and received a Masters in education in 1971. They further stipulated that Mr. Brisky received his Bachelor of Arts degree in marketing and statistics in 1974, his Masters in business administration in 1979, and his Masters in science and Industrial Engineering in 1984. Further, he has obtained his license for Environmental Certificate. Mrs. Brisky contributed substantially to her husband's earning ability. i. Relative assets and liabilities of the parties The parties' assets are set forth in the division of property, above. Joint Exhibit A, the Stipulation, at q 25, indicates that, other than mortgages on the real property, there are no marital debts and that each party shall be individually responsible for any debt he and she incurred after their separation on August 12, 1991. j. Contribution of each party to education of the other The Plaintiff testified that the Defendant took care of their minor son, at age 2 or 3 years, while Plaintiff was in summer studies for her master's degree at Kent State University. With Mrs. Brisky's support and during -15- the parties' marriage, Mr. Brisky obtained a bachelor's degree and two master's degrees. The Court finds that these degrees contributed to each of the parties' earning abilities. k. T ime and expense necessary to allow spouse seeking spousal support to acquire education, training or job experience Plaintiff presented no evidence that she seeks to further her education in order to enhance her earning ability. l. Tax consequences of an award of spousal support The Court finds that spousal support is taxable to the recipient and deductible by the payor. m. Lost income capacity of either party as a result of that party's marital responsibilities The Court finds that there was insufficient evidence to demonstrate that the Plaintiff lost income production capacity as a result of her marital responsibilities. The Court further finds that insufficient evidence was presented to demonstrate that any violence by Mr. Brisky resulted in a loss of income production capacity of Mrs. Brisky. n. Any other relevant and/or equitable factors The Defendant testified that his daughter from a prior marriage lived with the parties for 18 to 24 months when that child was 16 to 17 years old. By Defendant's own testimony, the daughter gave everybody fits . Plaintiff testified that Defendant's child support obligation from that prior marriage which was extant during an early part of the marriage was paid from marital funds. The Court finds that both parties' testimony on these issues was credible. The Court further finds that the gross annual income of the Plaintiff can be determined with some precision subject only to her securing future employment; Plaintiff shall receive $36,572.04 from her STRS pension on an annual basis and after the division of the Aetna annuity ordered below, $4,128.50 per year from that source (after tax is withheld), totaling approximately $40,700.00. The Court further finds that the income of Defendant, based upon his 1992 tax return reflects net business profit of $35,758.50. The Court further finds that the parties income will then be approximately equal and that it would be inappropriate to award spousal support at this time, although the Court should retain jurisdiction to do so within certain specified limitations. (Judgment entry 8-13.) -16- Wife acknowledges that we must apply an abuse of discretion standard when we review a decision not to award spousal support. Tremaine v. Tremaine (1996), 111 Ohio App.3d 703, 706. An award of spousal support is co-extensive with the recipients need. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 68. In the case at bar, the trial court did not abuse its discretion in denying Wife's request for spousal support. The court determined that her annual income level is approximately $40,000.00. In addressing the factors listed in R.C. 3105.18, the court focused on the annual income of the parties and their earning potential. Regarding their income, the court determined that Wife's annual net income would total approximately $40,700.00 ($36,572.04 annually from STRS and $4,128.50 from the annuity) and Husband's adjusted gross income would be approximately $39,758.50 ($35,630.00 net business profit and $4,128.50 from the annuity). This near-equality of income supports the trial court's denial of spousal support. The court also considered the parties' standard of living and liabilities. Wife contends that Husband's income from his business is higher than $35,630. Specifically, she argues that the court should have determined his income to be $55,000.00, the amount he acknowledged was his income in stipulation 24. The court did not err in using the lower amount for Husband's income. The parties agreed that his level of income was in dispute. The court specifically explained that it arrived at this number after deducting Husband's business expenses. This issue was litigated at -17- trial and both sides had the opportunity to present evidence and cross-examine Husband as to the accuracy of his income and business expenses. More importantly for purposes of this assignment, even if the court used $55,000.00 to represent Husband's income, this amount is still similar to Wife's annual income of approximately $40,700.00. Furthermore, a trial court must consider all of factors listed in R.C. 3105.18. A comparison of the parties' annual income is only one factor in determining spousal support. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93. Along with the annual income, the court was also concerned with the relative earning abilities of the parties. While the court specifically noted that Husband has the greater earning ability, the court appreciated the Wife's skills and ability to excel in a low-stress job. Therefore, even though the court found him to have a greater earning ability, the court implied that her earning ability weighed against her receiving spousal support. The court did not abuse its discretion in making this determination. Wife has been very successful in the field of education. The trial court, which had the better opportunity to observe Wife and review her professional achievements, described her as having achieved the apex of her chosen field. We cannot say that the court abused its discretion in implying that she has the potential to earn income in her retirement years if she so chooses. Therefore, because the court properly considered all the factors of R.C. 3105.18 (including income and earning ability), -18- Wife's sixth and seventh assignments of error are overruled. Her eighth assignment states as follows: VIII. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY FAILING TO DIVIDE THE PARTIES' PROPERTY IN AN EQUITABLE MANNER AND BY FAILING TO DIVIDE ALL OF THE ASSETS OF THE PARTIES. In this assignment, Wife states that the trial court failed to divide the property in an equitable manner. More specifically, however, she contests the valuation of Husband's business. Regarding the value of this business, the court stated as follows: The Court further finds that the valuation of Defendant's sole proprietorship by Carl J. Monastra is unreliable except as it assigns a value to the equipment and fixtures of that sole proprietorship, that value being $7,000.00. Judgment entry at 4. On the next page the court found the value of Husband's business equipment and fixtures to be $7,000.00. Regarding the division of property, Wife claims that the trial court erred in evaluating Husband's consulting business at $7,000. Specifically, she argues that the trial court erred in using the $7,000 figure when the court specifically found Monastra's valuation to be unreliable because his opinion was formed before Husband provided all the pertinent information. Husband had not provided, for example, accounts receivable. This argument fails. The valuation of a business is left to the sound discretion of the trial court. James v. James (1995), 101 Ohio App.3d 668. In the case at bar, the trial court did not abuse its discretion in the manner it evaluated Husband's business. The Briskey Group was a consulting business with Husband as the consultant. Husband points out that because the business centers around him he could -19- not sell the business to anyone else. Wife is incorrect when she says that the referee questioned the $7,000 value. What she questioned was everything other than the $7,000, because Husband did not provide sufficient information in time to allow the expert to evaluate the intangible portions of the business such as accounts receivable. The referee, however, remedied this problem by using the expert report to value only the fixtures and equipment of Husband's business. The referee went on to find that Husband did not make a distinction between his personal and business accounts. Thus the court recommended that the bank accounts be divided separately from the business since they were not considered part of the business. Moreover, Wife has not cited to any specific intangible asset of Husband's business that was not considered by the trial court. Accordingly, the court did not abuse its discretion in evaluating the fixtures and equipment of the business for $7,000 and separately evaluating the accounts receivable as part of the marital property bank accounts. Wife's eighth assignment of error is overruled. Wife's eleventh assignment of error states as follows: XI. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY FAILING TO AWARD APPELLANT ADEQUATE ATTORNEY FEES. Raising the same issue, Husband's second cross-assignment of error states as follows: THE TRIAL COURT DID ABUSE ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR IN ITS DETERMINATION OF THE APPELLANT'S ENTITLEMENT TO ATTORNEY'S FEES. -20- In this assignment and cross-assignment, both Wife and Husband contest the award of attorney fees. Generally, this decision is left to the sound discretion of the trial court. Birath v. Birath (1988), 53 Ohio App.3d 31, 39. Wife requested attorney's fees in the amount of $51,340.85. After reviewing the actual time expended as itemized elsewhere, however, the court reduced the fees to $46,715.85. After considering the complexity of the issues and the lack of necessity for some legal services rendered, the court further reduced the compensable fees to $15,000. The court did not award this full amount, however. Because of the relative financial positions of the parties, the court determined that Husband should pay $7,500.00 toward Wife's attorney's fees. The court stated that this amount included fees resulting from Husband's failure to timely provide discovery. Regarding attorney's fees, the trial court stated as follows: The Court further finds that Plaintiff has submitted a request for indemnification for attorney's fees, as and [sic] for additional alimony, totaling $51,340.85, as reflected in her Exhibit 43 and an additional submission as part of her closing argument filed March 25, 1994. The Court finds, upon review of those itemizations, the actual total expended for attorney's fees, when taking into account the time estimated in one portion of the documents for preparation of final argument and the time actually expended as itemized elsewhere, is not $51,340.85, but instead $46, 715.85, based on 37.6 hours at a billing rate of $150.00 per hour, 79.4 hours at a billing rate of $2,000 per day, along with expenses of $2,475.85. The Court further finds that this matter was not tried efficiently by either party. Plaintiff complained bitterly of incomplete discovery, an argument amply buttressed by Defendant's failure to provide substantial materials to Plaintiff until a point well into the trial. Regardless, Plaintiff filed no motion to compel -21- discovery, nor are the attorney's fees Plaintiff claims to have resulted from those efforts to obtain discovery segregated upon the statements she has submitted. Had a formal request been made in accordance with O.R.Civ.P. 37 for an order to compel, had the order to compel issued and had Defendant ignored such an order, the Court would have authority to order Defendant's payment of those attorney's fees. No such request was ever made. The Court further finds that an award of attorney's fees in the amount of $15,000.00 is reasonable, based upon the following considerations: 1. The complicated issue, how to treat a pension fund in payout status which is illiquid, was a legal issue. The lack of discovery of the Defendant's income sources hindered an efficient trial; however, no discovery motions were filed, and there was no accounting of how much the Defendant's failure to timely disclose his assets cost the Plaintiff in attorney fees. 2. The hourly rate requested is commensurate with customary fees in this locality. The daily rate for trials is less customary. 3. The Plaintiff's attorney is an experienced attorney who regularly practices in Domestic Relations Court. The Court further finds that, in determining the amount of reasonable attorney fees for this case, consideration was given as to whether all the legal serviced rendered were necessary and whether under the facts of this case the amount of time expended on such services were fully compensable. The Court further finds that all legal services rendered were not necessary and under the facts of this case the amount of time expended is not fully compensable. For instance, the Plaintiff had two (2) attorneys present throughout the trial yet expended $2,475.85 in expenses, much of which was for transcripts. The Court further finds, based upon consideration of the relative financial positions and earning abilities of the parties, the Defendant should pay, as and for additional spousal support, $7,500.00 towards the Plaintiff's attorney's fees, based upon the Defendant's failure to timely provide discovery. This sum is explicitly intended to cover the additional discovery which will be necessary to effectuate the division of property set forth herein. (Judgment Entry 13-15.) This award does not amount to an abuse of discretion. By determining that Husband should pay half the amount of what the -22- court determined were Wife's reasonable attorney fees, the court apparently concluded that both parties should share equally in the cost of the Wife's fees. The record reflects that the trial court considered the legal services provided and the relative financial positions and earning abilities of the parties. See generally, Walker v. Walker (1996), 112 Ohio App.3d 90. The trial court, which was in the best position to evaluate the legal services provided in this matter, found that the case was not tried efficiently by either party. This finding of dual responsibility for the inefficiency of the trial supports the equal division of attorney fees. Neither Husband nor Wife has demonstrated that this award was unreasonable, arbitrary, or unconscionable. Nor has Wife pointed to any detailed evidence in the record to demonstrate that this amount is insufficient to compensate her for Husband's incomplete and tardy discovery. Husband argues that the court was speculative in including fees for future discovery in its order. It is not an abuse of discretion, however, for the trial court to sweep in reasonably anticipated fees, especially on an equal basis, for the very final stages of closing a case. Goff v. Key Trust Co. (Dec. 18, 1997), Cuyahoga App. No. 71636, unreported. Thus the trial court did not abuse its discretion regarding the amount of attorney's fees awarded to Wife. XII. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY GRANTING THE PARTIES A DIVORCE BASED UPON THE GROUNDS OF INCOMPATIBILITY. -23- In this one-paragraph assignment, Wife argues that the trial court erred by granting a divorce on the basis of incompatibility as opposed to extreme cruelty. A trial court is vested with broad discretion to determine the proper grounds for divorce. Buckles v. Buckles (1988), 46 Ohio App.3d 102, 116. The trial court granted the parties a divorce on the grounds only of incompatibility. The court stated as follows: The Court further finds that the parties have each pled and established the grounds of incompatibility, which neither party denies, by reason of which each is entitled to a divorce from the other. The Court further finds that the Plaintiff has, in addition, plead the grounds of adultery and extreme cruelty, that the plaintiff argued, but did not plead the ground of gross neglect of duty, and that, by reason of the Court's finding as to the grounds of incompatibility, the Court will only grant a divorce upon those grounds. (Journal entry at 3-4.) In her brief in support of this assignment, Wife states that the evidence demonstrated that Husband was guilty of extreme cruelty, but she does not cite any specific transcript pages to substantiate her claim. Moreover, both parties pled and presented evidence of incompatibility. Accordingly, because Wife has not demonstrated that the trial court abused its discretion by not granting a divorce on the grounds of extreme cruelty, this assignment is overruled. Defendant's ninth and thirteenth assignments of error state as follows: IX. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY PENALIZING THE APPELLANT AND REWARDING THE APPELLEE FOR APPELLEE'S FAILURE TO COMPLY WITH DISCOVERY REQUESTS; AND BY COMMENCING THE TRIAL AND THEN ALLOWING THE DEFENDANT TO FIRE HIS TRIAL ATTORNEY IN THE MIDDLE OF TRIAL AND BY FURTHER GRANTING A DELAY OF OVER SIX MONTHS BEFORE RECOMMENCING THE TRIAL WITH A -24- SECOND NEW ATTORNEY. SUCH ACTION IS A VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, AND ARTICLE 1, SECTIONS 16 OF THE OHIO CONSTITUTION WHICH GUARANTEE EQUAL PROTECTION AND DUE PROCESS TO ALL PARTIES; SUCH ACTION IS ALSO A VIOLATION OF THE SIXTH AND SEVENTH AMENDMENT TO THE U.S. CONSTITUTION WHICH GUARANTEE A FAIR AND EQUAL TRIAL TO ALL PARTIES. XIII. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN THE MAGISTRATE ACTED IN AN ABUSIVE AND ARBITRARY MANNER TOWARD APPELLANT'S COUNSEL WHEN SHE THREATENED APPELLANT'S COUNSEL AND ORDERED HIM NOT TO FILE PROPER DISCOVERY MOTIONS; SUCH ACTIONS VIOLATED THE U.S. AND OHIO CONSTITUTIONS GUARANTEES TO A FAIR AND EQUAL TRIAL. In these two assignments, Wife argues that the trial court referee abused her discretion when the referee threatened Wife's attorney and told him not to file any more discovery motions. Wife supplemented the record with the depositions of her counsel and Husband's counsel, who all stated that the referee, in a heated exchange, told Wife's counsel not to file any motion to compel. We find no reversible error in these assignments. A hotly contested issue in this trial was the promptness and completeness of the responses to discovery Husband provided. This issue came to a head in a hearing in front of the magistrate. While we have no transcript of this hearing, all three attorneys testified that the referee told Wife's counsel not to file a motion to compel. When asked about this incident, Husband's counsel stated as follows: Q. Do you recall her on two separate occasions, it was three really, but one was in front of Ramon Basie, do you recall her saying to me, Mr. Zashin, you are not to file a motion to compel and/or for sanctions, Mr. Kronenberg will get the documents pursuant to his promise pursuant to your request as you have directed ; do you recall her saying that? -25- A. I recall her saying that. I don't know whether it was on one occasion or more than one occasion. Q. But you recall her saying it at least on one occasion? A. (Nodding affirmatively.) (Kronenberg Depo. at 16.) First, we must express our strong disapproval of the referee's actions. The parties to a lawsuit are free to litigate the case as they choose. It is not for the referee to tell attorneys what motions they can or cannot file. However, while we do not condone the action of the referee, these comments do not warrant a reversal. A trial court is vested with broad discretion over discovery matters. State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55. One can infer that by informing counsel not to file a motion to compel, the court was prepared to deny a motion to compel. From the above-quoted deposition, it is apparent that the court was relying on the representations that Husband's, then-new counsel would turn over the necessary discovery. Following the directions given by the referee, Wife's counsel did not file a motion to compel. Thus there is no proper record for review because it is unclear what specific items were sought and not provided. We understand the practicalities of the dilemma of filing a motion in direct contravention of the wishes of the referee. However, there is nothing for this court to evaluate without a specific proffer of what was not provided, nor do the referee's comments suffice. Under assignment number IX, aside from the discovery problems, Wife also argues that the court abused its discretion by allowing Husband to fire his attorney in the middle of trial and -26- recommence trial six months later. Wife fails, however, to specify how she was prejudiced by the trial court's decision. Accordingly, this assignment is overruled. XIV. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY DISALLOWING THE TESTIMONY OF DR. GEORGE RITZ BASED ON THE APPELLEE'S ASSERTION OF PHYSICIAN-CLIENT PRIVILEGE. Wife argues that the trial court erred when the referee disallowed the testimony of Dr. George Ritz, a psychologist. Ritz treated Wife for alleged physical and mental abuse. During this treatment, Ritz met with Husband also. She claims that during the course of this treatment, Husband admitted to Ritz that he physically and mentally abused her. The referee disallowed this testimony because the court felt that a physician-patient relationship existed between Husband and Dr. Ritz. Wife argues that she was the patient of Dr. Ritz and thus is the only person entitled to invoke the right. In her report and recommendation, the referee stated as follows: The Plaintiff argues, at pages 10 through 12 of her closing argument, that she was precluded from calling Dr. Ritz to testify. At page 18 she states, Wife contend's [sic] that this court committed error when it failed to compel the testimony of Wife's witness, Dr. Ritz. The Plaintiff was not precluded from calling Dr. Ritz. If the Defendant had objected to questions posed on the basis that they called for privileged information, and if those objections had been sustained, the Plaintiff could have proffered the testimony. It is not the role of the Court to compel the testimony of a witness. (Referee's Report at 2.) This assignment is overruled. As the referee pointed out, plaintiff did not call Dr. Ritz to testify, nor did plaintiff -27- proffer Dr. Ritz' testimony. Thus Wife has waived the issue on appeal. Gannett v. Booher (1983), 12 Ohio App.3d 49; Helms v. Helms (Sept. 10, 1997), Summitt App. No. 18142, unreported. Moreover, Wife did not object to this issue when she filed her objections to the referee's report. Pursuant to the version of Civ.R. 53 in effect at the time of the referee's report, Wife waived any finding of fact regarding the testimony of Dr. Ritz3. Accordingly, Wife's thirteenth assignment of error is overruled. CROSS-ASSIGNMENT I. THE TRIAL COURT DID ABUSE ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR IN ITS DETERMINATION OF THE TERMINATION DATE OF THE PARTIES' MARRIAGE In this cross-assignment, Husband argues that the trial court erred in deciding the marriage terminated on December 23, 1991, the date of the final hearing. The court followed R.C. 3105.171(A)(2), which directs the trial court to use the date of the final hearing unless that date produces an inequitable result. If this date is inequitable, the court can apply the factors found in Gullia v. Gullia(1994), 93 Ohio App.3d 653, to use a de facto date. In the case at bar, however, Husband does not offer any reason why the December 1993 date produces an inequitable result. Therefore this assignment is overruled. Judgment affirmed. 3 Civ.R. 53 in effect at the time of the report dictated that a party had to object in writing to a referee's finding of fact in order to preserve the issue on appeal. Conclusions of law were not covered by the prior rule. The current version of Civ.R. 53 as effective July 1, 1995, changed the title referee to magistrate and provided that a party must object to a magistrate's finding of fact or conclusion of law in order to preserve the issue on appeal. -28- 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 Domestic Relations Division of the Common Pleas 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. PATRICIA A. BLACKMON, A.J., and TIMOTHY McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .