COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75459 RHONDA BRAYLOCK, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : GREGORY BRAYLOCK, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 23, 1999 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Domestic Relations Division : Case No. D-248976 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Lisa Spano-Harting, Esq. DWORKEN & BERNSTEIN CO. 153 East Erie Street, No. 304 Painesville, Ohio 44077 For defendant-appellant: Deborah L. McNinch, Esq. ZIPKIN, FINK & WHITING Two Commerce Park Square 23220 Chagrin Boulevard, No. 106 Beachwood, Ohio 44122 -2- MICHAEL J. CORRIGAN, J.: Gregory Braylock, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. D-248976, in which the trial court entered a judgment decree of divorce and divided the marital assets of the parties. Defendant-appellant assigns five errors for this court's review. All five errors arise out of the trial court's division of marital property and allocation of marital debt. Defendant-appellant's appeal is not well taken. Defendant-appellant and Rhonda Braylock, plaintiff-appellee, were married on November 28, 1991. Two children were born as issue of their marriage, Gregory, Jr., d/o/b 3/3/84, and Robert, d/o/b 1/27/87. During the course of the marriage, plaintiff-appellee worked as a school teacher earning approximately $55,165.00 per year. She is a participant in the State Teachers Retirement System (hereinafter STRS ). Plaintiff-appellee's interest in the STRS at the time of divorce was $87,271.00. The parties stipulated that defendant-appellant's interest in the STRS at the time of the divorce $32,727.50. The parties stipulated further that the value of the marital residence was $66,000.00 with a mortgage balance of $53,694.83. Two years before the complaint for divorce was filed, defendant-appellant stopped working full-time in order to attend pharmacy school in Cincinnati, Ohio. Defendant-appellant had been earning approximately $30,000.00 per year prior to enrolling in -3- pharmacy school. After graduating from pharmacy school in September of 1997, defendant-appellant began earning approximately $60,000.00 per year. Plaintiff-appellee maintains that while defendant-appellant was enrolled in pharmacy school, she was responsible for the mortgage and insurance on the marital home, medical insurance and bills for herself and the children as well as the children's tuition. On August 14, 1996, plaintiff-appellee filed her complaint for divorce along with a request for a number of restraining orders and a motion for a civil protective order. The case came on for trial initially on February 23rd and 24th, 1998. At the close of plaintiff-appellee's case, a settlement was reached regarding the allocation of parental rights and responsibilities including defendant-appellant's visitation. The remaining issues concerning the division of marital assets, liabilities and child support were scheduled for a later hearing. The trial court continued the hearing for the express purpose of allowing the parties to seek bankruptcy protection. Neither party chose to file for bankruptcy. Ultimately, the remaining issues came on for hearing on July 22nd, 23rd and 24th, 1998. At the conclusion of the hearing, the trial court made a number of determinations regarding the value of marital assets as well as marital liabilities, the extent of the marital estate and the allocation of each parties' attorney fees. Specifically, the trial court determined that the marital debt totaled $38,765.00. The trial court then allocated $32,728.00 of the marital debt to plaintiff-appellee. The trial court offset the -4- amount of marital debt allocated to plaintiff-appellee with defendant-appellant's interest in the STRS pension, which was stipulated at $32,727.50. Plaintiff-appellee was then awarded her STRS pension free and clear of any claim of defendant-appellant. The remaining marital debt was divided equally between the parties. The trial court further determined that the marital home be sold and, after the mortgage and outstanding tax liens were satisfied, the remaining equity be divided equally. In the event any personal possessions remained in the marital home at that time of sale, those possessions were also to be sold and the proceeds divided equally among the parties. This provision was apparently inserted due to the parties continued inability to agree upon an equitable division of the subject property. The trial court determined further that each party be responsible for any and all debt incurred for attorney fees arising out of the underlying action. Specifically, plaintiff-appellee was to be responsible for a loan taken on her Paul Revere Annuity Fund and defendant-appellant was to be responsible for the Huntington or Metropolitan debt incurred in his own name. Finally, the trial court made a number of determinations regarding the allocation of non-marital debt. It is from the trial court's division of marital property and debt that defendant-appellant now appeals. Defendant-appellant's first assignment of error states: I. THE TRIAL COURT ERRED IN MAKING AN EQUITABLE DIVISION OF PROPERTY UNDER SECTION 3105.171 OF THE OHIO REVISED CODE IN FAILING TO PROPERLY OFFSET THE VALUE OF THE -5- APPELLANT'S PORTION OF PLAINTIFF-APPELLEE'S STRS WITH THE MARITAL DEBT. Defendant-appellant argues, through his first assignment of error, that the trial court improperly offset his interest in plaintiff-appellee's STRS pension fund with the marital debt. Specifically, defendant-appellant maintains that this offset does not constitute an equitable division of the first $32,728.00 of the marital debt since he is, in effect, completely responsible for the entire $32,728.00 rather than one-half of that amount. It is defendant-appellant's position that his interest in the STRS pension was $32,727.50 and his portion of the marital debt was $16,364.00. Defendant-appellant argues that when his portion of the marital debt is subtracted from his interest in the STRS fund, he is still owed approximately $16,364.00 for his remaining interest in the STRS pension fund. Defendant-appellant maintains that the trial court's allocation constitutes an abuse of discretion. A trial court has broad discretion in making a division of marital property in domestic relations cases. Berish v. Berish (1982), 69 Ohio St.2d 318, 432 N.E.2d 183. A trial court's decision regarding the division of marital property will be upheld absent an abuse of discretion. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 541 N.E.2d 597; Martin v. Martin (1985), 18 Ohio St.2d 292, 294-295, 480 N.E.2d 1112. The term abuse of discretion connotes more than an error in law or judgment; it implies that the trial court acted in an unreasonable, arbitrary or unconscionable manner. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 -6- N.E.2d 1140, 1142. When reviewing the record from the trial court, if it is apparent that the trial court's decision is supported by some competent, credible evidence, no abuse of discretion has occurred. Ross v. Ross (1980), 64 Ohio St.2d 203, 414 N.E.2d 426, Middendorf v. Middendorf (1998), 82 Ohio St.3d 397, 401, 696 N.E.2d 575. Although an equal division of marital property as well as debt is a starting point when allocating marital property and debt, the trial court's division need not be equal in order to be equitable. Wannemacher v. Wannemacher (Dec. 23, 1998), Van Wert App. No. 15- 98-13, unreported, R.C. 3105.171(C)(1). This decision is for the trier of fact, not the appellate court. Therefore, the decision will not be reversed absent an abuse of discretion. Landry v. Landry (1995), 105 Ohio App.3d 289, 663 N.E.2d 1026. In the case sub judice, a review of the record from the trial court demonstrates that the trial court's setoff of marital debt with defendant-appellant's interest in plaintiff-appellee's STRS pension was, in fact, equitable given the overall distribution of the marital estate. The trial court determined that the total marital debt was $38,765.00. As previously stipulated by the parties, defendant-appellant's interest in plaintiff-appellee's STRS pension was $32,727.50. Since no significant marital assets existed to satisfy the debt, the trial court found that $32,728.00 of that marital debt was to be the responsibility of plaintiff- appellee as an offset of defendant-appellant's interest in the STRS pension, which the trial court awarded plaintiff-appellee in its -7- entirety. Clearly, the trial court's setoff does not constitute an abuse of discretion in light of the fact that plaintiff-appellee is responsible for the majority of the marital debt, as well as any remaining mortgage payments on the marital residence until such time as the residence is sold. In addition, plaintiff-appellee received a reduced amount of monthly child support payments since defendant-appellant was responsible for approximately $60,000.00 in student loans as well as other marital debt. It is well established that the facts and circumstances of each case dictate what constitutes an equitable division of marital property. See Terry v. Terry (1994), 99 Ohio App.3d 228, 232, 650 N.E.2d 184, 186-187; Badovick v. Badovick (1998), 128 Ohio App.3d 18, 713 N.E.2d 1066. Keeping this in mind, it is apparent from the record that, under the present circumstances, the trial court's setoff of a large portion of the marital debt with defendant-appellant's interest in plaintiff-appellee's STRS pension did not constitute an abuse of discretion. See Mayer v. Mayer (1996), 110 Ohio App.3d 233, 673 N.E.2d 981. This is particularly true in light of the fact that defendant-appellant's formula for debt allocation is not based upon the total debt of the parties, but only the debt allocated to plaintiff-appellee. As such, the formula is fatally flawed. For the foregoing reasons, defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN FAILING TO AWARD THE PLAINTIFF-APPELLEE'S PAUL REVERE ANNUITY -8- AS PART OF THE EQUITABLE DIVISION OF MARITAL PROPERTY. Defendant-appellant argues, through his second assignment of error, that the trial court improperly excluded a Paul Revere Annuity owned by plaintiff-appellee from the marital estate. Specifically, defendant-appellant maintains that the annuity, which he values at $3,254.58, should have been subject to an equal division between the parties as marital property. It is defendant- appellant's position that the trial court's failure to include the annuity constitutes an abuse of discretion. As previously stated, the trial court's division of marital property need not be equal in order to be considered equitable. Winkler v. Winkler (1997), 117 Ohio App.3d 247, 690 N.E.2d 109; Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 518 N.E.2d 1197. An appellate court must, therefore, review the award of the domestic relations court in order to determine whether the division of marital property is fair, equitable and in accordance with the law. Spychalski v. Spychalski (1992), 80 Ohio App.3d 10, 608 N.E.2d 802. Trial courts in domestic relations cases have broad discretion to determine what division of property is equitable and such determination will not be reversed on appeal absent a showing of an abuse of that discretion. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. In the case herein, the trial court determined that plaintiff- appellee had taken out a loan on the Paul Revere Annuity in question in order to pay her attorney fees. Rather than divide the remaining equity in the annuity, the trial court allowed plaintiff- -9- appellee to retain the annuity and each party be responsible for their own attorney fees. Defendant-appellant had, in fact, incurred a similar debt to pay his own attorney fees for which he too was held responsible. Under the circumstances presented herein, this court cannot now say that the trial court's decision in this regard constituted an abuse of discretion. The overall division of marital assets and debt was not rendered inequitable by the trial court's exclusion of the remaining equity in the Paul Revere Annuity from the marital estate. Defendant-appellant's second assignment of error is not well taken. Defendant-appellant's third assignment of error states: III. THE TRIAL COURT ERRED IN FAILING TO AWARD ALL OF THE APPELLEE'S ATTORNEY FEES TO APPELLEE AS HER SEPARATE DEBT. Defendant-appellant argues, through his third assignment of rror, that the trial court improperly included as marital debt a 2,700.00 debt incurred on an MBNA line of credit. Defendant- ppella nt maintains that this debt was actually incurred by laintiff-appellee for additional attorney fees and, therefore, hould have been determined to be the sole responsibility of laintiff-appellee, rather than considered as marital debt. Defendant-appellant seeminglyignores the fact that, during the ower court proceedings in this matter, he stipulated that the MBNA ine of credit debt was, in fact, a marital debt. (T. 143-145.) t is well established that a stipulation to the admissibility of videnc e precludes any subsequent challenge or claim of error -10- elating to the stipulated evidence. See Lentz v. Schnippel (1991), 1 Ohio App.3d 206, 211, 593 N.E.2d 341, 346; Dubecky v. Horvitz Co. 1990), 64 Ohio App.3d 726, 742, 528 N.E.2d 1087, 2003. ccordingly, defendant-appellant cannot now claim on appeal that the ebt in question should have been designated as part of plaintiff- ppellee's attorney fee obligation. Defendant-appellant's third assignment of error is not well aken. Defendant-appellant's fourth assignment of error states: IV. THE TRIAL COURT ERRED IN DETERMINING THE AMOUNT OF EQUITY IN THE MARITAL PROPERTY. Defendant-appellant maintainsthat both parties stipulated that he value of the marital residence was $66,000.00. In addition, the ortgage balance on the marital residence at the time of the divorce as stipulated at $53,694.83. It is defendant-appellant's position hat the equity in the marital residence should be $12,305.17 rather han $16,600.00 as determined by the trial court. Defendant- ppellant contends that the trial court's determination constitutes n abuse of discretion. In light of the fact that the trial court ordered the marital esidence to be sold and the remaining proceeds be divided equally etween the parties, it is difficult to determine how the trial ourt's calculation regarding equity in the marital home could have rejudiced defendant-appellant in any way. Clearly, any remaining alance after the sale of the marital home and the satisfaction of ll mortgages and tax liens was ordered to be divided equally etween the parties. The trial court's provisional determination -11- s to the equity in the home would have no effect on the remaining alance to be divided after the sale. Accordingly, no abuse of iscretion occurred in this instance. Defendant-appellant's fourth assignment of error is not well aken. Defendant-appellant's fifth and final assignment of error tates: V. THE TRIAL COURT FAILED TO INCLUDE A MARITAL DEBT IN ITS DISTRIBUTION OF PROPERTY. Defendant-appellant argues, through his fifth and final ssignment of error, that the trial court improperly excluded a apital credit card debt he had previously incurred in the amount f $723.00 from the marital estate. Specifically, defendant- ppellant maintains that the subject debt should have been included s marital debt and been subject to the trial court's division of arital property. As previously set forth by this court, a trial court has broad iscretion in making divisions of property and debt in domestic elations cases. Berish, supra. A trial court's decision in this egard will be upheld absent an abuse of that discretion. Holcomb, upra, Wannemacher, supra. In the case herein, testimony was presented by defendant- ppella nt that he possessed two Capital credit cards with utstanding balances. Defendant-appellant testified further that ne existed prior the filing of the divorce complaint and one was btained after divorce proceedings had been initiated. (T. 349.) efendant-appellant was unable to state with certainty which card -12- xisted prior to the divorce. Defendant-appellant maintained that oth cards were used for similar purposes such as groceries, clothes nd other miscellaneous items for the family. (T. 350.) A review f the trial court's judgment entry demonstrates that one of the apital credit card debts is listed as marital debt. Clearly, in ight of the uncertainty in defendant-appellant's own testimony, the rial court did not abuse its discretion by choosing one of the two xisting credit cards and including that balance in its computation f marital debt. By defendant-appellant's own admission, only one f the credit cards in question should have been included as a arital debt. Defendant-appellant has failed to demonstrate that he trial court abused its discretion in its choice of credit cards o include in the marital estate. Defendant-appellant's fifth and final assignment of error is ot well taken. Judgment of the trial court is affirmed. -13- It is ordered that appellee recover of appellant her costs erein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court irecting the Common Pleas Court Domestic Relations Division to arry this judgment into execution. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. MICHAEL J. CORRIGAN JUDGE ARPINSKI, J., CONCURS. 'DONNELL, TERRENCE, P.J., CONCURS N PART AND DISSENTS IN PART WITH EPARATE CONCURRING AND DISSENTING PINION. .B. This entry is an announcement of the court's decision. See pp.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will e journalized and will become the judgment and order of the court ursuant to App.R.22(E) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the ournalization of this court's announcement of decision by the clerk er App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75459 HONDA BRAYLOCK : : Plaintiff-Appellee : CONCURRING : AND vs. : DISSENTING : OPINION : REGORY BRAYLOCK : : Defendant-Appellant : : ATE: DECEMBER 23, 1999 ERRENCE O'DONNELL, P.J., CONCURRING IN PART AND DISSENTING IN PART: WhileI concur with the judgment in this case, I dissent from hat portion of the opinion which attributed $32,727.50 of the arital debt to the appellant; this should have been equally ivided. The abuse of discretion in this division becomes apparent hen the court offset this amount against the STRS pension value, hich, although could be calculated to present value, has far more .