COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78091 EDWARD HAMPTON : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION KIM HAMPTON : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 2001 CHARACTER OF PROCEEDING : Civil appeal from : Cuyahoga County : Court of Common Pleas : Domestic Relations Division : Case No. D-258,979 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: ANDREW J. SIMON Attorney at Law First Merit Plaza 500 East Royalton Road, #180 Broadview Heights, Ohio 44147 For defendant-appellee: KIM HAMPTON, pro se 1184 Dorsh Road South Euclid, Ohio 44121 (Continued) APPEARANCES (Cont.) : GERRY DAVIDSON Attorney at Law 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- KENNETH A. ROCCO, P.J.: Plaintiff-appellant Edward Hampton appeals from a decision of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, that awarded a divorce to appellant and ordered a division of marital property between appellant and defendant- appellee Kim Hampton. Appellant asserts the trial court's division of marital property is flawed for two reasons: (1) the trial court failed to apply an earlier de facto marriage termination date and (2) the trial court failed to order appellee to either sell the marital residence or to refinance the mortgage on the marital residence. Appellant further asserts an award of spousal support to appellee was unwarranted in this case. This court has reviewed the record with appellant's assertions in mind but cannot find the trial court's decision amounted to an abuse of its discretion. Consequently, its decision is affirmed. The record reflects appellant married appellee on June 6, 1978. At that time, the parties, respectively, were aged twenty and eighteen years and had a 5/-month-old baby. Both had lived in the Cleveland area with their families. Since appellant already had enlisted in the army, appellee and the child initially lived with appellee's mother in Cleveland. When appellant secured more stable housing, however, appellee and the child relocated to the army base in Germany, where appellant then was stationed. -3- This pattern repeated itself thereafter. The parties had two additional children born in September, 1979 and July, 1986. In 1988, after appellant had completed training to qualify as a drill sergeant, the couple obtained housing for their family at Fort Sill, Oklahoma. On June 15, 1991, upon the completion of the Oklahoma school year, appellee packed some clothing for herself and the children and "told [appellant] she was going home."1 Although after this move appellee and the children lived with appellee's mother for a time, by May, 1992 appellee had found a house she liked on Dorsh Avenue. Appellant came to Cleveland "to go see the house" and told appellee "it was fine." Prior to reporting to his new station in Hawaii in June, 1992 appellant executed an instrument that gave appellee power of attorney to purchase the property in both parties' names. Appellee in this manner also obtained for the couple a mortgage on the property in order to make the purchase. While appellant was stationed in Hawaii, the couple maintained a joint checking account. Although each filed separate tax returns, they did so only in order to maximize tax benefits; appellee helped appellant in preparing his tax returns. In 1995, although appellee had obtained full-time employment, appellant "co-signed for a car" for appellee. Moreover, prior to being reassigned to an army base in Colorado, appellant directed the army, by means of an "allotment form," to remove an amount of 1Quotes indicate testimony given by a witness at the trial court hearing. -4- money from his military pay and to "send it" to appellee at the home the couple had purchased. In 1996, appellant returned to Cleveland to attend his eldest son's high school graduation. He stayed for those few days in the Dorsh Avenue home with his family. The couple's eldest son began attending college in August; appellee at that time sought, by several means, to finance his studies. Relying on an agreement with appellant that she should pay the first two years of college expenses and appellant would pay the last two, appellee applied for loans and undertook additional part-time employment. During 1997, however, the couple's daughter came to live at the Dorsh Avenue house with her new baby. Moreover, the couple's youngest son began having difficulties in school, prompting appellee to quit her part-time employment. Appellee's financial burdens consequently increased. Contemporane- ously, appellant reduced the allotment he sent to appellee and was transferred to the state of New York. In February, 1998, appellant filed his complaint for divorce. Appellant alleged appellee was "guilty of acts and omissions constituting Gross Neglect of Duty [and] Extreme Cruelty." Appellee answered the complaint pro se; her allegations precisely matched the language of the complaint. During the pendency of the instant proceedings, appellee filed a bankruptcy petition in the federal court seeking discharge of her personal debts. Fearing foreclosure on the Dorsh Avenue home, appellant filed in the trial court a "motion to immediately sell -5- the marital residence." Appellant's fear proved premature; appel- lee by this time had retained counsel, who aided her in negotia- tions with the mortgage company. By the time of trial, appellee had arranged to use a federal tax refund to pay outstanding amounts due on the mortgage.2 Trial commenced in August, 1999. Over the course of several hearings, the parties presented the testimony of appellant, appel- lant's brother, appellee and pension evaluator David Kelley. Kelley estimated the value of the marital portion of appellant's army pension at $397,349.00. Kelley testified if the marriage had terminated in June, 1991, however, the value of the marital portion of the pension would drop to $202,306.00. During closing argument, appellant moved to amend his com- plaint to include the allegation the parties had lived separate and apart for one year. Subsequently, in its judgment entry, the trial court granted appellant's complaint for divorce on that basis. In dividing the marital property, the trial court determined the duration of the marriage was from June, 1978 through August, 1999. The trial court thus determined the value of appellant's pension was $387,349.00. In pertinent part, the trial court ordered appellant to quitclaim to appellee his interest in the marital home and further ordered that appellee was responsible for the mortgage, taxes and homeowner's insurance on the home. The 2By the time of trial, appellee also had withdrawn her original answer to the complaint for divorce and, instead, sought dismissal of the complaint. -6- trial court then listed the marital assets and debts and divided them equally between the parties. Appellant has filed a timely appeal from the trial court's judgment entry of divorce. He presents three assignments of error for this court's review. Appellant's first assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRE- TION WHEN IT FAILED TO APPLY A DE FACTO TERMI- NATION DATE OF THE MARRIAGE. Appellant argues the trial court's division of the marital property was flawed since the trial court used an improper valua- tion date. He contends a de facto termination of the marriage occurred on June 15, 1991 when appellee moved to Cleveland with the children. This court disagrees. *** [Appellant] argues that the trial court should have used a de facto termination date of the marriage in order to equitably divide the marital property. R.C. 3105.171(A)(2)(a). Generally, the terms (sic) of the marriage is the time period from the date of the marriage to the date of the final divorce hearing. However, R.C. 3105.171(A)(2)(b) provides as follows: "If the court determines that the use of either or both [the date of the marriage and the date of the final di- vorce hearing] would be inequitable, the court may select dates that it considers equitable in determining marital prop- erty. If the court selects dates that it considers equitable in determining mari- tal property, `during the marriage' means that period of time between those dates selected and specified by the court." In order to achieve an equitable distri- bution of property, the trial court must be allowed to use alternative valuation dates where reasonable under the particular facts -7- and circumstances of the case. Langer v. Langer (Sept. 26, 1997), Montgomery App. No. 16243, unreported, 1997 WL 630027, appeal dismissed (1997), 80 Ohio St.3d 1473, 687 N.E.2d 470. "The determination as to when to apply a valuation date other than the actual date of divorce is within the discretion of the trial court and cannot be disturbed on appeal absent a demonstration of an abuse of discretion." Gullia v. Gullia (1994), 93 Ohio App.3d 653, 666, 639 N.E.2d 822, 830. Glick v. Glick (1999), 133 Ohio App.3d 821, 828. (Emphasis added.) A review of the record in this case demonstrates the trial court did not abuse its discretion when it determined no de facto termination had occurred. Rather, the trial court's determination is supported by competent, credible evidence; indeed, the trial court carefully considered the credibility of the witnesses in making its decision. McElrath v. McElrath (Nov. 24, 1999), Cuyahoga App. No. 75177, unreported. The trial court noted appellant acted inconsistently with his assertion the marriage had terminated in 1991 since he thereafter provided appellee with a power of attorney to purchase a home jointly, maintained his relationship with appellee and his children to the exclusion of others, encouraged appellee to seek stability for the sake of the children, and manifested no intent to dissolve the marriage until he filed the divorce petition.3 The trial court further noted that appellee's reasons for relocating to Cleveland were family-related. Finally, the evidence demonstrated each 3In considering this assignment of error, this court finds it also noteworthy that appellant has consistently throughout these proceedings referred to the home purchased in 1992 as "the marital residence." -8- party, commensurate with his or her ability, provided support to the other throughout the years of appellant's military career. Based upon the evidence presented, this court cannot conclude the trial court abused its discretion in this matter. Berish v. Berish (1982), 69 Ohio St.2d 318; Reese v. Reese (May 22, 1997), Cuyahoga App. No. 71336, unreported; Wyum v. Wyum (Mar. 6, 1997), Cuyahoga App. No. 70317, unreported; cf., Gullia v. Gullia (1994), 93 Ohio App.3d 653. Accordingly, appellant's first assignment of error is over- ruled. Appellant's second assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRE- TION WHEN [IT] FAILED TO ORDER THE APPELLEE TO EITHER SELL HER RESIDENCE OR REFINANCE THE MORTGAGE THEREON WITHIN A REASONABLE TIME SO AS TO EXTINGUISH APPELLANT'S LIABILITY ON THE MORTGAGE THEREON. Appellant argues the trial court's order is improper since it did not require appellee to either sell the Dorsh Avenue home or to refinance the mortgage on the home. Appellant's concern is that the couple's finances may remain entangled. In view of the language of the judgment entry of divorce, however, appellant's argument is unpersuasive. A trial court has broad discretion in dividing marital property. Bisker v. Bisker (1994), 69 Ohio St.3d 608. In this case, the trial court not only ordered appellant to quitclaim to appellee his interest in the marital home, it also ordered that appellee both was "responsible for" and must "pay the mortgage owed upon the marital residence," along with the other loans she had -9- procured, "holding the [appellant] completely harmless thereon." The trial court further directed the parties to "execute, transfer, and deliver all titles, deeds, conveyances, certificates, or any other documents necessary to effectuate this order." Under the circumstances, the trial court acted properly since it divided all of the marital property equally, as required by statute. Although appellant remains liable to the mortgage company on the home, the trial court provided appellant with a remedy should default occur by way of a right to indemnity from appellee. This may be a less secure protection than directing appellee to either sell or refinance, thereby absolving appellant of any debt; however, the trial court was not mandated to provide each party with the greatest amount of protection possible against liability to third parties on marital debts. The trial court was aware appellee had resolved the earlier foreclosure action. Appellant, therefore, cannot demonstrate the trial court abused its discretion in making its disposition of the marital property. Hock v. Hock (Dec. 19, 2000), Pickaway App. No. 99CA13, unreported; Moauro v. Moauro (Nov. 6, 2000), Stark App. Nos. 1999CA00364, 1999CA00409, unreported. Accordingly, appellant's second assignment of error also is overruled. Appellant's third assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRE- TION WHEN IT ORDERED THE APPELLANT TO PAY THE APPELLEE THE SUM OF $357.00 PER MONTH FOR A PERIOD OF SEVEN YEARS AS SPOUSAL SUPPORT. -10- Appellant argues the trial court's award of spousal support to appellee was improper. This argument, however, is difficult to comprehend since the trial court did not award spousal support and the judgment entry specifically stated that after a consideration of the appropriate factors pursuant to R.C. 3105.18(C)(1), "spousal support is not appropriate and reasonable." (Emphasis added.) Since appellant's argument has no basis, the third assignment of error is overruled. The judgment of the trial court is 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 Cuyahoga County Court of Common Pleas, 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. ANNE L. KILBANE, J. and FRANK D. CELEBREZZE, JR., J. CONCUR PRESIDING JUDGE KENNETH A. ROCCO 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .