I concur in the majority's analysis and disposition of appellant's first, second, third, fourth, sixth and seventh assignments of error. I further concur in the disposition as to appellant's fifth assignment of error. However, I do so for a different reason.

The majority's sole stated reason for overruling appellant's fifth assignment of error is, "Our review of the trial court's findings and explanations lead us to conclude there is no error there." (Majority Opinion at 6-7).¹ I presume the majority is referring to the trial court's August 22, 1998 Judgment Entry which precipitated the instant appeal. I have reviewed the subject judgment entry and cannot find therein where it addresses the claim appellant now raises.²

I find the premise underlying appellant's claim in her fifth assignment of error is fatally flawed. Appellant asserts her IRA has a marital value of $12,000. In its February 14, 1997 Decree of Divorce, the trial court found the marital value if the IRA to be $24,000. As appellant did not raise any error relative to the value of the IRA on direct appeal from the Decree of Divorce, she is barred from now attacking the finding under the principle of res judicata.

______________________________ JUDGE WILLIAM B. HOFFMAN

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed in part and reversed in part, and the cause is remanded to that court for further proceedings in accord with law and consistent with this opinion.

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¹ Such conclusion may be insufficient to satisfy App. R. 12(A)(1)(c).

² The majority does not identify where in the trial court's twelve page judgment entry the alleged error is "explained."

Plaintiff Frances B. Levi appeals a judgment of the Court of Common Pleas of Licking County, Ohio, finding both appellant and defendant Arthur N. Levi in contempt of court for failing to abide by the trial court's orders entered in this divorce case. Appellant assigns seven errors to the trial court:

ASSIGNMENTS OF ERROR ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT FINDING DEFENDANT-APPELLEE GUILTY OF CONTEMPT FOR NOT PAYING PLAINTIFF-APPELLANT HER SHARE OF THE DEFENDANT-APPELLEE'S 401 (K) PLAN AND THE PUTNAM FUND, ALONG WITH INTEREST ON HER SHARE.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT FINDING DEFENDANT-APPELLEE GUILTY OF CONTEMPT FOR FAILING TO COMPLY WITH THE ORDERS REQUIRING HIM TO PAY HIS PORTION OF THE VISA CARD.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO FIND DEFENDANT-APPELLEE GUILTY OF CONTEMPT FOR NOT PAYING PLAINTIFF-APPELLANT'S SPOUSAL SUPPORT PURSUANT TO EXTENDED TEMPORARY ORDERS.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN RULING PLAINTIFF-APPELLANT WAS NOT ENTITLED TO THE INTEREST WHICH ACCUMULATED ON HER SHARE OF THE PENSION, 401 (K) AND OTHER AMOUNTS HELD BY DEFENDANT-APPELLEE AFTER THE STAY WAS LIFTED.

THE TRIAL COURT ERRED IN DETERMINING THE AMOUNT DUE PLAINTIFF-APPELLANT FROM THE IRA AND 401 (K) BECAUSE THE MATHEMATICAL COMPUTATIONS WERE INCORRECT.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING PLAINTIFF-APPELLANT GUILTY OF CONTEMPT

The record indicates the trial court entered a decree of divorce terminating the parties' marriage on February 13, 1997. Appellant appealed the merits of the divorce to this court, and we affirmed in Levi v. Levi (August 26, 1997), Licking App. No. 97CA22, unreported. Appellant then appealed our judgment to the Ohio Supreme Court, but the court declined to review it.

Before addressing the specific assignments of error, it is appropriate for us to set forth our standard of review. In general, the Supreme Court has directed us to use the abuse of discretion standard when reviewing a trial court's determination in a domestic relations case, Booth v. Booth (1989), 44 Ohio St.3d 142, 144. The Supreme Court has specifically held the abuse of discretion standard applies to spousal support cases in Blakemore v. Blakernore (1983), 5 Ohio St.3d 217,219. The court has also applied the abuse of discretion standard to divisions of property, Martin v. Martin (1985), 18 Ohio St.3d 292.

The Supreme Court has frequently defined the term abuse of discretion as implying the court's attitude is ". . . unreasonable, arbitrary or unconscionable. . . ."Blakemore, supra, citing State v. Adams (1980), 62 Ohio St.2d 151,157, Steiner v. Custer (1940), 137 Ohio St. 448; Conner v.Conner (1959), 170 Ohio St. 85; Chester Township v. GeaugaCounty Budget Commission (1976), 48 Ohio St.2d 372.

We are also mindful of the Supreme Court's directive contained in Briganti v. Briganti (1984), 9 Ohio St.3d 220. InBriganti, the Supreme Court directed us to limit our review to a determination of whether, considering the totality of circumstances, the trial court abused its discretion. The Supreme Court cautioned against taking specific provisions of the court's order out of context of the entire award, Briganti,supra, at 222.

The parties here filed cross-motions for contempt. The appellant charged the appellee was guilty of contempt for failing to pay spousal support as required by the temporary orders; failing to provide her with COBRA medical insurance; failing to divide the 401(K) pension plan and the Putnam Fund; failing to pay his share of the VISA debt; and failing to cooperate in listing and selling the real estate of the parties.

Appellee charged the appellant with failing to pay certain expenses associated with the parties' real estate pending its sale; and incurring expenses on his credit and taking checks belonging to the appellee.

Each party requested interest on the money owed.

Our review of the record in the trial court's findings leads us to conclude the trial court did not abuse its discretion when it found there was insufficient evidence to find appellee guilty of contempt of court in this matter. Accordingly, the second assignment of error is overruled.

The trial court found appellee was in substantial compliance with its order, and this court cannot find it abused its discretion.

The third assignment of error is overruled.

The trial court's judgment entry of August 22, 1998 deals with the 401K funds under the summary of obligations, number 11. In the summary the court finds appellee owes appellant $15,717.50, plus interest from December, 1996. A footnote to the finding states:

"This already accounts for the amount to be taken from plaintiff's [appellant's] Huntington National Bank IRA. Therefore, nothing has to be transacted with respect to the Huntington National Bank IRA. Any interest adjustments are restricted to the $15,717.50 rollover to plaintiff."

Thus, it appears the court dealt with interest except as regards to the Putnam Fund.

Regarding the Putnam Fund, the appellee testified it had been drawing around six and a quarter percent, Transcript at 73-74. This appears to be the only evidence presented regarding any change in value. The trial court did not make any finding in this regard. The court did direct appellee to pay appellant her share of the value as of December 12, 1996, but did not award appellant her share of the interest appellee earned from December 12, 1996 to the date of distribution. We find the court's failure to take into account the change in value of the awards to both appellant and appellee is an abuse of discretion.

The fourth assignment of error is sustained in part and overruled in part.

The fifth assignment of error is overruled.

The trial court specifically rejected appellant's assertion she was unable to discharge these obligations because it noted at the same time she had expended thousands of dollars to improve the cottage which was her separate property, in preparation to move from the marital residence.

We conclude from our review of the record the court did not abuse its discretion in making this finding. Accordingly, the sixth assignment of error is overruled.

The seventh assignment of error is overruled.

For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed in part and reversed in part, and the cause is remanded to that court for the purpose of computing the interest to which each party is entitled.

By Gwin, P.J., Farmer, J., concur Hoffman, J., concurs separately.

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