Ketchum v. Ketchum, Unpublished Decision (5-16-2003)
Ketchum v. Ketchum, Unpublished Decision (5-16-2003)
Opinion of the Court
{¶ 1} This appeal arises out of a divorce granted to William B. Ketchum ("Appellant") and Judith A. Ketchum ("Appellee"). Appellant raises four assignments of error, three of which are without merit. The record reveals, however, that the trial court divided the marital assets unequally without providing a sufficiently clear basis for the division in order for an appellate court to undertake a meaningful review. Thus, the matter is hereby remanded for a redivision of marital assets.
{¶ 2} Appellant and Appellee were married on September 5, 1987. They had one daughter, Samantha, d.o.b. 9/12/96.
{¶ 3} On November 17, 2000, Appellee filed for divorce in the Columbiana County Court of Common Pleas.
{¶ 4} On August 29, 2001, Appellant filed a proposed Shared Parenting Plan.
{¶ 5} The final divorce hearing was held on October 4, 2001. The parties stipulated to the valuations of most of the marital property. The parties also stipulated to the allocation of some of the marital assets. They did not stipulate which party would receive the marital home.
{¶ 6} The court filed its divorce judgment entry on November 16, 2001. The court denied Appellant's request for shared parenting. Appellee was named the residential parent and Appellant was ordered to pay child support. The court did not summarize its allocation of marital assets, but it appears that Appellant was awarded $32,307.39 in assets and Appellee was awarded $63,965.33, as follows:
William — Appellant
Ford F350 Truck $10,240.00 Chaparral boat -6,017.50 S.R. 7 real estate 112,500.00 mortgage -32,807.64 lease obligation -29,500.00 tanker trailer 4,000.00 1990 tractor 3,000.00 Sky Bank loan -15,652.00 lien -13,455.47 $32,307.39
Judith — Appellee
1997 GMC truck $6,235.50 Berkshire Rd. property 84,000.00 mortgage -45,511.27 Hartford account 2,737.19 American United account 3,219.95 nurse pension 13,283.96 $63,965.33
The difference between the two amounts is $31,657.94. Using these totals, Appellant was awarded 33.6% of the total marital assets and Appellee was awarded 66.4%. The court also considered but rejected a $10,000 debt that Appellant attempted to establish as a marital debt.
{¶ 7} This timely appeal was filed on November 30, 2001.
{¶ 8} Appellant's first assignment of error argues:
{¶ 9} "The Trial Court Committed An Error Of Law And Abused Its Discretion In Denying Father's Request For Shared Parenting And Finding That Sole Custody Of The Parties' Daughter Was To Be Allocated To Mother, Which Was Clearly Not In The Child's Best Interest In Light Of The Evidence Presented At Trial."
{¶ 10} Appellant submitted a shared parenting plan to the court prior to the final divorce hearing. Appellant believes that the court should have adopted the plan. Appellant argues that a court must consider the factors in R.C.
{¶ 11} "(2) In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors enumerated in division (F)(1) of this section, the factors enumerated in section
{¶ 12} "(a) The ability of the parents to cooperate and make decisions jointly, with respect to the children;
{¶ 13} "(b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
{¶ 14} "(c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
{¶ 15} "(d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
{¶ 16} "(e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem. (Emphasis added.)
{¶ 17} Appellant contends that the court rejected the shared parenting plan based solely on factor (a), namely, that he could not cooperate with Appellee in a shared parenting plan. Appellant concludes that the evidence does not support the trial court's decision.
{¶ 18} The standard of review of a child custody decision is not in dispute here. A child custody decision that is supported by competent and credible evidence will not be reversed on appeal absent an abuse of discretion. Bechtol v. Bechtol (1990),
{¶ 19} Appellant cites In re Marriage of Shore (1999),
{¶ 20} Shore merely stands for the oft-repeated proposition that a trial court decision regarding a shared parenting agreement will be upheld absent an abuse of discretion by the trial court.
{¶ 21} In the matter before us, there is evidence in the record that Appellant could not cooperate with Appellee. Sonia Stocker, the guardian ad litem, testified that the hostility and anger between Appellant and Appellee would make shared parenting an unreasonable option and would not be in the child's best interest. (Tr., pp. 24-25.) Appellee testified about fighting and threats made by Appellant, about his extreme anger during their marriage, and that she filed for a protection order during the pendency of the divorce proceedings. (Tr., pp. 73, 76-78.) She testified that Appellant pushed her through a mirror, that he punched a hole through Samantha's nursery door, and that he hit things when he was mad. (Tr., p. 78.) Appellee testified that Appellant "threatened my life" and that she was "scared to death" of him. (Tr., pp. 136-137.)
{¶ 22} It is clear from the record that the trial court believed this evidence and concluded that the parties could not cooperate. It follows, according to Shore and a myriad of other case holdings, that the judgment of the trial court in the instant case should be upheld. Although there is other testimony, primarily from Appellant himself, that might tend to indicate that the parties could cooperate, the trial court was free to believe the contrary evidence and free to reject Appellant's testimony. Domigan v. Gillette (1984),
{¶ 23} Appellant also appears to argue that the trial court should have made explicit findings concerning the other best interest factors listed in R.C. §
{¶ 24} Appellant's first assignment of error is overruled.
{¶ 25} Appellant's second assignment of error asserts:
{¶ 26} "THE TRIAL COURT COMMITED AN ERROR OF LAW AND ABUSED ITS DISCRETION IN ITS INEQUITABLE DISTRIBUTION OF THE PARTIES' MARITAL ESTATE WHICH RESULTED IN AN AWARD OF NET ASSETS TO WIFE OF ALMOST THREE TIMES THE VALUE OF THE NET ASSETS AWARDED TO HUSBAND."
{¶ 27} Appellant correctly argues that a division of marital property should be equal unless the court determines that an unequal division would be more equitable. R.C. §
{¶ 28} "(C)(1) Except as provided in this division or division (E) of this section, the division of marital property shall be equal. If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable. In making a division of marital property, the court shall consider all relevant factors, including those set forth in division (F) of this section.
{¶ 29} "(2) Each spouse shall be considered to have contributed equally to the production and acquisition of marital property."
{¶ 30} Appellant contends that the division of the marital property was grossly unequal and that the court did not justify how the unequal division could be considered equitable. From our calculations, it appears that the court awarded Appellant $32,307.39 and awarded Appellee $63,965.33. Appellant deducts an additional $10,000 from his award based on a debt to Mabel Ketchum, but it is clear from the record that the court did not consider this to be a marital debt. (11/19/01 Opinion, p. 6.) Even without the additional $10,000 deduction, there is a $31,000 disparity in the division of marital assets.
{¶ 31} Appellant correctly reviews the legal standards applicable to the division of marital assets. The trial court must consider the factors listed in R.C. §
{¶ 32} Appellant points out that the only reason given by the court in making an unequal division of the marital assets was:
{¶ 33} "[T]he substantial income potential of the business which includes both the trucking and storage rental enterprises. It is the Court's opinion that any differential in the division of property in favor of the Wife will be more than compensated by the substantial income potential of the business which is hereby being awarded to the Husband."
{¶ 34} The potential income of a marital asset is a not listed as a specific factor for the court to consider in dividing the marital assets. R.C. §
{¶ 35} The trial court's and Appellee's comments about Appellant's future income would be relevant to a discussion about spousal support. The relative earning abilities of the parties is specifically listed as a factor in determining spousal support in R.C.
{¶ 36} The income that a marital asset produces could be a factor in valuing the marital asset, depending on what valuation method the court uses. For example, under the capitalization of earnings method of valuing a business, an expert takes the historical earnings of a business and applies a "discount rate" or "capitalization rate" that corresponds to that business. 1 Fishman, Pratt, Griffith, Wilson, Guide to Business Valuations (2 Ed. 1992) 5-1, Section 500.02. The result is an overall value of the business.
{¶ 37} There is no indication in the record that anyone attempted to value Appellant's trucking and storage business. There is no evidence of the income potential of that business. No trucking or storage business is listed as a marital asset. It appears that the court decided, sua sponte, that Appellant's trucking and storage business was worth $31,657.94 (that being the difference between the assets awarded to Appellee and the assets awarded to Appellant). There is nothing in the record to support the court's apparent valuation of the Appellant's trucking and storage business, because no one ever presented any evidence about the value of the business.
{¶ 38} Appellee argues that there was evidence presented about the value of the trucking and storage business, although it was presented obliquely. Appellee points to Appellant's testimony that, "my income's in half of what it used to be," because he voluntarily chose to spend time with his daughter rather than work. (Tr., p. 269.) Appellee then leaps to the conclusion that Appellant's trucking and storage business had substantial value. Appellant's comment about his reduced income may have a tangential connection to the value of the trucking business, but the parties did not attempt to establish what that tangential link might have been. The only real evidence specifically related to the trucking and storage business indicates that it was not making money and that Appellant did not intend for the business to make a profit. (Tr., p. 89-90.)
{¶ 39} The parties did not attempt to treat Appellant's trucking business as a marital asset. The court presents no theory for imposing an arbitrary value on it, particularly since neither party presented evidence of its value or a theory of how to value the business. For these reasons, Appellant's second assignment of error has merit and the case must be remanded for a valuation of the trucking business and, thus, a redivision of the marital assets.
{¶ 40} Appellant's third assignment of error argues:
{¶ 41} "Given The Evidence Presented At Trial, It Was An Error Of Law And An Abuse Of The Trial Court's Discretion To Fail To Find A Debt Owed To Husband's Mother To Be Marital Debt And A Joint Responsibility Of The Parties."
{¶ 42} Appellant argues that a $10,000 debt owed to his mother should have been treated as marital debt rather than as his own personal and separate debt. The claim supposedly arose when Appellant purchased a house owned by his mother, Mabel Ketchum, located at 49795 Berkshire Road, East Liverpool, Ohio. (Tr., p. 303.) Mabel Ketchum testified that she wanted $50,000 for the house but only received $40,000 from Appellant. (Tr., p. 305.) She claimed that there was no specific time for repayment of the additional $10,000, and she could be repaid, "whenever they came up with it." (Tr., p. 305.) There was additional evidence consisting of a document signed by Appellant and his mother which contained the same information as in Mrs. Ketchum's testimony.
{¶ 43} R.C. §
{¶ 44} "(F) In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors:
{¶ 45} "* * *
{¶ 46} "(2) The assets and liabilities of the spouses;" (Emphasis added.)
{¶ 47} Although R.C.
{¶ 48} The first step in dividing the parties' marital debts is to determine whether a debt actually exists or not. This is primarily a question of fact to be determined by the trier of fact. Gustafson v.Buckley (1953),
{¶ 49} Appellant misconstrues the trial court's holding with respect to this alleged debt. The trial court did not allocate the debt to Appellant. On the contrary, the trial court did not believe that there was a $10,000 debt: "[t]he court cannot find from the evidence that the said sum is due and therefore denies the said claims of the Defendant with regard thereto." (11/16/01 J.E., p. 6.) The court did not designate the debt as marital debt because the court concluded there was no debt. Although Appellant provided alternative evidence to support his view that there was a legitimate debt, the trial court was in a better position than we are to determine the credibility of the evidence. The trial court's credibility determinations are treated with great deference on appeal. Seasons Coal Co., supra,
{¶ 50} Appellant's fourth assignment of error asserts:
{¶ 51} "The Trial Court's Decision To Award Wife The Parties' Marital Residence Which Had Been In Husband's Familiy For Over 35 Years Was Contrary To Law And An Abuse Of The Trial Court's Discretion, Especially In Light Of The Unequal Distribution Of Assets Between The Parties."
{¶ 52} The parties did not stipulate as to who would receive the marital residence. Appellant argues that he should have received the marital residence because it had been owned by members of his family for 35 — 40 years. Appellant cites no authority that would have forced or guided the trial court into awarding the marital residence to him simply because it had been in his family for some years.
{¶ 53} When reviewing the trial court's marital property division, the reviewing court is limited to determining whether, considering the totality of the circumstances, the trial court abused its discretion in fashioning the award. Focke v. Focke (1992),
{¶ 54} The court is required to consider the factors listed in R.C. §
{¶ 55} "(3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage;
{¶ 56} "* * *
{¶ 57} "(9) Any other factor that the court expressly finds to be relevant and equitable."
{¶ 58} The court awarded custody of Samantha to Appellee, and therefore, R.C. §
{¶ 59} Appellant's first, third and fourth assignments of error are, thus, overruled. Appellant's second assignment of error is sustained on two grounds: 1) the trial court designated a business as marital property and gave that business a value without any evidence, even though the parties did not present evidence of the value of the business; and 2) the trial court appears to have made a substantially unequal division of the marital assets without explaining the basis of that unequal division. We reverse the trial court's decision as to the value of Appellant's trucking business. We also reverse the trial court's decision as to the division of marital property because it lacks adequate explanation. We affirm all other valuations made by the trial court and there is no need for the trial court to review or reestablish those valuations on remand. The trial court will need to revalue the trucking business, if indeed it has any value. After establishing that value, the trial court must revisit the division of marital assets. If the court decides to divide the assets unequally but equitably, it should render its opinion with enough precision to allow for review of the decision.
Donofrio and DeGenaro, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.