[Cite as Kaletta v. Kaletta,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98821

LINDA A. KALETTA PLAINTIFF-APPELLANT

vs.

ROBERT S. KALETTA DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-337633

BEFORE: McCormack, J., Stewart, A.J., and Boyle, J.

RELEASED AND JOURNALIZED: April 25, 2013 ATTORNEY FOR APPELLANT

Richard J. Stahl 18051 Jefferson Park Rd. Suite 102 Middleburg Heights, OH 44130

ATTORNEYS FOR APPELLEE

Richard A. Rabb Kaitlyn D. Arthurs McCarthy, Lebit, Crystal & Liffman 101 West Prospect Avenue Suite 1800 Cleveland, OH 44115 TIM McCORMACK, J.:

{¶1} Plaintiff-appellant, Linda A. Kaletta (“Linda”), appeals the trial court’s

judgment of July 24, 2012, in which the court terminated the marriage between Linda and

defendant-appellee husband, Robert S. Kaletta (“Robert”), ordered spousal support to be

paid by Robert, and prescribed a division of the property of the parties. For the reasons

that follow, we affirm the trial court in part and reverse in part.

Procedural History

{¶2} On July 25, 2011, Linda filed a complaint for divorce, which was answered

by Robert on August 17, 2011. Following unsuccessful attempts at settlement, the

parties proceeded to a contested trial on May 30, 2012. Both Linda and Robert filed a

final argument with the court on June 29, 2012 and July 5, 2012, respectively.

{¶3} The trial court, having heard the evidence and testimony presented by the

parties during the one-day trial, issued its final judgment entry on July 24, 2012. The

judgment entry granted the parties a divorce and ordered the marriage dissolved and set

aside. In so doing, the court ordered Robert to pay Linda $1,500 per month for eight

years.1 This amount reflects a $500 credit to Robert for Linda’s share on a marital loan.

The trial court’s judgment entry contains contradicting statements regarding the award of 1

spousal support. The court initially orders that “Defendant shall pay spousal support to Plaintiff in the amount of $1,500.00 per month * * * for a term of ninety-six (96) months.” However, in the section of the entry pertaining to the division of property, the court finds that “”Defendant shall assume the $1,000 per month payment [on the parties’ Direct Loans] and receive a credit of $500.00 per month towards the spousal support.” In so doing, the court “reduce[s] spousal support from $2,000.00 per month to $1,500.00 per month.” The overall spousal support amount is less than what both Linda requested and Robert

had offered. The court also made certain findings with respect to the parties’ marital

property, ordering the division of the parties’ assets and liabilities. The court retained

jurisdiction of the spousal support, and it declined to award attorney fees. Linda now

appeals the court’s final divorce decree, objecting to the amount and duration of spousal

support and alleging that the court inequitably divided certain property.

Substantive Facts

I. Income

{¶4} Linda and Robert were married on June 3, 1988. Two children were born

of this marriage, both of whom were emancipated at the time of trial. The parties met

while working at LTV Steel (“LTV”). Linda testified that she was employed by LTV

from 1976 to 1990. In 1990, she left employment upon having her first child. As a

result of her employment with LTV, Linda obtained pension benefits valued at

approximately $8,300. The parties were married for two years during Linda’s

employment with LTV.2

{¶5} Presently, Linda is employed by PSI Affiliates (“PSI”) and works as a

health aide for a school system. She works 30 hours per week, and her current salary is

$8.70 per hour. In 2011, Linda’s yearly salary was approximately $8,791. Through her

employment, she contributes to the School Employees Retirement System of Ohio

While the trial court provides in its judgment entry that Linda’s employment ended in 2

1991, thus finding the pension consists of three years of marital property, this court notes that the evidence shows Linda left employment with LTV in 1990, two years into her marriage with Robert. (“SERS”), which benefits she will receive upon her retirement. Linda’s accrued balance

with SERS is presently valued at $2,339.06. Linda last worked full time in 1990. She

testified that she has searched for full-time employment during the last year by searching

through the newspapers. She stated, however, that it “has been a few months” since she

has done so. Linda also testified that she received one offer for full-time employment

through PSI the previous year. She testified that she “was advised by Robert not to take

it.”

{¶6} On November 7, 2011, the court magistrate granted Linda’s request for

temporary spousal support. The court ordered Robert to pay Linda $500.00 per month,

effective September 26, 2011. There is some evidence indicating that there were

arrearages due as of April 30, 2012, in the approximate amount of $368.64. During the

trial, Robert’s attorney stipulated that no spousal support payments were made “in

September, October, and November.”

{¶7} Robert was previously employed by Larson-Juhl, earning approximately

$102,000 annually. During this time, Robert had a 401(k) account with Larson-Juhl.

Robert obtained a loan from this account for the purposes of paying down marital debt,

leaving an approximate 401(k) balance of $36,475. Robert testified that he made

bi-weekly payments of approximately $296 towards the balance on this loan. These

payments were withdrawn from Robert’s paychecks from Larson-Juhl. Robert

maintained this account during his marriage to Linda. {¶8} Robert testified that he voluntarily left his employment with Larson-Juhl in

order to find “something that would give [him] some stability * * * other than living out

of a hotel room.” In doing so, he reduced his income from approximately $102,000 to

his present salary of $90,000. Furthermore, because he left Larson-Juhl, Robert testified

that he has defaulted on his 401(k) loan with his former employer. The balance on the

defaulted loan, according to Robert, “will be on the 1099 for $17,000 in expenses.”

{¶9} Presently, Robert is employed by ArcelorMittal as Process Manager of

Operations, earning approximately $90,000 per year, payable semi-monthly. Robert

received a signing bonus from ArcelorMittal in the amount of $15,000. The parties also

received a tax refund in the approximate amount of $5,000 for 2011.

II. Property

{¶10} The parties own a home located in North Royalton, Ohio. This home is

encumbered by a mortgage held by Select Portfolio Mortgage in the amount of $133,580

and an equity line of credit with Federal Savings and Loan in the amount of $37,587.

{¶11} Prior to the marriage and prior to the purchase of the marital home

referenced above, Linda owned and resided in a home in Cleveland, Ohio. Following the

parties’ marriage, Linda and Robert lived in the Cleveland property as husband and wife.

During such time, the parties made substantial repairs to the house. The home was sold

for approximately $62,000. The proceeds from the sale of the Cleveland property were

used for a down payment on a home in Middleburg Heights, where the parties resided

until they purchased the marital home in North Royalton. Linda testified that the proceeds from the sale of the Cleveland property totaled approximately “$30,000 [or]

$40,000.” She did not produce any documents in support of this statement. There is

some dispute, however, over whether Linda’s attorney gave the documents supporting

Linda’s premarital interest in the Cleveland property to Robert’s attorney.

{¶12} The parties have also maintained several bank accounts, which hold monies

obtained from various sources. Linda had an account with FirstMerit Bank in the

approximate amount of $3,790. Linda testified that she withdrew this amount from the

parties’ joint savings account with Third Federal Savings & Loan. Linda also maintains

an account at Holy Family Credit Union with an approximate balance of $1,400, in

addition to a Total Control Account that had an approximate balance of $5,630, which

represents Linda’s inheritance from Robert’s uncle. Robert received the same amount,

$5,630, as an inheritance from his uncle.

{¶13} Additionally, the parties had two joint accounts at Third Federal with a

combined balance of $70.83. Robert maintains two accounts at Huntington Bank that

had a combined balance of approximately $12,787. This balance included Robert’s

inheritance from his uncle for $5,630 and the net proceeds of his signing bonus from

ArcelorMittal. Robert also has in his possession an uncashed 2011 tax refund of

approximately $5,000.

{¶14} Finally, the record demonstrates that four cars are titled in Robert’s name:

(1) 2001 Ford Windstar, driven by and in the possession of Linda; (2) 2001 Mercury

Marquis, driven by and in the possession of Robert; (3) 1998 Chrysler Sebring, driven by and in the possession of the parties’ daughter; and (4) 2000 Honda Civic, driven by and in

the possession of the parties’ son.

III. Debt

{¶15} During the marriage, the parties acquired significant debt in the form of

credit card accounts and personal loans. Robert testified that he borrowed $22,000 from

his 401(k) with his former employer, Larson-Juhl, in order to apply payments to the

marital credit cards. The balance of this loan was approximately $17,000.

{¶16} At the time of this appeal, there were two outstanding credit cards with

substantial balances. Robert testified that he closed one of the accounts to prevent Linda

from using it. The majority of the purchases on the credit cards were marital. There is

some evidence that, on occasion, Robert used one of the cards for business purchases that

were later reimbursed by his employer. The Slate Chase credit card has an approximate

balance of $13,573, while the Capital One credit card has an approximate balance of

$13,462. Robert charged $2,000 on a credit card account for payment of his attorney’s

retainer fee. It is unclear which credit card contains this charge. Linda, on the other

hand, borrowed $750 from her mother for payment of her attorney fees thus far.

{¶17} Finally, Robert initiated three Direct Loans totaling approximately $64,000

for the purposes of paying a portion of the daughter’s college tuition. The loans are in

Robert’s name and were issued in October 2009, September 2010, and September 2011.

Payments were scheduled to begin in January 2013, unless deferred by certain

circumstances. As of the date of the trial court’s decision, the college loans were not in repayment status. Linda testified that she disapproved of these loans, stating that the

interest rate of 7.9 percent was too high.

Assignments of Error

{¶18} Linda appeals the judgment entry of the trial court and raises the following

six assignments of error:

I. The trial court abused its discretion by failing to detail the factors used to calculate spousal support.

II. The trial court abused its discretion by ordering a spousal support obligation below what would be equitable.

III. The trial court abused its discretion by ordering spousal support for an inequitable duration.

IV. The trial court abused its discretion by failing to credit [plaintiff-appellant] for her pre-marital interest in the real property.

V. The trial court abused its discretion by inequitabl[y] dividing the parties[’] personal property.

VI. The trial court abused its discretion by burdening the [plaintiff-appellant] with student loan debt incurred by [defendant-appellee].

Standard of Review

{¶19} We review a trial court’s determination in domestic relations cases under an

abuse of discretion standard. Booth v. Booth,

,

(1989).

Since it is axiomatic that a trial court must have discretion to do what is equitable upon the facts and circumstances of each case, * * * it necessarily follows that a trial court’s decision in domestic relations matters should not be disturbed on appeal unless the decision involves more than an error of judgment.

citing Cherry v. Cherry,

,

(1981). This

same standard applies to orders relating to spousal support and the division of marital

property.

citing Blakemore v. Blakemore,

,

(1983), and Martin v. Martin,

,

(1985). An

abuse of discretion “connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.”

.

Law and Analysis

I. Spousal Support

{¶20} Linda’s first three assignments of error pertain to the trial court’s award of

spousal support. We will, therefore, address them together. In her first assignment of

error, Linda argues that the trial court abused its discretion in failing to detail the factors

used to calculate spousal support. In her second and third assignments of error, Linda

maintains that the trial court abused its discretion by awarding an inequitable amount of

spousal support for an inequitable duration.

{¶21} In determining whether to grant spousal support and in determining the

amount and duration of the payments, the trial court must consider the factors outlined in

R.C. 3105.18(C)(1)(a)-(n). Kaechele v. Kaechele,

,

(1988), paragraph one of the syllabus. R.C. 3105.18(C)(1) provides 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 of the Revised Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional conditions of the parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;

(g) The standard of living of the parties established during the marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;

(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party’s contribution to the acquisition of a professional degree of the other party;

(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;

(l) The tax consequences, for each party, of an award of spousal support;

(m) The lost income production capacity of either party that resulted from that party’s marital responsibilities;

(n) Any other factor that the court expressly finds to be relevant and equitable.

R.C. 3105.18(C)(1)(a)-(n). {¶22} The goal of spousal support is to reach an equitable result.

.

While there is no set mathematical formula to reach this goal, the court must consider all

of the factors outlined above and “not base its determination upon any one of those

factors taken in isolation.”

The trial court is not required to enumerate each

statutory factor, however, it must demonstrate that it considered all of the “relevant

factors.” Marsh v. Marsh, 6th Dist. No. OT-09-036,

, ¶ 6. Essentially,

either the record or the trial court’s decision must articulate the basis for the award in

sufficient detail “to enable an appellate court to establish whether the award is fair,

equitable and in accordance with the law.”

; Friedler v. Friedler, 8th Dist.

No. 92402,

, citing Stafinsky v. Stafinsky,

,

(11th Dist. 1996).

{¶23} In this case, the trial court found that the parties were married on June 3,

1988, and two children were born of this marriage. As of the date of trial, both children

had reached the age of majority. The court determined that “the duration of the marriage

shall be from June 3, 1988 until May 30, 2012.” As it pertains to spousal support, the

court deemed it appropriate for Robert to pay Linda spousal support. In reaching its

decision, the court stated that it “consider[ed] the factors set forth in Ohio Revised Code

3105.18.” It further considered the following factors:

The income of the parties demonstrates a disparity; Defendant is currently employed at ArcelorMittal Cleveland at a salary of $90,000 per annum. Plaintiff is employed at PSI Affiliates part-time at a rate of $8.70 per hour. Plaintiff did not offer any evidence as to why she is not currently employed full-time nor did she provide the Court with evidence she is seeking full-time employ.

Both parties have retirement benefits; Plaintiff has retirement benefits from her job at LTV Steel, with an approximate value of $8,000. Plaintiff’s employ at LTV Steel began in 1976 and terminated in 1991, therefore only three (3) years of the aforementioned pension is marital. Plaintiff also has retirement benefits through SERS, with an approximate value of $2,339.06, all of which is marital. Defendant has a 401(k) through Larson-Juhl, with an approximate balance of $36,475.00, which is marital and shall be divided accordingly.

{¶24} In a post-trial brief, Linda requested spousal support in the amount of

$2,500 per month for a period of seven years. In response, Robert requested that the

court order support in the amount of $2,000 for nine years. The trial court rejected both

parties’ positions and awarded spousal support in an amount less than even Robert was

willing to pay.

{¶25} Based upon the factors outlined above, the court ordered that “Defendant

shall pay spousal support to Plaintiff in the amount of $1,500.00 per month plus a

processing fee for a term of ninety-six (96) months [or eight years].”3 The court further

ordered that it shall retain jurisdiction to modify its order.

{¶26} While the trial court stated that it considered “the factors set forth in Ohio

Revised Code 3105.18,” it specifically delineated only the parties’ retirement benefits and

their present income, finding a “disparity.” In reviewing the trial court’s order, and in

This amount reflects the $2,000 support award less the $500 credit Robert receives for 3

payment of the student loan debt the court divided between the parties. light of the evidence on the record, we find that the trial court failed to give sufficient

weight to the factors enumerated in R.C. 3105.18(C).

{¶27} The trial court is not required to enumerate each statutory factor, however, it

must demonstrate that it considered all of the “relevant factors.” Our review of the

record indicates that the trial court failed to give due consideration to the following

relevant factors: the relative earning abilities of the parties, the ages of the parties, the

duration of the marriage, the standard of living of the parties established during the

marriage, the tax consequences for each party of an award of spousal support, and the lost

income production capacity of either party that resulted from that party’s marital

responsibilities. See R.C. 3105.18(C)(1)(a)-(n).

{¶28} At the time of trial, Linda was 60 years old. Prior to having children, Linda

worked full-time at LTV, earning approximately $20,000. In 1990, upon the birth of

their first child, Linda left employment with LTV. Contrary to the evidence presented at

trial, the trial court incorrectly determined that Linda left her employ in 1991, thus

concluding that three years of her pension with LTV, rather than two, is marital property.

{¶29} The evidence demonstrates that Linda has not worked full-time since her

employment at LTV. Linda testified that she is presently employed for 30 hours per

week at a rate of $8.70 per hour. She earned approximately $8,790 in 2011, $8,938 in

2010, and $7,013 in 2009. In its order, the trial court concluded that “Plaintiff did not

offer any evidence as to why she is not currently employed full-time nor did she provide

the court with evidence she is seeking full-time employment.” During the trial, however, Linda testified that she “did have an offer of full-time employment last year through PSI,

but [she] was advised by Robert not to take it.” While this testimony was not developed,

it is uncontroverted, and it directly contradicts the court’s finding that Linda did not

provide the court with evidence that she is seeking full-time employment.

{¶30} At 60 years of age, and having been a homemaker for the majority of their

marriage, leaving full-time employment upon the birth of their first child, Linda stands

today with little opportunity to develop meaningful employment. She has effectively

been prevented from re-establishing herself in a career at this point in her life and with

outdated skills, education, and training. Robert, on the other hand, is eight years younger

than Linda and has maintained a successful career. Based upon the evidence of

employment found in the record, Robert has a much higher earning capacity than Linda

ever will. While Robert contends that Linda failed to produce evidence of her “marital

contributions” and “familial duties,” this court finds that Linda’s undisputed testimony is

that she left full-time employ with LTV in 1990 upon the birth of the parties’ first child.

Impliedly, Linda’s reason for doing so was to care for the child (and an additional child

born in 1993).

{¶31} Linda and Robert were married for 24 years. This was a marriage of long

duration. Other than acknowledging the length of the marriage by identifying the date of

the marriage, there is no indication that the trial court gave due consideration to the

substantial duration of the marriage. Nor did the court adequately consider Linda’s

resources and her ability and potential to become self-supporting, in light of her limited history of employment. See Kunkle v. Kunkle,

,

(1990),

paragraph one of the syllabus (finding that a spousal award of indefinite duration may be

appropriate in cases involving a marriage of long duration, parties of advanced age or a

homemaker-spouse with little opportunity to develop meaningful employment outside the

home, where a payee spouse has the resources, ability, and potential to be

self-supporting).

{¶32} In a factually similar case, the Ninth District Court of Appeals recently

determined that while the trial court is not required to award spousal support, it must set

forth a sufficient basis to support its award. Kent v. Kent, 9th Dist. No. 26072,

. In that case, the parties had been married for 26 years, the wife

stopped working the year after the parties’ first child was born, and she remained at home

caring for the children for 19 years. The wife returned to part-time employment after

having raised the children. The trial court awarded the wife 8.4 years of spousal support

without explanation for this duration. Upon review, the appellate court determined that

the fact that the marriage was one of substantial duration and the wife had little

opportunity to develop meaningful employment (as a result of her role as primary

caregiver), were weighty factors that should have been considered by the trial court in

awarding spousal support of a limited duration.

It concluded that “[a]bsent any

explanation on the part of the trial court for the limited duration of its award, we cannot

conclude that the court properly exercised its discretion” in awarding the wife 8.4 years of

support.

{¶33} The trial court in the instant matter failed to provide any explanation for its

spousal support in the amount of $1,500 for 96 months (eight years). Nor did it

demonstrate that it considered such factors as the substantial duration of the marriage,

Linda’s role as primary caregiver of the parties’ children, or her opportunity to return to

gainful full-time employment.

{¶34} Moreover, the court failed to explain why it awarded spousal support in an

amount less than both parties had requested. In Linda’s post-trial brief, she asked that

the court award spousal support in the amount of $2,500 for seven years. This award

would amount to $210,000 over the course of the support period. Robert, on the other

hand, requested the court order $2,000 spousal support for nine years, which amounts to

$216,000 over the duration of the support order. In ordering $2,000 in spousal support

for eight years (notwithstanding the $500 credit to Robert for the college loan), the court

awarded Linda support in the amount of $192,000 over the life of the order, which

amounts to $24,000 less than the amount Robert was willing to pay. As a result of the

above, we cannot conclude that the court properly exercised its discretion in awarding the

above support.

{¶35} Accordingly, Linda’s first, second, and third assignments of error are

sustained.

II. Division of Property

{¶36} In a divorce proceeding, marital property includes 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 the marriage;

(ii) All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;

(iii) Except as otherwise provided in this section, all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage * * *.

R.C. 3105.171(A)(3)(a)(i)-(iii).

{¶37} R.C. 3105.171(C)(1) mandates an equal division of marital property, or “if

an equal division is inequitable, the court must divide the marital property equitably.”

Strauss v. Strauss, 8th Dist. No. 95377,

, citing Neville v. Neville,

,

,

. In order to determine what is

equitable, the trial court must consider the factors outlined in R.C. 3105.171(F).

Such factors include, among others, the duration of the marriage, the assets and liabilities

of the spouses, tax consequences of the property division, and any retirement benefits of

the spouses. R.C. 3105.171(F)(1)-(10). Moreover, the trial court must take into account

the parties’ marital debt when dividing marital property. Kehoe v. Kehoe, 8th Dist. No.

97357,

, citing Barkley v. Barkley,

,

(4th Dist. 1997).

{¶38} Marital property, however, does not include separate property. R.C.

3105.171(A)(3)(b). “Separate property” is any real and personal property and any

interest in real or personal property that was acquired by one spouse prior to the date of the marriage. R.C. 3105.171(A)(6)(a)(ii). The commingling of separate property with

other property does not destroy the identity of the separate property “except when the

separate property is not traceable.” R.C. 3105.171(A)(6)(b). The party seeking to have

certain property classified as “separate property” has the burden of proof in tracing the

separate property.

, citing Peck v. Peck,

,

(12th Dist. 1994).

{¶39} The marital assets in this case consist of both personal and real property.

The real property includes the marital home located in North Royalton, which is

encumbered by a mortgage in the amount of $133,580 and an equity line of credit in the

approximate amount of $37,587. The parties also have personal assets, consisting of

various bank accounts, retirement accounts, inheritances, a tax refund from 2011,

Robert’s signing bonus from ArcelorMittal, and four vehicles titled in Robert’s name.

The parties’ debts or liabilities consist of the following: the mortgage and equity line on

the marital home, the $17,000 balance on a 401(k) loan from Robert’s former employer,

two credit cards with balances in excess of $13,000 each, and three Direct Loans for

payment of the daughter’s college education in the total approximate amount of

$64,315.44.

A. Cleveland Property

{¶40} Linda’s fourth assignment of error asserts that the trial court abused its

discretion in failing to provide Linda credit for her pre-marital assets that contributed to

the purchase of the marital home. {¶41} Prior to purchasing the North Royalton home and prior to the marriage,

Linda owned the property in Cleveland, Ohio. The proceeds from the sale of the

Cleveland property were used for a down payment on a home in Middleburg Heights,

which was the marital home until the North Royalton property was purchased.

{¶42} In its judgment entry, the trial court ordered the marital property divided

between the parties. In so doing, the court found that all equity in the North Royalton

home was marital, as there was no tracing provided with respect to the monies from the

sale of the Cleveland property.

{¶43} In this case, there is no dispute that Linda owned the Cleveland property

prior to the parties’ marriage, and Linda and Robert lived there as husband and wife for a

period of time. During such time, the parties made substantial repairs to the property. It

was also not disputed that the proceeds from the sale of the Cleveland property were

applied toward the down payment of the marital home in Middleburg Heights. Linda

fails, however, to provide any evidence documenting such funds. She testified that the

Cleveland home sold for “$62,000, I believe.” She also testified that the down payment

for the Middleburg Heights home was “$30,000 [or] $40,000.” However, she failed to

present any documentation establishing an adequate trace of the funds acquired from the

sale of the Cleveland home or the monies used for the down payment of the Middleburg

Heights home. Accordingly, we find the trial court did not abuse its discretion in

designating all equity with respect to the real properties at issue as marital property and dividing it equally between the parties. Linda’s fourth assignment of error is without

merit.

B. Inequitable Division

{¶44} In her fifth assignment of error, Linda states that the trial court abused its

discretion in equally dividing the parties’ property, yet producing an inequitable result.

For the following reasons, we agree.

{¶45} As previously stated, a trial court must divide the marital property of the

parties equitably, and in equitably dividing such property, the court must consider certain

statutory factors. Our review of the record, however, indicates that the trial court failed

to give due consideration to the relevant factors outlined in R.C. 3105.171(F) when it,

essentially, divided the parties’ assets and liabilities equally.

{¶46} The entry provides that Robert shall refinance the marital home. In so

doing, he shall pay Linda 50 percent of the net equity, which is the value of the property

less the balance of the mortgage and equity line of credit.

{¶47} In dividing the bank accounts, the court ordered as follows:

The parties have several bank accounts; Plaintiff holds an account at FirstMerit in the amount of $3,790.11, an account at Holy Family Credit Union with a balance of $1,400 and a Total Control Account with a balance of $5,630.57, created from an inheritance from Defendant’s uncle.

There are two joint accounts held at Third Federal Savings and Loan with a combined balance of $70.83. Defendant holds two (2) accounts at Huntington Bank with [a] combined balance of $12,787.32. Included in Defendant’s accounts are the inheritance of $5,600, leaving a remaining balance of $7,187.32. {¶48} The trial court concluded that the difference between the monies held by

Robert and the monies held by Linda is $1,982.46. It, therefore, ordered Robert to pay

half of this difference, amounting to $991.23. It is unclear how the court reached this

number and whether the joint account balance of $70.83 was divided equally and factored

into the equation. This court was unable to replicate the exact figure reached by the trial

court in calculating the parties’ accounts.

{¶49} Moreover, this court notes that both Robert and Linda received separate

inheritances from Robert’s uncle in the approximate amount of $5,630. These amounts

are considered separate property, and it is undisputed that such funds have been

maintained separately and not commingled. Therefore, the inheritance should not be

considered jointly in the division of the parties’ assets.

{¶50} With respect to the parties’ automobiles, the court ordered Robert to transfer

the title of the 2001 Ford Windstar to Linda. There is no further reference to the

remaining three vehicles titled to Robert. While the testimony provided that Robert and

the two children drive the remaining vehicles, the court failed to allocate such vehicles to

the parties or the children.

{¶51} In addressing the loan that Robert took out on his 401(k) with his former

employer, Larson-Juhl, the court found that there is a current balance of approximately

$17,000. The court stated that Robert “shall assume the entire amount of the 401(k) loan

* * * and as an offset shall be entitled to retain the entire amount of the [2011] tax

return.” In awarding spousal support, the trial court initially found that Robert has a 401(k) account through Larson-Juhl, “with an approximate balance of $36,475, which is

marital and shall be divided accordingly.” The court, however, does not provide further

instructions on its division, nor does the court specifically refer to the account in its order

dividing the property.

{¶52} With respect to the credit card accounts, the court finds that these accounts

are marital. The court determines that “[s]ince the balances are relatively equal,” Robert

shall assume sole liability on the Capital One account, with an approximate balance of

$13,462, and Linda shall assume sole liability on the Slate Chase account, with an

approximate balance of $13,573.

{¶53} Finally, concerning the Direct Loans incurred for the benefit of the daughter,

the trial court found that these loans, in the approximate amount of $64,315.44 are marital

property and shall be “equally divided.” In accordance with this finding, the court

ordered the loan to be repaid “in the amount of $1,000 per month, which equally divided

is $500.00 per party.”

{¶54} Despite the fact that the trial court appears to have attempted to divide the

properties equally, the court’s order fails to reflect that it considered the factors outlined

in R.C. 3105.171(F) to ensure that the division was equitable. Moreover, in considering

such factors, it appears from the evidence provided that such division was, in fact,

inequitable.

{¶55} In the first place, while outlining the various assets and liabilities of the

parties, the trial court failed to adequately consider the substantial disparity in the incomes, the earning potential of the parties, the debt-to-income ratio, and the tax

consequences of the equal division of such assets and liabilities. While an exhaustive

discourse of each factor is not necessary, “there must be a ‘clear indication that the

statutory factors were considered and played a role in the ultimate division of property.’”

Renz v. Renz, 12th Dist. No. CA2010-05-034,

, ¶ 36, quoting Heslep v.

Heslep, 7th Dist. No. 825,

(June 14, 2000). Moreover, the trial court

must consider the tax consequences of its property division, unless those consequences

are speculative. R.C. 3105.171(F)(6);

.

{¶56} Secondly, the trial court failed to consider the substantial duration of the

parties’ marriage. As we previously stated, other than noting the beginning and ending

date of the marriage, the trial court failed to give due consideration to the 24-year

marriage of Linda and Robert.

{¶57} In this case, there is no clear indication that the aforementioned factors

played a role in the trial court’s division of the parties’ property. With respect to the

parties’ incomes, it is not clear what yearly salary the court imputed to Linda, merely

finding her salary to be “$8.70 per hour.” We do not know if the court considered

Linda’s base hours of 30 per week and whether her pay was calculated for nine months

(the school year) or 12 months. If we calculate Linda’s salary at $8,247.52 (the average

of her last three years’ salaries as evidenced by the parties’ tax returns), the substantial

disparity in the parties’ income is clear. Furthermore, the court failed to consider that

Robert’s salary of $90,000 per year (which was unilaterally reduced weeks before trial by Robert’s changing employment) will potentially increase, while Linda’s earning capacity

is unlikely to change. The same is true for the parties’ retirement funds. While Robert’s

relative earning abilities increase, so does his retirement account. Linda’s retirement

account, on the other hand, will be substantially smaller, given her age and previous

employment history.

{¶58} While the trial court attempted to divide the large credit card balances and

the substantial balance on the Direct Loans equally, given the totality of the parties’

income, assets, and retirement benefits, this court cannot conclude that such division was

equitable. In equally dividing the credit card balances and the Direct Loans, the trial

court failed to consider that Robert’s income is nearly ten times that of Linda’s income.

Moreover, Robert’s income and retirement benefits will likely increase, given his age and

his established career.

{¶59} Without explanation, the trial court assigned the credit card with the largest

balance to Linda. It is not clear whether this balance includes Robert’s $2,000 attorney

fee that he charged to a credit card. Under the circumstances, we cannot conclude that

this distribution was reasonable.

{¶60} Further, again without explanation or consideration of any statutory factors,

the trial court divided the substantial Direct Loans balance of approximately $64,315.44

equally between the parties, ordering each party to pay $500 per month. With Robert’s

annual income at $90,000, with a higher earning capacity, and Linda’s income at

approximately $8,247.52, with a considerably lower income potential, we cannot conclude that the parties’ debt-to-income ratio and their respective earning abilities

played a role in the ultimate division of this property.

{¶61} Moreover, the court failed to consider any tax consequences of the division

of the parties’ property, specifically with respect to the net equity Linda would receive

from the refinancing of the parties’ marital home or the receipt of her share of Robert’s

retirement fund with his former employer. The trial court does not provide explicit

instructions for the distribution of Robert’s retirement fund. However, for purposes of

this order, we interpret the trial court’s statement that the funds be “divide[d]

accordingly” to mean that Linda would receive half of this account and she would, as

such, be burdened by the tax consequences upon receiving her share of such funds.

Additionally, the court does not address the tax consequences of Robert’s default on the

401(k) loan caused by his leaving employment at Larson-Juhl, including any penalties

assessed for such default. Linda will also pay taxes on the spousal support she receives.

Finally, with respect to the Direct Loans incurred for the daughter’s college education, the

trial court divided the indebtedness equally. However, it failed to consider the

“education credit” Robert has received on his tax returns as a result of such loans. Linda

will receive no such credit.

{¶62} In light of the above, we find the trial court either failed to consider the

relevant factors outlined in R.C. 3105.171(F) or failed to provide enough detail in its

order to allow this court to determine that such factors were considered in its division of property. Therefore, we cannot conclude the trial court properly exercised its discretion

in dividing the property in an equitable manner.

{¶63} Accordingly, we sustain Linda’s fifth assignment of error and order the trial

court to re-evaluate the evidence in light of the foregoing, in order to achieve a more

equitable result.

C. Direct Loans

{¶64} In Linda’s sixth assignment of error, she contests the trial court’s division of

Direct Loans taken out by Robert to pay for their daughter’s college education. As an

initial matter, Linda claims that the above referenced Direct Loans were incurred solely

by her husband and without her knowledge or consent. She states, therefore, that the

obligation on these loans should be borne by Robert alone.

{¶65} Assets and debts incurred during a marriage are presumed to be marital,

unless it can be proven that they are separate property. Kehoe, 8th Dist. No. 97357,

, citing Vergitz v. Vergitz, 7th Dist. No. 05 JE 52,

. In particular, this court has held that student loan obligations undertaken during the

marriage for the benefit of a couple’s emancipated child should be treated as any other

expense of the marriage and, thus, is considered marital debt. Id. at ¶ 16. The

determinative factor is whether the debt was incurred during the marriage. Nemeth v.

Nemeth, 11th Dist. No. 2007-G-2791,

; Gallo v. Gallo, 11th Dist.

No. 2000-L-208,

(refusing to treat college loan incurred by the husband after the divorce was filed and after the effective date of the end of the marriage as

marital debt).

{¶66} In this case, Robert incurred approximately $64,315.44 in college direct

loans for the benefit of the parties’ emancipated daughter. The first loan, incurred on

October 28, 2009, and the second loan, incurred on September 20, 2010, were undertaken

prior to the commencement of divorce proceedings. The final loan, however, was

undertaken on September 22, 2011, almost two months after the divorce was filed, but

several months prior to the termination date of the marriage.

{¶67} The trial court in this case determined that the duration of the marriage is

from June 3, 1988 to May 30, 2012. Moreover, it stated that “the College Direct Loans,

in the amount of $64,315.44 * * * were taken out in furtherance of the daughter[’s] * * *

education.” The court then concluded that “because the loans were taken out during the

marriage and for the parties’ daughter [they] are hereby deemed marital debt.” We

cannot, therefore, conclude that the trial court’s determination that the Direct Loans were

marital property was an abuse of discretion in that regard.

{¶68} Nevertheless, in its entry, the trial court states that the “[e]vidence presented

demonstrates the loan is to be repaid in the amount of $1,000 per month, which equally

divided is $500 per party.” It, therefore, found that “[Robert] shall assume the $1,000

per month payment and receive a credit of $500 per month towards the spousal support.”

{¶69} The record, however, does not support the trial court’s finding in this regard.

The only evidence presented with respect to a monthly payment on the loan obligation is a statement from Direct Loans, which itemizes the loans, the interest rate, and the original

loan amounts. This statement identifies the “payment amount due” as $811.39. The

court’s figures, therefore, are arbitrary and not supported by the evidence.

{¶70} Further, unless certain circumstances arise to cause deferment of this loan,

repayment would have begun January 2013, approximately seven months after spousal

support was ordered. It is not clear from the trial court’s order whether Robert is to pay

$2,000 in spousal support until the loan repayment potentially began in January 2013,

when Robert would begin receiving the Direct Loans “credit of $500.00” from Linda.

{¶71} In light of this evidence, we find the trial court’s decision regarding the

amount of the parties’ student loan obligation is arbitrary and unreasonable and, therefore,

it is an abuse of discretion. Accordingly, Linda’s sixth assignment of error is overruled

in part and sustained in part.

{¶72} This cause is affirmed in part, reversed in part, and remanded to the lower

court for further proceedings consistent with this opinion.

It is ordered that appellant and appellee share the 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 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.

___________________________________________________ TIM McCORMACK, JUDGE

MELODY J. STEWART, A.J., and MARY J. BOYLE, J., CONCUR