deLevie v. deLevie

• Decision Date: 25 February 1993
• Docket Number: No. 92AP-1125,92AP-1125
• Parties: deLEVIE, Appellee, v. deLEVIE, Appellant. *
• Court: Ohio Court of Appeals

Page 531

86 Ohio App.3d 531

621 N.E.2d 594

deLEVIE, Appellee, v. deLEVIE, Appellant. ^*

No. 92AP-1125.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Feb. 25, 1993.

Jeffrey A. Grossman Co., L.P.A., Jeffrey A. Grossman and Anthony R. Auten, Columbus, for appellee.

Raymond M. deLevie, pro se.

BOWMAN, Judge.

Appellant, Raymond Mark deLevie, and appellee, Judith Groner deLevie, were married in 1986. Shortly after their marriage, appellant gave up his employment as an attorney in order to attend medical school at Ohio State University. The parties agreed that, while appellant was in school, appellee would support the household through her pediatric practice, in which she earned approximately $68,000 per year.

In August 1988, while appellant was still a medical student, appellee gave birth to a son, Alan. Although appellant's class schedule allowed him time at home, during this time appellant evidently did not provide a significant amount of care to the child; instead, appellee was primarily responsible for Alan's feeding and personal care, and his transportation to the babysitter's home. Also during this time, the parties hired a live-in nanny but, according to appellee, the nanny required assistance and supervision which only appellee provided.

The marriage disintegrated shortly after the birth of the child, and appellee filed a complaint for divorce in January 1990. Nevertheless, appellant continued to reside in the marital residence and appellee continued to support appellant and pay his medical school expenses. Eventually, appellant completed medical school, moved out of the home and obtained a position with a Columbus law firm, earning an initial annual salary of $30,000.

Negotiations between the parties regarding child custody, property division, and spousal support were ultimately unsuccessful, and the matter was subject to a lengthy hearing in the fall of 1991. The trial court issued a decision in June 1992, followed by a judgment entry and decree of divorce in August 1992.

After dividing the parties' various investments, pension, personal property, and tax refunds, the trial court awarded appellee the marital residence, splitting the $42,000 equity in the property and allowing appellee five years to pay appellant $21,000 for his share, with interest.

Appellant sought shared parenting of Alan, which appellee opposed, but appellee submitted a shared parenting plan in the event that the court decided to order shared parenting. The court determined that shared parenting would not be in the best interest of the child and awarded custody to appellee. In determining custody, the court considered the fact that the parties were "utterly incapable of cooperating with each other in some very important decisions concerning child-rearing," and cited as one example their disagreement on whether the child should be reared and educated in compliance with Orthodox Jewish traditions or pursuant to Reform Jewish traditions. The court concluded that:

"The Court finds so little common ground between the parties that a shared parenting plan would merely exacerbate the hostility caused by their fundamental differences of opinions on child rearing, would offer the opportunity of coercion and control by either party over the other and consequently would work to the great detriment rather than the best interest of the child. The Court rejects both plans, and declines to invite changes which would only further delay stability for the child."

Appellant now raises the following assignments of error:

"Assignment of Error No. 1

"The trial court's division of property was against the manifest weight of the evidence, contrary to law and constituted an abuse of discretion.

"Assignment of Error No. 2

"The trial court abused its discretion in failing to make orders relative to shared parenting and in failing to order shared parenting.

"Assignment of Error No. 3

"The trial court abused its discretion in designating appellee rather than appellant the residential parent and legal guardian of the minor child.

"Assignment of Error No. 4

"The trial court abused its discretion in its rote adoption of Loc.R. 27.

"Assignment of Error No. 5

"The denial of shared parenting premised on religious difference and Loc.R. 27 as applied herein is unconstitutional."

Appellant's first assignment of error charges that the trial court abused its discretion with regard to property division, because the court failed to rely upon the manifest weight of the evidence presented at trial.

Specifically, appellant argues the trial court erred in determining that appellant had failed to trace the down payment for, and cost of improvements to, the marital residence to his own nonmarital assets, in incorrectly setting the date of the end of the marriage for purposes of determining and dividing pensions, in improperly dividing appellee's Charles Schwab IRA accounts, in awarding appellee the marital residence and granting her five years to pay appellant her share of the equity in the marital residence, in dividing the income tax refunds for the years prior to and during the pendency of the divorce, and in distributing the marital debt.

The trial court's authority to make a property division derives from R.C. 3105.171, which sets forth the following guidelines:

"(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:

"(1) The duration of the marriage;

"(2) The assets and liabilities of the spouses;

"(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;

"(4) The liquidity of the property to be distributed;

"(5) The economic desirability of retaining intact an asset or an interest in an asset;

"(6) The tax consequences of the property division upon the respective awards to be made to each spouse;

"(7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property;

"(8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses;

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

Regarding appellant's claim that the evidence did not support the trial court's finding that payments relevant to the purchase and improvement of the marital residence were not traceable to appellant's nonmarital assets, we agree with the trial court that appellant failed to produce evidence establishing these funds were directly traceable to him. Instead, the evidence established that the funds came from the parties' joint checking account, which also contained an unidentified amount of appellee's income from her job. Finally, even if appellant had presented evidence tracing the funds, the trial court still was within its discretion in refusing to award appellant that money since the fact that appellant may have brought an asset into the marriage did not determine the disposition of the property, but was merely one factor to be considered under R.C. 3105.18. Kahn v. Kahn (1987), 42 Ohio App.3d 61, 536 N.E.2d 678; Sanzenbacher v. Sanzenbacher (1981), 3 Ohio App.3d 180, 3 OBR 206, 444 N.E.2d 454.

Appellant argues that he was entitled to share in an additional six months of appellee's pension, because the trial court determined that the end of the marriage was at the time of the filing of the court's decision, six months after December 1991, the date of the hearing. Appellant also argues that he was entitled to share in the $2,000 contributed to appellee's IRAs during the marriage. First, the trial court had the discretion to ascribe a date to the end of the marriage which it deemed equitable. R.C. 3105.171(A)(2)(b). Second, even if appellant could be construed to be entitled to an additional share of appellee's pension and IRA accounts, the trial court did not abuse its discretion in light of the total property division. See Briganti v. Briganti (1984), 9 Ohio St.3d 220, 9 OBR 529, 459 N.E.2d 896; see, also, Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 541 N.E.2d 597.

We also reject appellant's argument that the trial court abused its discretion in awarding appellee the marital residence with five years to pay off appellant's interest in the home. Pursuant to R.C. 3105.171(F)(3), the court was entitled to consider, when making the award, that appellee would have custody of the child. In addition, given the costs to appellee of litigating the divorce, the fact that appellee was assuming the mortgage and other costs associated with ownership of the home, and that she was assuming debts incurred in connection with appellant's medical school education, it was not unreasonable for the court to grant appellee five years to pay appellant his share of the home equity.

Appellant maintains that he was entitled to share in appellee's 1991 income tax refunds but that the trial court failed to make such an award. However, appellant admits that the tax return was not in evidence at the hearing since the hearing had concluded in December 1991, before any tax refund for 1991 would have been determined. There is no evidence that appellant attempted to obtain the court's consideration of this issue during the period between the conclusion of the hearing and the release of the court's decision and judgment entry. Therefore, the court did not abuse its discretion in failing to rule on any 1991 refund. Nor did the court abuse its discretion in granting appellee the 1990 refund, given the total circumstances surrounding the property division in this case.

With regard to the trial court's distribution of the marital debt, appellant primarily argues that appellee should have been ordered to pay a dentist bill for him in the amount of approximately $1,000....