Dorothy L. Dickman v. Harry J. Dickman

• Decision Date: 17 October 1985
• Docket Number: 17-84-3,85-LW-1707
• Parties: DOROTHY L. DICKMAN, PLAINTIFF-APPELLEE v. HARRY J. DICKMAN, DEFENDANT-APPELLANT. CASE
• Court: Ohio Court of Appeals

DOROTHY L. DICKMAN, PLAINTIFF-APPELLEE v. HARRY J. DICKMAN, DEFENDANT-APPELLANT.

No. 17-84-3.

85-LW-1707 (3rd)

Court of Appeals of Ohio, Third District Shelby

October 17, 1985

Civil Appeal from Common Pleas Court.

MR. W LYNN SWINGER, Attorney at Law, 111 E. Court St., P.O. Box 477, Sidney, Ohio 45365, For Appellant.

MR RODNEY R. BLAKE, JR., Attorney at Law, 126 N. Main St Sidney, Ohio 45365, For Appellee.

OPINION

GUERNSEY P.J.

This is an appeal by the defendant Harry Dickman from a decree of the Court of Common Pleas of Shelby County granting to the plaintiff a divorce on the grounds of the defendant's guilt of adultery, and providing for a division of the property of the parties together with payment of installment alimony by the defendant to plaintiff. The defendant now appeals asserting two assignments of error.

First assignment of error:

"The trial court erred in classifying 10/12ths of appellant's gross 1981 bonus as marital property."

The referee in the case sub judice determined that the division of property should be based upon marital assets as of the time of the separation of the parties in August of 1981. Choosing this time frame rather than the hearing date of December 5, 1983, the referee concluded that any property accumulated by either party since that period of time should not be considered.

The trial court fundamentally approved the division of property date of August 1981, and found that only one of the numerous objections to the Referee's Report held merit, that being that the referee failed to consider the accumulated bonus of the defendant. The defendant is employed as a salesman at an annual salary of $26,000. In addition, defendant receives a bonus based on corporate gross sales, however generated, which exceed $1,500,000 annually. This bonus usually amounts to between $18,000 to $27,000 per year.

As defendant's employer's fiscal year ends in October, the trial judge determined that 10/12ths of the defendant's accrued 1981 bonus, or $26,826, existed when the couple separated, rendering it marital property. The trial judge proceeded to divide this amount evenly between the parties.

In this assignment of error, defendant contends that the trial court should have considered and applied the defendant's effective tax rate of 42% to the 1981 bonus, and used the net amount for purposes of determining marital assets. However, the question is foreclosed here since such issue was not raised in the trial court.

The objections of the defendant to the report of the referee deal only with the grant of divorce and alimony, and are void of any argument advancing that the bonus should be reduced for tax affects. Furthermore, quoting from the defendant's response to the plaintiff's objections, the concluding sentence reads as follows:

"We believe the only recommendation of the referee not fully supported by his factual findings is the award of alimony."

Ohio law is clear that questions not raised and determined in the court below cannot be considered by a reviewing court. Schade v. Carnegie Body Co. (1982), 70 Ohio St. 2d 207; Goldberg v. Indust. Comm. (1936), 131 Ohio St. 399. Generally, the theory upon which a case is tried must be adhered to on appeal, Republic Steel Corp. v. Bd. of Revision of Cuyahoga Cty. (1963), 175 Ohio St. 179, and issues which are not considered by the lower court and which are completely inconsistent with and contrary to the theory proceeded upon below cannot be raised for the first time on appeal. Republic Steel Corp., supra.

We recognize in the response to plaintiff's objections that defense counsel notes plaintiff's failure to comment on "*** the fact that any bonus due defendant is subject to taxes," however, this is neither sufficient or definitive to show the nature or amount of taxes, or the liability for the same. The record does not disclose what these tax consequences are nor are they set forth in defendant's brief in such manner that this Court can say that they dictate a division of property order other than that made by the trial court.

Accordingly, the record does not support a conclusion that the trial court committed error as assigned under the first assignment of error, and the same is overruled.

Second assignment of error:

"The trial court erred in requiring appellant to pay $6,000 per year to appellee for seven years ($42,000) in alimony."

Defendant argues that the award of alimony to the plaintiff is neither reasonable or necessary, setting forth various computations in support of that contention. The defendant also appears to assert that the trial court did not consider in making its award the factors set forth in R.C. 3105.18(B). In Moeller v. Moeller (Feb 17, 1983), Allen App. No. 1-81-66, unreported, we said:

"This Court has consistently determined that the trial court is not directed by statute to affirmatively demonstrate that each element or factor was considered unless the findings of fact or conclusions of law or the conduct of the trial demonstrates an exclusion from consideration of these factors."

The trial court's opinion demonstrates no exclusion from consideration of any factor and, in fact, the trial judge approved the report of the referee which specifically states:

"***

"17. Although not necessarily commenting on each one individually, the Referee has considered all the factors set forth in section 3105.18 of the Revised Code."

The thrust of defendant's argument is essentially directed to the charge that in its award of alimony to the wife, the trial court abused its discretion. In Berish v. Berish (1982), 69 Ohio St. 2d 318, the opinion quotes a series of cases concerned with the issue as follows:

"This Court has long recognized that trial courts are vested with broad powers in determining the appropriate scope of property

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