[Cite as Thomaselli v. Thomaselli, 2014-Ohio-2469.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

CONSTANCE THOMASELLI, 

 PLAINTIFF-APPELLANT, 

V. 

ARTHUR M. THOMASELLI, 

 DEFENDANT-APPELLEE. 

)

)

)

)

)

)

)

)

)

CASE NO. 13 JE 18 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas, Domestic Relations Division of 

Jefferson County, Ohio 

Case No. 12DR146 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellant Attorney Mary F. Corabi 

424 Market Street 

Steubenville, Ohio 43952 

For Defendant-Appellee Attorney Gary M. Stern 

231 Dusty Lane 

Steubenville, Ohio 43952 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: June 2, 2014 
[Cite as Thomaselli v. Thomaselli, 2014-Ohio-2469.]

DONOFRIO, J. 

{¶1} Plaintiff-appellant, Constance Thomaselli, appeals from a Jefferson 

County Common Pleas Court judgment granting a divorce between her and 

defendant-appellee, Arthur Thomaselli. 

{¶2} The parties in this case were married on November 10, 1989. No 

children were born as issue of the marriage. On May 4, 2012, appellant filed a 

complaint for divorce. 

{¶3} The matter proceeded to a trial where the court heard testimony from 

both parties regarding their debts and assets. The court made numerous valuations 

of property and divided the property and debt. The findings relevant to this appeal 

will be discussed in detail in appellant’s assignments of error. The court granted the 

parties a divorce and entered judgment accordingly. 

{¶4} Appellant filed a timely notice of appeal on July 2, 2013. 

{¶5} Appellant raises four assignments of error, the first of which states: 

 THE COURT FAILED TO RETAIN JURISDICTION ON THE 

ISSUE OF SPOUSAL SUPPORT IN CONSIDERATION OF THE 

DURATION OF THE MARRIAGE, THE AGE AND HEALTH OF THE 

APPELLANT. 

{¶6} Appellant requested a spousal support award. The court did not award 

spousal support. It noted that appellant claimed several disabilities but is still working 

full time and earning more than appellee. Appellant earns $32,000 annually and 

appellee earns $30,000. Thus, the court found appellant’s claim for spousal support 

was inappropriate. Additionally, the court did not retain jurisdiction over spousal 

support. 

{¶7} Appellant argues the trial court should have retained jurisdiction over 

the issue of spousal support, even though the court did not make a spousal support 

award. She claims the evidence demonstrated that she has physical and mental 

problems and is facing the unknown with her health issues. And she asserts 

appellee is younger and healthier than she is. 
-2-

{¶8} It is important to note that appellant does not challenge the trial court’s 

decision not to award spousal support at this time. Instead, appellant is only 

challenging the court’s decision not to retain jurisdiction over the issue of spousal 

support. 

{¶9} We review a trial court’s decision not to retain jurisdiction over the issue 

of spousal support for abuse of discretion. Molnar v. Molnar, 7th Dist. No. 10-JE-19, 

2011-Ohio-4318, ¶26. Abuse of discretion connotes more than an error of law or 

judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or 

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983). 

{¶10} The trial court did not abuse its discretion in deciding not to retain 

jurisdiction over the issue of spousal support. 

{¶11} Appellant testified that, in 2013, at the time of the divorce hearing, she 

was earning an annual salary of $32,916 as a property manager where she had 

worked for the past 13 years. (Tr. 6-7). Appellant also testified as to her medical 

history. She stated that in 2007, she tore both rotator cuffs. (Tr. 34). She had 

surgery in 2008 and 2009 to repair them. (Tr. 34). She suffered 34 percent 

permanent partial disability in her right arm. (Tr. 34). Appellant stated that through 

all of her injuries and surgeries she has continued to work. (Tr. 35). Appellant 

testified she continues to have pain in her arm. (Tr. 35). Appellant also testified that 

she is depressed and has attended counseling. (Tr. 35). She again emphasized that 

she has never missed work. (Tr. 35). 

{¶12} Appellee’s only testimony on the subject was that his annual income is 

$30,000. (Tr. 81). 

{¶13} The parties’ income is almost identical, with appellant earning slightly 

more than appellee. That is the reason the court did not award spousal support. The 

court apparently saw no reason to retain jurisdiction over the issue of spousal support 

when it did not even put on an order of spousal support. Even though appellant 

testified that she had some physical and mental health issues, these issues have 
-3-

been ongoing since 2007. By her own testimony, appellant’s health issues have 

never prevented her from working. She has been at the same job since before her 

injuries and has continued that job up through the present time. Thus, she gave no 

indication that her physical or mental health issues would have any impact on her 

ability to work and maintain her current job. Therefore, the trial court did not abuse 

its discretion in not retaining jurisdiction over the issue of spousal support. 

{¶14} Accordingly, appellant’s first assignment of error is without merit. 

{¶15} Appellant’s second assignment of error states: 

 THE TRIAL COURT FAILED TO AWARD THE SEPARATE 

REAL ESTATE INTEREST OF THE APPELLANT. 

{¶16} The evidence in this case demonstrated that appellant purchased the 

marital home in 1987, two years prior to the marriage, for $35,000. (Tr. 14). 

Appellant put $10,000 down on the house and took out a $25,000 mortgage. (Tr. 

14). After the parties were married, in 1994 they refinanced the mortgage and 

financed $44,704. (Tr. 14). Later that same year, the parties took out a home equity 

loan for $11,000. (Tr. 14-15). In 1998, the parties refinanced again, this time for 

$55,000. (Tr. 15). Additionally, both parties testified that appellee had been making 

the mortgage payments. (Tr. 52-53, 81). 

{¶17} The court found that the home was currently worth approximately 

$126,000 and that it was encumbered by a mortgage and a home equity loan totaling 

approximately $99,000. It noted that appellant purchased the home two years prior 

to the marriage. It appears the court treated the home as marital property without 

specifically making such a finding and without setting out its reasons for making the 

finding. 

{¶18} Here appellant contends the trial court should have awarded separate 

interest in the marital residence to her because she purchased the house two years 

prior to the marriage. She claims the undisputed evidence showed that she had a 

separate property interest of $45,000, which exceeded the value of the equity in the 
-4-

marital residence. 

{¶19} A trial court's decision regarding whether property is marital or separate 

is reviewed under an abuse of discretion standard. Maloney v. Maloney, 160 Ohio 

App.3d 209, 826 N.E.2d 864, 2005-Ohio-1368, ¶8, citing Neville v. Neville, 99 Ohio 

St.3d 275, 791 N.E.2d 434, 2003-Ohio-3624. 

{¶20} “Marital property” includes real property, or any interest in real property, 

that is currently owned by either or both spouses and that was acquired during the 

marriage. R.C. 3105.171(A)(3)(a)(i) and (ii). “Separate property,” on the other hand, 

includes real property, or any interest in real property, that was acquired by one 

spouse prior to the date of the marriage. R.C. 3105.171(A)(6)(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). 

{¶21} “In divorce proceedings, the court shall * * * determine what constitutes 

marital property and what constitutes separate property.” (Emphasis added), R.C. 

3105.171(B). See also, Silicia v. Silicia, 7th Dist. No. 99-CO-66, 2001-Ohio-3364. 

This duty, to classify property in a divorce proceeding as marital or separate before 

dividing it, is mandatory. Girton v. Girton, 4th Dist. No. 08CA30, 2009-Ohio-4458, ¶6. 

Additionally, the trial court must make findings in sufficient detail to allow for 

meaningful appellate review. Woody v. Woody, 4th Dist. No. 09CA34, 2010-Ohio6094, ¶24; R.C. 3105.171(G) (“the court shall make written findings of fact that 

support the determination that the marital property has been equitably divided.”) 

{¶22} In this case, the trial court failed to determine whether the home was 

entirely marital property or if appellant owned a separate property interest in the 

home since she purchased it prior to the marriage. The court acknowledged in a 

footnote that appellant purchased the property prior to the marriage for $35,000 and 

that a mortgage balance of $24,000 remained at the time of the marriage. And in its 

division of assets, the court awarded the house to appellant, along with its 

outstanding mortgage and equity loan. But the court never performed its statutory 
-5-

duty to make a determination as to whether appellant owned a separate property 

interest in the house. The court should have made this determination, along with 

sufficient findings in support, prior to awarding the house. The court’s failure to make 

such a determination warrants a remand of this case so that the court can make its 

statutorily-required findings. See Fordyce v. Fordyce, 7th Dist. No. 10 NO 372, 2011-

Ohio-3406; Silicia, 2001-Ohio-3364. 

{¶23} Accordingly, appellant’s second assignment has merit. 

{¶24} Appellant’s third assignment of error states: 

 THE TRIAL COURT ERRED IN FAILING TO DIVIDE ALL THE 

ASSETS AND DEBTS OF THE PARTIES. 

{¶25} In this assignment of error, appellant asserts the trial court failed to 

divide numerous assets. The assets appellant asserts the court neglected to divide 

are: 

1. First Choice America Federal Credit Union IRA with a $409.86 value 

2. WesBanco Account with a $265.78 value 

3. WesBanco Account with a $350.00 value 

4. Parkvale Account with a $50.00 value 

5. West Mark Account with a $3,030.50 value 

6. First Choice America Federal Credit Union Saving Account with a $20.20 

value 

7. First Choice America Federal Credit Union Checking Account with a $14.71 

value 

{¶26} Additionally, appellant argues the trial court assigned values to various 

assets that are not supported by the evidence. Specifically, she points to the values 

assigned by the court to the Cadillac, the Chevrolet truck, and the West Virginia 

house. 

{¶27} The trial court failed to include several assets in its division of property. 
-6-

None of the accounts listed above appear in the trial court’s division of assets with 

the exception of the WesBanco account with a $350-value (the court actually listed 

the value as $353). But appellant testified regarding each of these accounts and 

each account, along with the last four digits of each account number, is listed in her 

proposed division of assets. Additionally, in appellee’s proposed division of assets, 

he lists three of the accounts as his separate property (WesBanco accounts ending in 

42000, 3897, and 1210). The court awarded account 3897 to appellant; however, it 

did so without making a determination as to whether it was separate or marital 

property. The court did not make any determination as to the separate or marital 

characterization of the other two accounts nor does it appear that the court awarded 

these assets. The trial court did find that two accounts are the property of appellee 

and his parents. But it is not entirely clear, without reference to account numbers, 

whether these are the same accounts appellant listed above because appellee 

characterized them as his separate property and not as the property of his parents. 

And the court makes no mention of the First Choice accounts. Thus, we must 

remand this matter to the trial court so that the court can make a complete 

classification of all accounts as marital or separate and then divide all of the 

accounts. 

{¶28} Appellant also takes issue with the value the court assigned to the 

parties’ second home, known as the “lake house,” the Cadillac, and the Chevrolet 

truck. 

{¶29} As to the lake house, appellant testified that its value was $85,500 

because that it is how much it is insured for. (Tr. 12). Appellee testified the house is 

worth $35,000 because that is what the parties paid for it less than five years ago. 

(Tr. 78). The parties both testified that they only own the house, however, and not 

the real estate on which it sits. (Tr. 13, 78-79). They only own a 99-year lease on 

the land, of which 65 years remain. (Tr. 13, 78-79). 

{¶30} The trial court valued the lake house at $35,000. It found the fair 

market value to be more accurately determined by the recent purchase price than by 
-7-

the replacement price. And the court also took into consideration that the lake house 

is located on property that the parties do not own. It was within the trial court’s 

discretion to determine which testimony was more credible in this case. 

{¶31} As to the Cadillac, appellant testified that she owns a 2004 Cadillac 

Deville that is appraised at $6,200. (Tr. 16-17). Appellee did not testify as to a value 

for the Cadillac. 

{¶32} And as to the truck, appellant testified that appellee owns a 1996 

Chevrolet K1500 truck valued at approximately $5,000. (Tr. 17). Appellant testified 

that the truck was worth “maybe less” than $5,000. (Tr. 80). 

{¶33} The trial court used the Kelly Blue Book value for a 2004 Cadillac 

Seville [sic.], which was $6,000, and for a 1996 Chevrolet 1500 truck, which was 

$3,400. In so doing, the court used information from outside the record to come to 

these values. This was in error. A court cannot consult the NADA Blue Book on its 

own and take judicial notice of the average listed retail value of a vehicle. Blake v. 

Blake, 3d Dist. No. 10-05-07, 2005-Ohio-4186, ¶29; Jones v. Cynet, Inc., 8th Dist. 

No. 79769, 2002-Ohio-2617, ¶31. Thus, the court’s valuation of the parties’ vehicles 

was in error. 

{¶34} Accordingly, appellant’ third assignment of error has merit in part. 

{¶35} Appellant’s fourth assignment of error states: 

 THE TRIAL COURT ERRED IN FINDING FINANCIAL 

MISCONDUCT ON THE PART OF THE APPELLANT. 

{¶36} The trial court found that appellant “has a huge gambling problem.” It 

found that in 2010, appellant reported $11,390.00 in gambling winnings and offsetting 

losses on her taxes. And in 2011, appellant reported $21,950.00 in gambling 

winnings and offsetting losses. In 2012, appellant won $14,000.00 and presumably 

claimed offsetting losses. The court noted that appellant claimed her losses should 

be determined by her tax returns. But the court found this would grossly 

underestimate her losses. The court then made the following findings: 
-8-

All of wife’s gambling is done on machines common in Weirton, 

West Virginia. The payout per dollar wagered is well known to range 

from 28% to 40%. In order to win $46,485.00 over the past three (3) 

years from constant gambling at machines over the long haul one 

would have to wager many times that amount. Using the 40% return as 

an average (greatly favors Plaintiff) then one would have to wager 

$116,212.00 to win $46,485.00. Those gross winnings of $46,485.00 

over three (3) years therefore actually represent $69,727.00 in net

losses. But it is worse than that. The winnings Plaintiff reported to the 

IRS are only those winnings that exceeded $1,200.00 in a single pot. 

All of the winnings less than $1,200.00 are not reported to the IRS and 

are not claimed on her tax return. Those gross winnings would also 

represent a net loss of 1.5 times the gross winnings. Another huge net 

loss. 

{¶37} Appellant challenges the trial court’s finding that her gambling 

constituted financial misconduct. She first argues the court erred in taking judicial 

notice of the gambling pay-out rates of certain machines in West Virginia and then 

using these pay-out rates to compute her annual gambling losses. Second, she 

argues that her gambling does not constitute financial misconduct. Appellant points 

out that she started gambling three years before the parties’ separation and appellee 

was aware of it and even gave her funds with which to gamble. Thus, she claims 

there was no wrongdoing on her part. For these reasons, appellant argues the trial 

court erred in offsetting the distribution in favor of appellee by $69,727.00, which it 

found to be the minimal amount of appellant’s gambling losses. 

{¶38} Pursuant to Evid.R. 201(B), a court may take judicial notice of a fact 

that is “not subject to reasonable dispute in that it is either (1) generally known within 

the territorial jurisdiction of the trial court or (2) capable of accurate and ready 

determination by resort to sources whose accuracy cannot reasonably be 

questioned.” 
-9-

{¶39} No evidence of the payout rates of West Virginia gaming machines was 

offered at the trial. On its own initiative the trial court took judicial notice of these 

“facts.” It is within a court’s discretion to take judicial notice whether or not requested 

by a party. Evid.R. 201(C). But a court may not take judicial notice of a fact simply 

because the court has personal knowledge of that fact. Staffrey v. Smith, 7th Dist. 

No. 09-MA-107, 2010-Ohio-1296, ¶38. 

{¶40} The court erred in including the “well known” payout per dollar wagered 

rate. What the payout rate may be on certain gaming machines is not a fact that is 

generally known within the territorial jurisdiction of the trial court. Moreover, the court 

did not give any sources where this “well known” information could be found or that 

the information came from sources whose accuracy cannot reasonably be 

questioned. The court took it upon itself to include the payout rates that it obtained 

from some unknown source and then to use averages to determine what it believed 

appellant’s gambling losses to be (in excess of $69,727.00). The court then used 

this figure to offset the discrepancy between the parties’ asset division. 

{¶41} Appellee concedes that the court may have erred in taking judicial 

notice of these payout rates. But he argues there was enough evidence to support 

the trial court’s findings without reference to the gaming payout rates. The only 

specific evidence as to appellant’s losses was the information provided on her tax 

forms. These amounts were $11,390.00 in 2010, $21,095.00 in 2011, and 

$14,000.00 in 2012, for a total of $46,485.00. (Tr. 44, 47, 54; Exs. 1, 2). This is a 

$23,242.00 difference from the figure that the trial court used. There are other 

references in the record as to appellant’s gambling losses, but the figures are not 

exact. Thus, the trial court erred in finding that appellant incurred $69,727.00 in 

gambling losses and using this amount to offset the discrepancy between the parties’ 

total distribution of assets. 

{¶42} Accordingly, appellant’s fourth assignment of error has merit. 

{¶43} For the reasons stated above, the trial court’s judgment is hereby 

reversed and the matter is remanded. On remand, the court shall determine whether 
- 10 -

appellant has a separate property interest in the marital home, shall classify all of the 

parties’ accounts as separate or marital property and then distribute all accounts, 

shall re-value the parties’ vehicles based on the evidence offered, and shall 

reconsider its finding of appellant’s financial misconduct without reference to facts 

outside of the record. Once the trial court has done these things, it will be necessary 

for it to enter a new equitable division of assets. 

Waite, J., concurs. 

DeGenaro, P.J., concurs.