[Cite as Sherman v. Sherman, 2013-Ohio-3501.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO

JACK SHERMAN, JR., 

Plaintiff-Appellee, 

 vs. 

SCARLETT A. SHERMAN, 

 Defendant-Appellant. 

 

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APPEAL NO. C-120691 

 TRIAL NO. DR-1101969 

 O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations 

Division 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: August 14, 2013 

Buechner Haffer Meyers & Koenig Co., LPA, Gloria S. Haffer and Robert J. Meyers, 

for Plaintiff-Appellee, 

Cohen Todd Kite & Stanford, LLC, and Jeffrey Rollman, for Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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FISCHER, Judge. 

{¶1} Defendant-appellant Scarlett Sherman appeals from the decree of 

divorce entered by the Hamilton County Court of Common Pleas, Domestic Relations 

Division, terminating her marriage to plaintiff-appellee Jack Sherman, awarding 

Scarlett spousal support and dividing the parties’ assets and debts. Because we 

determine that her five assignments of error lack merit, we affirm the trial court’s 

judgment. 

History of the Parties 

{¶2} The parties married on March 1, 2004; however, their romantic 

relationship preceded that date. According to Scarlett, she and Jack were engaged to 

be married twice—once in 1982 and once in 1988. With regard to the 1982 

engagement, Scarlett and Jack lived together during that period of time, but Jack 

ended their relationship abruptly. The two reunited in 1988 while Jack was running 

for a judgeship on the Hamilton County Court of Common Pleas, and they became 

engaged again. Scarlett spent a great deal of time assisting Jack in his election 

efforts, including attending parades and campaign events. Although Jack lost the 

election, he was appointed to a federal magistrate position, and Scarlett assisted the 

FBI in its investigation of Jack in connection with that appointment. Scarlett claims 

that Jack abruptly ended their relationship again after his appointment. Jack did not 

have the same recollection of their past. He downplayed the seriousness of their 

romantic involvement, and he denied that they were ever formally engaged at either 

time. 

{¶3} After 16 years without communicating, Jack contacted Scarlett “out of 

the blue.” He had recently retired from the federal judiciary, and he wanted to 
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rekindle their romance. The two married shortly thereafter. The parties had no 

children and enjoyed a nice standard of living, which included three vacations per 

year, and theater and symphony tickets. Scarlett worked part-time for LensCrafters 

when she married Jack, but she retired early in 2009 at Jack’s request so that she 

could be home in the evenings and on weekends and so they could travel more. 

{¶4} In July 2011, Jack asked Scarlett to lunch, and when they finished 

eating, he handed her a type-written letter stating that he wanted a divorce. Jack’s 

request for a divorce came as a surprise to Scarlett. The parties remained together in 

the marital household for several days, until an incident occurred that frightened 

Jack, and he left the home. Eventually, a domestic violence order was issued, at 

which point Scarlett moved to Charlottesville, Virginia, to live with her sister. 

The Divorce Action 

{¶5} Jack filed a complaint for divorce in September 2011. At the time of 

trial on the merits of the divorce action, Jack was 74 years old and Scarlett was 58 

years old. Jack testified at length regarding his assets. He testified that he had 

approximately $480,000 in assets when he married Scarlett. Part of that included 

an IRA funded with money that he had earned from working prior to the marriage, 

and he had not added to the IRA since the marriage. The other assets were held at 

various credit unions and banks. All of the funds that had been deposited into those 

accounts, and which remained in the accounts at the time of trial, were derived from 

Jack’s premarital employment, his retirement benefits, or a certificate of deposit that 

he had inherited upon his parents’ deaths. At all times during the marriage, Jack 

and Scarlett had kept separate accounts and did not comingle funds. 
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{¶6} As to Jack’s debt, he testified that he had bought a condominium after 

he and Scarlett had separated. He had withdrawn $200,000 from his savings 

account to buy the property and had borrowed $20,000 to fund the balance of the 

purchase price. Jack also owed close to $51,000 on a boat that he had purchased 

prior to the marriage. 

{¶7} At the time of trial, Jack also received approximately $200,000 per 

year in retirement benefits. This included his pensions from the Judicial Retirees 

System, the Ohio Public Employee Retirement System, and TIAA-CREF, as well as 

Social Security benefits. 

{¶8} Jack also testified that Scarlett had defaced 200 pieces of his personal 

memorabilia, including books, photographs, and newspaper clippings, by writing 

hateful comments on them with black marker. Jack testified that he would like to 

restore at least 100 of the items, and he presented the testimony of Jennifer Burt 

from Wiebold Studio, which specializes in antique restoration. Burt testified that 

Jack had brought a box full of the damaged personal items to the studio and that 

some of the items could not be restored. Some of the others could be restored, but at 

a minimum cost of $250 per item. Burt was unable to recall specifically which items 

she had seen, except for a photograph of John Glenn. 

{¶9} Scarlett filed a counterclaim and also requested spousal support. 

Scarlett testified that she had not been working since she had left LensCrafters in 

2009, and that she was no longer able to work. She testified that she had a 

neurological degenerative disease that had preceded the marriage, and that she had 

been seeing a psychologist for depression and had been taking sleeping pills. She 

testified that she was looking for an apartment in Charlottesville, and that she would 
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expect that to cost her $1,500 per month. As to her assets, she had approximately 

$28,500 in two separate accounts. Upon reaching age 65, she would receive a 

pension as a result of her six-year employment with U.S. Shoe. The only debt that 

Scarlett had was a credit-card account, which she acknowledged was her separate 

obligation. 

The Trial Court’s Decision 

{¶10} The magistrate found that the funds in each party’s accounts were to 

remain separate and that neither party had any interest in the other’s retirement 

benefits. The magistrate also found that spousal support for Scarlett was necessary 

because of the disparity in the parties’ income flow. In determining spousal support, 

the magistrate found that the parties’ marriage was one of relatively short duration, 

from March 1, 2004, the ceremonial marriage date, until March 5, 2012, the day of 

trial. The magistrate then awarded spousal support in the amount of $5,000 per 

month for 30 consecutive months beginning in May 2012. However, the magistrate 

offset $25,000 from the total spousal-support award, prorated at $833.33 per 

month, to reimburse Jack for the cost to repair his damaged memorabilia. The 

magistrate also awarded Scarlett $50 per month from Jack’s Judicial Retirement 

System for the rest of Jack’s natural life, so that Scarlett would remain eligible for 

health insurance. 

{¶11} Both parties filed objections to the magistrate’s decision. The trial 

court sustained one of Jack’s objections regarding the purchase date of his boat, 

which had no bearing on the division of property or spousal support. The remainder 

of the objections were overruled, and the trial court adopted the magistrate’s 
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decision as modified. The trial court then entered a final decree of divorce, from 

which Scarlett now appeals. 

Spousal Support

{¶12} In her first assignment of error, Scarlett argues that the trial court 

erred in determining the duration of the marriage for purposes of spousal support. 

R.C. 3105.171(A)(2) provides that the duration of a marriage is from the date of the 

marriage through the date of the final hearing in the divorce action, unless the court 

determines that these dates would be inequitable. Generally, a trial court’s 

determination as to the duration of marriage under R.C. 3105.171(A)(2) is reviewed 

for an abuse of discretion. Lemarr v. Lemarr, 1st Dist. Hamilton No. C-100706, 

2011-Ohio-3682, ¶ 4. An abuse of discretion means that the trial court’s decision was 

arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 

217, 219, 450 N.E.2d 1140 (1983). 

{¶13} Scarlett argues that the trial court abused its discretion in selecting the 

parties’ ceremonial marriage date as the beginning date of the marriage because the 

trial court should have given “some consideration” to the long history of the parties, 

which spanned 31 years. In support of her argument, Scarlett relies on Abernathy v. 

Abernathy, 8th Dist. Cuyahoga No. 80406, 2002-Ohio-4193, for the proposition that 

a trial court may use a de facto commencement date prior to the actual marriage 

date, even if the parties were married to other people at the time of the de facto 

commencement. In Abernathy, the trial court selected 1977 as the parties’ de facto 

marriage date, even though they had not actually married until 1983. In that case, 

however, the parties started living together in 1977, they purchased a home in 1980 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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jointly as husband and wife, they maintained a joint bank account in 1980, and they 

filed a joint federal tax return for 1979 as husband and wife. Id. at ¶ 21. 

{¶14} Unlike in Abernathy where the parties held themselves out as husband 

and wife for six years prior to their actual marriage, Scarlett and Jack had “little to no 

contact” for 16 years prior to their marriage. Moreover, their testimony conflicted on 

the seriousness of their prior relationship. Therefore, the trial court in this case did 

not abuse its discretion in selecting the parties’ ceremonial marriage date as the 

beginning date of the marriage, as provided by R.C. 3105.171(A)(2). We overrule 

Scarlett’s first assignment of error. 

{¶15} In her second assignment of error, Scarlett argues that the trial court 

abused its discretion in awarding her spousal support for 30 months, as opposed to 

seven years. R.C. 3105.18(B) provides that the court may award reasonable spousal 

support to either party upon request. R.C. 3105.18(C)(1) then sets forth the factors 

that the trial court must consider in making a spousal-support determination, 

including, but not limited to, the parties’ income, earning abilities, ages and 

conditions, retirement benefits, duration of the marriage, marital standard of living, 

and assets and liabilities. The trial court has broad discretion in determining an 

award of spousal support under R.C. 3105.18(C)(1). Zerbe v. Zerbe, 1st Dist. 

Hamilton Nos. C-040035 and C-040036, 2005-Ohio-1180, ¶ 26, citing Kunkle v. 

Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990). 

{¶16} The record demonstrates that the trial court considered all of the 

relevant factors. Most notably, the trial court found in Scarlett’s favor that the 

parties had a huge disparity in incomes, and that Scarlett had retired in 2009 at 

Jack’s urging. The trial court also determined that the parties had enjoyed an upper 
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class standard of living while married. However, the trial court also found that 

Scarlett had failed to present any expert medical testimony to substantiate her own 

testimony that she was no longer able to work at age 58, and that Scarlett had failed 

to contribute to Jack’s income-earning abilities. We cannot say that the trial court 

abused its discretion in setting the award of support for 30 months instead of seven 

years for an eight-year marriage. We overrule Scarlett’s second assignment of error. 

Retirement Income as Separate Property

{¶17} In her third assignment of error, Scarlett argues that the trial court 

erred in determining that Jack’s retirement income was his separate property. A trial 

court must divide marital property equitably between the spouses. R.C. 3105.171(B). 

Marital property is defined, in part, as “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)(iii). Similarly, 

separate property means “[p]assive income and appreciation acquired from separate 

property by one spouse during the marriage.” R.C. 3105.171(A)(6)(a)(iii). Thus, “[i]f 

the evidence indicates that the appreciation of the separate property is not due to the 

input of [one spouse’s] labor, money, or in-kind contributions, the increase in the 

value * * * is passive appreciation and remains separate property.” Middendorf v. 

Middendorf, 82 Ohio St.3d 397, 401, 696 N.E.2d 575 (1998). We review a trial 

court’s division of property for an abuse of discretion. Dunn v. Dunn, 1st Dist. 

Hamilton Nos. C-010282 and C-010292, 2002-Ohio-6247, ¶ 12. 

{¶18} Scarlett does not dispute that Jack’s retirement assets were acquired 

prior to the marriage, and that any income earned during the marriage was passive 

income or appreciation acquired from those assets. Nor does she argue that any 
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labor, monetary, or in-kind contribution occurred during the marriage. Instead, 

Scarlett argues that the trial court should have considered Jack’s retirement income 

as marital property despite the statute because it was Jack’s only source of income 

during the marriage and because Scarlett’s income from LensCrafters was marital. 

Alternatively, Scarlett argues that the trial court should have made an equitable 

distributive award of Jack’s property under R.C. 3105.171(A)(1) or (E)(2). 

{¶19} The trial court followed the plain language of the statute in 

determining that Jack’s retirement income was separate property, but the trial court 

awarded Scarlett all of her assets from her job with LensCrafters, even though some 

of those assets were marital property. Moreover, the trial court considered the 

parties’ income disparity when calculating Scarlett’s spousal support. Therefore, we 

cannot say that the trial court abused its discretion in dividing the parties’ property. 

We overrule Scarlett’s third assignment of error. 

Offsetting the Cost of Damaged Property 

{¶20} In her fourth assignment of error, Scarlett argues that the trial court 

erred by offsetting the cost of restoring of Jack’s memorabilia against her spousalsupport award. Scarlett does not challenge the trial court’s ability to offset the 

award, but instead, Scarlett argues that Jack failed to present sufficient evidence 

from which the trial court could have valued the damaged memorabilia at $25,000. 

Scarlett contends that because Burt did not actually value each item for restoration, 

the valuation was speculative. 

{¶21} A party moving for damages in a divorce case has the burden of 

proving those damages, and a court cannot speculate as to damages. Witmer-Lewis 

v. Lewis, 9th Dist. Summit No. 23262, 2007-Ohio-240, ¶ 35. This court will not 
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reverse a trial court’s valuation of property if it is based on some competent, credible 

evidence. See Hoskins v. Hoskins, 1st Dist. Hamilton Nos. C-120130 and C-120213, 

2013-Ohio-1126, ¶ 3. 

{¶22} Burt testified that Jack brought a box full of damaged personal items 

to the restoration studio, and that some of those items could not be restored, 

although some could. She testified that a conservative estimate to repair an item was 

$250. Jack then testified that Scarlett had damaged 200 items, and that he wanted 

to repair at least 100 of those items. On this record, we determine that sufficient 

competent, credible evidence exists to support the trial court’s determination as to 

the cost of restoration. We overrule Scarlett’s fourth assignment of error. 

Judicial Notice of Civil Protection Order 

{¶23} In Scarlett’s fifth assignment of error, she argues that the trial court 

erred in taking judicial notice of the civil protection order entered against her in 

another case. The magistrate found that, on September 23, 2011, Jack had returned 

to the marital home to get some of his belongings and that Scarlett had threatened to 

kill him while brandishing a knife. The magistrate then found that this incident had 

led to a civil protection order against Scarlett. 

{¶24} The civil protection order was not issued in conjunction with this case, 

nor was it admitted into evidence. Thus, it appears that the magistrate took judicial 

notice of the proceedings in another case, which he or she is not permitted to do. 

See, e.g., Helfrich v. Madison, 5th Dist. Licking No. 11 CA 26, 2012-Ohio-551, ¶ 41. 

Nevertheless, we determine that the error did not affect Scarlett’s substantial rights. 

See Civ.R. 61. Multiple references were made on the record with regard to a 

domestic-violence case and to a civil protection order issued against Scarlett. The 
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record belies any assertion that the trial court was affected by the civil protection 

order when dividing property or calculating spousal support. Therefore, we overrule 

Scarlett’s fifth assignment of error. 

Conclusion 

{¶25} Because we overrule Scarlett’s assignments of error, the judgment of 

the trial court is affirmed. 

Judgment affirmed. 

DINKELACKER, P.J., and PIPER, J., concur. 

ROBIN PIPER, J., of the Twelfth Appellate District, sitting by assignment.

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.