[Cite as Simpson v. Simpson, 2013-Ohio-2301.]

COURT OF APPEALS 

 MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ADAM C. SIMPSON : JUDGES: 

 : 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellee : Hon. W. Scott Gwin, J. 

 : Hon. John W. Wise, J. 

-vs- : 

 : Case No. 12CA0010 

JO A. SIMPSON : 

 : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of 

Common Pleas, Domestic Relations 

Division, Case No. 2009 DR 0411 

 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: May 30, 2013 

APPEARANCES: 

For Appellant: For Appellee: 

 

TOM C. ELKIN W. MARK ADAMS 

P.O. Box 189 127 North Main Street 

Mt. Gilead, OH 43338 Mt. Gilead, OH 43338 

 
[Cite as Simpson v. Simpson, 2013-Ohio-2301.]

Delaney, P.J. 

{¶1} Defendant-Appellant Jo A. Simpson (“Wife”) appeals from the May 31, 

2012 Journal Entry of Judgment (Decision on Objections to Magistrate’s Decision) of 

the Morrow County Court of Common Pleas, Domestic Relations Division. PlaintiffAppellee Adam Simpson (“Husband”) did not file a brief in the instant appeal. 

FACTS AND PROCEDURAL HISTORY 

{¶2} The following facts are adduced from testimony of Husband, Wife, and a 

rebuttal witness at the final hearing before the trial court. 

{¶3} Husband and Wife were married on October 30, 2006 in Sarasota, FL. 

No children were born of the marriage. Husband filed a Complaint for Divorce on 

September 15, 2009. 

{¶4} Prior to the marriage, Husband lived primarily in Ohio and Wife lived 

primarily in Florida. The marital home at 6949 County Road 201, Centerburg, Morrow 

County is a pre-marital asset in which Husband has resided for over 20 years. The 

home is mortgaged for over $185,000, which Husband testified is more than the home 

is worth. 

{¶5} Wife’s home located at 1646 Oak View Drive, Sarasota, FL is a premarital asset of Wife. Upon their marriage, Wife lived with Husband in Ohio for seven 

months, after which the couple went back and forth between the Ohio residence and 

the Florida residence. 

Parties’ Incomes, Expenses, and Earning Capabilities 

{¶6} Both parties are disabled. Husband worked as a licensed carpenter until 

he suffered a back injury in 1997 which left him disabled; his income consists of Social 
Morrow County, Case No. 12CA0010 3 

Security disability which totals approximately $52,000 per year. Wife is an interior 

designer by profession; her employment has included modeling, selling items on 

Ebay, and providing continuing education for interior designers. Wife testified she was 

last employed in 2008. Wife’s tax returns for the years 2007, 2008, and 2009 indicate 

she earned $8306, $12,381, and $861, respectively. In 2010, Wife had no income. 

She testified she maintains one professional license enabling her to provide continuing 

education but has not renewed her interior designer license. 

{¶7} Wife testified that she has a number of health issues. She was 

diagnosed with fibromyalgia and chronic fatigue syndrome in 2003. She was in 

remission when she met Husband but has since had numerous operations beginning 

in 2009. Wife was found to be disabled in May, 2011 and receives Social Security in 

the amount of $1041 per month. Wife testified that she spends $3468.16 per month 

on prescription medications. 

{¶8} Pursuant to the trial court’s temporary order, Husband paid Wife $300.00 

in temporary spousal support for 24 months, totaling $7,200.00. Wife testified she has 

no source of income other than Social Security, the temporary spousal support from 

Husband, and some income from Ebay sales. 

{¶9} The couple largely kept their finances separate during the marriage. 

They maintained separate bank accounts, had no joint credit accounts, and purchased 

their own groceries. Husband testified that he liquidated an account at Landmark 

Bank which had contained a balance of $965.55. Husband testified he made all 

deposits to this account. 
Morrow County, Case No. 12CA0010 4 

{¶10} Wife has an IRA valued at $131,000 which Husband agrees is her 

separate property. Husband has no retirement accounts. 

{¶11} Husband has no savings account and testified he had $268 in a checking 

account. His income goes toward bills and he testified he lives “paycheck to 

paycheck.” 

Vehicles 

{¶12} Husband owns a 1989 truck and a 1977 Corvette which Wife agreed are 

his separate property. During the marriage Husband drove a 2003 Ford Explorer. 

After the separation, Husband financed a 2010 Chevy Malibu and then a 2009 Dodge 

Challenger. Husband owned a 2004 Harley Davidson motorcycle which he financed 

for $13,000 and sold for $3000. 

{¶13} Wife drove a BMW prior to the marriage which she paid off during the 

marriage. She also owns a Mercedes Benz and a Yamaha Roadster motorcycle. 

Husband agrees those vehicle are Wife’s separate property. 

{¶14} In 2008 the parties bought a 1975 Winnebago together for $500. 

Husband testified the vehicle has been driven once, has a leaky roof, and is worth 

around $500. 

Other Real Property 

{¶15} Wife owns real property in Maine. Some evidence was adduced to 

establish Wife received $67,000 from civil litigation involving theft of timber from the 

Maine property, although Wife contended she did not receive any such funds. 

Husband does not seek any proceeds from the recovery. 
Morrow County, Case No. 12CA0010 5 

{¶16} Husband owns a parcel of real property jointly with his father. The land 

was purchased on December 12, 1996 and is valued at approximately $30,000. At the 

time of the marriage, Husband owed $5,164 on the parcel and paid $118.00 per month 

toward the mortgage on the property, eventually paying it off. Husband made the 

payments from his own funds. 

{¶17} A hearing was held on the divorce action on October 7, 2011, and the 

magistrate’s decision was issued on November 8, 2011. Wife filed objections to the 

magistrate’s decision. On May 31, 2012, the trial court filed its journal entry of 

judgment adopting the magistrate’s decision with modifications. It is from this entry 

Wife now appeals. 

{¶18} Wife raises four Assignments of Error: 

{¶19} “I. THE COURT ABUSED ITS DISCRETION BY FINDING THAT 

THERE WAS A DE FACTO TERMINATION OF THE MARRIAGE AS OF 

SEPTEMBER 15, 2009.” 

{¶20} “II. THE COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT 

FAILED TO AWARD APPELLANT SPOUSAL SUPPORT.” 

{¶21} “III. THE COURT ABUSED ITS DISCRETION WHEN IT HELD THAT 

THE APPELLANT WAS NOT ENTITLED TO AN AWARD OF ATTORNEY FEES.” 

{¶22} “IV. THE COURT ABUSED ITS DISCRETION WHEN IT HELD THAT 

THE APPELLANT WAS NOT ENTITLED TO A MONETARY AWARD AGAINST THE 

APPELLEE FOR MARITAL REAL ESTATE AND FOR HER SEPARATE PROPERTY 

INVESTED INTO THE MARITAL REAL ESTATE.” 
Morrow County, Case No. 12CA0010 6 

I. 

{¶23} In her first assignment of error, Wife argues the trial court abused its 

discretion in finding a de facto termination of the marriage as of September 15,1 2009, 

arguing instead the court should have used the final hearing date of October 7, 2011 

as the date of termination of the marriage. We disagree. 

{¶24} R.C. 3105.171(A)(2) provides that, except when the court determines 

that it would be inequitable, the date of the final hearing is the date of termination of 

the marriage. Giltz v. Giltz, 5th Dist. No. 2011CA00173, 2012-Ohio-1727, ¶ 31, citing 

Combs v. Combs, 5th Dist. No. 2008CA00169, 2009-Ohio-1683, ¶ 21. As we have 

previously found, R.C. 3105.171(A)(2) “creates a statutory presumption that the proper 

date for the termination of a marriage is the date of the final divorce hearing.” Giltz, 

supra, 2012-Ohio-1727, ¶ 31, citing Bowen v. Bowen, 132 Ohio App.3d 616, 630, 725 

N.E.2d 1165 (9th Dist.1999). 

{¶25} However, the trial court has broad discretion in choosing the appropriate 

marriage termination date and this decision cannot be disturbed on appeal absent an 

abuse of discretion. See Berish v. Berish, 69 Ohio St.2d 318, 321, 432 N.E.2d 183 

(1982). R.C. 3105.171(A)(2) establishes an alternative date for determining the end of 

the marriage: 

 

1 The trial court’s judgment entry states in pertinent part, “However, the Court finds that 

the duration of the marriage should be from the date of the marriage to the date the 

Divorce Complaint was filed. Therefore, the Court hereby adopts the Magistrate’s 

Decision as modified which is restated hereafter and is now the decision of this Court, 

as follows: ****. 2. The duration of the marriage is from October 26, 2006 to 

September 16 (sic), 2009.” The divorce complaint was filed on September 15, 2009, 

and Wife references September 15, 2009 throughout her brief, so we find the trial 

court intended September 15, 2009 to be the termination date of the marriage and 

September 16 is a typographical error. 
Morrow County, Case No. 12CA0010 7 

(A) As used in this section: 

****. 

(2) “During the marriage” means whichever of the following is 

applicable: 

(a) Except as provided in division (A)(2)(b) of this section, the 

period of time from the date of the marriage through the date of 

the final hearing in an action for divorce or in an action for legal 

separation; 

(b) If the court determines that the use of either or both of the 

dates specified in division (A)(2)(a) of this section would be 

inequitable, the court may select dates that it considers equitable 

in determining marital property. If the court selects dates that it 

considers equitable in determining marital property, “during the 

marriage” means the period of time between those dates selected 

and specified by the court. 

{¶26} Courts should be reluctant to use a de facto termination of marriage date 

unless the evidence clearly and bilaterally shows that it is appropriate based on the 

totality of the circumstances. Boggs v. Boggs, 5th Dist. No. 07 CAF 02 0014, 2008-

Ohio-1411, ¶ 66 citing Day v. Day, 40 Ohio App.3d 155, 158, 532 N.E.2d 201(10th 

Dist.1988); Stafinsky v. Stafinsky, 116 Ohio App.3d 781, 689 N.E.2d 112 (11th 

Dist.1996); Schnieder v. Schnieder, 110 Ohio App.3d 487, 674 N.E.2d 796 (11th 

Dist.1996). Generally, the trial court has broad discretion in choosing the appropriate 

marriage termination date and this decision cannot be disturbed on appeal absent an 
Morrow County, Case No. 12CA0010 8 

abuse of discretion. Boggs, supra citing Berish v. Berish, supra. “The abuse of 

discretion standard is based upon the principle that a trial court must have the 

discretion in domestic relations matters to do what is equitable given the facts and 

circumstances of each case.” Jefferies v. Stanzak, 135 Ohio App.3d 176, 179, 733 

N.E.2d 305 (12th Dist.1999) citing Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 

1028 (1989). Therefore, in order to find an abuse of discretion there must be a 

determination that the trial court's judgment is “unreasonable, arbitrary, or 

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

(1983). 

{¶27} In the instant case, the trial court determined that the totality of the 

circumstances necessitated a de facto termination date of September 15, 2009, the 

date the divorce complaint was filed.2

 The parties lived completely separate and apart 

after January 13, 2009, which was the date of termination used by the magistrate then 

modified by the trial court. Wife’s argument in support of extending the marriage to a 

five-year duration is based upon her reliance upon Husband’s VA benefits through 

October 7, 2011. She speculates the VA may attempt to recover any overpayments 

made on her behalf until October 7, 2011. The trial court found Wife was covered 

under Medicare Part B. We cannot find, though, under the totality of the 

circumstances, that Wife’s reliance upon Husband’s veteran’s benefits constituted an 

“ongoing joint interest” such as that described in Boggs, supra, 2008-Ohio-1411. In 

that case, we noted the parties had ongoing joint interests in one party’s need for 

medical coverage and a mutual interest in maintaining the marital residence until a 

 

2 See Footnote 1, supra.
Morrow County, Case No. 12CA0010 9 

foreclosure sale. Id. Any mutual circumstances existing here are tenuous at best and 

would not lead us to conclude the trial court’s decision was unreasonable, arbitrary, or 

unconscionable. 

{¶28} Upon our review of the record, we cannot find the trial court abused its 

discretion in determining the de facto termination date of the marriage was September 

15, 2009. Wife's first Assignment of Error is overruled 

II. 

{¶29} In her second assignment of error, Wife argues the trial court abused its 

discretion in not awarding spousal support on her behalf. We disagree. 

{¶30} A trial court's decision concerning spousal support may be altered only if 

it constitutes an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 

N.E.2d 83 (1990). 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. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

R.C. 3105.18(C)(1)(a) through (n) sets forth the factors a trial court is to consider in 

determining whether spousal support is appropriate and reasonable, and in 

determining the nature, amount, terms of payment, and duration of spousal support: 

(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: 
Morrow County, Case No. 12CA0010 10 

(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 
Morrow County, Case No. 12CA0010 11 

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. 

{¶31} The trial court adopted the findings of fact and decision of the magistrate 

relative to spousal support, which lists and evaluates each statutory factor. Ultimately 

the parties each bear their share of relative financial advantages and disadvantages. 

Husband has greater income than Wife; both parties are disabled and receive social 

security disability; the parties are in their fifties and each have chronic health 

problems; Wife has an IRA which is separate property and Husband has no retirement 

benefits; the couple lived together for less than three years yet the litigation has been 

pending for two years; during the marriage the parties’ credit, vehicles, homes, and 

grocery spending were kept separate as they maintained a “relatively comfortable” 

standard of living within their means; Wife is an interior decorator and Husband is a 

laborer; and finally, upon termination of the marriage Wife will have significant 

economic advantages that Husband will not, despite his higher income. Husband has 

negative equity in his home, fewer assets than Wife, and “credibly testified that he 

lives paycheck to paycheck.” Wife, on the other hand, owns her home, car, and 
Morrow County, Case No. 12CA0010 12 

motorcycle and has over $100,000 in an IRA account. The remaining statutory factors 

were inapplicable or were not raised by the parties. 

{¶32} We find the trial court did not abuse its discretion in failing to award 

spousal support to Wife. 

{¶33} Wife’s second assignment of error is overruled. 

III. 

{¶34} In her third assignment of error, Wife argues the trial court abused its 

discretion in finding she is not entitled to an award of attorney fees. We disagree. 

{¶35} An award of attorney fees in a domestic relations action is within the 

sound discretion of the trial court and will not be reversed on appeal absent an abuse 

of discretion. Wildman v. Wildman, 5th Dist. No. 12-CA-21, 2012-Ohio-5090, ¶ 79, 

citing Howell v. Howell, 167 Ohio App.3d 431, 2006–Ohio–3038, 855 N.E.2d 533 (2nd 

Dist.2006). R.C. 3105.73(A) governs the award of attorney fees and litigation 

expenses in domestic relations cases and provides: 

In an action for divorce * * * or an appeal of that action, a court 

may award all or part of the reasonable attorney's fees and 

litigation expenses to either party if the court finds the award 

equitable. In determining whether an award is equitable, the court 

may consider the parties' marital assets and income, any award of 

temporary spousal support, the conduct of the parties, and any 

other relevant factors the court deems appropriate. 

{¶36} In its judgment entry decree of divorce filed February 24, 2012, 

the trial court ordered that each party is responsible for his or her own attorney 
Morrow County, Case No. 12CA0010 13 

fees and the costs of litigation. We have reviewed the record, weighed R.C. 

3105.73 and find this order equitable having specifically considered the income 

and assets of the parties as discussed supra, and the parties’ conduct. 

{¶37} In its findings of fact and conclusions of law, the trial court adopted the 

Magistrate’s decision with regard to attorney fees and costs of litigation. We find the 

following reasoning cited by the magistrate to be persuasive: 

O.R.C. Section 3105.73(A) expressly lists the conduct of the 

parties as one of the factors the court may consider in determining 

whether an award of attorney fees in (sic) equitable. In this case, 

[Wife’s] own actions turned what should have been a fairly simple 

divorce based upon slightly more than two years of living with 

[Husband] into a confused attempt to make [Husband] pay for 

various decorative alterations to his home, her living expenses in 

both Florida and Mount Vernon throughout the proceedings and 

litigation costs. It was [Wife’s] decision to stay in Mount Vernon 

after the case was continued, causing her to have additional 

expenses. Although she claims that the continuance was the 

reason, she also testified that she wanted to escape Florida’s 

summertime heat. The Court finds that each party should bear 

their own expenses and attorney’s fees in this case. 

{¶38} In light of the entire record, we find the trial court did not abuse its 

discretion in ordering each party to pay their own attorney fees and costs of litigation, 
Morrow County, Case No. 12CA0010 14 

and the decision is supported by competent, credible evidence. Wife’s third 

assignment of error is overruled. 

IV. 

{¶39} In her fourth assignment of error, Wife argues summarily that the trial 

court abused its discretion in finding she was not entitled to a monetary award against 

Husband for “marital real estate” and for her “separate property invested into the 

marital real estate.” We disagree. 

{¶40} R.C. 3105.171(B) requires the trial court to determine what constitutes 

marital property and what constitutes separate property. “In either case, upon making 

such a determination, the court shall divide the marital and separate property equitably 

between the spouses * * *.” R.C. 3105.171(B). The Revised Code further requires that 

a trial court divide the marital property equally unless an equal division would be 

inequitable, in which case “the court shall not divide the marital property equally but 

instead shall divide it between the spouses in the manner the court determines 

equitable.” R.C. 3105.171(C)(1). The court may make a distributive award to facilitate, 

effectuate, or supplement a division of marital property. R.C. 3105.171(E)(1). 

{¶41} Trial courts have “broad discretion to determine what property division is 

equitable in a divorce proceeding.” Cherry v. Cherry, 66 Ohio St.2d 348, 421, 421 

N.E.2d 1293 (1981), paragraph two of the syllabus. A trial court's decision allocating 

marital property and debt will not be reversed absent an abuse of discretion. “Abuse of 

discretion” connotes more than an error of law or judgment; it implies that the court's 
Morrow County, Case No. 12CA0010 15 

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶42} We review a trial court's classification of property as marital or separate 

under a manifest weight of the evidence standard and we will affirm if some 

competent, credible evidence supports the classification. Thomas v. Thomas, 5th Dist. 

No. 11 CAF090079, 2012–Ohio–2893, ¶ 31, 974 N.E.2d 679 citing Taub v. Taub, 10th 

Dist. No. 08AP750, 2009–Ohio–2762, ¶ 15. Valuing property involves factual inquiries 

and also requires an appellate court to apply a manifest weight of evidence standard 

of review. Wright v. Wright, 4th Dist. No. 94CA02, 1994 WL 649271 (November 10, 

1994). An appellate court will not reverse a trial court's valuation if it is supported by 

some competent, credible evidence. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 

77, 461 N.E.2d 1273 (1984). 

{¶43} The marital real estate reference by Wife is land owned jointly by 

Husband and his father which was purchased on December 12, 1996, before the 

parties were married. At the time of their marriage, Husband owed approximately 

$5,164.00 on the parcel, which he paid off in monthly increments of $118. Husband 

testified he made these payments entirely from his own funds. Wife argues in her 

brief that “she had invested $10,290.97 into the [Husband’s] real estate” but we are 

unable to find any evidence in the record supporting Wife’s summary argument that 

the parcel was marital property, or that she made any investment therein. 

{¶44} The trial court’s decision does not constitute an abuse of discretion. 

Appellant’s fourth assignment of error is overruled. 
Morrow County, Case No. 12CA0010 16 

CONCLUSION 

{¶45} Having overruled Wife’s four assignments of error, the judgment of the 

Morrow County Court of Common Pleas is hereby affirmed. 

By: Delaney, P.J. 

Gwin, J. and 

Wise, J. concur. 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. JOHN W. WISE 

PAD:kgb 

 
[Cite as Simpson v. Simpson, 2013-Ohio-2301.]

IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ADAM C. SIMPSON : 

 : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JO A. SIMPSON : 

 : 

 : Case No. 12CA0010 

 Defendant-Appellant : 

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Morrow County Court of Common Pleas is affirmed. Costs assessed to Appellant. 

 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. JOHN W. WISE