[Cite as Nobles v. Nobles, 2024-Ohio-2750.]

COURT OF APPEALS

PERRY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

TONYA NOBLES

Plaintiff-Appellee

-vsSTEVEN NOBLES

Defendant-Appellant

JUDGES:

Hon. Patricia A. Delaney, P.J.

Hon. William B. Hoffman, J.

Hon. John W. Wise, J. 

Case No. 2023 CA 00005

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Domestic Relations Division, Case 

No. 21 DV 00101

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 18, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

VALERIE K. WIGGINS JASON DONNELL

107 South Main Street LAW OFFICES of JASON M.

New Lexington, Ohio 43764 DONNELL, LLC

302 East Main Street

Lancaster, Ohio 43130
Perry County, Case No. 2023 CA 00005 2

Wise, J.

{¶1} Appellant-Husband, Steven T. Nobles, appeals the judgment of the Perry 

County Court of Common Pleas, Domestic Relations Division, dividing the assets 

acquired during his marriage to Appellee-Wife, Tanya Nobles, upon its termination. For 

the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

Summary of claims

{¶2} Appellant-Husband and Appellee-Wife were married on May 22, 2004 in 

Fairfield County, Ohio. One child was born of the marriage who graduated from high 

school in May 2023. Another child, husband’s biological child who was adopted by wife, 

was an adult at the time the marriage terminated. Child Support is not an issue. 

{¶3} The sole issue in this case is the husband’s claims that the trial court abused 

its discretion in dividing the assets obtained during the marriage. Specifically, husband 

claims the trial court did not give due regard to the contribution he made to the purchase 

of the real estate obtained during the marriage by way of his personal injury settlement. 

Husband claims that the trial court erred in not finding that the equity in the marital 

residence, the down payment for the home, and an annuity and cash management fund 

were his separate property because the funds came from a personal injury settlement he 

received for severe injuries he sustained in 2005 during the marriage.

{¶4} On April 30, 2021, wife filed a divorce complaint in the Perry County 

Common Pleas Court, Domestic Relations Division, on the grounds of incompatibility. At 

the time, husband was incarcerated after pleading guilty to cocaine possession, hashish 

possession and aggravated drug possession and sentenced to four and one-half years in 
Perry County, Case No. 2023 CA 00005 3

a state prison. Despite husband’s incarceration, both parties actively participated in the 

divorce proceedings; wife in person and husband through a deposition taken at the prison. 

{¶5} Two major life events occurred during the marriage which are relevant to 

the husband’s claims. 

Husband in catastrophic automobile accident in 2005

{¶6} About a year after their marriage, husband was a passenger in an 

automobile involved in a catastrophic accident which left him seriously injured. At the 

time, he was employed as a construction subcontractor installing vinyl, cement and fiber 

siding. The wife was attending school at the time, training to be a medical assistant. The 

children were one and one-half and four years of age. Husband was in the hospital for 

three to four days and unable to work for about six months after the accident. (Noble 

Dep. at 53).

{¶7} Husband was released to the care of his wife. It was the opinion of his 

personal injury attorney that he was released too early because of no health insurance 

coverage, and his wife provided nursing care normally provided in a hospital and/or a 

rehabilitation center.

{¶8} As a result of a claim made by husband and wife against the tortfeasor, a 

settlement was reached which resulted in a net payout to the parties of $945,389.22 in 

the Spring of 2007. Prior to final settlement, the tortfeasor paid the couple $50,000 for 

lost wages of the husband. The parties are in dispute as to whether the final settlement 

check was payable to both parties. However, both agree that the settlement agreement 

and release of claims was signed by both husband and wife and released the tortfeasor 

from further claims by both of them.
Perry County, Case No. 2023 CA 00005 4

{¶9} A settlement statement prepared at the time of the settlement contained no 

calculation of what percentage of the settlement funds belonged to the husband and what 

percentage of the settlement belonged to the wife for her consortium claim. The personal 

injury attorney who represented the parties was deposed and the parties stipulated to his 

expertise in the matter. He testified that no calculation was made at the time of the 

settlement as to how much represented the wife’s consortium claim. He opined, however, 

that eighty to eighty-five percent was consigned to the husband for his significant injuries 

and the remainder to husband’s lost income and wife’s consortium claim. “The component 

for lost income and loss of consortium would have made up the other 15-20% of the 

settlement.” Later, he stated: “Under no circumstances is Mr. Nobles’ non-marital portion 

of the settlement less than 75% of the total settlement amount.” (Affidavit to Rourke Dep. 

Exh. C). “Five to ten percent of this was likely for the consortium claim. That’s not 

underselling Tonya a bit. I thought she was a very good client to work with. She was 

clearly very involved in the care and involved in the - this case and with her husband.” 

(Rourke Dep. at 42). “She had to be basically his nurse for some extended period of 

time.” (Rourke Dep. at 48). The personal injury attorney also outlined the basis of wife’s 

consortium claim. She was the sole caretaker of husband following his release from the 

hospital, and the care of the children was primarily her responsibility

{¶10} This opinion was based on his personal experience and education but was 

more of an “art” than “science”. Rourke Dep. at 40. “I can tell you what the exact 

settlement amount is and what - the breakdown that we went through as far as what was 

paid out. But giving you an exact number that this settlement represented for 

noneconomic or economic or consortium, I can’t do that.” (Rourke Dep. at 72). In a 
Perry County, Case No. 2023 CA 00005 5

demand letter submitted to the tortfeasor’s attorney, the economic loss suffered by 

husband and his family was estimated to be $1,590,719.00. “As you will see from 

reviewing the report, Dr. Palfin estimates the economic loss suffered by Mr. Nobles and 

his family to be $1,590,719.00.” (Exh. 1 to Rourke Dep.).

{¶11} Husband went back to work approximately six months after his accident and 

worked as a contractor installing siding and gutters for a few months. Then he started a 

business in the winter of 2008 until approximately 2013 making less than $30,000 per 

year. (Noble Dep. at 54). He then worked at a hospital as a medical waste technician for 

about a year. 

{¶12} Husband then stayed home as a househusband trafficking narcotics. “...I 

went home and I sat home and took care of the kids and was basically a househusband,

and I trafficked the narcotics for a period of time.” (Nobles Dep. at 57). Meanwhile, wife 

continued her employment in the medical field. 

Proceeds of personal injury settlement held jointly

{¶13} Seeking the help of a financial planner, the parties used the settlement 

check to fund two IRA accounts, one for each of them, a cash management account held 

jointly, and a Lincoln National annuity held jointly which paid approximately $1,200 per 

month to the parties. Husband also used some funds to start a construction business, 

buy a truck, and the parties took several expensive vacations and paid incurred marital 

debts.

{¶14} In 2007, the parties built a marital residence in Thornwood, Ohio. Husband 

testified the residence and lot cost $365,000. $54,700.00 of the personal injury settlement 

was used for a down payment for the lot, and the remainder of the purchase price was 
Perry County, Case No. 2023 CA 00005 6

funded by a mortgage in the amount of $180,789.00. The mortgage was later refinanced 

in 2013 for $169,895.00. The majority of the monthly mortgage payment was taken from 

the Lincoln Financial annuity the parties funded with the settlement proceeds. While 

husband was incarcerated with no income, wife’s salary supplemented the mortgage 

payment.

{¶15} At the time of the termination of the marriage, the value of the marital 

residence was $365,000.00 as agreed by the parties with a mortgage balance of 

$141,369.00. The equity in the marital home was determined to be $223,631.00.

Husband incarcerated in 2019

{¶16} In 2014, husband began selling and using drugs, including cocaine and 

marijuana. (Nobles’ Dep. at 73). During the period he was selling drugs, he travelled a lot 

and pleaded the Fifth Amendment when asked where he travelled and whether it included 

travel out of the country. Wife testified he took several trips to music festivals and out of 

the country trips to the Dominion Republic.

{¶17} In May, 2019, he pleaded guilty to possession of cocaine, possession of 

hashish and aggravated possession of drugs. He was sentenced to a total prison term 

of four-and-one-half years on May 15, 2019. In addition to the prison term as a part of his 

sentence, he was ordered to pay $17,500 in fines and court costs. His expected release 

date was May 10, 2023, the same month and year his daughter graduated from high 

school. (Nobles Dep. at 6). 

{¶18} During his incarceration, his wife continued to reside in the marital home, 

work in the medical field, and provide care and support for the children of the marriage. 

Their teenage daughter was in high school and involved in various sports activities, 
Perry County, Case No. 2023 CA 00005 7

including gymnastics. The Lincoln Fund monthly annuity payment continued to fund the 

majority of the house payment, and the wife’s income was used to support the household. 

{¶19} For several years, wife paid $25.00 per month under a payment plan for the 

husband’s fine and court costs and deposited moneys in husband’s prison commissary 

account for basics of $200.00 per month.

Findings of the trial court

{¶20} On October 3, 2022, a divorce hearing was held before a magistrate of the 

Perry County Domestic Relations Court. The wife was present with counsel, and 

husband’s counsel was present. The deposition of the husband taken at the London 

Correctional Institution was entered into evidence. The deposition of the personal injury 

attorney was entered as an exhibit, as well as various documents pertaining to the parties 

personal and real property. The wife’s testimony was recorded and is part of the record.

{¶21} At the conclusion of the hearing, the magistrate requested trial memoranda 

from the parties. Husband’s memoranda attached a letter from a forensic real estate 

appraiser that was not entered as an exhibit and not subject to cross examination. The 

letter was not considered by either the magistrate or the trial court.

{¶22} On October 31, 2022, the magistrate made her decision, which included 

findings of fact and conclusions of law. Both parties challenged the decision of the 

magistrate, and the trial court filed its independent findings after reviewing the evidence 

and law on September 5, 2023.

{¶23} Relevant here, the trial court found that the husband failed to meet his 

burden to show what portion of the settlement proceeds were separate property. “The 
Perry County, Case No. 2023 CA 00005 8

settlement proceeds were commingled and are, therefore, considered marital property.” 

Judgment Entry, Sept. 5, 2023 at 7.

{¶24} The trial court awarded the residence to the wife free and clear of any claims 

of the husband, including the $223,630.86 equity in the home. Wife was ordered to pay 

the outstanding mortgage.

{¶25} The trial court awarded the Lincoln joint annuity to the husband of 

$372,533.42, free and clear of any claims of the wife. Judgment Entry, Sept. 5, 2023 at 

7.

{¶26} The trial court further equally divided the parties’ retirement accounts. 

Judgment Entry, Sept. 5, 2023 at 7. 

{¶27} Recognizing that the division of marital property was not equal - husband 

received $148,902.56 more than wife - the trial court made two findings. First, it found 

that the settlement money was as a result of serious injuries the husband sustained which 

likely affected his ability to earn future substantial earnings. In contrast, the wife had the 

ability to continue to earn wages. Second, the trial court found that dividing the jointly held 

annuity would result in adverse consequences to the asset. “Therefore, the division of the 

marital residence and the annuity is equitable.” Judgment Entry, Sept. 5, 2023 at 8.

{¶28} With regard to the debts, the trial court sustained the magistrate’s finding 

that husband was responsible for his court costs and fines, while the wife was responsible 

for her student loans. With regard to the debt for overpayment of Social Security, the trial 

court ordered the parties to each be responsible for one-half of the debt to Social Security. 

{¶29} “The Defendant owes a debt to the Social Security Administration. He did 

not qualify for social security from 2007 until 2012 but received social security payments. 
Perry County, Case No. 2023 CA 00005 9

He is required to pay the money back. The parties’ children also received social security 

checks under Mr. Nobles’ account and were overpaid. The Plaintiff testified the debt was 

approximately $30,000.00. The parties shall each be responsible for one-half of this 

debt.”

{¶30} Judgment Entry, Sept. 5, 2023 at 3, 8; Magistrate’s Decision, Oct. 31, 2022 

at 26. 

{¶31} The husband filed a timely appeal arguing five assignments of error:

{¶32} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED 

TO FOLLOW O.R.C. 3105.71(A)(6)(a)(vi) IN AWARDING APPELLANT’S PERSONAL 

INJURY SETTLEMENT AS NON-MARITAL PROPERTY.

{¶33} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED 

TO FIND APPELLANT TRACED THE NON-MARITAL COMPONENTS OF THE 

PERSONAL INJURY SETTLEMENT.

{¶34} “III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED 

TO RULE THERE IS NON-MARITAL EQUITY IN THE RESIDENCE LOCATED AT 12094 

BEECHTREE SOUTH, THORNVILLE, OHIO 43076.

{¶35} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED 

TO FOLLOW CASE LAW STATING IT IS APPELLEE’S BURDEN TO SHOW WHICH 

COMPONENTS OF THE RESIDENCE ARE MARITAL AND THEREFORE SUBJECT TO 

EQUAL DIVISION.

{¶36} “V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED 

TO RULE APPELLANT’S FINES AND COURT COSTS ARE A MARITAL DEBT 

SUBJECT TO EQUAL DIVISION PURSUANT TO O.R.C. 3105.171.
Perry County, Case No. 2023 CA 00005 10

LAW AND ANALYSIS

Standard of Review

{¶37} A domestic relations court’s division of property in a divorce proceeding is 

reviewed under an abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348, 

355 (1981); Cockerham v. Cockerham, 2017-Ohio-5563, ¶ 21 (5th Dist.). In order to find 

an abuse of discretion, we must determine that the trial court’s decision was 

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. 

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). (“It is ill-advised and impossible for 

any court to set down a flat rule concerning property division upon divorce” citing Cherry, 

supra, 66 Ohio St.2d at 355). Put another way, when an issue on review is governed by 

the discretion of the trial court, the mere fact that the reviewing court would have reached 

a different result is not enough without more to find error. State v. Beechler, 2010-Ohio1900, ¶ 67 (2nd Dist). 

{¶38} This discretion extends to an unequal division of property if equities require 

it. Cox v. Cox, 1995 WL 399419, (12th Dist.). It also extends to a trial court’s decision on 

what is presently separate and marital property. Cockerman, 2017-Ohio-5563, at ¶ 22, 

quoting Valentine v. Valentine, 1996 WL 72608, (5th Dist.).

{¶39} As husband’s assigned errors numbers one through four relate to the trial 

court’s division of marital property, this Court reviews the trial court’s property division “as 

a whole in determining whether it has achieved an equitable and fair division of marital 

assets.” Victor v. Kaplan, 2020-Ohio-3116, ¶ 26 (8th Dist.).
Perry County, Case No. 2023 CA 00005 11

I, II, III, IV Personal Injury Settlement

{¶40} In Assignments I, II, III and IV, Appellant-Husband argues that the trial court 

abused its discretion when it did not award him the proceeds of the personal injury 

settlement the parties received in 2005 as separate property, free from the claims of the 

wife. Husband claims he successfully traced the settlement funds to the assets held by 

the parties at the time the marriage terminated. Because they arise from the same 

decision of the trial court, we will consider these assignments together. 

{¶41} Husband argues that there are two assets acquired during marriage that 

should have been treated as his separate property: one, the Lincoln Financial Group 

Annuity in the amount of $372,000; and two, the “non-marital” equity in the marital 

residence, in addition to the $54,900 down payment. It is unclear to this Court how much 

of the equity in the marital residence husband is seeking, but it is clearly more than onehalf of the equity 1

{¶42} Since the trial court awarded him the entire amount in the Lincoln Annuity, 

his argument centers around the marital residence. Husband argues that because his 

personal injury award was used to purchase the residence and the annuity was used to 

make mortgage payments, he has proven by a preponderance of the evidence that this 

property is separate non-marital property attributed to him.

1 The forensic expert who submitted a letter attached to husband’s trial brief claimed that 

82% or $262,232.72 of the marital residence was non-marital and should be awarded to 

husband plus one-half of the marital equity for a total of $273,176.22 for his portion of the 

marital residence. However, the letter report was not entered as an exhibit and not subject 

to cross-examination. The trial court did not consider it, and appellant has not made the 

trial court’s decision rejecting the forensic report an assignment of error.
Perry County, Case No. 2023 CA 00005 12

Burden on appellant to trace settlement proceeds

{¶43} R.C. 3105.171(A)(6) sets forth six assets accorded separate property status 

upon a showing that they were not merged into marital property. R.C. 

3105.171(A)(6)(a)(vi) provides that marital property does not include “[c]ompensation to 

a spouse for the spouse’s personal injury, except for loss of marital earnings and 

compensation for expenses paid from marital assets.”2

{¶44} The party seeking to have a particular asset classified as separate property 

has the burden of proof, by a preponderance of the evidence, to trace the asset to 

separate property. Nelson v. Nelson, 2022-Ohio-658, ¶ 50 (11th Dist.). 

{¶45} Where a personal injury settlement is made payable in one check to both 

husband and wife, the parties commingle their separate property. 

{¶46} In Modon v. Modon, 115 Ohio App.3d 810, 816 (9th Dist., 1996), appeal not 

allowed 78 Ohio St.3d 1442 (1997) a case cited by the trial court in its Entry, husband 

was seriously injured in a plane crash and was hospitalized for two months, followed by 

two months in a rehabilitation facility. He returned to work but worked only a year before 

retiring.

{¶47} Husband and wife brought a personal injury action against the tortfeasors 

and settled it for a total of $600,000 before trial. Both husband and wife were parties to 

the lawsuit; the wife for loss of consortium. The parties agreed to receive a check payable 

to them jointly and invested the proceeds into assets held jointly by the parties. 

2 The statute was amended on March 22, 2023 but did not change the language cited 

above.
Perry County, Case No. 2023 CA 00005 13

{¶48} The wife filed for divorce some three years later. At the contested divorce 

trial, the husband argued that he could trace all but approximately $70,000 of the 

settlement proceeds to the personal injury action and thus under the statute, the assets 

were his separate property. In support of his argument, he relied on his own testimony 

and the testimony of a personal injury expert witness attorney. 

{¶49} The expert witness attorney testified that the personal injury settlement 

would have consisted of five parts: (1) compensation for permanent injuries; (2) 

compensation for pain and suffering; (3) compensation for medical expenses; (4) 

compensation for lost earnings; and (5) compensation for wife’s loss of consortium. Id. at 

813. The expert witness attorney valued wife’s consortium claim at no more than three 

percent of the total settlement package.

{¶50} The trial court disagreed with the husband’s analysis and determined that 

the assets which the husband traced to the settlement proceeds were not his separate 

property but rather marital property. Id. at 814. 

{¶51} Husband appealed to the 9th District Court of Appeals. The Court affirmed 

the decision of the trial court. First, it found that commingling of the separate property with 

marital assets did not destroy the identity of the separate property as long as the separate 

property can be traced. Id. at 815. Second, it held that the burden of tracing separate 

property is on the party claiming its existence.

{¶52} In the end, the appellate court concluded that the trial court did not err in its 

determination that it could not determine “what part of the proceeds were for wages, 

consortium or pain and suffering” was not against the manifest weight of the evidence. 

Id. at 815. “Although Mr. Modon presented evidence tracing more of the settlement 
Perry County, Case No. 2023 CA 00005 14

proceeds into assets still held by the parties at the time of the divorce, that evidence was 

irrelevant because of his failure to adequately trace his separate property into the 

settlement proceeds.” Id. at 816.

{¶53} Similarly, in Campbell v. Campbell, 2014-Ohio-5614 (11th Dist.), husband 

suffered a serious injury at work during the marriage which resulted in loss of a finger. 

He filed a personal injury action against his employer, and husband and wife received a 

settlement check for $414,448.90 payable to them both. There was no breakdown of any 

percentages attributable to wife’s consortium claims, 

{¶54} Some nine years later, husband filed for divorce and argued that he was 

entitled to 90 to 95% of the equity in the marital home because it was funded by his 

personal injury settlement. In support, husband offered the testimony of the personal 

injury attorney. He testified that four to five percent of the personal injury recovered was 

attributable to wife’s loss of services and consortium. Campbell v. Campbell, 2014-Ohio5614 at ¶ 11.

{¶55} The trial court disagreed and found that the proceeds of the personal injury 

settlement were untraceable since the settlement was issued in a single check to both, 

and case law indicated a wide range of percentages attributable to loss of service and 

consortium. On appeal, the 11th District affirmed the decision of the trial court finding that 

husband had failed to trace how much of the check was compensation for his permanent 

injuries, pain and suffering, and medical expenses. It found the testimony of the personal 

injury attorney unconvincing.
Perry County, Case No. 2023 CA 00005 15

. . . The evidence presented only definitively traced a portion of the 

settlement proceeds, and then traced them into a marital home purchased 

and titled in the names of both parties. 

. . .

It was Mr. Campbell’s burden to show what portion of the proceeds

from the personal injury settlement was his separate property, and he failed 

to do so.

{¶56} Campbell v. Campbell, 2014-Ohio-5612, at ¶¶ 27-28. See also Cox v. Cox, 

1999 WL 74573 (12th Dist.) (determining that proceeds of the personal injury settlement 

untraceable, since the settlement was issued in a single check to both parties and used 

to purchase a marital home in the name of both parties); Wheeler v. Wheeler, 2005-Ohio1025, ¶ 17 (6th Dist.) (determining that husband’s personal injury settlement was marital 

property subject to distribution where part of settlement was attributed to lost wages and 

husband contributed nothing to the household for four and one half years after his injury); 

Barrientos v. Barrientos, 2013-Ohio-424, ¶ 21 (3rd Dist.) (determining that personal injury 

settlement awarded to husband for severe injuries sustained prior to marriage was marital 

property where monies were co-mingled and untraceable); c.f Mayer v. Mayer, 2011-

Ohio-1884, ¶ 12 (5th Dist.) (determining that workers’ compensation award was not marital 

property where no evidence offered on what was paid from award for lost earnings or 

compensation for expenses paid by marital funds).

{¶57} So, too, appellant’s reliance on Lust v. Lust, 2002-Ohio-3629, ¶ 19 (3rd Dist.) 

is misplaced. In Lust, appellee-wife was a victim of medical malpractice and as a result 

was legally blind, partially deaf, had two heart valves and both of her legs amputated. As 
Perry County, Case No. 2023 CA 00005 16

a result, she was awarded a substantial unnamed settlement. The trial court awarded 

her the settlement proceeds as separate property. 

{¶58} Appellant-husband appealed arguing he was entitled to a consortium claim. 

Like the case here, the settlement agreement did not dedicate specific funds for his 

consortium, and the trial court expressed doubt that any of the settlement proceeds was 

intended for such a purpose given the extensive debilitating injuries to the wife. 

{¶59} Notably, the appellate court found that reviewing courts will not disturb the 

trial court’s classification of separate and marital property absent a showing of abuse of 

discretion. Lust v. Lust, 2002-Ohio-3629 at ¶ 12.

{¶60} The burden of proof, by a preponderance of the evidence, is upon appellant 

to demonstrate that the parties intended the settlement proceeds to be treated as a 

separate asset belonging to the husband. Preponderance of the evidence is the greater 

weight of the evidence. State v. Miller, 2011-Ohio-952, ¶ 19 (10th District). 

{¶61} As proof, husband offered his own testimony and the testimony of the 

personal injury attorney. We find that the trial court did not abuse its discretion when it 

held husband did not meet his burden to trace the personal injury settlement to his 

separate property.

{¶62} Husband concedes that $111,722.69 of the personal property settlement 

was marital assets - $50,000 lost earnings and $61,722.69 medical bills. He attributes 

no part of the settlement proceeds to the wife’s consortium claim. A claim for loss of 

consortium is separate property. Campbell v. Campbell, 2014-Ohio-5614, ¶ 25 (11th

Dist.). He attributes no part of the settlement to lost wages other than the $50,000 
Perry County, Case No. 2023 CA 00005 17

advance on the final settlement. Loss of wages during the marriage is marital property. 

Williams v. Williams, 2011-Ohio-939, ¶ 12, (8th Dist.).

{¶63} His claim that the personal injury attorney offered irrefutable evidence that 

a significant portion of the personal injury settlement was traced to his non-economic 

damages is misplaced. 

{¶64} The attorney testified that the monies were never separated, and that his 

calculations were not objective but subjective. It is an “art” more than a “science”.

{¶65} He was unable to place a number on the amount of the wife’s claim for 

consortium and the amount awarded as compensation for loss of marital earnings. 

{¶66} While there may be some dispute as to how the check was payable, there 

is no dispute that the settlement agreement and release was signed by both parties and 

released all claims of both parties. The majority of the proceeds were used to benefit the 

marriage and family. $54,000 of it was used for a marital residence owned jointly by the 

parties. A large portion was used to fund a joint cash management account and annuity. 

In short, husband and wife jointly held the majority of the funds as marital property. 

{¶67} The trial court did not err and abuse its discretion in finding that the proceeds 

of the settlement were commingled and used to purchase the marital home and fund other 

joint assets. Husband was not able to trace the funds to his separate property.

Trial Court’s disposition of property as a whole

{¶68} Finally, we consider the trial court’s disposition of the property of the parties 

as a whole. “In reviewing the trial court’s division of property, an appellate court ‘is not 

required to conduct an item-by-item review of a property division.” Winkler v. Thomas, 

2001 WL 81701 *1 (5th Dist.); Beringer v. Beringer, 2014-Ohio-5232, ¶ 49 (5th Dist.) (“[W]e 
Perry County, Case No. 2023 CA 00005 18

have long expressed our reluctance to engage in piecemeal review of individual aspects 

of a property division taken out of the context of the entire award.”) Instead, a reviewing 

court should consider whether the trial court’s disposition of marital property as a whole 

result in a property division which was an abuse of discretion. 

{¶69} R.C. 3105.171(C)(1) provides in pertinent part:

Except as provided in this division or division (E) of this section, the 

division of marital property shall be equal. If an equal division of marital 

property would be inequitable, the court shall not divide the marital property 

equally but instead shall divide it between the spouses in the manner the 

court determines equitable...

{¶70} The trial court recognized the injuries husband sustained in the accident 

rendered an equal division of marital property inequitable. 

{¶71} There is no doubt that husband suffered a serious injury in the automobile 

accident. While he was not able to drive before the accident because of impaired vision, 

he lost completely all sight in his right eye. His injuries impaired his ability for gainful 

employment as recognized by his award of Social Security Disability benefits. The wife 

did not contest the extent or the seriousness of the husband’s injuries. 

{¶72} The trial court awarded the husband the entire amount of the Lincoln annuity 

totaling $372,533.42 free and clear of any claim of the wife. It also held the wife 

responsible for the entire mortgage on the marital residence of $141,369.14, a debt held 

jointly by the parties, as well as one-half of the Social Security overpayment of over 

$30,000. It awarded the husband one-half of the wife’s 401K of approximately $36,000. 
Perry County, Case No. 2023 CA 00005 19

It awarded the wife the marital home with $223,630.86, free and clear of any claim of the 

husband.

{¶73} In all, it awarded the husband $148,902.56 more than the wife. Judgment 

Entry, Sept. 5, 2023 at 8. 

{¶74} We cannot say that the trial court’s division of marital property constituted 

an abuse of discretion.

{¶75} Appellant’s first, second, third and fourth assignments of error are overruled.

V

{¶76} In his final assignment of error, appellant-husband argues that the trial court 

erred and abused its discretion in finding that wife was not responsible for one-half of the 

fines and costs he incurred as a result of his drug convictions. “The Court finds it 

inequitable to order the Plaintiff to pay one-half of those debts resulting from the 

Defendant’s criminal activities.” Judgment Entry, Sept. 5, 2023 at 3. According to 

husband, because this debt was incurred during the marriage, the trial court should have 

divided the debt into two and ordered wife to pay one-half. We find no basis for this novel 

argument.

{¶77} The fine and costs are attributable to husband’s criminal activity. The trial 

court did not abuse its discretion in finding husband responsible for the entirety of the 

debt. The fine was incurred as part of the penalty for violation Ohio’s drug statutes. 

{¶78} Appellant has failed to provide any case law in which an appellate court has 

concluded that the trial court abused its discretion when it did not order an innocent 

spouse to pay a portion of the other spouse’s fine and costs incurred as a result of criminal 

activity. Indeed, there is authority for a trial court’s opposite determination that husband’s 
Perry County, Case No. 2023 CA 00005 20

criminal charges which included expenses for attorneys’ fees and lost income because of 

his incarceration could have been charged against him in the division of marital property. 

Dragojevic Wiczen v. Wiczen, 101 Ohio App.3d 152 (11th Dist., 1995).

{¶79} During the husband’s incarceration of over four years for his drug activity, 

he contributed no income to the household. Wife raised their teenage daughter and 

provided for her care and support without the benefit of husband’s earnings or support. 

No adjustment was made in the division of marital property to account for the factors 

caused by husband’s incarceration. Likewise, no adjustment is proper for the fines and 

expenses husband incurred as a result of his criminal misconduct. 

{¶80} Marital debt is defined as “debt incurred during the marriage for the joint 

benefit of the parties for a valid marital purpose.” Cross v. Cross, 2015-Ohio-5255, ¶ 30

(8th Dist.).

{¶81} Appellant cannot demonstrate that his judgment for fines and costs in his 

criminal case are of a joint benefit to the marriage.

{¶82} The trial court did not err in failing to order wife to pay one-half of his fines 

and costs for criminal activity attributed to husband during the marriage.

{¶83} The fifth assignment of error is overruled.
Perry County, Case No. 2023 CA 00005 21

CONCLUSION

{¶84} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Domestic Relations Division, Perry County, Ohio, is hereby affirmed.

By: Wise, J.

Delaney, P. J., and

Hoffman, J., concur.

JWW/kt 0702