[Cite as Horak v. Horak, 2018-Ohio-3659.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

JASON HORAK 

 Appellant 

 v. 

SARAH DECKER 

 Appellee 

C.A. No. 28731 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. DR-2012-11-3425 

DECISION AND JOURNAL ENTRY 

Dated: September 12, 2018 

 

CARR, Judge. 

{¶1} Plaintiff-Appellant Jason Horak (“Husband”) appeals from the decision of the 

Summit County Court of Common Pleas, Domestic Relations Division. We affirm in part, and 

reverse in part. 

I. 

{¶2} Husband married Defendant-Appellee Sarah Horak, nka Decker (“Wife”), on July 

15, 2006. The parties have two children together. Husband filed a complaint for divorce in 

November 2012, and Wife answered and filed a counterclaim. A temporary order was issued in 

March 2013; no spousal or child support was ordered. However, Wife was ordered to make 

monthly payments on the leased Cadillac that she drove and to escrow the remaining $2,000 of 

the 2012 tax refund. 

{¶3} Subsequently, Wife moved to set aside the order and the trial court granted the 

motion in part. In the entry, the trial court noted that Husband had failed to comply with all 
2 

 

discovery requests and thus Husband’s net income from his automobile restoration business 

could not be determined. The trial court imputed $78,000 in income to Husband, based upon 

what he earned at his former job. Husband was ordered to pay $886.50 in child support when 

health insurance was provided and $875 in spousal support per month. 

{¶4} At the time of the final hearing, the parties had come to an agreement concerning 

the custody of the children: Wife was designated the residential parent and legal custodian and 

Husband was to have parenting time with the children. Following the hearing, the magistrate 

issued a decision, which was incorporated into the divorce decree that the trial court issued the 

same day. That decision awarded Wife child support but not spousal support. 

{¶5} Husband filed objections and supplemented the objections after the transcript of 

the final hearing was filed. The trial court overruled the objections. Husband attempted to 

appeal the divorce decree on two separate occasions; however, this Court determined the entries 

were not final, appealable orders. The trial court issued another judgment entry in July 2017. 

Husband has again appealed, raising eight assignments of error for our review. 

II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT 

MADE FINDINGS THAT APPELLANT WAS VOLUNTARILY 

UNDEREMPLOYED FOR THE PURPOSES OF ESTABLISHING CHILD 

AND SPOUSAL SUPPORT. THE COURT’S DETERMINATION OF 

UNDEREMPLOYMENT WAS NOT SUPPORTED BY THE SUFFICIENCY 

OR WEIGHT OF THE EVIDENCE PRESENTED AT THE TRIAL 

CONDUCTED IN THIS MATTER. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPUTING INCOME 

OF $75,000.00 PER YEAR TO PLAINTIFF FOR THE PURPOSES OF 

COMPUTATION OF CHILD SUPPORT AND SPOUSAL SUPPORT. THE 

AFORESAID FIGURE IS NOT SUPPORTED BY THE SUFFICIENCY OR 
3 

 

MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AND THE COURT 

HAD NO BASIS TO ADOPT SUCH AN IMPUTED FIGURE. 

{¶6} Husband argues in his first assignment of error that the trial court erred in finding 

Husband was voluntarily underemployed. Husband argues in his second assignment of error that 

the trial court abused its discretion in imputing him with an income of $75,000 for purposes of 

child support based upon that underemployment. 

{¶7} First, to the extent Husband challenges the trial court’s imputation of income for 

purposes of spousal support, we note that the trial court in the final decree did not award Wife 

any spousal support. Thus, to this extent, Husband’s arguments are without merit. 

{¶8} “[W]e generally review a trial court’s action on a magistrate’s decision for an 

abuse of discretion, but do so with reference to the nature of the underlying matter.” (Internal 

quotations and citations omitted.) Harrison v. Lewis, 9th Dist. Summit No. 28114, 2017-Ohio275, ¶ 40. “In determining the appropriate level of child support, a trial court must calculate the 

gross income of the parents.” Stahl v. Stahl, 9th Dist. Summit No. 27876, 2017-Ohio-4170, ¶ 19, 

quoting Bajzer v. Bajzer, 9th Dist. Summit No. 25635, 2012-Ohio-252, ¶ 11. R.C. 3119.01(C)(5) 

defines “[i]ncome” as used in Chapter 3119 as: “(a) For a parent who is employed to full 

capacity, the gross income of the parent; (b) For a parent who is unemployed or underemployed, 

the sum of the gross income of the parent and any potential income of the parent.” 

“Potential income” means both of the following for a parent who the court 

pursuant to a court support order, or a child support enforcement agency pursuant 

to an administrative child support order, determines is voluntarily unemployed or 

voluntarily underemployed: 

(a) Imputed income that the court or agency determines the parent would have 

earned if fully employed as determined from the following criteria: 

(i) The parent’s prior employment experience; 

(ii) The parent’s education; 
4 

 

(iii) The parent’s physical and mental disabilities, if any; 

(iv) The availability of employment in the geographic area in which the parent 

resides; 

(v) The prevailing wage and salary levels in the geographic area in which the 

parent resides; 

(vi) The parent’s special skills and training; 

(vii) Whether there is evidence that the parent has the ability to earn the imputed 

income; 

(viii) The age and special needs of the child for whom child support is being 

calculated under this section; 

(ix) The parent’s increased earning capacity because of experience; 

(x) The parent’s decreased earning capacity because of a felony conviction; 

(xi) Any other relevant factor. 

(b) Imputed income from any nonincome-producing assets of a parent, as 

determined from the local passbook savings rate or another appropriate rate as 

determined by the court or agency, not to exceed the rate of interest specified in 

division (A) of section 1343.03 of the Revised Code, if the income is significant. 

R.C. 3119.01(C)(11). “[T]he trial court cannot impute income to either party without first 

making a finding that the party is voluntarily unemployed or underemployed.” (Internal 

quotations and citations omitted.) Collins v. Collins, 9th Dist. Wayne No. 10CA0004, 2011-

Ohio-2087, ¶ 27. “The burden of proof is on the parent who is claiming that the other is 

voluntarily unemployed or underemployed.” Stahl at ¶ 19. 

{¶9} “This Court reviews a trial court’s factual finding that a parent is voluntarily 

unemployed to determine if it was against the manifest weight of the evidence.” Id., citing Kent 

v. Kent, 9th Dist. Summit No. 25231, 2010-Ohio-6428, ¶ 10-12. “The amount of potential 

income the court imputes once it finds voluntary unemployment, however, is a discretionary 
5 

 

determination that this Court will not disturb on appeal absent an abuse of discretion.” Stahl at ¶ 

19, citing Rock v. Cabral, 67 Ohio St.3d 108 (1993), syllabus. 

{¶10} While Wife’s income was undisputed at trial, Husband’s income was highly 

contested. The parties filed joint tax returns in 2009, 2010, and 2011. The parties filed separate 

tax returns in 2012 and 2013. During all relevant periods, Wife worked for a law office. In 

2013, the trial court found that Wife earned $37,067.95. From 2009 through part of 2011, 

Husband worked for Frankie & Dylan’s, which is a business that does automotive repair work 

including collision and some custom restoration work. Husband did a variety of tasks for 

Frankie & Dylan’s including office work and work in the shop. In addition, he would do 

research in the evenings and chat with people on the computer to bring in work. In 2010, taking 

into account the parties’ total gross income and Wife’s W-2 income, Husband earned a little over 

$75,000. In 2011, Husband earned approximately $41,000; however, according to Wife, 

Husband left Frankie & Dylan’s midway through the year. At the time, Husband was making 

$1,500 a week, which would equate with $78,000 a year. Husband testified that he made $16.00 

per hour, and thus, to make $1500 a week, he had to work about 94 to 96 hours. However, there 

was also testimony that the hours required were “billable hours[.]” Specifically, Husband 

testified that in order “to stay on that pay[, he would have] to get enough * * * billable hours, 

labor in the shop on metal work[.]” Husband boasted in his testimony about how he could 

complete most tasks faster than other people in the shop and so he had time to do additional 

tasks. Wife also did not believe Husband worked 94 hours a week. It is unclear from the record 

how many actual hours Husband had to work to accumulate the required billable hours, but there 

was testimony that Husband worked at the shop during the day and was on the computer at night. 
6 

 

{¶11} Husband left Frankie & Dylan’s to start his own business, Horak’s Restoration & 

Custom Auto Body. That business opened in March or April 2012. In support of a loan for that 

business, Husband submitted a document, which Wife typed, which discussed Husband’s 

extensive experience restoring cars and also indicated that restoration work had been steady 

irrespective of the situation with the economy and that the economy had not impacted the 

restoration portion of the business. Those documents made it appear that Husband believed he 

could do better with his own business. 

{¶12} Nonetheless, Husband testified that part of the reason he left Frankie & Dylan’s to 

start his own business was that the market had crashed and there was not the same amount of 

work. In addition, Husband indicated that Wife wanted to leave the law office as she found it 

stressful. Thus, it was hoped that Wife could run the office of the new business and have more 

time with the children. Further, Husband hoped that the new business would get to a point where 

he could just run it and have surgery on his back. Husband suffered a back injury in 2004, and 

testified to having herniated discs, crushed vertebrae, and floating pieces of bone in his back. 

Husband receives chiropractic care and takes Motrin for the pain. At Frankie & Dylan’s, other 

employees would help Husband with any heavy work or lifting, and at his own business, 

Husband had an employee to help him. Wife acknowledged that Husband had back pain, but 

there was no testimony that Husband’s condition prevented him from working full time or that 

he had ever applied for disability benefits. 

{¶13} Husband asserted that Wife supported his decision and helped file the paperwork 

to incorporate the business. Wife agreed that she helped type up the paperwork but testified that 

she told Husband not to quit Frankie & Dylan’s because he made a lot of money working there. 
7 

 

Wife testified that Husband left Frankie & Dylan’s because Husband did not get along with the 

owner’s wife and they argued. 

{¶14} Husband’s 2012 tax return reflected that his gross receipts from his business 

amounted to $118,448, but after taking into account his costs and expenses, his net profit was 

under $6,000. In 2013, Husband had gross receipts or sales of $74,170 but ultimately reported a 

loss of $21,339. 

{¶15} Ultimately, the magistrate found Husband voluntarily underemployed and 

imputed an income of $75,000 to him. The magistrate found Husband to be highly skilled in 

auto body work but lacking in business skills. The magistrate also found Husband to be in 

generally good health. The magistrate acknowledged that Husband had a back problem that 

continued to cause him pain, but also concluded that the problem did not prevent him from 

working full time. The trial court adopted the magistrate’s decision and incorporated it into its 

own. 

{¶16} Husband objected to the magistrate’s finding of voluntary underemployment, the 

imputation of $75,000 as income, and the conclusion that he was in good health and did not 

suffer from a condition that hindered his ability to work full time. The trial court overruled 

Husband’s objections. 

{¶17} Husband’s argument on appeal is limited. Husband asserts that he was not 

voluntarily underemployed because the decision to leave Frankie & Dylan’s was based upon the 

economic conditions and was a mutual decision between Husband and Wife. Additionally, he 

notes that the decision to leave that job was not correlated with him filing for divorce as he left 

Frankie & Dylan’s in 2011, long before the action was filed. Husband points to no case law that 

supports the conclusion that any of the above factors are determinative. See App.R. 16(A)(7). 
8 

 

{¶18} Even assuming the factors Husband references are relevant, Husband has not 

demonstrated that the trial court’s decision was against the weight of the evidence. The trial 

court was presented with evidence that Wife did not want Husband to leave his prior 

employment, and it is clear that the trial court believed this testimony. Additionally, in light of 

the state of the record, the trial court was not required to believe that Husband’s reasons for 

leaving his employment were primarily based on the economic conditions. Husband’s loan 

proposal expressed that the restoration portion of the business was not negatively impacted by 

the economy. Further, the trial court could have found Husband’s rationale suspicious; if the 

business at Frankie & Dylan’s was suffering, the trial court could question why Husband would 

seek to start his own business in that climate. Finally, we note that “[f]or purposes of the child 

support statute, the term ‘voluntary’ means done by design or intention, intentional, proposed, 

intended, or not accidental. Intentionally and without coercion.” (Internal quotations and 

citations omitted.) Hahn v. Hahn, 9th Dist. Medina No. 11CA0064-M, 2012-Ohio-2001, ¶32. In 

fact, “[t]he parent’s subjective motivations for being voluntarily unemployed or underemployed 

play no part in the determination whether potential income is to be imputed to that parent in 

calculating his or her support obligation.” (Emphasis omitted.) Rock, 67 Ohio St.3d at 111. We 

have concluded that “[a] parent’s intentional and uncoerced resignation from employment which 

results in either no employment or substantially less income in subsequent employment would be 

one example of a situation in which a parent is voluntarily unemployed or voluntarily 

underemployed.” Collins, 2011-Ohio-2087, at ¶ 27. Given Husband’s limited argument and the 

record on appeal, Husband has not demonstrated that his situation does not fit squarely within the 

prior example. Accordingly, we cannot say that the trial court’s finding that Husband was 

voluntarily underemployed was against the manifest weight of the evidence. 
9 

 

{¶19} With respect to the amount of imputed income, Husband’s argument on appeal is 

even more limited. Husband acknowledges that the trial court considered the factors in R.C. 

3119.1(C)(11). However, Husband asserts that the trial court failed to appropriately consider 

Husband’s back problem, the diminishing job prospects in the car restoration industry, and the 

fact that Husband’s prior employment required him to work 94 hours per week to make $75,000 

per year. 

{¶20} We cannot say that the trial court abused its discretion. The trial court was aware 

of Husband’s back problems and that he saw a chiropractor and took Motrin for pain. However, 

the trial court was also aware that, at his prior place of employment, Husband had help with the 

heavy labor and that, despite his pain, Husband nonetheless worked full time, never filed for 

disability, and was able to make over $75,000 per year. 

{¶21} To the extent Husband argues that his business prospects were deteriorating at 

Frankie & Dylan’s, we note that we have discussed this issue above. The trial court could have 

reasonably disbelieved that Husband would start a new business in an industry if Husband 

actually believed that industry was dramatically declining. To the extent Husband argues that he 

only made $75,000 by working 94 hours per week, we note there was evidence that Husband’s 

salary was based on billable hours, which were correlated with time in the shop. There was also 

testimony that Husband was faster and more efficient than the other employees. Considering the 

totality of the evidence, the trial court could reasonably infer that Husband was not in fact 

actually working 94 hours. 

{¶22} In ruling on Husband’s objections, the trial court considered the statutory factors 

that it believed were applicable in light of the evidence presented. The trial court had before it 

evidence that Husband was highly skilled in automotive work, that Husband was capable of 
10 

 

working full time, and that Husband had made upwards of $75,000 per year at his prior job. See 

R.C. 3119.01(C)(11)(a)(i),(iii), (vi), and (vii). In light of Husband’s limited argument on appeal, 

we cannot say that the trial court abused its discretion in imputing an income of $75,000 per year 

to Husband for purposes of calculating child support. 

{¶23} Husband’s first and second assignments of error are overruled. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN REFUSING TO CREDIT APPELLANT FOR 

CERTAIN FUNDS RETAINED AND/OR SPENT BY APPELLEE IN 

CONTRADICTION AND VIOLATION OF VARIOUS INTERIM ORDERS OF 

THE COURT. SPECIFICALLY, APPELLEE’S TAKING AND CONVERTING 

THE 2013 TAX RETURN REFUND IN THE AMOUNT OF $4,298.00 AND 

THE 2012 TAX RETURN IN THE AMOUNT OF $4,000.00. 

{¶24} Husband’s argument in his third assignment of error focuses on the distribution of 

the parties’ 2012 and 2013 tax refunds. 

{¶25} “A domestic relations court enjoys broad discretion in making an equitable 

distribution of the parties’ assets and liabilities.” (Internal quotations and citations omitted.) 

McGrew v. McGrew, 9th Dist. Summit No. 28310, 2017-Ohio-7854, ¶ 14. 

{¶26} In the temporary order, Wife was ordered to escrow the remainder of the 2012 tax 

refund, which amounted to $2000 of the approximately $4000 refund. At trial, Wife 

acknowledged that she had not done so. Wife averred that she could not escrow the money; she 

indicated that she needed the money for a down payment for her apartment and for items for the 

apartment. Wife also acknowledged that she had spent a portion of the 2013 tax refund on an 

appraisal needed for trial and her daughter’s preschool. The remainder of the 2013 refund was in 

her account. At that time, Husband was in arrears on his child and spousal support payments by 

a significant amount and there was evidence that, because of that, Wife could not afford all of 

her expenses. 
11 

 

{¶27} In the magistrate’s decision, and the trial court order adopting it, the court 

awarded Wife the remaining $2000 of the 2012 tax refund as part of the property division. In 

doing so, the court listed it in the property division spreadsheet and appears to have considered 

that amount in calculating the amount Husband owed Wife in order to achieve an equitable 

property division. 

{¶28} The 2013 refund was not mentioned in the magistrate’s decision or the trial court 

order adopting the magistrate’s decision. In his objections to the magistrate’s decision, Husband 

argued that Wife should have been held in contempt for failing to escrow the 2012 refund and 

that he should have received half of the 2013 refund as part of the property division. The trial 

court overruled his objections but also awarded Wife the full amount of 2013 refund. On appeal, 

Husband now argues that the trial court should have given him credit for half of both refunds by 

crediting his spousal and child support arrearages. Husband has not argued that he was entitled 

to receive any portion of the refunds. 

{¶29} In Husband’s objections, Husband never asked that half of the amount of the two 

refunds be credited against his spousal and child support arrearages. In fact, Husband did not 

challenge the disposition of the 2012 refund in his objections; he only asked that Wife be held in 

contempt for failing to escrow that money. “An objection to a magistrate’s decision shall be 

specific and state with particularity all grounds for objection.” Civ.R. 53(D)(3)(b)(ii). “Except 

for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any 

factual finding or legal conclusion, whether or not specifically designated as a finding of fact or 

conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or 

conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv). Accordingly, as 

Husband did not challenge the magistrate’s disposition of the 2012 refund via objections, he has 
12 

 

forfeited that argument. See Civ.R. 53(D)(3)(b)(iv). Further, Husband has not argued plain error 

on appeal, and we decline to create an argument for him. See Adams v. Adams, 9th Dist. Wayne 

No. 13CA0022, 2014-Ohio-1327, ¶ 6; see also Phillips v. Hostetler, 9th Dist. Summit No. 

28397, 2017-Ohio-2834, ¶ 17. 

{¶30} With respect to the 2013 refund, the magistrate did not account for it in the 

magistrate’s decision. Thus, the trial court, in ruling on the objections, was the first to address 

the 2013 refund, which it deemed marital property. In so doing, the trial court awarded the full 

amount of the 2013 tax refund to Wife but did not include it on the property division spreadsheet, 

nor does it appear that the trial court considered that amount in determining the amount Husband 

owed Wife in order to achieve an equitable property division. See R.C. 3105.171; See 

Schiesswohl v. Schiesswohl, 9th Dist. Summit No. 21629, 2004-Ohio-1615, ¶ 38 (discussing a 

marital tax refund as marital property). While Husband argues that the trial court was required to 

credit his child and spousal support arrearage with half of the 2013 refund, Husband has pointed 

to no law requiring the same. See App.R. 16(A)(7). Nonetheless, because the trial court failed to 

include the 2013 tax refund in the property division spreadsheet, and, thus, it appears it also 

failed to consider that amount when it calculated the amount Husband owed Wife to achieve an 

equitable distribution of the property, we agree the trial court erred. 

{¶31} Husband’s third assignment of error is sustained only to the extent detailed above. 

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN ORDERING THE DEFICIENCY ON THE 

LEASED CADILLAC TO BE APPORTIONED ON AN EQUAL BASIS 

BETWEEN THE PARTIES AND/OR FOR THE FAILURE TO PROVIDE AN 

APPROPRIATE CREDIT TO APPELLANT FOR HIS SHARE OF THE 

DEFICIENCY. THE TRIAL COURT ERRED IN NOT MAKING 

DEFENDANT EXCLUSIVELY RESPONSIBLE FOR ANY DEFICIENCY. 
13 

 

{¶32} Husband argues in his fourth assignment of error that the trial court erred in 

failing to make Wife exclusively responsible for any deficiency on the leased Cadillac. 

{¶33} The Cadillac was leased in Husband’s name, but the vehicle was leased for Wife 

to drive. In the temporary order, Wife was ordered to pay the car payment on the Cadillac. Wife 

initially did so, but eventually became unable to make the payments. Wife maintained that she 

was unable to continue making payments due to Husband’s failure to remain current in his child 

and spousal support payments. There is no dispute that Husband was significantly behind in his 

child and spousal support payments. Thereafter, Wife began to drive someone else’s car as that 

person did not need the vehicle. 

{¶34} As of November 10, 2013, $638.00 was past due on the car. Around that time, 

when Wife was behind two or three months in payments, she left the car at the end of Husband’s 

parents’ driveway. At that point, Wife asserted the mileage was around 31,000 miles and 34,000 

or 36,000 miles were allowed under the entire lease term, which Wife believed went until March 

or April of 2014. Husband believed the mileage was higher when Wife dropped off the car. 

Husband testified to certain damage to the vehicle and the corresponding repairs that would be 

needed for the car. Wife acknowledged there was a scratch on the fender from a bicycle. 

{¶35} After Wife dropped off the vehicle, Husband allowed a friend to use it. That 

friend made payments on the car and paid for some repairs. Sometime in 2014, Husband 

returned the car to the dealership. At that point, the payments on the car were not current, but 

Husband was unsure what would be owed on the car as Husband was waiting for the lender bank 

to pick up the car from the dealership. 

{¶36} Prior to trial, Husband filed a motion seeking to hold Wife in contempt for failing 

to make the payments on the Cadillac as ordered. The magistrate in its decision did not 
14 

 

specifically address the motion for contempt; instead, it ordered Husband and Wife to each pay 

half of any deficiency on the Cadillac. The magistrate also ordered Husband to be solely 

responsible for the outstanding debt on the vehicle that he drove, which he was awarded under 

the property division. Husband objected to the magistrate’s decision arguing that Wife should 

have been found in contempt for failing to make payments on the Cadillac, for damaging the car, 

and for exceeding the mileage. Additionally, Husband argued that Wife should be solely 

responsible for any deficiency. 

{¶37} The trial court overruled Husband’s objection, concluding that Wife’s failure to 

make the payments was caused by Husband’s failure to comply with his support obligations. 

Thus, the trial court found that a contempt finding was not warranted. Additionally, the trial 

court concluded that it was appropriate for Husband to pay half of any deficiency. 

{¶38} After considering the record, and the trial court’s and magistrate’s entries, we 

conclude that the trial court did not act unreasonably in holding Husband responsible for half of 

any deficiency on the Cadillac. See Polacheck v. Polacheck, 9th Dist. Summit Nos. 26551, 

26552, 2013-Ohio-5788, ¶ 7 (“As with the division of marital property, the equitable division of 

marital debt is a matter subject to the exercise of the trial court's discretion.”). The trial court 

could have reasonably found Wife’s testimony credible, and thereby determined that Husband’s 

failure to fulfill his support obligations was the cause of Wife’s failure to timely make payments 

on the Cadillac. Further, in light of the fact that the vehicle was returned to the dealership, the 

trial court could have also considered that neither party was receiving any value from the vehicle 

in evaluating how to apportion the debt. Accordingly, it was not an abuse of discretion for the 

trial court to hold Husband responsible for a portion of the deficiency. 

{¶39} Husband’s fourth assignment of error is overruled. 
15 

 

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED IN FINDING THE ENTIRE VALUE OF THE 

“ORANGE CUDA” TO BE MARITAL WITHOUT ASCRIBING A 

PREMARITAL VALUE TO THE VEHICLE AS ESTABLISHED BY THE 

TESTIMONY PRESENTED. 

{¶40} Husband argues in his fifth assignment of error that the trial court erred in finding 

the entire value of the orange “cuda” to be marital. 

{¶41} We do not reach the merits of this assignment of error as Husband’s objections to 

the magistrate’s decision did not include an objection concerning the orange “cuda.1” See Civ.R. 

53(D)(3)(b)(iv). Further, Husband has not argued plain error on appeal, and we decline to create 

an argument for him. See Adams, 2014-Ohio-1327, at ¶ 6; see also Phillips, 2017-Ohio-2834, at 

¶ 17. 

{¶42} Husband’s fifth assignment of error is overruled. 

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED IN FINDING THE ENHANCED VALUE OF 

THE “BLUE CUDA” TO BE ENTIRELY MARITAL IN CHARACTER. 

{¶43} Husband argues in his sixth assignment of error that the trial court erred in finding 

the enhanced value of the blue “cuda” to be entirely marital in character. Specifically, Husband 

challenges the trial court’s $1,200 premarital valuation of the blue cuda, arguing that it instead 

was worth $30,000 or $40,000. 

{¶44} The value of two cars that Husband purchased prior to the marriage was the 

subject of much dispute during the trial. One was an orange 1971 Plymouth Barracuda (the 

orange “cuda”), mentioned above, and the second was a blue 1971 Plymouth Barracuda (the blue 

 1

 Husband’s objection pertaining to the blue “cuda” mentions the orange “cuda” but there 

is no objection addressing the orange “cuda.” 
16 

 

“cuda”). As Husband focuses on the premarital value of the vehicle, we will limit our discussion 

accordingly. 

{¶45} Husband testified that he purchased the blue vehicle unrestored in 2000 and 

between 2000 and 2005, Husband stored the vehicle in his friend’s garage. He purchased it 

along with a bunch of parts and assigned a value of $1,200 to the unrestored body of the vehicle 

but did not remember what he spent on the parts and vehicle together, although he guessed it 

could have been $15,000 to $20,000. The vehicle was not titled to him until 2005 and reflects a 

purchase price of $1,200. Husband emphasized that the $1,200 represented only the body of the 

vehicle, not any parts. Since 2005, Husband put a motor that was in a Charger that he acquired 

before the marriage into the blue vehicle. When asked how much work Husband had done on 

the blue car prior to the marriage in 2006, Husband was unable to provide a specific amount or 

number, apart from saying that “a lot of work was done.” When Husband was again asked how 

much work had been done on the blue vehicle by the time he was married, Husband responded 

with: “A lot, but not – to be fair a lot, but not all.” Husband’s counsel then stated, “[n]ot all, 

okay. Did – was there—[.]” Husband then interrupted and added, “[t]he hard stuff.” When 

asked to put a value on the blue car in 2005, Husband estimated the value at “[p]robably 30 

grand[.]” After much back and forth and emphasizing that it was difficult to value the car, 

Husband estimated that the blue car was worth $45,000 at the time of the marriage. 

{¶46} Husband’s brother testified that when Husband bought the blue car it was a “bare 

shell of a car” and Husband restored the car himself. Husband’s brother saw Husband working 

on the blue car prior to the marriage but could not say how much work was done when. Wife 

testified that when she first saw the blue car it was unrestored and described both cars as being in 

“horrible, horrible shape.” Wife testified that the cars did not run at that time but Husband told 
17 

 

her they would be worth a lot of money when they were restored. Wife denied seeing Husband 

working on the two cars prior to the marriage, but says Husband was working on other cars at 

that time. Wife averred that restoration of the two vehicles did not happen until she and Husband 

were married and that the vehicles were shells prior to the marriage. She did not know at the 

time how much the blue vehicle was worth but Husband indicated he thought it was worth 

maybe $40,000. 

{¶47} The magistrate concluded that the blue vehicle was worth $1,200 prior to the 

marriage and based this on what Husband paid for it. The magistrate noted that “Husband was 

unable to trace his investment in the blue Cuda before the date of the marriage, meaning he did 

not know how much work was done on it before the marriage.” In addition, the magistrate 

pointed out that Husband “had no photographs to show significant work completed before the 

marriage.” 

{¶48} Husband objected to the magistrate’s findings concerning the blue car and argued 

that there was no basis to treat any of the value of the blue vehicle as marital property. Husband 

argued that the blue car was worth more at the time of purchase than the value the expert 

appraised it for at the time of trial (which was $29,900). In overruling Husband’s objection, the 

trial court found that Husband testified that he done a lot of work on the blue vehicle prior to the 

marriage but “not all the hard stuff[.]” In addition, the trial court reiterated the magistrate’s 

findings that Husband had not traced his investment in the blue car prior to the marriage and thus 

only established a separate property interest of $1,200. 

{¶49} On appeal, Husband argues that the trial court, in ruling on the objections, 

mischaracterized Husband’s testimony pertaining to how much work had been done on the blue 

vehicle at the time of the marriage. The trial court viewed Husband’s testimony as being that 
18 

 

“the hard stuff” had not been completed at the time of the marriage, whereas Husband believes 

his testimony was that “the hard stuff” had been completed at the time of the marriage. In 

reviewing the testimony, which we detailed above, we view it as somewhat ambiguous. 

{¶50} Nonetheless, irrespective of any mischaracterization of that testimony by the trial 

court, we still conclude that the trial court did not abuse its discretion in overruling Husband’s 

objection. Husband had a difficult time providing a value for the vehicle at the time of the 

marriage as well as detailing when the work on the vehicle was done. His testimony was 

somewhat rambling and vague and could be viewed with skepticism. At one point he testified 

that it was worth $30,000 in 2005, and at another point he testified that it was worth $45,000 at 

the time of the marriage; yet, his reasons for adopting that valuation are unclear. Husband also 

acknowledged that all the work was not done at the time of the marriage and could not quantify 

how much work was completed. There was testimony that Husband purchased the vehicle as a 

shell and that shell itself was valued at $1,200. The record is unclear as to how many of the parts 

he purchased at the same time as the vehicle went into the vehicle and what percentage of the 

parts used were obtained prior to the marriage. Husband testified that he used a motor from a 

Charger he purchased prior to the marriage but points to no place in the record where he placed a 

value on that motor, nor can we locate one. We are also aware that Wife denied that Husband 

restored the blue car prior to the marriage. It is apparent that the magistrate and trial court did 

not find Husband’s valuation credible. Given all of the foregoing circumstances, we cannot say 

that the trial court abused its discretion in concluding the premarital value of the vehicle was 

$1,200. 

{¶51} Husband’s sixth assignment of error is overruled. 
19 

 

ASSIGNMENT OF ERROR VII

THE TRIAL COURT ERRED WHEN IT ASCRIBED THE VALUE OF 

$17,189.42 FOR THE DODGE TRUCK TO APPELLANT’S ALLOCATION OF 

ASSETS IN PARAGRAPH NO. 17 OF THE ORDERS IN THE JUDGMENT 

ENTRY AS THE VALUE DOES NOT REFLECT THE ACTUAL EQUITY IN 

THE MOTOR VEHICLE AFTER DEDUCTION FOR SIGNIFICANT 

OUTSTANDING INDEBTEDNESS EXISTING AT THE TIME OF THE 

VALUATION OF THE ASSET. 

{¶52} Husband argues in his seventh assignment of error that the trial court erred in 

valuing his truck. 

{¶53} We do not reach the merits of this assignment of error as Husband’s objections to 

the magistrate’s decision did not include an objection concerning the valuation of his truck. See 

Civ.R. 53(D)(3)(b)(iv). Further, Husband has not argued plain error on appeal, and we decline to 

create an argument for him. See Adams, 2014-Ohio-1327, at ¶ 6; see also Phillips, 2017-Ohio2834, at ¶ 17. 

{¶54} Husband’s seventh assignment of error is overruled. 

ASSIGNMENT OF ERROR VIII

THE TRIAL COURT’S JUDGMENT ENTRY IS NOT SUPPORTED BY THE 

SUFFICIENCY OR MANIFEST WEIGHT OF THE EVIDENCE AND IS AN 

ABUSE OF DISCRETION AS IT RELATES TO THE DETERMINATION 

THAT PLAINTIFF WAS VOLUNTARILY UNDEREMPLOYED. THE 

JUDGMENT OF THE TRIAL COURT IS NOT SUPPORTED BY THE 

EVIDENCE. 

{¶55} In Husband’s eighth assignment of error, Husband attempts to incorporate his 

prior assignments of error and broadly and in a conclusory fashion asserts the trial court erred. 

See App.R. 16(A)(7). As this Court has already addressed Husband’s assignments of error 

above, we decline to further address this assignment of error. 

{¶56} Husband’s eighth assignment of error is overruled. 
20 

 

III. 

{¶57} Husband’s third assignment of error is sustained in part. Husband’s remaining 

assignments of error are overruled. The judgment of the Summit County Court of Common 

Pleas, Domestic Relations Division is affirmed in part and reversed in part. This matter is 

remanded for proceedings consistent with this opinion. 

Judgment affirmed in part, 

reversed in part, 

and cause remanded. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed equally to both parties. 

 

 DONNA J. CARR 

 FOR THE COURT 
21 

 

TEODOSIO, J. 

CONCURS. 

SCHAFER, P. J. 

CONCURS IN JUDGMENT ONLY. 

APPEARANCES: 

DAVID M. LOWRY, Attorney at Law, for Appellant. 

TERENCE E. SCANLON, Attorney at Law, for Appellee.