[Cite as Nieman v. Nieman, 2015-Ohio-5186.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

JAMES NIEMAN, 

 PLAINTIFF-APPELLEE, CASE NO. 1-15-30 

 v. 

LISA NIEMAN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Domestic Relations Division 

Trial Court No. CR 2013 0480 

Judgment Reversed and Cause Remanded 

Date of Decision: December 14, 2015 

 

APPEARANCES: 

 

Andrew S. Grossman for Appellant 

 Aimee L. Keller for Appellee 
Case No. 1-15-30 

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SHAW, J.

{¶1} Defendant-appellant Lisa Nieman (“Lisa”) brings this appeal from the 

November 30, 2015 “Decree of Divorce and Shared Parenting Decree” entered by 

the Allen County Common Pleas Court which distributed marital assets, awarded 

spousal support to Lisa, and determined child support upon Lisa’s divorce from 

plaintiff-appellee James Nieman (“James”).1

Relevant Facts and Procedural History 

{¶2} Lisa and James were married December 10, 1994, and had four 

children together. The children were born in 1995, 1999, 2005, and 2008. The 

oldest child was emancipated at the time the divorce was filed. 

{¶3} James is an orthopedic surgeon employed by the Orthopedic Institute 

of Ohio (“OIO”). James holds an ownership interest in four businesses related to 

his practice: OIO itself, Northwest Oil, West Central Land Development (“WC 

Land Development”), and West Central Ohio Physician’s Group (“Phy. Org.”). 

{¶4} Lisa is a registered nurse and worked for over four years in that 

position. She has kept current with her certification; however, she has not worked 

since the children were young. 

 

1

 We note that Lisa actually originally appealed from an April 29, 2015 judgment entry which divided the 

parties’ assets but did not properly incorporate a subsequently filed shared parenting decree. On November 

10, 2015, this Court issued a stay of the proceedings and the case was remanded to the trial court to issue a 

proper final appealable order. The trial court issued a final order on November 30, 2015. See App.R. 4(C). 
Case No. 1-15-30 

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{¶5} On October 13, 2013, James filed a complaint for divorce alleging that 

the parties were incompatible and that they had been living separate and apart for 

over a year. (Doc. No. 1). On October 31, 2013, Lisa filed her answer and a 

counterclaim for divorce seeking spousal support and child support. (Doc. No. 

11). 

{¶6} The matter proceeded to a final hearing on October 20-21, 2014. Both 

James and Lisa testified at the final hearing. In addition, both parties called 

financial experts who valued the parties’ substantial assets and testified as to 

James’s income. The parties owned a number of assets that needed to be divided 

by the trial court in its final decree including, inter alia, James’s interest in his 

businesses, the marital residence in Lima, Ohio, a vacation home in Indiana, 

multiple life insurance policies, multiple bank accounts, various farms containing 

in excess of 600 acres of farmland, multiple boats, and high-end SUVs. At the 

conclusion of the hearing the parties elected to submit written closing arguments. 

{¶7} On April 2, 2015, the trial court issued a 22-page decision on the 

matter. In the decision the trial court valued and distributed the parties’ assets and 

debt. The trial court elected to give a precise 50-50 split to Lisa and James, giving 

each in excess of $4 million in marital equity. 

{¶8} The trial court also ordered James to pay spousal support in the 

amount of $24,000 per month to Lisa for 57 months. In addition, the court 
Case No. 1-15-30 

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determined that shared parenting was in the best interests of the parties’ children 

and adopted James’s shared parenting plan. The trial court then determined child 

support for the three non-emancipated children, ultimately finding that James 

should pay $3,814.58 per month total in child support, plus a 2% administrative 

fee. 

{¶9} On November 30, 2015, the trial court’s decision was reduced to a 

final judgment. It is from this judgment that Lisa appeals, asserting the following 

assignments of error for our review. 

ASSIGNMENT OF ERROR 1 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

DEDUCTED SPECULATIVE TAXES FROM THE VALUE OF 

JIM’S BUSINESSES. 

ASSIGNMENT OF ERROR 2 

THE TRIAL COURT ABUSED ITS DISCRETION IN 

DETERMINING THE AMOUNT AND DURATION OF 

SPOUSAL SUPPORT. 

ASSIGNMENT OF ERROR 3 

THE TRIAL COURT ABUSED ITS DISCRETION IN 

DETERMINING THE AMOUNT OF CHILD SUPPORT. 

First Assignment of Error

{¶10} In her first assignment of error, Lisa argues that the trial court erred 

in valuing the parties’ assets by deducting “speculative” taxes from the value of 

James’s businesses when determining their value. Specifically, Lisa contends that 

pursuant to Lewis v. Lewis, 7th Dist. Jefferson Nos. 06JE49, 07JE27, 2008-Ohio-
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3342, Rosenberger v. Rosenberger, 11th Dist. Geauga No. 2004-G-2555, 2005-

Ohio-1790, and Thomas v. Thomas, 171 Ohio App.3d 272, 274-275, 2007-Ohio2016 (1st Dist.), when a business is not being sold, or is not required to be sold 

due to the distribution of assets in a divorce, the potential tax consequences that 

may result from a future sale are too speculative and it is improper for a trial court 

to deduct those speculative taxes from the value of a business. 

{¶11} Revised Code 3105.171 contains a list of factors a trial court must 

consider when determining the amount of a distributive award. Revised Code 

3105.171(F)(6) specifically states that the trial court shall consider “[t]he tax 

consequences of the property division upon the respective awards to be made to 

each spouse.” 

{¶12} Nevertheless, in Day v. Day, 10th Dist. Franklin No. 87AP768, 40 

Ohio App.3d 155, 159 (1988), the Tenth District Court of Appeals held that, “Tax 

consequences of property division * * * awards are proper considerations * * * so 

long as those consequences are not speculative. For example, if the award is such 

that, in effect, it forces a party to dispose of an asset to meet obligations imposed 

by the court, the tax consequences of that transaction should be considered.” 

(Emphasis added.) Similar to Day, this Court has explicitly stated that “[t]ax 

consequences of property division may be proper considerations for the court, so 

long as those consequences are not speculative.” Huelskamp v. Huelskamp, 3d 
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Dist. Auglaize No. 02-09-21, 2009-Ohio-6864, ¶ 37. Other Ohio Appellate Courts 

have regularly repeated the language that tax consequences are proper 

considerations for the trial court so long as they are not speculative. See Schriefer 

v. Schriefer, 11th Dist. Lake No. 2003-L-040, 2004-Ohio-2206, ¶¶ 28-29; Kelley 

v. Kelley, 12th Dist. Butler No. CA2001–04–087 2002-Ohio-2317, ¶ 12; Thomas 

v. Thomas, 1st Dist. Hamilton No. C-060430, 2007-Ohio-2016, ¶ 6; Gest v. Gest, 

9th Dist. Lorain No. 96CA0006580, 1998 WL 208872, * 8; Lewis v. Lewis, 7th 

Dist. Jefferson Nos. 06JE49, 07JE27, 2008-Ohio-3342, ¶ 25.

{¶13} There is no dispute in this case that if an asset, such as a business, is 

being sold at the time of a divorce, the tax consequences are not too speculative 

for a trial court to consider. Similarly, there does not seem to be a dispute that if a 

property distribution in a divorce requires a business to be sold to equitably 

distribute the assets, tax consequences are also properly considered. See Day, 

supra, at 159. However, the dispute between the parties arises from a situation 

where [1] the businesses are not being sold and [2] are not required to be sold by 

the trial court’s distribution of assets. We are thus asked to specifically determine 

whether the taxes in this particular instance, which falls outside of those two 

categories, were “too speculative” for the trial court to have considered in valuing 

the businesses. 
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{¶14} In this case James testified that he held an ownership stake in four 

businesses: Phy. Org. (7.1429%), OIO (7.1429%), WC Land Development 

(6.6666%), and Northwest Oil (7.1429%). Both James’s expert and Lisa’s expert 

valued James’s ownership stake in the four businesses and testified to those 

valuations at trial. The pre-tax valuations between the two experts were similar 

but the trial court ultimately used James’s expert’s pre-tax valuations and Lisa 

does not contest this aspect of the property distribution on appeal. 

{¶15} James’s expert valued James’s pre-tax interest in his businesses as 

follows: Phy. Org. - $4,477,990, OIO - $131,523, WC Land Development - 

$78,446, and Northwest Oil - $52,758. The total value of the four businesses, 

before factoring in taxes, according to James’s expert was thus approximately 

$4,740,717.2

{¶16} James’s expert then testified to the values of the businesses when 

factoring in the tax consequences of a possible sale, which resulted in a value 

decrease of over $1 million. James’s expert testified that he used the current tax 

rates when determining the value of James’s businesses as the current tax rates and 

James’s current income were both known, and thus they were not speculative 

 

2

 Illustrating that the parties’ pre-tax valuations of the businesses were not far apart, Lisa’s expert valued 

them, in total, at approximately $5,019,870. The bulk of the difference was the valuation of Phy. Org., 

which James’s expert valued at $4,477,990, and Lisa’s expert valued at $4,716,615, creating a difference of 

approximately $238,625. 
Case No. 1-15-30 

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figures. Further, he also testified he did not expect the tax rates to change much at 

any time in the near future. 

{¶17} In addition, the record indicates that James would have to sell his 

interest in at least one of the businesses, Phy. Org., the most valuable business, 

when he retired. The record is not as clear on whether James would be forced to 

sell his interest in the remaining businesses when he retired, or if he would ever 

have to sell his interest. Nevertheless, James, who was born in 1969 and was 44 

years old when he filed for divorce, indicated that he planned to stay in the Lima 

community for a long time and there was no indication he would retire soon. 

There was no testimony at trial that James intended to sell his interest in the 

businesses at any time in the near future, or at any time prior to retiring. 

{¶18} Countering James’s evidence that the value of his businesses should 

be tax-affected, Lisa’s expert testified that when he valued the businesses he did 

not tax-affect them because it is “speculative” and not done as “a general 

practice.” (Oct. 21, 2014, Tr. at 56). Lisa then argued to the trial court in her 

closing brief that the trial court should not consider the tax consequences since the 

businesses were not actually being sold. 

{¶19} The trial court took the matter under advisement and eventually 

determined the issue in its decision, which read as follows. 

The Ohio Revised Code under Section 3105.171(F)(6), requires 

the Court to consider the tax consequences of the property 
Case No. 1-15-30 

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division upon the respective awards to be made to each spouse. 

* * * 

Succinctly stated, it is the position of James Nieman that the 

Court should take into consideration the fact that there will be 

some tax consequences associated with the disposition of these 

assets received by each of the parties at the time the asset is 

distributed, transferred or dissipated, depending on the nature 

of the asset and the conversion of the asset. 

Lisa Nieman acknowledges the same basic concept as 

James, however where the parties differ is that Lisa indicates the 

Court can not [sic] take into consideration, at this time, what 

those tax consequences may be because it is too speculative to 

consider the tax consequences at the time the assets would be 

distributed pursuant to divorce, unless the asset would be 

liquidated at the same time. 

James Nieman basically indicates that at this particular 

time we are dividing these assets and in essence it is a disposition 

and we should consider the present financial circumstances of 

each of the parties and the present tax consequences to each of 

the parties. James argues this is at this point a distribution, 

disbursement or transfer of assets between the parties and 

provides for a known set of economic circumstances and a 

known and determinable tax calculation as a result. 

Under the proposal of James the Court would be able to 

take into account the tax considerations of the parties in any 

case, however the considerations and offsets made at this time 

may in fact not be actually what would occur at the disposal of 

the asset in the future due to the changing nature of economic 

conditions for the parties individually or any changing tax code 

and Lisa’s argument would make it impossible to address tax 

considerations in any case except those cases where there was an 

immediate disposition of property. 

It is this Court’s belief that the argument proposed by 

James is the more considered opinion in this case. Under the 
Case No. 1-15-30 

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statute the Court can determine the current tax consequences 

and consider the same in distributing the property. 

(Doc. No. 41). 

{¶20} Based on this reasoning, the trial court determined that the value of 

James’s businesses should be tax-affected and the trial court valued the business 

after tax-affecting them as follows: Phy. Org. - $3,105,700, OIO – $77,047, WC 

Land Development - $66,119.00, Northwest Oil - $52,758 (there was actually a 

tax loss shown from James’s ownership of Northwest Oil, so the trial court kept 

the value as it was). The total value of the four businesses after tax-affecting them 

was approximately $3,301,624. Notably, the trial court’s reduction in value of the 

businesses also included two non-compete clauses valued at $100,000 each.3

 

However, considering only the tax impact the trial court deducted from the values 

of James’s interest in the businesses, the trial court deducted in excess of $1 

million for tax consequences. 

{¶21} Lisa now renews her argument on appeal that the taxes in this case 

were too speculative for the trial court to have considered, pointing us in particular 

to three other appellate decisions that would suggest taxes in similar circumstances 

were too speculative. Lisa relies most prominently on Lewis v. Lewis, 7th Dist. 

 

3

 Along with deducting taxes the trial court also valued James’s non-compete clauses and factored those 

into the valuation. The non-compete clauses for OIO and Phy. Org. were each valued at $100,000. The 

trial court then applied a tax-rate of 40% to them, and added the remaining $60,000 value to OIO and Phy. 

Org. to come up with the numbers used above, which are the primary differences between the trial court’s 

tax-affected figures and James’s expert’s. Although Lisa challenged whether it was proper for the trial 

court to value James’s non-compete clauses at all, she does not assign error to the trial court’s inclusion of 

them on appeal, therefore we will not further address them. 
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Jefferson Nos. 06JE49, 07JE27, 2008-Ohio-3342, which consisted of a very 

similar factual situation to the case sub judice.

4

 In Lewis, the trial court considered 

the tax consequences of the possible sale of a pharmacy when valuing the 

pharmacy for a divorce distribution even though the pharmacy was not being sold 

at the time of the divorce or as a result of the divorce distribution. Lewis at ¶¶ 22-

23. The husband had indicated that he was thinking about retiring after the 

divorce and that he would likely sell the pharmacy in the near future. Id. at ¶ 23. 

The trial court found specifically that it was “highly likely that the pharmacy will 

be sold in the reasonably near future and will generate a taxable event” and thus 

deducted current capital gains taxes from the value of the pharmacy. Id. 

{¶22} In Lewis the Seventh District reversed the trial court’s decision, 

finding the sale and the taxes too speculative to be considered by the trial court in 

valuing the business. In doing so, the Seventh District engaged in the following 

analysis, which we quote from at length. 

[T]he tax consequences in this case are too speculative to support 

the trial court’s decision to try to take them into account in this 

case. 

Roger presented the testimony of an expert witness who 

calculated the tax consequences of a sale if the sale was 

accomplished under the current tax structure. However, Roger, 

a 51 year-old man, has only indicated a general desire to start 

thinking about selling the pharmacy at some time in the future, 

 

4

 We would note that it does not appear that Lisa’s closing brief to the trial court cited Lewis or that she 

made the trial court aware of its existence. 
Case No. 1-15-30 

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not a strong intent to sell the pharmacy within a specific period 

of time in the near future. 

The trial court found that the tax consequences of the sale 

in this case were not speculative because the asset in question 

was a business, Roger would surely retire someday in the 

“reasonably near future,” and “virtually no one keeps a 

business” until they die. Essentially, the trial court concludes 

that a sale is bound to happen at some time and that Roger will 

incur some kind of tax penalty at that future sale. Therefore, the 

trial [court] concluded that it was reasonable to take those future 

tax consequences into account when valuing the business. 

The problem with this analysis is that the trial court was 

forced to engage in speculation in order to reach the result. 

First, it speculated that Roger would sell the business sometime 

“relatively soon.” This speculation was surely built upon some 

evidence, i.e. Roger's testimony that he was thinking about 

looking into retiring after the divorce. Nevertheless, the trial 

court had to speculate that Roger would make the decision to 

sell. Second, the trial court speculated that the tax consequences 

when Roger eventually sold the business would be similar to the 

consequences of selling the business now. There is simply no 

way to know what the tax consequences of a sale in the nonimmediate future will be. 

Finally, a sale of the pharmacy is not made necessary by the 

trial court’s division of the marital assets. * * * 

Given these facts, it is simply too speculative to calculate the 

tax consequences of the eventual sale of the pharmacy at this 

time. Thus, the trial court abused its discretion when it 

discounted the value of the pharmacy for the tax consequences 

of a possible sale sometime in the “reasonably near future.” 

Lewis, ¶¶ 32-37. The Seventh District then reversed the trial court’s decision to 

tax-affect the pharmacy. 
Case No. 1-15-30 

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{¶23} Lewis thus established in a nearly identical factual situation that taxes 

are “too speculative” where: [1] it is uncertain if, or at what point in the future, a 

business will be sold, [2] it is uncertain that the tax rates will be similar in the 

future, and [3] a sale is not made necessary by the trial court’s division of the 

marital assets. 

{¶24} Although slightly less factually on point than Lewis, in Rosenberger 

v. Rosenberger, 11th Dist. Geauga No. 2004-G-2555, 2005-Ohio-1790, the 

Eleventh District Court of Appeals similarly reversed a trial court’s decision to 

tax-affect a business for being too speculative. In Rosenberger the trial court 

determined what the capital gains tax would be for selling a business to a willing 

buyer in an arm’s length transaction and deducted the taxes from the value of the 

business. Rosenberger at ¶ 73. The Eleventh District reversed the trial court’s 

decision to tax-affect the business, holding, “The trial court’s consideration of the 

capital gains tax was inappropriate, as the effect of such tax was based upon pure 

speculation.” Id. at ¶ 74. The Eleventh District reasoned that there was no 

evidence of an intention to sell the business. Id. Further, the Eleventh District 

reasoned that the distribution of assets did not require the appellee to sell his 

ownership interest in the business to meet the obligations imposed by the trial 

court. Id. The Eleventh District concluded by stating, “[b]ecause there was no 

evidence of a pending sale of [the business], the [trial] court had no way of 
Case No. 1-15-30 

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determining the applicable tax rate. Thus, the tax rate applied by the trial court 

was also speculative.” Id. at ¶ 75. 

{¶25} The Eleventh District’s decision in Rosenberger is consistent with 

the Seventh District’s reasoning in Lewis. Although the trial court in Rosenberger

used the current capital gains tax when tax-affecting the business, the Eleventh 

District found that using the current rate for a hypothetical future sale was 

inappropriate. While Rosenberger is slightly different from Lewis in that there 

was no evidence in Rosenberger that the appellee ever intended to sell the 

business, Lewis found that in a situation where a business owner is contemplating 

a relatively near, but still unknown, sale date, the evidence was too speculative. 

{¶26} That the taxes in both Lewis and Rosenberger were too speculative is 

further supported by the decision of the First District Court of Appeals in Thomas 

v. Thomas, 171 Ohio App.3d 272, 2007-Ohio-2016, wherein the First District 

affirmed a trial court’s decision finding that tax consequences were too speculative 

where a spouse was not selling her business and was not forced to sell her business 

by the distribution of assets. Thomas at ¶¶ 8-9. Similarly, this Court determined 

in Huelskamp v. Huelskamp, 3d Dist. Auglaize No. 02-09-21, 2009-Ohio-6864, 

that tax consequences were “purely speculative” where the trial court did not 

“order the sale or transfer of any particular asset and, therefore, it did not 
Case No. 1-15-30 

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affirmatively impose an order that would necessitate a taxable event.”5

 

Huelskamp at ¶ 38; see also Bauman v. Bauman, 6th Dist. Erie No. E-01-025, 

2002-Ohio-2172, (finding tax consequences speculative due in part to the fact that 

the trial court’s order did not require appellant to liquidate any assets to incur any 

adverse tax consequences). 

{¶27} Applying the logic of Lewis, Rosenberger, Thomas, and Huelskamp

to this case—particularly Lewis, which the most factually similar—the taxes here 

appear to be too speculative for the trial court to have considered. Like Lewis, 

James indicated his desire to sell his businesses at the time of retirement. Also 

like Lewis, any retirement date is uncertain, and in the case of James, it is likely 

even further distant in the future than it was in Lewis. 

{¶28} Like both Lewis and Rosenberger, where in both instances the 

appellate courts reversed a trial court that tax-affected a business, the trial court in 

this case used the current tax rates, requiring the trial court to engage in 

speculation to assume that the tax rates will be the same or substantially similar in 

the future. 

{¶29} Finally, similar to Lewis, Rosenberger, Thomas, and Huelskamp, the 

distribution of assets did not require James to sell his businesses. Thus based on 

 

5

 We would note that in Huelskamp we also separately found that the appellant failed to specify what tax 

consequences may have resulted from a sale. 
Case No. 1-15-30 

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the holdings of these cases, it would appear that the taxes in this case are too 

speculative to be considered by the trial court. 

{¶30} In order to get around Lewis, Rosenberger, and Thomas on appeal, 

James argues that the cases were simply improperly decided and that they all 

improperly base their decisions on Day v. Day, 10th Dist. Franklin No. 87AP768, 

40 Ohio App.3d 155 (1988). In Day, the Tenth District was one of the first cases 

to state that a trial court should consider tax consequences so long as they are not 

too speculative. However, James argues that since the Tenth District allowed the 

trial court to deduct future tax consequences from a retirement plan in Day, the 

cases citing to the “speculative” language in Day, such as Lewis and Rosenberger

were improperly decided. 

{¶31} In addition, James cites to a number of cases in his brief where Ohio 

Appellate Courts have determined that it is not an abuse of discretion for a trial 

court to consider speculative tax consequences related to retirement plans. See

Noll v. Noll, 55 Ohio App.3d 160 (6th Dist. 1989) (“Whether or not the value of a 

party’s pension and retirement plans which are not immediately terminated should 

be reduced by estimated future tax consequences on distribution and, if so, by how 

much, are factors best left to the discretion of the trial court after hearing all the 

evidence and any expert testimony as to those tax consequences.”); Colley v. 

Colley, 10th Dist. Franklin Nos. 09AP-333, 09AP-335, 09AP-336, 2009-Ohio-
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6776, ¶¶ 39-40; Wiggins v. Wiggins, 12th Dist. Warren No. CA93-05-043, 1994 

WL 118991; but see Fisher v. Fisher, 3d Dist. Henry No. 7-01-12, 2002-Ohio1297 (“The tax implications of an individual retirement account cannot be 

assessed prior to liquidation and therefore any attempts by the trial court to take 

into account those implications would have been speculative.”). This entire line of 

cases cited by James, including Day, are all related to retirement plans and the 

majority of them predate the decisions in Lewis and Rosenberger, therefore we do 

not find them as persuasive as Lewis, which seems to be directly on point and 

related to business valuation in particular.

{¶32} James next argues that in a more recent case Foppe v. Foppe, 12th 

Dist Warren Nos. CA2008-10-128, CA2009-02-022, 2009-Ohio-6926, the Twelfth 

District Court of Appeals actually reversed and remanded a case to the trial court 

with instructions to consider speculative taxes. However, James misinterprets the 

Foppe decision and the ultimate outcome of the Foppe case. 

{¶33} In Foppe, the trial court interrupted the presentation of testimony 

related to tax consequences for a business that was not actually being sold. Foppe

at ¶¶ 13-25. The trial court stated that it would not even hear testimony regarding 

tax consequences for a corporation that was not being sold as they were too 

speculative. Id. The Twelfth District reversed the trial court’s decision, stating 

that the trial court had to hear the testimony first and then it could determine 
Case No. 1-15-30 

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whether the tax testimony was too speculative after learning of the purported tax 

consequences. Id. at ¶ 28. The principle holding of Foppe was that a trial court 

could not determine that taxes were too speculative before even learning what the 

tax testimony was. Id. This is further emphasized by the fact that upon remand, 

the trial court heard the evidence of the tax consequences and still determined 

them to be too speculative. Foppe v. Foppe II, 12th Dist. Warren No. CA2010-06-

056, 2011-Ohio-49, ¶ 20. The trial court’s determination after remand was 

appealed in Foppe II and the Twelfth District affirmed the trial court’s finding that 

the taxes were too speculative to be considered. Id. Thus any assertion by James 

that Foppe I stands for the proposition that speculative taxes may be utilized in 

valuing a business is inaccurate. 

{¶34} The closest cases James cites to any persuasive authority where a 

court has considered speculative taxes in valuing a business are two cases from the 

Twelfth District Court of Appeals that predate Lewis, Rosenberger, and Thomas. 

The first, Herrmann v. Herrmann, 12th Dist. Butler Nos. CA99-01-006, CA99-

010-011, 2000 WL 1671045 (Nov. 6, 2000), allowed a trial court to tax-affect a 

business but it contained language that, “The court’s property division, as 

evidenced by its language, is tantamount to a forced sale of Professor Herrmann’s 

portion of the practice to Dr. Herrmann. Because the property division forces 

Professor Hermann to dispose of an asset to meet obligations imposed by the 
Case No. 1-15-30 

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court, the trial court properly considered the tax consequences of that transaction.” 

Herrmann at * 8. Thus while the Twelfth District allowed the speculative taxes to 

be deducted, it based its decision partly on the idea that the distribution was 

tantamount to a forced sale.6

 The Twelfth District manufactured a “sale” between 

the parties when distributing the parties’ assets, even though no actual “sale” was 

taking place.7

 

{¶35} Similarly, in Hamilton v. Hamilton, 12th Dist. Warren Nos. CA2001-

01-005, CA2001-01-010, 2002-Ohio-2417, the Twelfth District found again that 

the trial court “effectively forced [appellant] to sell her interest in the company * * 

* [t]herefore, the trial court properly considered the tax consequences.” Hamilton

at ¶ 70. In both Herrmann and Hamilton, the Twelfth District found a factor that 

pursuant to Lewis would make the sale not as speculative, namely that the 

distribution effectively forced disposal of an asset. Nevertheless, we are not as 

persuaded by the analysis in Herrmann or Hamilton, which predate Lewis, 

Rosenberger, Thomas, and Huelskamp. 

{¶36} Lastly, James attempts to undermine the authority cited by Lisa by 

pointing to the following language from Thomas v. Thomas, 171 Ohio App.3d 

 

6

 We would note that the business was not actually being sold in Herrmann, however, just that one spouse 

was “forced” to sell her share to the other spouse. 

7

 The Twelfth District’s holding in Herrmann would seem to imply that potentially every asset being 

distributed in a divorce action could be subject to speculative tax consequences even where they are not 

being sold, including houses and vehicles. 
Case No. 1-15-30 

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272, 274-275, 2007-Ohio-2016 (1st Dist.), which is one of the cases Lisa relies 

upon. 

First, we note that in analyzing the issue, the magistrate’s report 

incorrectly stated that “Ohio law * * * does not allow for the 

deduction of tax consequences on property that is not actually 

being sold.” But it went on to accurately summarize the law. 

The court did not, as Robin contends, fail to consider the tax 

consequences. Instead, it correctly concluded that the tax 

consequences were speculative. 

Thomas at ¶ 7. 

{¶37} James argues that the preceding section from the Thomas decision 

made clear that that tax consequences of a property not being sold can actually be 

considered by the trial court. Notably, Thomas goes on to affirm a finding that the 

taxes for a business not being sold were too speculative. Nevertheless, we do not 

find this language in Thomas inconsistent with Lewis or Rosenberger. 

{¶38} What James suggests by citing this particular portion of the Thomas

decision, and what the trial court seemed to find in this case in its decision on the 

matter, was that Lisa’s position (and the Lewis decision) would never allow a trial 

court to tax-affect a business that is not being sold or is not ordered sold to 

effectuate the trial court’s disposition of property. This is an inaccurate statement. 

Even under Lewis if there was testimony of a sufficiently definite future sale, 

testimony that the tax rates are not likely to change in that time, and testimony that 

the tax consequences to the individuals would be the same or similar, the tax 
Case No. 1-15-30 

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consequences would be much more ascertainable and thus might not be considered 

too speculative. However, in a case such as this one where there is no indication 

at what point in the future the businesses may be sold, and no indication that the 

tax rates will definitely be the same at an unrecognizable point many years in the 

hypothetical future, considering the tax consequences requires too much 

speculation. 

{¶39} By the time James sells his business interests at retirement they could 

be worth far more, or far less. His percentage share could have grown larger or 

smaller, or the capital gains tax could rise or could be abolished. As a result, any 

court would necessarily be required to engage in pure speculation that all of these 

things will remain relatively consistent in order to impose a present day tax-affect 

upon the value of the businesses in this case. 

{¶40} As we are persuaded by the decisions in Lewis, Rosenberger, and 

Thomas, we find that the taxes in this case were too speculative to be considered 

by the trial court. Therefore Lisa’s first assignment of error is sustained. 

Second and Third Assignments of Error

{¶41} In Lisa’s second assignment of error, she argues that the trial court 

erred in its determination of the amount and duration of spousal support awarded 

to Lisa. In her third assignment of error, Lisa argues that the trial court erred in 

determining the amount of child support. 
Case No. 1-15-30 

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{¶42} Our determination of the first assignment of error requires a remand 

to the trial court to recalculate the value of James’s businesses without considering 

the tax consequences. Recalculating the value of James’s businesses will require 

the trial court to distribute additional assets. 

{¶43} The statute for determining spousal support, R.C. 3105.18(C)(1), 

contains at least one provision that could be relevant depending on how the trial 

court elects to distribute the previously tax-affected value of the businesses. 

Specifically, R.C. 3105.18(C)(1)(i) has a trial court take into consideration “[t]he 

relative assets and liabilities of the parties, including but not limited to any courtordered payments by the parties[.]” Given that the asset distribution may change, 

the trial court may wish to alter the amount of spousal support to reflect that fact. 

If the amount of spousal support is altered, it would then impact the guideline 

child support calculation. 

{¶44} In order to give the trial court the greatest possible latitude in 

distributing the parties’ assets, we are compelled to find that Lisa’s second and 

third assignments of error are moot based on our disposition of the first 

assignment of error. In making this ruling we are in no way suggesting that the 

trial court’s current awards of spousal or child support are improper. However, in 

the interests of giving the trial court as much discretion as possible to reestablish 

an equitable distribution of all the assets, we find that these issues are moot. 
Case No. 1-15-30 

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{¶45} For the foregoing reasons Lisa’s first assignment of error is sustained 

and her second and third assignments of error are moot. 

Judgment Reversed and 

Cause Remanded 

ROGERS, P.J., concurs. 

WILLAMOWSKI, J., concurs in Judgment Only 

/jlr