[Cite as Choi v. Choi , 2018-Ohio-725.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

MIEHYUN CLAIRE CHOI Appellee

v. PETER CHOI Appellant C.A. No. 28568

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2015-10-2939

DECISION AND JOURNAL ENTRY Dated: February 28, 2018

CALLAHAN, Judge. {¶1} Appellant, Peter Choi (“Husband”), ap peals the judgment of the Summit County Common Pleas Court, Domestic Re lations Division. For the reasons set forth below, this Court

affirms.

I. {¶2} Husband and Appellee, Miehyun Claire Choi (“Wife”), were married in 1978. They have three adult children as a result of the marriage. Husband is a licensed dentist. However, due to his age, 64 years, and declining health, he is unemployed. Wife is 62 years of age and works as a nurse anesthetist. During their 38 years of marriage, the parties acquired a marital home, numerous automobiles, significan t retirement assets, and funds in savings and checking accounts. {¶3} In October 2015, Wife filed for divorce, and Husband counterclaimed for the same. The parties litigated several issues at the final divor ce hearing, including spousal support2

and division of marital property. At the divorce hearing, Husband alleged Wife voluntarily reduced her income and improperly disposed of ma rital assets. Wife alleged Husband violated the trial court’s order regarding listing the marital home for sale and refraining from making disparaging comments about Wife. {¶4} The trial court issued a Judgment Entry Decree of Divorce, thereby terminating the marriage. Relevant to this appeal, the di vorce decree ordered Wife to pay spousal support of $2,100.00 per month for 5 years. As to the mar ital property, the retirement accounts were divided equally, while the savings accounts, checki ng accounts, automobiles, and health saving account remained with the respective owner. {¶5} Both Husband and Wife timely appealed. Wife filed a Civ.R. 60(A) motion and motion for limited remand. Upon remand, the tria l court granted Wife’s Civ.R. 60(A) motion and issued a nunc pro tunc Judgment Entry wh ich corrected Wife’s maiden name and the grounds upon which the spousal support shall terminat e. In light of the nunc pro tunc Judgment Entry, Wife moved and was granted a dismissal of her appeal. Only Husband’s appeal remains, with two assignments of error before this Court for consideration.

II.

ASSIGNMENT OF ERROR NO. 1 THE TRIAL COURT ERRED IN ITS FEBRUARY 9, 2017 JUDGMENT ENTRY DECREE OF DIVORCE WHEN IT ORDER[ED] SPOUSAL SUPPORT IN THE AMOUNT OF $2,100.00 PER MONTH BY FAILING TO CONSIDER [WIFE’S] VOLUNTARY REDUCTION OF EMPLOYMENT AND FINANCIAL MISCONDUCT. {¶6} In his first assignment of error, Husband argues that the trial court failed to consider Wife’s voluntary reduction of employme nt and financial miscond uct when determining the spousal support award. This Court disagrees.3

{¶7} Initially, this Court notes that Husband did not identify what actions constituted

Wife’s “financial misconduct” and this Court will not presume that “financial misconduct” and “voluntary reduction of employ ment” are one and the same. See App.R. 16(A)(7). Nor did Husband develop any argument regarding Wife’s financial misconduct re lative to the spousal support award. See id . Because Husband failed to make any argument in support of this issue,

this Court declines to create one for him. Cardone v. Cardone , 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App. LEXIS 2028, *22 (May 6, 1998). (“If an argument exists that can support this assignment of error, it is not this co urt’s duty to root it out.”). Accordingly, this Court confines its review to Husband’s argume nt regarding Wife’s voluntary underemployment in relation to the spousal support award. {¶8} “In divorce * * * proceedings, * * * the court of common pleas may award reasonable spousal support to either party.” R.C. 3105.18(B). A trial court’s decision regarding an award of spousal support is revi ewed for an abuse of discretion. Hirt v. Hirt , 9th Dist. Medina No. 03CA0110-M, 2004-Ohio-4318, ¶ 8. “A trial c ourt will be found to have abused its discretion when its decision is contrary to la w, unreasonable, not supported by evidence, or grossly unsound.” (Citations a nd quotations marks omitted.) Tustin v. Tustin , 9th Dist. Summit No. 27164, 2015-Ohio-3454, ¶ 21. {¶9} “In determining whether spousal support is appropriate and r easonable, and in determining the nature, amount, * * * of spousal s upport * * *, the court sha ll consider all of the * * * factors” listed in R.C. 3105.18(C)(1)(a)-( n). R.C. 3105.18(C)(1). Those factors are as

follows: (a) The income of the parties, from all sources * * *; (b) The relative earning abilities of the parties;4

(c) The ages and the physical, mental, a nd emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party * * *; (k) The time and expense necessary for th e spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment , provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each pa rty, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party’s marital responsibilities; (n) Any other factor that the court expre ssly finds to be rele vant and equitable. R.C. 3105.18(C)(1)(a)-(n). While the trial court’s consideration of each of these factors is mandatory, “[t]he trial court is not required to comment on each statutory factor; rather, the record must only show that the court considered the statutory factors when making its award.”

Manos v. Manos , 9th Dist. Summit No. 27335, 2015-Ohio-2932, ¶ 13; see R.C. 3105.18(C)(1). {¶10} Based on R.C. 3105.18(C)(1)(n), Husband argues that the trial court failed to determine that Wife “‘voluntar[il]y’ reduced her income” and should have her “income * * * imputed at $158,871.” Husband relied entirely on this Court’s decision in Collins v. Collins , 9th5

Dist. Wayne No. 10CA0004, 2011-Ohio-2087. Collins stated “R.C. 3105.18 does not specifically direct the court to examine financial misconduct or whether a party’s conduct evidences intent to avoid payment of spousal support.” Id . at ¶ 21. However, under R.C. 3105.18(C)(1)(n), “if the court determines that such evidence is relevant and equitable in its determination of spousal s upport, [then] it has disc retion to consider it.” Id . An example of relevant and equitable facts that a trial court could consider is “one spouse’s decision to leave his or her secure and lucrative employment.” Id. {¶11} In Collins , the husband filed for divorce and re signed his position as a physician at a hospital earning $200,000 annually in order to open a private medical practice earning $29,400 annually. Id . at ¶ 3, 5. The trial court implicitly found the husband to be voluntarily underemployed and imputed $100,000 to him as income for child and spousal support. Id . at ¶ 33-34. Both the magistrate and tr ial court found the husband did not have an ulterior motive of avoiding support obligations when he resigned fr om the hospital to begin his private practice. Id

. at ¶ 41-42. Because the trial court did not provi de any other analysis of the evidence and the statutory factors, this Court was concerned that the husband’s lack of “ulterior motives in leaving his employment was the paramount consid eration in determining spousal support.” Id. at ¶ 46. This Court stated “[w]hether [the husband] had ul terior motives or not, hi s unilateral decision to leave his secure and lucrative employment, was certainly both relevant and raised equitable concerns as contemplated by R.C. 3105.18(C)(1)(n).” Id. at ¶ 46. Based on various errors, the

case was remanded. Id. at ¶ 38, 45-46. {¶12} This case is factually and legally distinguishable from Collins . The trial court stated it reviewed the R.C. 3105.18(C)(1) factors in light of the testimony and exhibits. This evidence included Wife’s testimony that she was 62 years old and worked as a nurse anesthetist.6

Wife testified that her employer changed in 2015 because the original employer was purchased by another company. In September 2015, her new employer learned that a significant contract would not be renewed effective January 1, 2016. Du e to the loss of this contract, the employer had to “cut back staff through retirements and layoffs [and t]he remaining staffs[’] hours were reduced, * * * in an effort to control costs.” Wife testified that in a meeting with the chairman, he “asked [them] to voluntarily either take an early retirement or take like hours cut because * * * otherwise there was going to be serious layoffs.” Because she needed to continue working, Wife elected the hourly reduction, in lieu of retiremen t and to avoid being laid off. She limited the reduction to an 8-hour shift per week because she knew that she “could [not] afford to cut back any more,” whereas other staff reduced their hours from 40 to 26 hours a week. Despite the early retirements and hourly reductions, 11 nurse anesthetists were terminated. Fortunately, Wife was not one of them. Unlike the spouse in Collins , Wife did not quit a secure and lucrative job. Instead, she took a limited reduction in hours in hopes of keeping her job. {¶13} Husband argues that the employer descri bed the decision of Wife to take an hourly reduction as being “‘entirely voluntarily.’” While Husband states that the “employer[’s] statements” evidencing that “the reduction in hours were ‘entirely voluntarily’” “were admitted into the [c]ourt proceeding,” Husband has failed to cite to the record location of these “employer statements.” An appellant bear s the burden of not only formulating an argument on appeal and supporting that argument with legal authority, but also “ with citations to * * * parts of the record on which the appellant relies .” (Emphasis added.) App.R. 16(A)(7 ). Further, the transcript of the hearing reflects Wife’s counsel objecting to this line of questioning and a sidebar being held. After the sidebar, there were no further questi ons on the issue and Wife did not answer those7

questions. Thus, there was no such evidence at the hearing and this portion of Husband’s argument is not supported by the record. {¶14} On the contrary, Wife testified to and admitted an exhibit of an email from the employer which clarified that it was the impetus of that decision. The employer required Wife to choose early retirement, reduction in hours, or a layoff. Wife’s decision was made at the employer’s demand, and not on her own initiative. Again, unlike the spouse in Collins , Wife’s decision to reduce her income by 8 hours a week was not voluntary, uncoer ced, or unilateral. {¶15} Another distinguishing factor between this case and Collins is found in the findings of the trial courts. The trial court in the case before us considered “all of the statutory factors * * * as made relevant by the evidence” and in light of the evidence, did not “expressly find[]” any other factors relevant or equitable in its considera tion of spousal support. (Emphasis deleted.) See contra Collins at ¶ 46; R.C. 3105.18(C)(1)(n). Accordingly, Husband’s position

that the facts and issues in Collins are akin to this case is incorrect. {¶16} In light of the foregoing, Husband failed to present evidence that Wife’s weekly 8-hour reduction in employment constitute d her being “‘voluntarily under employed.’” Accordingly, the trial court was not required to consider whether Wife was “‘voluntarily under employed’” when deciding the spousal support award. See Johnson v. Johnson , 9th Dist. Summit No. 24159, 2008-Ohio-4557, ¶ 18 (This Court recogniz ed that while the trial court is not prohibited from considering voluntary underemploym ent for purposes of spousal support, such consideration is unwarranted when there is no such evidence.). See also Valentine v. Valentine , 9th Dist. Medina No. 11CA0088-M, 2012-Ohio-4202, ¶ 4-5 (When considering spousal support,

a trial “court did not have to specifically consider whether [the spouse] was voluntarily unemployed * * *.”) (Emphasis added.).8

{¶17} Lastly, Husband’s position that the tr ial court should impute $158,871 in income to Wife to determine spou sal support is not supported by the law. Relying on Collins , this Court has consistently held that the spousal support st atute, unlike the child support statute, does not direct the trial court to “‘impute’” income to a spouse. Collins at ¶ 19; Valentine at ¶ 4-5;

Kokoski v. Kokoski , 9th Dist. Lorain No. 12CA010202, 2013-Ohio-3567, ¶ 19, 21. {¶18} Based on the forgoing, the trial court did not abuse its discretion when it declined to consider whether Wife was voluntarily underem ployed and it did not impute income to Wife. {¶19} Husband’s first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO EQUITABLY DIVIDE THE MARITAL PROPERTY IN ITS FEBRUARY 9, 2017 JUDGMENT ENTRY DECREE OF DIVORCE WHEN IT FAILED TO CONSIDER [WIFE’S] DEPLETION OF [THE] MARITAL ASSETS IMMEDIATELY PRIOR TO THE DIVORCE. {¶20} In his second assignment of error, Husban d argues that the trial court failed to

consider Wife’s financial misconduc t, resulting in an inequitable division of marital property. This Court disagrees. {¶21} “A trial court is vested with broad discretion when fashioning a division of marital property.” Naylor v. Naylor , 9th Dist. Summit Nos. 21758, 21881, 2004-Ohio-4452, ¶ 16. Additionally, the trial court’ s determination regarding whet her one spouse has engaged in

financial misconduct is reviewed for an abuse of discretion. See Havrilla v. Havrilla , 9th Dist. Summit No. 27064, 2014-Ohio-2747, ¶ 46. Pertinent to this Court’s review of this assignment of error, the abuse of discretion standard is se t forth under the first assignment of error. {¶22} R.C. 3105.171(F)(1)-(10) sets forth the factor s the trial court sh all consider when making a division of marital prope rty. Another consideration in the division of marital property9

is financial misconduct by a spouse. See R.C. 3105.171(E)(4). When a spouse engages in financial misconduct, the statute provides the trial c ourt with discretion to “compensate the offended spouse with a distributive award or with a greater award of marital property.” R.C. 3105.171(E)(4); Kita v. Kita , 9th Dist. Summit No. 19256, 1999 Ohio App. LEXIS 5545, *5 (Nov. 24, 1999). {¶23} R.C. 3105.171(E)(4) defines financial misc onduct as including “the dissipation, destruction, concealment, nondisclosure, or fraudulent dispositi on of assets.” As applied to the division of marital property, “financial misc onduct necessarily implicates wrongdoing such as one spouse’s [intentional] interference with the ot her’s property rights or the offending spouse’s profiting from the misconduct.” Tustin , 2015-Ohio-3454, at ¶ 44; Hammond v. Brown , 8th Dist. Cuyahoga No. 67268, 1995 Ohio App. LEXIS 3975, *9 (Sept. 14, 1995). Thus, “[f]inancial misconduct requires more than dishonest behavior.” Bucalo v. Bucalo , 9th Dist. Medina No. 05CA0011-M, 2005-Ohio-6319, ¶ 30. It also “require s ‘some element of wrongful intent or scienter[.]’” Havrilla at ¶ 47, quoting Orwick v. Orwick , 7th Dist. Jefferson No. 04 JE 14, 2005- Ohio-5055, ¶ 25. {¶24} Wrongful scienter may be established based on when the alleged financial misconduct occurred in relation to the filing and pendency of the divorce or period of separation. Downey v. Downey , 9th Dist. Summit No. 23687, 2007-Ohio-6294, ¶ 17; Hammond at *9-10. “[I]f the time frame of the alleged misconduct does not establish scienter , there must be some

other evidence that does establish it.” Orwick at ¶ 28 (If the alleged financial misconduct occurred years prior to the initiation of the divorce proceedings, then there must be proof of wrongful intent when the misconduct occurred.).10

{¶25} The burden of proving fina ncial misconduct rests with the complaining spouse. Palazzo v. Palazzo , 9th Dist. Summit Nos. 27932, 27935, 2016-Ohio-3041, ¶ 10. “An allegation

of financial misc onduct, unsupported by evidence of wrong doing, will not support a dissipation

award.” Detlef v. Detlef , 6th Dist. Lucas No. L-00-1137, 2001 Ohio App. LEXIS 5597, *15 (Dec. 14, 2001). {¶26} Husband contends that immediately prior to filing for divorce, Wife withdrew large sums of money from the marital accounts which she used to purchase a car, make questionable charitable donations, pay down her pe rsonal credit card, and make gifts to their adult children in order to “deceptively deprive[ Husband] of an equal division of what actually

were the marital asse ts.” Husband also asserts that “$160,000.00 from two (2) CD[s ] are un[ac]counted for.”

Car {¶27} Husband and Wife both testified regarding the following vehicles that they owned at the time of the divorce: a Lexus, a 1996 Mazda Miata, a 2003 Acura MDX, a 1997 Acura RL, a 2008 Mercedes, a 2004 Volvo, and a 2016 Subaru Forester. All of the cars, except for the Subaru, were in Husband’s name. However, both parties testified that the Volvo belonged to

their oldest son and the Miata be longed to their youngest son. {¶28} After the divorce was filed, Husband tes tified that he “junked” the Lexus for “$180,” sold the 1997 Acura RL for $500 because it was “broken and * * * undrivable,” and shipped the Miata to their youngest son in Ca lifornia. As to the Volvo, Husband admitted a repair bill and tes tified that the car required $1,317 in engi ne repairs and that their oldest son primarily drove it. Additionally, both partie s testified that the Acura MDX had ongoing11

transmission problems and only operated in fourth gear. There was no testimony as to the condition of the Mercedes except its Kelley Blue Book Value. {¶29} Wife testified that Husband “told [her] to drive whatever car for that day or that week he thought [she] should drive.” She drove the Acura MDX until the transmission began to fail for the third time, which was a couple of m onths before the divorce. According to Wife, because there was something wrong with the Acura MDX, Husband “told” her to drive the Miata. Wife testified that she did not like to the drive the Miata because it was “very slippery” “in the winter.” Also, the Miat a was the youngest son’s car. {¶30} At the hearing, Wife stated that all of Husband’s cars needed repairs and he told

her that “those cars are not in great condition.” With the exception of the Miata, Wife “did not feel unsafe. It was that [Husband] always told [h er] they were unsafe to drive. So[, she] took his

word for it.” {¶31} Because Wife’s commutes to work vari ed and she needed a safe car, she purchased the Subaru. She chose the Subaru be cause her “good friend had bought that car a year before and [her friend’s] husband had done a lot of research on the safest car” before making the purchase. {¶32} Wife purchased the Subaru for $28,484, in cash, approximately one week before filing the divorce. Wife testified that during their marriage she had purchased three other vehicles in cash: the Volvo, the Miata, and a conversion van. {¶33} Based on the foregoing, Husband failed to present any evidence of wrongdoing by Wife when she purchased the Subaru. Wife’s purpose in buying the Subaru a week before the divorce filing was to insure that she had a safe car, which Husband was unable to provide. Accordingly, the timing of the purchase does not establish wrongful scienter by the Wife.12

Moreover, the purchase of a safe vehicle to use fo r her commute to work did not result in a profit to Wife. Further, the purchase of the Subaru wa s made in cash from her savings account, just as she had done for three other vehicles during th e marriage. Thus, there was no evidence Wife was intentionally interfering with Husband’s rights to the marital property.

Charitable Contributions {¶34} Husband challenges Wife’s charitable dona tions in 2012 and contends that “[t]he evidence elicited during trial s hows that [Wife] made imprope r donations to an individual evidenced by d[ia]ries that she had a relationshi p outside the church aff iliation.” Contrary to Husband’s statement, no such evidence is in the record. The hearing reflects that the trial court repeatedly sustained Wife’s objections to the ad mission of her diaries and questioning as to her charitable donations being influenced by an alleged recent paramour. {¶35} Instead, there is evidence that Wife took an $8,000 charitable donation deduction on her 2012 taxes. Additionally, there is a stat ement of giving from Westminster Presbyterian Church dated for 2012 which reflects Wife giving $4,660 to the church throughout the year. At the hearing, Husband argued that Wife failed to prove where the remaining $3,340 was donated and thus infers Wife engaged in misconduct. However, Wife testif ied that she “also contributed to [her] friend’s church, the Catholic church, [and she’s] a member at a Lutheran church” to explain where the remaining contributions were made. {¶36} In response to why she gave $4,600 to Westminster Presbyterian Church, Wife explained that “[i]t’s just the church that [she] grew up in and that [she] had a membership in.” She dispelled the notion that she was giving money to Westminster Presbyterian Church based on romantic reasons by pointing out that the yout h pastor with whom she went on three dates in 1976 left that church the same year. Thus, the ev idence reflected her donations were influenced13

by her past membership at the church and not a short-lived relationship w ith a youth pastor who left the church 36 years ago. {¶37} Wife also testified that she donates “ver y generously to church[es]” because she “feel[s] like God has given [her] a lot and that’s just [her] way of giving back to God. And * * * because * * * the [B]ible says [she] should tithe a nd that’s [her] conviction.” She confirmed that

she did not make charitable donations to hide he r money from Husband. In fact, Husband was aware of her charitable giving because he told her to “pay [her] church offering with [her own] income.” Wife’s tax returns from 2012 through 2015 reflected a consistent five to seven percent charitable donation each year. {¶38} Again, Husband has failed to present eviden ce of wrongdoing by Wife as it relates

to her charitable donations in 2012 to Westminst er Presbyterian Church. The conduct Husband complains of was 3 years prior to and not immediately preceding the divorce. There was no evidence that Wife profited from the charitabl e donation. Instead, the evidence was that Wife

made the donations based on her desire to help others and the directives of the Bible. Nor was there any evidence that Wife intended to dissipate Husband’s share of the marital estate. In fact, Husband was aware of Wife’s charitable giving and told her to do so with her own income. Money Given to Adult Children {¶39} The parties’ three children attended Harvard for their undergraduate education. As agreed by Wife and Husband, Wife paid for a ll of their daughter’s tuition, they split the cost of the tuition for their youngest son, while their oldest son paid for his own tuition. Husband testified that he paid for everythi ng else related to the children, such as their travel to school. He stated that Wife kept all her money in her acc ount and did not pay for anything. Eventually, he14

conceded that Wife “paid [for] some of them later on” and that she bought the Miata for their youngest son. {¶40} Wife testified more specifically that out of her bank account she paid for all three of the children’s “[b]ooks, clothes, living pocke t money,” “room and board,” “travel back and forth” for the holidays, and their credit card bills. While the children were in college and after they graduated, Wife would also deposit mone y into their individual bank accounts. For instance, in 2012 Wife deposited $1,500 and $10,000 in to the youngest son’s account. And she deposited $20,000 into the oldest son’s account in 2011 and again in 2012. The second deposit was to pay for his half of the cost of his wedding. {¶41} On appeal Husband does not challenge these payments to the children. He only contests the payments Wife made in August a nd September 2015 to the ch ildren. Wife testified that she paid their daughter $4,000 on August 8, 2015 as reimbursement for her portion of the meals, hotel, and travel costs asso ciated with a trip to Vancouver with their daughter and son-inlaw. Additionally, Wife gave their youngest son $2,000 on September 4, 2015 to help him with

the cost of his medicine related to a recent illness. Lastly, Wife issued two checks to their oldest son on September 19, 2015–one in the amount of $5,000 as an anniversary gift and one in the amount of $1,000 as a birthday gift. {¶42} While all of these payments occurred shortly before the divorce filing, there is no evidence that Wife acted with a wrongful intent in issuing these payments. The moneys were paid to their adult children. Contrary to Husband’ s bald assertions that Wife only paid tuition, the checks from 2011 and 2012 established that Wife had historically given large sums of money to

their adult children for various reasons. Husba nd did not contest Wife’s expenditures to their children in the past. Thus, her continued suppor t of their children a month prior to the divorce15

filings is not evidence of an intentional interf erence with Husband’s rights to the marital property. Nor is there evidence that Wife ga ined or profited from these expenditures. Credit Card Payment {¶43} Wife testified and her ba nk statement reflected that she made a payment of $3,120.79 to American Express for her credit car d on September 9, 2015. Husband did not elicit any other testimony from Wife regarding this credit card payment. Husband argues that the proximity of the credit card payment to the filing of the divorce establishes Wife’s wrongful scienter. While this was a significant paym ent in the month preceding the divorce filing, Husband admitted other evidence which established this single payment was not made with wrongful scienter. {¶44} Husband admitted Wife’s Affidavit of Prope rty in which she responded that “[a]ll credit cards” were “[p]aid monthly” and there wa s no balance due. Additi onally, Wife testified that she does not have any credit card debt. Further, Husband admitted Wife’s bank statements from September 1, 2015 through July 31, 2016. A review of these bank statements reflects that Wife routinely made a monthly payment to Ameri can Express during the first half of each month in amounts ranging from $1,950 to $5,065. 1 This payment history, along with Wife’s averment in the Affidavit of Property that she has no outst anding debt because it is paid monthly, shows Wife’s lack of wrongful scienter as to the single American Express credit card payment in September 2015.

1 Husband does not argue that payments subs equent to the divorce filing were financial misconduct.16

Certificates of Deposit {¶45} Wife testified that in 2008 she did not renew her certificates of deposit (“CDs”)

from 2005 and 2006 and instead rolled the CDs’ proceeds of $108,932 into her money market

account. These transactions we re reflected on her September 2008 bank statement. Husband does not dispute this chain of events. Instea d, he argues that Wife engaged in financial

misconduct because she has not accounted for what happened to the monies from the CDs from 2008 to the present. Husband has “calculated th ere’s about at least one million dollar[s] gone

somewhere” and he does not know “where it ended up.” {¶46} In response, Wife testified that she does not have any CDs currently. As to the funds from the earlier CDs, she stated that th e money was transferred into her money market account and she “used it for tuition, for the living ex penses for [her] children, [and] all the bills.” The youngest child graduated from college in 2011. As addressed above, there were checks made payable to the children dating back to 2011. Wife stated that none of the proceeds from the CDs is missing or hidden. Wife tes tified that she has only ever had one bank account and that all her money is in that account because she is “not very financially savvy.” {¶47} In this case, Husband is complaining of alleged misc onduct dating back 7 years. He has failed to present anything other than bald accusations that Wife wrongfully disposed of the proceeds from the CDs. There is no evidence that Wife personally profited or engaged in misconduct solely to defeat Husband’ s interest in the marital estate. Instead, the evidence is that the proceeds of the CDs were used to the benefit of their children and to pay bills.

Conclusion {¶48} The trial court made no finding on the i ssue of financial mis conduct and did not mention the issue in the final judgment. This is because Husband’s evidence did not support17

consideration of the issue of fi nancial misconduct. Accordingly, the trial court did not abuse its discretion in fashioning an equitabl e division of the marital property. {¶49} Husband’s second assignment of error is overruled.

III. {¶50} Husband’s first and second assignments of error are overruled. The judgment of the Summit County Common Pleas Court, Domestic Relations Division is affirmed. Judgment affirmed.

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 manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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 to Appellant.

LYNNE S. CALLAHAN FOR THE COURT18

HENSAL, P. J. SCHAFER, J. CONCUR.

APPEARANCES: THOMAS T. MULLEN, Attorney at Law, for Appellant. RANDAL A. LOWRY, Attorney at Law, for Appellee. KENNETH L. GIBSON, Attorney at Law, for Appellee.