[Cite as Haven v. Haven, 2012-Ohio-5347.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STEPHEN HAVEN : JUDGES: 

 : 

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

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

 : Hon. William B. Hoffman, J. 

-vs- : 

 : Case No. 12-COA-013 

THERESE HAVEN : 

 : 

 : 

 Defendant-Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of 

Common Pleas, Domestic Relations 

Division, Case No. 10-DIV-157 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: November 9, 2012

APPEARANCES: 

For Appellant: For Appellee: 

 

JEFFREY V. HAWKINS MELISSA K. TOMMELLEO 

One Cascade Plaza, Suite 2210 76 N. Mulberry St. 

Akron, OH 44308-1135 Mansfield, OH 44902 

 
Delaney, P.J. 

{¶1} Plaintiff-Appellant Stephen Haven appeals the March 28, 2012 Decree of 

Divorce issued by the Ashland County Court of Common Pleas, Domestic Relations 

Division. 

FACTS AND PROCEDURAL HISTORY 

{¶2} Plaintiff-Appellant Stephen Haven (“Husband”) and Defendant-Appellee 

Therese Haven (“Wife”) were married on July 3, 2004. Husband filed a complaint for 

divorce on July 30, 2010. The matter came on for hearing before the magistrate on 

May 26, 2011. The issues at the hearing were the division of the marital home and 

the appropriateness of a distributive award, the division of certain personal property, 

and spousal support. 

{¶3} The parties stipulated the duration of the marriage was from July 3, 

2004 through May 26, 2011. No children were born as issue of the marriage. 

Husband has two children from a previous marriage. Wife has four children from a 

previous marriage. At the time of the magistrate’s hearing, the children were in either 

high school or college. 

{¶4} At the time of the divorce, Husband was 54 years old and in good health. 

Husband has two master’s degrees and a doctorate. He is employed at Ashland 

University as the director of the graduate creative writing program in poetry and 

creative nonfiction, earning $66,000 as a base salary and $10,000 as a summer 

supplemental income for being the director of the program. Ashland University 

determines yearly whether Husband will continue as the director of the program. If 
Husband were not selected to direct the program, he would continue as a professor at 

Ashland University. 

{¶5} Wife was 50 years old and in good health. Wife has a master’s degree in 

business administration. She is employed at Benedictine High School with an annual 

income of $57,600. Wife was unemployed from August 2010 to January 2011. 

{¶6} Prior to the marriage, the parties owned separate residences. Husband 

owned a home on Smith Road in Ashland, Ohio (“Smith Road Home”). Wife owned a 

home on Michaels Road in Fremont, Ohio (“Michaels Road Home”). The parties 

became engaged in 2003. Wife listed the Michaels Road Home for sale and the 

parties resided together at the Smith Road Home. Survivorship deeds were prepared 

for both parties’ names to be added to the deeds of the Smith Road and Michaels 

Road homes. 

{¶7} Husband and Wife determined the Smith Road Home was too small for 

the family of eight. The Smith Road Home was placed on the real estate market and 

the parties commenced construction on a home located on Williamsburg Court, 

Ashland, Ohio (“Williamsburg Court Home”). In order to finance the construction of 

the Williamsburg Court Home, Wife took out a bridge loan on the Michaels Road 

Home. The Michaels Road Home sold in 2006. The bridge loan was paid off and 

Wife earned $100,000 as profit from the sale of the Michaels Road Home. The 

$100,000 was used as a down payment on the Williamsburg Court Home. 

{¶8} At the time of the marriage, Husband had a line of credit on the Smith 

Road Home with a balance of $12,117.98. The line of credit on the Smith Road Home 

was solely in Husband’s name and Wife had no access to this account. Prior to the 
sale of the Smith Road Home, the parties moved to the Williamsburg Court Home. 

The Smith Road Home was sold in 2008. At the time of the sale, the balance of the 

line of credit on the Smith Road Home was $27,006.10. 

{¶9} In 2006, the parties opened a home equity line of credit with the 

Williamsburg Home in the amount of $100,000. The HELOC was used to (1) pay off 

Husband’s premarital credit card debt for $8,350; (2) to purchase a 2006 Ford Taurus 

for $10,632.90; (3) to retire the $27,006.10 owed on Husband’s line of credit on the 

Smith Road Home to complete the sale of that home; and (4) for the children’s 

educational expenses and wedding expenses in the amount of $42,500. Wife argued 

it was her intention to use the $100,000 HELOC for the children’s college education 

only. Husband made $22,032.69 in payments against the HELOC. 

{¶10} The parties stipulated Husband would receive the 2006 Ford Taurus. 

{¶11} The magistrate’s decision was issued on October 26, 2011. Relevant to 

this appeal, the magistrate recommended that Husband pay Wife a distributive award 

of $23,956.31. The amount represented $8,350 of Husband’s premarital credit card 

debt, $10,632.90 for the Ford Taurus, $27,006.10 for the Smith Road House line of 

credit, and less the $22,032.69 of Husband’s payments to the Williamsburg Court 

Home HELOC. 

{¶12} The magistrate further recommended it was reasonable and appropriate 

for Husband to pay Wife spousal support in the amount of $500 per month for twelve 

months. 

{¶13} Husband filed objections to the magistrate’s decision. The trial court 

filed a judgment entry on February 2, 2012 overruling Husband’s objections and 
adopting the magistrate’s decision. A final decree of divorce was filed on March 28, 

2012. 

{¶14} It is from this decision Husband now appeals. 

ASSIGNMENTS OF ERROR 

{¶15} Husband raises three Assignments of Error: 

{¶16} “I. THE TRIAL COURT ERRED IN SUSTAINING THE MAGISTRATE’S 

DECISION THAT ISSUED A DISTRIBUTIVE AWARD IN FAVOR OF THE 

DEFENDANT/APPELLEE AND AGAINST THE PLAINTIFF/APPELLANT. 

{¶17} “II. THE TRIAL COURT ERRED IN SUSTAINING THE MAGISTRATE’S 

DECISION THAT AWARDED SPOUSAL SUPPORT IN FAVOR OF THE 

DEFENDANT/APPELLEE. 

{¶18} “III. THE TRIAL COURT ERRED IN SUSTAINING THE MAGISTRATE’S 

DECISION THAT FOUND THE EVIDENCE PRESENTED AT TRIAL WAS 

SUFFICIENT TO ALLOW A DISTRIBUTIVE AWARD TO THE 

DEFENDANT/APPELLEE AND AGAINST THE PLAINTIFF/APPELLANT.” 

ANALYSIS 

I., III. 

{¶19} We consider Husband’s first and third Assignments of Error together 

because the assignments raise the $23,956.31 distributive award given to Wife. 

Husband argues the trial court erred in ordering Husband to pay a distributive award 

to Wife because the evidence was insufficient to support such an award. We 

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

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

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

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

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

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

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

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

facilitate, effectuate, or supplement a division of marital property. R.C. 

3105.171(E)(1). Under R.C. 3105.171(F), the trial court must consider the following 

factors in determining whether to make and the amount of a distributive award: 

(1) The duration of the marriage; 

(2) The assets and liabilities of the spouses; 

(3) The desirability of awarding the family home, or the right to reside in 

the family home for reasonable periods of time, to the spouse with 

custody of the children of the marriage; 

(4) The liquidity of the property to be distributed; 

(5) The economic desirability of retaining intact an asset or an interest in 

an asset; 

(6) The tax consequences of the property division upon the respective 

awards to be made to each spouse; 

(7) The costs of sale, if it is necessary that an asset be sold to effectuate 

an equitable distribution of property; 
(8) Any division or disbursement of property made in a separation 

agreement that was voluntarily entered into by the spouses; 

(9) Any retirement benefits of the spouses, excluding the social security 

benefits of a spouse except as may be relevant for purposes of dividing a 

public pension; 

(10) Any other factor that the court expressly finds to be relevant and 

equitable. 

Husband has not made any argument that the trial court failed to properly apply R.C. 

3105.171(F) in making the distributive award. 

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

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

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

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

of discretion” connotes more than an error of law or judgment; it implies that the 

court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

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

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

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

Dist. No. 11CAF090079, 2012-Ohio-2893, ¶ 31 citing Taub v. Taub, 10th Dist. No. 

08AP750, 2009-Ohio-2762, ¶ 15. Valuing property involves factual inquiries and also 

requires an appellate court to apply a manifest weight of evidence standard of review. 

Wright v. Wright, 4th Dist. No. 94CA02, 1994 WL 649271 (November 10, 1994). An 
appellate court will not reverse a trial court's valuation if it is supported by some 

competent, credible evidence. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 

N.E.2d 1273 (1984). 

{¶23} Husband argues the distributive award was in error because while the 

$100,000 from the sale of the Michaels Road Home was Wife’s separate property, 

when Wife used that property as a down payment on the Williamsburg Court Home, it 

became comingled with marital property and was no longer traceable as separate 

property. Husband further argues the debts paid with the $100,000 were marital debts 

and not Husband’s separate debts. “Pursuant to R.C. 3105.171(B), a spouse’s 

separate property should be distributed to that spouse and it is error to award 

separate property as marital property.” Furman v. Furman, 10th Dist. No. 10AP-407, 

2011-Ohio-6558, ¶ 25 citing Colley v. Colley, 10th Dist. No. 09AP-333, 2009-Ohio6776. “When assessing whether an asset is marital property or separate property, the 

presumption is that an asset acquired during the course of marriage is martial property 

unless proved otherwise. R.C. 3105.171(A)(6)(b). A party in a divorce action 

requesting classification of a commonly-held asset as separate property, therefore, 

bears the burden of tracing that asset to his or her separate property. Dunham v. 

Dunham, 171 Ohio App.3d 147, 870 N.E.2d 168, 2007–Ohio–1167, ¶ 20.” Furman, 

supra. 

{¶24} The distributive award was based on the sale of the Michaels Road 

Home. The Michaels Road Home sold in 2006 and Wife earned $100,000 as profit 

from the sale of the Home. The $100,000 was used as a down payment on the 
Williamsburg Court Home. Husband does not dispute the $100,000 from the sale of 

the Michaels Road home was Wife’s premarital asset. 

{¶25} In 2006, the parties opened a home equity line of credit with the 

Williamsburg Home in the amount of $100,000. The HELOC was used to (1) pay off 

Husband’s premarital credit card debt for $8,350; (2) to purchase a 2006 Ford Taurus 

for $10,632.90; (3) to retire the $27,006.10 owed on Husband’s line of credit on the 

Smith Road Home to complete the sale of that home; and (4) for the children’s 

educational expenses and wedding expenses in the amount of $42,500. Wife argued 

it was her intention to use the $100,000 HELOC for the children’s college education 

only. Husband made $22,032.69 in payments against the HELOC. 

{¶26} The magistrate’s decision recommended that Husband pay Wife a 

distributive award of $23,956.31. The amount represented $8,350 of Husband’s 

premarital credit card debt, $10,632.90 for the Ford Taurus, $27,006.10 for the Smith 

Road House line of credit -- less the $22,032.69 of Husband’s payments to the 

Williamsburg Court Home HELOC. 

{¶27} Husband states the evidence show the debts paid by the Williamsburg 

Court Home HELOC were debts incurred after the marriage on July 3, 2004. We will 

examine each debt based on the evidence presented at trial. 

{¶28} (A) $8,350 Credit Card Debt 

{¶29} Husband argues there is no evidence that the $8,350 debit from the 

Williamsburg Court Home HELOC was Husband’s premarital debt. He states the 

$8,350 listed on the HELOC account statement as a cash advance is insufficient to 

establish it was Husband’s debt. Wife testified at trial it was her recollection that the 
$8,350 was used to pay off the balance of Husband’s credit card that had zero percent 

interest for twelve months. The twelve month period was to expire and the parties 

used the Williamsburg Court Home HELOC to pay off the balance of the credit card. 

(T. 70-71.) Husband did not provide any details in his testimony as to the origin of the 

$8,350 debt. 

{¶30} (B) $10,632.90 Ford Taurus Purchase 

{¶31} The 2006 Ford Taurus was purchased during the marriage with funds 

from the Williamsburg Court Home HELOC. Husband primarily drove the vehicle. 

Wife testified she disagreed with the purchase of the vehicle, and she disagreed with 

the use of the Williamsburg Court Home HELOC to purchase the vehicle because the 

HELOC was to be used for the children’s education. (T. 68-69). In the parties’ 

stipulations to the divorce decree, the parties agreed Husband would receive the Ford 

Taurus. 

{¶32} (C) $27,006.10 Smith Road Home Line of Credit Payoff 

{¶33} At the time of the parties’ marriage, the line of credit on the Smith Road 

Home was $12,117.98. Only Husband had access to this line of credit. At the time of 

the sale of the Smith Road Home, the line of credit was $27,006.10. 

{¶34} Husband testified the line of credit was used for family expenses. (T. 

38.) The Smith Road Home line of credit was also used to pay mortgage and other 

expenses on the Smith Road Home, because for a period of time, the parties owned 

both the Smith Road Home and the Williamsburg Court Home. (T. 37-38). Wife 

testified she had no control over the Smith Road Home line of credit. She discussed 
with Husband that the sale price of the Smith Road Home should be lowered rather 

than incurring further expenses on the line of credit. (T. 63-64). 

{¶35} There is no dispute the $100,000 profit from the sale of the Michaels 

Road Home was Wife’s separate property and that separate property was used as a 

down payment on the Williamsburg Court Home. A HELOC was then established on 

the Williamsburg Court Home in the amount of $100,000. Certain debts incurred 

before and during the marriage were paid from the Williamsburg Court Home HELOC, 

of which caused the trial court to grant Wife a distributive award in order to effectuate 

a fair and equitable distribution of the marital and separate property and debt. 

{¶36} Based on the evidence presented, we find no abuse of discretion in the 

trial court’s division of the separate and marital property and debt. The trial court’s 

determinations are supported by competent and credible evidence. 

{¶37} Husband’s first and third Assignments of Error are overruled. 

II. 

{¶38} Husband argues in his second Assignment of Error the trial court erred in 

granting Wife spousal support in the amount of $500 per month for twelve months. 

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

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

N.E.2d 83 (1990). An abuse of discretion connotes more than an error of law or 

judgment; it implies that the court's attitude is unreasonable, arbitrary, or 

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

{¶40} R.C. 3105.18(C)(1)(a) through (n), which sets forth the factors a trial 

court is to consider in determining whether spousal support is appropriate and 
reasonable and in determining the nature, amount, terms of payment, and duration of 

spousal support, provides: 

(C)(1) In determining whether spousal support is appropriate and 

reasonable, and in determining the nature, amount, and terms of 

payment, and duration of spousal support, which is payable either in 

gross or in installments, the court shall consider all of the following 

factors: 

(a) The income of the parties, from all sources, including, but not limited 

to, income derived from property divided, disbursed, or distributed under 

section 3105.171 of the Revised Code; 

(b) The relative earning abilities of the parties; 

(c) The ages and the physical, mental, and emotional conditions of the 

parties; 

(d) The retirement benefits of the parties; 

(e) The duration of the marriage; 

(f) The extent to which it would be inappropriate for a party, because that 

party will be custodian of a minor child of the marriage, to seek 

employment outside the home; 

(g) The standard of living of the parties established during the marriage; 

(h) The relative extent of education of the parties; 

(i) The relative assets and liabilities of the parties, including but not 

limited to any court-ordered payments by the parties; 
(j) The contribution of each party to the education, training, or earning 

ability of the other party, including, but not limited to, any party's 

contribution to the acquisition of a professional degree of the other party; 

(k) The time and expense necessary for the spouse who is seeking 

spousal support to acquire education, training, or job experience so that 

the spouse will be qualified to obtain appropriate employment, provided 

the education, training, or job experience, and employment is, in fact, 

sought; 

(l) The tax consequences, for each party, of an award of spousal 

support; 

(m) The lost income production capacity of either party that resulted from 

that party's marital responsibilities; 

(n) Any other factor that the court expressly finds to be relevant and 

equitable. 

{¶41} In his decision, the magistrate considered the parties’ factual 

stipulations, the educational backgrounds, and employment histories. Husband has 

two master’s degrees and a doctorate. He works at Ashland University earning 

$66,000 per year and $10,000 as a supplemental income for directing the graduate 

creative writing program in poetry and creative nonfiction. Husband foresees he will 

be the director of the program for at least one year. Wife has her master’s degree in 

business administration. She was unemployed from August 2010 to January 2011, 

but now currently earns $57,600 at Benedictine High School. The parties divided their 
retirement benefits. The parties were married seven years and enjoyed an upper 

middle class standard of living during their marriage.

{¶42} We find the trial court considered the appropriate factors and did not 

abuse its discretion in ordering Husband to pay Wife spousal support in the amount of 

$500 per month for twelve months.

{¶43} Husband’s second Assignment of Error is overruled. 

CONCLUSION 

{¶44} The three Assignments of Error of Plaintiff-Appellant Stephen Haven are 

overruled. 

{¶45} The judgment of the Ashland County Court of Common Pleas, Domestic 

Relations Division is affirmed. 

By: Delaney, P.J. 

Gwin, J. and 

Hoffman, J. concur. 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. WILLIAM B. HOFFMAN 

PAD:kgb 
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STEPHEN HAVEN 

 

 Plaintiff - Appellant 

 

-vsTHERESE HAVEN 

 Defendant - Appellee 

 

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 JUDGMENT ENTRY 

 Case No. 12-COA-013 

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

Ashland County Court of Common Pleas, Domestic Relations Division, is affirmed. 

Costs assessed to Appellant. 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. WILLIAM B. HOFFMAN