[Cite as Lanzilotta v. Lanzilotta, 2013-Ohio-4050.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

JENNIFER A. LANZILLOTTA, 

 Plaintiff-Appellant/CrossAppellee, 

 vs. 

JEFFREY A. LANZILLOTTA, 

 Defendant-Appellee/CrossAppellant. 

:

: 

: 

: 

: 

: 

APPEAL NOS. C-120796 

 C-120835 

TRIAL NO. DR-1000288 

 O P I N I O N.

 

Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations 

Division 

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

Remanded 

Date of Judgment Entry on Appeal: September 20, 2013 

The Farrish Law Firm and Michaela M. Stagnaro, for Plaintiff-Appellant/CrossAppellee, 

Donovan Law and Michael P. McCafferty, for Defendant-Appellee/Cross-Appellant. 

Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS 

2

SYLVIA S. HENDON, Presiding Judge. 

{¶1} Jennifer Lanzillotta and Jeffrey Lanzillotta have both appealed from 

the trial court’s judgment entry granting their decree of divorce. Because the trial 

court failed to consider Jennifer’s overtime pay when determining her income for 

purposes of calculating child and spousal support, and because the court failed to 

consider the tax consequences of its property division award, we remand this cause 

for the trial court’s reconsideration of these issues. The judgment entry and decree 

of divorce issued by the trial court is otherwise affirmed. 

Factual Background 

{¶2} Jennifer and Jeffrey were married on July 6, 1996. The termination 

date of their marriage was March 14, 2010. Three children were born of the 

marriage. The parties agreed on most parenting issues and submitted a shared 

parenting plan to the court, which was incorporated into its final entry and decree of 

divorce. The parties also agreed on a myriad of property issues and submitted a joint 

property stipulation. Various other property matters were tried before the court. 

The trial court’s final entry resolved the property issues, granted the parties a decree 

of divorce, and incorporated the parties’ shared parenting plan. 

Jennifer’s Appeal 

A. Property Distribution 

{¶3} Jennifer argues in her first assignment of error that the trial court 

failed to equitably divide the parties’ property. A trial court has broad discretion in 

determining an equitable division of property in divorce proceedings, and will not be 
OHIO FIRST DISTRICT COURT OF APPEALS 

3

reversed absent an abuse of discretion. Kenning v. Gundrum, 1st Dist. Hamilton No. 

C-060921, 2007-Ohio-4706, ¶ 5. An abuse of discretion “connotes more than an 

error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable 

attitude on the part of the court.” Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 

1199 (1982). 

{¶4} Jennifer first argues that the trial court incorrectly determined her 

interest in the parties’ marital home. The parties had stipulated that Jeffrey was to 

retain the home following the divorce, but had not agreed upon Jennifer’s equity 

interest in the home. In addition to the first mortgage on the home, the parties had 

obtained an equity line of credit. When determining Jennifer’s equity interest, the 

trial court had subtracted both the first mortgage and the balance on the equity line 

of credit from the home’s fair market value. The court then additionally subtracted 

Jeffrey’s uncontested premarital interest in the home. The court divided the 

resulting value in half to determine each party’s separate interest in the property. 

The trial court further ordered that Jennifer and Jeffrey were each responsible for 

half of the debt remaining on the equity line of credit. Jennifer argues that the trial 

court ordered her to pay twice for the equity line debt because her value in the home 

had already been reduced by the debt. 

{¶5} We are not persuaded by Jennifer’s argument. The trial court correctly 

determined the parties’ equity in the home by subtracting both the first mortgage 

and the equity line debt from the home’s fair market value. And because the equity 

line debt had been incurred on marital expenses, the trial court correctly ordered the 

parties to equally share responsibility for this debt. Jennifer’s argument fails to 

recognize that the trial court’s entry treats both parties equally with respect to the 
OHIO FIRST DISTRICT COURT OF APPEALS 

4

equity line debt. Both parties’ equity in the home was decreased by this debt, and 

both parties were ordered to shoulder the debt equally. We note that even if the trial 

court had not subtracted the balance of the equity line debt from the home’s fair 

market value when determining the parties’ equity interest, the overall equalization 

payment between the parties would remain the same because each party’s equity 

interest would have increased by the same amount. 

{¶6} Jennifer next argues that the trial court erred in its valuation of her 

engagement ring and by deeming the ring a marital asset. She contends that this 

issue was not properly before the trial court for review because the parties had 

submitted a property stipulation to the court that did not list the engagement ring as 

a disputed item. Jeffrey argues that because the ring had been purchased in part 

with funds from the equity line of credit, which the parties agreed was a disputed 

issue, valuation and division of the ring was properly before the trial court for its 

consideration. We are persuaded by Jeffrey’s argument and find that issues 

concerning the engagement ring were properly before the trial court for review. 

{¶7} Testimony provided at the property division hearing indicated that 

Jennifer’s engagement ring had been either lost or stolen during the marriage. 

Jeffrey testified that the parties had received approximately $2,700 in insurance 

proceeds for the ring, and that they had paid an additional four to six thousand 

dollars for Jennifer to obtain a new ring. He indicated that he was not in favor of 

spending this additional money on the ring. Jeffrey further testified that the new 

ring had been appraised for $9,500. The trial court allowed his testimony but 

declined to admit the appraisal into evidence. Jennifer testified that she and Jeffrey 

had been in agreement that she should “upsize” her ring after the original was lost. 
OHIO FIRST DISTRICT COURT OF APPEALS 

5

She testified that, including the insurance proceeds, they paid a total of four to five 

thousand dollars for the new ring. Jennifer indicated that the ring’s appraisal had 

been inflated because the jeweler was a friend of the family. 

{¶8} The trial court valued the ring at $9,500 and found it to be marital 

property. No abuse of discretion occurred in the trial court’s valuation of the ring, 

which was supported by testimony in the record. Nor did the trial court abuse its 

discretion in considering the ring to be marital property. Generally, an engagement 

ring is considered a gift and is the separate property of the party who received it. 

Derrit v. Derrit, 163 Ohio App.3d 52, 2005-Ohio-4777, 836 N.E.2d 39, ¶ 48-49 (11th 

Dist.). But in this case, the original engagement ring was lost or stolen, and the 

parties replaced the ring by purchasing a new one with marital funds. The trial court 

believed Jeffrey’s testimony that he had not desired to spend additional funds on the 

new ring and that he had not intended it to be a gift to Jennifer. 

{¶9} Jennifer argues that, at the very least, she is entitled to receive as her 

separate property the $2,700 insurance proceeds received for the lost ring. The trial 

court considered this argument and determined that the insurance proceeds were 

likewise marital property because the insurance premiums had been paid with 

marital funds. We agree with the trial court’s determination. See Burkhart v. 

Burkhart, 2013-Ohio-157, 986 N.E.2d 45, ¶ 20-21 (10th Dist.), affirming a lower 

court’s decision that “proceeds from an insurance policy for which the premiums 

were paid from marital funds should be considered a marital asset.” 

{¶10} Jennifer last argues that the trial court erred in calculating the parties’ 

equalization payment and in failing to consider the tax consequences associated with 

that payment. The trial court ordered Jeffrey to pay Jennifer a property equalization 
OHIO FIRST DISTRICT COURT OF APPEALS 

6

payment of $36,694 from his 401(K) account. Jennifer argues that this payment 

should be increased based on her previous arguments concerning the equity line debt 

and the engagement ring. Based on our determination that these prior arguments 

were without merit, we hold that the trial court correctly determined the amount of 

the equalization payment. 

{¶11} Jennifer next argues that the trial court failed to consider the tax 

consequences that she will incur when she withdraws the transferred funds as cash 

from her own 401(K) account. She is correct. R.C. 3105.171(F) contains a list of 

factors that the trial court shall consider when making a distributive award. One 

factor to be considered is “the tax consequences of the property division upon the 

respective awards to be made to each spouse.” R.C. 3105.171(F)(6). Because the 

statute provides that the trial court “shall consider” the listed factors, trial courts are 

mandated to consider each factor. See Thomas v. Thomas, 171 Ohio App.3d 272, 

2007-Ohio-2016, 870 N.E.2d 263, ¶ 6 (1st Dist.); Williams v. Williams, 12th Dist. 

Warren No. CA2012-08-074, 2013-Ohio-3318, ¶ 38. If the parties fail to present 

evidence on any of the factors provided in R.C. 3105.171(F), the trial court bears the 

burden of directing them to present such evidence. Here, the trial court erred in 

failing to consider the tax consequences associated with the ordered equalization 

payment. 

{¶12} Jennifer’s first assignment of error is sustained in part and overruled 

in part. On remand, the trial court must consider the tax consequences associated 

with a potential equalization payment before awarding the payment. 
OHIO FIRST DISTRICT COURT OF APPEALS 

7

B. Child-Support Deviation and Tax Exemptions 

{¶13} In her second assignment of error, Jennifer argues that the trial court 

erred in determining her child-support obligations and in allocating tax exemptions. 

We review the trial court’s decision on both matters for an abuse of discretion. 

France v. France, 1st Dist. Hamilton Nos. C-100468 and C-100489, 2011-Ohio-3025, 

¶ 13; Cwik v. Cwik, 1st Dist. Hamilton No. C-090843, 2011-Ohio-463, ¶ 67. 

{¶14} Jennifer first contends that the trial court erred in not awarding a 

greater child-support deviation. An appropriate deviation cannot be determined 

until the amount of child-support has been calculated. Because we are remanding 

this cause for a determination of Jennifer’s child-support obligations utilizing an 

income that includes her overtime pay (which we discuss and hold in response to 

Jeffrey’s first assignment of error), we find that this argument is moot. 

{¶15} Jennifer next argues that the trial court erred in allocating tax 

exemptions. The magistrate had awarded Jennifer two children to claim for tax 

exemption purposes each year until the parties’ oldest daughter became 

emancipated. The trial court modified the magistrate’s award, specifically holding 

that Jeffrey was entitled to claim two children for tax exemption purposes for the 

year 2011. For each year following, the court held that the parties would alternate 

claiming two children. Jennifer contends that the trial court’s modification was in 

error because she will benefit more from the exemptions because she pays a majority 

of the children’s expenses. 

{¶16} R.C. 3119.82 concerns the designation of a parent to claim a federal tax 

deduction. It provides that if the parents do not agree on which parent may claim the 

children, the court, when determining which party to grant the deduction, “shall 
OHIO FIRST DISTRICT COURT OF APPEALS 

8

consider * * * any net tax savings, the relative financial circumstances and needs of 

the parents and children, the amount of time the children spend with each parent, 

the eligibility of either or both parents for the federal earned income tax credit or 

other state or federal tax credit, and any other relevant factor concerning the best 

interest of the children.” R.C. 3119.82. 

{¶17} In this case, both parents were designated as residential parents. 

Although the oldest child resides solely with Jennifer, the younger children spend 

their time equally between parents. Accordingly, no error occurred in the trial 

court’s determination that the parties’ should alternate claiming two children. Nor 

did the trial court abuse its discretion in granting Jeffrey two children to claim as tax 

exemptions in the year 2011. Jennifer had claimed two children in the year 2010, 

and the court equitably determined that Jeffrey should be entitled to claim two 

children the following year. Jennifer’s second assignment of error is overruled. 

Jeffrey’s Cross-Appeal 

A. Calculation of Child Support and Spousal Support 

{¶18} In his first assignment of error, Jeffrey argues that the trial court erred 

in calculating Jennifer’s income for purposes of child support and allocation of 

expenses. 

{¶19} The magistrate determined that Jennifer’s income was $135,500. 

Jeffrey objected to this amount, arguing that the magistrate had failed to include 

Jennifer’s overtime pay when calculating her income. With respect to overtime, 

Jennifer had testified that in the year 2011, the year in which she testified, she had 

received a substantial amount of overtime pay to date. Jennifer further testified that 
OHIO FIRST DISTRICT COURT OF APPEALS 

9

she did not expect there to be much overtime available in the future because her 

employer had hired additional employees. When ruling on Jeffrey’s objection to the 

calculation of Jennifer’s income, the trial court determined that the magistrate had 

correctly found Jennifer’s income to be $135,500. In so concluding, the court cited 

Jennifer’s testimony that the overtime was unlikely to occur in the future. 

{¶20} R.C. 3119.01(C) defines the term gross income for purposes of 

determining child support. It provides that gross income means “the total of all 

earned and unearned income from all sources during a calendar year, whether or not 

the income is taxable, and includes income from salaries, wages, overtime pay, and 

bonuses.” See R.C. 3119.01(C)(7). This provision requires the trial court to consider 

a party’s overtime pay when calculating the party’s income. But Jennifer contends 

that the trial court properly calculated her income without including overtime pay 

because the overtime pay was nonrecurring income pursuant to R.C. 3119.01(C)(8). 

{¶21} R.C. 3119.01(C)(7) lists various types of income and benefits that 

should not be included when calculating a party’s gross income, including 

nonrecurring or unsustainable income. R.C. 3119.01(C)(7)(e). Nonrecurring income 

is defined in R.C. 3119.01(C)(8) as “an income or cash flow item the parent receives 

in any year or for any number of years not to exceed three years that the parent does 

not expect to continue to receive on a regular basis.” Jennifer asserts that because 

she is not likely to receive overtime pay in the future, it is nonrecurring income and 

should not be included in a calculation of her gross income. 

{¶22} We are not persuaded. R.C. 3119.05(D) provides how to determine the 

actual amount of overtime earned by a parent when calculating that parent’s gross 

income. It provides that the calculation should utilize the lesser of the following as 
OHIO FIRST DISTRICT COURT OF APPEALS 

10

income from overtime pay: “[t]he yearly average of all overtime * * * received during 

the three years immediately prior to the time when the person’s child support 

obligation is being computed” or “[t]he total overtime * * * received during the year 

immediately prior to the time when the person’s child support obligation is being 

computed.” R.C. 3119.05(D)(1) and (2). The child support computation worksheet 

tracks this language and provides for the inclusion of overtime pay as determined by 

these methods. Both the statute and worksheet mandate that any overtime earned in 

the three-year period prior to the calculation of child support be included in a party’s 

gross income. 

{¶23} Consequently, the trial court was required to include overtime pay 

when calculating Jennifer’s gross income, and it abused its discretion in failing to do 

so. On remand, the trial court must recalculate Jennifer’s child-support obligations 

and include her overtime pay as part of her gross income. The trial court must also 

determine the percentages that each parent is required to pay for the children’s 

expenses utilizing an income for Jennifer that includes overtime pay. Jeffrey’s first 

assignment of error is sustained. 

{¶24} In his second assignment of error, Jeffrey argues that the trial court 

erred by failing to include Jennifer’s overtime pay as part of her income when 

determining spousal support. The trial court possesses broad discretion in 

establishing an award of spousal support and will not be reversed absent an abuse of 

discretion. Coors v. MacEachen, 1st Dist. Hamilton No. C-100013, 2010-Ohio-4470, 

¶ 13. 

{¶25} R.C. 3105.18 provides that a trial court may award spousal support 

when it is “fair and reasonable,” and it provides various factors to be considered 
OHIO FIRST DISTRICT COURT OF APPEALS 

11

when determining whether an award of spousal support should be granted. See R.C. 

3105.18(C)(1). One factor that the trial court is mandated to consider with respect to 

spousal support is “[t]he 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.” R.C. 3105.18(C)(1)(a). Unlike the statute 

applicable for the calculation of child support, R.C. 3105.18 does not specifically 

require the trial court to consider overtime pay or bonuses when determining a 

party’s income. But the statute does direct the court to consider the party’s income 

“from all sources.” Here, the record is clear that Jennifer had earned a substantial 

amount of overtime pay in the year 2011. And Jennifer provided no evidence other 

than her testimony that the overtime was not likely to occur in the future. We hold 

that, in light of these circumstances, equity required the trial court to include 

Jennifer’s overtime pay when calculating her income for spousal support purposes, 

and that the court abused its discretion by failing to do so. Jeffrey’s second 

assignment of error is sustained. 

B. Property Division of Debt 

{¶26} In his third assignment of error, Jeffrey argues that the trial court 

erred by failing to equitably divide the parties’ property. He specifically argues that 

the trial court erred by ordering him to pay half of the parties’ credit card debt and 

equity line debt, and half of the portion of Jennifer’s student loans that had been 

used for marital expenses. 

{¶27} With respect to the credit card and equity line debts, Jeffrey contends 

that Jennifer should be required to pay two thirds of these debts because they had 

increased during the time period that she had been in school. We are not persuaded. 
OHIO FIRST DISTRICT COURT OF APPEALS 

12

The credit card and equity line debts were marital debts. No abuse of discretion 

occurred in the trial court’s determination that these marital debts should be split 

equally. 

{¶28} Jeffery next contends that Jennifer should be held solely responsible 

for the portion of her student loans that had been spent on household expenses. 

Again, we disagree. This portion of the loans had not been spent on Jennifer’s 

education, but rather on marital expenses for the benefit of both parties. The trial 

court did not abuse its discretion in ordering the parties to be held equally 

responsible for this debt. See Lassiter v. Lassiter, 1st Dist. Hamilton No. C-010309, 

2002-Ohio-3136, ¶ 22. Jeffrey’s third assignment of error is overruled. 

Conclusion 

{¶29} This cause is remanded for the trial court to recalculate child-support 

and spousal-support obligations utilizing an income for Jennifer that includes 

overtime pay. On remand, the trial court must also consider the potential tax 

consequences of the ordered property equalization payment. The judgment of the 

trial court is otherwise affirmed. 

Judgment affirmed in part, reversed in part, and cause remanded. 

CUNNINGHAM and FISCHER, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.