[Cite as Speece v. Speece , 2021-Ohio-170.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO

MARCIA SPEECE, : O P I N I O N Plaintiff-Appellee/ Cross-Appellant, : CASE NOS. 2019-G-0193 : 2019-G-0225 - vs - : BRYAN SPEECE, et al., : Defendant-Appellant/ Cross-Appellees. :

Civil Appeals from the Geauga County Court of Common Pleas, Dom estic Relations Division, Case No. 2015 DC 00460.

Jud g ment: Modified and affirmed as modified.

Joseph G. Stafford and Nicole A. Cruz , Stafford Law Co., LPA, 55 Erieview Plaza, 5th Floor, Cleveland, OH 44114; Annette C. Trivelli , 147 Bell Street, Suite 201, Chagrin Falls, OH 44022 ( For Plaintiff-Appellee/Cross-Appellant )

. Nick Alan Colabianchi, 5725 Broadway, Cleveland, OH 44127 (For DefendantAppellant/Cross-Appellee )

. John W. Shryock , John Shryock Co., L.P.A., 30601 Euclid Avenue, Wickliffe, OH 44092 ( For Defendant/Cross-Appellee, Janet Speece )

. Jeffrey T. Orndorff , Jeffrey T. Orndorff Co., L.P.A., 117 South Street, Suite 110, P.O. Box 1137, Chardon, OH 44024 ( Guardian ad litem )

.

TIMOTHY P. CANNON, J. {¶1} Bryan Speece (“Bryan”), appellant/cross-appellee, and Marcia Sp eece (“Marcia”), appellee/cross-appellant, appeal from the December 31, 2018 final judgment2 entry and decree of divorce of the Geauga County Court of Commo n Pleas. For the following reasons, we modify the trial court’s judgment and aff irm as modified. {¶2} Marcia filed for divorce from Bryan on May 29, 2015, after bein g married for almost 25 years. During their marriage, the parties derive d most of their income from EnTech Ltd. (“EnTech”). Bryan is the sole owner of EnTech . His mother, crossappellee Janet Speece (“Janet”), performed legal work as an att orney for EnTech. The parties also owned various parcels of real property, financial accounts, vehicles, and personal property subject to division. They have two children together. At the time of the trial, only one child was emancipated. Both children are c urrently emancipated. For purposes of the present appeal, the facts and circumstances sur rounding specific property will be discussed within each assignment of error acco rdingly. {¶3} During the pendency of the divorce proceeding, the matter has b een subject to numer ous appeals and collateral attacks. See EnTech Ltd. v. Geauga Cty.

Court of Common Pleas , 11th Dist. Geauga No. 2016-G-0092, 2017-Ohio-503 (denying EnTech’s petition for writ of prohibition to prevent discovery of EnTech documents); Speece v. Speece , 11th Dist. Geauga No. 2016-G-0100, 2017-Ohio-7950 (affirming the denial of Bryan’s motion for protective order); Speece v. Speece , 11th Dist. Geauga No. 2018-G-170, 2018-Ohio-4081 (dismissing Janet’s appeal from deci sion to add her as a party defendant due to lack of a final, appealable order); Speece v. Speece , 11th Dist. Geauga No. 2019-G-0231, 2020-Ohio-627 (dismissing Bryan’s appea l from a miscellaneous order due to lack of a final, appealable order). EnTech, through Bryan as owner, also filed a federal lawsuit in the Northern District of Ohio against Marcia, which was dismissed on summary judgment. That court also awarded san ctions against Bryan, stating:3 In the Court’s view, it was not reasonable to continue this lit igation following the completion of the depositions of [the parties’ so n] and Marcia Speece. Thereafter, it should have been clear to both t he parties and counsel that EnTech could offer no admissible evide nce that would prove all essential elements of each of its claims. Accordingly, it was unreasonable to continue the litigation. Entech, Ltd. v. Speece , N.D.Ohio No. 5:16CV1541, 2019 WL 6051531, *5 (Nov. 15, 2019). {¶4} On February 11, 2016, the trial court issued a magistrate’s dec ision ordering Bryan to pay temporary child support and temporary spo usal support. Bryan immediately filed objections and a request for a hearing under Civ.R. 75(N), and a hearing was held on the temporary orders on March 28, 2016, and December 22, 2016. No ruling was issued following the hearings. 1 Thereafter, extensive motion practice ensued on the part of both parties. {¶5} On December 31, 2018, the trial court issued a decision and jud gment, granting Bryan and Marcia a divorce. Additionally, the trial c ourt found (1) Marcia’s testimony credible, while Bryan and Janet’s testimony was evasi ve and not credible; (2) both parties violated the temporary restraining order issued by the trial court; (3) Bryan’s transfer of hundreds of thousands of dollars, with the assistan ce of Janet, constituted financial misconduct; and (4) an equal distribution of marital assets would not be equitable. The trial court then divided the assets unequally b ased on the evidence and testimony as discussed below. Further, the trial court dismiss ed Marcia’s claim against Janet, in which she sought to designate as marital property cer tain funds Entech had paid to Janet as attorney fees.

1

. On March 8, 2017, the trial court issued a judgment stating, in part, “All motions filed subsequent to Jan. 13, 2017 not in furtherance of the mediation shall not be considered or ruled upon.”4 {¶6} Following the judgment, Marcia filed a “motion to add new party defendants and a motion for temporary restraining order” with t he trial court on February 15, 2019. The motion was ultimately granted on August 29, 2019 . On March 7, 2019, Bryan filed a “motion for a copy of external media storage,” se eking to receive external

audio of a conversation the trial court had ordered to be seale d. Bryan intended to supplement the record on appeal with the audio recording; howev er, the trial court denied the motion on April 23, 2019. {¶7} Timely notices of appeal and cross-appeal were filed by both pa rties. Bryan filed two motions to stay with this court after the appea l was noticed, each of which was denied. He has not responded to Marcia’s assignments of error on crossappeal. {¶8} Bryan asserts twenty assignments of error on appeal, and Marcia asserts two assignments of error. Because many of the assignments of e rror overlap, we will consider them out of order and combined where logical to preven t redundancy. {¶9} In his ninth assignment of error, Bryan challenges the trial co urt’s

determination that he committed financial misconduct. Because this determination impacted the trial court’s distribution of marital assets, we a ddress it before the challenges to property distribution: [9.] The trial court erred in determining that the Defendant committed financial misconduct and violated a temporary restraining order by transferring money to various bank account s as a means of hiding funds from the Plaintiff. {¶10} Bryan presents three issues under his ninth assignment of error , challenging the determinations that (1) he committed financial misconduct; (2) he violated the temporary restraining order; and (3) his mother, J anet, assisted in hiding funds by transferring money.5 {¶11} We have previously discussed financial misconduct in Calkins v. Calkins , 11th Dist. Geauga Nos. 2014-G-3203 & 2014-G-3218, 2016-Ohio-129 7: ‘[W]hile R.C. 3105.171(E)(3) does not set forth an exclusive li sting of acts constituting financial misconduct, those acts that are listed * * * all contain some element requiring wrongful scienter. Typic ally, the offending spouse will either profit from the misconduct or intentionally defeat the other spouse’s distribution of marital assets.’ Hammond v. Brown , 8th Dist. Cuyahoga No. 67268, 1995 WL 546903, *3 (Sept. 14, 1995) (citations omitted). The burden of proving financial misconduct is on the complaining party. ‘“The time frame in which the alleged misconduct occurs may oft en demonstrate wrongful scienter, i.e. , use of marital assets or funds during the pendency of or immediately prior to filing for divor ce.”’ Lindsay v. Lindsay, 6th Dist. Sandusky No. S-11-055, 2013-Ohio3290, ¶21, quoting Jump v. Jump , 6th Dist. Lucas No. L-00-1040, 2000 WL 1752691, *5 (Nov. 30, 2000). In addition, an awareness of a spouse’s wrongdoing during the marriage may weigh against a finding of financial misconduct. Another consideration is whet her the spouse made ‘critical and unilateral decisions concerning t he parties’ retirement funds and other assets in anticipation of h is divorce.’ Smith v. Smith , 9th Dist. Summit No. 26013, 2012-Ohio1716, ¶21. While a trial court enjoys broad discretion in deciding whether to compensate one spouse for the financial misconduct of the other , the initial finding of financial misconduct must be supported b y the manifest weight of the evidence. Under this standard, the reviewing court must consider all the evidence in the record, t he reasonable inferences, and the credibility of the witnesses to determine whether the trier of fact clearly lost its way and cr eated such a manifest miscarriage of justice that the decision must b e reversed.

Id. at ¶15-17 (internal citations omitted). {¶12} Here, the record establishes, and the parties do not dispute, t hat Bryan

transferred hundreds of thousands of dollars from various accou nts shortly after the complaint for divorce was filed by Marcia. Bryan argues he did not violate the temporary restraining order because it was not in place until S eptember 1, 2015, and the transfers all occurred before that date. Bryan maintains t hat the assets were not6 hidden, but were simply moved to protect them from Marcia, who had left the marital home without explanation before filing for divorce. Regardless of the exact date of the transfers, it was within the discretion of the trial court to i nfer that the time frame in which the transfer of assets occurred—immediately after Marcia left the marital residence and filed for divorce, and after Bryan received notic e of the divorce filing— demonstrated wrongful scienter. {¶13} Further, the evidence and testimony reflect a substantial amoun t of assets were transferred throughout the course of the proceeding, both before and after the temporary restraining order was issued. There is also substant ial evidence that Janet aided the parties i n engaging i n a previous scheme to avoid tax liability. The trial court heard all of the evidence and testimony presented over ten days of trial and concluded that Bryan and Janet’s testimony was evasive and unreliable. T he trial court found Marcia’s testimony was reliable. {¶14} Although the trial court did not find that the assets paid to J anet were marital property, it did find the payments made to her as attor ney fees, in an amount over one million dollars shortly after Bryan was served with th e divorce filing, were “questionable, at best.” Transcripts of recordings made by Mar cia of her discussions with Bryan were submitted to the court, indicating that Bryan w as aware these payments to Janet were made with an intention to lower Bryan an d/or EnTech’s tax liability. Also, Bryan transferred additional marital funds in excess of one million dollars into several accounts he refused to disclose during discovery. The funds were only discovered following a subpoena request to the financial instit utions. In addition, Bryan, Janet, and associates of EnTech were uncooperative in previous hearings and proceedings, destroyed property, and claimed vital business rec ords were destroyed7 when they later were reproduced. All of this further led the t rial court to conclude that Bryan’s explanations for transferring and failing to disclose t he funds were unreliable

and that his actions constituted financial misconduct. {¶15} Based on the evidence, testimony, history of financial manipula tion of the Speeces’ finances by Janet, and the substantial dissipation of the parties’ assets after Bryan received notice of the filing for divorce, the greater we ight of credible evidence supports the conclusion that Bryan engaged in financial miscond uct. Accordingly, we conclude the trial court did not err in determining that Bryan engaged in financial

misconduct. {¶16} Bryan’s ninth assignment of error is without merit. {¶17} As we have affirmed the trial court’s determination that Bryan committed financial misconduct, we combine his first, seventh, eighth, te nth, and twelfth assignments of error as follows: [1.] The trial court abused its discretion by failing to ident ify and classify all assets of the marriage, by failing to distribute s ome assets it found to be marital, by distributing assets it had ne ither valued nor found to be marital, by ordering an unequal distribu tion of assets without sufficient findings of fact, and by ordering that one spouse’s asset, or a portion thereof, be distributed to someone other than that spouse without sufficient explanation. [7.] The trial court erred in not allocating the balances in e ight bank accounts opened by the Plaintiff in the name of the parties’ so n between the parties as part of the marital estate. [8.] The trial court abused its discretion by awarding the Plai ntiff $332,998.10 represented to be half of the funds the Defendant transferred from joint bank accounts immediately after commencement of the case. [10.] The trial court erred in determining that the Plaintiff should receive 75% of the value of certain marital assets and 50% of t he value of other marital assets.8 [12.] The trial court abused its discretion by allocating asset s disproportionately and valuing the assets incorrectly. {¶18} Trial courts have broad discretion in deciding appropriate prop erty awards

in divorce cases. Berish v. Berish , 69 Ohio St.2d 318, 319 (1982); Calkins , supra , at ¶22 (citations omitted) (“A trial court is vested with broad di scretion when fashioning a division of both marital property and marital debt.”). “Howeve r, a trial court’s discretion is not unbridled. The award need not be equal, but it must be equitable. A reviewing court will not substitute its judgment for that of the trial co urt unless the trial court’s decision is unreasonable, arbitrary or unconscionable.” Bisker v. Bisker , 69 Ohio St.3d 608, 609 (1994) (internal citations omitted). {¶19} “‘When applying this standard of review, we must view the prope rty division in its entirety, consider the totality of the circumst ances, and determine whether the trial court abused its discretion when dividing the spouses ’ marital assets and

debts.’” Calkins , supra , at ¶22, quoting Baker v. Baker , 4th Dist. Washington No. 07CA24, 2007-Ohio-7172, ¶28, citing Briganti v. Briganti , 9 Ohio St.3d 220, 222 (1984). “In determining whether the trial court has abused its discreti on, a reviewing court is not to weigh the evidence, but, rather, must determine from the rec ord whether there is some competent, credible evidence to sustain the findings of th e trial court.” Habo v.

Khattab , 11th Dist. Portage No. 2012-P-0117, 2013-Ohio-5809, ¶55, citi ng Clyborn v. Clyborn , 93 Ohio App.3d 192, 196 (3d Dist.1994). {¶20} “A potentially equal division is to be the starting point in de termining an equitable distribution of property.” Id. at ¶23, citing Cherry v. Cherry , 66 Ohio St.2d 348 (1981), paragraph one of the syllabus. “The equitable division of marital property necessarily implies the equitable division of marital debt.” Longo v. Longo , 11th Dist. Geauga No. 2004-G-2556, 2005-Ohio-2069, ¶109, citing R.C. 3105. 171(F)(2). As this9 court has observed, “equality of distribution, while a goal in many situations, must yield to concerns for equity.” Id. at ¶111. {¶21} “If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable. In makin g a division of marital property, the court shall consider all relevant factors, includ ing those set forth in division (F) of this section.” R.C. 3105.171(C)(1). The division (F) f actors are as follows: (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 th e 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 a n 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 separati on agreement that was voluntarily entered into by the spouses; (9) Any retirement benefits of the spouses, excluding the socia l 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 rele vant and equitable. {¶22} Also, pursuant to R.C. 3105.171(E)(4), “If a spouse has engaged in financial misconduct, including, but not limited to, the dissip ation, destruction,10 concealment, nondisclosure, or fraudulent disposition of assets , the court may compensate the offended spouse with a distributive award or wit h a greater award of marital property.” {¶23} As discussed above, the trial court found Bryan engaged in fina ncial misconduct. It also made a finding that an equal distribution would not be equitable due to the financial misconduct. As a result, the trial court made an unequal distribution of various assets to compensate Marcia as the offended party of th e financial misconduct. {¶24} The trial court acknowledged that “[n]either party produced suf ficient

evidence to enable the Court to trace funds or assets and deter mine that any of the parties’ real property or financial/bank accounts were the sepa rate property of either party.” As such, Bryan failed to meet his burden of proof by a preponderance of the evidence to show tracing for those assets. However, this did n ot prevent the trial court from determining and assigning value to the parties’ assets. T here was evidence presented by Marcia supporting the value of the assets and char acterization as marital property, and the December 31, 2018 Decision and Decree of Divo rce assigned value to the real property, assets, and accounts of the parties. Fur ther, various photographs, receipts, and written notations of the parties were presented t o the trial court with regard to the personal property, including artwork, furniture, equipme nt, and jewelry. This evidence allowed the court to distribute the property according ly. {¶25} In light of the finding of financial misconduct, it was within the court’s discretion to allocate assets unequally and in a manner the cou rt deemed to be most equitable. See R.C. 3105.171(E)(4). Therefore, the trial court did not abuse its discretion in its allocation of the bank account balances, the award of $332,998.10 representing half of the funds transferred from joint bank acco unts, the determination11 that Marcia should receive 75% of the value of certain marital assets and 50% of other marital assets, or the distribution of items of personal proper ty. {¶26} Bryan’s first, seventh, eighth, tenth, and twelfth assignments of error are

without merit. {¶27} Bryan’s fourth assignment of error also challenges the distribu tion of marital property and states: [4.] The trial court erred in awarding the Plaintiff $499,497. 15 representing 75% of the “licensing” payments received by the Defendant after the Commencement of the case. {¶28} As discussed above, the trial court was within its discretion t o award an unequal distribution of the licensing payments received by Brya n through EnTech from

EnTech Taiwan. 2 The record of this portion of the award, however, contains an apparent mathematical error. Evidence presented at trial showe d EnTech received deposits from EnTech Taiwan in the total amount of $524,129.00. The trial court ordered Bryan to pay “the sum of $499,497.15, which represents 75% of the funds that [Bryan] received in licensing payments after the commencement o f the proceedings in

this case.” A distribution of 75% of the funds evidenced at tr ial would result in a total distribution of $393,096.75. Mar cia concedes this point in her brief on appeal. {¶29} The trial court did not necessarily err by ordering a distribut ion of $499,497.15, which is a sum higher than 75%, but the order conf licts with that decision by indicating that the amount is a 75% distribution. Therefore , the distribution ordered by the trial court is hereby modified to reflect the correct ca lculation of a 75% distribution, which is an award of $393,096.75.

2

. The parties disputed at trial whether the funds received from E nTech Taiwan were licensing payments. However, the trial court’s determination that the pa yments were for licensing is not relevant to the distribution of assets under this assignment of error.12 {¶30} With respect to Bryan’s fourth assignment of error, the trial c ourt’s order is

modified. {¶31} Next, Bryan raises issues regarding separate property claims. His sixth and eleventh assignments of error state: [6.] The trial court erred in not allocating to the Defendant $232,561 representing his settlement proceeds from a lawsuit an d $38,673.11 representing his balance in an individual retirement account as his separate property that the Plaintiff misappropri ated during the course of the marriage. [11.] The trial court erred in not allocating to the Defendant $158,643 representing his separate share of property attributab le to the purchase of a home in Castro Valley, California. {¶32} The allocation and division of marital and separate property is governed by R.C. 3105.171. The trial court must first determine whether particular property is separate or marital in nature, and then make an equitable distr ibution of that property. Sedivy v. Sedivy, 11th Dist. Geauga Nos. 2006-G-2687 & 2006-G-2702, 2007-Ohio2313, ¶20. {¶33} “Marital property includes either real and personal property or an interest in such property owned by one or both of the spouses and was ‘a cquired by either or both of the spouses during the marriage.’” Id . at ¶21, quoting R.C. 3105.171(A)(3)(a)(i). “Property acquired during marriage is presumed to be marital un less it can be shown to be separate.” Id. , citing McLeod v. McLeod , 11th Dist. Lake No. 2000-L-197, 2002- Ohio-3710, ¶16. Conversely, separate property includes any rea l or personal property or interest in real or personal property that was acquired by o ne spouse prior to the date of the marriage. Id. , citing R.C. 3105.171(A)(6)(a)(ii). {¶34} “The commingling of separate property with marital property doe s not destroy the identity of the separate property as long as the se parate property is13 traceable.” O’Grady v. O’Grady , 11th Dist. Trumbull No. 2003-T-0001, 2004-Ohio-3504, ¶47, citing R.C. 3105.171(A)(6)(b). “Thus, the focus becomes o n traceability and determining whether separate property has lost its character by becoming commingled with marital property.” Sedivy , supra , at ¶22, citing McCleod , supra , at ¶23. {¶35} “It should be noted that property acquired during the marriage is presumed to be marital property. ‘[T]he party seeking to have a particu lar asset classified as separate property has the burden of proof, by a preponderance o f the evidence, to trace the asset to separate property.’” O’Grady , supra , at ¶48, quoting Smith v. Smith , 11th Dist. Ashtabula No. 98-A0034, 1999 WL 1488950, *4 (Oct. 15, 199 9). {¶36} “The trial court is required to make findings as to whether a p arty requesting the court to classify an asset as separate property has met his [or her] burden of proof and successfully traced an asset to separate pr operty.” Id. , citing

Letson v. Letson , 11th Dist. Trumbull No. 95-T-5356, 1997 Ohio App. LEXIS 4445, *3, (Sept. 30, 1997). “A ‘trial court’s characterization of proper ty (* * *) is a question of fact, thus, a reviewing court must apply a manifest weight of the evi dence standard of review

to the trial court’s characterization.” Id. at ¶49, quoting Humphrey v. Humphrey , 11th Dist. Ashtabula No. 2000-A0092, 2002-Ohio-3121, ¶16. {¶37} In its decision, the trial court made the following conclusion based on the

evidence: Neither party produced sufficient evidence to enable the Court to trace funds or assets and determine that any of the parties’ re al property or financial/bank accounts were the separate property of either party. Accordingly, the trial court proceeded with dividing all of the parties’ property as marital property.14 {¶38} Both of these assignments of error argue the separate nature of property acquired many years before divorce proceedings began—1992, 2007 , and 2007-2009 respectively. The assets were also commingled during the marri age as they were transferred between different accounts and liquidated, allegedl y by Marcia with the help

of her brother. There is no direct evidence in the record show ing tracing of these funds, and the arguments asserted on appeal rely heavily on Bryan’s te stimony regarding the events, which the trial court found to be unreliable. Marcia’s testimony on both issues, which the trial court determined was reliable, contradicts the claims made by Bryan. Therefore, the trial court did not err in concluding that Bryan failed to successfully trace the commingled assets to establish a separate property interest

. {¶39} Bryan’s sixth and eleventh assignments of error are without mer it. {¶40} Bryan’s fifth assignment of error challenges the trial court’s decision not to join a party he argued was in possession of marital funds: [5.] The trial court erred in not recognizing that G. Robert M ason had control over a portion of the parties’ marital assets and n eeded to be joined as a party in this case. {¶41} Bryan argues the trial court erred by not allowing G. Robert Ma son, Marcia’s father, to be joined as a party because he was in poss ession of marital funds from the purchase of various properties, which were subsequentl y bought and sold several times between the parties, G. Robert Mason, and Peter a nd Janet Speece. Bryan attempted to file a third-party complaint adding G. Rober t Mason as a party, which the trial court struck by order on September 13, 2018. {¶42} Civ.R. 75(B) limits the application of the Ohio Rules of Civil Procedure in divorce actions, and states, in relevant part: Civ. R. 14, 19, 19.1, and 24 shall not apply in divorce, annulm ent, or legal separation actions, however:15 (1) A person or corporation having possession of, control of, or claiming an interest in property, whether real, personal, or mixed, out of which a party seeks a division of marital property, a distributive award, or an award of spousal support or other support, may be made a party defendant; * * *. {¶43} “Furthermore, joinder ‘is within the discretion of the court an d its purpose is to allow individuals to join whose interests need to be prot ected.’” Przybyla v. Przybyla , 2d Dist. Montgomery No. 27852, 2018-Ohio-3071, ¶115, quoting Huener v.

Huener , 110 Ohio App.3d 322, 327 (3d Dist.1996). {¶44} Under this assignment of error, Bryan restates an argument made to the trial court regarding property being transferred between differ ent family members. He cites no legal authority for how the trial court erred by not j oining Marcia’s father as a party. The arguments made on appeal were considered by the tri al court before striking the third-party complaint, and they were also considered throug h the evidence and testimony presented at trial regarding the property transfers. Given the circumstances,

we do not conclude that the trial court abused its discretion i n refusing to allow joinder of

G. Robert Mason. {¶45} Bryan’s fifth assignment of error is without merit. {¶46} Bryan’s sixteenth assignment of error states: [16.] The trial court erred in ordering the Defendant to pay temporary child support and spousal support and not enforcing t he Plaintiff’s obligations under the temporary order. {¶47} Pursuant to R.C. 3105.18(B), “During the pendency of any divorc e, or legal separation proceeding, the court may award reasonable tem porary spousal support to either party.” We have previously discussed how tri al courts determine16 temporary support awards in Beck v. Beck, 11th Dist. Lake No. 2016-L-054, 2017-Ohio1106: ‘“There is no set formula under R.C. 3105.18 to guide courts to arrive at an appropriate amount of temporary support. The only explicit limitation in R.C. 3105.18(B) is that the award must b e “reasonable.” Courts are given discretion in deciding what is reasonable support because that determination is dependent on t he unique facts and circumstances of each case.”’ Thus, this court will not reverse such determination absent a finding that the trial court abused its discretion.

Id. at ¶19, quoting Keating v. Keating , 8th Dist. Cuyahoga No. 90611, 2008-Ohio-5345, ¶35, quoting Cangemi v. Cangemi , 8th Dist. Cuyahoga No. 86670, 2006-Ohio-2879, ¶15. {¶48} Here, Marcia was awarded temporary spousal support in the amoun t of $2,000.00 per month and temporary child support in the amount o f $4,323.52 per month. The trial court determined that the parties’ main sourc e of income during the marriage was Bryan’s EnTech revenue. Marcia was not able to ac cess that revenue during the divorce proceeding, which was extended considerably by Bryan’s litigation

tactics. Marcia relocated from the marital home with their two children, one of whom was still unemancipated. Thus, she was responsible for expense s related to relocating and providing for the children. An award of temporary spousal and child support was reasonable under those circumstances, and the trial court did n ot abuse its discretion. {¶49} As a part of this assignment of error, Bryan also contends the trial court erred by not enforcing the portions of the temporary order that required Marcia to provide health insurance for Bryan and prohibited her from acce ssing marital funds. Bryan contends Marcia did not provide health insurance for him and accessed $200,000.00 in funds from a home equity line of credit on the m arital residence one week before filing her second mo tion for temporary support. A motion was filed by17 Bryan asking the court to reduce the temporary award in order f or him to pay for his health insurance. That motion was never ruled on. However, th e issues raised herein were before the court during the final trial. The trial court was in a position to consider any cost associated with the failure to pay health insurance an d accessing of the home equity funds in the ultimate division of property. {¶50} Bryan’s sixteenth assignment of error is without merit. {¶51} Bryan’s thirteenth assignment of error states: [13.] The trial court abused its discretion by not ordering th e Plaintiff to pay the Defendant a sum equal to one half of the f unds he expended unilaterally to satisfy the parties’ ongoing marita l expenses from the date of the divorce filing. {¶52} Under this assignment of error, Bryan argues the trial court ab used its discretion by not compensating him for marital expenses he paid during the divorce proceeding. He claims that his income from EnTech no longer ex isted once the divorce proceeding began. He cites R.C . 3105.171(F) in support of the assignment of error. {¶53} In response, Marcia argues the following: R.C. 3105.171(F) does not require a distribution for funds spent maintaining the marital estate during a divorce; a reimbursement of these funds would not be equitable because Bry an was the primary breadwinner who did not struggle with paying the expenses; Brya n remained in and enjoyed use of the marital home; and this consideration was alr eady made by the trial court before issuing temporary support orders. We agree that a reimbursement of expenses is not warranted in these circumstances. {¶54} R.C. 3105.171(F), outlined under a previous assignment of error , refers to divisions of marital property and distributive awards, not to r eimbursements for expenses. Further, the record reflects the trial court fully c onsidered the relevant factors before distributing assets and dividing liabilities. Bryan’s a rgument that he was no18 longer receiving any income after Marcia left the marital home is refuted by the evidence of licensing fees. Also, the trial court’s finding of financial misconduct further demonstrates that he had substantial funds, which were taken fr om joint marital assets, with which to cover the expenses. Further, Bryan’s litigation tactics substantially hindered the proceeding from progressing for years, as various appeals and collateral suits were filed with multiple courts. {¶55} The trial court did not abuse it s discretion in failing to reim burse Bryan for marital expenses. {¶56} Bryan’s thirteenth assignment of error is without merit. {¶57} Under his fourteenth assignment of error, Bryan asserts: [14.] The trial court erred in ordering the Defendant to pay $5 ,000 a month in spousal support for the rest of his life. {¶58} Marcia was awarded spousal support in the amount of $5,000.00 p er month beginning with the entry of the trial court’s final judgm ent, continuing conditionally for the rest of her life. Bryan argues that a lifetime award i s an abuse of discretion based on the circumstances of the parties, and he also challeng es the court’s finding that Bryan had an earning potential of $1,000,000,000.00. {¶59} “On appeal, the determination of spousal support is again revie wed under

an abuse of discretion standard.” Davis v. Davis , 11th Dist. Geauga No. 2011-G-3018, 2013-Ohio-211, ¶87, citing Slobody v. Friedland-Slobody , 11th Dist. Geauga No. 2007- G-2777, 2008-Ohio-3395, ¶20. Thus, we must determine whether t he record contains some competent, credible evidence to sustain the trial court’s findings of fact. Habo , supra , at ¶55. {¶60} R.C. 3105.18(C)(1) lists several factors for the trial court to consider when determining whether to award spousal support:19 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 eith er in gross or in installments, the court shall consider all of th e 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, includi ng 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 limit ed 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 employ ment 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;20 (n) Any other factor that the court expressly finds to be relevant and equitable. {¶61} The trial court considered the arguments Bryan now raises on ap peal during the lengthy trial and determined that an award of spousa l support was justified. The income of the parties was heavily disputed; however, eviden ce and testimony regarding each party’s income was presented. The finding that Bryan had an earning potential of $1,000,000,000.00 is clearly a typographical error . That error was corrected on the child support worksheet, which imputed income to Bryan i n the amount of $1,090,000.00, which was based on the evidence presented regard ing EnTech’s net income from 2014 before the divorce filing. The relative earni ng abilities of the parties, their ages, and conditions of the parties were also presented t o the trial court. {¶62} The retirement benefits of the parties and relative assets and liabilities were considered in conjunction with the divorce. The marriage lasted nearly 25 years,

which is a substantial amount of time. Marcia was determined t o be the custodial parent of one minor child at the time of divorce. The trial co urt also considered the standard of living of the parties during the marriage, with Bry an providing the primary source of income through EnTech. The tax consequences, for eac h party, were contemplated directly in the award. Finally, the trial court a lso retained jurisdiction to modify or terminate the spousal support amount. Accordingly, w e conclude the trial court did not abuse its discretion in awarding spousal support to Marcia for the rest of her life, subject to potential modification or termination. Th ere is competent, credible evidence in the record to support the trial court’s findings of fact. {¶63} Bryan’s fourteenth assignment of error is without merit. {¶64} Bryan’s fifteenth assignment of error states:21 [15.] The trial court erred in ordering the Defendant to pay ch ild support in the amount of $5,000 per month. {¶65} Former R.C. 3119.04(B) governed the trial court’s child support computation. That statute provided: If the combined gross income of both parents is greater than on e hundred fifty thousand dollars per year, the court, with respec t to a court child support order, or the child support enforcement age ncy, with respect to an administrative child support order, shall determine the amount of the obligor’s child support obligation on a case-by-case basis and shall consider the needs and the standar d of living of the children who are the subject of the child supp ort order and of the parents. The court or agency shall compute a basic combined child support obligation that is no less than th e obligation that would have been computed under the basic child support schedule and applicable worksheet for a combined gross income of one hundred fifty thousand dollars, unless the court or agency determines that it would be unjust or inappropriate and would not be in the best interest of the child, obligor, or obl igee to order that amount. * * *. {¶66} Accordingly, “when the combined gross income of the parents exc eeds $150,000, the statute requires a court to treat the issue of ch ild support on a case-bycase basis[.]” Longo v. Longo , 11th Dist. Geauga Nos. 2008-G-2874 & 2009-G-2901, 2010-Ohio-3045, ¶11. In so doing, however, the court must cons ider the needs and standard of living of the children and the parents in arriving at its conclusion. Id. Absent an abuse of discretion, a trial court’s determination regarding child support obligations will not be disturbed on appeal. Pauly v. Pauly , 80 Ohio St.3d 386, 390 (1997). {¶67} The child support computation worksheet imputed Bryan’s annual income as $1,090,000.00 and Marcia’s annual income as $12,000.00. Bry an challenges the determination of income for the parties, which we have already affirmed as within the trial court’s discretion. Because the parties’ combined income exceeded $150,000.00, the trial court was required to consider the needs and standard of living of the minor child and the mother. As discussed previously and throughout, the trial court properly22 considered the circumstances of the parties’ 25-year marriage a nd determined that $5,000.00 was an appropriate award of child support. The trial court heard testimony from Marcia about the parties’ earning ability; namely, that sh e was self-employed and had an earning potential of $12,000.00 a year. The trial court also heard testimony from Bryan about the earning ability of the parties, and voluminous evidence was submitted with regard to Bryan’s earning potential and profits through En Tech. The trial court found Marcia to be a credible witness and Bryan not to be a cre dible witness. Given the evidence heard, the award of child support is not unreasonably higher than the temporary award of $4,323.52, it is supported by competent, cre dible evidence, and it is

not an abuse of discretion. {¶68} Bryan’s fifteenth assignment of error is without merit. {¶69} Bryan’s seventeenth assignment of error states: [17.] The trial court erred by not providing the Defendant due process and a fair trial. {¶70} “‘Due process mandates that a party shall have adequate notice of a proposed action as well as an opportunity to be heard.’” Zamos v. Zamos , 11th Dist. Portage No. 2004-P-0108, 2005-Ohio-6075, ¶18, quoting Rendina v. Rendina , 11th Dist. Lake No. 91-L-019, 1992 WL 217993, *2 (Feb. 28, 1992). “ Due process ‘is not a technical conception with a fixed content unrelated to time, pl ace and circumstances,’ but rather ‘expresses the requirement of “fundamental fairness, ” a requirement whose meaning can be as opaque as its importance is lofty.’” Dowhan v. Dowhan , 11th Dist. Lake No. 2012-L-065, 2013-Ohio-4097, ¶17, quoting State v. Warren , 118 Ohio St.3d 200, 2008-Ohio-2011, ¶28. “In other words, ‘the concept of due process is flexible and varies depending on the importance attached to the interest and the particular23 circumstances under which the deprivation may occur.’” Id. , quoting State v.

Hochhausler , 76 Ohio St.3d 455, 459 (1996). {¶71} The basis of Bryan’s due process argument is that the trial cou rt repeatedly ruled against him on motions and issues that we have already addressed and affirmed in the present appeal; did not rule in a timely ma tter on some issues; refused to allow a second attorney to conduct cross-examination of witnesses, although one of his attorneys was permitted and did conduct cross-examin ations; and restricted him from introducing evidence at trial. However, after reviewi ng the transcripts, exhibits, and entirety of the record, we find no lack of due process that would amount to plain error. Bryan received adequate notice of the proceeding, and y ears of litigation culminated in 10 days of trial conducted by the Court of Common Pleas. {¶72} Bryan’s seventeenth assignment of error is without merit. {¶73} Bryan’s eighteenth assignment of error states: [18.] The trial court erred in denying the Defendant’s Motion for a Copy Of Storage Media filed in this case. {¶74} In this assignment of error, Bryan argues a recording made of a ttorneyclient discussions between himself and counsel, which was seale d by the trial court, should now be made a part of the record on appeal. The trial c ourt denied his motion for a copy of the recorded audio for supplementing the record. {¶75} App.R. 9(E) governs supplementing the record on appeal, and sta tes: If any difference arises as to whether the record truly disclos es what occurred in the trial court, the difference shall be submi tted to and settled by the trial court and the record made to conform t o the truth. If anything material to either party is omitted from the record by error or accident or is misstated, the parties by stipulatio n, or the trial court, either before or after the record is transmitted t o the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that omission or misstatement be corrected, and if necessary that a supplemental record be certi fied,24 filed, and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals. {¶76} The audio recording at issue was not introduced at trial, and B ryan points

to no relevant information for this court to consider. He also identifies no law or other justification for supplementing the record on appeal with a sea led audio recording not introduced or otherwise referenced during litigation. The tria l court did not err in denying Bryan a copy of the audio recording for the purpose of supplementing the record on appeal. {¶77} Bryan’s eighteenth assignment of error is without merit. {¶78} Bryan’s nineteenth assignment of error states: [19.] The trial court erred in adding third party defendants i n this case and issuing temporary restraining orders encumbering the Defendant’s separate property. {¶79} As discussed above in Bryan’s fifth assignment of error, Civ.R. 75(B)(1) allows for joinder in a divorce proceeding of “[a] person or co rporation having possession of, control of, or claiming an interest in property, whether real, personal, or mixed, out of which a party seeks a division of marital propert y, a distributive award, or an award of spousal support or other support, may be made a par ty defendant.” {¶80} Of the 14 new party defendants, Bryan takes issue with two: Cha rles Schwab and Merrill Lynch. He argues the accounts held by these financial institutions

were awarded to him in the divorce and therefore should not be subject to joinder or to any restraining order issued by the trial court. {¶81} We hold that each of the two financial institutions meets the d efinition provided in Civ.R. 75(B)(1), and therefore it was within the tr ial court’s discretion to order them joined as party defendants. {¶82} Bryan’s nineteenth assignment of error is without merit.25 {¶83} Bryan’s twentieth assignment of error states: [20.] The trial court erred in not properly determining the am ount of attorney fees incurred by the parties and EnTech, Ltd. and abus ed its discretion by awarding the Plaintiff’s counsel $200,000 in legal fees. {¶84} The trial court determined that Marcia accrued $317,040.70 in a ttorney fees, and she was awarded a payment of $200,000.00 from Bryan. Bryan argues the determination of attorney fees was incorrect because it did not include the additional fees incurred by EnTech during the divorce proceeding. Further , he argues he is unemployed and unable to pay the fees. {¶85} “Whether to award attorney fees to a party is within the trial court’s sound

discretion.” Dilley v. Dilley , 11th Dist. Geauga No. 2010-G-2957, 2011-Ohio-2093, ¶86, citing Rand v. Rand , 18 Ohio St.3d 356, 359 (1985). “Pursuant to R.C. 3105.73(A), ‘[i]n an action for divorce * * * or an appeal of that action, a cour t may award all or part of reasonable attorney’s fees and litigation expenses to either pa rty if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the cour t deems appropriate.’” Id. at ¶87. {¶86} In this case, the trial court properly considered the factors o utlined in R.C. 3105.73(A) throughout the proceeding. The trial court stated: “Based upon the parties’ conduct and the conduct and practices of counsel, Plaintiff Mar cia Speece is entitled to an award of a portion of her attorney’s fees and expenses.” Th e trial court also found that Bryan had committed financial misconduct, as discussed abo ve, had violated the temporary restraining order, and that his testimony was “evasiv e and unreliable.” These26 findings are supported by competent, credible evidence in the r ecord. Therefore, the award of a portion of Marcia’s attorney fees was not an abuse o f discretion. {¶87} Bryan’s twentieth assignment of error is without merit. {¶88} Bryan’s remaining assignments of error, as well as Marcia’s fir st assignment of error, challenge the trial court’s valuation of E nTech. Bryan’s second and third assignments of error state: [2.] The trial court erred in determining that EnTech, Ltd. ha d a product that was not obsolete or worthless and that the Defenda nt had not taken any action to wind up or dissolve the company tha t he claims to be worthless. [3.] The trial court erred in determining the current value of EnTech, Ltd. to be $169,387 and awarding the Plaintiff the sum of $84,693.50 as one half of its current value. {¶89} Marcia’s first assignment of error states: [1.] The trial court erred as a matter of law and abused its discretion in its valuation of the marital business. {¶90} Both of the parties dispute the valuation of EnTech as being $1 69,387.00. Bryan claims the company is worthless because its product was m ade obsolete by the development of certain software. He claims the trial court err ed by not taking into consideration the expenses of the company and its potential lia bility relating to the case currently on appeal in the Sixth Circuit when determining the o verall value. Bryan claims the company has been rendered insolvent and that $169,38 7.00 is the amount of cash the company had in the bank at the time of valuation, whic h is its only asset. {¶91} Marcia argues the trial court erred as a matter of law and abus ed its discretion by considering evidence and testimony from Bryan’s e xpert witness, John Davis, because Mr. Davis was provided with a transcript of the testimony of Marcia’s27 expert witness, Edward Blaugrund, after the trial court had ord ered a separation of witnesses pursuant to Evid.R. 615. {¶92} Geauga County Loc.R. 26 states, in pertinent part: “Since Ohio Civil Rule 16 authorizes the Court to require counsel to exchange the repo rts of medical and expert witnesses expected to be called by each party, each coun sel shall exchange with all other counsel written reports of medical and nonparty exper t witnesses expected to testify in advance of the trial.” This court has previously st ated in Biro v. Biro , 11th Dist. Lake Nos. 2006-L-068 & 2006-L-236, 2007-Ohio-3191, ¶22: The inherent purpose of local rules that provide for the timely exchange of expert reports and timely identification of expert witnesses is to avoid unfair surprise at trial and to ensure th at the adverse party has a reasonable opportunity to respond to the expert testimony. However, a trial court does not abuse its discretion in admitting such testimony where the opposing party is not prejudiced. See , e.g. , Wright v. Wright (Sept. 13, 2001), 8th Dist. No. 78275, 2001 WL 1110248 where the expert report was faxed to opposing counsel just hours before trial but where cou nsel was aware of the expert and the substance of the testimony. {¶93} Here, the parties exchanged expert reports prior to trial. Mar cia does not assign any error to the exchange of the reports, and she makes no showing of prejudice resulting from the review of transcripts by Bryan’s expert foll owing the testimony of Marcia’s expert. Therefore, it was not an abuse of discretion for the trial court to consider the testimony of Bryan’s expert witness. With that co nclusion, we address the valuation of EnTech made by the trial court after considering t he testimony of both experts. {¶94} “The trial court has broad discretion in determining that one i s qualified as an expert witness. In Nasheter v. C.H. Hooker Trucking Co. , 19 Ohio App. 2d 169 (5th Dist.1969), the Court held that an appraiser’s valuation of pro perty was admissible even where he relied upon the opinions of others familiar with the l and in making the28 appraisal.” Lutes v. Lutes , 11th Dist. Geauga No. 988, 1982 WL 5866, *1 (Mar. 31, 1982). {¶95} “‘Ohio courts have not specified that only one method of valuat ion is appropriate when dividing marital property. Rather, an equitab le division of marital property depends upon the totality of the circumstances such th at a flat rule for valuation is not appropriate in a property division.’” Berger v. Berger , 11th Dist. Geauga No. 2014-G-3191, 2015-Ohio-5519, ¶10, quoting Kuper v. Halbach , 10th Dist. Franklin No. 09AP-899, 2010-Ohio-3020, ¶12. A trial court is not requir ed to use nor precluded from using any particular valuation method. Id. at ¶11. {¶96} “Thus, when a ‘value’ question is raised on appeal, the task of the appellate court ‘“is not to require the adoption of any particu lar method of valuation, but to determine whether, based on all relevant facts and circumsta nces, the [trial] court abused its discretion in arriving at a value.”’” Davis , supra , at ¶41, quoting McLeod v.

McLeod , 11th Dist. Lake No. 2000-L-197, 2002-Ohio-3710, ¶61, quoting James v.

James , 101 Ohio App.3d 668, 681 (1st Dist.1995). Accordingly, we wi ll not disturb the trial court’s decision as to value, provided it is supported by some competent, credible

evidence in the record. Id. {¶97} At trial, Bryan testified about his requirement to honor contra ctual nondisclosure agreements on behalf of EnTech. His efforts in hono ring these agreements included, inter alia, filing federal lawsuits seeking injunctiv e relief and refusing to disclose property and equipment containing confidential informa tion to Marcia during discovery. Further, while Bryan argues here that he attempted to wind up the company in 2016, it is undisputed that he took no action to dissolve En Tech prior to the final decree of divorce. Bryan argues that these factors were consid ered in error by the trial29 court in its valuation of the company. However, the trial cour t’s consideration of these business decisions in determining the value of EnTech was not e rror. {¶98} Further, we cannot conclude that the determination by the trial court of EnTech’s value being $169,387.00, where the court reviewed all of the evidence and observed the testimony and reports from two experts on the issu e, amounts to an abuse of discretion. The valuation of EnTech was a hotly disputed is sue throughout the divorce proceeding, during discovery, and on collateral attack from a writ of prohibition and federal court filing. The rec ord provides competent, credi ble evidence of the valuation of $169,387.00 which we will not disturb on review. {¶99} Even assuming arguendo Bryan’s expert testimony was inadmissibl e, the trial court had voluminous evidence and testimony with which to make a determination as to the value of the company. See Iacampo v. Oliver-Iacampo , 11th Dist. Geauga No. 2011-G-3026, 2012-Ohio-1790, ¶48 (The admission of inadmissible expert’s testimony regarding the cause of the company’s growth was harmless error because the court had sufficient evidence before it to determine the passive nature o f the appreciation of her shares of the company.). {¶100} Bryan’s second and third assignments of error are without merit

. {¶101} Marcia’s first assignment of error is without merit. {¶102} Marcia’s second assignment of error states: [2.] The trial court erred and/or abused its discretion by fai ling to grant the appellee, Marcia Speece, a judgment against defendant s, Janet Speece for the marital assets currently in their [sic] possession and/or control. {¶103} A trial court’s characterization of property as separate or mar ital will be upheld when the record contains some competent credible evidenc e to support the trial30 court’s conclusion. Iacampo , supra , at ¶17, citing Bizjak v. Bizjak , 11th Dist. Lake No. 2004-L-083, 2005-Ohio-7047, ¶10. {¶104} Ultimately, the trial court determined the evidence did not est ablish the funds paid to Janet were marital property and not attorney fees . The court specifically found Janet’s conduct to be “questionable, at best,” questioned whether the legal work was even completed, and even admonished her during trial. Howe ver, the trial court ultimately considered the facts that (1) Janet did provide lega l work for EnTech, which Marcia conceded during testimony; (2) Marcia was complicit in a ny alleged scheme to avoid taxation during the marriage; and (3) Janet claimed all l egal fees as income and paid federal income tax on the funds paid to her. Because of t his, the trial court ultimately concluded Marcia did not meet her burden to prove th e funds were marital property and not attorney fees, and this conclusion is supporte d by the record. {¶105} Marcia’s second assignment of error is without merit. {¶106} The judgment of the Geauga County Court of Common Pleas is here by modified, as concluded under Bryan’s fourth assignment of error , to reflect that 75% of the licensing payments ordered to be distributed to Marcia amou nts to $393,096.75. As modified, the judgment is affirmed.

CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J.,

concur.