[Cite as Edje v. Holmes, 2024-Ohio-1663.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

LOUITO EDJE,

Plaintiff-Appellee,

vs.

SYLVESTER HOLMES,

Defendant-Appellant.

:

:

:

:

:

APPEAL NO. C-230286

TRIAL NO. DR-2200117

 

O P I N I O N.

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

 

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 1, 2024

Barbara J. Howard Co., LPA, Barbara J. Howard and Rachel H Myers, for PlaintiffAppellee, 

Sylvester Holmes, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS

2

BOCK, Presiding Judge.

{¶1} In this divorce case, defendant-appellant Sylvester Holmes challenges 

the trial court’s adoption of the magistrate’s decision. He contests several factual 

findings in the division of property, including the characterization and valuation of the 

real and personal property at issue. But Holmes failed to file a transcript both when 

he objected to the magistrate’s decision and on appeal, which precludes a meaningful 

review of these factual findings. 

{¶2} Holmes also claims that the trial court ignored his financial 

contributions to the purchase of real property during the marriage, and it was 

therefore an abuse of discretion to award the equity in that property to plaintiffappellee Louito Edje. But because the magistrate found that Holmes financially 

abandoned Edje and unfairly burdened her with financial obligations, it was 

reasonable to award Edje the equity in the property as part of an equitable division of 

property.

{¶3} Holmes maintains that it was an abuse of discretion to deny his request 

for spousal support, to award him one-fourth of Edje’s retirement account, and to 

award Edje attorney fees. But because the magistrate found that Holmes was not 

“working to his fullest capacity” and failed to produce any evidence of his claims that 

he was unable to find employment, it was reasonable to deny him spousal support. An 

unequal division of retirement accounts was reasonable because Holmes failed to 

comply with discovery and disclosure orders regarding his income, retirement, and 

assets. Likewise, his noncompliance with discovery requests and court orders justified 

awarding Edje attorney fees. 

{¶4} We overrule Holmes’s six assignments of error and affirm the trial 

court’s judgment.
OHIO FIRST DISTRICT COURT OF APPEALS

3

I. Facts and Procedure

{¶5} In 2019, Edje, a physician, married Holmes, an attorney, in Italy. Within 

the first year of the marriage, the two purchased a $753,000 house on Spyglassridge 

Drive in Cincinnati. But by December 2021, the two were living separately. The 

following month, Edje filed for divorce. 

{¶6} The magistrate held a two-day hearing related to the division of 

property, spousal support, and attorney fees. In her decision, the magistrate identified 

the Spyglassridge property as “marital/mixed real estate property subject to equitable 

division in this case.” She awarded the Spyglassridge property to Edje free and clear of 

any claims by Holmes. The magistrate found that Holmes had contributed $84,000 of 

the $177,189.90 that had been “paid toward the initial purchase of the home” and that

Edje had paid the remainder. Further, Edje withdrew $49,000 from her retirement 

fund for the purchase. The magistrate found that Holmes was not entitled to share the 

equity or paydown in the marital residence because he failed to 1.) financially 

contribute in any substantive manner to the marital obligations—more than 

$28,000—that arose after the couple purchased the house; 2.) compensate people 

working on the house, leaving that financial burden on Edje; and 3.) obtain 

employment or contribute to household and mortgage expenses during most of the 

marriage. Further, the magistrate sought to credit Edje for her financial losses

incurred from contributing from her retirement towards the home’s purchase.

{¶7} The magistrate awarded Edje, among other personal property, a pool 

table “and the crystal vase gifted from her mother.” Apparently, the parties disputed 

whether a vase in Holmes’s possession was that vase gifted to Edje from her mother. 

To ensure that Edje received her vase, the magistrate ordered Holmes to “deliver and 

present the crystal vase purported to have been purchased by him as shown in Exhibit 
OHIO FIRST DISTRICT COURT OF APPEALS

4

B for inspection by [Edje]. If this vase is determined by [Edje] to in fact be the mother’s 

gifted vase, the same shall be awarded to [Edje].” 

{¶8} Turning to the retirement accounts, the magistrate found that Holmes 

failed to provide financial records, including retirement accounts, which prevented her 

from determining the extent of the retirement assets to create an equal distribution. 

The magistrate found that an unequal division of the retirement funds was equitable 

because of Holmes’s “failure to comply with discovery and disclosure orders as to [his]

income, retirement, assets and [his] overall lack of credibility.” The magistrate 

awarded Holmes “$10,582.60 which represents twenty-five percent (25%) of the

marital portion of [Edje]’s retirement.”

{¶9} The magistrate denied Holmes’s request for spousal support, which she

found was “neither appropriate nor reasonable” under R.C. 3105.18.

{¶10} Finally, the magistrate awarded Edje $3,750 in attorney fees due to 

Holmes’s “repeated failure to comply with discovery requests and mandatory 

disclosures in a timely fashion.” 

{¶11} Holmes objected to the magistrate’s decision to 1.) award the vase and 

Spyglassridge property to Edje, 2.) classify the parties’ pensions as separate property, 

and 3.) deny Holmes spousal support. But Holmes failed to file a transcript of 

proceedings. He sought to provide an audio recording of the hearings in lieu of a 

transcript. The trial court denied that request. The trial court also denied Holmes’s

objections and adopted the magistrate’s decision. In doing so, the trial court 

highlighted the lack of a transcript of the proceedings. Following a hearing on the 

merits, the trial court issued a divorce decree.
OHIO FIRST DISTRICT COURT OF APPEALS

5

II. Law and Analysis

{¶12} Holmes raises six assignments of error, contesting the trial court’s 

adoption of the magistrate’s decision. Specifically, he takes issue with the division of 

property, award of attorney fees, and denial of spousal support. 

{¶13} As an initial matter, Holmes relies on several exhibits attached to his 

appellate brief that were not submitted to the trial court and are otherwise not part of 

the record. We cannot consider them. See Chia Chi Ho v. Carlos Chua Co, 1st Dist. 

Hamilton No. C-220319, 2023-Ohio-2969, ¶ 15. On appeal, “ ‘we are limited to the

record before the trial court.’ ” Id., quoting State v. Wilson, 2d Dist. Clark No. 2018-

CA-2, 2020-Ohio-2962, ¶ 29. “ ‘[T]he record on appeal’ is composed of three 

categories of documents identified in App.R. 9: ‘[t]he original papers and exhibits 

thereto filed in the trial court[;] the transcript of proceedings, if any, including 

exhibits[;] and a certified copy of the docket and journal entries prepared by the clerk 

of the trial court.’ ” State v. Bumu, 1st Dist. Hamilton No. C-160492, 2017-Ohio-6901,

¶ 13, quoting App.R. 9(A)(1). This court will disregard any exhibits that are not in the 

record when we consider the merits of Holmes’s arguments. 

Property divisions in divorce proceedings

{¶14} We begin with the trial court’s division of property, which is governed 

by R.C. 3105.171. We review the trial court’s adherence to R.C. 3105.171’s statutory 

directives de novo. Stapleton v. Stapleton, 1st Dist. Hamilton No. C-210329, 2022-

Ohio-3018, ¶ 23. In divorce proceedings, the trial court must identify marital and 

separate property, and “divide the marital and separate property equitably between 

spouses.” R.C. 3105.171(B).

{¶15} But there is no one-size-fits-all formula for fashioning an equitable 

division of property. See Berish v. Berish, 69 Ohio St.2d 318, 321, 432 N.E.2d 183 
OHIO FIRST DISTRICT COURT OF APPEALS

6

(1982). Therefore, in divorce cases, we afford deference to the lower court as it 

“fulfill[s] its weighty responsibility [and] resolv[es] the property issues based on the 

relevant facts and circumstances of each unique case.” Stapleton at ¶ 27, citing Berish

at 321. Consistent with this deference, we typically review an equitable division of 

property for an abuse of discretion. Id. When an appeal raises a factual issue as to the 

value or characterization of property, we review the sufficiency or manifest weight of 

the evidence. Carter v. Carter, 1st Dist. Hamilton No. C-230322, 2024-Ohio-1046, 

¶ 19, citing McKenna v. McKenna, 1st Dist. Hamilton No. C-180475, 2019-Ohio-3807, 

¶ 9-10. 

{¶16} But significantly, Holmes failed to file a transcript when he objected to 

the magistrate’s decision. In these circumstances, “the trial court presumes that the 

magistrate’s factual findings are correct.” Gregory v. Gregory, 1st Dist. Hamilton No. 

C-180444, 2019-Ohio-5210, ¶ 22. To review “ ‘a judgment rendered without the benefit 

of a transcript or affidavit, [this] court only considers whether the trial court correctly 

applied the law to the facts as set forth in the magistrate’s decision.’ ” Fogt v. Fogt, 3d 

Dist. Defiance No. 4-18-10, 2019-Ohio-1403, ¶ 17, citing In re Estate of Stanford, 2d 

Dist. Montgomery No. 23249, 2010-Ohio-569, ¶ 22, quoting In re Estate of Lucas, 2d 

Dist. Montgomery No. 23088, 2009-Ohio-6392, ¶ 32, citing Ross v. Cockburn, 10th 

Dist. Franklin No. 07AP-967, 2008-Ohio-3522, ¶ 5-6. Specifically, our review is 

“limited to determining if the trial court abused its discretion” in its application of law 

to the magistrate’s factual findings. In re Adoption of S.J.M.H., 1st Dist. Hamilton No. 

C-130683, 2014-Ohio-3565, ¶ 33. An abuse of discretion means that the trial court’s 

decision-making must be unreasonable, arbitrary, or unconscionable. Owens v. 

Owens, 1st Dist. Hamilton No. C-210488, 2022-Ohio-3450, ¶ 14.
OHIO FIRST DISTRICT COURT OF APPEALS

7

{¶17} When dividing marital property, R.C. 3105.171(C)(1) prescribes an equal 

division of property unless dividing the property equally would be inequitable. If an 

equal division is found to be inequitable, property must be divided in the manner the 

court determines equitable. R.C. 3105.171(C)(1). What is equitable depends on the 

value of the property and the trial court’s consideration of the nonexhaustive statutory 

factors listed in R.C. 3105.171(F). See Stapleton, 1st Dist. Hamilton No. C-210329, 

2022-Ohio-3018, at ¶ 23. The trial court must consider:

(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;
OHIO FIRST DISTRICT COURT OF APPEALS

8

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

equitable.

R.C. 3105.171(F). 

{¶18} What is equitable turns on the totality of the circumstances. See

Roetting v. Roetting, 12th Dist. Butler No. CA2014-06-128, 2015-Ohio-2461, ¶ 21; see 

also Brown v. Brown, 1st Dist. Hamilton No. C-040341, 2005-Ohio-1997, ¶ 13 (“A 

reviewing court is limited to determining whether, considering the totality of the 

circumstances, the trial court’s disposition of marital property was an abuse of 

discretion.”).

1. We affirm the trial court’s award of equity in the Spyglassridge property to Edje

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

when it adopted the magistrate’s equitable property division. He begins with a claim 

that “[t]he trial court abused its discretion by ruling that the Appellee met her burden 

of proof of providing clear and convincing evidence that the Marital Real Property 

purchased during the marriage was her separate property under Ohio Domestic 

Relations law.” 

A. We cannot review factual determinations without a transcript

{¶20} Holmes relies on exhibits attached to his appellate brief to argue that 

the magistrate undervalued his contribution to the initial payment of the

Spyglassridge property. But again, “[a] reviewing court cannot add matter to the 

record before it, which was not a part of the trial court’s proceedings, and then decide 

the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 402, 

377 N.E.2d 500 (1978). The record does include a May 2020 letter in which Holmes 

agreed to transfer $78,000 to Edje. Holmes is correct that the magistrate mistakenly 

found that he agreed to transfer $84,000 to Edje in that letter. But the magistrate 
OHIO FIRST DISTRICT COURT OF APPEALS

9

overvalued his contribution, so this error is harmless. See Civ.R. 61. The record 

includes an unsigned three-month lease for the Spyglassridge property and a 

December wire transfer to Edje, which Holmes claims show that the magistrate 

incorrectly valued his contribution.

{¶21} But “when a party challenges the trial court’s finding of fact as to the 

characterization of property as separate or marital, we must review that determination 

under a manifest-weight-of-the-evidence standard.” Dunn v. Dunn, 1st Dist. Hamilton 

Nos. C-010282 and C-010292, 2002-Ohio-6247, ¶ 12. Likewise, valuation of property 

is a factual issue. But Holmes’s failure to provide a transcript prevents a meaningful 

review of these factual findings. See Elsner v. Birchall, 2018-Ohio-2521, 114 N.E.3d 

791, ¶ 31 (8th Dist.).

{¶22} Holmes correctly notes that the magistrate failed to set a value for the 

debt associated with the work on the Spyglassridge property. Before fashioning a 

division of property, the “trial court must select a valuation date and determine a value 

for property found to be a marital asset.” Stapleton, 1st Dist. Hamilton No. C-210329, 

2022-Ohio-3018, at ¶ 24. But “[w]hen a party fails to provide the court with evidence 

as to the value of an item, the party may be found to have waived the right to appeal 

with regard to that asset.” Smith v. Smith, 2017-Ohio-44, 80 N.E.3d 1091, ¶ 26 (6th 

Dist.), citing Roberts v. Roberts, 10th Dist. Franklin No. 08AP-27, 2008-Ohio-6121, 

¶ 21; see Gregory v. Falcon, 5th Dist. Licking No. 2022 CA 00051, 2023-Ohio-1741, ¶ 

30; see also Machesky v. Machesky, 4th Dist. Ross No. 10CA3172, 2011-Ohio-862, 

¶12; Sieber v. Sieber, 2015-Ohio-2315, 37 N.E.3d 776, ¶ 34 (12th Dist.). The limited 

record before us contains no evidence from Holmes of the debt. This argument is 

therefore waived. 
OHIO FIRST DISTRICT COURT OF APPEALS

10

{¶23} And regardless of these fact-based arguments, we disagree that the 

magistrate characterized the Spyglassridge property as Edje’s separate property. 

Rather, the magistrate identified the house as marital/mixed property. 

B. Awarding Edje the equity in the property was reasonable

{¶24} Holmes appears to argue that it was inequitable to award Edje the entire 

Spyglassridge property due to his contributions toward the initial purchase. We 

understand this argument as an assertion that the award was an abuse of discretion. 

But we disagree with that assertion.

{¶25} The magistrate “considered all of the evidence presented and the 

applicable law1to arrive at an equitable allocation as it relates to property division.”

The magistrate took Holmes’s $84,000 contribution towards the initial payment into 

account but found that Holmes did not honor their agreement to split the mortgage 

payments and abandoned Edje financially. The magistrate considered this an “unfair 

burden.” She found that Edje was “solely financially responsible for the mortgage 

payments and maintenance.” From June 2020 to December 2021, Edje alone paid 

down $10,901.87 on the principal balance. Edje was also left to pay various contractors 

and maintenance workers for work performed on their house. These findings support 

the magistrate’s awarding the entire equity in the Spyglassridge property to Edje. 

{¶26} In Grimes v. Grimes, 2d Dist. Greene No. 2013-CA-047, 2014-Ohio729, the Second District upheld an award of the entire equity in the marital residence 

to the wife as an appropriate exercise of discretion where the husband “unjustifiably 

failed to work and that his refusal to work placed an unfair burden on [the wife] to be 

1 The magistrate’s decision explained that it must consider the factors “provided in R.C. 3105.17,” 

but this appears to be a clerical error.
OHIO FIRST DISTRICT COURT OF APPEALS

11

responsible for the parties’ living expenses.” Id. at ¶ 13. Similar to Grimes, the 

magistrate’s findings in this case state that Holmes was unemployed, was not “working 

to his fullest capacity in his field,” and “placed an unfair burden on [Edje] to be 

responsible for [the] parties’ living expenses.” Indeed, the magistrate explained that 

Holmes left his position as an attorney with a corporation in which he earned

$200,000 per year to accept a part-time position, only to be fired from that position 

six months into the marriage. 

{¶27} The trial court’s awarding the entire equity in the property to Edje was 

not an abuse of discretion. 

C. Holmes waived any equitable-estoppel argument

{¶28} Holmes turns his focus to emails from Edje that are in the record—

emails that he claims are “clear evidence of the parties’ intent.” In the emails, Edje 

instructs their attorney to include Holmes’s name on the deed to the house. Relying 

on these statements, he cites the doctrine of equitable estoppel to argue that she 

cannot now claim the Spyglassridge property as separate property. But Homes failed 

to raise this issue in his closing argument or in his objections to the magistrate’s 

decision and therefore has forfeited his right to raise it for the first time on appeal. See 

Linder v. Ohio Dept. of Aging, 1st Dist. Hamilton No. C-210247, 2022-Ohio-177, ¶ 15.

{¶29} In sum, Holmes’s arguments related to the valuation of his financial 

contributions are unreviewable, his challenge to the characterization of the property 

is both unreviewable and a misreading of the magistrate’s decision, and awarding Edje 

the entire equity in the property was not an abuse of discretion. We overrule Holmes’s

first assignment of error.
OHIO FIRST DISTRICT COURT OF APPEALS

12

2. The classifications of the pool table and vase are unreviewable

{¶30} In his second assignment of error, Holmes argues that the trial court 

abused its discretion when it awarded the vase and pool table to Edje as her separate 

property. Specifically, he claims that “[t]he [c]ourt abused its discretion in awarding 

[Edje] the vase as it was against the manifest weight of the evidence.” Likewise, he 

argues that it “abused its discretion in awarding [Edje] the pool table as it was against 

the manifest weight of the evidence.” 

{¶31} But these arguments run into a recurring problem for Holmes. 

Classification of property as marital or separate property are questions of fact and are 

“ ‘reviewed under the distinct sufficiency-and-weight-of-the-evidence standards.’ ” 

Tyra v. Tyra, 1st Dist. Hamilton No. C-210392, 2022-Ohio-2504, ¶ 11, quoting 

Boolchand v. Boolchand, 1st Dist. Hamilton Nos. C-200111 and C-200120, 2020-

Ohio-6951, ¶ 9, citing McKenna v. McKenna, 1st Dist. Hamilton No. C-180475, 2019-

Ohio-3807, ¶ 9. Even if we were able to weigh the evidence, we are instructed to be 

“mindful of the presumption in favor of the finder of fact.” Id. But because Holmes 

failed to file a transcript, we proceed under an assumption that the magistrate’s 

findings are correct. 

{¶32} Under R.C. 3105.171(B), a court must determine what constitutes 

marital property and separate property. Marital property is “ ‘real or personal property 

owned by either spouse, including retirement benefits acquired during the marriage 

and interest in those benefits. Marital property does not include any separate 

property.’ ” Mullins v. Mullins, 1st Dist. Hamilton No. C-220389, 2023-Ohio-3266, 

¶ 14, quoting Devito v. Devito, 1st Dist. Hamilton No. C-210523, 2022-Ohio-2563, 

¶ 22. In contrast, separate property is “ ‘property acquired before the marriage and 

certain other property, such as inheritances and gifts, acquired by one spouse during 
OHIO FIRST DISTRICT COURT OF APPEALS

13

the marriage. A spouse may retain separate property despite having commingled it 

with marital property, because as long as it is traceable, separate property retains its 

identity.’ ” Id.

{¶33} The magistrate awarded the parties their personal property, which for 

Edje included the pool table and “the crystal vase gifted from her mother.” In her

findings of fact, the magistrate explained that Edje requested “a crystal vase given to 

her by her mother,” which Edje believed was in Holmes’s possession. The magistrate 

explained that Holmes “denies the vase he currently has in his possession belongs to 

[Edje] or is the same vase gifted” to her. In her conclusions of law, the magistrate’s 

award of the vase included the following instruction:

To ensure [Edje] receives the awarded item, [Holmes] must also deliver 

and present the crystal vase purported to have been purchased by him 

as shown in Exhibit B for inspection by [Edje]. If this vase is determined 

by [Edje] to in fact be the mother’s gifted vase, the same shall be 

awarded to [Edje]. 

{¶34} Holmes is correct that his evidence includes a receipt for purchase of a 

glass vase and social media posts with pictures of the vase that predate the marriage. 

But again, his arguments emphasize what Edje’s testimony did and did not establish. 

These arguments are precisely why “ ‘a manifest weight argument * * * is impossible 

to properly evaluate in the absence of a complete transcript of proceedings to review. 

* * * Thus, in the absence of a complete record sufficient for appellate review, we must 

presume the regularity of the proceedings below.’ ” Givens v. Yates, 7th Dist. Belmont 

Nos. 22 BE 0043 and 22 BE 0044, 2023-Ohio-4731, ¶ 10, quoting Palmer v. Palmer, 

7th Dist. Belmont No. 12 BE 12, 2013-Ohio-2875, ¶ 2. Plus, the magistrate recognized

the possibility that two vases existed. She did not award Edje Holmes’s glass vase, but 
OHIO FIRST DISTRICT COURT OF APPEALS

14

instead permitted Edje to inspect the vase of which Holmes claimed ownership to 

determine if it was, in fact, the vase gifted to her by her mother. 

{¶35} Turning to the pool table, Holmes argues that “[i]n a subsequent motion 

on June 18, 2023, to clarify the Magistrate’s decision on dividing property at the 

Marital Real Property, the Magistrate expressed an intent to give [Edje] ownership 

and possession of a pool table on the basis [Holmes] failed to reference the pool table 

while on the stand.” Again, we are unable to make a meaningful review of the evidence 

without the transcripts, which Holmes failed to file. Holmes is correct that Edje 

acknowledged in her written closing arguments that the pool table was Holmes’s

separate property. But courts are not required to accept a party’s concession. See State 

v. Smith, 2019-Ohio-4706, 149 N.E.3d 184, ¶ 9 (2d Dist.), fn. 3; see also State v. 

Hermes, 6th Dist. Ottawa Nos. OT-22-026 and OT-22-027, 2023-Ohio-2011, ¶ 26;

State v. Gabbard, 12th Dist. Butler No. CA2020-12-125, 2021-Ohio-3646, ¶ 20. 

{¶36} Holmes also marshals another equitable-estoppel argument regarding 

the pool table, based on Edje’s representation to the magistrate that the pool table was 

Holmes’s separate property. But once again, he failed to raise this argument when he 

objected to the magistrate’s decision, and it is therefore forfeited on appeal. 

{¶37} Without a transcript, Holmes’s claims regarding the vase and pool table 

are unreviewable. We overrule his second assignment of error.

3. The trial court’s attorney-fees award was reasonable

{¶38} In his third assignment of error, Holmes argues that awarding Edje 

attorney fees constituted an abuse of discretion. He claims that Edje’s attorney’s 

misconduct, his lack of financial resources, and his misunderstandings about 

discovery timelines all cut against an award of attorney fees.
OHIO FIRST DISTRICT COURT OF APPEALS

15

{¶39} In a divorce action, a court “may award all or part of reasonable 

attorney’s fees and litigation expenses to either party if the court finds the award 

equitable.” R.C. 3105.73(A). In determining whether an award is equitable, “the court 

may consider the parties’ income, the conduct of the parties, and any other relevant 

factors the court deems appropriate.” Id. We review the trial court’s attorney-fees 

award for an abuse of discretion. Morrison v. Walters, 1st Dist. Hamilton Nos. C220643 and C-220644, 2023-Ohio-2887, ¶ 12 (“Morrison II”), quoting Patterson v. 

Patterson, 197 Ohio App.3d 122, 2011-Ohio-5644, 966 N.E.2d 898, ¶ 7 (1st Dist.).

{¶40} The trial court awarded Edje $3,750 in attorney fees. The magistrate 

deemed that award “reasonable based upon [Holmes’s] repeated failure to comply 

with discovery requests and mandatory disclosures in a timely fashion.” She noted that 

Homes even failed to comply with a court order compelling his compliance. That order

required Holmes to respond to Edje’s discovery requests by August 15, 2022. But two 

weeks after that deadline, he failed to “supplement/submit sworn answers to the 

itemized interrogatories and only partial and late compliance with the previously 

unsubmitted document requests.” 

{¶41} Clearly, pretrial conduct is relevant to whether an attorney-fees award 

is equitable. A court may award attorney fees due to an opposing party’s “delayed, 

incomplete, and sometimes evasive” discovery responses that “prolong[ed] the 

proceedings.” Bain v. Levinstein, 8th Dist. Cuyahoga No. 94313, 2010-Ohio-5596, 

¶ 15. That is so because when “one party’s improper actions force the other to turn to 

the court[,] * * * principles of equity allow the trial court to exercise its discretion in 

determining the appropriate awards based on the parties’ respective behavior.” 

Padgett v. Padgett, 10th Dist. Franklin No. 08AP-269, 2008-Ohio-6815, ¶ 17.
OHIO FIRST DISTRICT COURT OF APPEALS

16

{¶42} Holmes relies on Edje’s testimony, which he claims was perjured, to 

argue that unclean hands prevented the court from awarding Edje attorney fees. But 

once again, we cannot review the trial testimony without the transcript. The attorneyfee award is reasonable considering the magistrate’s factual findings. We overrule 

Holmes’s third assignment of error.

4. The trial court reasonably denied Holmes’s request for spousal support

{¶43} In his fourth assignment of error, Holmes challenges the trial court’s 

decision to deny his request for spousal support from Edje. He requested, at a 

minimum, $15,000 in spousal support.

{¶44} Spousal-support determinations are an exercise of a court’s broad 

discretion, which we will not reverse absent an abuse of discretion. Morrison v. 

Walters, 1st Dist. Hamilton No. C-210398, 2022-Ohio-1740, ¶ 3 (“Morrison I”), 

quoting Reese v. Reese, 2019-Ohio-2810, 139 N.E.3d 1288, ¶ 11 (1st Dist.).

{¶45} Following an equitable division of property, the trial court “may award 

reasonable spousal support to either party.” R.C. 3105.18(B). The trial court must 

consider the following factors when determining if an award of spousal support is 

appropriate and reasonable:

(a) The income of the parties, from all sources * * *;

(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;
OHIO FIRST DISTRICT COURT OF APPEALS

17

(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.

R.C. 3105.18(C)(1). 

{¶46} The magistrate found that awarding Holmes spousal support was not 

appropriate or reasonable under R.C. 3105.18. Holmes disagrees and appears to argue 

that the income of the parties under R.C. 3105.19(C)(1)(a) and his lost income 
OHIO FIRST DISTRICT COURT OF APPEALS

18

production capacity due to his marital responsibilities under R.C. 3105.18(C)(1)(m) 

support an award of spousal support. 

{¶47} Holmes asserts that Edje misled Holmes into thinking “she would follow 

marriage vows faithfully and be a supportive partner.” He maintains that this belief 

contributed to his decision to “accept[] a new jobthat [sic] paid less than 50% of my 

previous salary” because it “allowed [Holmes] to work remotely” and allowed him “to 

move to Cincinnati where [Edje] had secured employment.” But she “changed the 

narrative” at trial. As for her income, Holmes claims that Edje misrepresented her 

income at the hearing and in her evidence. But just as the trial court was obligated to 

accept the magistrate’s factual findings because Holmes had failed to file a transcript, 

we too are restrained from any inquisition into the facts surrounding her income. 

{¶48} The magistrate found that Holmes’s current annual income is $49,020, 

and Edje’s is $369,249. There is a significant disparity, just as Holmes contends. The 

magistrate also explained that Holmes earned in excess of $200,000 annually as a

full-time corporate attorney, but “voluntarily left that employment and accepted parttime employment [] in anticipation of heading toward retirement age and to be able to 

work remotely.” And she explained that after Holmes was terminated from his parttime position, he “claims to be so far unsuccessful in finding legal work.”

{¶49} The party requesting support “ ‘has the burden of producing evidence as 

to any of the R.C. 3105.18(C)(1) factors it wants considered, and must provide facts 

tending to prove its version of the manner in which such factors should be applied.’ ” 

Morrison I, 1st Dist. Hamilton No. C-210398, 2022-Ohio-1740, at ¶ 8, quoting Hunley 

v. Hunley, 12th Dist. Clermont No. CA2019-12-101, 2020-Ohio-5053, ¶ 27. And 

relevant here, “[d]eterminations of earning ability are not limited to current income, 

‘but may also hold a person accountable for the amount of money the person could 
OHIO FIRST DISTRICT COURT OF APPEALS

19

have earned if he or she had made the effort.’ ” Id. at ¶ 8, quoting Schenck v. Schenck, 

12th Dist. Butler No. CA2012-08-150, 2013-Ohio-991, ¶ 17. The magistrate found that 

Holmes “did not provide any evidence of physical or mental impairment or limitations 

on his ability to work.” 

{¶50} Recently in Morrison I, we affirmed the trial court’s decision to deny 

spousal support to Walters, a retiree, despite “a considerable difference” in the parties’ 

current incomes, because of Walters’s preretirement income that was “comparable to 

what Ms. Morrison now makes.” Morrison I at ¶ 6. We rejected Walters’s claim that 

no company would hire him because his IT “skills are six years out of date” as 

“conclusory statements” that failed to “convince us that Mr. Walters does not have 

viable, marketable skills that could generate substantial income if he so desired.” Id.

Plus, this court reasoned that Walters “left the marriage with no debt, ample financial 

resources, and assets and skills substantial enough to provide a standard of living 

comparable to the one he enjoyed during the marriage.” Id. at ¶ 8. Finally, this court 

explained that Walters was unable to “complain if the R.C. 3105.18(C)(1) factor 

regarding earning ability did not come out quite the way that he wanted, particularly 

when he failed to substantiate his position with adequate evidence.” Id. at ¶ 8.

{¶51} Just as in Morrison I, the magistrate could have reasonably concluded 

that Holmes is underemployed and has “assets and skills substantial enough to 

provide a standard of living comparable” to that during the marriage. Indeed, the 

magistrate found that Holmes, armed with decades of experience as an attorney with 

a $200,000 annual salary, did “not appear to be working to his fullest capacity in his 

field.” It was therefore reasonable to conclude, based on these factual findings, that 

spousal support was not appropriate. 

{¶52} We overrule Holmes’s fourth assignment of error.
OHIO FIRST DISTRICT COURT OF APPEALS

20

5. The trial court’s division of retirement funds and pensions was reasonable

{¶53} Holmes’s fifth assignment of error challenges his award of 25 percent of 

the portion of Edje’s retirement benefits accrued during the marriage. He claims that

the magistrate failed to follow the relevant statutory mandates. He recognizes that the 

law does not require an equal division of pension benefits and that a court may deviate 

from an equal division if equity and fairness support such a deviation, but he

maintains that the deviation in this case lacks an appropriate rationale. In support, 

Holmes cites “Brown v. Brown, 54 Ohio St.3d 216 (1990),” which does not exist.2

{¶54} Marital property subject to a property division includes retirement 

benefits acquired during the marriage and “any ‘currently’ held ‘interest’ in the 

‘retirement benefits of the spouses’ that was ‘acquired by either or both of the spouses 

during the marriage.’ ” Boolchand, 1st Dist. Hamilton Nos. C-200111 and C-200120, 

2020-Ohio-6951, at ¶ 6, quoting R.C. 3105.171(A)(3)(a)(iii). To divide pension and 

retirement benefits in an equitable and fair manner, “ ‘the trial court must apply its 

discretion based on the circumstances of the case, the status of the parties, the nature, 

terms and conditions of the pension or retirement plan, and the reasonableness of the 

result.’ ” Id. at ¶ 16, quoting Hoyt v. Hoyt, 53 Ohio St.3d 177, 179, 559 N.E.2d 1292 

(1990). We review a trial court’s division of retirement and pension benefits for an 

abuse of discretion. Id. at ¶ 9.

{¶55} The magistrate identified two retirement funds in Edje’s name including 

one from her current employer held in IRA accounts. The magistrate found that “[t]he 

potential marital portion of these IRA’s (taking tax implications into account) if 

2 Indeed, there was no Ohio Supreme Court case entitled Brown v. Brown released in 1990. 
OHIO FIRST DISTRICT COURT OF APPEALS

21

equally divided total $21,165.21.” The magistrate awarded Holmes “$10,582.60, which 

represents twenty-five percent (25%) of the marital portion of [Edje]’s retirement.”

{¶56} Holmes cites Edje’s IRA statements to argue the marital portion of 

Edje’s retirement and pension benefits totaled $62,954.22. He maintains that a 50 

percent division of that total is a “guideline,” “starting point,” and later, a “statutory 

calculation that is standard.” But the magistrate used an equal division as a starting 

point and simply factored the tax consequences into its division of Edje’s retirement 

funds. The decision to reduce a retirement or pension plan “by estimated future tax 

consequences on distribution and, if so, by how much, are factors best left to the 

discretion of the trial court after hearing all the evidence and any expert testimony as 

to those tax consequences.” Noll v. Noll, 55 Ohio App.3d 160, 163-164, 563 N.E.2d 44 

(6th Dist.1989).

{¶57} Further, the magistrate found that Holmes was “employed for a period 

at the beginning of the marriage where he would have accumulated 

retirement/pension benefits.” But, the magistrate explained, Holmes 

failed to provide Counsel and the Court with multiple financial records, 

including the balances of any retirement accounts as of the date of 

separation and in fact, denied any such earnings despite his 

employment at the time, making it impossible to determine the values 

of such retirement assets and offsets for purposes of an equal 

distribution. 

So the magistrate found that an unequal division of Edje’s retirement accounts was 

equitable “based on [Holmes’s] failure to comply with discovery and disclosure orders 

as to [his] income, retirement, assets, and [his] overall lack of credibility.”
OHIO FIRST DISTRICT COURT OF APPEALS

22

{¶58} As with all other property to be divided, “[w]hen a party fails to provide 

the court with evidence as to the value of an item, the party may be found to have 

waived the right to appeal with regard to that asset.” Smith v. Smith, 2017-Ohio-44, 

80 N.E.3d 1091, ¶ 26 (6th Dist.), citing Roberts v. Roberts, 10th Dist. Franklin No. 

08AP-27, 2008-Ohio-6121, ¶ 21. While a party has the right to be “ ‘less than 

forthcoming in the presentation of evidence * * * [as] a kind of trial strategy, it is not 

and cannot be grounds for an appeal.’ ” Goebel v. Goebel, 10th Dist. Franklin No. 15AP61, 2015-Ohio-5547, ¶ 11, quoting Walls v. Walls, 4th Dist. Highland No. 94 CA 849, 

1995 Ohio App. LEXIS 2005, at *8 (May 4, 1995). In the past, we have applied these 

principles to a division of retirement and pension benefits. See Thompson v. 

Thompson, 1st Dist. Hamilton No. C-050578, 2006-Ohio-2623, ¶ 18 (“Virginia refused 

to provide the court with any information about her employment, income, or living 

expenses. The court’s hands were thus tied when it held that Monroe should retain his 

pension and retirement benefits.”).

{¶59} All told, the division of Edje’s retirement funds was not unreasonable 

considering the magistrate’s inclusion of future tax consequences in her calculation 

and Holmes’s failure to produce evidence of his retirement accounts. We overrule his 

fifth assignment of error.

6. The trial court considered Holmes’s “legal arguments”

{¶60} In his sixth and final assignment of error, Holmes argues that the trial 

court erred when it overruled his objections to the magistrate’s decision because of his 

failure to provide a transcript of the proceedings. He maintains that the trial court 

failed to consider the legal arguments he presented to the trial court in his objections.

{¶61} Civ.R. 53(D)(3)(b)(iii) instructs objecting parties that an objection to 

factual findings must “be supported by a transcript of all the evidence submitted to the 
OHIO FIRST DISTRICT COURT OF APPEALS

23

magistrate relevant to that finding or an affidavit of that evidence if a transcript is not 

available.” See Stricker v. Stricker, 1st Dist. Hamilton No. C-060435, 2007-Ohio3309, ¶ 11 (“A party objecting to a domestic relations magistrate’s decision on the basis 

that the decision is unsupported by the evidence or contrary to the weight of evidence 

must submit to the court a typed transcript of all evidence relevant to the findings or 

order.”). 

{¶62} Once again, when an objecting party fails to file a transcript, the trial 

court must accept the magistrate’s factual findings and apply the law to those facts. 

See Gregory v. Gregory, 1st Dist. Hamilton No. C-180444, 2019-Ohio-5210, ¶ 22; see 

also Fogt, 3d Dist. Defiance No. 4-18-10, 2019-Ohio-1403, at ¶ 13. The objecting party 

“cannot demonstrate error with respect to factual findings” without a transcript.

Bayview Loan Servicing, L.L.C. v. Likely, 2017-Ohio-7693, 97 N.E.3d 1025, ¶ 12 (9th 

Dist.). Likewise, “when a party objects but does not provide the trial court with the 

transcripts necessary to review the objections, there are serious consequences for 

appellate review.” Id.

{¶63} The trial court overruled Holmes’s objections and explained that 

“[u]pon a careful and independent analysis of the record herein for all 

Defendant/Husband’s objections, and absent a transcript which was not provided, the 

Court finds that the Magistrate’s Decision is supported by competent and credible 

evidence.”

{¶64} Despite Holmes’s contention that the trial court ignored his legal 

arguments, his objections primarily disputed the magistrate’s factual and credibility 

determinations. When he challenged the award of the Spyglassridge property, Holmes

argued that “the [m]agistrate decided to go against the weight of the evidence to accept 
OHIO FIRST DISTRICT COURT OF APPEALS

24

[Edje’s] bare statements,” and that the magistrate “failed to weigh the evidence with 

respect to [the] marital property.” 

{¶65} When he referenced broad legal concepts, he failed to cite a single legal 

authority in support of his claims. For instance, he argued that the magistrate “applied 

a different standard of review []to the Defendant’s interest in the case versus the 

standard that is applied to other similarly situated litigants” and “failed to apply 

standard Ohio domestic relations legal principles to this case.” And these assertions 

were sprinkled throughout a plethora of factual contentions. To quote one federal 

district court, “facts dumped into a brief do not make a legal argument.” SYNY 

Logistics, Inc. v. Great Lakes Ins. SE, N.D.Ill. No. 22-cv-764, 2023 U.S. Dist. LEXIS 

176436, 17 (Sep. 30, 2023).

{¶66} We overrule Holmes’s sixth assignment of error.

III. Conclusion

{¶67} We overrule Holmes’s six assignments of error and affirm the trial 

court’s judgment.

Judgment affirmed.

WINKLER and KINSLEY, JJ., concur.

Please note:

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