[Cite as Waligura v. Waligura, 2023-Ohio-3747.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

MICHAEL WALIGURA,

Appellee,

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SARAH WALIGURA,

Appellant.

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CASE NO. CA2022-11-076

O P I N I O N

10/16/2023

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS

DOMESTIC RELATIONS DIVISION

Case No. 2020 DRA 00661

Zachary D. Smith, LLC, and Zachary D. Smith, for appellee.

Smith, Meier & Webb, LPA, and Andrew P. Meier, for appellant.

M. POWELL, J.

{¶ 1} Appellant, Sarah Waligura ("Wife"), appeals a decision of the Clermont 

County Court of Common Pleas, Domestic Relations Division, granting a divorce between 

her and appellee Michael Waligura ("Husband"), dividing their property, and awarding 

spousal and child support to Wife.
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{¶ 2} Husband and Wife were married on July 18, 1998. Three children were born 

issue of their marriage, only one of which remained a minor for purposes of this appeal. 

{¶ 3} Wife has a master's degree and is working toward her doctorate. During the 

marriage, Wife worked as a speech language pathologist for several different employers, 

on a full-time and part-time basis. Wife last worked as a speech language pathologist on a 

full-time basis in 1998. In 2018, Wife left a part-time speech language pathologist job at 

Coryville Catholic Elementary School, working two and a half days per week, earning 

$25,000 per year. Currently, Wife is employed as an Amazon delivery person earning 

$36,400 per year. Husband works as an environmental engineer in a position he has held 

for many years, earning $112,230.41 per year.

{¶ 4} In the fall of 2014, Wife's father died suddenly, leaving behind a large estate 

initially valued at $2,524,631. However, the affairs of the estate were far from tidy. The 

bulk of the estate was an antique business in Virginia that "hoarded" numerous goods and 

pieces of furniture that were difficult to inventory. The estate faced lawsuits from various 

claimants for goods on consignment, for which the business had no record, and its 

commercial property was in default. Wife was appointed executrix of the estate and 

undertook sorting its problems. In 2018 she left her employment as a speech language 

pathologist and took a leave of absence from her doctoral program to focus on her duties 

with the estate.

{¶ 5} After Wife was relieved of her estate duties, she never returned to speech 

language pathology, citing various excuses such as a broken ankle in 2020, COVID, her 

daughter's struggles, and the divorce. If Wife does not complete her doctorate by 2026 and 

assume work as a speech language pathologist with children, she will be forced to repay 

$87,000 in grant funding.

{¶ 6} In June 2019, the parties agreed to attempt a collaborative process to 
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terminate their marriage. Several months after the collaborative process failed, Husband 

moved from the marital residence and opened a separate bank account. On June 1, 2020, 

Husband filed a complaint for divorce and Wife filed an answer and counterclaim on July 9, 

2020. The matter proceeded to a two-day final hearing on October 26 and 27, 2021.

{¶ 7} At the hearing, Husband presented expert testimony from Dr. Carl Sabo, a 

vocational expert who evaluated Wife's earning capacity. Based on her qualifications, her 

work history, and the job market in the Cincinnati metropolitan area, Dr. Sabo believed that 

Wife could command a salary of $90,000 per year as a speech language pathologist. Wife 

testified that she believes this estimate is unrealistic and that she does not know anyone in 

her field in the area earning $90,000 per year. However, Wife admitted that she could 

obtain a full-time position as a speech language pathologist working with school children 

for a salary of $56,000 per year.

{¶ 8} By decision of June 29, 2022, the trial court decided the unresolved issues of 

the divorce. A decree of divorce and a decree of shared parenting were journalized on 

October 20, 2022. The trial court found Wife to be voluntarily underemployed and imputed 

an income of $56,000 per year for purposes of calculating child support and spousal 

support. In light of the disparity between Husband's income and Wife's imputed income, 

the trial court ordered Husband to pay spousal support to Wife in the amount of $622 per 

month from July 1, 2022 until July 1, 2025, and $408 per month from July 1, 2025 until June 

1, 2027. Husband was also ordered to pay approximately $730 per month in child support 

and cash medical support.

{¶ 9} On appeal, Wife raises three assignments of error for our review.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL COURT ERRED IN CALCULATING CHILD SUPPORT AND 

SPOUSAL SUPPORT
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{¶ 12} In her first assignment of error, Wife claims that the trial court erred in finding 

her voluntarily underemployed and in imputing additional income for purposes of calculating 

child support and spousal support. Wife claims that she is not voluntarily underemployed 

because: (1) her duties as executrix of her father's estate were time-consuming and 

required travel necessitating that she resign her part-time employment as a speech 

language pathologist in 2018; (2) the time demands of pursuing her doctorate do not permit 

her to have full-time employment as a speech language pathologist; (3) she fractured her 

ankle; and (4) she had not worked full-time as a speech language pathologist for seven 

years.

{¶ 13} R.C. 3119.01(C)(11) permits a trial court to impute income to a parent who is 

voluntarily underemployed for the purpose of determining the parent's child support 

obligation. The statutory section on spousal support is less explicit on the issue, 

nevertheless R.C. 3105.18(C)(1)(b) directs courts to consider the "earning abilities" of the 

parties as opposed to their actual earnings in considering an award of spousal support. 

Spillane v. Spillane, 12th Dist. No. CA2019-12-206, 2020-Ohio-5052, ¶ 17. Therefore, this 

court and other courts have approved a trial court's imputation of income for purposes of 

determining spousal support. Id. 

{¶ 14} The earning ability of a party involves "'both the amount of money one is 

capable of earning by his or her qualifications, as well as his or her ability to obtain such 

employment.'" Schenck v. Schenck, 12th Dist. Butler No. CA2012-08-150, 2013-Ohio-991, 

¶ 17, quoting Carroll v. Carroll, 5th Dist. Delaware No. 2004-CAF-05035, 2004-Ohio-6710, 

¶ 22. When considering the relative earning abilities of the parties in connection with an 

award of spousal support, courts need not restrict their inquiry to the amount of money 

actually earned but may also hold a person accountable for the amount of money the person 

could have earned if he or she had made the effort. Schenck at ¶ 17.
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{¶ 15} As with other spousal support determinations, findings of whether a party is 

voluntarily underemployed, and the amount of income that should be imputed, if any, are 

factual determinations to be made by the trial court based on the circumstances of each 

particular case. Schenck, 2013-Ohio-991 at ¶ 17; Rock v. Cabral, 67 Ohio St.3d 108, 112 

(1993). Absent an abuse of discretion, the trial court's determination on these issues will 

not be disturbed on appeal. Id.

{¶ 16} By the time of the final divorce hearing, Wife had been released from her role 

as executrix and her ankle had healed. Although Wife contends she cannot be expected 

to work full-time while pursuing her doctorate, she is currently employed full-time as an 

Amazon delivery person, earning $36,400 per year. Dr. Sabo's expert testimony indicated 

that with her current credentials and experience, Wife could earn $90,000 annually by 

working full-time as a speech language pathologist in the Cincinnati metropolitan area. Wife 

testified that she would prefer to work as a speech language pathologist in a school setting 

with pre-K through eighth grade students, which is consistent with her work experience, and 

that she could obtain a full-time job earning $56,000 per year, which is consistent with her 

half-time employment in which she earned $25,000 per year in the 2015-2016 school year.

{¶ 17} Based on this evidence, the trial court did not abuse its discretion in finding 

that Wife was voluntarily underemployed and imputing annual income to her of $56,000.

{¶ 18} Wife's first assignment of error is overruled.

{¶ 19} Assignment of Error No. 2:

{¶ 20} THE TRIAL COURT IMPROPERLY CLASSIFIED THE MONEY LOANED TO 

THE PARTIES BY WIFE'S MOTHER AND STEPFATHER AS A GIFT.

{¶ 21} In her second assignment of error, Wife claims that the trial court erred by 

classifying $23,594.81 which her mother and stepfather gave to the parties in several 

payments to assist with various home repairs, as a gift. Wife asserts that there was no 
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competent, credible evidence that the money was a gift as opposed to a loan, and therefore 

the trial court's finding was against the manifest weight of the evidence. We disagree.

{¶ 22} The classification of property as a loan or a gift is a factual determination 

reviewed under a manifest weight standard of review. O'Donnell v. O'Donnell, 12th Dist. 

Butler No. CA2003-05-119, 2004-Ohio-2484, ¶ 4, citing Johnson v. Johnson, 12th Dist. 

Warren No. CA99-01-001, 1999 Ohio App. LEXIS 4596 (Sept. 27, 1999). "This standard of 

review is highly deferential; even 'some' competent, credible evidence is sufficient to sustain 

the trial court's judgment." O'Donnell at ¶ 4, citing Barkley v. Barkley, 119 Ohio App.3d 

155,159 (4th Dist.1997).

{¶ 23} Here, Husband and Wife provided conflicting testimony concerning the 

money. Husband testified that it was a gift from wife's parents and that he never discussed 

repayment. Wife testified it was discussed between the parties and her parents as a loan. 

However, in reaching its decision, the trial court noted that Wife produced no promissory 

notes, payment records, or any evidence demonstrating that the money from her mother 

and stepfather should be considered a loan and not a gift. 

{¶ 24} Neither wife's mother nor stepfather testified about the nature of the transfer 

of money. In the approximately ten years since the money was given to the parties, Wife's 

mother and stepfather have not requested or pursued repayment. For instance, Wife's 

mother and stepfather made a payment of approximately $7,000 to the parties while they 

awaited an insurance settlement. Yet, when the parties later received the insurance 

settlement, the $7,000 was not repaid. 

{¶ 25} Based upon the lack of documentation, as well as the lack of any demand for 

repayment and the passage of time, the trial court's finding that the money was a gift as 

opposed to a loan was not against the manifest weight of the evidence, despite wife's 

testimony to the contrary. 
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{¶ 26} Wife's second assignment of error is overruled.

{¶ 27} Assignment of Error No. 3:

{¶ 28} THE TRIAL COURT ERRED IN CHOOSING THE DATE OF THE 

VALUATION AS THE DATE OF FILING OF THE COMPLAINT FOR DIVORCE

{¶ 29} In her third assignment of error, Wife claims that the court erred in using the 

date Husband filed his complaint for divorce, June 1, 2020, as the de facto termination date 

of the marriage rather than the date of the final divorce hearing on October 26, 2021. Wife 

argues that the parties' financial affairs remained entangled until the final divorce hearing, 

that the court placed too much emphasis on the parties' physical separation in choosing the 

valuation date, and that the trial court failed to make any findings as to why June 1, 2020 

was more equitable than October 26, 2021.

{¶ 30} "Generally, the proper date for the termination of a marriage, for purposes of 

property division, is the date of the final divorce hearing." Dellinger v. Dellinger, 12th Dist. 

Butler No. CA2015-12-229, 2016-Ohio-4995, ¶ 20, citing Fillis v. Fillis, 12th Dist. Clermont 

No. CA2008-10-093, 2009-Ohio-2808, ¶ 8. This is a "statutory presumption" that is set forth 

under R.C. 3105.171(A)(2)(a). Williams v. Williams, 12th Dist. Warren No. CA2012-08-074, 

2013-Ohio-3318, ¶ 24. However, pursuant to R.C. 3105.171(A)(2)(b), if the domestic 

relations court finds the time period between the date of the marriage and the date of the 

final divorce hearing would be "inequitable," the domestic relations court may select dates 

that it considers equitable in determining marital property. See Doyle v. Doyle, 12th Dist. 

Warren No. CA2006-02-027, 2007-Ohio-2554, ¶ 15. "Because the domestic relations court 

has broad discretion to select dates it considers equitable, and because the determination 

of the termination date of a marriage is largely a question of fact, this court will not disturb 

the domestic relations court's finding absent an abuse of discretion." Vaughn v. Vaughn, 

12th Dist. Warren No. CA2021-08-078, 2022-Ohio-1805, ¶ 50, citing Roberts v. Roberts, 
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12th Dist. Clinton Nos. CA2012-07-015 and CA2012-07-016, 2013-Ohio-1733, ¶ 28.

{¶ 31} Here the trial court found that, for the purpose of determining what property is 

marital and what property is separate, it would not be equitable to use the final hearing date 

as the termination of the marriage date. In support of its finding, the court recognized that 

the parties first attempted a collaborative process to terminate their marriage in June 2019, 

but several months after the collaborative process failed, Husband moved from the marital 

residence and started a separate bank account. The trial court further recognized that by 

the time Husband filed his complaint for divorce on June 1, 2020, both parties maintained 

separate bank accounts and credit cards, and did not associate with each other except as 

required for the co-parenting of their minor daughter. 

{¶ 32} Although a spouse's unilateral decision to leave the marital home does not, in 

and of itself, constitute a de facto termination of marriage, "the act of filing a divorce 

complaint formally and clearly shows the spouse's intent regarding the marriage." Roberts, 

at ¶ 29. Accordingly, we find the trial court did not abuse its discretion in establishing June 

1, 2020 as the de facto termination date of the marriage.

{¶ 33} Wife's third assignment of error is overruled.

{¶ 34} Judgment affirmed.

PIPER, P.J., and BYRNE, J., concur.