[Cite as Huelskamp v. Huelskamp, 185 Ohio App.3d 611, 2009-Ohio-6864.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

HUELSKAMP, 

 

 APPELLEE, CASE NO. 2-09-21 

 v. 

HUELSKAMP, O P I N I O N 

 APPELLANT. 

 

Appeal from Auglaize County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 2007 DR 0217 

Judgment Affirmed in Part, Reversed in Part and Cause Remanded 

Date of Decision: December 28, 2009 

 

APPEARANCES: 

Rob C. Wiesenmayer II, for appellee. 

 William E. Huber, for appellant. 
Case No. 2-09-21 

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WILLAMOWSKI, Judge. 

{¶ 1} Defendant-appellant, Timothy Huelskamp, appeals the judgment of 

the Auglaize County Court of Common Pleas, Domestic Relations Division, 

granting a divorce from plaintiff-appellee, Amy Huelskamp. Timothy contends 

that the trial court erred in dividing the marital and separate property, in 

determining the value of the marital property, in calculating child support, and in 

awarding custody of the children to Amy. For the reasons set forth below, the 

judgment is affirmed in part and reversed in part. 

{¶ 2} Timothy and Amy were married on May 20, 2000. Two children 

were born as issue of the marriage. The parties separated in April 2007, and Amy 

filed for divorce in November 2007. Trial was first set for September 30, 2008, 

but was rescheduled for May 27 and 28, 2009, after the trial court ordered the 

joinder of third parties1

 who shared property interests in the parties’ real estate and 

hog-finishing business. The trial court granted the divorce and issued its final 

judgment entry on June 30, 2009. 

{¶ 3} At trial, the parties stipulated that the grounds for the divorce would 

be incompatibility and that they had reached an agreement concerning the division 

of personal property. The majority of the testimony at the trial concerned the 

ownership and valuation of the residential property; the operation, ownership, and 

 

1

 Timothy owned real estate jointly with his parents, and he had a business partnership with his brother. 
Case No. 2-09-21 

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valuation of the hog-finishing business; and parenting and custody issues. There 

was also testimony regarding the parties’ incomes, assets, vehicles, and debts, and 

the 2008 income tax return and refunds. 

{¶ 4} Timothy and Amy have two children, Dalton, age 9, and Gabrielle, 

age 5. In 2008, both parties originally filed shared-parenting plans with differing 

divisions of time. However, at trial, Amy requested that she be named the 

residential parent and that the visitation schedule that had been in effect for the 

past year be continued. There was considerable testimony indicating that the 

parties’ relationship with each other was very acrimonious. The guardian ad litem 

recommended shared parenting, but suggested that the children should be 

exchanged in a public location to avoid confrontation between the parents. The 

trial court rejected any shared-parenting plan, due to the parties’ inability to 

cooperate, and designated Amy as the residential parent and legal custodian. The 

trial court granted Timothy expanded visitation times, in excess of the standard 

orders, and ordered him to pay child support, with credit given for the extra time 

that the children would be spending with him. 

{¶ 5} When the parties married in 2000, they lived in a very old and 

“dilapidated” house on 20 acres of land that had been owned by Timothy’s mother 

and father. In 1990, prior to the marriage, Timothy purchased an undivided half 

interest in this property from his parents. In late 2001 and early 2002, the parties 
Case No. 2-09-21 

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demolished the old home and built a new residence on the property, with Timothy 

acting as general contractor and doing much of the construction work. Timothy 

and Amy obtained a mortgage in 2002 for $120,000 to cover the expenses 

involved in building the home. 

{¶ 6} The trial court found that Timothy’s half interest in the land was his 

separate property prior to the marriage and awarded that to him. The trial court 

determined that the house itself was built during the marriage and was marital 

property. The court awarded possession of the house to Timothy, along with 

responsibility for the mortgage. However, there was considerable conflicting 

testimony in trying to determine the marital valuation of the home, which was 

complicated because the value of the house needed to be calculated independent of 

the land. The trial court did not find either of the parties’ appraisals credible and 

valued the property in accordance with the county tax-appraisal record, which 

separated the land and building values and was utilized by both appraisers in 

coming to their conclusions. The tax appraisal put the value of the buildings2

 on 

the property at $145,770, leaving a marital equity of $40,130.40. 

{¶ 7} Another area of contention involved the hog-finishing-business 

partnership that Timothy and his brother commenced in 2005.3

 The business 

 

2

 Although there were other outbuildings on the property, the testimony indicated that the house itself was 

the only building of value as the others were either too old or in a poor location to be worth anything. 

3

 Amy and Timothy’s brother’s wife were also originally on the note and financially liable for the building 

of the barn and the purchase of the equipment. 
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purchased equipment and constructed a hog barn on acreage owned by Timothy’s 

father. The brothers raise hogs under a contract with a company that provides the 

piglets and feed. In return, they raise the hogs to maturity and are paid monthly 

according to the contract. The partnership’s income tax returns show a gross 

profit but indicate that the business is operating at a net loss after deducting 

depreciation and expenses. Amy presented the testimony of a CPA expert witness 

who found that the value of Timothy’s share of the hog-finishing partnership was 

$34,870. Timothy did not present any expert testimony concerning the valuation 

of the business. The trial court found that the expert’s valuation was credible and 

ordered that the hog-finishing business should be awarded to Timothy, free and 

clear of any claim of Amy. However, the court found that this was a business that 

was begun during the marriage and was entirely marital property subject to 

division. 

{¶ 8} Other marital property divisions included Amy’s 401(k) account, the 

2008 tax refunds, and Timothy’s truck. Amy was permitted to retain her 

retirement account and the tax refund, and Timothy was awarded his truck. The 

trial court enumerated the following awards of the parties’ marital property: 

 Amy: 401(k) $13,281.00 

 Tax Refund $ 1,978.00

 Total: $15,259.00 

 Timothy: House $40,130.40 

 Business $34,870.00 
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 Truck $ 600.00

 Total: $75,600.40 

Based upon the trial court’s allotment of the marital assets and equity, Timothy 

received $60,341.40 more in marital property than Amy. In order to equalize the 

marital property division, the trial court ordered Timothy to pay Amy her share, 

$30,170.70, within 90 days. 

{¶ 9} It is from this judgment that Timothy appeals, presenting the 

following eight assignments of error for our review. 

First Assignment of Error 

The Trial Court erred and abused his [sic] discretion in determining 

what was marital and what was separate property 

Second Assignment of Error 

The Trial Court erred and abused it’s [sic] discretion in determining 

the value of the residential real estate. 

Third Assignment of Error 

The Trial Court erred and abused it’s [sic] discretion in not giving 

[Timothy] credit for the contribution of his separate property for the 

construction of the home. 

Fourth Assignment of Error 

The Trial Court erred and abused it’s [sic] discretion in it’s [sic] 

valuation of the partnership business. 

Fifth Assignment of Error 

The Trial Court erred and abused it’s [sic] discretion in allocating 

and dividing the 2008 income tax refund. 
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Sixth Assignment of Error 

The Trial Court erred and abused it’s [sic] discretion by failing to 

consider the tax consequences that resulted in dividing and awarding 

marital property. 

Seventh Assignment of Error 

The Trial Court erred and abused it’s [sic] discretion in determining 

that the depreciation should be considered income in calculating 

support. 

Eighth Assignment of Error 

The Trial Court erred and committed an abuse of discretion in 

finding that the shared parenting plan is not in the best interest of the 

minor children. 

{¶ 10} Several of the assignments of error involve similar legal concepts. 

Therefore, in order to facilitate the review, we elect to address some of the 

assignments of error together and out of order. 

First, Third, and Fifth Assignments of Error 

{¶ 11} In these three assignments of error, Timothy asserts that the trial 

court erred in determining what was marital and separate property, and in dividing 

the marital and separate property. Timothy contends that he did not receive the 

correct allocation for his share of the parties’ residence, for his contributions to the 

construction of the residence, and from the parties’ 2008 income tax refunds. 
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{¶ 12} It is well settled that trial courts have “broad discretion to determine 

what property division is equitable in a divorce proceeding.” Cherry v. Cherry

(1981), 66 Ohio St.2d 348, 421 N.E.2d 1293, paragraph two of the syllabus. A 

trial court's decision allocating marital property and debt will not be reversed 

absent an abuse of discretion. Jackson v. Jackson, 3d Dist. No. 11-07-11, 2008-

Ohio-1482, ¶ 15, citing Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131, 541 

N.E.2d 597. The term “abuse of discretion” means more than a mere error; it 

implies that the court's attitude is unreasonable, arbitrary, or unconscionable. 

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

{¶ 13} A trial court is charged with the duty of distinguishing between 

marital property and separate property in accordance with the definitions set forth 

in R.C. 3105.171(A). Lust v. Lust, 3d Dist. No. 16-02-04, 2002-Ohio-3629, ¶ 12. 

Marital property includes property that is currently owned by either or both 

spouses and that was acquired by either or both of the spouses during the 

marriage. R.C. 3105.171(A)(3)(a). Property acquired during a marriage is 

presumed to be marital property unless it can be shown to be separate. Barkley v. 

Barkley (1997), 119 Ohio App.3d 155, 160, 694 N.E.2d 989. 

{¶ 14} Separate property is defined by R.C. 3105.171(A)(6)(a) and includes 

any real or personal property, or interest in such, that was acquired by one spouse 

prior to the date of the marriage. Neville v. Neville, 3d Dist. No. 9-08-37, 2009-
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Ohio-3817, ¶ 11. The commingling of separate property with other property does 

not necessarily destroy the identity of the separate property, except when the 

separate property is not traceable. R.C. 3105.171(A)(6)(b). Therefore, traceability 

is the main issue in determining whether separate property has become marital 

property due to commingling. Earnest v. Earnest, 151 Ohio App.3d 682, 2003-

Ohio-704, 785 N.E.2d 766, ¶ 38, citing Peck v. Peck (1994), 96 Ohio App.3d 731, 

734, 645 N.E.2d 1300. Separate property can be converted to marital property if 

one spouse grants the other spouse an interest in the property. Jackson v. Jackson, 

3d Dist. No. 11-07-11, 2008-Ohio-1482, ¶ 7. The general rule with regard to 

separate property is that the trial court must disburse a spouse's separate property 

to that spouse. R.C. 3105.171(D). Nevertheless, the trial court has broad 

discretion in dividing property equitably in a divorce. Berish v. Berish (1982), 69 

Ohio St.2d 318, 319, 432 N.E.2d 183. 

{¶ 15} The determination whether property is marital or separate is 

reviewed under the manifest-weight-of-the-evidence standard. Gosser v. Gosser, 

11th Dist. No. 2006-T-0029, 2007-Ohio-3201, ¶ 29. A trial court’s judgment will 

not be reversed as being against the manifest weight of the evidence if the court's 

judgment is supported by some competent, credible evidence. This highly 

deferential standard of review permits the affirmation of the trial court's judgment 
Case No. 2-09-21 

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if there is even “some” evidence to support the court's finding. DeWitt v. DeWitt, 

3d Dist. No. 9-02-42, 2003-Ohio-851, ¶ 11. 

{¶ 16} In his first assignment of error, Timothy complains that the trial 

court did not make an equitable division of the land (owned jointly by Timothy 

and his parents) and the house (built by Timothy and Amy during their marriage). 

It appears that he is arguing that the value of the land and the value of the house 

were intertwined and that requiring Timothy to pay Amy for her half of the equity 

in the house was inequitable. 

{¶ 17} The trial court arrived at the value of the house independent of the 

20 acres of land on which it was situated. Timothy’s ownership of the land was 

determined to be his premarital separate property and he was permitted to retain 

his undivided interest in the land along with his parents. The house itself was built 

by Timothy and Amy during the marriage and was determined to be marital 

property. At the time the house was constructed, Timothy was aware of the joint 

ownership of the land it was being built upon. After subtracting the mortgage4

from the value of the house alone, the trial court determined the amount of marital 

equity. Timothy was awarded the house and was ordered to pay Amy for her half 

 

4

 At trial, Timothy testified that he and Amy took out a mortgage on the home, and the monies were used to 

pay for the construction of the residence. In his appellate brief, Timothy states that “[t]here is a mortgage 

on the property secured by a note which covers the entire property, not just the residential structure.” 

Given this argument, if a part of the mortgage is applicable to the land, then the amount of the mortgage 

that should be subtracted from the value of the house would be reduced. Therefore, according to the 

argument that Timothy appears to be making, the marital equity in the home would be greater and the 
Case No. 2-09-21 

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of the marital equity in the house to equalize the distribution. The trial court’s 

division was an essentially equal, dollar-for-dollar distribution of the marital asset. 

Finding no inequity in the trial court’s division of the marital residence and land, 

we overrule Timothy’s first assignment of error. 

{¶ 18} In his third assignment of error, Timothy argues that the trial court 

erred by not giving him credit for the cost of the home’s septic system, which he 

claims he paid for from his separate checking account. Timothy testified that he 

had a separate bank account from before the marriage, but he was unable to 

specify how much money was in this account before the marriage. He also 

testified that, during the marriage, he had used the account for depositing monies 

and paying bills. He did not provide any bank statements or records for this 

account, nor did he present any records showing the cost of the septic system or 

documentation that it was paid for with his separate funds. 

{¶ 19} A party who wishes to have a particular asset classified as separate 

property has the burden of proving, by a preponderance of the evidence, that the 

asset is separate property. Brandon v. Brandon, 3d Dist. No. 10-08-13, 2009-

Ohio-3818, ¶ 18; Peck v. Peck, 96 Ohio App.3d at 734. It was Timothy’s 

responsibility to prove that the property existed prior to the marriage and that it 

 amount of money he would owe to Amy would be greater in order to equalize the distribution. We are 

unsure as to whether this is the point Timothy was trying to make. 
Case No. 2-09-21 

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was traceable. See Guenther v. Guenther (Oct. 19, 1994), 9th Dist. No. 2827, 

1994 WL 577751. 

{¶ 20} Timothy did not provide any evidence, other than his own very 

general testimony, concerning the money he claimed to be his premarital separate 

property. Furthermore, since the account was also used as a marital account, he 

could not establish that the funds were not commingled with other marital funds 

and the funds from the mortgage proceeds. Timothy did not meet his burden of 

proving the existence or traceability of this money. Timothy’s third assignment of 

error is overruled. 

{¶ 21} In the fifth assignment of error, Timothy claims that the trial court 

erred in allocating and dividing the 2008 state and federal income tax refunds. 

Although we do not agree with the calculations that Timothy set forth in his brief, 

our review of the record finds that the trial court’s calculations did not result in an 

equal division of the 2008 income tax liabilities and refunds. 

{¶ 22} The parties were living separately in 2008, and they asked their 

accountant to prepare their taxes in the manner that would achieve the greatest tax 

savings. The accountant determined that they would receive a maximum return if 

they utilized the “married filing separately” status and allowed Amy to claim both 

of the children on her separate return. As a result, Timothy owed $2,065 in taxes, 

and Amy received refunds of $6,021. In order to share equally in the tax benefits, 
Case No. 2-09-21 

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the accountant contemplated that each would pay half of Timothy’s liability, or 

$1,032.50 each, and Amy would pay Timothy half of the refund, or $3,010.50, 

resulting in each party ending up with a net $1,978 “in [their] pocket.”5

 Instead of 

doing this, Amy paid Timothy’s tax liability at the time it was due, and Timothy 

reimbursed her for $1,000, approximately one-half. When Amy received the 

$6,021 tax refunds, she held it in escrow, waiting for the court to make a final 

determination as to the parties’ property division. 

{¶ 23} The trial court allowed Amy to retain all of the incometax refunds, 

which the court stated, “results in a net profit to [Amy] of $1,978.” The trial court 

then included that “net profit” of $1,978 in the marital-property calculations when 

equalizing the property division. 

{¶ 24} Although it appears that it was the trial court’s intention to equally 

distribute all of the marital property, including the 2008 tax refund, the court’s 

calculation resulted in an unequal division of the tax refund. The parties would 

have each realized a return of $1,978 only if Amy had paid Timothy the $3,010.50, 

as originally contemplated by their tax accountant. She did not do this. Instead, 

the parties split the tax liability between them, but Amy kept the entire refund. 

Therefore, the full amount of the $6,021 tax refund, less $32.50 extra Amy 

overpaid for Timothy’s taxes due, or $5,988.50, should have been included as a 

 

5

 These notes and calculations were taken from defendant’s Exhibit A, which was a memo from the income 

tax preparer. The main amounts calculated included federal and state income taxes; there were also de 
Case No. 2-09-21 

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marital asset in the trial court’s recapitulation of assets prior to

 minimus amounts for school and city taxes. 
Case No. 2-09-21 

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ordering the equalization payment. 

{¶ 25} While a property division need not always be equal in order to be 

equitable, it appears that the trial court did intend to equally divide all the marital 

property and inadvertently failed to do so. Therefore, Timothy’s fifth assignment 

of error is well taken and is sustained. 

Second and Fourth Assignments of Error 

{¶ 26} In these assignments of error, Timothy states that the trial court erred 

in its valuation of the residential real estate and the hog-finishing business. He 

maintains that the trial court should have followed his appraiser’s valuation for the 

residence, and that it should not have believed Amy’s agricultural expert’s 

valuation of the hog-finishing partnership. 

{¶ 27} A trial court enjoys broad discretion in determining the value of a 

marital asset and is not required to adopt any particular method of valuation. 

James v. James (1995), 101 Ohio App.3d 668, 680, 656 N.E.2d 399. It is not an 

abuse of discretion when the trial court assigns value to real estate in an amount 

that is supported by competent, credible evidence. Osting v. Osting, 3d Dist. No. 

1-03-88, 2004-Ohio-4159, ¶ 21. “[W]hen the parties present substantially 

different valuations of an asset,” it may believe all, part, or none of any witness's 

testimony. Covert v. Covert, 4th Dist. No. 03CA778, 2004-Ohio-3534, ¶ 29. 

Furthermore, “[a] reviewing court should be guided by a presumption that the 
Case No. 2-09-21 

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findings of a trial court are correct, since the trial judge is best able to view the 

witnesses and observe their demeanor, gestures, and voice inflections, and use 

those observations in weighing the credibility of the testimony.” DeWitt v. 

DeWitt, 3d Dist. No. 9-02-42, 2003-Ohio-851, ¶ 11, citing Barkley v. Barkley

(1997), 119 Ohio App.3d 155, 159, 694 N.E.2d 989. 

{¶ 28} In his second assignment of error, Timothy states that the trial court 

was correct in finding that Amy’s appraiser’s methodology was flawed, but that it 

should have found that Timothy’s appraiser’s valuation was accurate. He also 

criticizes the trial court’s use of the county property-tax records to determine the 

value of the real estate. 

{¶ 29} Timothy and Amy presented two professional appraisers who used 

two different methods of valuation to arrive at their appraisals. Amy’s appraiser 

found the value of the home along with a “hypothetical 2.5 acres of land” to be 

$195,000. He then subtracted the value of the land to come up with a value on the 

house of $165,000, leaving marital equity of $59,360.40, after subtracting the 

$105,639.60 mortgage balance. Timothy’s appraiser utilized a “use value” 

approach to come up with a value on the house alone to be $135,000, resulting in a 

marital equity of $29,360.40 after subtracting the mortgage balance. 

{¶ 30} The trial court rejected both appraisals, finding one was computed 

using a “fiction” and the other utilized “flawed” methodology. Instead, the trial 
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court valued the property in accordance with the county tax-appraisal record, 

which separated the land and building values and was utilized by both appraisers 

in coming to their conclusions. The tax appraisal valued the buildings on the 

property at $145,770, leaving a marital equity of $40,130.40. 

{¶ 31} We find that the trial court’s valuation of the marital residence was 

supported by competent and credible evidence and that its conclusion was not 

unreasonable, arbitrary, or unconscionable. The trial court’s decision was based 

upon the county tax records that were admitted before the court with the 

appraisers’ exhibits. The valuation fell within a range between Amy’s higher 

appraisal and Timothy’s lower appraisal, and no one presented any evidence that 

they had ever contested this valuation as being inaccurate. The trial court clearly 

articulated its reasons for rejecting both of the parties’ appraisals. Timothy’s 

appraiser himself admitted that in all of his many years of appraising homes, he 

had never before appraised a residence under a use-value methodology. He also 

acknowledged that he had no opinion as to the market value of the dwelling or the 

land. Timothy’s second assignment of error is overruled. 

{¶ 32} Timothy’s fourth assignment of error asserts that the trial court erred 

when it adopted Amy’s expert witness’s valuation of the hog-finishing partnership 

owned in conjunction with Timothy’s brother. Timothy claims that the expert’s 

valuation was based upon flawed assumptions, especially concerning who owned 
Case No. 2-09-21 

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the building and whether they could expect the contract to be renewed in the 

future. 

{¶ 33} Amy’s expert, David Fortney, testified that he was a CPA with the 

firm of McCrate, DeLaet & Co. and he had extensive past experience in valuing 

agricultural operations, including hog-finishing businesses. Fortney was found by 

the court to be an expert witness in the area of “agriculture accounting,” with no 

objections from the parties. He provided detailed testimony to the trial court 

setting forth the specific steps that he took to evaluate the hog-finishing business 

and also the evidence that he reviewed concerning the operation of the business. 

When questioned on cross-examination as to the accuracy of some of his 

assumptions, Fortney testified that his valuation would still be the same because it 

was based upon cash flow and expenses. 

{¶ 34} In its decision, the trial court stated: 

The Court finds Mr. Fortney’s testimony to be credible and based on 

many years of experience with agricultural operations including hog 

finishing. The Court accepts his value of [Timothy’s] portion of the 

business at $34,870 which is entirely marital subject to division. 

{¶ 35} The trial court found Fortney to be a credible witness and found his 

methodology to be sound. More importantly, the trial court had no other evidence 

or expert testimony to rely upon other than the testimony and evidence presented 

by Fortney. Timothy did not present any expert testimony or reports in support of 

a different valuation. The trial court did not abuse its discretion in relying upon 
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Fortney’s expert testimony in establishing the marital value of the hog-finishing 

partnership. Timothy’s fourth assignment of error is overruled. 

Sixth Assignment of Error 

{¶ 36} In his sixth assignment of error, Timothy asserts that the trial court 

erred when it failed to consider the tax consequences concerning the division of 

the marital property. Specifically, he complains that it is impossible for him to 

obtain the $30,170.70 to pay Amy for her share of the marital property without 

suffering tax consequences for selling a capital asset. He claims that he would 

have to sell off part of the property or a portion of the hog-finishing business in 

order to raise the necessary cash, and that he would suffer negative tax 

consequences as a result. 

{¶ 37} Tax consequences of property division may be proper considerations 

for the court, so long as those consequences are not speculative. Fisher v. Fisher

(Mar. 22, 2002), 3d Dist. No. 7-01-17, citing Day v. Day (1988), 40 Ohio App.3d 

155, 159, 532 N.E.2d 201; R.C. 3105.171(F)(6). When the tax consequences are 

found to be speculative, a court need not consider them. See, e.g., Thomas v. 

Thomas, 171 Ohio App.3d 272, 2007-Ohio-2016, 870 N.E.2d 263, ¶ 6-11 (finding 

that tax consequences of a payment of $4.5 million to husband for his share of 

business were speculative because the trial court’s order did not specifically 

require wife to sell half of the business); Teaberry v. Teaberry, 7th Dist. No. 07 
Case No. 2-09-21 

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MA 168, 2008-Ohio-3334, ¶ 39-40 (although husband did not have liquid assets to 

meet his obligation, he did hold substantial assets and might be able to obtain a 

loan); Fergus v. Fergus (1997), 117 Ohio App.3d 432, 436-37, 690 N.E.2d 949 

(finding that the sale of an asset may result in tax consequences, but not 

consequences of any unusual nature). 

{¶ 38} We find that Timothy’s assertions as to the possibility of negative 

tax consequences are purely speculative. The trial court did not order the sale or 

transfer of any particular asset and, therefore, it did not affirmatively impose an 

order that would necessitate a taxable event. There may be options available to 

Timothy to raise the money other than through the sale of capital assets. Just 

recently (and contrary to the standing orders of the court not to modify finances), 

Timothy and his brother refinanced the partnership business. Also, Timothy now 

holds considerable equity in the marital residence and surrounding property. Even 

if the sale of an asset may be required, Timothy has failed to specify what, if any, 

tax consequences might result. The sixth assignment of error is not well taken.

Seventh Assignment of Error 

{¶ 39} In this assignment of error, Timothy argues that the trial court should 

not have included his federal income tax deductions for depreciation on his 

business as part of his income for purposes of child-support calculations. In 

calculating Timothy’s child-support obligations, the trial court found that he had 
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earnings of $33,280 per year from his employment at Hume Supply. The trial 

court also noted that the hog-finishing business did not show any income but that 

Timothy depreciated $17,537 on his tax return, which was not an ordinary and 

necessary business expense under R.C. 3119.01(C)(9)(b). Therefore, the trial 

court calculated Timothy’s child-support obligations based upon a gross income of 

$50,817. 

{¶ 40} Depreciation is normally included in the calculation of gross income 

unless it is shown to be an ordinary and necessary cost of business. Buening v. 

Buening, 3d Dist. No. 10-08-04, 2008-Ohio-6579, ¶ 8; R.C. 3119.01(C)(9). 

Pursuant to R.C. 3119.01, gross income includes self-generated income for the 

purposes of child-support calculations and such income is defined as “gross 

receipts received by a parent from self-employment, proprietorship of a business, 

joint ownership of a partnership or closely held corporation, and rents minus 

ordinary and necessary expenses.” R.C. 3119.01(C)(13). The same statute defines 

“ordinary and necessary expenses” as “actual cash items expended by the parent or 

the parent's business [including] depreciation expenses of business equipment as 

shown on the books of a business entity.” R.C. 3119.01(C)(9)(a). However, R.C. 

3119.01(C)(9)(b) excludes “depreciation expenses and other noncash items that 

are allowed as deductions on any federal tax return of the parent or the parent's 
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business” as ordinary and necessary expenses. In re Sullivan, 167 Ohio App.3d 

458, 2006-Ohio-3206, 855 N.E.2d 554, ¶ 22. 

{¶ 41} In Buening v. Buening, the video-rental company’s accountant 

testified that the depreciation of the establishment’s video tapes was an ordinary 

and necessary cost of the business of renting the tapes to the consumer, and was 

not merely for income tax purposes. 2008-Ohio-6579 at ¶ 9-10. The business’s 

financial statements included the depreciation of the video tapes, and then 

reflected the gross sales price as a capital gain after the tapes were sold. Id. at ¶ 9. 

This court held that the father’s gross income should be reduced by the 

depreciation for the tapes because to “not allow the depreciation would be to 

ignore the necessary costs of doing business and to allow for the sale of items 

without considering the cost of obtaining those items that were subsequently sold.” 

Id. at ¶ 10. 

{¶ 42} However, in many cases, a company depreciates buildings and 

equipment that it owns solely for the purpose of reducing its income taxes. See, 

e.g., Foster v. Foster, 150 Ohio App.3d 298, 2002-Ohio-6390, 780 N.E.2d 1041, ¶ 

23 (the exclusion of depreciation deductions is designed to ensure that a parent's 

gross income is not reduced by any sum that was not actually expended); Combs v. 

Walsh, 12th Dist. No. CA2005-07-198, 2006-Ohio-7026, ¶ 22 (income for childsupport purposes is not equivalent to the parent's taxable income, and court did not 
Case No. 2-09-21 

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abuse its discretion by including rental business’s real estate depreciation in 

calculating income for child support). 

{¶ 43} Furthermore, “[a] party claiming a business expense has the burden 

of providing suitable documentation to establish the expense. A trial court is not 

required to blindly accept all of the expenses an appellant claims to have deducted 

in his tax returns as ordinary and necessary expenses incurred in generating gross 

receipts.” Ockunzzi v. Ockunzzi, 8th Dist. No. 86785, 2006-Ohio-5741, ¶ 53. 

When evidence to support a claim for depreciation expenses is absent from the 

record, it is not an abuse of discretion for a trial court to disallow those expenses 

and include them as income. Sullivan, 167 Ohio App.3d 458, 2006-Ohio-3206, ¶ 

27. 

{¶ 44} In the present case, Timothy states that the depreciation listed on the 

tax returns represents the building and equipment for the hog-finishing business. 

He claims that the partnership does not own the building or equipment, but that 

they make the payments due on the property instead of paying rent to their father. 

He maintains that the business “did not deduct a rental value as the rent was the 

payment of the principal and interest due which equals interest and which equals 

depreciation.” 

{¶ 45} The only records Timothy provided to the court were the IRS 

Schedule F forms (Profit or Loss from Farming) for his 2006 and 2007 federal 
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income tax returns, which simply list a line 16 “depreciation and section 179 

expense deduction” of approximately $17,000 for each year. There is also a line 

23 interest deduction for each year, and nothing is listed for rent. There was no 

backup paperwork explaining how the depreciation expense was computed or 

what it represents, nor was there any proof that it was part of the ordinary and 

necessary expenses of doing business. Timothy has not provided any 

documentation that any of this money was actually paid out, nor does he explain 

how his business is able to take a depreciation deduction under the IRS regulations 

for assets that it claims it does not own. There was no evidence before the court 

that would indicate this money was actually expended as an ordinary and 

necessary business expense. It appears to be a deduction taken for federal income 

tax purposes, and Timothy has not provided a proper basis for excluding this 

depreciation write-off from his income. 

{¶ 46} The trial court did not abuse its discretion in disallowing the 

exclusion of the depreciation deduction from Timothy’s income. The seventh 

assignment of error is overruled. 

Eighth Assignment of Error 

{¶ 47} In his final assignment of error, Timothy claims that the trial court 

abused its discretion in finding that a shared-parenting plan was not in the best 

interest of the children. Timothy argues that because he and Amy filed shared-
Case No. 2-09-21 

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parenting plans and the guardian ad litem recommended shared parenting, the trial 

court erred in not adopting any of the plans. 

{¶ 48} A trial court has broad discretion in determining whether to order 

shared parenting. Lopez v. Coleson, 3d Dist. No. 12-05-24, 2006-Ohio-5389, ¶ 6; 

R.C. 3109.04(D)(1)(b). An appellate court will presume that a trial court's 

decision regarding child custody is correct and will not reverse the decision absent 

an abuse of discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23, 550 

N.E.2d 178. 

{¶ 49} R.C. 3109.04(D) sets forth standards and procedures for allocation 

of parental rights and responsibilities using a shared-parenting plan. Under R.C. 

3109.04(D)(1)(a)(i), the trial court may deny a motion for shared parenting and 

proceed as if the motion had not been made if it determines that such a plan is not 

in the best interest of the children. In further discussing shared-parenting plans, 

the statute states: 

The approval of a plan under division (D)(1)(a)(ii) or (iii) of this 

section is discretionary with the court. The court shall not approve 

more than one plan under either division and shall not approve a 

plan under either division unless it determines that the plan is in the 

best interest of the children. If the court, under either division, does 

not determine that any filed plan or any filed plan with submitted 

changes is in the best interest of the children, the court shall not 

approve any plan. 

(Emphasis added.) R.C. 3109.04(D)(1)(b). 
Case No. 2-09-21 

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{¶ 50} Although both Timothy and Amy filed shared-parenting plans, Amy 

made it very clear at trial that she did not feel shared parenting was appropriate. 

The parties’ plans were very different, and Amy’s plan, although labeled a 

“shared-parenting plan,” more closely followed the typical plan associated with 

the allocation of a residential parent and traditional visitation schedule. 

{¶ 51} The testimony at trial indicated that the parties had great difficulty 

cooperating with each other. There was considerable testimony about the 

derogatory and demeaning language that Timothy used in reference to Amy in the 

presence of the children. Amy had been the children’s primary caretaker ever 

since their birth. It was only recently that Timothy began to take a more active 

role in the children’s lives. 

{¶ 52} Although the guardian ad litem recommended shared parenting, the 

primary rationale for that recommendation was to allow the children to spend time 

with each parent. The guardian ad litem’s report also stated, “I am not confident 

Tim and Amy are at a point emotionally they can work together,” and “the 

parents’ disparate emotional states * * * will make Shared Parenting difficult.” 

The guardian ad litem even recommended exchanges at a public place due to the 

relationship of the parties. 

{¶ 53} The trial court found: 

The very crux of shared parenting requires the parties to cooperate 

with one another in the daily lives of the children. The Court does 
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not believe that these parties can cooperate to the extent necessary to 

implement any type of shared parenting plan. Such a forced 

cooperation would not be in the best interests of the children. 

Accordingly, the Court rejects the shared parenting plans of the 

parties. 

{¶ 54} Although the trial court designated Amy as the residential parent and 

legal custodian, it addressed the guardian ad litem’s concerns and awarded 

Timothy more time with the children than normally allotted under standard 

visitation orders. Based upon the testimony and evidence before the trial court, we 

do not find that the court abused its discretion when it declined to order a sharedparenting plan. Timothy’s eighth assignment of error is overruled. 

{¶ 55} Based on the foregoing, we find that seven of Timothy’s 

assignments of error are overruled and the judgment of the trial court pertaining to 

those assignments of error is affirmed. Timothy’s fifth assignment of error is 

sustained, and the matter is remanded to the trial court for further consideration 
Case No. 2-09-21 

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consistent with this opinion. 

Judgment affirmed in part 

and reversed in part, 

and cause remanded. 

 PRESTON, P.J., and SHAW, J., concur.