[Cite as Ward v. Ward , 2020-Ohio-3415.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

JOSEPH J. WARD, PLAINTIFF-APPELLEE, CASE NO. 9-19-24

v. SHANNON L. WARD, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Family Division Trial Court No. 2017 DR 0198 Judgment Affirmed Date of Decision: June 22, 2020

APPEARANCES: 

### Rocky Ratliff for AppellantCase No. 9-19-24

-2- PRESTON, J. {¶1} Defendant-appellant, Shannon L. Ward (“Shannon”), appeals the March 27, 2019 judgment of the Marion County Court of Common Pl eas, Family Division. For the reasons that follow, we affirm. {¶2} Shannon and plaintiff-appellee, Joseph J. Ward (“Joseph”), were married on March 4, 2000. (Doc. Nos. 1, 11, 92). Two minor ch ildren were born as issue of the marriage. ( Id. ). On September 1, 2017, Joseph filed a complaint in the trial court requesting a divorce from Shannon. (Doc. No. 1 ). On September 25, 2017, Shannon filed her answer to Joseph’s complaint and a coun terclaim for divorce. (Doc. No. 11). {¶3} The final hearing in the matter commenced on March 14-15, 2019. (Doc. No. 92). On March 27, 2019, the trial court filed its ju dgment entry granting Joseph’s complaint for divorce. ( Id. ). In the judgment entry, the trial court also divided the parties’ property. ( Id. ). Relevant to this appeal, the trial court determined that all of the property acquired by the parties dur ing the marriage, with the exception of the shares of stock in Ohigro, Inc. (“Ohigro”) held by Joseph, is marital property subject to equitable division by the court. ( Id. ). The trial court determined that Joseph’s 3,267 shares of Class B non-voting sto ck in Ohigro were “obtained pursuant to a defined pattern of gifting to transfer ownership of a ‘closely-Case No. 9-19-24

-3- held’ family business to family members only,” and were thus se parate property that was not subject to equitable division. ( Id. ). {¶4} Additionally, the trial court ordered that Shannon retain the 2 016 Honda Odyssey van titled in Joseph’s name and assume responsibility f or paying the loan on the van. ( Id. ). Further, the trial court ordered that Joseph be held harmle ss from payment on the van. ( Id. ). {¶5} On April 26, 2019, Shannon filed her notice of appeal. (Doc. N o. 95). She raises three assignments of error, which we address togethe r. Assignment of Error No. I The trial court erred by ruling that the 3,267 shares of Class Bnon-voting shares of stock received from Ohigro by PlaintiffAppellee were non-marital and as such, were not subject to division by the Court, as the shares were actually marital in nature. Assignment of Error No. II Even if the Court was correct in classifying this property as a gift and separate property, the stock was converted to marital property status due to increase in value during the marriage, a nd the Appellant should have been awarded one-half (1/2) of any appreciation of the improved value as the improved value would be marital in nature. Assignment of Error No. III The trial court’s award of the 2016 Honda Odyssey Van to Appellant resulted in an inequitable division of this asset and /or debt, as Appellant did not have the means to make the payment on the loan associated with said vehicle and Appellant had five (5) times the amount of income as Appellant.Case No. 9-19-24

-4- {¶6} In her first assignment of error, Shannon argues that the trial court erred by determining that Joseph’s shares of stock in Ohigro were sep arate property and, therefore, not subject to division. Specifically, Shannon argu es that a portion of Joseph’s stock in Ohigro was marital property because it was ac quired during the marriage and was received, in part, due to his employment at Oh igro. In her second assignment of error, Shannon argues that even if the trial cour t did not err by classifying Joseph’s shares of stock in Ohigro as separate prop erty, the trial court subsequently erred by not awarding her one-half of any apprecia tion of the improved value of the stock. Specifically, Shannon contends th at the value of the stock improved due to the work Joseph performed as an employee of Ohigro, and thus, the trial court should have equitably divided the appreci ation of the improved value of the shares of stock between the parties. In her third assignment of error,

Shannon contends that the trial court’s award of the 2016 Honda Odyssey to her resulted in an inequitable division of marital property because she does not have the means to make payments on the vehicle and her income is substan tially lower than Joseph’s income. {¶7} “In divorce proceedings, the trial court must determine which p roperty is marital and then divide that property in an equitable manner .” Dabis v. Dabis , 3d Dist. Mercer No. 10-97-17, 1998 WL 391938, *2 (July 9, 1998); R .C. 3105.171. Marital property does not include separate property. R.C. 3105 .171(A)(3)(b).Case No. 9-19-24

-5- Following the classification of assets as marital or separate p roperty, the separate property is generally awarded to the party that owns that prope rty regardless of whether the separate property was acquired before or during the marriage. R.C. 3105.171(D). {¶8} “The trial court’s classification of property as marital or sep arate is a

factual determination.” Worden v. Worden , 3d Dist. Marion No. 9-16-54, 2017- Ohio-8019, ¶ 17, citing Rinehart v. Rinehart , 4th Dist. Gallia No. 96 CA 10, 1998 WL 282622 (May 18, 1998). “An appellate court reviews the tri al court’s classification of property as marital or separate property unde r a manifest weight of

the evidence standard.” Mousa v. Saad , 3d Dist. Marion No. 9-16-43, 2017-Ohio7116, ¶ 24, citing Brandon v. Brandon , 3d Dist. Mercer No. 10-08-13, 2009-Ohio3818, ¶ 11, citing Gibson v. Gibson , 3d Dist. Marion No. 9-07-06, 2007-Ohio-6965, ¶ 26, quoting Eggeman v. Eggeman , 3d Dist. Auglaize No. 2-04-06, 2004-Ohio6050, ¶ 14. “An appellate court will not reweigh the evidence i ntroduced at trial; rather, we will uphold the findings of the trial court if the r ecord contains some competent, credible evidence to support the trial court’s concl usions.” Eggeman at ¶ 27. “In determining whether competent, credible evidence exi sts, ‘[a] reviewing court should be guided by a presumption that the findings of a trial court are correct, since the trial judge is best able to view the witnesses and ob serve their demeanor, gestures, and voice inflections, and use those observations in weighing theCase No. 9-19-24

-6- credibility of the testimony.’” Bey v. Bey , 3d Dist. Mercer No. 10-08-12, 2009- Ohio-300, ¶ 15, quoting Barkley v. Barkley , 119 Ohio App.3d 155, 159 (4th Dist.1997). {¶9} R.C. 3105.171(A)(3)(a) defines marital property as follows: (i) All real and personal property that currently is owned by eithe r or both of the spouses, including, but not limited to, the reti rement benefits of the spouses, and that was acquired by either or bot h of the spouses during the marriage; (ii) All interest that either or both of the spouses currently has i n any real or personal property, including, but not limited to, the r etirement benefits of the spouses, and that was acquired by either or bot h of the spouses during the marriage; (iii) Except as otherwise provided in this section, all income and appreciation on separate property, due to labor, monetary, or i n-kind contribution of either or both of the spouses that occurred dur ing the marriage; (iv) A participant account, as defined in section 148.01 of the Revised Code, of either of the spouses, to the extent of the fo llowing: the moneys that have been deferred by a continuing member or participating employee, as defined in that section, and that ha ve beenCase No. 9-19-24

-7- transmitted to the Ohio public employees deferred compensation board during the marriage and any income that is derived from t he investment of those moneys during the marriage; the moneys that have been deferred by an officer or employee of a municipal corporation and that have been transmitted to the governing boa rd, administrator, depository, or trustee of the deferred compensat ion program of the municipal corporation during the marriage and an y income that is derived from the investment of those moneys duri ng the marriage; or the moneys that have been deferred by an offic er or employee of a government unit, as defined in section 148.06 of the Revised Code, and that have been transmitted to the governing b oard, as defined in that section, during the marriage and any income that is derived from the investment of those moneys during the marriage

. Furthermore, R.C. 3105.171(A)(3)(b) indicates that marital prop erty “does not include separate property.” R.C. 3105.171(A)(6)(a) defines sep arate property, in relevant part, as any interest in real or personal property tha t the court finds to be any of the following: (i) An inheritance by one spouse by bequest, devise, or descent during the course of the marriage;Case No. 9-19-24

-8- (ii) Any real or personal property or interest in real or perso nal property that was acquired by one spouse prior to the date of t he marriage; (iii) Passive income and appreciation acquired from separate property by one spouse during the marriage; (iv) Any real or personal property or interest in real or perso nal property acquired by one spouse after a decree of legal separat ion issued under section 3105.17 of the Revised Code;

* * * (vii) Any gift of real or personal property or of an interest in real or personal property that is made after the date of the marriage a nd that is proven by clear and convincing evidence to have been given t o only

one spouse. {¶10} Generally, “‘the party seeking to establish an asset as separat e property * * * has the burden of proof, by a preponderance of the eviden ce, to trace the asset to separate property.’” Strasburg v. Strasburg , 3d Dist. Auglaize No. 2-10-12, 2010-Ohio-3672, ¶ 20, quoting Earnest v. Earnest , 11th Dist. Portage No. 2002-P0010, 2003-Ohio-704, ¶ 38. “A ‘preponderance of the evidence m eans the greater weight of the evidence that is necessary to destroy the equilib rium.’” Golan-Elliott

v. Elliott , 3d Dist. Union No. 14-17-01, 2017-Ohio-8524, ¶ 53, quoting Reed v.Case No. 9-19-24

-9- Reed , 3d Dist. Allen No. 1-09-63, 2010-Ohio-4550, ¶ 10. In general , “the holding of title to property by one spouse individually or by both spou ses in a form of coownership does not determine whether the property is marital pr operty or separate property.” R.C. 3105.171(H). {¶11} In her first assignment of error, Shannon argues that a portion of Joseph’s shares of stock in Ohigro is marital property. Shanno n contends that the shares of stock were received in consideration for Joseph’s emp loyment at Ohigro and thus constitute marital property. {¶12} With respect to the shares of stock in Ohigro, the trial court found as

follows: All property acquired by the parties during the term of the mar riage is marital property subject to equitable division by the Court wit h the exception of the shares of stock in Ohigro held by Plaintiff su bject to the Buy/Sell Agreement dated November 29, 2013, and the prior agreement containing the same restrictive covenants for same. Plaintiff’s Three thousand two hundred sixty-seven (3,267) shar es of Class B non-voting stock in Ohigro were obtained pursuant to a defined pattern of gifting to transfer ownership of a “closely- held” family business to family members only. All of Plaintiff’s sto ck shares were acquired by him in this fashion, and therefore are separateCase No. 9-19-24

-10- property not subject to distribution by this Court. IT IS SO

ORDERED. (Doc. No. 92). {¶13} In 1965, Joseph’s grandfather, James H. Ward (“James”), founded Ohigro, an agricultural services and products company. (Mar. 1 4-15, 2019 Tr. at 15, 45-46, 236). Joseph began working at Ohigro in January 200 1. ( Id. at 237, 288). At the time of the final divorce hearing, Joseph held the posit ion of Vice President of Operations. ( Id. at 59-60, 237). Joseph’s brother, Jeffrey Ward (“Jeffrey”), i s the Controller of Ohigro and primarily oversees the company’s f inances and human resources. ( Id. at 26-27). Joseph and Jeffrey’s father, Jerry A. Ward (“Jerry ”), despite being partially retired, holds the title of President o f the company and oversees the business. ( Id. at 28, 59-60). ( See Defendant’s Ex. V). {¶14} As an employee of Ohigro, Joseph receives a base salary. (Mar. 14- 15, 2019 Tr. at 39-42, 97-98). ( See Plaintiff’s Ex. 1). Additionally, Joseph receives an annual bonus. (Mar. 14-15, 2019 Tr. at 36-37); (Plaintiff’s Ex. 1). Although the annual bonus is not guaranteed, Joseph has received an annual b onus most years, and Joseph received an annual bonus in 2016, 2017, and 2018. ( Mar. 14-15, 2019 Tr. at 36-37); (Plaintiff’s Ex. 1). Ohigro’s annual bonuses ar e determined by the company’s profitability for the fiscal year and the employee’s seniority and job performance. (Mar. 14-15, 2019 Tr. at 41-42). Additionally, J oseph is a fully-Case No. 9-19-24

-11- vested participant in Ohigro’s savings and retirement profit sh aring plan. ( Id. at 53, 94); (Plaintiff’s Exs. 2, 11). The profit sharing plan is comp letely company funded, and employees are not able to allocate other amounts from their checks. (Mar. 14- 15, 2019 Tr. at 54-55). Joseph is also enrolled in Ohigro’s 40 1k plan, and the company matches a percentage of Joseph’s contribution to the pl an. ( Id. at 91-94); (Plaintiff’s Ex. 10). {¶15} Beginning in the late 1990s, James asked Jeffrey to assist him in facilitating the transfer of stock in Ohigro as gifts to his fa mily members. (Mar. 14- 15, 2019 Tr. at 22). James’s intention in making the gifts was to allow James to witness his children and grandchildren enjoy the gift or “inher itance” while he was alive. ( Id. ). James and Jeffrey enlisted legal counsel to assist in makin g these gifts and to manage the tax implications. ( Id. at 27-28). At the advice of counsel, James made his gifts of stock to his family members over a number of years, with the goal of not exceeding the statutory gifting limits and triggering gi ft tax implications for the recipients. ( Id. ). {¶16} As of December 31, 1998, Joseph owned 364 shares of Class B nonvoting stock in Ohigro. (Plaintiff’s Ex. 3). Joseph’s 364 shares constituted 0.552% of the total shares in Ohigro. ( Id. ); (Mar. 14-15, 2019 Tr. at 235). On January 1, 1999, James made the first transfer of stock to his family members, including Joseph and his siblings under the gifting scheme. (P laintiff’s Ex. 3); (Mar.Case No. 9-19-24

-12- 14-15, 2019 Tr. at 22). On that date, James transferred 464 sh ares of Class B nonvoting stock in Ohigro each to Joseph, Jeffrey, and Joseph’s sister, Julie A. Ward (“Julie”). (Plaintiff’s Ex. 3). As of January 1, 1999, Joseph ’s stock in Ohigro constituted a 1.255% ownership interest in the company. (Plain tiff’s Ex. 3); (Mar. 14-15, 2019 Tr. at 22). On March 1, 1999, following a corporat e buyout of James W. Ward, Jr., Joseph’s ownership interest in Ohigro increased t o 1.775% of the company. (Plaintiff’s Ex. 3); (Mar. 14-15, 2019 Tr. at 23). {¶17} On January 1, 2000, James transferred an additional 268 shares of stock in Ohigro to each of Joseph and his siblings. (Plaintiff ’s Ex. 3); (Mar. 14-15, 2019 Tr. at 23). As of January 1, 2000, Joseph’s total shares of Class B nonvoting stock in Ohigro numbered 1,096 and constituted a 2.350% interes t in Ohigro. (Plaintiff’s Ex. 3); (Mar. 14-15, 2019 Tr. at 23). On May 1, 2 001, Joseph’s interest in the company increased to 3.712% due to a corporate buyout of the shares of Class B nonvoting stock of Joseph’s uncle, Michael J. Ward (“Michael” ). (Plaintiff’s Ex. 3); (Mar. 14-15, 2019 Tr. at 18, 78-79). However, Joseph did n ot receive additional shares of stock in Ohigro on that date. (Plaintiff’s Ex. 3). {¶18} On January 1, 2002, James transferred 71 shares of Class B nonv oting stock in Ohigro to Joseph, bringing Joseph’s total number of sh ares of Class B nonvoting stock to 1,167 and constituting a 3.952% interest in the company. ( Id. ); (Mar. 14-15, 2019 Tr. at 24, 308-309). Following the January 1 , 2002 transfer,Case No. 9-19-24

-13- James no longer owned any shares of stock in Ohigro. (Plaintif f’s Ex. 3); (Mar. 14- 15, 2019 Tr. at 24). {¶19} Following James’s final transfer of stock, no shares of stock i n Ohigro changed hands for more than ten years. (Plaintiff’s Ex. 3); (M ar. 14-15, 2019 Tr. at 24). In 2012, Jerry and Jacqueline K. Ward (“Jacqueline”), Jos eph’s mother, began the process of transferring their shares of stock in Ohigro to their three children: Joseph, Jeffrey, and Julie. (Plaintiff’s Ex. 3); (Mar. 14-15, 2019 Tr. at 18-19, 24- 25). Accordingly, on December 1, 2012, Jerry and Jacqueline tr ansferred 2,100 shares of Class B nonvoting stock to Joseph, 2,100 shares to Je ffrey, and 1,100 shares to Julie. (Plaintiff’s Ex. 3); (Mar. 14-15, 2019 Tr. at 25, 75, 80-81, 309). As a result of the gifting, Joseph’s aggregate number of shares of Class B nonvoting stock in Ohigro was 3,267 shares, constituting an 11.065% inter est in the company. (Plaintiff’s Ex. 3); (Mar. 14-15, 2019 Tr. at 24, 236). No add itional transfers of stock in Ohigro were made between December 1, 2012 and the time of the final divorce hearing. (Mar. 14-15, 2019 Tr. at 62, 136-137); (Plain tiff’s Ex. 3). {¶20} With respect to the discrepancy in the number of shares of stoc k that Joseph and Jeffrey received, versus the number of shares of sto ck that Julie received, on December 1, 2012, Jeffrey testified that it was his belief t hat he and Joseph received more shares of stock in Ohigro than Julie received bec ause they are involved with the company, and Julie does not have the same day -to-dayCase No. 9-19-24

-14- involvement in the company. (Mar. 14-15, 2019 Tr. at 81-82). As a result of Joseph and Jeffrey’s day-to-day involvement in the company, their pare nts reasoned that the shares of stock in Ohigro would be more meaningful to them than they would be to Julie. ( Id. ). Jeffrey recalled that because of this, Jerry and Jacqueline gifted

Julie other assets that totaled the same value and would hold m ore personal meaning to her. ( Id. ). {¶21} As of December 1, 2012, five individuals held shares of stock i n Ohigro—Jerry, Jacqueline, Jeffrey, Joseph, and Julie. ( Id. at 16); (Plaintiff’s Ex. 3). As of that date, Jerry owned all 980 shares of Class A voting s tock and an additional 9,205 shares of Class B nonvoting stock. (Plaintiff’s Ex. 3); (Mar. 14-15, 2019 Tr. at 72). Jerry’s total shares of stock in Ohigro constituted an ownership interest of 34.495%. (Plaintiff’s Ex. 3). Jacqueline’s interest in the co mpany totaled 9,350 shares of Class B nonvoting stock for a total ownership interes t of 31.667%. ( Id. ). Jeffrey owned a total of 4,457 shares of Class B nonvoting stoc k, which represented

a 15.095% i nterest in Ohigr o. ( Id. ). Joseph owned a total of 3,267 shares of Class B nonvoting stock for a total interest of 11.065%. ( Id. ). Finally, Julie owned a total of 2,267 shares of Class B nonvoting stock for a total ownershi p interest of 7.678%. ( Id. ). {¶22} Joseph and Jeffrey testified that at no point was money exchang ed in consideration for the shares of stock. (Mar. 14-15, 2019 Tr. a t 21, 28, 234). JosephCase No. 9-19-24

-15- and Jeffrey stated that they both understood that they received the shares of stock as part of a gifting or advanced inheritance process from their pa rents and grandparents. ( Id. at 23, 28, 234, 265, 309). Moreover, Jeffrey testified that a t no time has Ohigro stock been earned by shareholders. ( Id. at 63). Jeffrey further stated that it has never been the procedure of Ohigro that indi viduals receive shares of stock in Ohigro for job performance or upon completion of a corporate goal. ( Id. ). {¶23} The transfer of stock in Ohigro is governed by a Buy-Sell Agree ment, which each of the shareholders signed. ( Id. at 29, 65). ( See Plaintiff’s Ex. 4). The current version of the agreement was executed on November 29, 2 013. (Plaintiff’s Ex. 4). However, there was a prior version of the Buy-Sell Agr eement which was executed in 1998. (Mar. 14-15, 2019 Tr. at 64-65). Joseph pro vided the 2013 version of the Buy-Sell Agreement as part of the record; howeve r, the 1998 version of the Buy-Sell Agreement is not part of the record. ( Id. at 65). ( See Plaintiff’s Ex. 4). However, Jeffrey testified that the content of the 1998 ve rsion of the agreement is identical to that of the 2013 version. (Mar. 14-15, 2019 Tr . at 65). ( See Plaintiff’s Ex. 4). A ccording to Jeffrey, who w orked with c ounsel t o produ ce the documents, the only difference between the two versions of the Buy-Sell Ag reement is the name and signature of the current shareholders, which was updated in 2013 to reflect theCase No. 9-19-24

-16- names and signatures of the current shareholders. (Mar. 14-15, 2019 Tr. at 65). ( See Plaintiff’s Ex. 4). {¶24} Joseph and Jeffrey described Ohigro as a “closely held company. ” (Mar. 14-15, 2019 Tr. at 103, 130, 140, 237). Jeffrey testifie d that the Buy-Sell Agreement was created out of the desire to ensure that the shar es of stock stay within the immediate family. ( Id. at 29). The Buy-Sell Agreement was therefore created to ensure that a shareholder that was in need of money or that was the subject of legal proceedings could not sell their stock in Ohigro to indiv iduals outside of the immediate family. ( Id. at 29-30). Jeffrey testified that he reviewed the 2013 BuySell Agreement with each of the shareholders and that he consid ered his review of the Buy-Sell Agreement with each of the shareholders as a vehic le to educate the shareholders on the company’s guidelines for the transfer of sh ares of stock in Ohigro. ( Id. at 65). {¶25} The Buy-Sell Agreement provides that the shareholder agrees “th at he or she will not, during his or her lifetime, give, sell, transf er, trade, pledge or otherwise encumber, or permit to be encumbered by liens, or the legal or equitable interest of another” his or her shares of stock in Ohigro, exce pt as in accordance with the provisions of the agreement. (Plaintiff’s Ex. 4). Th e Buy-Sell Agreement details the process by which the shareholders can dispose of th eir shares of stock in Ohigro during their lifetime or at death. ( Id. ). The Buy-Sell Agreement mandatesCase No. 9-19-24

-17- that a living shareholder must first make a written offer of sa le to the Board of Directors of Ohigro offering to sell his or her shares to the c ompany. ( Id. ). The Buy-Sell Agreement provides that if the Board of Directors reje cts the offer, the shareholder may offer the shares for purchase to the remaining shareholders by a process outlined in the agreement. ( Id. ). {¶26} Additionally, the Buy-Sell Agreement provides that Ohigro shall have a valuation of the common stock of the company completed every five years by a Certified Public Accounting firm which has expertise in providi ng independent business valuations including “valuation of stock of closely he ld businesses.” ( Id. ). At the time of the final hearing, the last valuation of Ohigro stock was performed on June 30, 2012. ( Id. at 69-70). ( See Defendant’s Ex. R). Jeffrey testified that, at the advice of the accounting firm, Ohigro did not perform a val uation of stock five years after the 2012 valuation of stock because there were no p lans for the stock to change hands, whether by gifting or otherwise. (Mar. 14-15, 20 19 Tr. at 70-74). {¶27} The Buy-Sell Agreement also states that “[t]he parties agree th at the rights protected by this agreement cannot be quantified and red uced to money damages. The corporation and the shareholders each agree that, in any action against any of them to enforce any provision of this agreement, there is no adequate remedy at law and neither they nor any agent will raise to atte mpt to raise that defense.” (Plaintiff’s Ex. 4). Although the Buy-Sell Agreemen t does notCase No. 9-19-24

-18- specifically mention the word “divorce,” Jeffrey and Joseph bot h testified that it was their understanding that divorce is included in the provision t hat one cannot “give, sell, transfer, trade, pledge, or otherwise encumber” shares of stock in Ohigro. (Mar. 14-15, 2019 Tr. at 67-68, 310). ( See Plaintiff’s Ex. 4). {¶28} The Buy-Sell Agreement references a shareholder ledger attached to the Buy-Sell Agreement as “Schedule A.” (Plaintiff’s Ex. 4); ( Mar. 14-15, 2019 Tr. at 66). However, the copy of the Buy-Sell Agreement presented at the final hearing and included in the record does not have any attachments, inclu ding a document labeled “Schedule A.” (Mar. 14-15, 2019 Tr. at 66). ( See Plaintiff’s Ex. 4). However, Jeffrey testified that the document referenced as “Sch edule A” is the Shareholder Ledger which contains the same information as Plain tiff’s Exhibit 3. (Mar. 14-15, 2019 Tr. at 66). ( See Plaintiff’s Ex. 3). Additionally, although the Buy-Sell Agreement references physical certificates of stock, J effrey testified that the company has not had physical certificates of stock for many years. (Mar. 14- 15, 2019 Tr. at 102-103). Rather, due to the restrictive natur e of the Buy-Sell Agreement and the relative rarity of the transfer of shares of stock in Ohigro, the stock ownership is tracked through the shareholder ledger. (Ma r. 14-15, 2019 Tr. at 73). ( See Plaintiff’s Ex. 3). {¶29} After reviewing the record, we conclude that competent, credibl e evidence supports the trial court’s determination that all of J oseph’s shares of stockCase No. 9-19-24

-19- in Ohigro are separate property. First, Joseph directly testif ied that he understood that he received his shares of stock in Ohigro as part of a pat tern of gifting from his grandparents and parents that was intended to function as an ad vanced inheritance. Jeffrey, who worked directly with his father, grandfather, and legal counsel in the execution of the gifting, and who received shares of stock in t his manner himself, testified to the gifting process and the considerations his par ents and grandparents undertook with respect to the gifting. For instance, Jeffrey t estified that his grandparents gifted their children and grandchildren shares of stock over the course of several years to avoid gift tax implications. Additionally, no money was exchanged in consideration for Joseph’s shares of stock in Ohig ro. {¶30} Although Joseph is an employee at Ohigro, he receives compensat ion for his employment through his salary, annual bonus, corporate profit sharing plan, and his 401k contribution match, which the trial court determin ed was marital property. Additionally, Jeffrey testified that employees canno t earn shares of stock in Ohigro through job performance, such as meeting personal or corporate goals. {¶31} Moreover, the evidence at the final hearing showed that a numbe r of Ohigro employees are not immediate family members and that, at the time of the final hearing, only Joseph, his two siblings, and his parents o wned shares of stock in Ohigro. This provides additional evidence that Ohigro is a closely-heldCase No. 9-19-24

-20- corporation and that Joseph’s shares of stock in Ohigro were no t acquired in consideration for Joseph’s employment at Ohigro. {¶32} Additionally, Ohigro’s Buy-Sell Agreement provides additional evidence that Joseph’s shares of stock in Ohigro are separate p roperty. The BuySell Agreement details the process by which the shares of stock in the closely-held corporation can be sold by a living shareholder, and provides t hat the shareholder must offer his or her shares of stock to the corporation and to the remaining shareholders, thus ensuring that the shares of Ohigro remain in the hands of the

current shareholders. {¶33} Shannon contends that provisions of the Buy-Sell Agreement are not binding on Joseph’s shares of stock because all of Joseph’s sha res of stock in Ohigro predate the November 29, 2013 Buy-Sell Agreement. However, Jef frey testified that the current version of the Buy-Sell Agreement was predated by a previous version of the agreement that contained identical content to th e current version of the agreement. According to Jeffrey’s testimony, the only diff erence between the two documents were the names and signatures of the current shar eholders. Shannon also argues that Joseph’s stock was not subject to the restrict ive terms in the BuySell Agreement because Joseph did not produce stock certificate s containing the restrictions on transfer. However, as Jeffrey testified, Ohigr o has not utilized physical stock certificates for many years. Rather, due to the restrictive nature ofCase No. 9-19-24

-21- the Buy-Sell Agreement and at the advice of counsel, Ohigro has maintained a shareholder ledger to track the ownership of the shares of stoc k rather than issuing physical certificates of stock. Thus, the fact that the restri ctions referenced in the Buy-Sell Agreement were not present on physical certificates of shares of stock does not mean that Joseph’s shares of stock in Ohigro were not subje ct to the transfer restrictions referenced in the Buy-Sell Agreement. {¶34} Shannon further argues that the Buy-Sell Agreement is defective because the copy of the Buy-Sell Agreement presented at the fin al hearing does not have Schedule A attached thereto, as referenced in the Buy-Sell Agreement. However, although Schedule A was not physically attached to the copy of the BuySell Agreement presented to the trial court, Jeffrey testified that Schedule A referred to the shareholder ledger. Jeffrey stated that the shareholder ledger is attached to the original version of the Buy-Sell Agreement. Further, a cop y of the shareholder ledger, containing the same figures contained in Schedule A was admitted into evidence as Plaintiff’s Exhibit 3. Thus, the information conta ined in Schedule A is part of the record. Moreover, Joseph’s failure to physically a ttach Schedule A to the copy of the Buy-Sell Agreement admitted as evidence at the final hearing does not render the Buy-Sell Agreement invalid. See generally McCamon-Hunt Ins. Agency, Inc. v. Med. Mut. of Ohio , 7th Dist. Mahoning No. 02 CA 23, 2003-Ohio1221, ¶ 9, 11-12. We are also not persuaded by Shannon’s argum ents that the Buy-Case No. 9-19-24

-22- Sell Agreement is defective because the document does not speci fically reference “divorce” and does not contemplate unrelated events, such as po ssible bankruptcy proceedings of a shareholder. Moreover, we are not persuaded b y Shannon’s argument that the Buy-Sell Agreement is invalid because the com pany’s last valuation of stock occurred more than five years ago. Accordin gly, the trial court did not err by determining that Joseph’s shares of stock in Ohi gro, which are subject to the Buy-Sell Agreement, are separate property. {¶35} Shannon also argues that Joseph’s increased interest in Ohigro following the corporate buyout of Michael’s shares of stock in 2001 was marital property because the increase was not the result of a pattern o f gifting. Specifically, Shannon contends that Joseph’s increased relative interest in t he company on May 1, 2001 was not received in accordance with a pattern of giftin g. We disagree. On January 1, 2001, Joseph owned 1,096 shares of stock in Ohigro, which constituted a 2.350% interest in the company. However, on May 1, 2001, Jos eph’s 1,096 shares of stock in Ohigro constituted a 3.712% interest in the company . This increase in Joseph’s ownership interest in Ohigro was not due to an increas e in the number of Joseph’s shares of stock but rather was the result of a decreas e in the total number of shares of stock in Ohigro due to a corporate buyout of Micha el’s shares of stock. Thus, although Joseph’s relative ownership interest increased d ue to a decrease in the total number of shares of corporate stock, Joseph’s total n umber of shares ofCase No. 9-19-24

-23- stock in Ohigro remained the same. Accordingly, we reject Shan non’s argument that the corporate buyout of another shareholder’s stock transf ormed Joseph’s existing shares of stock in Ohigro into marital property. To t he extent that Shannon argues that any increase in value of Joseph’s existing shares o f stock in Ohigro is marital property, we will address that argument in our discussi on of Shannon’s second assignment of error. {¶36} Finally, Shannon argues that at least a portion of Joseph’s sha res of stock in Ohigro is marital property because that portion was ob tained in consideration for his employment at Ohigro. Specifically, Shan non points to the fact that on December 1, 2012, Joseph and Jeffrey each received 2,100 shares of stock in Ohigro. In contrast, their sister, Julie, who is not involved in the day-today operations of the company, received only 1,100 shares of st ock. Shannon argues that the discrepancy in the number of shares in the stoc k received by Joseph, Jeffrey, and Julie indicates that the 1,000 additional shares o f stock in Ohigro were given to Joseph and Jeffrey as consideration for their employme nt at Ohigro. Thus, Shannon reasons, at least 1,000 of the 2,100 shares of stock th at Joseph received on December 1, 2012 are marital property. We disagree. {¶37} First, Jerry and Jacqueline had the right to give away their sh ares of stock in Ohigro to their children in whatever proportions they so choose. They were not required to gift their shares of stock in Ohigro to their c hildren in equal shares.Case No. 9-19-24

-24- Moreover, Shannon’s argument that Joseph’s additional shares of stock in Ohigro were given in consideration for his employment at Ohigro is und ermined by Jeffrey’s testimony that Julie received other assets in an amou nt equal to the additional 1,000 shares of stock in Ohigro that Jacqueline and Jerry gifted their sons. Further, as discussed above, Joseph was compensated for his emp loyment at Ohigro with his base salary, annual bonus, 401k contribution matching, and the corporate profit-sharing program. Moreover, Jeffrey testified that share s of stock in Ohigro were not and could not be earned through job performance. Acco rdingly, the trial court did not err in determining that Joseph’s shares of Ohigro stock were obtained pursuant to a defined pattern of gifting. {¶38} Thus, for the foregoing reasons, we conclude that the trial cou rt’s findings that Joseph’s shares of stock in Ohigro are separate p roperty was supported by competent, credible evidence. {¶39} Accordingly, Shannon’s first assignment of error is overruled. {¶40} In her second assignment of error, Shannon argues that even if the trial court did not err by classifying Joseph’s shares of stock in Oh igro as separate property, the trial court abused its discretion by not equitabl y dividing the appreciation of said shares of stock. Shannon contends that any appreciation of the shares of stock was due to Joseph’s labor and was, therefore, a marital asset.Case No. 9-19-24

-25- {¶41} However, here, the record indicates that neither party raised t he issue below or presented evidence as to the value of any appreciation of Joseph’s shares of stock in Ohigro. Although at the final hearing, the parties testified and presented

evidence as to the classification of the shares of stock in Ohi gro as either separate or marital property, the parties did not specifically raise the issue of the appreciation of the shares of stock in Ohigro. Additionally, a detailed val uation of Ohigro and Joseph’s interest therein did not address the issue of the appr eciation of Joseph’s shares of stock in Ohigro. ( See Defendant’s Ex. V). In addition to not raising the issue at the final hearing, the parties also did not raise the issue in their pretrial briefs. In fact, Shannon did not even file a pretrial brief wi th the trial court despite the trial court’s request that both parties submit pretrial bri efs seven days prior to the commencement of the final hearing. (Mar. 14-15, 2019 Tr. a t 14-15). {¶42} Thus, because the parties failed to raise the issue of the appr eciation of Joseph’s shares of stock in Ohigro below, the issue is waive d for purposes of appeal. See Lassiter v. Lassiter , 1st Dist. Hamilton No. C-010309, 2002-Ohio-3136, ¶ 26; Dolan v. Dolan , 11th Dist. Trumbull Nos. 2000-T-0154 and 2001-T-0003, 2002-Ohio-2440, ¶ 6-7. {¶43} Accordingly, Shannon’s second assignment of error is overruled. {¶44} In her third assignment of error, Shannon argues that the trial court abused its discretion by awarding her the 2016 Honda Odyssey va n. Specifically,Case No. 9-19-24

-26- Shannon argues that by awarding the van to her, the trial court did not equitably divide the assets or debts of the marriage. Shannon reasons th at, because Joseph’s income was greater than hers, the trial court should have award ed the van, and its associated debt, to Joseph. Shannon argues that, in the altern ative, the trial court should have ordered the van sold and any profit or loss divided equitably between the parties. {¶45} Generally, trial courts should divide marital assets and debts equally between the spouses. R.C. 3105.171(C)(1). However, where equa l division of the marital assets and debts would be inequitable, “the trial court must ‘divide the marital * * * property equitably between the spouses * * *.’” Siferd v. Siferd , 3d Dist. Hancock No. 5-17-04, 2017-Ohio-8624, ¶ 25, quoting R.C. 3 105.171(B). “Trial courts generally have broad discretion in determining th e equitable distribution of property in divorce cases; and therefore, we re view the overall appropriateness of the trial court’s property distribution unde r an[] abuse of

discretion standard.” Dindal v. Dindal , 3d Dist. Hancock No. 5-09-06, 2009-Ohio3528, ¶ 6, citing Martin v. Martin , 3d Dist. Marion No. 9-03-47, 2004-Ohio-807, ¶ 6, citing Lust v. Lust , 3d Dist. Wyandot No. 16-02-04, 2002-Ohio-3629, Bisker v.

Bisker , 69 Ohio St.3d 608 (1994), and Martin v. Martin , 18 Ohio St.3d 292 (1985). See also Welsh-Pojman v. Pojman , 3d Dist. Crawford No. 3-03-12, 2003-Ohio-Case No. 9-19-24

-27- 6708, ¶ 25 (“We are aware that rigid rules to determine value c annot be established, as equity depends on the totality of the circumstances.”). {¶46} “‘Although Ohio’s divorce statutes do not specifically articula te debt as an element of marital and separate property, the rules conce rning marital assets are usually applied to marital and separate debt as well.’” Siferd, at ¶ 26, quoting

Schwarck v. Schwarck , 3d Dist. Auglaize No. 2-11-24, 2012-Ohio-3902, ¶ 20, citing

Vonderhaar-Ketron v. Ketron , 5th Dist. Fairfield No. 10 CA 22, 2010-Ohio-6593, ¶ 34. “‘The property to be divided in a divorce proceeding inc ludes not only the assets owned by the parties but also any debts incurred by the parties.’” Id. , quoting

Forman v. Forman , 3d Dist. Marion No. 9-13-67, 2014-Ohio-3545, ¶ 31, citing

Marrero v. Marrero , 9th Dist. Lorain No. 02CA008057, 2002-Ohio-4862, ¶ 43. Like property acquired during a marriage, debts incurred during a marriage are presumptively marital debts unless it can be proved that they a re not. Schwarck at ¶ 21, citing Vergitz v. Vergitz , 7th Dist. Jefferson No. 05 JE 52, 2007-Ohio-1395, ¶ 12, citing Knox v. Knox , 7th Dist. Jefferson No. 04 JE 24, 2006-Ohio-1154, ¶ 25-

26. {¶47} Shannon asks this Court to review the trial court’s award of th e 2016 Honda Odyssey van to her without reference to the overall divis ion of marital property. However, “‘“[i]n determining whether the trial court abused its discretion, a reviewing court should not examine the valuation and division of a particularCase No. 9-19-24

-28- marital asset or liability in isolation.”’” Siferd v. Siferd , 3d Dist. Hancock No. 5- 18-05, 2018-Ohio-3616, ¶ 14, quoting Siferd , 2017-Ohio-8624, at ¶ 27, quoting

Harris v. Harris , 6th Dist. Lucas No. L-02-1369, 2004-Ohio-683, ¶ 19, citing Briganti v. Briganti , 9 Ohio St.3d 220, 222 (1984). Rather, “‘“[t]he reviewing cou rt must, instead, view the property division under the totality of the circumstances to determine whether the property division reflects an unreasonabl e, arbitrary or unconscionable attitude on the part of the domestic relations c ourt.”’” Id. , quoting Siferd , 2017-Ohio-8624, at ¶ 27, quoting Harris at ¶ 19, citing Briganti at 222. {¶48} With respect to the parties’ vehicles, the trial court made the following

orders: Defendant shall retain the 2016 Honda Odyssey Van currently tit led in Plaintiff’s name and be responsible for the indebtedness of same and Plaintiff shall be held harmless from payment of same. Pla intiff shall transfer the title to Defendant by May 1, 2019. Plaintif f shall retain the 2016 Honda Civic and the 2016 Chevrolet Corvette, bo th titled in his name, and be responsible for any indebtedness on same and hold Defendant harmless from any payment for said indebtedn ess. The parties testified and submitted evidence as to the value of said vehicles and agreed there was no equity in the 2016 Honda Odyss ey or the 2016 Chevrolet Corvette. There is approximately Six tho usandCase No. 9-19-24

-29- dollars ($6,000.00) in equity in the 2016 Honda Civic, which is used by [the parties’ oldest child], and Defendant is hereby credite d Three thousand dollars ($3,000.00) for her equity in same. Plaintiff shall

also retain the John Deere mower valued at Two thousand dollars ($2,000.00), and the zero turn mower, valued at Three thousand dollars ($3,000.00), along with the Go-cart valued at Two hundr ed dollars ($200.00), all of which he requested to keep. The golf cart, which “hardly runs” and two (2) four-wheelers, kids 50 cc and H onda, were not assigned a value so they will be sold with the househo ld goods and other personal property at auction, which can be purc hased by either party, if they wish, and the proceeds divided equally between the parties. Defendant’s total equity in the items specified h erein, in the sum of Five thousand six hundred dollars ($5,600.00) shall be paid by Plaintiff by June 1, 2019, or shall be deducted from his sha re of the equity in the marital residence proceeds. IT IS SO ORDERED. (Doc. No. 92). {¶49} At the time of the final hearing, the parties owned many vehicl es and equipment that were acquired during the course of the marriage. (Mar. 14-15, 2019 Tr. at 191-193, 217-224). Shannon primarily drove a 2016 Honda Odyssey van that was registered in Joseph’s name. ( Id. at 193, 220). The parties purchased theCase No. 9-19-24

-30- vehicle new and financed it, and at the time of the final heari ng, several years remained on the term of the loan. ( Id. at 193, 220-221, 374). The Kelley Bluebook trade-in value of the van is $15,663 to $17,238. ( Id. at 221); (Plaintiff’s Ex. 15). The parties owed approximately $25,000 to $30,000 on the vehicl e. (Mar. 14-15, 2019 Tr. at 221). Thus, the vehicle “is considerably under wat er.” ( Id. ). At the time of the final hearing, Joseph was maintaining payments on t he van. ( Id. at 252). Shannon testified that the monthly payments for the van are app roximately $760 a month and that she could not afford to keep the vehicle. ( Id. at 193, 374). However,

when asked what she recommended that the trial court do with th e vehicle, she stated that she was going to “leave that up to the Court to decide,” b ut that she could not afford the monthly payments. ( Id. at 374). {¶50} The parties also owned a 2016 Chevy Corvette. ( Id. at 191, 217). Joseph primarily drove the vehicle, and the vehicle was registe red in his name. ( Id. at 191, 217, 374-375). The parties financed the vehicle on an eight-year loan. ( Id. at 217). At the time of the hearing, the loan on the 2016 Chev y Corvette had not yet been paid off. ( Id. ). Joseph testified that he agreed with the Kelley Blue Book trade-in value of the Corvette, which was listed at between $37 ,318 and $40,699. ( Id. at 218); (Plaintiff’s Ex. 13). Joseph testified that due to t he eight-year term of the loan, there was no equity in the vehicle. (Mar. 14-15, 201 9 Tr. at 218-219). At the hearing, Joseph, who was maintaining payments on the 2016 C hevy Corvette,Case No. 9-19-24

-31- requested that the trial court award him the vehicle. ( Id. at 218, 252). Shannon agreed that Joseph should retain the vehicle. ( Id. at 375). {¶51} The parties’ third vehicle was a 2016 Honda Civic, which is reg istered in Joseph’s name, but was primarily driven by the parties’ olde st child. ( Id. at 161, 191, 219). The parties purchased the 2016 Honda Civic new and financed the vehicle. ( Id. at 219). At the time of the hearing, Joseph was maintaining pa yments on the vehicle. ( Id. at 252). The parties owed approximately $6,500 on the vehicle and the trade-in value of the vehicle was approximately $12,398 to $13,581. ( Id. at 219-220); (Plaintiff’s Ex. 14). Both of the parties expressed a desire for their oldest child to continue driving the vehicle. (Mar. 14-15, 2019 Tr. a t 220, 374). Joseph requested that the trial court order Shannon to pay for half of the Honda Civic payments. ( Id. at 220). However, Shannon testified that due to uncertainty regarding her financial situation, she was unable to commit to making a financial contribution toward the vehicle. ( Id. at 374). {¶52} The parties also owned a 2010 John Deere lawn mower, which Jose ph requested that the trial court award to him. ( Id. at 191-192, 222). Joseph estimated that the John Deere lawn mower was worth approximately $1,500 t o $2,000. ( Id. at 222). In addition, the parties owned a zero-turn lawn mower, w hich Joseph requested that the trial court award to him. ( Id. at 222-223). Joseph estimated that the zero-turn lawn mower is worth approximately $3,000. ( Id. at 222). During theCase No. 9-19-24

-32- course of the marriage, the parties also purchased a go-cart, w hich Joseph estimated was worth several hundred dollars. ( Id. at 192, 223). Joseph requested that he retain the go-cart for the parties’ children. ( Id. at 223-224). In addition, the parties owned a golf cart and two four-wheeler vehicles. ( Id. at 222-223). {¶53} Reviewing the totality of the facts and circumstances in the re cord, we cannot conclude that the trial court abused its discretion by a warding the 2016 Honda Odyssey van, with its associated debt, to Shannon. As th is court has held, “[t]he mere fact that a property division is unequal, does not, standing alone, amount

to an abuse of discretion.” Kimmey v. Kimmey , 3d Dist. Allen No. 1-01-68, 2001 WL 1338847, *6 (Oct. 31, 2001). Here, the parties owned two ve hicles that did not contain equity, the 2016 Honda Odyssey van and the 2016 Chevy C orvette, and the trial court awarded each of the parties one of the vehicles. A t the final hearing, the parties did not supply the trial court with exact figures for t he balance remaining on the loans associated with the 2016 Honda Odyssey van or the 201 6 Chevy Corvette, but instead provided the trial court with broad estimations of the same. Additionally, the trial court equally divided the equity associ ated with the remaining vehicles and equipment. {¶54} Furthermore, the division of the equity and debt associated wit h the parties’ vehicles was part of a larger property settlement. As ide from the classification of Joseph’s shares of stock in Ohigro as separat e property, which weCase No. 9-19-24

-33- addressed above, and the award of the 2016 Honda Odyssey van, S hannon does not argue that the trial court’s division of property, which includ es the parties’ retirement accounts, Ohigro profit sharing, and real estate, is inequitable. {¶55} Shannon reasons that the trial court abused its discretion by a warding her the Honda Odyssey van because, at the time of the final hea ring, her wages were lower than Joseph’s wages. However, the trial court addressed the disparity in its findings related to spousal support. The trial court acknowled ged that “there exists a significant disparity in incomes of the parties” and that Sha nnon’s income was significantly diminished by the parties’ agreement that she wou ld stay home with the parties’ children. (Doc. No. 92). The trial court also co nsidered Shannon’s earning potential at the time of the final hearing and in the f uture. ( Id. ). The trial court then ordered Joseph to pay Shannon $2,000 per month in sp ousal support effective April 1, 2019 to January 1, 2021. ( Id. ). The trial court further ordered that Joseph pay Shannon a monthly spousal support order of $1,500 ef fective from January 1, 2021 to January 1, 2023. ( Id. ). The trial court ordered that the spousal support award would reduce to $1,000 per month from January 1, 2023, to January 1, 2030, at which time the spousal support award would terminat e. ( Id. ). Thus, the trial court did properly consider the disparity in income of th e parties and factored the disparity into its overall property distribution.Case No. 9-19-24

-34- {¶56} After reviewing the totality of the facts and circumstances in the record, we cannot conclude that the trial court’s award of the 2016 Honda Odyssey van and its associated debt to Shannon was so unreasonable, arb itrary, or

unconscionable as to constitute an abuse of discretion. See Kimmey , 2001 WL 1338847, at *6; Clark v. Clark , 7th Dist. Noble No. 03 NO 308, 2004-Ohio-1577, ¶ 30 (“[W]ithout more, a difference of $1,500 in the property div ision does not constitute a clear abuse of discretion.”); Speck v. Speck , 6th Dist. Wood No. WD09-005, 2009-Ohio-6684, ¶ 50-51; Hancock v. Hancock , 6th Dist. Williams No. WM-02-011, 2002-Ohio-7106, ¶ 15 (finding that the trial court d id not err by awarding appellant “a significantly larger portion of debt”). {¶57} Accordingly, Shannon’s third assignment of error is overruled. {¶58} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed WILLAMOWSKI and ZIMMERMAN, J.J., concur. /jlr