BRETT E. CORWIN, Plaintiff-Appellee,
JULIE A. CORWIN, Defendant-Appellant.
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 11DR34432
Andrea N. Hicks, for plaintiff-appellee
David N. McNamee, for defendant-appellant
M. POWELL, J.
(¶ 1} Defendant-appellant, Julie A. Corwin (Wife), and plaintiff-appellee, Brett E. Corwin (Husband), each appeal a decision of the Warren County Common Pleas Court, Domestic Relations Division, in their divorce, determining the value of Husband's businesses, and establishing spousal support and child support. For the reasons discussed below, we affirm in part, reverse in part, and remand the cause to the trial court for further proceedings.
(¶ 2} Husband and Wife were married August 26, 1995. Two children were born as issue of their marriage: Devin, born February 22, 2000, and Morgan, born November 8, 2001. Husband and Wife separated on November 26, 2008 and have lived apart since that date. The parties initially filed for divorce in 2010 but voluntarily dismissed that proceeding (the "2010 Divorce Case"). On February 24, 2011, Husband re-filed for divorce. Wife answered and counterclaimed for divorce. Husband and Wife agree that the end date of the marriage is December 31, 2009 and that the duration of the marriage was 14 years.
(¶ 3} A final contested hearing was held before a magistrate on December 12, 2011, February 23, 2012, and March 5, 2012. Contested issues presented to the court concerned (1) the division of marital assets, (2) the incomes of the parties, (3) spousal support, (4) child support, and (5) parenting time.
(¶ 4} A main focus of the divorce was the valuation of Husband's income and one-third ownership interest in Brink Corwin & Nicholson, LLC, Brink Corwin & Nicholson II, Ltd, and BCN Dayton LLC (collectively, "BCN"). BCN operates three "Bargos Grill and Tap" bars in Springdale, Dayton, and Centerville, Ohio. There was no dispute that BCN was marital property. In determining the value of Husband's interest in BCN, and his income, each party presented valuation experts.
(¶ 5} Husband presented appraiser Brian Russell. Russell testified that he performed a valuation of BCN using tax returns from the companies for the years 2006 through 2010 including an "adjustment" made for "vending machine income at a rate of $30, 000" per year that had not been reported on the tax returns. Russell explained that "what you're doing when you're doing a business valuation and you're looking at the five-year or whatever historical period range is, is to really do an analysis to give yourself the best estimate and assumption as to what you believe the company's normalized earnings or net income will be in the future years."
(¶ 6} Russell opined that BCN had a marketable value of $368, 739 with Husband's one-third interest valued at $82, 816 as of 2009. However, Russell acknowledged on redirect examination that he had made an error in his valuation report when he failed to "add back the amortization expense." Additionally, Russell testified that he learned that the $30, 000 vending machine income not reported by BCN was, in actuality, closer to $34, 000. Therefore, Russell revised his valuation report and found that Husband's ownership interest in BCN was $96, 135 for 2009. Finally, Russell concluded that Husband's yearly income was between $35, 000 and $37, 000.
(¶ 7} Wife presented appraiser Alan C. Duval. Duval stated that in preparing his valuation of BCN, he initially looked at the owners' individual tax returns as well as BCN's tax returns. After finding some "anomalies, " Duval determined that BCN had likely filed fraudulent tax returns by failing to report approximately $700, 000 in receipts. Therefore, he reviewed not only the tax returns but also a series of other records including bank statements, financing statements, and a 2004 Buy/Sell Agreement to determine the value of BCN.
(¶ 8} Initially, Duval testified that, in 2009, BCN had a value of $1, 232, 000 with Husband's one-third ownership interest valued at $340, 000. Duval further stated that Husband's annual income is approximately $120, 000. In making this determination, Duval factored in an "auto expense" from BCN that he assumed was Husband's, amortization expenses, and "inter-account transfers" such as payroll, ATM, and sales tax. Duval validated his opinion through the 2004 Buy/Sell Agreement between the members of BCN, who valued one of the BCN bars at $500, 000.
(¶ 9} However, in his second day of testimony, and after reviewing additional documentation he received from BCN, Duval found that Husband's one-third interest in BCN had a 2009 value of only $219, 000. Duval stated that his valuation did decrease, but explained that his valuation was still higher than Russell's-even though they used the same capitalization of earnings method-because Duval used "cushion factors" to determine "additional unreported income" he believed BCN had not reported on its taxes.
(¶ 10} Husband testified concerning the "anomalies" found by Duval. Husband stated that, after receiving Duval's report indicating that BCN had underreported approximately $700, 000, he contacted his accountant and Russell and found that there were several exclusions that Duval did not factor in to his valuation report. Specifically, Husband stated that Duval did not exclude sales tax or bank account withdrawals to load the ATM machines located at the three bars. Duval also did not exclude funds withdrawn by the state of Ohio for BCN's KENO account. Husband explained that Duval should not have included the payroll account in his report because this account only contained "intra-company transfers" from one bank account to another in order to pay employees. Husband further testified that, though his yearly income was approximately $100, 000 in 2007, BCN had not performed well in the last few years and he now has a yearly income of approximately $50, 000.
(¶ 11} Husband also addressed the parties' shared parenting plan, stating that, since early 2010, he received visitation with the children overnight on Wednesdays, every other weekend and overnight on the alternating Mondays ("Monday visitations") when he does not have weekend visitation. Husband seeks continuance of his Monday visitations so that he would not have to go an entire week without seeing his children.
(¶ 12} Wife testified regarding her current income and her desire to have Husband's Monday visitations with the children cease. As to her income, Wife testified that, prior to 2005, she worked on a full-time basis making approximately $23, 000 per year. However, she left the workforce in 2005 to care for the children. Two years after the couple separated, Wife began working part time at a company called Ranstad, making $13 per hour and working an average of 23 hours per week. Wife claimed that her ability to work is "restricted" due to the fact that she is a mother. Specifically, Wife clarified that it would be very difficult for her to work full time due to her children, not wanting to work weekends and nights, and her lack of a college degree.
(¶ 13} Regarding Husband's parenting time, Wife testified that she did not wish for the Monday visitations with Husband and the children to continue. She believed these visits were "confusing" for the children and caused a "commotion" due to the excessive travel between school and their parents' residences. Wife expressed that it would be in the children's "best interest" if Husband had parenting time only on Wednesdays and every other weekend.
(¶ 14} The magistrate rendered his decision on July 31, 2012. The magistrate found Russell's valuation, "accompanied by Husbands [sic] statements regarding revenues and deposits generated by companies, " to be a more accurate estimate of Husband's ownership interest of BCN. Thus, the magistrate concluded that Husband's ownership interest had a value of $96, 135. Consequently, Husband owed Wife $48, 067.50 as her half of Husband's ownership interest in BCN. The magistrate further determined, based upon his own calculations, that Husband's annual income was $74, 504. The magistrate further found that Monday visitations were in the best interests of the children and that Wife would receive spousal support in the amount of $1, 380 per month for 43 months effective July 1, 2012, and child support in the amount of $303.80 per month.
(¶ 15} Both parties filed objections to the magistrate's decision. Wife objected to the value placed upon Husband's business, the income determinations for Husband and Wife, and the effects the various determinations had on spousal support and child support. Husband objected to the magistrate's calculation of his income and the effective date of spousal support. The trial court overruled, in part, and sustained, in part, the objections on November 14, 2012.
(¶ 16} In its decision on the objections to the magistrate's decision, the trial court found that (1) Russell's valuation of Husband's interest in BCN was "more accurate, " (2) Husband's annual income is $74, 504, and (3) Husband should pay Wife $1, 380 per month in spousal support and $303.80 per month in child support. However, the trial court found that the parties previously stipulated in the 2010 Divorce Case that any spousal support payments awarded would be retroactive to December 2008. Thus, the trial court found that Husband's monthly support payments for 43 months shall be considered retroactive to December 2008 and Husband shall receive credit for any past payments made to Wife.
(¶ 17} On January 10, 2013, the trial court filed its Final Judgment and Decree of Divorce, granting the parties a divorce. Wife timely appeals the trial court's decision, raising seven assignments of error:
(¶ 18} Assignment of Error No. 1:
(¶ 19} THE [TRIAL] COURT'S DETERMINATION OF THE VALUE OF BCN WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND AN ABUSE OF THE [TRIAL] COURT'S DISCRETION.
(¶ 20} Assignment of Error No. 2:
(¶ 21} THE [TRIAL] COURT'S DETERMINATION OF [WIFE'S] INCOME WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND AN ABUSE OF THE [TRIAL] COURT'S DISCRETION.
(¶ 22} Assignment of Error No. 3:
(¶ 23} THE [TRIAL] COURT'S DETERMINATION OF [HUSBAND'S] INCOME WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND AN ABUSE OF THE [TRIAL] COURT'S DISCRETION.
(¶ 24} Assignment of Error No. 4:
(¶ 25} THE [TRIAL] COURT'S AWARD OF SPOUSAL SUPPORT WAS INADEQUATE, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND AN ABUSE OF THE [TRIAL] COURT'S DISCRETION.
(¶ 26} Assignment of Error No. 5:
(¶ 27} THE [TRIAL] COURT'S ORDER OF PARENTING TIME IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND AN ABUSE OF THE [TRIAL] COURT'S DISCRETION.
(¶ 28} Assignment of Error No. 6:
(¶ 29} THE [TRIAL] COURT'S AWARD OF CHILD SUPPORT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND AN ABUSE OF THE ...