Meek, Nelsonville, Ohio, and Micaela C. Deming, Bluffton,
Ohio, for appellant.
J. Martindale, Quakertown, Pennsylvania, pro se appellee.
DECISION AND JUDGMENT ENTRY
B. ABELE, JUDGE
1} This is an appeal from an Athens County Common
Pleas Court judgment that granted a divorce between Lisa Ann
Martindale, plaintiff below and appellant herein, and Eric
John Martindale, defendant below and appellee herein.
2} Appellant assigns the following errors for
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED BY IMPUTING INCOME TO DEFENDANT
AFTER FINDING THAT DEFENDANT WAS NOT VOLUNTARILY
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED BY FINDING THAT DEFENDANT WAS NOT
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT CALCULATED
DEFENDANT'S INCOME FOR CHILD AND SPOUSAL SUPPORT
FOURTH ASSIGNMENT OF ERROR:
"THE COURT ERRED BY FAILING TO AWARD SANCTIONS AND COSTS
REIMBURSEMENTS TO PLAINTIFF FOR DEFENDANT'S FINANCIAL
MISCONDUCT, I.E. CONCEALMENT AND NON-DISCLOSURE, THROUGHOUT
THIS COURT ACTION PURSUANT TO R.C. 3105.171 AND R.C.
FIFTH ASSIGNMENT OF ERROR:
"THE COURT ERRED IN DETERMINING THAT A DOMESTIC VIOLENCE
SURVIVOR IS NOT ENTITLED TO CHILD OR SPOUSAL SUPPORT DUE TO
COOPERATION WITH LAW ENFORCEMENT."
SIXTH ASSIGNMENT OF ERROR:
"THE COURT ERRED IN FAILING TO PROTECT THE RECORDS FOR
THE CHILDREN DESPITE A COURT FINDING THAT THE PROTECTION WAS
3} Appellant and appellee married in March
2011. In November 2013, appellant and the
parties' two young children left the Pennsylvania marital
residence and returned to Athens, appellant's hometown.
At the time, appellee was employed as a Major in the United
States Marine Corps and earned approximately $126, 000 per
4} Once appellant arrived in Ohio, a series of
protracted legal proceedings began.
VIOLENCE CIVIL PROTECTION ORDER
5} In December 2013, appellant filed a petition for
a domestic violence civil protection order in the Athens
County Court of Common Pleas. The trial court granted an ex
parte civil protection order and set the matter for a full
hearing. In December 2015, the trial court denied
appellant's request for a domestic violence civil
protection order and terminated the ex parte order.
6} In January 2016, appellant filed a motion for a
new trial and asserted that she recently discovered new
evidence relevant to her petition. In particular, appellant
claimed that on December 7, 2015, appellee admitted in a
military court proceeding that he had struck appellant. At
that point, the trial court granted appellant's motion
and held a new hearing to consider the new evidence.
7} At the hearing, appellant introduced
appellee's written stipulation entered in the military
court proceedings. In the stipulation, appellee agreed that
in July 2013, "events escalated into a physical
confrontation and [he] struck [appellant] one occasion. As a
result of this altercation [appellant] developed a black
eye." Martindale II at ¶ 27.
8} The trial court subsequently granted the civil
protection order and set it to expire in December 2018.
Appellee appealed and we affirmed. Id.
COMPLAINT FOR LEGAL SEPARATION AND DIVORCE PROCEEDINGS
9} In January 2014, appellant filed a complaint for
legal separation in the Athens County Common Pleas Court.
Appellee filed a complaint for a divorce in Pennsylvania and
a motion to dismiss appellant's complaint for legal
separation. Appellee claimed that, under the Uniform Child
Custody Jurisdiction and Enforcement Act, the Athens County
Common Pleas Court lacked jurisdiction over appellant's
complaint. In July 2014, the trial court dismissed
10} Around the same time, appellant gave birth to
twins. One of the twins was born with muscular dystrophy and
requires extensive medical care.
11} Approximately one month after the twins'
birth, appellant appealed the trial court's decision that
dismissed her complaint for legal separation. In February
2016, we reversed and remanded the matter to the trial court
so that it could consider all of the appropriate statutory
factors regarding whether the Athens County Common Pleas
Court is an inconvenient forum. Martindale I at
12} On remand, appellee (1) waived any
jurisdictional argument, (2) filed an answer, (3) filed a
counterclaim for divorce and (4) requested genetic testing of
the twins. The test results indicated that appellee is the
father of the twins.
13} In April 2017, the parties reached an agreement
on all issues involved in the divorce proceedings, except
appellee's child and spousal support obligations and the
dependency exemption. The matter proceeded to a final hearing
before a magistrate.
14} The primary dispute at the hearing concerned the
total amount of appellee's income for child support
purposes. Appellant sought to show that appellee earned
income from, not only his position with the Marine Corps, but
also from two businesses that he formed. Appellant alleged
that the trial court should include appellant's military
income and the income he earned from the two businesses when
it calculated his child support obligation. Appellant claimed
that, when combined, the trial court should conclude that
appellee's gross income was $192, 720.95 for 2015, and
$470, 592.56 for 2016. Appellant arrived at these figures by
arguing, in part, that appellee did not properly substantiate
his business expenses.
15} At the hearing, appellee testified that he was
employed as a Major in the United States Marine Corps and
that he earned $126, 339.96 per year. Appellee further
explained, however, that due to military court proceedings
arising out of the allegations appellant made in her domestic
violence civil protection order petition, he had to resign
from the Marine Corps. Appellee later learned that his
official date of separation from the military would be May
16} Appellee also stated that he currently operates
two business: Suburban Street Trading, LLC aka American
Integrity Products, an internet resale business through
Amazon.com; and Legend Soap. Appellee testified that,
although his businesses have struggled to make a profit, he
hoped to be able to begin withdrawing an annual salary in the
amount of $50, 000 by the middle of 2017.
17} Appellee introduced his 2015 American Integrity
Products tax return that showed gross receipts in the amount
of $113, 093; costs of goods sold in the amount of $62, 632;
and gross profit in the amount of $50, 462. The tax return
showed total expenses in the amount of $53, 868 and itemized
each expense by category: advertising; car and truck;
mortgage interest; legal and professional services; office
expenses; rent of lease of business property; supplies;
travel; meals and entertainment; tolls; Amazon services;
website; phone and iPad; software; and shipping. Schedule C
showed a net loss in the amount of $3, 406. A Passive
Activity Loss form showed that Legend Soap had a loss of $4,
18} Appellee's 2016 tax return showed that
Suburban Street Trading Co. LLC had $312, 637 in gross receipts,
$203, 629 in cost of goods sold, and $109, 008 in gross
profit. The expenses totaled $137, 698. The return showed a
loss of $28, 690. Legend Soap again reported a loss of $4,
19} Appellee stated that, to obtain the numbers for
his tax return, he "count[ed] up all [his]
receipts." He explained that twice per month he would
reconcile his personal and business expenses on the credit
card. Appellee indicated that every time he received his
military paycheck, he reviewed the previous two weeks to
locate all of the personal charges on his credit card. He
stated that he used his military income to pay for the
personal charges and that the rest of the charges he paid as
business expenses with the income received from Amazon.
20} Appellee testified that he calculated the cost
of goods sold through Amazon's sellers central. Appellee
related that going through each item was extremely
time-consuming, so he did not calculate each item
individually. Appellee explained that he instead took a
"cross selection" to arrive at the
cost-of-goods-sold figure. Appellee additionally related
that, although he had not brought any evidence to the hearing
to document his claimed business expenses, he had provided a
box of receipts to appellant's counsel.
21} Bryan C. Daulton testified that appellant
retained him to help determine appellee's total income
for child support purposes. Daulton explained that appellee
did not follow generally accepted accounting practices and
that the lack of an accounting system left Daulton unable to
accurately determine appellee's income. Daulton stated
that although he could review the tax returns, he could not
explain the source of the numbers that appellee reported on
the tax returns. Daulton did indicate that a business
ordinarily would maintain a general ledger or some other
method of tracking expenses. Daulton related that he reviewed
the receipts appellee provided, but Daulton could not
determine which receipts were for personal expenses and which
receipts were for business expenses. Daulton testified that
based upon the evidence appellee provided, Daulton could not
determine the gross receipts appellee's businesses
generated, the business expenses, or the cost of goods sold.
22} Daulton also explained that he does not know
whether appellee arbitrarily reported the numbers on his tax
return or whether appellee had back-up documentation that
appellee gave to the accountant who prepared his tax returns.
Daulton stated that he does not believe that appellee's
tax preparer had a duty to audit appellee, but rather, the
tax preparer has an obligation to believe that the data
appellee provided is reasonable.
23} In sum, Daulton testified that he could not
verify appellee's income based upon the documentation
appellee provided. Daulton reported: "[T]he accounting
documents weren't provided that would have allowed [him]
to verify what [appellee's] income is."
24} Appellant testified and explained that she is a
stay-at-home mother to the parties' four children: a
five-year-old; a four-year-old; and twin two-year-olds.
Appellant stated that one of the twins has been diagnosed
with Muscular Dystrophy and that the child requires extensive
and expensive medical care.
25} Following the hearing, the magistrate entered a
decision that found appellee's income to be $126, 339.96
through the date of his separation from the military, and
$50, 000 effective May 26, 2017. The magistrate also
determined that appellant had failed to pursue her claim for
spousal support and, thus, did not address spousal support.
26} Appellant filed timely objections to the
magistrate's decision. Although she raised several
objections, appellant's objections primarily centered
upon the magistrate's calculation of appellee's
income for child support purposes. In particular, appellant
objected to the magistrate's determination that
appellee's income before he separated from the military
did not include any income from the two businesses that
appellee operated. She alleged that appellee did not produce
evidence to substantiate his claimed business expenses and
cost of goods sold and that, without substantiation, the
court must allocate the amount of gross receipts as income.
27} Appellant additionally objected to the
magistrate's failure (1) to find that appellee is
voluntarily unemployed; (2) to consider whether to award
appellant spousal support; (3) to grant an upward deviation
of child support due to the medical expenses incurred on
behalf of the child with muscular dystrophy; (4) to award
sanctions and cost reimbursements for appellee's
purported financial misconduct; and (5) to restrict access to
the children's records. Appellant further claimed that
the magistrate mischaracterized Daulton's testimony.
28} The trial court subsequently overruled all of
appellant's objections, except her objection to the
magistrate's finding that appellant chose not to pursue
her claim for spousal support. The court determined that
appellant did not waive her claim for spousal support and
reviewed appellant's argument that the court should award
spousal support. Subsequently, the court determined not to
award appellant spousal support. In making its determination,
the court first stated that it considered all of the
statutory factors set forth in the spousal support statute,
R.C. 3105.18. Additionally, the court observed that the
parties were married for a short period of time
(approximately two and one-half years). The court also noted
that appellee no longer has the stability of his military
income and that he is self-employed. The court stated that it
considered the parties' available sources of income, the
resources used to litigate the case, the parties'
education, the parties' assets, and the tax consequences.
The court concluded: "Considering all the statutory
factors including, but not limited to the short period of
time the parties were together, the court finds that
[appellant] should not receive spousal support from
[appellee] and that [appellee] shall not pay any amount in
spousal support to [appellant] for any length of time."
29} The trial court also considered appellant's
objection to the magistrate's failure to find that
appellee is voluntarily unemployed. The court found that
appellee's separation from the military resulted from
"an incident" that occurred around the time of the
parties' separation. The court observed that
appellant's domestic violence allegations resulted in
appellee being court martialed. The court further noted that
appellee agreed to a non-judicial punishment on a charge of
disorderly conduct and that appellee's admission meant
that he would have to resign from the military. The court
thus determined that appellee's separation from the
military was involuntary and explained: "Although it is
arguable that [appellee] caused his own discharge from the
military as a result of an incident complained of by
[appellant], the court finds that he resigned from the
military over [appellant]'s pursuit of the allegations
before a military court. The 'splitting of hairs'
over whether [appellee] was coerced into forcing to resign to
avoid a more deleterious outcome being imposed upon him does
not sit well with the court." The court thus determined
that appellee failed to establish that appellee's
separation from the military was voluntary. As such, the
court concluded that appellee is not voluntarily
30} The trial court next considered appellant's
objections regarding the magistrate's calculation of
appellee's gross income. The court agreed with the
magistrate that appellee's annual gross income through
the date of his separation from the military is $126, 339.96.
31} The court determined that appellee's
businesses "have operated at a loss since their
inception." The court did not believe that appellant
introduced any evidence to show that appellee's tax
returns are unreliable evidence of the businesses'
income. The court observed that a licensed tax preparer
completed the tax returns and, that as appellant's expert
witness testified, a licensed tax preparer "has an
independent duty * * * to be of the opinion that the
information provided on the return is accurate provided that
the information provided to the tax preparer is
accurate." The court concluded that appellee's
"tax returns are an accurate reflection of his annual
income at the time."
32} The court also noted appellant's assertion
that appellee provided the information to the tax preparer
and that appellee did not provide accurate numbers. The court
nevertheless concluded that appellee's testimony is
"credible coupled with the other information provided
concerning the operation of the business." The court
specifically found that even though appellee's financial
records "may not have been exemplary,"
appellee's "business and personal financial records
were of sufficient detail for the court to determine both
gross income and income for purposes of making
calculations." The court also recognized that appellee
commingled funds, but concluded that the amount of personal
purchases "were not of such monetary significance to
cause the court any great concern in determining
33} The trial court also overruled appellant's
objection to the magistrate's failure to appropriately
credit her expert witness's testimony. The court found
that the expert's testimony was "of very limited
value" and that the magistrate appropriately relied upon
appellee's tax returns when calculating his income. The
court thus determined ...