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Martindale v. Martindale

Court of Appeals of Ohio, Fourth District, Hens

July 22, 2019

LISA ANN MARTINDALE, Plaintiff-Appellant,
v.
ERIC JOHN MARTINDALE, Defendant-Appellee.

          Sierra Meek, Nelsonville, Ohio, and Micaela C. Deming, Bluffton, Ohio, for appellant.

          Eric J. Martindale, Quakertown, Pennsylvania, pro se appellee. [1]

          DECISION AND JUDGMENT ENTRY

          PETER 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 review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED BY IMPUTING INCOME TO DEFENDANT AFTER FINDING THAT DEFENDANT WAS NOT VOLUNTARILY UNDEREMPLOYED"
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED BY FINDING THAT DEFENDANT WAS NOT VOLUNTARILY UNDEREMPLOYED"
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT CALCULATED DEFENDANT'S INCOME FOR CHILD AND SPOUSAL SUPPORT PURPOSES"
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. 2323.51."
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 WARRANTED."

         I

         BACKGROUND

         {¶ 3} Appellant and appellee married in March 2011.[2] 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 year.

         {¶ 4} Once appellant arrived in Ohio, a series of protracted legal proceedings began.

         A

         DOMESTIC 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.

         B 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 appellant's complaint.

         {¶ 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 ¶ 43.

         {¶ 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.

         C

         FINAL HEARING

         {¶ 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 25, 2017.

         {¶ 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, 820.

         {¶ 18} Appellee's 2016 tax return showed that Suburban Street Trading Co. LLC[3] 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, 820.

         {¶ 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 underemployed.

         {¶ 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 [appellee's] income."

         {¶ 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 ...


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