William E. Smoyer, Plaintiff-Appellant,
Chloe R. Smoyer, Defendant-Appellee.
from the Franklin County Court of Common Pleas, Division of
Domestic Relations C.P.C. No. 16DR-1168
Wiles Burkholder & Teetor, LLC, and Joanne S. Beasy and
Dale D. Cook, for appellant.
Grossman Law Offices, and Anthony R. Auten, and John H.
Cousins, IV, for appellee.
H. Cousins, IV.
1} Plaintiff-appellant William E. Smoyer appeals the
April 26, 2018 decision and judgment entry - decree of
divorce ("decree") of the Franklin County Court of
Common Pleas, Division of Domestic Relations. After reviewing
the record and relevant law, we affirm in part and reverse in
part the trial court's decision.
FACTS AND PROCEDURAL HISTORY
2} William Smoyer and defendant-appellee Chloe R.
Smoyer were married on May 30, 1992. During their marriage,
the parties had three children together, C.S., J.S., and P.S.
The youngest child was emancipated on September 29, 2016. On
March 22, 2016, William filed a complaint for divorce on the
grounds of incompatibility.
3} In the course of the proceedings, the parties
agreed to certain stipulations, which they filed with the
trial court on November 6, 2017. They agreed that the
stipulations should be "incorporated into the
Court's Judgment Entry - Decree of Divorce." (Nov.
6, 2017 Stipulations.) Attached to the stipulations was a
"balance sheet" that listed the parties'
assets, the date of valuation of the assets, and the
stipulated fair market value for most of the assets.
4} The parties did not stipulate to the fair market
value of several assets, including business interests in
Investment Builders of Florida, Ltd. ("IBF, Ltd.")
and Investment Builders of Florida, Inc. ("IBF,
Inc."). The parties also could not resolve issues
relating to spousal support and the division of certain
5} A trial was held to resolve these remaining
issues on November 6, 7, 8, 9, 27, 28 and December 4, 2017.
Division of Marital Assets
6} IBF, Ltd. and IBF, Inc. are family-owned
businesses, started by William's father, which invest in
securities and real estate. William acquired interests in
both companies before the marriage, and the parties acquired
interests in both companies during the marriage. The parties
do not dispute the number of shares that comprise
William's separate property versus those that are marital
property. The parties dispute only the value of the shares
that are marital property and subject to division.
7} William's sister, who now runs both
businesses, testified that IBF, Ltd. has a present total
value of $1, 193, 658. She testified that IBF, Inc. has a
present total value of $584, 734. Those valuations were not
contested. The parties combined marital and separate interest
in IBF, Ltd. is 40 percent of the business. The parties do
not dispute that the marital interest in IBF, Ltd. totals
13.075 percent of the business. The remainder, approximately
26.925 percent, is William's separate interest in IBF,
Ltd. There are 200 shares total in IBF, Inc., of which the
parties own 30 shares as marital assets. William owns 50
shares in IBF, Inc. as separate property, acquired before the
8} The parties both hired experts to testify
regarding the valuation of the marital interests in IBF, Ltd.
and IBF, Inc.
9} William's accounting expert, Gary Moll,
testified that the marital interests in the two businesses
should be the amount of martial funds used to acquire the
shares with some amount allowed for appreciation, a
cost-based approach. For IBF, Ltd., the parties paid $30, 150
to acquire a 13.075 percent marital interest in the business
from William's mother. Moll opined that the value of the
marital interest in that business was $37, 227.
10} The parties paid $11, 500 to acquire 25 shares
in IBF, Inc. from two family members. Allowing for some
passive appreciation, Moll attributed a total value of $15,
940 to the marital shares in IBF, Inc.
11} Chloe's accounting expert, Dana Lavelle,
used a value-based approach to determine that the 13.075
percent marital interest in IBF, Ltd. is worth $156, 071.
Under this approach, he took the total present value of IBF,
Ltd. and multiplied that number by the percentage comprising
the marital property to arrive at his valuation. For IBF,
Inc., Lavelle used the same approach to arrive at marital
interest of $87, 710.
12} William is a pediatric nephrologist. At the time
of their marriage, Chloe was a nurse practitioner, working in
cardiology. William's approximate total yearly income is
$371, 538. Chloe left the workforce when the parties'
first child was born in 1995. She has never returned to the
workforce, and she was not employed at the time of the
divorce. Chloe has never been licensed as a nurse in Ohio,
and her former license lapsed in 2008.
13} The parties' middle child, J.S., has Down
syndrome and is autistic. The parties dispute the amount of
care he requires and will continue to require in the future,
as well as the impact his care needs have on Chloe's
ability to work outside the home.
14} At the trial, William's expert, Bruce
Growick, Ph.D., testified that Chloe could easily become
employed full time as a medical assistant with her current
skill set. In that role, she could expect to earn $38, 000
per year. With additional retraining and recertification, she
could earn $65, 000 as a registered nurse or $82, 000 as a
15} Chloe testified that she cannot reenter the work
force in any capacity because J.S. requires significant
ongoing care. She is his primary caregiver. The parties
testified that J.S. is expected the graduate from high school
soon and will qualify for full-time adult daycare.
The Court's Decree
16} On April 26, 2018, the trial court issued its
decree, granting the parties a divorce and resolving pending
17} As to marital assets, and relevant to this
appeal, the trial court found that the parties acquired their
interest in IBF, Ltd. "by purchase, as well as
gift." (Decree at 8.) Because the acquisition was
intrafamilial and occurred 11 years prior to the divorce, the
trial court determined that Lavelle's value-based
approach provided a more accurate valuation. (Decree at 7.)
According to the trial court, a cost-based approach would be
more appropriate if the transaction was an "arm's
length" transaction made near the time of the divorce
proceedings. (Decree at 7.) Accordingly, the trial court
attributed a value of $156, 071 to the 13.075 percent marital
interest in IBF, Ltd. Applying the same methodology, the
court attributed a marital interest value of $87, 710 for
18} Regarding spousal support, the trial court
conducted an analysis pursuant to R.C. 3105.18. The court
considered Chloe's age and health, the length of the
marriage, Chloe's present employability, the labor
market, the ease of obtaining licensure as a registered nurse
or nurse practitioner again, and the length of time Chloe has
been unemployed. Despite Chloe's contention that her
obligations to care for James prevent her from working at
all, the court found that Chloe could obtain full time
employment. (Decree at 21.) But the court expressed concern
about Chloe's ability to become licensed as a nurse
practitioner again. (Decree at 21.) The trial court imputed
to Chloe an annual income of $38, 000 per year as a medical
assistant. (Decree at 21.) The court then ordered William to
pay spousal support in the amount of $11, 000 per month. The
trial court noted that its order "shall be indeterminant
[sic] subject to the Court's ongoing jurisdiction,"
and the court specifically "retain[ed] jurisdiction for
modification of this provision." (Decree at 19, 21.)
19} Attached to the decree is a spreadsheet, Exhibit
1, of the parties' assets. It reflects the fair market
value of the assets, the court's determination regarding
which assets are separate versus marital, the value of the
marital assets, and the "proposed" division of the
20} William appeals the trial court's decree. He
argues that the trial court failed to divide all marital
assets. He disputes the trial court's valuation of the
parties' marital interests in IBF, Inc. and IBF, Ltd. He
contends that the trial court should have imputed more income
to Chloe, thereby reducing the amount of spousal support she
is owed. And he argues that the court failed to require that
ongoing costs be shared equally between the parties.
February 21, 2019 Agreed Entry
21} After the trial court issued the decree, after
William filed his notice of appeal, and shortly before the
oral argument on this case, the parties submitted an agreed
entry to the trial court. (See Franklin C. P. No.
16DR-1168, Feb. 21, 2019 Ex. A to Agreed Entry.) The parties
addressed several accounts named after two of their children,
and the trial court signed the entry. In the entry, the
parties agreed as follows:
6.On or before February 28, 2019, Plaintiff shall transfer
into [C.S.]'s 529 Account the funds held in the [C.S.]
Graduation/Education Account#7227. Once the transfer is
complete, and within 14 days of the same, Plaintiff shall
then transfer ownership of the [C.S.] 529 Account to
Defendant, which Defendant shall keep as her sole property
free and clear of any claim of Plaintiff, and Defendant shall
hold Plaintiff harmless on the same. This is a final property
division of these accounts.
7.Plaintiff shall keep the [P.S.] Graduation/Education
Account #0394 and the [P.S.] 529 Account free and clear of
any claim of Defendant, and Plaintiff shall hold Defendant
harmless on the same. This is a final property division of
ASSIGNMENTS OF ERROR
22} In his appeal, William presents the following