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Schwartz v. Osiatynski12/18/1997
her the court erred in calculating the property settlement resulting in an inequitable division of the marital property.
As we have already observed, a court should not review discrete aspects of the property division out of the context of the entire award but should, rather, consider whether the trial court's disposition of marital property as a whole resulted in a property division which was an abuse of discretion.
Here, the court awarded Schwartz the marital residence (equity interest $11,051), the household goods worth $8,662.00, a 1989 Dodge Caravan worth $3,800.00, a Smith Barney account worth $3,000.00 and her own bank account. The court also awarded Osiatynski a 1989 Ford Tempo worth $1,000.00, his business worth only the income it produces, the net sum due under the settlement agreement of litigation worth $11,000.00, his interest in a Merrill Lynch account belonging to his parents, bank accounts in his name which contain the same amount as those in Schwartz's name, and $1,188.00 in cash from Schwartz, to equalize the property division and offset his assumed portion of the marital debt. This division of property did not constitute an abuse of discretion when viewed in its entirety. Accordingly, this cross-assignment of error is overruled.
The second cross-assignment of error states:
II.
THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING THE MAGISTRATE'S FINDING THAT THE HOUSEHOLD GOODS WERE VALUED AT $8,662.00, THAT THE NET PROCEEDS FROM THE LAWSUIT WERE $11,000.00 AND IN NOT FINDING THAT THERE WAS AN ADDITIONAL MARITAL DEBT OF $1,000.00.
Schwartz argues that the court erred when it valued the household goods and the proceeds from Osiatynski's civil litigation, and when it failed to find additional marital debt.
Osiatynski contends the court did not err in this regard.
The issue then presented for our review is whether the court abused its discretion when it determined and valued the household goods, litigation proceeds and marital debt.
Civ.R. 53(E)(3)(b) states in relevant part:
* * * A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule.
Here the record reveals that Schwartz failed to object to these findings and conclusions and, therefore, she may not assign them as errors.
Accordingly, this cross-assignment of error is overruled.
Schwartz's third cross-assignment of error states:
III.
THE TRIAL COURT ERRED WHEN IT FAILED TO TAKE INTO ACCOUNT THE TAX CONSEQUENCES IN REGARD TO THE ANTICIPATED SALE OF THE MARITAL RESIDENCE.
Schwartz argues the court abused its discretion when it failed to take into consideration the capital gains tax consequences that would be incurred upon the sale of the marital residence.
Osiatynski contends the court did not abuse its discretion in this regard.
The issue then presented for our review is whether the court abused its discretion by failing to calculate the tax consequences generated by the sale of the marital residence.
R.C. 3105.171 (F)(6) requires the court to consider the capital gain tax consequences in its division of marital property. Here, a review of the record reveals that the magistrate, in its March 28, 1996 decision, did consider the potential capital gains tax into its division and distribution of the marital assets. However, since the record before us does not reveal if or when the family home has been sold, this assignment of error does not state a justiciable iss
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