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Date: 10-04-2019

Case Style:

LORI A. MCKENNA vs. PETER J. MCKENNA

Case Number: C-180475

Judge: Ralph E. Winkler

Court: COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

Plaintiff's Attorney:

Defendant's Attorney:

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Husband, a plastic surgeon, owns two, interrelated practices located
on Montgomery Road, across from Bethesda North Hospital. The property that
houses his practices is owned by Plastic Surgery Enterprises Ltd. (hereinafter the
ďPSE propertyĒ). In November 2016, the parties jointly hired Eric Gardner, a
commercial appraiser, to value the PSE property in preparation for settlement
discussions. The parties were unable to reach a settlement, and the matter
proceeded to trial.
{∂3} At trial, Gardner described the PSE property as a renovated, two-story
home built in 1951, with an adjacent parking lot. For appraisal purposes, Gardner
classified the building on the PSE property as a surgical center, as opposed to a
medical-office building, because the first floor contained a surgical suite where
Husband performed surgeries. Gardner testified that he used two valuation methods
to value the property: the sales-comparison approach and the income-capitalization
approach. With the sales-comparison approach, Gardner compared the PSE
OHIO FIRST DISTRICT COURT OF APPEALS


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property to sales of similar properties. Gardner then made adjustments to the value
of the comparable sales to account for differences in the properties. With the
income-capitalization approach, Gardner valued the PSE property as an owner
occupied asset with rental value. Gardner looked at market rent in the area for other
medical offices and surgical centers and then took into account vacancy rate and rent
loss, as well as operating expenses. Then, Gardner applied a direct capitalization
rate, or ďcap rate,Ē of 7 percent to account for other property risks. Gardner reached
the cap rate by looking at comparable cap-rate sales or sales of similar investments.
After doing both valuation approaches, Gardner appraised the PSE property at
$1,210,000, minus the mortgage.
{∂4} Despite jointly hiring Gardner prior to trial, Husband produced his
own commercial appraiser at trial, Shaun Wilkins, to testify as to his appraisal of the
PSE property. Wilkins had been hired by Husband in 2015, prior to Wifeís complaint
for divorce, and prior to the joint hiring of Gardner. Unlike Gardner, Wilkins
classified the building as a medical-office building, and not a surgical center, based
upon the buildingís layout and lack of utilities, such as gas lines and a ventilation
system. Using the sales-comparison approach, Wilkins chose comparable sales that
involved medical-office buildings in the Cincinnati-area market, as opposed to
surgery centers in other markets in Ohio. With respect to the income-capitalization
approach, Wilkins chose a cap rate of 8.775 percent, which took into account a higher
risk for the PSE property, given the age of the building. Wilkins opined that his
appraisal of the PSE property was $872,000, minus the mortgage.
{∂5} At the conclusion of trial, the magistrate found the value of the PSE
property to be $863,598, in reliance on Gardnerís valuation and after deducting the
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mortgage. The magistrate afforded no weight to Wilkinsís appraisal, given that the
appraisal had been completed in 2015, a year prior to the date of the termination of
the marriage, and that Husband had not given a copy of the appraisal to Gardner,
even though Gardner had specifically requested any prior appraisals of the property.
The magistrate also noted that Wilkinsís income-capitalization approach failed to
account for the actual rental rate that Husband used when managing his businesses.
Husband filed objections.
{∂6} The domestic-relations court overruled Husbandís objection regarding
the PSE property and also found the value of the PSE property to be $863,598, in
reliance on Gardnerís valuation. The domestic-relations court reasoned that Gardner
had been jointly hired by the parties. This appeal by Husband ensued.
{∂7} In a single assignment of error, Husband argues that the domestic
relations court erred in its valuation of the PSE property.
II. Analysis
{∂8} As an initial matter, we seek to clarify the standard of review in this
case. Husband asserts that we should review the trial courtís valuation of the PSE
property for an abuse of discretion. Wife counters that we should apply a manifest
weight-of-the-evidence review.
{∂9} In divorce proceedings, the domestic-relations court is required to
divide marital property equitably between spouses. R.C. 3105.171(B). The manner in
which a domestic-relations court executes an equitable division of property is
reviewed for an abuse of discretion. Thomas v. Thomas, 171 Ohio App.3d 272, 2007
Ohio-2016, 870 N.E.2d 263, ∂ 5 (1st Dist.); Middendorf v. Middendorf, 82 Ohio
St.3d 397, 401, 696 N.E.2d 575 (1998). Prior to making an equitable division,
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however, the domestic-relations court must assign a monetary value to all marital
property, which is a factual issue. Sieber v. Sieber, 2015-Ohio-2315, 37 N.E.3d 776, ∂
34 (12th Dist.). In civil cases, different standards of review apply depending on
whether a party challenges the sufficiency or the weight of the evidence. See In re
A.B., 1st Dist. Hamilton No. C-150307, 2015-Ohio-3247, ∂ 14, citing Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ∂ 15.
{∂10} In this appeal, Husband challenges the domestic-relations courtís
valuation of property, where the court had before it appraisals from two, competing
experts. Therefore, Husband challenges the weight of the evidence adduced to
support the domestic-relations courtís valuation of the property. Since Eastley, we
review weight-of-the-evidence challenges in civil cases by applying the standard set
forth in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). See In re
A.B. at ∂ 16, citing Eastley. ďIn reviewing a weight of the evidence challenge, we
weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether in resolving conflicts in the evidence, the trial
court clearly lost its way and created such a manifest miscarriage of justice that the
judgment must be reversed and a new trial ordered.Ē In re A.B. at ∂ 16, citing
Eastley and Thompkins.
{∂11} With our standard of review in mind, we now turn to the merits of the
arguments in Husbandís appeal. Husband takes issue with some of the statements
made by the magistrate in his proposed decision, in which the magistrate afforded no
weight to Husbandís appraisal of the PSE property. However, a party claiming error
on the part of the trial court must base its claims on actions taken by the trial court,
and not based on the magistrateís findings in his proposed decision. State Farm
OHIO FIRST DISTRICT COURT OF APPEALS


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Mut. Auto. Ins. Co. v. Fox, 182 Ohio App.3d 17, 2009-Ohio-1965, 911 N.E.2d 339, ∂
11 (2d Dist.); Hose v. Gatliff, 176 Ohio App.3d 356, 2008-Ohio-2430, 891 N.E.2d
1263, ∂ 6 (9th Dist.).
{∂12} Husband next argues that several crucial differences exist between the
appraisals of the PSE property, which make Wilkinsís appraisal more accurate. First,
Husband argues that Wilkins correctly valued the building as a medical-office
building, and not a surgery center. Husband argues that surgery centers often have
different layouts, and that his building is not certified as a surgery center for private
insurance purposes or for Medicare purposes. Second, Husband argues that Gardner
considered inappropriate comparable sales in his appraisal. Husband points out that
one sale that Gardner used as a comparable sale was considered a ďfire sale,Ē in
which the buyer, a dentist, bought the property under duress to keep his practice
afloat, after his former building had sustained fire damage. Husband also argues
that Gardner inappropriately used sales from different real-estate markets, such as
Middletown, Ohio, and Englewood, Ohio, and that one comparable sale included
renovation costs. Finally, Husband argues that Gardnerís cap rate was too low, and
that a cap rate of 7 percent would be more appropriate for valuing a newer building
that could be rented by a larger medical practice.
{∂13} Husbandís arguments do not persuade us that the domestic-relations
courtís adoption of Gardnerís appraisal over Wilkinsís created a manifest miscarriage
of justice. Even though Husbandís practice is not a build-to-suit surgery center,
Wilkins acknowledged that Husband performed surgery in the building. When
Gardner testified regarding his sales-comparison approach, he explained that the
comparable sales he used were not identical to Husbandís property, and so he
OHIO FIRST DISTRICT COURT OF APPEALS


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adjusted the value of the comparable sales to account for differing factors. For
instance, with the dentistís property, Gardner made a downward adjustment to the
value of the property to account for the fact that the dentist had likely paid a
premium. Wilkins chose a higher cap rate based upon the market trend that smaller
medical practices like Husbandís had been sold to larger medical organizations,
particularly hospitals, and that the PSE property would be unattractive to larger
medical practices. Wilkins admitted on cross-examination, however, that he did not
know if the market trend applied to cosmetic-surgery practices. Furthermore, the
domestic-relations court was entitled to afford more weight to Gardnerís appraisal
than Wilkinsís, given that Gardner had been jointly hired by the parties. As an
independent and disinterested appraiser, Gardner could have been found by the
domestic-relations court to be more credible.
{∂14} Therefore, Husband has not shown that the domestic-relations courtís
valuation of the PSE property was against the manifest weight of the evidence, or
that the domestic-relations court abused its discretion in dividing the marital
property. As a result, we overrule Husbandís assignment of error.

Outcome: Having overruled Husbandís sole assignment of error challenging the
domestic-relations courtís valuation of marital property, we affirm the judgment of
the trial court.

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