Background
Sylvan Hershberger and Charlette Hershberger married in 2005, and Sylvan filed for divorce in 2022. During the marriage, Sylvan formed Hershberger Decorative Concrete LLC in 2015 and Hershberger Concrete Design LLC in 2017 or 2018. A valuation consultant placed their combined 2022 value at $660,000.
Sylvan argued that the businesses were his separate property because he had worked in the concrete industry before the marriage and later used his skills and experience to establish the companies. The magistrate found that he had not presented sufficient evidence tracing a separate-property interest into either LLC. Sylvan objected but did not provide the trial court with a transcript of the divorce hearing.
The trial court accepted the magistrate’s factual findings, independently reviewed the legal conclusions, and classified both businesses as marital property. Sylvan appealed, challenging the trial court’s review of the magistrate’s decision and its property classification.
The Court’s Holding
The Fifth District affirmed. Because Sylvan did not submit the hearing transcript with his objections, the magistrate’s factual findings were established and could not be attacked on appeal. The appellate court therefore could not consider the transcript later included in the appellate record and reviewed only whether the trial court abused its discretion in applying the law to the established facts.
The court held that the trial judge conducted the independent review required by Ohio Civil Rule 53. The judge did not reject Sylvan’s objections solely because the transcript was missing; she reviewed the magistrate’s findings and concluded that the businesses were created during the marriage and that Sylvan had not traced or valued any claimed separate-property contribution.
The court also held that classifying the LLCs as marital property was not an abuse of discretion. Because Sylvan acquired his interests during the marriage, the businesses were presumptively marital property. His general assertions, unvalued equipment received from family, and premarital concrete skills and experience did not establish a traceable separate-property interest.
Key Takeaways
- A party objecting to a magistrate’s factual findings must provide the trial court with the relevant transcript or, when a transcript is unavailable, an appropriate affidavit.
- Property acquired during marriage is presumed marital, and the spouse claiming a separate interest must trace and quantify that interest by a preponderance of the evidence.
- Premarital skills, experience, or trade knowledge do not themselves constitute separate property that can be traced into a business formed during marriage.
Why It Matters
The decision underscores that preservation errors at the magistrate-objection stage can sharply limit appellate review. Supplying a transcript for the first time on appeal does not permit an appellate court to revisit factual findings that the trial court had no evidentiary record to evaluate.
For business owners in divorce proceedings, the ruling also illustrates that a premarital career history does not automatically make a later-formed company separate property. A spouse seeking a separate-property classification must present specific evidence connecting identifiable, valued premarital assets to the current business interest.