Welly v. Welly , 2015 Ohio 4804 ( 2015 )

[Cite as Welly v. Welly, 2015-Ohio-4804.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
JEFFREY R. WELLY,
PLAINTIFF-APPELLANT, CASE NO. 13-15-15
v.
THERESA J. WELLY, OPINION
DEFENDANT-APPELLEE.
Appeal from Seneca County Common Pleas Court
Domestic Relations Division
Trial Court No. 07-DR-0099
Judgment Affirmed
Date of Decision: November 23, 2015
APPEARANCES:
Charles R. Hall, Jr. for Appellant
Harold M. Hanna for Appellee
Case No. 13-15-15
PRESTON, J.
{¶1} Plaintiff-appellant, Jeffrey R. Welly (“Jeffrey”), appeals the April 9,
2015 judgment entry of the Seneca County Court of Common Pleas, Domestic
Relations Division, concluding that the increase in net value of two hog barns
during the marriage is marital property and ordering Jeffrey to pay defendant-
appellee, Theresa J. Welly (“Theresa”), “the sum of $174,660.00 as an equitable,
equal division of the parties’ marital property interest in the Hog Barns.” For the
reasons that follow, we affirm.
{¶2} The trial court issued a judgment entry of divorce on February 9,
2011. (Doc. No. 395). In it, the trial court stated, “It is ORDERED that the Hog
Barns are premarital property and is [sic] the Plaintiff’s separate property, and is
hereby awarded to the Plaintiff.” (Id.). Neither party appealed that judgment
entry.
{¶3} After the trial court filed its February 9, 2011 judgment entry, Theresa
hired new counsel who, two weeks later, filed a “motion to modify judgment or
for a new trial.” (Doc. No. 396). Among other things, Theresa argued that the
trial court failed to remedy deficiencies that this court identified in dismissing a
previous, 2008 appeal in this case, Third District Court of Appeals case No. 13-08-
45, concerning the valuation and division of the hog barns. (Id.). On February 28
and March 7, 2011, Jeffrey filed a memorandum in opposition to and Theresa filed
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a reply memorandum in support of Theresa’s “motion to modify judgment or for a
new trial,” respectively. (Doc. Nos. 399, 400). On March 30, 2011, the trial court
filed an entry concerning Theresa’s “motion to modify judgment or for a new
trial” and “grant[ed] a hearing on the limited issues [sic] of the ‘hog barns.’”
(Doc. No. 406).
{¶4} On June 1, 2012, Jeffrey filed a “motion to dismiss the pending hog
barn issue for failure to prosecute.” (Doc. No. 475). In that motion, Jeffrey
argued that the trial court should “dismiss the pending issue of the ‘hog barns’”
under Civ.R. 37(B)(2)(c) and 41(B)(1). (Id.). Theresa filed her memorandum in
opposition to Jeffrey’s motion on June 12, 2012. (Doc. No. 477). On August 30,
2012, the trial court denied Jeffrey’s motion to dismiss. (Doc. No. 491).
{¶5} On August 25, 2014, Jeffrey filed two motions. The first was a
“motion to dismiss defendant’s motion for new trial for hog barns.” (Doc. No.
557). In it, Jeffrey argued—as he did in his February 28, 2011 memorandum in
opposition to Theresa’s “motion to modify judgment or for a new trial”—that
Theresa’s disagreement with the trial court’s property division in the February 9,
2011 judgment entry of divorce is not a valid ground for granting a motion for a
new trial. (Id.). Jeffrey also argued in that motion that the trial court lacked
jurisdiction to modify the property division in its February 9, 2011 judgment entry
of divorce. (Id.). Jeffrey’s other August 25, 2014 motion was a “motion in limine
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regarding the defendant’s expert witness and exhibits for ‘hog barns’ and request
hearing [sic].” (Doc. No. 558). Jeffrey argued that the trial court should preclude
Theresa from relying on her appraiser, Robert C. Hunt (“Hunt”), at the hearing
because Hunt “failed to provide during his deposition any verifiable reliable,
scientific, technical, or other specialized information that would relate this [sic]
matter.” (Id. at 3). Jeffrey requested a hearing concerning his motion in limine.
(Id. at 5).
{¶6} On August 29, 2014, Theresa filed a “response to plaintiff’s motion to
dismiss” and a “response to plaintiff’s motion in limine.” (Doc. Nos. 560, 561).
{¶7} On September 3, 2014, the trial court filed an entry denying Jeffrey’s
August 25, 2014 motion to dismiss and motion in limine. (Doc. No. 563).
Concerning Jeffrey’s motion in limine, the trial court stated, “The Defendant
retained an expert and said expert is qualified and ready to testify at the September
8, 2014 [sic]. The Court will permit Robert C. Hunt to testify as an expert witness
in this matter.” (Id. at 2).
{¶8} A hearing before a magistrate was held on September 8, 2014
concerning “the limited issue of hog barns.” (Sept. 8, 2014 Tr. at 5).
{¶9} The magistrate filed her decision on October 22, 2014. (Doc. No.
570). In it, the magistrate concluded that “[t]he increase in net value of the hog
barns * * * is marital property” and recommended that the trial court award
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Theresa “an equitable share of the marital property interest in the Hog Barns in the
amount of $174,660.00.” (Id. at 9, 14).
{¶10} On October 31, 2014, Jeffrey filed objections to the magistrate’s
decision, followed, on December 11, 2014 with leave of court, by a supplemental
memorandum in support of his objections. (Doc. Nos. 573, 578). Theresa filed
responses to Jeffrey’s objections on November 17, 2014 and December 22, 2014.
(Doc. Nos. 576, 581).
{¶11} On February 11, 2015, the trial court filed a judgment entry
overruling Jeffrey’s objections and “affirm[ing]” the magistrate’s decision “in its
entirety.” (Doc. No. 582).
{¶12} On March 6, 2015, Jeffrey filed a notice of appeal of the trial court’s
February 11, 2015 judgment entry. (Doc. No. 583).
{¶13} On March 20, 2015, we dismissed Jeffrey’s appeal, Third District
Court of Appeals case No. 13-15-05, for lack of a final order because, by simply
adopting the magistrate’s decision, the February 11, 2015 judgment entry did not
comply with the trial court’s obligation to enter its own, independent judgment
determining the action.
{¶14} On April 9, 2015, the trial court issued the judgment entry that is the
subject of this appeal. (Doc. No. 586). In that entry, the trial court stated that “the
divorce was final as of February 9, 2011” because neither party appealed the trial
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court’s February 9, 2011 judgment entry of divorce. (Id. at 2). The trial court
concluded that the increase in net value of the hog barns during the marriage is
marital property and ordered, “The Plaintiff shall pay the Defendant the sum of
$174,660.00 as an equitable, equal division of the parties’ marital property interest
in the Hog Barns.” (Id. at 9).
{¶15} On May 1, 2015, Jeffrey filed his notice of appeal of the trial court’s
April 9, 2015 judgment entry. (Doc. No. 590). He raises nine assignments of
error. We will first address together Jeffrey’s first, second, third, and seventh
assignments of error, followed by his fourth and fifth assignments of error
together, followed by his sixth and eighth assignments of error together, followed
by his ninth assignment of error.
Assignment of Error No. I
The trial court improperly granted the Appellee’s Motion for
New Trail [sic].
Assignment of Error No. II
The Trial Court lacked the jurisdiction to make changes to its
own judgment entry.
Assignment of Error No. III
The Trail [sic] Court failed to provide an adequate basis for the
new trial.
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Assignment of Error No. VII
The Trial Court’s April 9, 2015 Judgment Entry is not a Final
Appealable Order.
{¶16} In his first and third assignments of error, Jeffrey argues that the trial
court erred by granting Theresa’s motion for a new trial because Theresa failed to
demonstrate, and the trial court failed to specify, any of the grounds for a new trial
listed in Civ.R. 59(A). In his second assignment of error, Jeffrey argues that,
because the trial court’s February 9, 2011 judgment is a final judgment, “[t]he trial
court lacked jurisdiction to make substantive changes to the property division in its
February 9, 2011 judgment entry” and that “the Appellee’s request to modify or to
change the February 9, 2011 judgment its [sic] original property division would be
void and would have no legal effect.” (Appellant’s Brief at 7). Jeffrey similarly
argues in his seventh assignment of error that the trial court’s February 9, 2011
judgment entry “was the final appealable order in this matter” and that “the April
9, 2015 judgment that modified the original property division are [sic] void and
have [sic] no legal effect” because “[t]he trial court lacked the jurisdiction to
modify its original judgment and property division.” (Id. at 12).
{¶17} We conclude that Jeffrey waived any error that could have been
raised regarding the trial court’s March 30, 2011 judgment entry granting in part
Theresa’s motion for a new trial. “An order is a final order that may be reviewed,
affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order
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that * * * grants a new trial.” R.C. 2505.02(B)(3). See also Utz v. Stovall, 11th
Dist. Portage No. 2012-P-0135, 2013-Ohio-4299, ¶ 57 (“An order that * * * grants
a new trial is a final, appealable order under R.C. 2505.02(B)(3).”). If a party
wishes to challenge a trial court’s order granting a new trial, it must appeal the
order within 30 days of its entry. See App.R. 4(A)(1), (B)(2). See also Kahler v.
Capehart, 3d Dist. Seneca No. 13-03-55, 2004-Ohio-2224, ¶ 7, citing R.C.
2505.02(B)(3) and App.R. 4(A). “‘Failure to appeal a final appealable order
waives any error that could have been raised with respect to that order.’” Michel
v. Michel, 7th Dist. Noble No. 10 NO 376, 2012-Ohio-4037, ¶ 19, quoting In re
Mapley, 7th Dist. Mahoning No. 07 MA 36, 2008-Ohio-1180, ¶ 9. See also
Kahler at ¶ 7.
{¶18} In this case, the trial court’s March 30, 2011 judgment entry granting
in part Theresa’s motion for a new trial was a final appealable order. R.C.
2505.02(B)(3); Utz at ¶ 57. Jeffrey failed to appeal that judgment entry within 30
days of its entry. Therefore, he waived any error that could have been raised
regarding the trial court’s March 30, 2011 judgment entry, and we lack jurisdiction
to address Jeffrey’s arguments—raised in his first and third assignments of error—
regarding the trial court’s granting a new trial concerning the issue of the hog
barns. See Michel at ¶ 19; Kahler at ¶ 7, citing Bellamy v. Bellamy, 110 Ohio
App.3d 576, 580 (6th Dist.1996).
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{¶19} In his second and seventh assignments of error, Jeffrey challenges
the trial court’s jurisdiction to enter the April 9, 2015 judgment entry, arguing that
the February 9, 2011 judgment entry of divorce is the controlling judgment in this
case concerning division of property. Civ.R. 59(A) provides, “On a motion for a
new trial in an action tried without a jury, the court may open the judgment if one
has been entered, take additional testimony, amend findings of fact and
conclusions of law or make new findings and conclusions, and enter a new
judgment.” See Wolf-Sabatino v. Sabatino, 10th Dist. Franklin No. 12AP-307,
2012-Ohio-6232, ¶ 12. Because the trial court opened the February 9, 2011
judgment by granting in part Theresa’s motion for a new trial, the trial court was
free, under Civ.R. 59, to “take additional testimony, amend findings of fact and
conclusions of law or make new findings and conclusions, and enter a new
judgment.” Therefore, Jeffrey’s arguments that the trial court lacked jurisdiction
to enter the April 9, 2015 judgment are without merit. See Moffett v. Moffett, 7th
Dist. Columbiana No. 87-C-27, 1988 WL 34625, *2 (Mar. 21, 1988).
{¶20} Jeffrey’s first, second, third, and seventh assignments of error are
overruled.
Assignment of Error No. IV
The Trial Court erred in accepting the Appellee’s appraisal
without prior hearing.
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Assignment of Error No. V
The Trial Court erred in finding the Appellee’s witness as an
expert without prior hearing.
{¶21} In his fourth and fifth assignments of error, Jeffrey argues that the
trial court abused its discretion by qualifying Theresa’s valuation witness, Hunt, as
an expert and admitting Hunt’s appraisal report because Jeffrey “requested a
hearing on the matter and was improperly denied a hearing.” (Appellant’s Brief at
9).
{¶22} The qualification of a witness as an expert and the admissibility of an
expert witness’s testimony are distinct inquiries, but both are governed by Evid.R.
702, which provides:
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond
the knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding the
subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific,
technical, or other specialized information. To the extent that the
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testimony reports the result of a procedure, test, or experiment, the
testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or
experiment is based is objectively verifiable or is validly derived
from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was
conducted in a way that will yield an accurate result.
Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 17.
{¶23} “The determination of whether a witness is qualified to testify as an
expert lies within the sound discretion of the trial court.” Radford v. Monfort, 3d
Dist. Mercer No. 10-04-08, 2004-Ohio-4702, ¶ 5, citing Bishop v. Ohio Bur. of
Workers’ Comp., 146 Ohio App.3d 772, 781 (10th Dist.2001). Similarly, “any
decision concerning the admission or exclusion of expert testimony will not be
disturbed absent an abuse of discretion.” Wasinski v. PECO II, Inc., 3d Dist.
Crawford Nos. 3-08-14 and 3-08-16, 2009-Ohio-2615, ¶ 38, citing State v. Jones,
90 Ohio St.3d 403, 414 (2000). An abuse of discretion suggests that the trial
court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). “However, ‘even where a trial court
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abuses its discretion in the admission of evidence,’ a reviewing court will not
reverse unless the error affected a substantial right of the party at issue.” Hickle v.
Hayes-Albion Corp., 3d Dist. Seneca No. 13-06-24, 2007-Ohio-4236, ¶ 31, citing
State v. Lundgren, 73 Ohio St.3d 474, 486 (1995), Evid.R. 103(A), and Civ.R. 61.
In that scenario, the error is harmless. See Civ.R. 61.
{¶24} Here, Jeffrey filed an August 25, 2015 motion in limine seeking to
exclude Hunt’s expert testimony and requesting a hearing concerning the motion.
(Doc. No. 558). In its September 3, 2014 entry denying Jeffrey’s motion, the trial
court qualified Hunt as an expert witness and stated that Hunt would be allowed to
testify as an expert witness. (Doc. No. 563). The trial court denied Jeffrey’s
request for a separate hearing concerning his motion in limine, but at the
September 8, 2014 hearing before a magistrate, Hunt testified on direct
examination concerning his qualifications and his opinions regarding the value of
the hog barns. (See Sept. 8, 2015 Tr. at 52-73). Jeffrey’s counsel had the
opportunity to cross-examine Hunt concerning his qualifications and his opinions
regarding the value of the hog barns. (See id. at 73-80).
{¶25} Under his fourth and fifth assignments of error, Jeffrey does not
challenge Hunt’s September 8, 2014 testimony concerning his qualifications and
his opinions regarding the value of the hog barns. Rather, Jeffrey’s arguments
under these assignments of error are based on his contention that, because “Hunt
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failed to provide during his deposition any verifiable reliable, scientific, technical,
or other specialized information that would relate to this matter,” the trial court
erred by qualifying Hunt as an expert and by admitting his appraisal report without
holding a separate, prior hearing. (Appellant’s Brief at 10).
{¶26} A trial court has discretion concerning whether to hold a hearing on a
motion in limine to exclude the testimony of a proposed expert witness under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786(1993).1 Sliwinski v. St. Edwards, 9th Dist. Summit No. 27247, 2014-Ohio-4655,
¶ 15; Preston v. All Vinyl Fence & Decks, Inc., 11th Dist. Trumbull No. 2008-T-
0015, 2008-Ohio-6997, ¶ 26, 33; State v. Shalash, 12th Dist. Warren No. CA2013-
06-052, 2014-Ohio-2584, ¶ 42. “It is well established that a decision on a motion
in limine is a ‘tentative, preliminary or presumptive ruling about an evidentiary
issue that is anticipated but has not yet been presented in its full context.’”
Wasinski, 2009-Ohio-2615, at ¶ 52, quoting State v. Geboy, 145 Ohio St.3d 706,
726 (2001). “‘An appellate court need not review the propriety of such an order
unless the claimed error is preserved by an objection, proffer, or ruling on the
record when the issue is actually reached and the context is developed at trial.’”
1
“The United States Supreme Court in Daubert * * * interpreted Fed.R.Evid. 702, the federal version of
Evid.R. 702, as vesting the trial court with the role of gatekeeper. This gatekeeping function imposes an
obligation upon a trial court to assess both the reliability of an expert’s methodology and the relevance of
any testimony offered before permitting the expert to testify. [The Supreme Court of Ohio] adopted this
role for Ohio trial judges in Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 687 N.E.2d 735.”
(Citations omitted.) Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, ¶ 24.
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(Emphasis deleted.) Gollihue v. Consol. Rail Corp., 120 Ohio App.3d 378, 388
(3d Dist.1997), quoting State v. Grubb, 28 Ohio St.3d 199, 203 (1986).
{¶27} At the September 8, 2014 hearing, Jeffrey preserved his objection to
the trial court’s qualification of Hunt as an expert witness and admission of Hunt’s
appraisal report. (See Sept. 8, 2014 Tr. at 64, 148). However, on appeal, Jeffrey
does not contest Hunt’s testimony at the September 8, 2014 hearing concerning his
qualifications and his opinions regarding the value of the hog barns. Instead,
Jeffrey bases his arguments on Hunt’s deposition testimony, which was taken
before the September 8, 2014 hearing. Therefore, even assuming the trial court
abused its discretion by sua sponte qualifying Hunt as an expert witness in its
September 3, 2014 entry denying Jeffrey’s motion in limine, Jeffrey failed on
appeal to suggest how the error—in light of Hunt’s September 8, 2014 testimony
and Jeffrey’s counsel’s ability to cross-examine Hunt at that hearing—affected a
substantial right of Jeffrey’s. Indeed, Jeffrey does not dispute that Hunt testified
on September 8, 2014 concerning his qualifications and his opinions regarding the
value of the hog barns. Nor does he dispute the substance of Hunt’s September 8,
2014 testimony. We will not construct an argument for Jeffrey. See Union Bank
Co. v. Lampert, 3d Dist. Auglaize No. 2-13-32, 2014-Ohio-4427, ¶ 21, citing
Camp v. Star Leasing Co., 10th Dist. Franklin No. 11AP-977, 2012-Ohio-3650, ¶
67 (“It is not the duty of this court to construct legal arguments in support of an
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appellant’s appeal.”). Therefore, we conclude that any error by the trial court in
qualifying Hunt as an expert witness or in admitting Hunt’s appraisal report is
harmless. See Metro. Life Ins. Co. v. Tomchik, 134 Ohio App.3d 765, 776 (7th
Dist.1999). Moreover, to the extent Jeffrey argues that the trial court abused its
discretion or otherwise erred because a trial court must always hold a Daubert
hearing if requested, we reject his argument because the law does not support it.
Sliwinski at ¶ 15, citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152,
119 S.Ct. 1167 (1999).
{¶28} Jeffrey’s fourth and fifth assignments of error are overruled.
Assignment of Error No. VI
The Appellant provided evidence that the Hog Barns were his
separate property.
Assignment of Error No. VIII
The Trial Court improperly gave the Appellee an interest in the
Appellant’s hog barns.
{¶29} In Jeffrey’s sixth and eighth assignments of error, he argues that the
trial court erred by not concluding that the hog barns are his separate property.
Specifically, Jeffrey argues that he “built the hog barns in 1997 and 1998 before
the parties were married” and that he “provided testimony and tax records to show
the traceability of the hog barns being his separate property.” (Appellant’s Brief at
11, 14). He also argues that Theresa “did not provide how much her suppose [sic]
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efforts at the evidentiary hearing increased the value of the property.” (Id. at 14).
Jeffrey does not dispute the value that the trial court placed on the hog barns or the
trial court’s allocation of property. In response to Jeffrey’s arguments, Theresa
concedes that the hog barns themselves and the land on which they sit are separate
property because Jeffrey owned them before the marriage; however, she argues
that the hog barns’ increase in value during the marriage is marital property
because the parties “repaid at least $349,320 of Hog Barn indebtedness during the
marriage” from their joint, marital income and that she “worked in all aspects of
their swine finishing business.” (Appellee’s Brief at 16-17).
{¶30} “In a divorce proceeding, the division of marital and separate
property involves a two-step process governed by R.C. 3105.171.” Lotz v. Lotz,
3d Dist. Auglaize No. 2-14-06, 2014-Ohio-5625, ¶ 11, citing Forman v. Forman,
3d Dist. Marion No. 9-13-67, 2014-Ohio-3545, ¶ 13. “First, the trial court must
determine whether property is marital or separate property, and, second, the trial
court must equitably allocate the marital and separate property.” Id., citing
Forman at ¶ 13. See also R.C. 3105.171(B), (D).
{¶31} Jeffrey’s arguments under his sixth and eighth assignments of error
concern the first step of the two-step process set forth in R.C. 3105.171—the trial
court’s determination of whether property is marital or separate. Under R.C.
3105.171(A)(3)(a), “marital property” includes:
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(i) All real and personal property that currently is owned by either
or both of the spouses * * * and that was acquired by either or both
of the spouses during the marriage;
(ii) All interest that either or both of the spouses currently has in
any real or personal property * * * and that was acquired by either or
both of the spouses during the marriage;
(iii) Except as otherwise provided in this section, all income and
appreciation on separate property, due to the labor, monetary, or in-
kind contribution of either or both of the spouses that occurred
during the marriage * * *.
R.C. 3105.171(A)(3)(a)(i)-(iii). Under R.C. 3105.171(A)(6)(a), “separate
property” includes:
[A]ll real and personal property and any interest in real or personal
property that is found by the court to be any of the following:
***
(ii) Any real or personal property or interest in real or personal
property that was acquired by one spouse prior to the date of the
marriage;
(iii) Passive income and appreciation acquired from separate
property by one spouse during the marriage * * *.
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R.C. 3105.171(A)(6)(a)(ii)-(iii). “‘Passive income’ means income acquired other
than as a result of the labor, monetary, or in-kind contribution of either spouse.”
R.C. 3105.171(A)(4). The statute also provides, “The commingling of separate
property with other property of any type does not destroy the identity of the
separate property as separate property, except when the separate property is not
traceable.” R.C. 3105.171(A)(6)(b).
{¶32} “The plain language of R.C. 3105.17[1](A)(3)(a)(iii) unambiguously
mandates that when either spouse makes a labor, money, or in-kind contribution
that causes an increase in the value of separate property, that increase in value is
deemed marital property.” (Emphasis deleted.) Middendorf v. Middendorf, 82
Ohio St.3d 397, 400 (1998). For example, if separate property increases in value
due to the expenditure of marital funds, that increase in value is marital property.
See Scott v. Scott, 11th Dist. Trumbull No. 2007-T-0059, 2008-Ohio-530, ¶ 21.
{¶33} “The party seeking to establish that property is separate rather than
marital bears the burden of proof, by a preponderance of the evidence, to trace the
asset to separate property.” Tretola v. Tretola, 3d Dist. Logan No. 8-14-12, 2014-
Ohio-5484, ¶ 45, citing Schalk v. Schalk, 3d Dist. Seneca No. 13-07-13, 2008-
Ohio-829, ¶ 6. See also Golick v. Golick, 12th Dist. Clermont Nos. CA99-05-040
and CA99-05-045, 2001 WL 1598290, *9 (Dec. 17, 2001) (“Because [husband-
appellant] sought to have the appreciation of the * * * properties characterized as
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separate property, he had the burden of proof on this issue by a preponderance of
the evidence.”), citing Peck v. Peck, 96 Ohio App.3d 731, 734 (12th Dist.1994).
{¶34} “This court reviews the trial court’s classification of property as
marital or separate under a manifest-weight-of-the-evidence standard.” Lotz,
2014-Ohio-5625, at ¶ 16, citing Reed v. Reed, 3d Dist. Allen No. 1-09-63, 2010-
Ohio-4550, ¶ 7. “Accordingly, we will not reverse the trial court’s judgment if it
is supported by some competent, credible evidence.” Id., citing Reed at ¶ 7.
“‘This highly deferential standard of review permits the affirmation of the trial
court’s judgment if there is even ‘some’ evidence to support the court’s finding.’”
Reed at ¶ 7, quoting Huelskamp v. Huelskamp, 185 Ohio App.3d 611, 2009-Ohio-
6864, ¶ 15 (3d Dist.).
{¶35} In this case, the trial court made the following findings, all of which
are supported by some competent, credible evidence. Before the parties married
on June 12, 1999, Jeffrey borrowed a total of $300,000.00 to purchase the hog
barns. (Doc. No. 586 at 4-5, ¶ 1, 3, 5). Jeffrey purchased the hog barns for a total
initial cost of $322,360.00 and later invested at least an additional $16,075.75 in
capital improvements to the hog barns. (Id. at 5, ¶ 4, 6, 7, 8).
{¶36} Following the construction of the hog barns and the parties’ marriage
on June 12, 1999, Jeffrey and Theresa refinanced the indebtedness when the loans
of the hogs barns came due on November 5 and December 30, 2002. (Id. at 5, ¶ 9,
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10). During the marriage, and before their separation and first divorce hearing in
2008, the parties repaid $349,320.00 of the original and refinanced indebtedness
for the hog barns from income derived from their joint operation of their swine
finishing business and their employment at Whirlpool. (Id. at 5, ¶ 10, 11, 16).
Hunt testified that the contributory fair market value of the hog barns as of June
22, 2011 is $342,000.00. (Id. at 6, ¶ 13, 14). Jeffrey did not file an appraisal or
produce expert-witness testimony concerning the value of the hog barns. (See id.
at 2-3).
{¶37} Based on these findings, the trial court concluded, “The repayment of
Hog Barn indebtedness during the marriage by the parties’ joint labor, monetary or
in-kind contributions, increased the net value of the Hog Barns by $349,320,”
making the increase in the hog barns’ net value marital property. (Id. at 7, ¶ 1, 2).
The trial court added that Jeffrey “failed to establish that the increase in the value
of the Hog Barns is separate property.” (Id. at 7, ¶ 3).
{¶38} We conclude that the trial court’s classification of $349,320.00 in
increased net value of the hog barns as marital property is supported by some
competent, credible evidence and therefore not against the manifest weight of the
evidence. Jeffrey bore the burden of proving, by a preponderance of the evidence,
that the appreciation on his separate property is likewise separate property. While
Jeffrey may be able to trace his premarital ownership of the hog barns through the
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marriage, as he claims he can, that is not the issue. Rather, the question is whether
the hog barns’ increase in net value during the marriage is “other than as a result
of the labor, monetary, or in-kind contribution of either spouse.” R.C.
3105.171(A)(4). See also R.C. 3105.171(A)(3)(a)(iii) and 3105.171(A)(6)(a)(iii).
{¶39} Jeffrey failed to carry his burden of proving that the increase in net
value is other than as a result of the labor, monetary, or in-kind contribution of
either spouse. See Fisher v. Fisher, 3d Dist. Henry No. 7-01-12, 2002 WL
444904, *10 (Mar. 22, 2002). Theresa, on the other hand, produced evidence—
which Jeffrey did not and does not dispute—that the parties, during the marriage,
repaid $349,320.00 in indebtedness from the hog barns using joint, marital income
from their swine finishing operation and their employment at Whirlpool. (See
Sept. 8, 2014 Tr. at 85-116, 142-143, 151-154, 156-157); (Defendant’s Exs. B, C,
D, F, G, H, J, K, L, N, O, P, Q, R, S, T, V, W, Y, Z). Theresa correctly asserts that
the parties’ increased equity in the hog barns—based on their repaying
indebtedness on the hog barns during the marriage using marital funds—is marital
property. See Scott, 2008-Ohio-530, at ¶ 21, citing R.C. 3105.171(A)(3)(a)(iii)
and Middendorf, 82 Ohio St.3d at 400; Ray v. Ray, 9th Dist. Medina No.
03CA0026-M, 2003-Ohio-6323, ¶ 8, citing Charles v. Charles, 9th Dist. Lorain
No. 96CA006396, 1997 WL 28247, *4 (Jan. 22, 1997). Presented with Theresa’s
competent, credible evidence, the trial court concluded that the increase in net
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value of the hog barns is $349,320.00 and that this increased equity is marital
property because the parties used marital funds to repay the indebtedness.
$349,320.00 is near Hunt’s appraisal amount of $342,000.00. Therefore, we hold
that the trial court’s classification of the increase in net value of the hog barns—
$349,320.00—as marital property is not against the manifest weight of the
evidence.
{¶40} Because Jeffrey does not present any argument as to the second step
of the property-division process set forth in R.C. 3105.171—namely, equitable
allocation of the marital and separate property—we need not address that aspect of
the trial court’s decision. See Lakner v. Lakner, 12th Dist. Butler No. CA97-07-
150, 1998 WL 130202, *3-4 (Mar. 23, 1998).
{¶41} Jeffrey’s sixth and eighth assignments of error are overruled.
Assignment of Error No. IX
The Trail [sic] Court abused its discretion not dismissing the
Appellee’s motions pursuant to Civil Rule 41.
{¶42} In his ninth assignment of error, Jeffrey argues that the trial court
erred by not granting his “motion to dismiss the pending Hog Barn issue for
failure to prosecute” under Civ.R. 37(B)(2)(c) and 41(B)(1) because Theresa
“failed to comply with a court order regarding the discovery cut-off.”
(Appellant’s Brief at 15).
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{¶43} Civ.R. 37(B) provides various sanctions for failure to comply with an
order to provide or permit discovery, including dismissal of “the action or
proceeding or any part thereof.” Civ.R. 37(B)(2)(c). See also Collias v. Redburn,
3d Dist. Wyandot No. 16-11-10, 2012-Ohio-2128, ¶ 23, citing Civ.R. 37(B)(2)(c).
“Ohio courts have long recognized that the interests of justice are better served
when courts address the merits of claims rather than using procedural devices to
resolve pending cases.” Collias at ¶ 23, citing Moore v. Emmanuel Family
Training Center, Inc., 18 Ohio St.3d 64, 70 (1985). In determining whether
dismissal of an action is warranted for a discovery violation,
the trial court should consider “the history of the case; all the facts
and circumstances surrounding the noncompliance, including the
number of opportunities and the length of time within which the
faulting party had to comply with the discovery or the order to
comply; what efforts, if any, were made to comply; the ability or
inability of the faulting party to comply; and such other factors as
may be appropriate.”
Id., quoting Foley v. Nussbaum, 2d Dist. Montgomery No. 24572, 2011-Ohio-
6701, ¶ 31. Civ.R. 41(B)(1) provides, “Where the plaintiff fails to prosecute, or
comply with these rules or any court order, the court upon motion of a defendant
or on its own motion may, after notice to the plaintiff’s counsel, dismiss an action
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or claim.” “Civ.R. 41(B)(1) permits a trial court to dismiss an action or claim
where a plaintiff fails to comply with any court order, whether related to discovery
or not.” Action Group, Inc. v. NanoStatics Corp., 10th Dist. Franklin No. 13AP-
72, 2013-Ohio-5542, ¶ 28.
{¶44} “The decision to dismiss under Civ.R. 37(B)(2)(c) and 41(B)(1) is
within the sound discretion of the trial court.” Action Group, Inc. at ¶ 29, citing
Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 47 (1997) and Toney v.
Berkemer, 6 Ohio St.3d 455, 458 (1983). Accordingly, we review for an abuse of
discretion a trial court’s decision whether to dismiss an action or part of an action
based on a discovery violation. See Collias at ¶ 25, citing Vaught v. Cleveland
Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, ¶ 13. As we previously
stated, an abuse of discretion suggests the trial court’s decision is unreasonable,
arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.
{¶45} Under this assignment of error, Jeffrey argues, without explanation
or citation to the record, “The Appellee had failed to comply with a court order
regarding the discovery cut-off.” (Appellant’s Brief at 15). App.R. 16(A)(7)
requires that Jeffrey include in his brief: “An argument containing the contentions
of the appellant with respect to each assignment of error presented for review and
the reasons in support of the contentions, with citations to * * * parts of the record
on which appellant relies.” (Emphasis added.) Under App.R. 12(A)(2), we are
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not required to address arguments that have not been sufficiently presented for
review or supported by proper authority, as required by App.R. 16(A)(7). Black v.
St. Marys Police Dept., 3d Dist. Mercer No. 10-11-11, 2011-Ohio-6697, ¶ 14.
{¶46} Nevertheless, we conclude that the trial court did not abuse its
discretion by denying Jeffrey’s June 1, 2012 “motion to dismiss the pending Hog
Barn issue for failure to prosecute.” After the trial court “grant[ed] a hearing on
the limited issues of the ‘hog barns’” on March 30, 2011, the hearing was
originally scheduled for September 26, 2011; however, the trial court granted
Theresa’s August 17, 2011 motion to continue the hearing so that the parties could
complete discovery and so that her counsel could attend a family reunion in
France. (See Doc. Nos. 406, 418, 419). Jeffrey’s counsel did not oppose that
motion for a continuance. (Doc. No. 418). Also on August 17, 2011, Theresa
served a request for production of documents on Jeffrey. (See Doc. Nos. 422,
427). Jeffrey filed a response to that request on October 28, 2011. (Doc. No.
427). However, according to Theresa, Jeffrey’s response was incomplete. (See
Doc. Nos. 476, 477). The trial court held a pretrial conference on December 19,
2011, at which it set Theresa’s discovery cut-off date as February 29, 2012 and
Jeffrey’s discovery cut-off date as June 1, 2012. (Doc. No. 455).
{¶47} Apparently unable to complete discovery without intervention by the
trial court, Jeffrey on June 1, 2012 filed his “motion to dismiss the pending Hog
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Barn issue for failure to prosecute.” (Doc. No. 475). It appears from Jeffrey’s
motion that he argued that Theresa failed to produce requested documents by the
February 29, 2012 discovery cut-off set by the trial court. (See Doc. Nos. 455,
475). In response, Theresa argued that she was unable to complete her discovery
by the cut-off date because Jeffrey failed to provide the documentation that she
requested on August 17, 2011, which was necessary for the preparation of her
discovery responses—namely, Hunt’s appraisal report. (See Doc. No. 477). The
trial court denied Jeffrey’s June 1, 2012 motion on August 30, 2012. (Doc. No.
491).
{¶48} Based on our review of the record, it was not unreasonable, arbitrary,
or unconscionable for the trial court to deny Jeffrey’s June 1, 2012 “motion to
dismiss the pending Hog Barn issue for failure to prosecute.” Not surprisingly, the
parties disagree over who was at fault in their discovery dispute. Although the
trial court did not say so explicitly in its judgment entry denying Jeffrey’s motion,
it appears the trial court was satisfied that Theresa acted reasonably diligently in
procuring and producing an appraisal report. (See Doc. No. 491). Amid the finger
pointing, it was not an abuse of discretion for the trial court to deny Jeffrey’s
request to dismiss the hog barns issue, particularly considering that dismissal is the
“harshest” discovery-violation sanction that “should only be imposed when the
failure to comply with discovery is due to willfulness, bad faith or fault on behalf
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of the respondent.” Collias, 2012-Ohio-2128, at ¶ 23; Houston v. Pickens, 3d
Dist. Marion No. 9-96-48, 1997 WL 86995, *2 (Feb. 26, 1997), citing
Cunningham v. Garruto, 101 Ohio App.3d 656, 659-660 (3d Dist.1995) and
Toney, 6 Ohio St.3d at 458.
{¶49} Jeffrey’s ninth assignment of error is overruled.
{¶50} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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