Oliver v. Oliver ( 2012 )

[Cite as Oliver v. Oliver, 2012-Ohio-3483.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
MISTY L. OLIVER : W. Scott Gwin, P.J.
: John W. Wise, J.
Plaintiff-Appellant : Julie A. Edwards, J.
:
-vs- : Case No. 2011 AP 11 0044
:
:
JOSEPH D. OLIVER : OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County
Court of Common Pleas Case No.
2009 TM 03 0151
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: July 30, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SHARON BUCKLEY-MIRHAIDARI BRAD HILLYER
152 N. Broadway Ave., Suite 200 201 N. Main Street, Box 272
New Philadelphia, Ohio 44663 Uhrichsville, Ohio 44683
[Cite as Oliver v. Oliver, 2012-Ohio-3483.]
Edwards, J.
{¶1} Appellant, Misty L. Oliver, appeals a judgment of the Tuscarawas County
Common Pleas Court granting her a divorce from appellee Joseph D. Oliver on the
grounds of adultery and incompatibility.
STATEMENT OF FACTS AND CASE
{¶2} The parties were married in 1999. They did not have children together,
but each had children from a prior marriage. The parties lived separate and apart
beginning in 2007. Appellee admitted to having an adulterous affair and lived with his
mistress and their child.
{¶3} Appellee is a registered nurse. Appellant had previously been employed
as an LPN. She was eligible to test to be an RN and was attending school full time to
be a nurse practitioner.
{¶4} From 2002-2005, the parties owned a business called Guardian Nurses,
which was a temporary agency sending nurses to hospitals and other medical facilities
as needed. Appellee was employed by the agency as a nurse, and appellant did most
of the administrative work for the company out of their home. The parties filed separate
tax returns with the business income reported on appellant’s tax returns. No tax returns
were filed for appellant or the business in 2003, 2004, and 2005. Appellant was
concerned that the IRS would take action against her in the future and was further
concerned that payroll taxes on the business had not been paid.
{¶5} The instant action for divorce was filed on March 31, 2009. The case
proceeded to a hearing before a magistrate. Objections were filed to the magistrate’s
report. Following a hearing on the objections, the trial court granted appellant a divorce
Tuscarawas County App. Case No. 2011 AP 11 0044 3
on the grounds of adultery and incompatibility. The court divided marital property and
debt and ordered appellee to pay appellant spousal support in the amount of $500.00
per month for 36 months. Regarding the tax liability related to Guardian Nurses, the
court stated, “The Court shall retain jurisdiction to address any tax liability that may arise
from Guardian Nurses, the marital business of the parties.” Judgment, October 13,
2011.
{¶6} Appellant assigns twelve errors to this Court on appeal:
{¶7} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
ONLY AWARDING $500.00 A MONTH IN SPOUSAL SUPPORT.
{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
RENDERING A DECISION WITH REGARD TO UNPAID TAXES DUE TO THE
FEDERAL, STATE AND LOCAL INCOME TAX DEPARTMENTS.
{¶9} “III. THE TRIAL COURT ERRED IN NOT RENDERING A DECISION
WITH REGARD TO HEALTH INSURANCE FOR MISTY OLIVER.
{¶10} “IV. THE TRIAL COURT ERRED IN AWARDING JOE OLIVER GUNS.
{¶11} “V. THE TRIAL COURT ERRED IN AWARDING MISTY OLIVER ONLY
$250.00 AFTER FINDING JOE IN CONTEMPT OF COURT FOR TRASHING MISTY
AND MISTY’S CHILDREN’S PERSONAL PROPERTY IN THE DUMPSTER.
{¶12} “VI. THE TRIAL COURT ERRED IN NOT ORDERING THE RETURN OF
MISTY’S PERSONAL PROPERTY SHE SAW JOE AND HIS MISTRESS HAVE AT
THEIR HOUSE IN PICTURES SHE SAW ON FACEBOOK. THE TRIAL COURT
FURTHER ERRED AND ABUSED ITS DISCRETION IN NOT ADMITTING THE
FACEBOOK PHOTOGRAPHS INTO EVIDENCE.
Tuscarawas County App. Case No. 2011 AP 11 0044 4
{¶13} “VII. THE TRIAL COURT ERRED IN NOT AWARDING THE MINERAL
CITY PROPERTY TO MISTY OLIVER.
{¶14} “VIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
NOT ISSUING A DECISION WITH REGARD TO ALL OF THE MARITAL DEBT.
{¶15} “IX. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
AWARDING ONE HALF OF THE VANGUARD ACCOUNT TO MISTY OLIVER. MISTY
OLIVER SHOULD HAVE BEEN AWARDED THE FULL AMOUNT OF THE
VANGUARD ACCOUNT.
{¶16} “X. THE TRIAL COURT ERRED IN NOT AWARDING ATTORNEY FEES
TO MISTY OLIVER.
{¶17} “XI. THE TRIAL COURT’S REFUSAL TO ADDRESS APPELLANT’S
MOTIONS PROIR [SIC] TO TRIAL AND ADMIT EVIDENCE AND TESTIMONY AT
TRIAL WAS AN ABUSE OF DISCRETION AND DENIED APPELLANT DUE PROCESS
AND A FAIR TRIAL.
{¶18} “XII. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
ORDER THE PROCEEDS FROM THE SALE OF THE 4033 W. STATE STREET
PROPERTY AND MISTY’S RETIREMENT BENEFITS AS SEPARATE PROPERTY.”
{¶19} Appellee assigns the following errors on cross-appeal:
{¶20} “I. THE JUDGE ERRED IN FINDING A DIVORCE ON GROUNDS OF
ADULTERY.
{¶21} “II. THE TRIAL COURT ERRED IN FINDING A CHARGE OF CONTEMPT
AGAINST THE APPELLEE.”
Tuscarawas County App. Case No. 2011 AP 11 0044 5
{¶22} As a preliminary matter, we address the issue of whether the judgment
appealed from is a final, appealable order due to the court’s retention of jurisdiction to
address tax liability from Guardian Nurses.
{¶23} If an order is not final and appealable, then an appellate court has no
jurisdiction to review the matter and must dismiss it. See General Acc. Ins. Co. v.
Insurance Co. of N. Am. , 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989); Noble v.
Colwell, 44 Ohio St.3d 92, 540 N.E.2d 1381 (1989). In the event that the parties to the
appeal do not raise this jurisdictional issue, then we must raise it sua sponte. See Chef
Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 541 N.E.2d 64, syllabus (1989).
{¶24} R.C. 3105.171(B) provides for a division of marital property. Debt, like
assets, are classified as property, and an order assigning debt is a form of property
division. Arnett v. Arnett, 2nd Dist. No. No. Civ. A. 20332, 2004-Ohio-5274, ¶8. R.C.
3105.171(I) states:
{¶25} “(I) A division or disbursement of property or a distributive award made
under this section is not subject to future modification by the court except upon the
express written consent or agreement to the modification by both spouses.”
{¶26} In the instant case, appellee agreed orally at trial to reopen the divorce
case regarding the issue of tax liability from Guardian Nurses if the IRS attempted to
collect taxes from appellant. However, the parties did not agree in writing to future
modification of the property division, and appellant did not consent to reserving the
issue for future modification.
{¶27} A divorce decree which leaves issues relating to the property division
unresolved is not a final order. Muhlfelder v. Muhlfelder, 11th Dist. No. 200-L-183, 2000-
Tuscarawas County App. Case No. 2011 AP 11 0044 6
L-184, 2002-Ohio-1166. The trial court was without statutory authority to reserve
jurisdiction over this division of debt pursuant to R.C. 3105.171(I). Whether or not the
IRS becomes aware of the unpaid taxes and chooses to pursue a claim, unpaid taxes
incurred by the parties during the marriage from a marital business constitute marital
debt. Because the trial court failed to divide this debt and left the matter open for future
resolution, the judgment appealed from is not a final, appealable order.
{¶28} The appeal is dismissed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0710
[Cite as Oliver v. Oliver, 2012-Ohio-3483.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MISTY L. OLIVER :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
JOSEPH D. OLIVER :
:
Defendant-Appellee : CASE NO. 2011 AP 11 0044
For the reasons stated in our accompanying Memorandum-Opinion on file, the
appeal of the Tuscarawas County Court of Common Pleas is dismissed. Costs
assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES