Hoag v. Stewart , 2014 Ohio 4090 ( 2014 )

[Cite as Hoag v. Stewart, 2014-Ohio-4090.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100951
ELIZABETH A. HOAG
PLAINTIFF-APPELLEE
vs.
SCOTT STEWART
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-12-342739
BEFORE: S. Gallagher, J., Celebrezze, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: September 18, 2014
ATTORNEY FOR APPELLANT
Bridgette D. Pozzuto
Urban & Pozzuto, L.L.C.
55 Public Square
Suite 2001
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Carl A. Murway
Taft, Stettinius & Hollister, L.L.P.
200 Public Square
Suite 3500
Cleveland, OH 44114
John D. Zoller
Zoller & Biacsi Co., L.P.A.
3611 Prospect Avenue East
Cleveland, OH 44115
SEAN C. GALLAGHER, J.:
{¶1} Defendant Scott A. Stewart appeals from the judgment entry of divorce
issued by the trial court, challenging several discovery and other pretrial issues, the
equitable distribution of marital assets, and an award of attorney fees. For the following
reasons, we affirm.
{¶2} Stewart married Elizabeth A. Hoag on May 17, 2003. The couple had two
children during their marriage. Hoag filed for divorce on July 11, 2012. Thereafter,
the couple entered into a shared parenting plan, and stipulated to the value of their
personal vehicles and the marital residence. The parties limited their discussion of the
facts to only those related to the assigned errors. We shall do the same.
{¶3} Stewart appeals the final entry of divorce, advancing 17 assigned errors.
Our review is hampered by the fact that Stewart included few citations to authority or the
standards of review, in violation of App.R. 16(A)(7). The few citations included are
blanket recitations of black letter law without any accompanying analysis linking the law
to the facts of the case. Nevertheless and for the sake of simplicity, Stewart’s arguments
will be combined where appropriate, and addressed in the most logical order.
{¶4} In his first, second, and third assignments of error, Stewart challenges several
pretrial discovery and evidentiary rulings. We find no merit to the first three
assignments of error.
{¶5} A trial court enjoys broad discretion in the regulation of discovery matters.
State ex rel. Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d
952, ¶ 27. A trial court’s decision in a discovery matter normally is reviewed for an
abuse of discretion. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,
2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. Similarly, the admission of evidence lies
within the broad discretion of the trial court. Beard v. Meridia Huron Hosp., 106 Ohio
St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323, ¶ 20.
{¶6} Stewart complains the trial court abused its discretion by extending discovery
deadlines and by precluding his own testimony demonstrating the cost to repair the
marital home and his expert’s testimony regarding the valuation of Stewart’s consulting
business. The trial court excluded the former because Stewart’s testimony violated the
rule against hearsay, and the latter because the expert’s report was produced untimely.
The expert’s testimony was meant to establish an alternate valuation of Stewart’s
consulting business to contrast with Hoag’s expert’s opinion of the same. Stewart’s
testimony was meant to demonstrate the true value of the marital home for the purposes
of equitably dividing the parties’ marital assets.
{¶7} Stewart has failed to demonstrate any abuse of discretion. In this case, the
trial court afforded all parties a lenient discovery period by extending the discovery
deadlines until the final pretrial conference, corresponding to the ever-shifting trial date.
For example, the trial court granted Stewart’s motion to compel discovery filed on
October 4, 2013, despite being filed outside the court’s discovery deadline. The final
pretrial conference occurred on August 27, 2013. Stewart, as the beneficiary of such
leniency, can hardly claim the court abused its discretion by disregarding the original
discovery deadlines. Stewart failed to produce his expert report within those lenient
discovery deadlines, delaying production until less than a month before the November 4,
2013 trial. Hoag produced her expert report on July 11, 2013, before the final pretrial
conference and within the discovery deadlines, with the exception of one document the
court also excluded, at Stewart’s urging, for being produced after the discovery deadlines.
The trial court applied the same rationale to Stewart’s expert and, further, allowed
Stewart’s expert to present rebuttal evidence of the business’s valuation, but deemed the
expert incredible. Stewart has not demonstrated any abuse of discretion.
{¶8} Finally, with respect to the trial court’s exclusion of Stewart’s statements
regarding any cost of repair to the marital home, Stewart attempted to substantiate the
repair cost with a contractor’s proposal, in violation of Evid.R. 802. The contractor did
not testify. Stewart offered no argument in support of the admissibility of the
contractor’s estimate presented through Stewart’s testimony. The trial court rightfully
excluded the document because it contained hearsay. Accordingly, we overrule
Stewart’s first three assignments of error. The court did not abuse its discretion in
excluding Stewart’s evidence or imposing discovery deadlines on both parties.
{¶9} In his fourth, fifth, seventh, and ninth assignments of error, Stewart claims
the trial court’s allocation and valuation of marital assets was against the manifest weight
of the evidence. We find no merit to any of these assigned errors.
{¶10} “The trial court’s valuation of an asset in a divorce case is a question of fact
reviewed under a manifest weight of the evidence standard.” Rossi v. Rossi, 8th Dist.
Cuyahoga Nos. 100133 and 100144, 2014-Ohio-1832, ¶ 17, citing Kapadia v. Kapadia,
8th Dist. Cuyahoga No. 94456, 2011-Ohio-2255, ¶ 24. A trial court’s valuation of an
asset will not be overturned if it is supported by some competent, credible evidence. Id.,citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984), and
Haynes v. Haynes, 8th Dist. Cuyahoga No. 92224, 2009-Ohio-5360.
{¶11} Stewart advances several arguments attacking the trial court’s ultimate
valuation of several assets.1 He primarily claims that the court erred in determining the
value of his business based on “more than one obvious” mistake made by Hoag’s expert.
Stewart does not support that statement with any evidence from the record, instead
claiming his expert explained the mistakes. This is simply an issue of credibility
between competing experts. “In determining a business’s value, the trial court has
discretion to weigh the testimony offered by the parties’ valuation experts.” Brown v.
Brown, 8th Dist. Cuyahoga No. 100499, 2014-Ohio-2402, ¶ 32, citing Gentile v. Gentile,
8th Dist. Cuyahoga No. 97971, 2013-Ohio-1338, ¶ 62, and Bryan v. Bryan, 8th Dist.
Cuyahoga No. 97817, 2012-Ohio-3691. The trial court is not required to adopt any
particular methodology in determining a business’s value. Id.1
Stewart also claims that the trial court’s finding that debts arising from the parties’ 2011
federal and state taxes were marital property and certain findings relevant to the spousal support
determination were not supported by the evidence. Most of Stewart’s issues seem to revolve around
his conclusion that the trial court’s findings were “irrelevant to its conclusion, inflammatory,
unnecessarily contentious, and reflect a prejudicial attitude against Stewart.” Such an argument is
well outside the scope of our manifest weight of the evidence review and is disregarded, a conclusion
underscored by the fact that the argument was not supported with citations to authority as required by
App.R. 16(A)(7).
{¶12} Stewart offered no reason to value his expert’s opinion over that of Hoag’s
expert. Hoag provided credible evidence substantiating the trial court’s valuation of
Stewart’s business, and thus, the finding was not against the manifest weight of the
evidence. The trial court stated Hoag’s expert was credible, and nothing in the record
demonstrates otherwise. Accordingly, we overrule Stewart’s fourth, fifth, seventh, and
ninth assignments of error.
{¶13} In his sixth, eighth, and thirteenth assignments of error, Stewart claims that
the trial court considered both the value of his business and the income he derived from it
in determining spousal support. He also takes issue with the trial court’s valuation of
Hoag’s retirement plan. According to Stewart, the trial court used the cash value instead
of the present value. Stewart also claims the trial court miswrote the divorce decree by
including a clause terminating the spousal support payment only upon Hoag’s
cohabitation, rather than marriage. The record does not support any of Stewart’s
conclusions. The trial court only considered Stewart’s income for the purposes of
determining spousal support; the trial court indicated that the parties stipulated to the
value of Hoag’s retirement plan; and from the record provided, there is no indication that
the termination of spousal support upon cohabitation was a scrivener’s error. We
summarily overrule Stewart’s sixth, eighth, and thirteenth assignments of error.
{¶14} In his tenth, eleventh, twelfth, and seventeenth assignments of error, Stewart
claims the trial court erred by converting the lump sum payment reflecting Hoag’s
allocated portion of the marital assets and Hoag’s award of attorney fees into monthly
obligations and by awarding Hoag spousal support. Stewart’s monthly obligation totals
$6,083 per month when all payments commence and overlap. Stewart claims his
$80,000 stated income is insufficient to finance the monthly payments irrespective of his
own living expenses. The $6,083 monthly obligation is comprised of $783 in child
support, $1,250 in spousal support for three years, $50 for child support arrearage, $2,000
for the amount owed to equalize the property division ($67,095 in total), and $2,000 for
the amount awarded to Hoag in attorney and expert fees ($12,000 in total).
{¶15} Stewart does not challenge the award of spousal support other than to “take
issue” with 7 of the trial court’s 19 findings — correlating to the statutory factors — in
support of the spousal support determination. “In determining whether spousal support
is appropriate and reasonable, the trial court must consider the factors set forth in R.C.
3105.18(C)(1).” Brown, 8th Dist. Cuyahoga No. 100499, 2014-Ohio-2402, ¶ 38, citing
Kaletta v. Kaletta, 8th Dist. Cuyahoga No. 98821, 2013-Ohio-1667, ¶ 22. The trial
court dutifully considered all the enumerated factors, and therefore, we find no merit to
any argument regarding the validity of the spousal support obligation. Stewart did not
otherwise challenge the spousal support award, other than to claim that some of the
several findings were not supported by the record. Even if true, the other findings
supported the trial court’s conclusion, and Stewart provided no reason to give greater
weight to the disputed findings.
{¶16} It is further undisputed that Stewart owes the child support and arrearage,
and he has not advanced any error with the court’s equalization of the marital property
allocation through a lump sum payment.
{¶17} This leaves the $12,000 bill for Hoag’s attorney fees that Stewart was
ordered to pay. On that issue, we briefly digress to address Stewart’s sixteenth
assignment of error, in which he claims the trial court erred by awarding Hoag attorney
and expert witnesses’ fees because of Stewart’s conduct throughout the discovery period.
{¶18} “In an action for divorce * * * a court may award all or part of reasonable
attorney’s fees and litigation expenses to either party if the court finds the award
equitable.” R.C. 3105.73(A). The trial court’s decision to grant attorney fees in a
divorce action is reviewed under the abuse of discretion standard. Dureiko v. Dureiko,
8th Dist. Cuyahoga No. 94393, 2010-Ohio-5599, ¶ 26. Stewart claims the trial court
abused its discretion in ordering him to partially pay Hoag’s attorney fees because Stewart
was forced to file a motion to compel discovery after the expiration of the discovery
deadline. Whether he filed a motion to compel, however, is nonresponsive to the trial
court’s conclusion that he delayed the discovery process. We cannot logically conclude
from the fact that Stewart filed a single motion to compel after the discovery deadline that
his conduct during discovery was not otherwise dilatory.
{¶19} He further claims he is unable to pay in light of his limited yearly income.
The ability to pay an award of attorney fees, however, is not limited to considering the
party’s yearly income alone. The trial court has the authority to review all relevant
factors, including the parties’ marital assets and income, in determining to enter an award
for all or part of the opposing party’s attorney fees in a divorce action. R.C. 3105.73(A).
Because Stewart limited his analysis to his yearly income without addressing his ability
to pay based on his overall financial position, we must overrule Stewart’s sixteenth
assignment of error, which necessarily impacts our resolution of his tenth, eleventh,
twelfth, and seventeenth assignments of error.
{¶20} Stewart’s only remaining contention is with the court’s decision to provide a
payment plan for the equitable distribution of property and award of attorney fees. The
fact that his spousal and child support obligations combined with the monthly obligation
arising from the property equalization and the award for attorney fees may exceed his
stated monthly income, in and of itself, is not a basis to overturn the properly awarded
child and spousal support payments. Stewart has not cited any basis in the law to so
conclude. Unlike the spousal and child support obligations, the equalization of marital
property and attorney fees awards, comprising approximately two-thirds of the total
obligation challenged, must be considered in respect to his overall financial position, not
just his monthly income. Stewart’s argument focused on his monthly income without
any discussion of his overall financial situation. We accordingly overrule his tenth,
eleventh, twelfth, and seventeenth assignments of error.
{¶21} In his fourteenth assignment of error, Stewart claims the trial court erred by
designating his business account as the account for the withholding or deduction notice
for all future child support payments. We decline to address this assignment of error
because Stewart has not included any citation to relevant authority as required by App.R.
16(A)(7). Thornhill v. Thornhill, 8th Dist. Cuyahoga No. 92913, 2009-Ohio-5569, ¶ 11.
{¶22} Finally, in his fifteenth assignment of error, Stewart claims the trial court
erred by awarding the income tax deductions for the minor children to Hoag in light of
the fact that the parties stipulated to share the exemptions. We find Stewart’s argument
to be disingenuous at best. Stewart claims the parties agreed to share the exemptions for
their two children in the shared parenting plan. In reviewing the agreement, however,
the parties specifically agreed to share the exemptions subject to further order by the trial
court. The trial court subsequently allocated the exemptions to Hoag. There was not a
permanent agreement between the parties to divide the exemptions. We overrule
Stewart’s fifteenth and final assignment of error.
{¶23} The decision of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR