Bailey v. Bailey , 2012 Ohio 5073 ( 2012 )

[Cite as Bailey v. Bailey, 2012-Ohio-5073.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98173
TRAMAINE SHEA BAILEY
PLAINTIFF-APPELLEE
vs.
MICHAEL EDWARD BAILEY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-334217
BEFORE: Cooney, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: November 1, 2012
FOR APPELLANT
Michael E. Bailey, pro se
12805 Reindeer Avenue
Garfield Heights, OH 44125
ATTORNEY FOR APPELLEE
Douglas C. Blackburn
Direnfeld, Greene & Blackburn Co.
24441 Detroit Road
Suite 200
Westlake, OH 44145
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Michael E. Bailey (“Michael”), appeals the trial
court’s judgment entry of divorce. We find no merit to the appeal and affirm.
{¶2} Plaintiff-appellee, Tramaine Shea Bailey (“Tramaine”), filed a complaint
for divorce in November 2010. At trial, the parties stipulated that they were married on
January 15, 2010 and separated on or about May 6, 2010. The parties disputed the
allocation of four items of debt: (1) a debt of $5,876.94 to Owner’s Management for past
due rent; (2) a debt to Elgin Furniture for furniture purchased during the marriage in the
amount of $2,635.77; (3) moving expenses in the amount of $ 2,200 owed to Navy
Federal Credit Union; and (4) three separate electric bills.
{¶3} Following trial, the magistrate issued a decision assigning the debts owed to
Elgin Furniture, Owner’s Management, and Navy Federal Credit Union to Tramaine.
However, the court ordered that Michael “pay Plaintiff $4,311.50 which constitutes his
share of various debts.” The court further ordered that Michael “shall pay Plaintiff
$3,000.00 towards her attorney fees, as additional spousal support.”
{¶4} Michael filed timely objections to the magistrate’s decision, claiming the
evidence presented at trial did not support her findings of fact and the resulting
conclusions of law. However, Michael did not file a trial transcript as required by Civ.R.
53(D)(3)(b)(iii). The trial court adopted the magistrate’s decision in its entirety without
modification. Michael now appeals, raising three assignments of error.
Attorney Fees
{¶5} In his first assignment of error, Michael argues the trial court erred in
awarding Tramaine $3,000 in attorney fees. He contends the attorney fee award was not
warranted because the parties stipulated that Tramaine did not seek spousal support.
{¶6} In an action for divorce, a court may award all or part of reasonable attorney
fees and litigation expenses to either party if the court finds the award equitable. R.C.
3105.73(A). In determining whether such an award is equitable, “the court may consider
the parties’ marital assets and income, any award of temporary spousal support, the
conduct of the parties, and any other relevant factors the court deems appropriate.” R.C.
3105.73(A). An award of attorney fees under R.C. 3105.73 lies within the sound
discretion of the trial court and will not be reversed absent an abuse of that discretion.
Cimperman v. Cimperman, 8th Dist. No. 80807, 2003-Ohio-869, citing Rand v. Rand, 18
Ohio St.3d 356, 359, 481 N.E.2d 609 (1985).
{¶7} Michael argues the trial court erred in sua sponte awarding attorney fees
where the parties stipulated that neither party sought spousal support. He contends that
because the parties waived alimony, an attorney fee award was improper under Civ.R.
75(N). However, Civ.R. 75(N) governs the temporary award of spousal support,
including attorney fees, during the pendency of the divorce proceedings. It is not
applicable to the final judgment of divorce.
{¶8} Michael never filed a transcript of the divorce proceedings. We must,
therefore, presume regularity. When an objecting party fails to timely file a transcript or
affidavit, a trial court must accept the magistrate’s findings of fact and limit its review to
the magistrate’s legal conclusions. Snider v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 11AP-965, 2012-Ohio-1665, ¶ 8; “Where a party to an appeal fails to file portions of
the transcript necessary for resolution of his assignments of error, the assignments will be
overruled.” Maloney v. Maloney, 34 Ohio App.3d 9, 516 N.E.2d 251 (11th Dist.1986),
paragraph one of the syllabus.
{¶9} In awarding $3,000 in attorney fees, the magistrate considered each party’s
income and earning ability and the conduct of the parties. In her decision, the magistrate
explained:
This fee award is disproportionate to the debts Plaintiff was seeking
reimbursement for, but the fees were necessary because Defendant was
oppositional at every turn. His only offers to compromise came in his
Closing Argument when they were too late to have any effect.
{¶10} According to the magistrate, Tramaine incurred additional legal fees as a
result of Michael’s conduct during the divorce proceedings. Without a transcript proving
otherwise, we accept the magistrate’s findings. Under these circumstances, we find no
abuse of discretion in the attorney fee award.
{¶11} Accordingly, the first assignment of error is overruled.
Duration of the Marriage
{¶12} In the second assignment of error, Michael argues the trial court erred when
it established July 25, 2011 as the date the marriage ended. He contends the trial court
should have found April 29, 2010 as the de facto termination-of-marriage date because
the parties separated on that date.
{¶13} Under R.C. 3105.171(A)(2), the date of the final hearing for divorce is
presumed to be the appropriate termination date of the marriage unless the trial court
determines that the application of such date would be inequitable. O’Brien v. O’Brien, 8th
Dist. No. 89615, 2008-Ohio-1098, ¶ 40, citing Berish v. Berish, 69 Ohio St.2d 318, 321,
432 N.E.2d 183 (1982). If the trial court determines that use of the final hearing date
would be inequitable given the circumstances of the parties, the court may “select dates
that it considers equitable in determining marital property.” R.C. 3105.171(A)(2)(b).
However, a trial court should only impose a de facto termination date where the evidence
“clearly and bilaterally shows that it is appropriate based on the totality of the
circumstances.” Boggs v. Boggs, 5th Dist. No. 07CAF020014, 2008-Ohio-1411, at ¶ 66.
The decision to use the final hearing date as the valuation date or another alternative date
pursuant to R.C. 3105.171(A)(2)(a)-(b) is discretionary and will not be reversed on appeal
absent an abuse of discretion. Berish at 321.
{¶14} Michael contends that the trial court should have used the de facto end of
marriage date of April 29, 2010, instead of the last hearing date because the prolonged
duration of the marriage unfairly burdened him with more than his share of marital debt.
In support of this argument, he relies on Dill v. Dill, 179 Ohio App.3d 14,
2008-Ohio-5310, 900 N.E.2d 654 (3d Dist.), in which the court noted that several
financial, health, and family changes that occurred during a ten-year delay between the
time of separation and the final hearing date weighed in favor of establishing a de facto
termination date for the marriage. Id. at ¶ 46.
{¶15} In contrast to Dill, the parties’ entire marriage in the instant case lasted less
than two years. According to the magistrate’s decision, the parties lived together in the
rental property for which they owed $5,876.94 in unpaid rent. Although they separated
within months of their marriage, Tramaine moved into the marital residence after they
were married. The debt was incurred as a result of the marriage. For this reason, the
court was justified in ordering Michael to pay half of this debt.
{¶16} The $2,200 in moving expenses owed to Navy Credit Union was also a
shared debt. The expenses were incurred when the parties moved from another address
to the marital residence after they were married. Therefore, regardless of when the
marriage ended, equity requires that Michael pay half this bill.
{¶17} The court divided the liability for electric bills according to where the
parties lived at the time the bills were generated rather than by the date of the marriage.
For example, the court found that Michael should pay the entire bill for electric service at
the Valley Lane residence because he lived there with his mother before the parties were
married and he moved back to that residence when the parties separated on or about
May 6, 2010. Fairness requires that Michael be solely responsible for this bill because
Tramaine never lived at that address.
{¶18} The parties lived together on Wadsworth Avenue from January 18, 2010,
until the end of March 2010 when they moved to the marital residence on Rockside Road.
The court noted that Tramaine owed $419.36 before the parties were married and that
they incurred an additional $212.60 in electric bills through March 31, 2010. The court
ordered that Michael pay half of the jointly accrued $212.60 bill.
{¶19} The parties moved to the marital residence on Rockside Road on April 1,
2010. The court noted that “[t]he term of the electric bill at the Rockside residence was
approximately seven months (April 1, 2010 through October 28, 2010) of which Michael
resided at this apartment approximately one and a quarter months (39 days).” Therefore,
the court concluded that Michael “should be ordered to pay one half of 18% * * * or 9%
of the $449.58, or $40.46.” Thus, the termination for the marriage was irrelevant to the
court’s calculation of this debt.
{¶20} Under these circumstances, we find no abuse of discretion in the court’s
finding that the marriage terminated on the last hearing date for purposes of dividing
marital assets and liabilities. The court’s division of the parties’ debt was fair and
equitable, and Michael has produced no evidence to show otherwise.
{¶21} Therefore, the second assignment of error is overruled.
Moving Expenses
{¶22} In his third assignment of error, Michael argues the trial court abused its
discretion in determining the amount awarded to Tramaine for moving expenses. He
contends the award is not supported by the evidence.
{¶23} The party claiming a debt incurred during marriage is separate and not
marital bears the burden of proof on that issue by a preponderance of the evidence.
Kehoe v. Kehoe, 8th Dist. No. 97357, 2012-Ohio-3357, ¶ 14. A trial court has broad
discretion in the allocation of marital assets. We, therefore, will not disturb the trial
court’s judgment absent an abuse of discretion. Neville v. Neville, 99 Ohio St.3d 275,
2003-Ohio-3624, 791 N.E.2d 434, ¶ 5.
{¶24} As previously stated, because Michael did not file a trial transcript, we
accept the trial court’s findings of fact as true. Snider, 10th Dist. No. 11AP-965,
2012-Ohio-1665, ¶ 8. The magistrate found that Tramaine borrowed $2,200 from Navy
Credit Union to pay for the parties’ moving expenses. They moved from Wadsworth
Avenue to their apartment on Rockside Road after they were married but before they were
separated. The expense was incurred as a result of the marriage. Under these
circumstances, we find no abuse of discretion in the court’s order requiring Michael to
pay half of this expense.
{¶25} Accordingly, the third assignment of error is overruled.
{¶26} Judgment 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 domestic
relations 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.
___________________________________________________
COLLEEN CONWAY COONEY, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR