Irvin v. Eichenberger , 2020 Ohio 4962 ( 2020 )

[Cite as Irvin v. Eichenberger, 2020-Ohio-4962.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Maxine C. Irvin, :
Plaintiff-Appellee, :
No. 19AP-417
v. : (C.P.C. No. 14DR-4674)
Raymond L. Eichenberger, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 20, 2020
On brief: Maxine C. Irvin, pro se. Argued: Maxine C. Irvin.
On brief: Raymond L. Eichenberger, pro se. Argued:
Raymond L. Eichenberger.
APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relations, Juvenile Branch
BRUNNER, J.
{¶ 1} Defendant-appellant, Raymond L. Eichenberger, appeals a decision issued
on May 30, 2019 by the Franklin County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch, after a remand from this Court in Irvin v. Eichenberger, 10th
Dist. No. 16AP-657, 2017-Ohio-5601 ("Eichenberger I"). The decision now on appeal
amends a divorce decree originally entered on September 7, 2016 to bring it into
compliance with law and address certain aspects of the trial court's earlier decision as
identified in the Eichenberger I appellate decision. For the reasons that follow, we overrule
or decline to address each of Eichenberger's eleven assignments of error and affirm. As a
result of our affirmance, Eichenberger's net result of offsets is that he is due a distribution
from Irvin of $8,172.63. His $3,500.00 bond payment shall be returned when and if the
case ends in a final judgment with no appeals pending and no debts outstanding for which
he bears the responsibility of payment. All parts of the decree not specifically overruled in
No. 19AP-417 2
Eichenberger I remain in force and the May 30, 2019 amendments to the decree are
affirmed in full.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In Eichenberger I, we reviewed the full history of this case from filing of the
complaint in December 2014 to the divorce decree in September 2016 and it is not
sufficiently relevant to this appeal to bear repeating in its full length here. Id. at ¶ 2-37.
Suffice it to say that on December 30, 2014, plaintiff-appellee, Maxine Irvin, filed to divorce
Eichenberger. Id. at ¶ 2. Due to Eichenberger's conduct, the trial court concluded that
Eichenberger was hiding assets, had engaged in financial misconduct, and determined to
make an equitable (rather than equal) division of the known assets that resulted in an award
to Eichenberger of $5,357.82 (that net result took into account $50,000.00 Eichenberger
had already received during the course of the litigation as a result of a qualified domestic
relations order ("QDRO")). Id. at ¶ 21, 37.
{¶ 3} Eichenberger sought and received a stay of the September 2016 decree
pending appeal, but the stay was conditioned on the posting of $43,000 bond or, in the
alternative, making deposits of $500 per month with the Franklin County Clerk of Courts
beginning December 1, 2016. (Nov. 2, 2016 Stay Order.) Eichenberger made the first
payment of $500 on November 29, 2016. (Docket 14DR-4674.) But on January 17, 2017,
when Eichenberger did not post bond or make a further payment for the month of January,
Irvin filed a motion to enforce the decree. (Jan. 17, 2017 Mot. to Enforce.) Eichenberger
immediately resumed making payments and thereafter made payments on January 18,
January 30, March 8, April 6, May 10, and June 9, 2017. Irvin therefore withdrew her
motion. (Apr. 21, 2017 Mot. Withdrawn.) When we issued our appellate decision in June
2017, Eichenberger had made seven payments.
{¶ 4} In our June 29, 2017 decision, we affirmed in part and reversed in part the
trial court's decree. Eichenberger I in passim. First, we reversed a finding that the parties
should make division of their Social Security benefits but noted that such benefits could be
considered by the trial court in disposing of the remainder of the marital property. Id. at
¶ 41. Second, we found that the Cardinal Health Account in Irvin's name was accumulated
during the marriage and was marital property. Id. at ¶ 62. Third, we noted that the exact
figure for the Scott's Fidelity 401(k) in Irvin's name was listed by the trial court as
$308,332.85, but that such a figure appeared nowhere in the appellate record and was not
No. 19AP-417 3
supported by evidence in the record. Id. at ¶ 64. Fourth, we held the trial court had erred
in stating the date Eichenberger filed certain objections to a magistrate's ruling and that the
trial court had consequently erred in finding the objections to have been untimely. Id. at
¶ 76-79. Fifth, we noted that the trial court had indicated an inventory of personal property
was attached to the decree as an exhibit, but no such exhibit was attached. Id. at ¶ 80.
Finally, we noted that, in calculating Eichenberger's arrearage of unpaid maintenance
payments, the trial court omitted to consider that Eichenberger had, by Irvin's admission,
made at least some of the required payments. Id. at ¶ 84-87. In concluding, we clarified
that the divorce decree was affirmed in all respects except those specifically indicated; we
said, "[t]he decree of divorce issued by the trial court is reversed in the parts indicated above
and otherwise affirmed." Id. at ¶ 88, in passim.
{¶ 5} Eichenberger requested that we reconsider our decision and, while that
request was pending, suggested that the trial court refrain from taking action on the case
due to a lack of jurisdiction. (July 7, 2017 Mot. to Recons.; Aug. 17, 2017 Mot. to Stay for
Lack of Jurisdiction.) We declined to reconsider on November 28, 2017. Irvin v.
Eichenberger, 10th Dist. No. 16AP-657 (Nov. 28, 2017) (memorandum decision)
("Eichenberger II").
{¶ 6} Following that decision, Eichenberger again suggested the trial court not take
any further action on the case while he awaited word from the Supreme Court of Ohio on
whether or not it would consider a further appeal. (Nov. 30, 2017 Mot. to Stay for Lack of
Jurisdiction.) The Supreme Court declined to hear the case in May 2018. Irvin v.
Eichenberger, 152 Ohio St.3d 1462, 2018-Ohio-1795.
{¶ 7} Thereafter, Eichenberger filed requests with the trial court seeking a status
conference and release of the $3,500 Eichenberger had paid as surety for the appellate stay.
(July 2, 2018 Mot. to Release Bond; July 12, 2018 Mot. for Status Conference.) In response,
Irvin (now proceeding pro se), filed a motion requesting that the divorce decree be enforced
as modified by our decision in Eichenberger I. (July 13, 2018 Mot. to Enforce.) By that
motion, Irvin sought for the $3,500 bond to be released to her in partial satisfaction of
amounts owed to her as a consequence of the continuing failure of Eichenberger to make
payments required by the divorce decree, even after Eichenberger had ceased (in July 2017)
making monthly $500 payments to keep the stay in place. Id.No. 19AP-417 4
{¶ 8} The record does not reflect that the trial court took any action on the $3,500,
but Eichenberger nonetheless filed a motion to reconsider noting that he received a notice
via e-mail indicating that his motion to release the funds had been denied. (Aug. 16, 2018
Mot. to Recons. at 2.) He simultaneously withdrew the request for a status conference.
(Aug. 16, 2018 Withdrawal of Mot. for Conference.) Shortly thereafter, Eichenberger filed
a motion to disqualify the trial judge and included a copy of the e-mail stating that his
request had been subject to a "JUDICIAL DECLINE" and that the request for the return of
funds was "not well taken."1 (Oct. 5, 2018 Disqualification Aff. at 10, filed Oct. 11, 2018.)
On October 30, 2018, the Supreme Court declined to disqualify the trial judge, noting that
this was Eichenberger's third attempt to disqualify her during this litigation. (Oct. 30, 2018
Supreme Court Entry at 1, filed Oct. 31, 2018.)
{¶ 9} Approximately one week after the disqualification issue was resolved, the
trial court set a case management order setting a hearing for December 18, 2018 and
requiring the parties to update the trial court with proof of payments made, sent, or
received between them for expenses during the pendency of the divorce proceedings.
(Nov. 9, 2018 Case Mgt. Order.) Eichenberger sought to appeal that order to this Court on
December 10, 2018. (Dec. 10, 2018 Notice of Appeal.) However, this Court sua sponte
dismissed the appeal for lack of a final appealable order. Irvin v. Eichenberger, 10th Dist.
No. 18AP-946 (Dec. 19, 2018) (Journal Entry).2
{¶ 10} On January 7, 2019, in what appears to have been an action on Irvin's motion
to enforce the decree, the trial court issued summons ordering Eichenberger to appear and
show cause why he should not be found in contempt for failure to abide by an order of the
court. (Jan. 7, 2019 Show Cause.) A service return filed on February 18, 2019 reflected that
Eichenberger was personally served and he filed a motion to quash service on February 19.
(Feb. 18, 2019 Service Return; Feb. 19, 2019 Mot. to Quash.) The trial court did not rule on
the motion to quash before the February 20 hearing. Eichenberger failed to appear on
February 20. (Feb. 20, 2019 Hearing Tr., filed Aug. 29, 2019.) The trial court issued a
capias warrant for his arrest. (Feb. 26, 2019 Capias.)
1We note that the "JUDICIAL DECLINE" Eichenberger refers to does not appear on the trial court's docket.
2 Eichenberger requested reconsideration of this entry, and we declined to reconsider on January 14, 2019.
Irvin v. Eichenberger, 10th Dist. No. 18AP-946 (Jan. 14, 2018) (Journal Entry).
No. 19AP-417 5
{¶ 11} On February 28, 2019, Eichenberger filed a motion to set aside the warrant
for his arrest, pointing out that he had filed a motion to quash the summons, alleging that
the court lacked jurisdiction over the case since he had filed a mandamus action in this
Court on February 19 and arguing that, in any case, the service of the summons was
"unlawful, null and void." (Feb. 28, 2019 Mot. to Set Aside at 2.) Eichenberger's mandamus
action sought a writ ordering the trial judge to return the $3,500 paid for the appellate stay
and a ruling conforming the divorce decree to the holdings in Eichenberger I. (Feb. 19,
2019 Mandamus Compl. 19AP-98 at ¶ 15-16, 18-19.) Paradoxically, given that he sought a
writ ordering the trial court to rule, he also sought orders staying the divorce proceedings
during the pendency of the mandamus action. (March 15, 2019 Mot. to Stay 19AP-98;
Apr. 26, 2019 Mot. to Stay 19AP-98.) During this same period of time, Eichenberger was
eventually located and arrested on the warrant. (Mar. 13, 2019 Capias Executed.) Records
reflect that he was arrested on March 13, 2019 and released on his own recognizance on
March 14, but he was ordered to appear the following day, March 15, 2019. (Mar. 14, 2019
Recognizance Bond.)
{¶ 12} The record does not include a transcript of the proceedings that took place on
March 15. On March 18, hearings on the various pending motions were continued for
further discussion until April 9, 2019. (Mar. 18, 2019 Continuance.)
{¶ 13} On April 1, 2019, Eichenberger again filed an affidavit seeking to disqualify
the trial judge. (April 1, 2019 Disqualification Aff.) On April 16, 2019, the Supreme Court
again declined to disqualify the trial judge. (Apr. 16, 2019 Supreme Court Entry.) The same
day, the trial court set a new hearing date of May 8, 2019 for the pending motions. (Apr. 16,
2019 Continuance.)
{¶ 14} During the hearing on May 8, Eichenberger again argued that the pendency
of his original action for mandamus removed the trial court's jurisdiction to proceed in the
divorce case. (May 8, 2019 Hearing Tr. at 5-7, 27-28.) He also withdrew all of his pending
motions and requests except for the release of the $3,500. Id. at 8-9. Irvin, proceeding pro
se on her motion to enforce, attempted to present some evidence regarding certain tax
payments relevant to the decree, but the trial court ultimately declined to accept them
because Irvin was not presenting her request for enforcement of the decree in the "right
way." Id. at 11-12, 18, 29-30. The parties also discussed retrieval of personal property from
No. 19AP-417 6
each other and Eichenberger's persistent refusal to sign a quit-claim deed to the marital
house as he had been ordered to do in the original divorce decree. Id. at 20-23. The trial
court ultimately dismissed Irvin's enforcement motion and took under advisement the
issue of reforming the divorce decree in light of our remand in Eichenberger I. Id. at 29,
35.
{¶ 15} On May 30, 2019, the trial court issued a decision and entry addressing the
assignments of error on which this Court remanded in Eichenberger I. (May 30, 2019
Decision & Entry.) First, it agreed that Social Security benefits are not subject to division
and, accordingly, assigned to each party their own Social Security benefits without
attempting to divide them. Id. at 1-2. Second, the trial court agreed that the Cardinal
Health account was marital property but, in light of high cost in time and fees of
Eichenberger's string of filings to no effect, dilatory tactics, disobedience to court orders,
and defiance of discovery demands, the trial court concluded that the totality of the
circumstances showed that it was equitable to award the full contents of that account to
Irvin. Id. at 2-3. Third, the court utilized expert testimony from the trial that the Scott's
Fidelity 401(k) account was 30.1 percent separate property and 69.9 percent marital
property in conjunction with Irvin's testimony as to the general value of her own account
($308,000.00) to determine that $92,708.00 was Irvin's separate property, that
Eichenberger's 50 percent share of the remainder was $107,646.00, and that he had
previously been awarded $50,000.00 via QDRO, entitling him to a distribution of
$57,646.00. Id. at 3-4; see also Tr. at 64, 150-51. Fourth, the trial court referred to
testimony in a March 15, 2019 hearing (which is not preserved in the appellate record) and
determined that even though Eichenberger had filed timely objections to the magistrate's
decision at issue in Eichenberger I, he did not obtain a transcript to substantiate those
objections and the trial court accordingly dismissed them. (May 30, 2019 Decision & Entry
at 4-5.) Fifth, again referencing testimony that has not been preserved in the appellate
record, the trial court ordered division of specific items of personal property. Id. at 5-6.
Sixth, again referencing testimony taken on March 15, 2019 that has not been preserved in
the appellate record, the court found that Eichenberger had made four payments of
$200.00 to Irvin and that one more payment of $200.00 was yet due. Id. at 7. It altogether
determined that an offset of $6,520.27 was appropriate to account for the payments made
No. 19AP-417 7
by Eichenberger on prior orders and his half of real estate taxes paid to Irvin after she
initially paid in full when Eichenberger had refused. Id. at 8.
{¶ 16} Eichenberger now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 17} Eichenberger presents eleven assignments of error for review:
[1.] THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED HER DISCRETION BY FAILING TO ISSUE A
CLEAN, NEW DIVORCE DECREE IN ITS ENTIRETY AS THE
REMAND DECISION.
[2.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED HER DISCRETION IN FAILING TO RULE ON
THE MAY OF 2018 REMAND OF THIS COURT FOR OVER A
YEAR, AND AS A RESULT GROSSLY VIOLATED THE DUE
PROCESS AND CONSTITUTIONAL RIGHTS OF THE
DEFENDANT.
[3.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED HER DISCRETION IN UNLAWFULLY
INCARCERATING THE DEFENDANT FROM MARCH 12,
2019 THROUGH MARCH 14, 2019 DUE TO AN ALLEGED
FAILURE TO ATTEND A CONTEMPT HEARING, WHEN
THE UNDERLYING ORDER WAS ILLEGAL AND ISSUED
ON A MOTION WHICH WAS NOT A CONTEMPT MOTION.
[4.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED HER DISCRETION BY FAILING TO ADJUST
THE PROPERTY DISTRIBUTION TO THE BENEFIT OF THE
DEFENDANT IN LIGHT OF THE MORE ADVANTAGEOUS
SOCIAL SECURITY BENEFITS OF THE PLAINTIFF.
[5.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED HER DISCRETION BY HOLDING AN ORAL
EVIDENTIARY HEARING ON MARCH 15, 2019
CONCERNING THE REMANDED ISSUE OF ONE OF THE
DEFENDANT'S OBJECTIONS IN THE CASE BASED ON
DISCOVERY ISSUE. THE UNLAWFUL FAILURE OF THE
JUDGE TO CONSIDER THE ORIGINAL MAGISTRATE'S
OBJECTION ON A PRE-TRIAL DISCOVERY ISSUE WAS, AS
A MATTER OF LAW, MOOT AFTER THE ORIGINAL ENTRY
OF DIVORCE WAS ENTERED.
[6.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED HER DISCRETION BY FAILING TO RELEASE
TO THE DEFENDANT FOR OVER A YEAR'S PERIOD OF
No. 19AP-417 8
TIME THE $3,500 IN CASH PAYMENTS MADE TO THE
CLERK OF COURT BY THE DEFENDANT AS IN LIEU OF
APPEAL BOND CONCERNING THE ORIGINAL APPEAL OF
THE DIVORCE DECREE IN THIS CASE. THE $3,500 IN
CASH PAYMENTS SHOULD HAVE BEEN RELEASED TO
THE DEFENDANT IN MAY OF 2018, AND HAS NOT BEEN
RELEASED TO DATE.
[7.] THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED HER DISCRETION IN FAILING TO PROPERLY
VALUE THE SCOTT COMPANY 401 K, BY ACCEPTING
EXPERT TESTIMONY AS TO THE VALUE OF A DEFINED
CONTRIBUTION PENSION BENEFIT AND BY FAILING TO
USE THE PROPER VALUATION TO EQUITABLY DIVIDE
THE ASSET TO THE DEFENDANT.
[8.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED HER DISCRETION IN FAILING TO
PROPERLY VALUE THE CARDINAL HEALTH 401K AND
THEN FAILED TO EQUITABLY DIVIDE THE ENTIRELY
MARITAL ASSET TO THE DEFENDANT.
[9.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED HER DISCRETION IN DEPRIVING THE
DEFENDANT OF AN EQUITABLE DISTRIBUTION OF THE
MARITAL ASSETS OF THE PARTIES. THE REDUCTION IN
PROPERTY DISTRIBUTION WHICH RESULTED WAS AN
UNLAWFUL AND ONEROUS PENALTY, VIOLATED THE
DUE PROCESS RIGHTS OF THE DEFENDANT, AND
RESULTED IN THE DEFENDANT RECEIVING LESS THAN
5% OF THE MARITAL ASSETS OF THE PARTIES.
[10.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED HER DISCRETION IN HOLDING AN ORAL
EVIDENTIARY HEARING CONCERNING THE DIVORCE
APPEAL REMAND ON MARCH 25, 2019, WITHOUT
PROPER NOTICE TO THE PARTIES, AND WITHOUT THE
LEGAL AUTHORITY TO CONDUCT SUCH AN
EVIDENTIARY HEARING AFTER REMAND WITHOUT A
NEW TRIAL ORDER FROM THIS COURT.
[11.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED HER DISCRETION BY FAILING TO RULE ON,
APPROVE, AND FILE THE PROPOSED QDRO SUBMITTED
TO THE COURT BY DEFENDANT IN HIS MOTION OF
JULY 22, 2019.
We address these in order except for the first assignment of error, which we address last.
No. 19AP-417 9
III. DISCUSSION
A. Standard of Review
{¶ 18} Although an equal division of property is appropriate as a starting place for a
trial court's analysis, a domestic relations court enjoys broad discretion in fashioning a
division of marital property, and its decision should not generally be reversed absent an
abuse of that discretion. See Cherry v. Cherry, 66 Ohio St.2d 348 (1981), paragraph two of
the syllabus; Kaechele v. Kaechele, 35 Ohio St.3d 93, 95 (1988). A reviewing court may not
substitute its judgment for that of the trial court unless, considering the totality of the
circumstances, the trial court abused its discretion. Holcomb v. Holcomb, 44 Ohio St.3d
128, 131 (1989). However, this court has frequently remarked that " 'no court has the
authority, within its discretion, to commit an error of law.' " JPMorgan Chase Bank, N.A.
v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 18, quoting State v. Akbari, 10th
Dist. No. 13AP-319, 2013-Ohio-5709, ¶ 7. Thus, we review Eichenberger's assignments of
error regarding the property division for abuse of discretion but, to the extent they bear on
questions of law, we review such legal questions de novo.
B. Second Assignment of Error – Whether the Trial Court Abused Its
Discretion in Not Entering a New Judgment that Addressed the
Remanded Issues for Approximately Two Years
{¶ 19} We issued Eichenberger I on June 29, 2017 and the trial court completed its
decision implementing our remand on May 30, 2019. (May 30, 2019 Decision & Entry.)
Eichenberger I. Eichenberger complains about the length of this period of time and about
the approximately five years it has taken for the case to "excruciatingly wind its way to this
point where the Defendant [i]s once again forced to file a second Appeal in the matter to
correct rather obvious and basic errors of the trial Judge in this case, including remaining
gross errors in property division." (Eichenberger's Brief at 31-32.) He notes that, "[t]he
trial Judge throughout the matter has obtusely and self-servingly blamed the delays in the
matter on the Defendant." Id. at 32. He calls the length of time the case has been pending
"outrageous," a "gross breach of duty," a "terrible violation of rights," and opines that it is
"ridiculous" that he had to file a mandamus action to prod the trial judge into action. Id. at
32, 34.
{¶ 20} As we have taken pains to detail above, Eichenberger has managed to delay,
and obstruct, and has obfuscated virtually every stage of this case. See supra at ¶ 3, 5-6, 8-
No. 19AP-417 10
13; see also, e.g., Eichenberger I at ¶ 5, 8-9, 16, 18-20, 22-23. In fact, in the very mandamus
action that he filed in this Court with the stated goal of forcing the trial judge to take action
in the divorce case, he twice sought to stay the divorce proceedings because of the pendency
of the mandamus case and he repeatedly made the same meritless argument during the
hearing for the very order he now appeals. (May 8, 2019 Hearing Tr. at 5-7, 27-28; Mar. 15,
2019 Mot. for Stay, 19AP-98; Apr. 26, 2019 Mot. for Stay, 19AP-98.) In other words,
Eichenberger simultaneously sought for us to order the trial court to act and sought to
prevent it from acting. Throughout the life of this case, when the trial judge indicated an
intention to act or hold a hearing, Eichenberger stalled by filing appeals, requests for
reconsideration, disqualification affidavits, or by taking other actions that served to delay,
up to and including failing to attend hearings. See supra at ¶ 3, 5-6, 8-13; Eichenberger I
at ¶ 5, 8-9, 16, 18-20, 22-23. In short, Eichenberger's own actions have by and large caused
delay in this case.
{¶ 21} We find no abuse of discretion in the trial court's delay because that delay was
occasioned almost entirely by Eichenberger's actions. Eichenberger is a former attorney
who utilized a variety of means that an ordinary pro se party is not as likely to be aware of
nor to be able to execute as successfully as Eichenberger did to interpose the delay he
complains about. We overrule Eichenberger's second assignment of error.
C. Third Assignment of Error – The Trial Court's Decision to Issue and
Execute a Warrant When Eichenberger Defied a Summons to Appear
{¶ 22} Eichenberger was arrested on a warrant when he failed to appear for a
hearing and was then released on his recognizance. See supra at ¶ 10-11. That is an
unalterable fact. He was not as a result held in contempt, and there is no judgment against
him relating to that brief term of incarceration that is appealable. Eichenberger asserts that
he, "intends to file civil litigation against both the Judge and the Plaintiff concerning his
unlawful incarceration and the gross and illegal deprivation of his freedom, but he also
wants a strong statement from this Court that the actions of the Judge and the Plaintiff
violated his Constitutional rights." (Eichenberger's Brief at 40.)
{¶ 23} This Court does not issue advisory opinions. Lund v. Portsmouth Local Air
Agency, 10th Dist. No. 14AP-60, 2014-Ohio-2741, ¶ 7. The third assignment of error is
overruled.
No. 19AP-417 11
D. Fourth Assignment of Error – Whether the Trial Court Abused its
Discretion in Failing to Adjust the Equitable Distribution of Assets in
Consideration of the Disparity in Eichenberger's and Irvin's Social
Security Benefits
{¶ 24} Eichenberger argues that the Supreme Court in Neville v. Neville "makes it
clear that a trial Court needs to consider the disparity between potential monthly Social
Security benefits between divorcing parties." (Emphasis added.) (Eichenberger's Brief at
42, citing Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624.) However, what this
Court and Neville have actually said is, "while Social Security benefits may not be divided,
'[i]n making an equitable distribution of marital property in a divorce proceeding, a trial
court may consider the parties' future Social Security benefits in relation to all marital
assets." (Emphasis added.) Eichenberger I at ¶ 41, quoting Neville at syllabus; see also
Neville at ¶ 11. Eichenberger is not entitled to a holding that the trial court must consider
the disparity between Social Security benefits in making equitable distribution of marital
property in a divorce proceeding.
{¶ 25} We find no abuse of discretion by the trial court in declining to make an
adjustment in consequence of the parties' relative Social Security positions.
{¶ 26} We overrule Eichenberger's fourth assignment of error.
E. Fifth Assignment of Error – Whether the Trial Court Abused its
Discretion in Holding a Hearing on March 15, 2019
{¶ 27} Eichenberger argues that he had insufficient notice of the hearing and that
the judge sua sponte called witnesses for the court at the hearing in a "bizarre manner to
harm the Defendant, both personally and financially." (Eichenberger's Brief at 43-48.)
Because no transcript of the March 15, 2019 hearing exists in the record, we are unable to
assess the merits of this assignment of error. Morgan v. Eads, 104 Ohio St.3d 142, 2004-
Ohio-6110, ¶ 13 ("[A] bedrock principle of appellate practice in Ohio is that an appeals court
is limited to the record of the proceedings at trial."). We therefore presume the regularity
of proceedings and overrule Eichenberger's fifth assignment of error. State ex rel. Bardwell
v. Cuyahoga Cty. Bd. of Commrs., 127 Ohio St.3d 202, 2010-Ohio-5073, ¶ 14; Knapp v.
Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980).
No. 19AP-417 12
F. Sixth Assignment of Error – Whether the $3,500 in Payments to Secure
a Stay in the First Appeal Should Have Been Released to Eichenberger
{¶ 28} Approximately contemporaneous with the filing of the appeal in
Eichenberger I, Eichenberger obtained a stay of the decree conditioned on the posting of
$43,000 bond or, in the alternative, making deposits of $500 per month with the Franklin
County Clerk of Courts beginning December 1, 2016. (Nov. 2, 2016 Stay Order.)
Eichenberger made seven payments of $500 for a total of $3,500 and stopped making
payments after our decision was released on June 29, 2017. See Docket 14DR-4674
(reflecting payments on November 29, 2016, January 18, January 30, March 8, April 6,
May 10, June 9, 2017). He now argues that the $3,500 should have been returned to him
when the appeal ended. (Eichenberger's Brief at 48-50.)
{¶ 29} "The purpose of an appeal bond is to secure the appellee's right to collect on
the judgment during the pendency of the appeal." State ex rel. Geauga Cty. Bd. of Commrs.
v. Milligan, 100 Ohio St.3d 366, 2003-Ohio-6608, ¶ 21. In addition, however, Ohio Revised
Code, section 2505.14 provides:
A supersedeas bond shall be payable to the appellee or
otherwise, as may be directed by the court, when the conflicting
interests of the parties require it, and shall be subject to the
condition that the appellant shall abide and perform the order,
judgment, or decree of the appellate court and pay all money,
costs, and damages which may be required of or awarded
against him upon the final determination of the appeal and
subject to any other conditions that the court provides. When
the final order, judgment, or decree appealed is for the
payment of money, the bond may provide that, if the final
order, judgment, or decree is not paid upon final affirmance, it
may be entered against the sureties on the bond.
In short, a supersedeas bond is posted to obtain a stay (which Eichenberger duly obtained)
but may then be used in satisfaction of any eventual judgment. R.C. 2505.14; Civ.R. 62(B).
There is no clear right to have a bond such as Eichenberger obtained returned until an
appellate remand has been executed and the final amounts due between the parties are
determined. The trial court did not rule in accord with our remand in Eichenberger I until
May 30, 2019 and, in the interim, Eichenberger has once again appealed. Thus, the $3,500
continues to be retained against the possibility that he otherwise may not meet the financial
terms of the eventual final order, judgment, or decree. It follows that it is subject to being
No. 19AP-417 13
returned to him when and if the case ends in a final judgement with no appeals pending
and no debts outstanding for which he bears the responsibility of payment.
{¶ 30} Eichenberger's sixth assignment of error is overruled.
G. Seventh Assignment of Error – Whether the Trial Court Abused its
Discretion in Accepting the Testimony of Irvin and her Expert
Accounting Witness as to the Value of the Scott's Fidelity 401(k)
Retirement Account
{¶ 31} At the original trial of this matter, Irvin testified that, due to market
fluctuations, the value of her Scott's Fidelity 401(k) was approximately $308,000.00. (Tr.
at 150-52.) Eichenberger presented nothing to dispute this figure. Irvin also presented the
testimony of an expert in the field of forensic accounting and business valuation to the effect
that 30.1 percent of the Scott's Fidelity 401(k) was her separate property (making her
separate property approximately $92,708.00). (Tr. at 24-29, 64.) Although the expert
acknowledged that the account balance as of the start of the marriage had been $34,015.21,
she traced the contributions throughout the marriage and determined that the $34,015.21
constituted approximately 30.1 percent of the total contributions to the account. (Tr. at 63-
64.) Thus, she reasoned that the account, whatever its current value (which rises and falls
with the financial markets), was 30.1 percent Irvin's separate property. Id. Although
Eichenberger cross-examined the expert, attempting to dispute her qualifications and
conclusions, he offered no expert testimony, calculation, or affirmative evidence of his own
to counter her methodology of computation or its resulting numbers. (Tr. at 110, 116-18.)
{¶ 32} Eichenberger now argues that the trial court abused its discretion in relying
on testimony of the expert to craft its remand decision. Specifically, Eichenberger asserts
that the expert's testimony was flawed because the expert could not explain how she arrived
at the percentage she did and could not explain how the premarital value of the account
"magically became thirty (30) per cent[sic]." (Eichenberger's Brief at 53-55.) Contrary to
Eichenberger's assertions, we find no abuse of discretion by the trial court in relying on the
expert's method that appears in the record to be intelligible and straightforwardly
explained. (Tr. at 63-64.)
{¶ 33} Accordingly, Eichenberger's seventh assignment of error is overruled.
No. 19AP-417 14
H. Eighth Assignment of Error – Whether the Trial Court Abused its
Discretion in Declining to Divide the Cardinal Health 401(k) Account
{¶ 34} In the divorce decree, the trial court found that the Cardinal Health 401(k)
account was Irvin's separate property. (Sept. 7, 2016 Divorce Decree at 18.) Although Irvin
(not Eichenberger) was employed at Cardinal Health, because the accumulation of the
account and Irvin's employment with Cardinal Health were both entirely during the
marriage, we reversed that finding. Eichenberger I at ¶ 62. Consistent with our decision,
on remand the trial court found that the Cardinal Health account was marital property.
(May 30, 2019 Decision & Entry at 2-3.) Yet, it nonetheless assigned the account to Irvin
as an equitable distribution in consequence of Eichenberger's significant and continuing
misconduct. Id.{¶ 35} Eichenberger now argues that the trial court erred in its remand entry when
it awarded Irvin the Cardinal Health account. (Eichenberger's Brief at 57-59.) However,
though we reversed some limited findings of the trial court in Eichenberger I, we otherwise
affirmed the decree and specifically affirmed the finding that Eichenberger had engaged in
financial misconduct. Id. at ¶ 47-48, 88. We made no order of the trial court, nor would
we under these circumstances, about how that particular marital property was to be
distributed. Cherry, 66 Ohio St.2d at paragraph two of the syllabus. A reviewing court will
not modify or reverse a property division unless it finds that the trial court abused its
discretion in dividing the property as it did. Id. at 355; Berish v. Berish, 69 Ohio St.2d 318(1982); Goode v. Goode, 70 Ohio App.3d 125, 129 (10th Dist.1991). On the facts as they
appear in the record, there is no basis for concluding that the trial court abused its
discretion in making a distributive award of the Cardinal Health account to Irvin.
{¶ 36} The trial court found Eichenberger engaged in financial misconduct, and it
was within its discretion to "compensate the offended spouse with a distributive award or
with a greater award of marital property." R.C. 3105.171(E)(4); see also, e.g., R.C.
3105.171(E)(5) (permitting punitive awards for substantial and willful failures to disclose
financial information of up to three times the value of the undisclosed property).
{¶ 37} Because we find no abuse of discretion, Eichenberger's eighth assignment of
error is overruled.
No. 19AP-417 15
I. Ninth Assignment of Error – Whether Eichenberger is Permitted in this
Second Appeal to Relitigate the Fairness of the Entire Divorce Decree
{¶ 38} Eichenberger argues that "due to alleged financial misconduct" the trial court
made a "debilitating and absurd" division that was "unfair and violated Ohio law."
(Eichenberger's Brief at 59-60, 65.) He states that the case has "languished on for such a
lengthy period of time," positing that it would be "impossible to fairly and lawfully rule" in
the case without "revisit[ing]" essentially all the findings in the original decree, including
those we affirmed on appeal in Eichenberger I. (Eichenberger's Brief at 60, 65.)
{¶ 39} Our prior 37-page appellate decision largely affirmed the court's original
divorce decree. Eichenberger I. The domestic court's finding of Eichenberger's financial
misconduct has not been disturbed by this Court nor accepted for review by the Supreme
Court. (Sept. 7, 2016 Divorce Decree at 7-10.) Eichenberger I at ¶ 47-48, 88;
Eichenberger II; May 9, 2018 Supreme Court Entry. It is a fact underpinning the law of the
case. See, e.g., Browne v. Artex Oil Co., 158 Ohio St.3d 398, 2019-Ohio-4809, ¶ 11 . Based
on our review of the record, the law of the case and what is permitted by statute, we do not
find the trial court's decisions about equitable distributions of marital property to be an
abuse of discretion. See also R.C. 3105.171(E)(4) (permitting distributive awards and
greater awards of marital property to compensate for financial misconduct); see also, e.g.,
R.C. 3105.171(E)(5) (permitting punitive awards for substantial and willful failures to
disclose financial information of up to three times the value of the undisclosed property).
{¶ 40} Eichenberger's ninth assignment of error is overruled.
J. Tenth Assignment of Error – Whether the Trial Court Erred in Taking
Additional Testimony and Evidence at Oral Hearings to Reach its
Decision on Remand
{¶ 41} Eichenberger argues that the trial court erred by exceeding the scope of our
remand in Eichenberger I, having held hearings on March 15 and May 8, 2019, at which it
considered additional evidence from the parties. (Eichenberger's Brief at 68-70.) In
Eichenberger I, we reversed and remanded so that the divorce decree would appropriately
include an exhibit showing the distribution of household personal property. Eichenberger
I at ¶ 80. Additionally, Irvin admitted at trial that Eichenberger had made some (she was
not specific as to how many) payments under an agreed order but the original divorce
decree had been written to reflect that he had not made any payments. Id. at ¶ 84-87. We
affirmed the decree in large part, reversed on those matters and other limited items, and
No. 19AP-417 16
"remanded for further proceedings consistent with [our] opinion." Id. at ¶ 88. Nothing
about our remand prevented the trial court from taking additional evidence on the matters
reversed if it determined it needed to. In fact, part of the reason the decision resulted in
remand (rather than modifying the decree according to App.R. 12(A)(1)(a)) was to permit
the trial court to gather additional facts and evidence if needed to properly account for
payments made (or not made) by Eichenberger and to determine the exact status of the
disputed personal property. We discern no error here.
{¶ 42} Eichenberger's tenth assignment of error is overruled.
K. Eleventh Assignment of Error – Whether the Trial Court Erred in
Declining to Accept an Additional QDRO Proposed by Eichenberger on
July 22, 2019
{¶ 43} Eichenberger argues that the trial judge has refused to rule on a request filed
by him on July 22, 2019, in which he sought a QDRO to enable him to extract additional
money from Irvin's retirement account. (Eichenberger's Brief at 70-73.) Specifically, he
argues, "[t]he failure and refusal of the trial Court to rule upon the Motion to Approve
QDRO filed on July 22, 2019, again demonstrates a total disregard by this particular Judge
for the financial hardships which she has inflicted upon the Defendant, and a resulting
infuriatingly condescending attitude in regard to how this Defendant is supposed to live
and exist during the plodding and torturous pendency of a five (5) year old divorce case."
Id. at 72-73.
{¶ 44} The order under appeal in this case was issued on May 30, 2019 and
Eichenberger filed this appeal on June 28, 2019. (May 30, 2019 Decision & Entry; June 28,
2019 Notice of Appeal.) When a case is appealed, interlocutory rulings in a case will merge
with the final judgment and become appealable. Lingo v. Ohio Cent. RR., 10th Dist. No.
05AP-206, 2006-Ohio-2268, ¶ 17; App.R. 4(A)(2). But by Eichenberger's admission, the
request for the QDRO was not filed with the trial court until July 22, 2019, nearly one month
after this appeal was filed. (Eichenberger's Brief at 70.) This issue is not before this Court
and we shall not rule on it.
{¶ 45} We decline to address Eichenberger's eleventh assignment of error as the
issue is not properly before us and is unripe.
No. 19AP-417 17
L. First Assignment of Error – Whether the Trial Court Abused its
Discretion by not Issuing a New Divorce Decree that Integrated its May
2019 Holdings
{¶ 46} Eichenberger argues that the trial court erred by failing to issue a clean new
divorce decree in response to our judgment entry and decision in Eichenberger I.
(Eichenberger's Brief at 28-31.) Yet, in Eichenberger I, we held that "[t]he decree of divorce
issued by the trial court is reversed in the parts indicated above and otherwise affirmed."
Eichenberger I at ¶ 88. We did not vacate the entire decree or disturb any part of it other
than as expressly indicated in that opinion. Id. The trial court was not required by our
decision and entry to fashion an entirely new decree. The trial court did not abuse its
discretion by addressing the remanded issues in a separate document with the intent that
the document serve as an amendment to the initial decree.
{¶ 47} For ease of reference, we enunciate the monetary awards and offsets and
arrive at what we perceive from this protracted litigation to be the total value the trial court
determined is owed to one side or the other. In the amendment to the divorce decree, the
trial court concluded that the value of the Scott's Fidelity 401(k) was $308,000; of which
30.1 percent (or $92,708) was Irvin's separate property. (May 30, 2019 Decision and Entry
at 3.) That left $215,292 as marital property, which the trial court determined to divide
equally between the parties ($107,646 to each). Id. at 3-4. Eichenberger already had
obtained a QDRO for $50,000, leaving $57,646 to be distributed to him. Id. at 4. We have
affirmed that holding. See supra at ¶ 31-33.
{¶ 48} In the trial court's remand order now on appeal, the trial court recognized an
offset to Eichenberger's share of assets of $6,520.27. (May 30, 2019 Decision and Entry at
8.) Eichenberger has not appealed the amount of that finding. (Eichenberger's Brief in
passim.)
{¶ 49} In portions of the original divorce decree that were left undisturbed by
Eichenberger I, the trial court ordered additional offsets against Eichenberger's share of
assets to retire the remaining balances on Discover and Slate credit cards opened and used
by Eichenberger in Irvin's name without her knowledge. (Sept. 7, 2016 Divorce Decree at
12.) These offsets were for $4,827.50 and $2,582.00. Id. The trial court ordered an
additional offset of $317.50 for Eichenberger's share of school and extracurricular expenses
No. 19AP-417 18
for the parties' daughter. Id. at 13. It further ordered $2,700.003 in attorney's fees based
on prior orders issued earlier in the case. Id. The decree imposed an offset of $3,192.00
for payments Eichenberger had been ordered to make throughout the course of the
litigation (but had never made) on the Discover and Slate cards (thus affecting then current
balances and the accumulation of interest and fees). Id.; see also July 10, 2015 Mag. Order.
The decree also imposed on Eichenberger the costs for Irvin's expert and attorney's fees at
trial, which resultant fee-shifting was affirmed by this Court in Eichenberger I at ¶ 52-55.
See also Sept. 7, 2016 Divorce Decree at 14-16. Those offset amounts were $7,900.00 and
$21,434.10, respectively. Id.
{¶ 50} Accordingly, net of offsets, Eichenberger is due a distribution from Irvin of
$8,172.63.4
{¶ 51} To clarify, all other parts of the divorce decree affirmed by this court in
Eichenberger I remain in effect, and all portions of the trial court's May 30, 2019 decision
and entry on remand to address matters we outlined for additional consideration by the
trial court, exist as an amendment to the original decree. Thus, for example, as set forth in
the original decree and not disturbed by Eichenberger I, Eichenberger is not entitled to any
portion of the house on Pegasus Court and will sign the quit-claim deed as directed by the
trial court and affirmed by this Court. Compare Sept. 7, 2016 Divorce Decree at 10
(ordering Eichenberger to sign a quit-claim deed to release his rights to the Pegasus Court
house) with Eichenberger I at ¶ 59 (affirming the decree's award of Eichenberger's dower
interest in the house to Irvin) with May 8, 2019 Hearing Tr. at 22-23 (Eichenberger refusing
to sign the quit-claim deed on the grounds that he intended to reargue that matter before
this Court).
{¶ 52} We overrule Eichenberger's first assignment of error.
IV. CONCLUSION
{¶ 53} We overrule or decline to address each of Eichenberger's eleven assignments
of error and affirm the May 30, 2019 decision and entry of the trial court amending its
September 7, 2016 divorce decree. Net of offsets, Eichenberger is due a distribution from
3 The attorney's fees awards were $1,200 and $1,500 respectively but the trial court, in what seems to have
been a mere clerical error, listed them collectively as totaling $3,700. (Sept. 7, 2016 Divorce Decree at 13;
Oct. 26, 2015 Mag. Order on Fees; Feb. 17, 2016 Decision & Entry at 3-5.)
4 $308,000.00 × 69.9% ÷ 2 - $50,000.00 - $6,520.27 - $4,827.50 - $2,582.00 - $317.50 - $2,700.00 -
$3,192.00 - $7,900.00 - $21,434.10 = $8,172.63
No. 19AP-417 19
Irvin of $8,172.63. Eichenberger's $3,500.00 bond payment shall be returned when and if
the case ends in a final judgment with no appeals pending and no debts outstanding for
which he bears the responsibility of payment. All parts of the decree not specifically
overruled in Eichenberger I remain in force and the amendments to the decree are affirmed
in full.
Judgment affirmed.
BROWN and BEATTY BLUNT, JJ., concur.