Tretola v. Tretola , 2014 Ohio 5484 ( 2014 )

[Cite as Tretola v. Tretola, 2014-Ohio-5484.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
REBECCA L. TRETOLA,
PLAINTIFF-APPELLEE, CASE NO. 8-14-12
v.
ROBERT J. TRETOLA, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Family Court – Domestic Relations Division
Trial Court No. DR 12-09-0150
Judgment Affirmed
Date of Decision: December 15, 2014
APPEARANCES:
Robert J. Tretola, Appellant
Sheila E. Minnich for Appellee
Case No. 8-14-12
PRESTON, J.
{¶1} Defendant-appellant, Robert J. Tretola (“Robert”), pro se, appeals the
May 27, 2013 judgment entry of the Logan County Court of Common Pleas,
Family Court-Domestic Relations Division, granting the plaintiff-appellee,
Rebecca L. Tretola (“Rebecca”) divorce from Robert. For the reasons that follow,
we affirm.
{¶2} The facts relevant to this appeal are as follows. Robert and Rebecca
were married on June 9, 1995. (Doc. No. 1). Rebecca filed a complaint for
divorce on September 17, 2012. (Id.). No children were born as issue of this
marriage. (Id.).
{¶3} At the same time Rebecca filed her complaint for divorce, she filed
three motions requesting that the trial court issue three ex parte orders: ordering
Robert to designate her as the sole beneficiary on his life-insurance policy with
Lincoln National because Robert changed the beneficiary to his daughter on
September 7, 2012; preventing Robert from withdrawing money from the “6058”1
Scottrade account; and ordering Robert to return coins valued between $15,000
and $20,000 that he removed from the marital home on or around September 7,
2012. (Doc. Nos. 7, 8, 9). Rebecca also filed motions requesting that the trial
1
The record reflects that the couple maintained three Scottrade accounts—accounts “6057,” “6058,” and
“6059.” (Oct. 30, 2013 Tr. at 106-107). The “6057” account was in Rebecca’s name, the “6059” account
was in both Robert’s and Rebecca’s names, and Rebecca and Robert contributed money to the “6058”
account, which was in Robert’s name. (Id. at 107, 111-112).
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court issue a temporary restraining order against Robert and for Robert to pay
temporary spousal support to Rebecca. (Doc. Nos. 10, 11).
{¶4} That same day, the trial court issued the three ex parte orders
requested by Rebecca. (Sept. 17, 2012 JE, Doc. Nos. 15, 16, 17). The trial court
issued temporary restraining orders against Robert and Rebecca on November 5,
2012. (Nov. 5, 2012 JE, Doc. No. 28).2
{¶5} On December 4, 2012, Robert filed a motion for leave to file his
answer, filed his answer, and filed his counterclaim. (Doc. Nos. 32, 33, 36). The
trial court granted Robert’s motion for leave to file his answer on December 7,
2012. (Dec. 7, 2012 JE, Doc. No. 37). Rebecca filed her answer to Robert’s
counterclaim on January 2, 2013. (Doc. No. 43).
{¶6} On December 28, 2012, Robert filed a motion requesting that the trial
court partially release him from the restraining order and permit him to withdraw
monies from the “6058” Scottrade account for living expenses. (Doc. No. 42).
{¶7} On January 28, 2013, Rebecca filed a motion for an ex parte order
permitting her to remove household goods from the marital home to allow her to
relocate from the marital home. (Doc. No. 53). The trial court issued an ex parte
order that same day granting Rebecca’s request to remove household goods from
the marital home. (Jan. 28, 2013 JE, Doc. No. 54). Robert filed a motion
2
The record reflects that Robert filed a motion requesting a temporary restraining order on November 19,
2012. (Doc. No. 29).
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objecting to Rebecca’s request to remove household goods from the marital home
on February 4, 2013. (Doc. No. 57).
{¶8} After a hearing on February 6, 2013, the magistrate issued his
temporary orders. (Feb. 25, 2013 JE, Doc. No. 61). The magistrate’s temporary
orders ordered Robert to pay Rebecca temporary spousal support in a lump sum of
$20,000 within 30 days of the order, to pay for all of Rebecca’s medical expenses,
and to pay for all debts and obligations associated with the marital home. (Id.).
The magistrate’s temporary orders permitted Robert to withdraw $40,000 from the
“6058” Scottrade account and ordered him to pay $20,000 of that $40,000 to
Rebecca to satisfy the temporary spousal support that the magistrate ordered him
to pay her. (Id.). The temporary orders also ordered Robert to submit
documentation to the trial court that he complied with the court’s ex parte order
requiring him to name Rebecca as the sole beneficiary on his Lincoln National
life-insurance policy. (Id.).
{¶9} On February 11, 2013, Robert filed “Defendant’s Support and
Clarification of Positions at Conference/Hearing on ‘Temporary Orders.’” (Doc.
No. 58). On February 19, 2013, Robert filed a motion requesting Rebecca and her
attorney pay late fees associated with the mortgage and property taxes of the
marital property. (Doc. Nos. 59, 60). On February 28, 2013, Robert filed a
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motion requesting a change in venue. (Doc. No. 66). On March 1, 2013, Robert
filed his objections to the magistrate’s temporary orders. (Doc. No. 67).
{¶10} On April 9, 2013, Rebecca filed a response to Robert’s objections.
(Doc. No. 68). Also on April 9, 2013, Rebecca filed a motion requesting that the
trial court issue an ex parte order that the marital home be listed for sale. (Doc.
No. 70).
{¶11} On April 12, 2013, Robert filed “Defendant’s Reply to Plaintiff’s
Complaint that Defendant is in Contempt of Court” and admitted that he did not
comply with the magistrate’s temporary orders because he did not agree with
them. (Doc. No. 71).3 On April 15, 2013, Robert filed an objection to Rebecca’s
motion requesting that the trial court order that the marital home to be listed for
sale. (Doc. No. 72).
{¶12} Also on April 15, 2013, Rebecca filed a motion to dismiss Robert’s
objections to the magistrate’s orders. (Doc. No. 70).
{¶13} On May 29, 2013, Robert filed a “Pre-Trial Motion for ‘Summary
Judgment on the Issue of Plaintiff’s Submitting Two (2) False Affidavits’ in
Support of Plaintiff’s ‘Motion to Restrain Defendants [sic] Retirement Account.’”
(Doc. No. 77).
3
The record does not reflect that Rebecca filed a complaint alleging that Robert was in contempt of court
for failing to comply with the magistrate’s temporary orders. Instead, the record reflects that Rebecca
intended to file a contempt motion after the trial court ruled on Robert’s objections to the magistrate’s
temporary orders. (See Aug. 2, 2013 Tr. at 27).
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{¶14} On June 24, 2013, the trial court concluded that a conflict of interest
existed for all Logan County judges based on complaints filed by Robert against
the trial court in state and federal court, and the case was assigned to a visiting
judge. (June 24, 2013 JE, Doc. No. 79).
{¶15} On June 27, 2013, Rebecca filed a second motion requesting that the
trial court issue an ex parte order ordering that the marital home be listed for sale.
(Doc. No. 83). Also on June 27, 2013, Rebecca filed a motion requesting that the
trial court issue an ex parte order allowing her to withdraw $20,000 from her life
insurance policy because Robert refused to comply with the magistrate’s
temporary orders requiring him to pay her spousal support. (Doc. No. 84).
{¶16} On July 3, 2013, Robert filed a “Motion for Summary Judgment or
Final Divorce Decree.” (Doc. No. 85). Also on July 3, 2013, Robert filed a
response to Rebecca’s motions requesting ex parte orders and a motion to sanction
Rebecca and her attorney. (Doc. No. 86).
{¶17} The trial court denied Rebecca’s requests for ex parte orders and,
instead, scheduled the issues for a hearing. (July 9, 2013 JE, Doc. No. 90).
{¶18} On July 19, 2013, Robert filed a motion requesting that the trial court
release the “6058” Scottrade account from the restraining order. (Doc. No. 92).
{¶19} After a hearing on August 1, 2013, the trial court: overruled
Robert’s objections to the magistrate’s temporary orders; ordered Robert to pay
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$30,000 to Rebecca from the “6058” Scottrade account within seven days of the
judgment entry; granted Robert the authority to remove $30,000 from the “6058”
Scottrade account for living expenses, inclusive of any monies he already removed
from that account; ordered Robert to submit documentation to the trial court of his
compliance with the judgment entry and to submit documentation of any monies
withdrawn from the “6058” Scottrade account. (Aug. 8, 2013 JE, Doc. No. 97).
{¶20} On August 13, 2013, Robert filed an objection to the trial court’s
August 8, 2013 judgment entry. (Doc. No. 100). On August 16, 2013, Robert
filed an appeal with this court. (Doc. No. 102). On September 3, 2013, this court
dismissed Robert’s appeal for lack of a final, appealable order. (Sept. 3, 2013 JE,
Doc. No. 108).
{¶21} On August 27, 2013, Rebecca filed a motion requesting that Robert
be held in contempt of court for failing to comply with the trial court’s August 8,
2013 judgment entry and prior orders of the trial court. (Doc. No. 105). On
August 30, 2013, Robert filed a response to Rebecca’s motion requesting that he
be held in contempt of court, alleging that he could not comply with the trial
court’s order because “Scottrade will not release the money ordered by the court.”
(Doc. No. 107).
{¶22} On September 18, 2013, Robert filed a motion requesting that the
trial court order Scottrade to release the monies the trial court previously
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authorized him to withdraw. (Doc. No. 109). On October 15, 2013, Robert filed a
motion requesting that the trial court permit him to withdraw additional monies
from the “6058” Scottrade account for living expenses and expert-witness fees.
(Doc. No. 113). On October 30, 2013, a trial to the court was held. (Oct. 30, 2013
Tr. at 1).
{¶23} On November 1, 2013, Robert filed a notice of appeal with this court.
(Doc. No. 126). On November 15, 2013, this court dismissed Robert’s appeal
because he failed to attach the final order he sought to have reviewed on appeal
and because the record did not reflect that the trial court recently filed a final order
or any order subject to appeal. (Nov. 15, 2013 JE, Doc. No. 131).
{¶24} On January 31, 2014, Rebecca filed a motion requesting that the trial
court release $10,000 from the “6058” Scottrade account for the upkeep and
preservation of the marital home during the pendency of this case. (Doc. No.
136). On February 10, 2014, Robert filed a memorandum in opposition to
Rebecca’s motion. (Doc. No. 141).
{¶25} On February 13, 2014, the trial court issued an opinion and findings
and ordered Rebecca’s counsel to “prepare an appropriate entry in conformity with
[its] findings.” (Feb. 13, 2014 JE, Doc. No. 142). On February 21, 2014, Robert
filed an objection to the trial court’s February 13, 2014 opinion and findings.
(Doc. No. 147). That same day, Robert also filed “Defendants [sic] Testimony
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Regarding Missing Time From Court Tape Recorder Required by the Court” and a
“Motion to Have the Tape Recording of the Divorce Trial Held on October 30
2013 to be Forensically Examined to Verify its Contents.” (Doc. Nos. 148, 149).
On February 24, 2014, Robert filed a correction and amendment to his objection to
the trial court’s February 13, 2014 opinion and findings. (Doc. No. 151).
{¶26} On February 27, 2014, Robert filed his notice of appeal of the trial
court’s February 13, 2014 opinion and findings. (Doc. No. 152). On March 26,
2014, this court dismissed Robert’s appeal for lack of a final, appealable order
since the trial court’s February 13, 2014 opinion and findings made only findings
regarding how the parties’ claims should be resolved. (Mar. 26, 2014 JE, Doc.
No. 156).
{¶27} On April 3, 2014, the trial court authorized Rebecca to receive
$21,759.48 from the “6058” Scottrade account to pay for expenses related to the
marital home. (Apr. 3, 2014 JE, Doc. No. 159).
{¶28} On May 27, 2014, the trial court issued a final divorce decree. (May
27, 2014 JE, Doc. No. 164).
{¶29} On May 30, 2014, Robert filed his notice of appeal and a motion to
stay the trial court’s final order pending appeal. (Doc. Nos. 172, 175). The trial
court denied Robert’s motion to stay on July 3, 2014. (July 3, 2014 JE, Doc. No.
179). Robert raises eighteen assignments of error for our review. We elect to
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address some of Robert’s assignments of error out of the order presented in his
brief, combining them where appropriate.
Assignment of Error No. I
The trial court erred by conducting the proceedings with
extreme prejudice toward Defendant/Appellant.
{¶30} In his first assignment of error, Robert argues that the trial court
demonstrated an obvious bias against him as a pro se litigant. Specifically, Robert
argues that the trial court caused his February 27, 2014 appeal to be dismissed,
improperly took judicial notice of cases with the intent to punish him, refused to
accept his expert witness, caused the loss of his expert witness’s testimony from
the record, refused to admit his financial exhibit, failed to require Rebecca to abide
by deadlines, refused to hear his motion to receive money for expenses, and
refused his request for a stay of execution.
{¶31} This court does not have jurisdiction to vacate a trial court’s
judgment based on a claim of judicial bias. Beer v. Griffith, 54 Ohio St.2d 440,
441-42 (1978). See also Fernandez v. Ohio State Pain Control Ctr., 10th Dist.
Franklin No. 03AP-1018, 2004-Ohio-6713, ¶ 24-25 (finding that the plaintiff’s
argument that the trial court’s decisions were erroneous based on bias or prejudice
were not properly before the court even though it was unclear whether the plaintiff
was arguing that the trial judge should have disqualified himself). In Beer, “the
Ohio Supreme Court explicitly and unequivocally stated that, since only the Chief
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Justice or his designee may hear disqualification matters, the Court of Appeals is
without authority to pass upon disqualification or to void the judgment of the trial
court on the basis of judicial bias.” Holloway v. Holloway Sportswear, Inc., 3d
Dist. Shelby Nos. 17-98-20 and 17-2000-18, 2001 WL 633792, *4 (June 7, 2001),
citing Beer at 441-442.
{¶32} Even if this court had jurisdiction to consider this assignment of
error, Robert’s arguments are without merit. “‘A judge is presumed not to be
biased or prejudiced, and a party alleging bias or prejudice must present evidence
to overcome the presumption.” Cline v. Mtge. Electronic Registration Sys., Inc.,
10th Dist. Franklin No. 13AP-240, 2013-Ohio-5706, ¶ 33, quoting Wardeh v.
Altabchi, 158 Ohio App.3d 325, 2004-Ohio-4423, ¶ 20 (10th Dist.), citing In re
Disqualification of Kilpatrick, 47 Ohio St.3d 605, 606 (1989) and Eller v. Wendy’s
Internatl, Inc., 142 Ohio App.3d 321, 340 (10th Dist.2000). “‘The existence of
prejudice or bias against a party is a matter that is particularly within the
knowledge and reflection of each individual judge and is difficult to question
unless the judge specifically verbalizes personal bias or prejudice toward a party.’”
Id. at ¶ 33, quoting Wardeh at ¶ 20. “A judge’s rulings of law are legal issues,
subject to appeal, and are not by themselves evidence of bias or prejudice.” Id.,
citing Okocha v. Fehrenbacker, 101 Ohio App.3d 309, 322 (8th Dist.1995).
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{¶33} There is no evidence of bias or prejudice by the trial court against
Robert, and his unsubstantiated accusations of improper conduct are insufficient to
overcome the presumption of judicial integrity. See id., citing Cooke v. United
Dairy Farmers, Inc., 10th Dist. Franklin No. 05AP-1307, 2006-Ohio-4365, ¶ 46.
In fact, based on Robert’s instigation of lawsuits against the trial court, the trial
court concluded that a conflict of interest existed for all Logan County judges.
(June 24, 2013 JE, Doc. No. 79). As a result, a visiting judge was assigned to
preside over the remainder of the proceedings to avoid the appearance of any
impropriety. (Id.).
{¶34} Robert’s first assignment of error is dismissed.
Assignment of Error No. III
The trial court erred by not adopting or rejecting the
Magistrate’s temporary orders from hearing on February 6
2013[.]
Assignment of Error No. XIII
The trial court erred by awarding an additional $ 20000 [sic]
dollars to Plaintiff for no apparent reason in addition to spousal
support.
{¶35} In support of these assignments of error, Robert failed to cite any
authority, failed to cite to the record, and failed to make any argument in support
of his claims. “[A]n appellate court may disregard an assignment of error pursuant
to App.R. 12(A)(2): ‘if the party raising it fails to identify in the record the error
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on which the assignment of error is based or fails to argue the assignment
separately in the brief, as required under App.R. 16(A).’” Rodriguez v. Rodriguez,
8th Dist. Cuyahoga No. 91412, 2009-Ohio-3456, ¶ 4, quoting App.R. 12(A);
Hawley v. Ritley, 35 Ohio St.3d 157, 159 (1988).
{¶36} App.R. 16(A)(7) requires that Robert 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 the authorities, statutes, and parts of the record on
which appellant relies. The argument may be preceded by a summary.”
{¶37} “‘It is not the duty of an appellate court to search the record for
evidence to support an appellant’s argument as to any alleged error.’” Rodriguez
at ¶ 7, quoting State v. McGuire, 12th Dist. Preble No. CA95-01-001, 1996 WL
174609, *14 (Apr. 15, 1996). “An appellate court is not a performing bear,
required to dance to each and every tune played on an appeal.” Id., citing State v.
Watson, 126 Ohio App.3d 316, 321 (12th Dist.1998) and McGuire at *14.
{¶38} “Pro se civil litigants ‘are bound by the same rules and procedures as
those litigants who retain counsel. They are not to be accorded greater rights and
must accept their own mistakes and errors.’” State ex rel. Hines v. Holland, 3d
Dist. Allen No. 1-95-62, 1996 WL 16869, *1 (Jan. 19, 1996), quoting Meyers v.
First Natl. Bank of Cincinnati, 3 Ohio App.3d 209, 210 (1st Dist.1981).
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{¶39} Because Robert failed to cite any legal authority or to the record in
support of his arguments and failed to separately argue these assignments of error,
we decline to review his third and thirteenth assignments of error.
Assignment of Error No. II
The trial court erred by denying Defendant his due process.
{¶40} In his second assignment of error, Robert initially contends that the
trial court did not provide him due process of law by issuing a temporary
restraining order against him. However, Robert did not assert this argument
before the trial court. “[A] party waives the right to appeal an issue that it could
have raised, but did not, in earlier proceedings.” During v. Quoico, 10th Dist.
Franklin No. 11AP-735, 2012-Ohio-2990, ¶ 36 (concluding that because Quoico
failed to assert her due-process argument before the trial court, she waived her
argument on appeal), citing Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486,
2009-Ohio-3626, ¶ 34 and Trish’s Café & Catering, Inc. v. Ohio Dept. of Health,
195 Ohio App.3d 612, 2011-Ohio-3304, ¶ 19 (10th Dist.). See also Erwin v.
Erwin, 3d Dist. Marion No. 9-08-15, 2009-Ohio-407, ¶ 17, 20, citing State ex rel.
Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278 (1993), citing State ex rel.
Gibson v. Indus. Comm., 39 Ohio St.3d 319 (1988). Because Robert failed to
assert his due-process argument before the trial court, he waived his argument on
appeal. As such, we decline to address it. During at ¶ 36; Erwin at ¶ 18.
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{¶41} Robert also argues in his second assignment of error that he “was
prevented from conducting impeachment testimony on the false affidavits
submitted by [Rebecca].” Robert’s argument is erroneous since the record shows
that the trial court permitted Robert to question Rebecca about the affidavits for
impeachment purposes. (See Oct. 30, 2013 Tr. at 148-153, 163-166). In fact, the
trial court assisted Robert in asking questions of Rebecca to elicit the
impeachment testimony regarding the affidavits he was seeking. (See id. at 163-
164). Therefore, we reject Robert’s argument.
{¶42} Robert further avers in this assignment of error that his restraining
order against Rebecca was rendered useless when the trial court granted Rebecca’s
ex parte motion to remove items from the marital home and that Rebecca
improperly submitted ex parte motions. Robert did not provide an argument
relative to either assertion, and we decline to make one for him. State v. Fisher,
3d Dist. Hardin No. 6-13-03, 2014-Ohio-436, ¶ 7, citing App.R. 12(A)(2) and
App.R. 16(A)(7).
{¶43} Robert’s second assignment of error is overruled.
Assignment of Error No. IV
The trial court erred by awarding to Plaintiff that [sic] the real
estate on which the marital home was constructed was [sic]
gifted to Plaintiff/Appellee without documentation or evidence to
support such claim.
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Assignment of Error No. V
The trial court erred in allowing landscaping cost to be granted
as a gift to Plaintiff without documentation or evidence to
support such claim.
Assignment of Error No. VI
He [sic] trial court erred by allowing the appraised value of the 3
motor vehicles of the parties to be conducted by Plaintiff herself
and not a certified appraiser.
Assignment of Error No. VII
Trial court erred by not considering Defendant’s testimony and
documentation that he had his life insurance policy 5 years prior
to the marriage’s beginning.
Assignment of Error No. IX
The trial court erred by dismissing open testimony and
evidentiary proof that Defendant/Appellant had at least $225000
[sic] dollars in his retirement plan prior to the marriage.
Assignment of Error No. XVII
The trial court erred by demonstrating un-equivocally an abuse
of discretion and complete disregard for the facts and the law.
{¶44} In his fourth, fifth, sixth, seventh, ninth, and seventeenth assignments
of error, Robert avers that the trial court erred in its determination of marital and
separate assets and its distribution of those assets.
{¶45} In determining the equitable distribution of assets in a divorce
proceeding, the trial court engages in a two-step process—first, the trial court must
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determine whether property is marital or separate property, and, second, the trial
court must equitably allocate the marital and separate property. Schalk v. Schalk,
3d Dist. Seneca No. 13-07-13, 2008-Ohio-829, ¶ 6, citing Gibson v. Gibson, 3d
Dist. Marion No. 9-07-06, 2007-Ohio-6965, ¶ 29, citing R.C. 3105.171(B), (D).
Property acquired during a marriage is presumed to be marital property unless it
can be shown to be separate. Barkley v. Barkley, 119 Ohio App.3d 155, 160 (4th
Dist.1997). 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. Schalk at ¶ 6, citing Gibson at ¶ 30.
{¶46} This court reviews a trial court’s classification of property as marital
or separate property under a manifest-weight-of-the-evidence standard. Id.Accordingly, we will not reverse the trial court’s judgment if the decision is
supported by some competent, credible evidence. Eggeman v. Eggeman, 3d Dist.
Auglaize No. 2-04-06, 2004-Ohio-6050, ¶ 14, citing DeWitt v. DeWitt, 3d Dist.
Marion No. 9-02-42, 2003-Ohio-851, ¶ 10 (“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.”). In determining whether competent,
credible evidence exists, “[a] reviewing court should be guided by a presumption
that the findings of a trial court are correct, since the trial judge is best able to view
the witnesses and observe their demeanor, gestures, and voice inflections, and use
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those observations in weighing the credibility of the testimony.” Barkley at 159,
citing In re Jane Doe I, 57 Ohio St.3d 135 (1991).
{¶47} Once the characterization has been made, “the court should normally
award each spouse his or her separate property and then distribute the marital
estate equally unless an equal division would be inequitable.” Id., citing R.C.
3105.171(C), (D). See also R.C. 3105.171(B). Trial courts have “broad discretion
to determine what property division is equitable in a divorce proceeding.” Cherry
v. Cherry, 66 Ohio St.2d 348 (1981), paragraph two of the syllabus. A trial court’s
decision allocating marital property will not be reversed absent an abuse of
discretion. Jackson v. Jackson, 3d Dist. Paulding No. 11-07-11, 2008-Ohio-1482,
¶ 15, citing Holcomb v. Holcomb, 44 Ohio St.3d 128 (1989). An abuse of
discretion suggests the trial court’s decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). A
reviewing court may not simply substitute its judgment for that of the trial court.
Id.{¶48} In his fourth and fifth assignments of error, Robert argues that the
trial court erred in determining that the the value of land on which the marital
home was built and the value of its landscaping was separate property and in
distributing it to Rebecca. We disagree. A review of the record indicates that the
trial court’s determination that the land on which the marital home was built and
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the value of the landscaping was separate property is supported by some
competent, credible evidence. Rebecca testified that her mother gifted to her the
land on which the marital home was built in July 2008. (Oct. 30, 2013 Tr. at 85,
87). Rebecca admitted into evidence a general warranty deed showing that her
mother conveyed the land to only her. (See Plaintiff’s Ex. 20). Rebecca also
testified that her mother gifted her $20,000 “a couple of years ago” and that she
put “a little over $13,000” of it towards landscaping for the marital home. (Id. at
85-86, 87).
{¶49} In addition, Ann Thornberg (“Thornberg”), Rebecca’s sister, testified
that their mother provided her a similar land gift—that is, an acre and a half of
land—and her mother gifted all of her children $20,000 “2 years ago when she
sold her house.” (Id. at 63-64). Thornberg also testified that Rebecca told her that
she was going to use her $20,000 gift from their mother for landscaping. (Id. at
64).
{¶50} Accordingly, Rebecca met her burden of proving by a preponderance
of the evidence that the land and value of the landscaping was separate property,
and the trial court’s conclusion that those items were Rebecca’s separate property
is supported by some competent, credible evidence. See Barkley, 119 Ohio
App.3d at 159. Therefore, the trial court did not abuse its discretion in allocating
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the value of the land and the value of the landscaping to Rebecca. See R.C.
3105.171(D).
{¶51} In his sixth assignment of error, Robert argues that the trial court
erred by basing the value of the marital automobiles on Rebecca’s appraisals.
However, a review of the record reflects that Robert did not object to the
introduction of the appraisals provided by Rebecca, nor did he offer appraisals of
his own. (See Oct. 30, 2013 Tr. at 90-92, 170). The failure to timely object to the
admission of evidence waives all but plain error on review. Am. Builders &
Contrs. Supply Co., Inc. v. Frank’s Roofing, Inc., 3d Dist. Marion No. 9-11-41,
2012-Ohio-4661, ¶ 17; Evid.R. 13(A)(1), (D). “‘In appeals of civil cases, the plain
error doctrine is not favored and may be applied only in the extremely rare case
involving exceptional circumstances where error, to which no objection was made
at the trial court, seriously affects the basic fairness, integrity, or public reputation
of the judicial process, thereby challenging the legitimacy of the underlying
judicial process itself.’” Id., quoting Goldfuss v. Davidson, 79 Ohio St.3d 116(1997), syllabus.
{¶52} The circumstances of this case are not exceptional and do not give
rise to plain error. Robert only cross-examined Rebecca on the appraisals she
offered into evidence and did not offer his own appraisals into evidence. (Oct. 30,
2013 Tr. at 166-168, 210). (See also Defendant’s Exs. I, J, K). Thus, Robert
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failed to demonstrate that the trial court committed plain error by basing the value
of the marital vehicles on Rebecca’s appraisals.
{¶53} Without providing any substantive argument, Robert simply avers in
his seventh and ninth assignments of error that the trial court erred by classifying
portions of his life insurance policy and retirement plan as marital property.
Because Robert was seeking to establish that portions of his life insurance policy
and retirement plans were separate property, he bore the burden of proving by a
preponderance of the evidence that those portions were separate property. See
Schalk, 2008-Ohio-829, at ¶ 6.
{¶54} Once again, Robert failed to point us to any evidence in the record
supporting that he met his burden of proving that portions of his life insurance
policy and retirement plan should be considered separate property. In his
case-in-chief, Robert testified that he purchased the life insurance policy in 1988
and made Rebecca the beneficiary in 1997 or 1998. (Oct. 30, 2013 Tr. at 175).
He testified that he thought the principle value of the life insurance policy was
$10,500.4 (Id.). Robert did not provide any testimony regarding any portion of his
retirement plan being separate property; rather, he stated, “My retirement program,
my… I will let me [sic] expert witness go into the details on that. Okay.” (Id.).
4
In his brief, Robert avers that the value of his life insurance policy that should have been deemed to be
separate property was $9,400. (See Appellant’s Brief at 4).
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{¶55} Robert did not submit any documents to establish, or support his
testimony, that portions of his life insurance policy and his retirement plan should
be deemed separate property. See Schalk at ¶ 12. (See also Oct. 30, 2013 Tr. at
210); (Defendant’s Exs. I, J, K). Indeed, the evidence he offered relating to his
life insurance policy depicts its value only during the marriage. (See Defendant’s
Ex. J). In his “Final Pre-Trial Statement,” Robert included, as Exhibit H,
“Tracings of Retirement Plan and House Mortgage.” (Doc. No. 118). However,
Robert did not provide the exhibit; instead, he stated, “This is part of over 300
pages of related documents that Defendant will submit to the Court if necessary.”
(Id.). Robert did not submit those documents to the trial court. In fact, the trial
court stated in its opinion and findings, “As to [Robert’s retirement] account,
[Robert] attempted to demonstrate that it was his separate property. He was
unable to do so, although the Court offered him additional time to obtain necessary
documents. He likewise declined the Court’s offer to permit a proffer of the
evidence.” (Feb. 13, 2014 JE, Doc. No. 142). Likewise, Robert did not object to
the submission of Rebecca’s exhibits reflecting the value of the life insurance
policies she requested the trial court to consider as marital property. (Oct. 30,
2013 Tr. at 170-171, 210); (Plaintiff’s Exs. 13, 14).
{¶56} Since Robert provided no evidence as to the premarital value of his
life insurance policy and retirement plan, it was impossible to determine what
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portion, if any, of the life insurance policy and retirement plan should be deemed
separate property. See Schalk at ¶ 17. Therefore, Robert did not meet his burden
of tracing the portions of his life insurance policy and retirement plan that he
sought to be deemed separate property. See id. at ¶ 18. As such, the trial court’s
determination that Robert’s life insurance policy and retirement plan were marital
property is supported by some competent, credible evidence.
{¶57} In Robert’s seventeenth assignment of error, he contends that the trial
court’s allocation of marital property is unsupported by facts and is contrary to
law. However, in this assignment of error Robert does not cite any specific
allocation of a marital asset or any legal support for why he contends its division
was contrary to law. Thus, we decline to further address this assignment of error.
App.R. 12(A); App.R. 16(A)(7).
{¶58} For these reasons, Robert’s fourth, fifth, sixth, seventh, ninth, and
seventeenth assignments of error are overruled.
Assignment of Error No. XII
Trial court erred by finding Defendant in contempt not only as
un-justified but based on the Magistrate’s order which was
never acted upon by the court.
Assignment of Error No. XV
Trial court erred by awarding attorney’s [sic] based on the
Judges allegations not supported in the final order nor
supported by the record.
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{¶59} In his twelfth assignment of error, Robert contends that the trial court
erred by finding him in contempt of court. In his fifteenth assignment of error,
Robert argues that the trial court erred in ordering him to pay Rebecca’s attorney’s
fees.
{¶60} A trial court has inherent authority to enforce its prior orders through
contempt. Dozer v. Dozer, 88 Ohio App.3d 296, 302 (4th Dist.1993). See also
R.C. 2705.02(A). “Under Ohio law, contempt of court consists of two elements.”
Cichanowicz v. Cichanowicz, 3d Dist. Crawford No. 3-13-05, 2013-Ohio-5657, ¶
88, citing Frey v. Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, ¶ 17 (3d Dist.),
citing Cooper v. Cooper, 14 Ohio App.3d 327, 328-329 (8th Dist.1984). “‘The
first is a finding of contempt of court and the second is the imposition of a penalty
or sanction, such as a jail sentence or fine.’” Id., quoting Frey at ¶ 17, quoting
Cooper at 328-329.
{¶61} “A finding of civil contempt requires clear and convincing evidence
that the alleged contemnor has failed to comply with the court’s prior orders.”
Moraine v. Steger Motors, Inc., 111 Ohio App.3d 265, 268 (2d Dist.1996), citing
ConTex, Inc. v. Consolidated Technologies, Inc., 40 Ohio App.3d 94, 95 (1st
Dist.1988). “‘Clear and convincing evidence’ has been defined as ‘that measure
or degree of proof which is more than a mere preponderance of the evidence, but
not to the extent of such certainty as is required beyond a reasonable doubt in
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criminal cases, and which will produce in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.’” Ohio State Bar
Assn. v. Reid, 85 Ohio St.3d 327, 331 (1999), quoting Cross v. Ledford, 161 Ohio
St. 469 (1954), paragraph three of the syllabus.
{¶62} This court will not reverse a finding of contempt absent an abuse of
discretion by the trial court. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11
(1981); Dozer at 302. Similarly, an appellate court reviews the punishment
imposed for contempt under an abuse-of-discretion standard. Wilson v. Jones, 3d
Dist. Seneca No. 13-13-06, 2013-Ohio-4368, ¶ 32, citing Whitman v. Whitman, 3d
Dist. Hancock No. 5-11-20, 2012-Ohio-405, ¶ 52.
{¶63} The trial court did not abuse its discretion in finding Robert in
contempt of court because there was clear and convincing evidence that Robert
disobeyed a prior order of the court. Yet, Robert argues that he was not required
to comply with the magistrate’s temporary orders because the orders were not
adopted by the trial court. Robert is mistaken.
{¶64} Objections to a magistrate’s decision must meet the requirements set
forth in Civ.R. 53(D)(3)(b). Tewalt v. Peacock, 3d Dist. Shelby Nos. 2010-CA-40
and 2010-CA-41, 2011-Ohio-1726, ¶ 20. Under Civ.R. 53(D)(3)(b)(iii), a party
objecting to a magistrate’s decision must file transcripts of all the evidence
presented to the magistrate. Id. at ¶ 21.
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An objection to a factual finding * * * shall be supported by a
transcript of all the evidence submitted to the magistrate relevant to
that finding or an affidavit of that evidence if a transcript is not
available. * * * The objecting party shall file the transcript or
affidavit with the court within thirty days after filing objections
unless the court extends the time in writing for preparation of the
transcript or other good cause. If a party files timely objections prior
to the date on which a transcript is prepared, the party may seek
leave of court to supplement the objections.
(Emphasis added.) Civ.R. 53(D)(3)(b)(iii).
{¶65} Robert filed his objections to the magistrate’s temporary orders on
March 1, 2013. (Doc. No. 67). However, because Robert failed to file a transcript
in accordance with the rule, the trial court overruled Robert’s objections. (Aug. 8,
2013 JE, Doc. No. 97); (Aug. 2, 2013 Tr. at 11-19). See also Elson v. Plokhooy,
3d Dist. Shelby No. 17-10-24, 2011-Ohio-2009, ¶ 31 (concluding that the trial
court did not abuse its discretion in failing to consider the transcript because it was
not filed in accordance with Civ.R. 53(D)(3)(b)(iii)). As such, the trial court
adopted the February 25, 2013 magistrate’s temporary orders. (Aug. 8, 2013 JE,
Doc. No. 97).
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{¶66} The trial court’s February 25, 2013 magistrate’s temporary orders
ordered Robert to pay Rebecca $20,000 in temporary spousal support. (Feb. 25,
2013 JE, Doc. No. 61). Robert admitted that he did not comply with the
magistrate’s temporary orders. (See Oct. 30, 2013 Tr. at 52-53); (Apr. 9, 2013 Tr.
at 2, 4, 13); (Appellant’s Reply Brief at 7). Therefore, there was clear and
convincing evidence that Robert did not comply with the magistrate’s temporary
orders. As a result, we are unable to conclude that the trial court abused its
discretion in finding Robert in contempt of court.
{¶67} We are also unable to conclude that the trial court abused its
discretion in ordering Robert to pay Rebecca’s attorneys’ fees based on finding
Robert in contempt for failing to pay temporary spousal support. First, for an
order finding a party in contempt of court to be a final, appealable order, the trial
court must impose a penalty or sanction. Cichanowicz, 2013-Ohio-5657, at ¶ 88.
Second, R.C. 3105.18(G) requires the trial court to impose court costs and
reasonable attorney’s fees if it determines that a party is in contempt of court for
failing to pay spousal support. R.C. 3105.18(G) provides:
If any person required * * * to pay spousal support under an order
made or modified by a court on or after January 1, 1991, is found in
contempt of court for failure to make alimony or spousal support
payments under the order, the court that makes the finding, in
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addition to any other penalty or remedy imposed, shall assess all
court costs arising out of the contempt proceeding against the person
and shall require the person to pay any reasonable attorney’s fees of
any adverse party, as determined by the court, that arose in relation
to the act of contempt.
(Emphasis added.) The trial court ordered Robert to pay Rebecca’s attorney’s fees
based its finding of contempt and “the court costs resulting from this action to
date.” (May 27, 2014 JE, Doc. No. 164). Therefore, because contempt of court
requires a finding of contempt and the imposition of a penalty, and R.C.
2105.18(G) requires the trial court to assess court costs and reasonable attorney’s
fees relating to the act of contempt, the trial court did not abuse its discretion in
awarding Rebecca attorney’s fees based on finding Robert in contempt of court.
(See Feb. 13, 2013 JE, Doc. No. 142).
{¶68} Robert also argues that the trial court abused its discretion in
assessing the remainder of Rebecca’s attorney’s fees that it imposed on him. As
an initial matter regarding the trial court’s award of attorney’s fees to Rebecca, we
note that Robert waived all but plain error as to this issue for appeal because he
failed to object to Rebecca’s request for attorney’s fees. (See Oct. 30, 2013 Tr. at
127, 171). See also Am. Builders & Contrs. Supply Co., Inc., 2012-Ohio-4661, at
¶ 17; Evid.R. 13(A)(1), (D). The failure to object to the request for attorney’s fees
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waives all but plain error on review. Id.; Id. As we noted above, plain error may
be applied only in rare circumstances where the error seriously affects the basic
fairness, integrity, or public reputation of the judicial process, thereby challenging
the legitimacy of the underlying judicial process itself. Id., quoting Goldfuss, 79
Ohio St.3d 116, at syllabus.
{¶69} Robert failed to demonstrate that the trial court committed plain error
in awarding Rebecca reasonable attorney’s fees. See Carroll v. Carroll, 5th Dist.
Delaware No. 05CAF110079, 2006-Ohio-5531, ¶ 84 (concluding that the
appellant failed to assert that the trial court committed plain error in awarding
attorney’s fees). R.C. 3105.73(A) provides:
In an action for divorce, dissolution, legal separation, or annulment
of marriage or an appeal of that action, 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. In determining whether 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.
{¶70} The trial court considered the totality of the circumstances and the
equities of the parties in awarding Rebecca $9,022.50 in attorney’s fees, including
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its award of attorney’s fees based on finding Robert in contempt of court. (See
May 27, 2014 JE, Doc. No. 164). In particular, the trial court considered that the
record reflected that Robert flagrantly abused the legal system with unnecessary
and irrelevant filings, which had no apparent purpose other than to delay the
proceedings. (Feb. 13, 2013 JE, Doc. No. 142). The trial court’s findings
sufficiently supported the trial court’s award of attorney’s fees to Rebecca. See
Klayman v. Luck, 8th Dist. Cuyahoga Nos. 97074 and 97075, 2012-Ohio-3354, ¶
41-43 (concluding that the trial court did not abuse its discretion in awarding
$325,000 in attorney’s fees where the husband purposefully prolonged the
litigation and sued the wife and her attorney in federal court). Therefore, we do
not find any error which “‘seriously affects the basic fairness, integrity, or public
reputation of the judicial process’” regarding the trial court’s award of attorney’s
fees to Rebecca. Carroll at ¶ 84, quoting Goldfuss at paragraph one of the
syllabus.
{¶71} Robert’s twelfth and fifteenth assignments of error are overruled.
Assignment of Error No. XI
Trial court erred by not only awarding spousal support to
Plaintiff but the grossly inappropriate duration.
{¶72} In his eleventh assignment of error, Robert argues that the trial court
erred in awarding Rebecca spousal support for a grossly inappropriate duration.
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{¶73} Spousal support is defined as “any payment or payments * * * that is
both for sustenance and for support of the spouse or former spouse.” R.C.
3105.18(A). Trial courts have broad discretion concerning an award of spousal
support, and therefore, a trial court’s decision will not be reversed absent an abuse
of discretion. Tremaine v. Tremaine, 111 Ohio App.3d 703, 706 (2d Dist.1996);
Siekfer v. Siekfer, 3d Dist. Putnam No. 12-06-04, 2006-Ohio-5154, ¶ 15; Kunkle v.
Kunkle, 51 Ohio St.3d 64, 67 (1990). Although a trial court has broad discretion
in fashioning an equitable spousal support award based on the facts and
circumstances of each case, this discretion is not unlimited. Kunkle at 67; Cherry,
66 Ohio St.2d at 355. In reviewing a spousal-support award, an appellate court
must “look at the totality of the circumstances and determine whether the trial
court acted unreasonably, arbitrarily or unconscionably.” Kunkle at 67.
R.C. 3105.18 governs spousal support and provides, in pertinent part:
(C)(1) In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms of
payment, and duration of spousal support, which is payable either in
gross or in installments, the court shall consider all of the following
factors:
(a) The income of the parties * * *;
(b) The relative earning abilities of the parties;
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(c) The ages and the physical, mental, and emotional conditions of
the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party,
because that party will be custodian of a minor child of the marriage,
to seek employment outside the home;
(g) The standard of living of the parties established during the
marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but
not limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training, or
earning ability of the other party, including, but not limited to, any
party’s contribution to the acquisition of a professional degree of the
other party;
(k) The time and expense necessary for the spouse who is seeking
spousal support to acquire education, training, or job experience so
that the spouse will be qualified to obtain appropriate employment,
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provided the education, training, or job experience, and employment
is, in fact, sought;
(l) The tax consequences, for each party, of an award of spousal
support;
(m) The lost income production capacity of either party that
resulted from that party’s marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant
and equitable.
R.C. 3105.18(C)(1).
{¶74} After reviewing the record, we cannot conclude that the trial court
abused its discretion by ordering Robert to pay Rebecca spousal support in the
amount of $700 per month for sixty months, and $500 per month thereafter until
either party dies or until Rebecca remarries. While the trial court did not
specifically state that it considered R.C. 3105.18(C)(1) in ordering Robert to pay
Rebecca spousal support in its final divorce decree, it stated that it considered R.C.
3105.18(C)(1) in its February 13, 2014 opinion and findings. (See Feb. 13, 2014
JE, Doc. No. 142). See also Benjelloun v. Benjelloun, 12th Dist. Butler No.
CA2012-01-004, 2012-Ohio-5353, ¶ 25 (it is sufficient that the record establishes
that the trial court considered the factors in its decision to award spousal support if
the trial court does not list the specific findings in the final divorce decree).
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{¶75} Nonetheless, Robert argues that the factors the trial court considered
were improper. In particular, Robert argues that it was improper for the trial court
to consider his potential social-security earnings to determine the amount of
Rebecca’s spousal support under R.C. 3501.17.5 Robert’s argument is meritless
for two reasons. First, “[a] court should consider social security benefits when
determining whether spousal support is correct.” Minear v. Palkovic, 7th Dist.
Mahoning No. 09-MA-61, 2009-Ohio-6752, ¶ 17, citing Beyer v. Beyer, 64 Ohio
App.2d 280, 284 (8th Dist.1979). Second, R.C. 3105.171 prohibits the division of
social-security benefits in a divorce proceeding, but not the consideration of
social-security benefits as a relevant and equitable factor in making an equitable
distribution. See Thompson v. Thompson, 1st Dist. Hamilton No. C-050578,
2006-Ohio-2623, ¶ 22-23, citing Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-
3624, ¶ 11. Thus, the trial court did not err in considering Robert’s potential social
security earnings in determining Rebecca’s spousal support.
{¶76} Therefore, considering the totality of the circumstances of this case,
the trial court did not act unreasonably, arbitrarily, or unconscionably in ordering
Robert to pay Rebecca spousal support.
{¶77} Robert’s eleventh assignment of error is overruled.
5
We presume Robert intended to cite R.C. 3105.171.
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Assignment of Error No. XVI
Trial court erred by not stating in it’s [sic] final order any
evidentiary findings or citation of financial facts to support any
order put forward.
{¶78} In his sixteenth assignment of error, Robert argues that the trial court
erred by “not presenting a detailed accounting of its decision supported by the
evidence as required by Ohio law.” (Appellant’s Brief at 18). Before we address
the merits of this assignment of error, we note that Robert did not draw our
attention to any specific failure of the trial court in its judgment entry, nor did
Robert indicate any facts or law that the trial court failed to consider. However,
because Robert argues in this assignment of error that the trial court prejudicially
divided marital assets, we are presuming that he is also arguing that the trial court
did not make the appropriate findings of fact and conclusion of law under R.C.
3105.171(G), which reads:
In any order for the division or disbursement of property or a
distributive award made pursuant to this section, the court shall
make written findings of fact that support the determination that the
marital property has been equitably divided and shall specify the
dates it used in determining the meaning of “during the marriage.”
{¶79} Robert’s assignment of error is meritless for two reasons. First,
Robert’s argument is erroneous because the trial court issued a detailed and
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thorough six-page opinion and findings espousing the specific evidentiary findings
and financial facts it considered in its distribution of marital assets. (See Feb. 13,
2014 JE, Doc. No. 142).
{¶80} Second, Robert did not request from the trial court its findings of fact
or conclusions of law under Civ.R. 52. Civ.R. 52 provides:
When questions of fact are tried by the court without a jury,
judgment may be general for the prevailing party unless one of the
parties in writing requests otherwise before the entry of judgment
pursuant to Civ. R. 58, or not later than seven days after the party
filing the request has been given notice of the court's announcement
of its decision, whichever is later, in which case, the court shall state
in writing the conclusions of fact found separately from the
conclusions of law.
“[T]he burden is on the party objecting to request findings of fact” under Civ. R.
52. Hutta v. Hutta, 5th Dist. Delaware No. 10CAF040031, 2011-Ohio-3041, ¶ 15.
Since Robert failed to request more specific findings of fact and conclusions of
law, he waived any claim that the trial court did not make the appropriate findings
of fact or conclusions of law. Cichanowicz, 2013-Ohio-5657, at ¶ 76.
{¶81} For these reasons, Robert’s sixteenth assignment of error is
overruled.
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Assignment of Error No. XVIII
The trial court erred by causing Defendant/Appellant’s Expert
Witness testimony to be lost from the record.
{¶82} In his eighteenth assignment of error, Robert alleges that the trial
court erred by causing his expert witness’s testimony to be lost from the record.
Specifically, Robert argues that, because the portion of transcript containing the
testimony of his expert witness was lost, he was denied the opportunity to present
a proper defense and denied a fair division of marital assets. While Robert again
failed to cite any legal authority or cite to the record in support of his argument,
and also failed to provide a relevant argument in support of this assignment of
error, we elect to address it in the interests of justice.
{¶83} Under App.R. 9, an appellant must submit to the appellate court a
transcript of the trial court proceedings they deem necessary for the appellate
court’s review. State v. Getzinger, 3d Dist. Henry No. 7-12-06, 2013-Ohio-2146,
¶ 18. See also App.R. 9. However, if no transcript is available, App.R. 9(C) and
(D) provide alternatives for the appellant. Id. at ¶ 19.
{¶84} Here, the record indicates that the recording device was inadvertently
shut off and the portion of the transcript of which Robert complains was not
recorded. As a result, Robert had a duty under App.R. 9(B)(4) to prepare a
statement of the evidence under App.R. 9(C) or an agreed statement under App.R.
9(D). See App.R. 9(B)(4), (C), (D). App.R. 9(C) provides, in relevant part:
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(1) If no recording of the proceedings was made, if a transcript is
unavailable, or if a recording was made but is no longer available for
transcription, the appellant may prepare a statement of the evidence
or proceedings from the best available means, including the
appellant’s recollection. The statement shall be served on the
appellee no later than twenty days prior to the time for transmission
of the record pursuant to App. R. 10 and the appellee may serve on
the appellant objections or propose amendments to the statement
within ten days after service of the appellant’s statement; these time
periods may be extended by the court of appeals for good cause.
The statement and any objections or proposed amendments shall be
forthwith submitted to the trial court for settlement and approval.
The trial court shall act prior to the time for transmission of the
record pursuant to App.R. 10, and, as settled and approved, the
statement shall be included by the clerk of the trial court in the
record on appeal.
(Emphasis added.) App.R. 9(C)(1). App.R. 9(D) provides, in relevant part:
(1) In lieu of the record on appeal as defined in division (A) of this
rule, the parties, no later than ten days prior to the time for
transmission of the record under App.R. 10, may prepare and sign a
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statement of the case showing how the issues raised in the appeal
arose and were decided in the trial court and setting forth only so
many of the facts averred and proved or sought to be proved as are
essential to a decision of the issues presented. If the statement
conforms to the truth, it, together with additions as the trial court
may consider necessary to present fully the issues raised in the
appeal, shall be approved by the trial court prior to the time for
transmission of the record under App.R. 10 and shall then be
certified to the court of appeals as the record on appeal and
transmitted to the court of appeals by the clerk of the trial court
within the time provided by App.R. 10.
(Emphasis added.) App.R. 9(D)(1).
{¶85} Robert submitted to the trial court on February 21, 2014 “Defendants
[sic] Testimony Regarding Missing Time From Court Tape Recorded Required by
the Court” in which he espouses his recollection of his expert witness’s testimony.
(See Doc. No. 148). There is no evidence in the record that Robert served his
statement of the evidence on Rebecca, that the parties agreed to any statement of
the evidence, or that the trial court transmitted an approved statement of the
evidence to this court in accordance with App.R. 9(C) or (D). Therefore, Robert’s
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February 21, 2014 submission failed to comport with the requirements of App.R.
9(C) or (D). See Getzinger at ¶ 22-24.
{¶86} “In the absence of a complete transcript of the proceedings, a
statement of the evidence pursuant to App.R. 9(C), or an agreed statement
pursuant to App.R. 9(D), an appellate court ‘has no alternative but to indulge the
presumption of the regularity of the proceedings and the validity of the judgment
in the trial court.’” Collins v. Collins, 3d Dist. Marion No. 9-11-32,
2012-Ohio-749, ¶ 27, quoting Tyler v. Tyler, 3d Dist. Marion No. 9-88-50, 1990
WL 97662, *2 (July 16, 1990) and Ostander v. Parker-Fallis Insulation Co., Inc.,
29 Ohio St.2d 72, 74 (1972).
{¶87} Thus, because Robert failed to file a statement of evidence under
App.R. 9(C) or an agreed statement under App.R. 9(D), he waived his alleged
error. Holmer v. Holmer, 3d Dist. Seneca No.13-07-28, 2008-Ohio-3228, ¶ 32,
citing Steiner v. Steiner, 85 Ohio App.3d 513, 524 (4th Dist.1993), citing State v.
Brewer, 48 Ohio St.3d 50, 61 (1990). See also Beer v. Beer, 10th Dist. Franklin
No. 04AP-93, 2004-Ohio-4559, ¶ 9 (because the appellant failed to file a
transcript, or acceptable alternative, the appellant “failed to bear his burden of
showing error by reference to matters in the record”).
{¶88} Therefore, Robert’s eighteenth assignment of error is overruled.
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Assignment of Error No. VIII
The trial court erred by allowing Plaintiff to assert that
Defendant/Appellant’s investment behavior was responsible for
losing assets without evidentiary proof or an independent
forensic accounting.
Assignment of Error No. X
The trial court erred by not allowing Defendant’s Expert witness
to perform tracings of Defendant’s financial accounts, earnings
and distribution of said monies.
Assignment of Error No. XIV
The trial erred by ignoring Plaintiff’s admission that she
submitted false affidavits in support of Plaintiff’s restraining
order preventing Defendant’s access to said account resulting in
the loss of at least $250000 [sic] dollars from said account.
{¶89} In his eighth, tenth, and fourteenth assignments of error, Robert
challenges the trial court’s admission and exclusion of evidence at the trial. “‘[A]
trial court is vested with broad discretion in determining the admissibility of
evidence in any particular case, so long as such discretion is exercised in line with
the rules of procedure and evidence.’” Hart v. Cardinal Health 110, Inc., 3d Dist.
Hancock No. 5-10-10, 2010-Ohio-3551, ¶ 9, quoting Rigby v. Lake County, 58
Ohio St.3d 269, 271 (1991). See also Cottrell v. Cottrell, 12th Dist. Warren No.
CA2012-10-105, 2013-Ohio-2397, ¶ 79, citing Donovan v. Donovan, 110 Ohio
App.3d 615, 520 (12th Dist.1996), In re Bays, 12th Dist. Warren No.
CA2003-02-026, 2004-Ohio-915, ¶ 7, and State v. Robb, 88 Ohio St.3d 59, 68
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(2000). “Therefore, a trial court’s admission or exclusion of evidence will not be
reversed absent an abuse of discretion.” Id.; Id.{¶90} In his eighth and tenth assignments of error, Robert argues that the
trial court erred by prohibiting his expert witness from testifying. Whether a trial
court properly admits expert testimony depends on whether the facts and data that
the expert witness’s opinion is based on is “admitted in evidence at the hearing.”
Hart at ¶ 10, quoting Evid.R. 703. A party seeking to establish that an error
occurred “‘bears the burden of showing error by reference to matters in the
record.’” Id., quoting Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199
(1980). “‘When portions of the transcript necessary for resolution of assigned
errors are omitted from the record, the reviewing court has nothing to pass upon
and thus, as to those assigned errors, the court has no choice but to presume the
validity of the lower court’s proceedings, and affirm.’” Id., quoting Knapp at 199.
{¶91} Determining whether the trial court properly admitted or excluded
Robert’s expert witness’s testimony requires the portion of the trial transcript that
contained his expert witness’s trial testimony, which, as we addressed in Robert’s
eighteenth assignment of error, Robert failed to provide. Id. at ¶ 9. Because
Robert failed to provide that portion of the transcript, we presume that the trial
court properly excluded Robert’s expert witness’s testimony. Id. at ¶ 10, citing
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Knapp at 199. Thus, we cannot conclude that the trial court abused its discretion
by excluding Robert’s expert witness’s testimony.
{¶92} Also in his eighth assignment of error, Robert contends that the trial
court erred by allowing Rebecca to assert that his investment behavior was
responsible for losing assets. However, because Robert failed to cite any legal
authority and failed to cite to the record support of this argument, we decline to
address it. Rodriguez, 2009-Ohio-3456, ¶ 7.
{¶93} In Robert’s fourteenth assignment of error, he contends that the trial
court erred by ignoring Rebecca’s admission that the affidavit that she submitted
in support of her temporary restraining order request was incorrect. Evid.R. 402
precludes the admission of irrelevant evidence. Under Evid.R. 401, evidence is
relevant where it has “[a]ny tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Whether Rebecca’s affidavit was
incorrect was of no consequence to the determination of this case—that is, the trial
court was determining the division of assets and the affidavit had no bearing on
the division of assets. (See Oct. 30, 2013 Tr. at 151, 161). Thus, because whether
Rebecca’s affidavit was correct was irrelevant to this case, the trial court did not
abuse its discretion in “ignoring” Rebecca’s “incorrect” affidavit. See Cottrell,
2013-Ohio-2397, at ¶ 82 (concluding that the trial court did not abuse its discretion
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in refusing to admit evidence regarding an investment account and evidence of
inconsistent testimony from a prior hearing at its custody and parenting hearings
after determining that such evidence was irrelevant to those hearings).
{¶94} For these reasons, Robert’s eighth, tenth, and fourteenth assignments
of error are overruled.
{¶95} 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
ROGERS and SHAW, J.J., concur.
/jlr
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