Sharp v. Sharp , 2022 Ohio 1201 ( 2022 )

[Cite as Sharp v. Sharp, 2022-Ohio-1201.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
LYNNE SHARP C.A. Nos. 21AP0007
21AP0019
Appellee
v.
APPEAL FROM JUDGMENT
GLENN SHARP ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF WAYNE, OHIO
CASE No. 2017 DR-B 000337
DECISION AND JOURNAL ENTRY
Dated: April 11, 2022
HENSAL, Presiding Judge.
{¶1} Glenn Sharp appeals from the judgments of Wayne County Court of Common
Pleas. This Court affirms in part, reverses in part, and remands the matter for further proceedings.
I.
{¶2} In 2017, after 14 years of marriage, Lynne Sharp filed for divorce from Glenn
Sharp. A magistrate conducted a final hearing over two nonconsecutive days in 2018. Much of
the evidence presented involved the marital residence located at 13915 Friendsville Road,
Burbank, Ohio (the “Residence”), which was the primary asset in dispute between the parties.
{¶3} The evidence indicated that the parties acquired the Residence as part of a “like-
kind” exchange with So-Cal Collectibles. In this exchange, So-Cal Collectibles agreed to purchase
the Residence and then transfer it to Ms. Sharp via a quitclaim deed in exchange for a racecar Mr.
Sharp had purchased prior to the parties’ marriage. The “like-kind” exchange was done, in part,
to avoid tax liability.
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{¶4} Despite being titled solely in Ms. Sharp’s name, the magistrate determined that the
Residence was Mr. Sharp’s separate property because Mr. Sharp purchased the racecar prior to the
parties’ marriage, and the acquisition of the Residence was directly traceable to that racecar. It
also determined that, since the Residence was Mr. Sharp’s separate property, it was not subject to
an equitable set off.
{¶5} After determining that the Residence was Mr. Sharp’s separate property, the
magistrate ordered Ms. Sharp to execute a quit claim deed, releasing her interest in the Residence.
It then ordered Mr. Sharp to refinance the parties’ home equity line of credit to remove Ms. Sharp’s
name and ordered that Mr. Sharp would remain liable for all property taxes, utilities, and insurance
payments for the Residence. It then addressed the following issues that are relevant to this appeal:
(1) delinquent real estate taxes; (2) the home equity line of credit; (3) the parties’ personal property,
including vehicles and tools; (4) federal and state tax liabilities; (5) spousal support; (6) Mr.
Sharp’s claim of financial misconduct and request for a distributive award; and (7) attorney fees.
We will briefly address each item in turn.
{¶6} Delinquent Real Estate Taxes. There was no dispute that the Sharps had not paid
real estate taxes for the Residence. The magistrate determined that, because it allocated the
Residence to Mr. Sharp, Mr. Sharp should be liable for the delinquent real estate taxes, with no
equitable setoff for that tax liability.
{¶7} Home Equity Line of Credit. The magistrate noted that the parties’ home equity
line of credit balance was $18,492.02, and that part of that money was used to purchase Ms.
Sharp’s personal vehicle (GMC Envoy) and a roof for the Residence. The magistrate concluded
that the portion used for Ms. Sharp’s personal vehicle would be setoff by awarding Mr. Sharp
certain tools, and that the remainder of the debt would be equitably allocated to Mr. Sharp due to
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the Residence being his separate property. As previously noted, it ordered Mr. Sharp to refinance
the home equity line of credit to remove Ms. Sharp’s name, and to hold her harmless for any
liability.
{¶8} Personal Property – Vehicles and Tools. As previously noted, the magistrate
determined that Ms. Sharp’s GMC Envoy, which was purchased with funds from the home equity
line of credit, would remain her separate property as an equitable setoff. It then found that it would
be reasonable and equitable to setoff the marital value of certain tools ($4,365) from the purchase
price paid for Ms. Sharp’s GMC Envoy, the balance of which remained due and payable on the
home equity line of credit allocated to Mr. Sharp.
{¶9} State and Federal Tax Liability. The parties did not dispute that Ms. Sharp filed
her own, separate state and federal tax returns throughout the parties’ marriage. Mr. Sharp, on the
other hand, had not filed state or federal tax returns since the 1980s. The magistrate determined
that the parties would be responsible for their own tax returns and/or refunds, and that Mr. Sharp
would be “solely liable for any tax liability, penalties and delinquencies assessed due to his failure
to file tax returns prior to and throughout the parties’ marriage and shall hold [Ms.] Sharp harmless
as to said liability, both state and federal.”
{¶10} Spousal Support. The magistrate considered the factors set forth in Revised Code
Section 3105.18(C)(1). In addressing Section 3105.18(C)(1)(i), which relates to the relative assets
and liabilities of the parties, the magistrate noted that Mr. Sharp had been allocated the Residence,
and that Ms. Sharp would need to find alternative living arrangements. It also noted that
substantially more debt had been allocated to Mr. Sharp, including the home equity line of credit.
The magistrate concluded that Mr. Sharp should pay spousal support to Ms. Sharp in the amount
of $700.00 per month for a period of sixty months.
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{¶11} Financial Misconduct. The magistrate addressed Mr. Sharp’s claim that Ms. Sharp
engaged in financial misconduct. According to Mr. Sharp, Ms. Sharp secured the home equity
line of credit using his forged signature. Mr. Sharp also claimed that he was unaware that the loan
was secured by the Residence, and that he was unaware that the Ms. Sharp was only making the
minimum payment on that loan. The magistrate determined that Mr. Sharp had knowledge of the
loan, and that Ms. Sharp did not substantially and willfully fail to disclose or subvert Mr. Sharp’s
knowledge of that debt. The magistrate, therefore, concluded that Ms. Sharp did not engage in
financial misconduct. In reaching this conclusion, the magistrate noted that Mr. Sharp’s “lack of
knowledge of the mortgage and whether his signature was in fact a product of forgery is left to
adjudication in another proceeding.”
{¶12} Attorney Fees. Regarding the parties’ claims for attorney fees, the magistrate noted
that it had already awarded spousal support to Ms. Sharp, and that it had allocated substantially
more debt to Mr. Sharp “due to his separate property interest in the [Residence] and as a
consideration in spousal support herein.” It then ordered each party to pay their own attorney fees.
{¶13} On the same day the magistrate issued its decision, the trial court issued its own
judgment entry, finding that the magistrate’s decision contained no errors of law or other defect.
The trial court’s judgment entry contained less analysis on certain issues but ultimately reached
the same conclusions as the magistrate’s decision.
{¶14} Relevant to this appeal, unlike the magistrate’s decision, the trial court’s judgment
entry did not indicate that the trial court considered the allocation of the Residence to Mr. Sharp
when ordering Mr. Sharp to pay spousal support to Ms. Sharp, or in ordering both parties to pay
their own attorney fees. Additionally, unlike the magistrate’s decision, the trial court’s judgment
entry contained little analysis regarding Mr. Sharp’s claim for financial misconduct, and did not
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indicate that his forgery claim was “left to adjudication in another proceeding.” Instead, it simply
indicated that it had considered Section 3105.171(E)(4) and (5), and that Ms. Sharp had not
engaged in financial misconduct.
{¶15} The parties objected to the magistrate’s decision, and the trial court overruled their
objections. Ms. Sharp appealed, assigning three errors. Sharp v. Sharp, 9th Dist. Wayne No.
19AP0046, 2020-Ohio-3537 (Sharp I). The first two assignments of error challenged the trial
court’s finding that the Residence was Mr. Sharp’s separate property. Id. at ¶ 5, 20. The third
assignment of error challenged the trial court’s failure to order Mr. Sharp to pay Ms. Sharp’s
attorney fees. Mr. Sharp did not appeal the trial court’s decision but did respond to Ms. Sharp’s
arguments on appeal.
{¶16} This Court sustained Ms. Sharp’s first assignment of error, concluding that the trial
court erred by finding that the Residence was Mr. Sharp’s separate property. Id. at ¶ 18. In
reaching this conclusion, this Court explained:
Ms. Sharp was listed as the seller of [the racecar] and the real property was
transferred solely to her by quitclaim deed. This was done not only with Mr.
Sharp’s consent, but at his request. Mr. Sharp testified this arrangement was made
both because he worried about passing away before Ms. Sharp and because of his
tax liability due to his having not paid taxes since the 1980s. When asked if this
“like-kind” exchange was done to avoid the responsibility of paying taxes, Mr.
Sharp testified: “We are both guilty of it. * * *. We both knew it * * *. We were
both aware of what we were doing, yes.”
***
Mr. Sharp made a deliberate choice for his own benefit and to the detriment of his
creditors, in requesting that the property be placed in Ms. Sharp’s name. * * * [W]e
are not persuaded to allow Mr. Sharp to turn his deliberate action into a legal fiction
for his own benefit. * * * Regardless of Mr. Sharp’s testimony that he did not intend
to make a gift of the property, the fact remains that it was deeded solely to Ms.
Sharp via quitclaim deed. * * * Under these circumstances, we conclude that the
transfer of the property done with the purpose of avoiding creditors constitutes clear
and convincing evidence of donative intent to convert the property to marital
property. * * * Further, in having the property deeded solely in Ms. Sharp’s name,
Mr. Sharp relinquished ownership and control over the property.
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Id. at ¶ 15, 17.
{¶17} This Court then declined to address the second, related assignment of error as moot.
Id. at ¶ 20. Regarding Ms. Sharp’s third assignment of error, this Court explained that marital
assets may be considered as a factor in determining an award of attorney fees. Id. at ¶ 23. In light
of this Court’s determination that the trial court erred by finding that the Residence was Mr.
Sharp’s separate property, this Court explained that the marital assets had changed, warranting a
remand for the trial court to redetermine the issue of attorney fees. Id. We then reversed and
remanded the matter for further proceedings consistent with our decision. Id. at ¶ 24.
{¶18} On remand, the trial court ordered the parties to brief the issues that were the subject
of the remand. Prior to the parties submitting their briefing, Mr. Sharp filed a motion captioned:
“Motion to Modify Spousal Support; in the Alternative, Motion to Terminate Spousal Support; in
the Further Alternative, Motion to Immediately Suspend and/or Escrow Spousal Support
Payments” (“Motion to Modify”). In it, Mr. Sharp argued that the trial court specifically retained
jurisdiction over the amount and duration of the spousal support award, and that this Court’s
decision in Sharp I warranted a modification, termination, or suspension of spousal support
payments.
{¶19} Mr. Sharp then filed his brief regarding which issues were subject to this Court’s
remand. He argued that this Court’s remand required a reconsideration of all issues because the
trial court’s allocation of the Residence as his separate property was inextricably intertwined with
the trial court’s decision on all remaining issues. He requested an evidentiary hearing to allow the
parties to present additional evidence on the remaining issues.
{¶20} Ms. Sharp, on the other hand, argued that this Court’s remand only required the
trial court to address the allocation of the Residence as marital property, any expenses or debts
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associated with the Residence, and the issue of attorney fees. She argued that an evidentiary
hearing was not warranted because evidence relating to the issues on remand was already presented
at the prior hearings, and there was no need for additional evidence.
{¶21} The magistrate issued a decision without holding a hearing. In it, the magistrate
determined that the allocation of the Residence as marital property necessitated certain changes to
the prior division of assets. It explained that the trial court previously allocated the portion of the
home equity line of credit attributable to the roof to Mr. Sharp. Now that the Residence was
considered marital property, the magistrate explained that the portion of home equity loan
attributable to the roof should be allocated equally between the parties.
{¶22} The magistrate then addressed Ms. Sharp’s GMC Envoy. It indicated that the trial
court previously allocated that vehicle to Ms. Sharp as her separate property as a setoff from Mr.
Sharp being awarded certain tools and personal property. The magistrate explained that the trial
court valued the tools at $8,730. According to the magistrate, since the GMC Envoy was an
equitable setoff from the allocation of tools and personal property to Mr. Sharp, the value of this
setoff in favor of Ms. Sharp was $8,730. The magistrate indicated that neither party objected to
or appealed the trial court’s allocation of personal property, resulting in the $8,730 value attributed
to the GMC Envoy being the law of the case. The magistrate then explained that, since the home
equity loan was used to purchase the GMC Envoy and the roof, the portion of the home equity
loan attributable to the roof was the outstanding loan amount ($18,492.02) less the portion
attributable to the GMC Envoy ($8,730), totaling $9,762.02. The magistrate concluded that the
home equity line of credit attributable to the roof ($9,762.02) should be apportioned equally
between the parties by way of reducing Ms. Sharp’s share of the equity in the Residence by one-
half of the debt attributable to the roof.
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{¶23} The magistrate then addressed the issue of delinquent real estate taxes. The
magistrate explained that the trial court previously allocated the delinquent real estate taxes to Mr.
Sharp since the Residence was allocated to him as his separate property. It explained that, since
the Residence was now marital property, the delinquent real estate taxes should be allocated
equally between the parties by way of reducing Ms. Sharp’s share of the equity in the Residence
by one-half of the delinquent tax liability.
{¶24} The magistrate then indicated that the remaining allocation of financial assets and
debts was not subject to the remand order. It indicated that neither party appealed the trial court’s
allocation of federal and state income tax liability to Mr. Sharp due to his failure to pay taxes prior
to and throughout the parties’ marriage. The magistrate, therefore, concluded that the allocation
of tax liability to Mr. Sharp remained law of the case.
{¶25} Next, the magistrate addressed the issue of spousal support. It explained that
neither party appealed the order of spousal support, and that the trial court did not order spousal
support based upon or in consideration of the Residence being allocated to Mr. Sharp as his
separate property. The magistrate, therefore, concluded that the issue of spousal support was not
affected by this Court’s decision in Sharp I, and that the current spousal support order remained
fair and equitable.
{¶26} Lastly, the magistrate addressed the issue of attorney fees. It determined that the
parties received an equitable division of marital assets and debts, and that each party should pay
their own attorney fees.
{¶27} In conclusion, the magistrate ordered Mr. Sharp to compensate Ms. Sharp for her
one-half share of the equity in the Residence, less her share of the home equity line of credit and
real estate tax liability.
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{¶28} On the same day the magistrate issued its decision, the trial court issued its own
judgment entry, finding that the magistrate’s decision contained no errors of law or other defect.
The trial court’s judgment entry omitted some of the statutory law recited in the magistrate’s
decision, but contained the same analysis and reached the same conclusions.
{¶29} Mr. Sharp then filed a document captioned: “Motion for Clarification; In the
Alternative, Motion for Reconsideration” (“Motion for Clarification”). In it, Mr. Sharp asserted
that the trial court’s judgment entry did not address his Motion to Modify. He, therefore, requested
that the trial court issue an order addressing his Motion to Modify or, in the alternative, to schedule
the matter for an evidentiary hearing.
{¶30} After filing his Motion for Clarification, Mr. Sharp filed his objections to the
magistrate’s decision, and later supplemented his objections. Ms. Sharp opposed Mr. Sharp’s
objections, arguing that the trial court should adopt the magistrate’s decision. The trial court
summarily overruled Mr. Sharp’s objections, and he filed C.A. No. 21AP0007 with this Court.
{¶31} After Mr. Sharp filed his appeal, the magistrate issued an order addressing Mr.
Sharp’s Motion for Clarification. The magistrate indicated that the trial court’s judgment entry
following this Court’s remand addressed the issue of spousal support, and implicitly denied Mr.
Sharp’s Motion to Modify. The magistrate then indicated that the trial court’s judgment entry on
remand was now on appeal with this Court, and that the trial court did not have jurisdiction to
modify or terminate the spousal support award pending appellate review.
{¶32} Mr. Sharp moved the trial court to set aside the magistrate’s order, which the trial
court denied. Mr. Sharp then filed C.A. No. 21AP0019 with this Court, assigning as error that the
trial court erred by not addressing his Motion to Modify, which included a request to suspend or
escrow spousal support payments pending a resolution of the outstanding issues, and by finding
10
that it lacked jurisdiction to modify the spousal support award while C.A. No. 21AP0007 remained
pending with this Court. On Mr. Sharp’s motion, this Court consolidated the two appeals for
purposes of oral argument, if applicable, and decision.
{¶33} This Court will address both appeals, beginning with C.A. No. 21AP0007.
II.
ASSIGNMENT OF ERROR I – C.A. NO. 21AP0007
THE MAGISTRATE AND THE TRIAL COURT ERRED AS A MATTER OF
LAW BY REFERRING TO THE LAW OF THE CASE DOCTRINE AND
FINDING THAT THE REMAND ORDER FROM THIS COURT PRECLUDED
AN EXAMINATION OF THE REMAINING CLAIMS OF THE PARTIES AND
ALSO PRECLUDED THE PRESENTATION OF ANY ADDITIONAL
EVIDENCE AFTER REMAND.
{¶34} In his first assignment of error in C.A. No. 21AP0007, Mr. Sharp argues that the
trial court erred by relying on the law-of-the-case doctrine to conclude that it could not reexamine
the parties’ remaining claims on remand, and that it erred by not allowing him to present additional
evidence on those claims. “Application of the doctrine of law of the case to the matters before the
trial court presents a legal question, which we review de novo.” Akron v. Holland Oil Co., 9th
Dist. Summit No. 20954, 2002-Ohio-4150, ¶ 27.
{¶35} Mr. Sharp argues that, because Sharp I changed the status of the Residence from
separate property to marital property, the trial court was required to reexamine all of the parties’
remaining claims. More specifically, he argues that the trial court was required to reexamine: (1)
his request for an unequal, but equitable division of property order; (2) his claim for financial
misconduct or distributive award; (3) his claims regarding the allocation of the parties’ financial
assets and debts; and (4) his claims regarding spousal support. He also argues that, because he
needs to file his delinquent tax returns, he will have to report the sale of his racecar as a gain of
$265,500. He argues that being liable for the entire tax obligation associated with that sale is
11
inequitable now that the Residence is no longer his separate property. He argues that the trial
court’s original resolution of these claims was inextricably intertwined with its determination that
the Residence was his separate property, and that the trial court erred by not reexamining these
claims on remand.
{¶36} Initially, we note that much of the language Mr. Sharp relies upon in his merit brief
is contained in the magistrate’s original decision. In a footnote, Mr. Sharp asserts that magistrate’s
original decision and the trial court’s original judgment entry contain “essentially the same
language.” That is not accurate. For example, the magistrate’s original decision refers to the
Residence when awarding spousal support and in determining the issue of attorney fees. The trial
court’s original judgment entry does not, and any reliance upon language contained the
magistrate’s decision that was not subsequently incorporated into the trial court’s judgment entry
is misplaced. See Reisinger v. Reisinger, 9th Dist. Lorain No. 18CA011444, 2019-Ohio-2268, ¶
11, quoting Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 218 (9th Dist.2000) (“Once
a magistrate’s decision has been filed and served upon the parties, the trial court must then act
upon the decision. * * * Although the judge entirely agrees with the decision of the magistrate, the
judge must still separately enter his or her own judgment setting forth the outcome of the dispute
and the remedy provided.”); Civ.R. 53(D).
{¶37} This Court’s review of the trial court’s original judgment entry indicates that the
trial court expressly stated that the Residence was Mr. Sharp’s separate property, and that it was
not subject to an equitable setoff. It determined that, because it had allocated the Residence to Mr.
Sharp as his separate property, Mr. Sharp would be solely liable for the delinquent real estate taxes.
It then indicated that the home equity line of credit was used to purchase Ms. Sharp’s GMC Envoy
and a roof for the Residence. It concluded that it was equitable to allocate the portion of the home
12
equity line of credit attributable to the roof to Mr. Sharp, and to equitably setoff the allocation of
the GMC Envoy to Ms. Sharp by awarding Mr. Sharp certain tools. On remand, the trial court
divided the delinquent real estate taxes and the balance of the home equity line of credit attributable
to the roof equally between the parties.
{¶38} Despite Mr. Sharp’s arguments to the contrary, there is no indication that the trial
court considered the allocation of the Residence to Mr. Sharp as his separate property when
allocating the remaining assets and debts, his personal tax liabilities, the issue of spousal support,
or his claim of financial misconduct. The trial court reiterated this point on remand, stating that it
“did not allocate financial assets and debts or order spousal support based upon or in consideration
of the designation of [the Residence] as separate or marital property.”
{¶39} Regarding his claim for financial misconduct, the trial court’s original judgment
entry indicates that it considered the relevant statutory factors, and that it concluded that Ms. Sharp
did not engage in financial misconduct. Mr. Sharp did not appeal that decision. Despite Mr.
Sharp’s argument to the contrary, this Court fails to see how the trial court’s decision in this regard
was inextricably intertwined with the allocation of the Residence as his separate property such that
the trial court should have reexamined that issue on remand.
{¶40} While Mr. Sharp’s foregoing arguments lack merit, we do find merit in his
argument regarding the tax consequences from the sale of the racecar. This Court’s decision in
Sharp I created a new issue that the trial court had no reason to address prior to Sharp I when the
Residence was allocated to Mr. Sharp as his separate property: the allocation of liability related to
the tax consequences from the sale of the racecar now that the Residence is marital property. Mr.
Sharp raised this issue in his objections to the magistrate’s decision, but the trial court summarily
denied his objections without explaining its reasoning. While we find no error in the trial court’s
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general conclusion that Mr. Sharp should be solely liable for any tax liabilities due to his failure
to file taxes over the years, we conclude that the trial court erred by not addressing the allocation
of liability related to the tax consequences from the sale of the racecar on remand. We, therefore,
remand the matter for the trial court to address this issue in the first instance.
{¶41} Aside from the allocation of liability related to the tax consequences from the sale
of the racecar, we cannot say that the trial court erred by not reexamining the issues raised in Mr.
Sharp’s first assignment of error on remand. Nor can we say that the trial court erred by not
permitting Mr. Sharp to present additional evidence on those issues. Mr. Sharp’s first assignment
of error in C.A. No. 21AP0007 is overruled in part, and sustained in part.
ASSIGNMENT OF ERROR II – C.A. NO. 21AP0007
THE MAGISTRATE AND THE TRIAL COURT ERRED BY REJECTING
GLENN’S REQUEST TO CONDUCT AN EVIDENTIARY HEARING TO
CONSIDER A NEW DIVISION OF PROPERTY AND DEBT ORDER DUE TO
THE FACT THAT THE TRIAL COURT’S DECISION ON ALL REMAINING
CLAIMS OF THE PARTIES WAS INEXTRICABLY INTERTWINED WITH
THE FINDING OF THE RESIDENCE TO BE GLENN’S SEPARATE
PROPERTY.
{¶42} In his second assignment of error in C.A. No. 21AP0007, Mr. Sharp argues that the
trial court erred by not holding an evidentiary hearing on remand. He again argues that the trial
court’s original decision to allocate the Residence as his separate property was inextricably
intertwined with its decision on the parties’ remaining claims. He argues that an evidentiary
hearing was necessary on remand because the reclassification of the Residence as marital property
affected the remaining claims between the parties.
{¶43} Consistent with our resolution of Mr. Sharp’s first assignment of error, we conclude
that the trial court did not err by not reexamining all of the parties claims on remand. It, therefore,
follows that the trial court did not err by not holding an evidentiary hearing on those issues.
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{¶44} As explained in our resolution of Mr. Sharp’s first assignment of error, the trial
court did err by not addressing the allocation of liability related to the tax consequences from the
sale of the racecar now that the Residence is marital property. This Court’s resolution of Mr.
Sharp’s first assignment of error remands the matter for the trial court to address that issue in the
first instance. Accordingly, whether an evidentiary hearing is necessary on that issue is a matter
for the trial court to decide. Mr. Sharp’s second assignment of error in C.A. No. 21AP0007 is
overruled.
ASSIGNMENT OF ERROR III – C.A. NO. 21AP0007
THE MAGISTRATE AND THE TRIAL COURT ERRED BY FINDING THAT
THE MAGISTRATE’S REPORT AND DECISION, NUNC PRO TUNC
(APPENDIX A) AND JUDGMENT ENTRY DIVORCE DECREE, NUNC PRO
TUNC (APPENDIX B) DID NOT ALLOCATE FINANCIAL ASSETS AND
DEBTS OR ORDER SPOUSAL SUPPORT BASED UPON A
CONSIDERATION OF THE DESIGNATION OF THE RESIDENCE AS
SEPARATE PROPERTY. THIS MAGISTRATE’S DECISION AND THE
TRIAL COURT’S ORDER ADOPTING THE MAGISTRATE’S DECISION ARE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶45} In his third assignment of error in C.A. No. 21AP0007, Mr. Sharp argues that the
trial court erred by concluding that it had not allocated financial assets and debts or ordered spousal
support based upon its allocation of the Residence to Mr. Sharp as his separate property. He argues
that the trial court did, in fact, allocate financial assets and debts and order spousal support based
upon its allocation of the Residence to him as his separate property, and that the reclassification of
the Residence as marital property on remand required a new evidentiary hearing and a complete
reexamination of these issues.
{¶46} In support of his third assignment of error, Mr. Sharp cites portions of the
magistrate’s decision wherein the magistrate referred to the Residence being allocated to Mr. Sharp
as his separate property when considering the issues of attorney fees and spousal support. As we
15
noted in our resolution of Mr. Sharp’s first assignment of error, however, any reliance on the
magistrate’s decision – as opposed to the trial court’s judgment entry – is misplaced. The trial
court’s original judgment entry does not indicate that it allocated financial assets and debts, or
ordered spousal support based upon its allocation of the Residence to Mr. Sharp as his separate
property. The trial court reiterated this fact in its judgment entry on remand, stating that it “did
not allocate financial assets and debts or order spousal support based upon or in consideration of
the designation of [the Residence] as separate or marital property.” We, therefore, cannot say that
the trial court erred by not holding an evidentiary hearing on these issues, and instead relying upon
information already contained in the record when issuing its decision on remand. To the extent
the allocation of debts includes the tax consequences from the sale of the racecar, this Court’s
resolution of Mr. Sharp’s first assignment of error addresses that issue. Mr. Sharp’s third
assignment of error in C.A. No. 21AP0007 is overruled.
ASSIGNMENT OF ERROR IV – C.A. NO. 21AP0007
THE MAGISTRATE AND TRIAL COURT ERRED, AS A MATTER OF LAW,
BY REFUSING TO CONDUCT AN EVIDENTIARY HEARING ON
APPELLANT’S MOTION TO REDUCE SPOUSAL SUPPORT, MOTION TO
TERMINATE SPOUSAL SUPPORT AND MOTION TO SUSPEND SPOUSAL
SUPPORT DUE TO THE CONTINUING JURISDICTION OF THE TRIAL
COURT. JURISDICTION OVER SPOUSAL SUPPORT WAS SPECIFICALLY
RESERVED AS TO THE AMOUNT AND DURATION IN THE
MAGISTRATE’S REPORT AND DECISION, NUNC PRO TUNC (APPENDIX
A) AND THE JUDGMENT ENTRY DECREE OF DIVORCE, NUNC PRO
TUNC (APPENDIX B).
{¶47} In his fourth assignment of error in C.A. No. 21AP0007, Mr. Sharp argues that the
trial court erred by not conducting an evidentiary hearing on his Motion to Modify. He argues that
the trial court retained jurisdiction over the amount and duration of spousal support, and that Sharp
I did not preclude the trial court from hearing additional evidence related to that motion on remand.
16
{¶48} Despite Mr. Sharp’s arguments to the contrary, there is no indication that the trial
court considered the allocation of the Residence to Mr. Sharp as his separate property when
determining the issue of spousal support. The trial court reiterated this point on remand, stating
that it did not order spousal support “based upon or in consideration of the designation of [the
Residence] as separate or marital property.” On remand, the trial court decided the issue of spousal
support based upon facts and conclusions already contained in the record. Under these facts, we
cannot say that it erred by doing so. Mr. Sharp’s fourth assignment of error in C.A. No. 21AP0007
is overruled. We now turn to the assignments of error raised in C.A. No. 21AP0019.
ASSIGNMENT OF ERROR I – C.A. NO. 21AP0019
THE MAGISTRATE AND THE TRIAL COURT ERRED, AS A MATTER OF
LAW, BY ISSUING AND ADOPTING THE MAGISTRATE’S ORDER AND
DECISION REFUSING TO ADDRESS APPELLANT’S MOTION TO MODIFY
SPOUSAL SUPPORT; IN THE ALTERNATIVE, MOTION TO TERMINATE
SPOUSAL SUPPORT; IN THE FURTHER ALTERNATIVE MOTION TO
IMMEDIATELY SUSPEND AND/OR ESCROW SPOUSAL SUPPORT
PAYMENTS BY IMPOSING A STAY AND FINDING THAT THE TRIAL
COURT DID NOT HAVE JURISDICTION TO ADDRESS APPELLANT’S
MOTION TO MODIFY DUE TO THE FILING OF APPELLANT’S NOTICE OF
APPEAL IN CASE NO. 2021 AP-X 000007.
{¶49} In his first assignment of error in C.A. No. 21AP0019, Mr. Sharp argues that the
trial court erred by denying his motion to set aside the magistrate’s order. More specifically, he
argues that the trial court erred by not addressing his Motion to Modify, and by concluding that it
did not have jurisdiction to consider it while C.A. No. 21AP0007 remained pending with this
Court. As previously noted, Mr. Sharp asserted in his Motion to Modify that the trial court
specifically retained jurisdiction over the amount and duration of the spousal support award, and
that this Court’s decision in Sharp I warranted a modification, termination, or suspension of
spousal support payments.
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{¶50} After the trial court issued its decision on remand, Mr. Sharp filed his Motion for
Clarification, asserting that the trial court’s judgment entry on remand did not address his Motion
to Modify. He then filed his objections to the magistrate’s decision, and later supplemented his
objections. The trial court summarily overruled Mr. Sharp’s objections, and he filed C.A. No.
21AP0007 with this Court.
{¶51} Several weeks later, the magistrate issued an order stating that the trial court had
“addressed the issue of spousal support on remand, implicitly denying the [Motion to Modify].
The Judgement Entry is now on appeal to the Ninth District Court of Appeals and this Court does
not have jurisdiction to modify or terminate the award pending appellate review.” Mr. Sharp then
moved the trial court to set aside the magistrate’s order, which the trial court denied. He then filed
C.A. No. 21AP0019 with this Court.
{¶52} While the trial court did not issue a separate judgment entry denying Mr. Sharp’s
Motion to Modify, its judgment entry on remand addressed the issue of spousal support, finding
the award fair and equitable. In doing so, it explained that this Court’s remand in Sharp I did not
affect its spousal support award. The magistrate’s subsequent order clarified that the trial court’s
judgment entry on remand implicitly denied Mr. Sharp’s Motion to Modify. The fact that the
magistrate also stated that the trial court did not have jurisdiction to modify or terminate the spousal
support award while C.A. No. 21AP0019 remained pending is immaterial. We note that the trial
court’s judgment entry denying Mr. Sharp’s motion to set aside the magistrate’s order does not
mention the issue of its jurisdiction. Regardless, the magistrate’s order makes clear that the trial
court did consider Mr. Sharp’s Motion to Modify before issuing its decision on remand and, thus,
before Mr. Sharp filed C.A. No. 21AP0019. Mr. Sharp’s argument to the contrary, therefore, lacks
merit. Mr. Sharp’s first assignment of error in C.A. No. 21AP0019 is overruled.
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ASSIGNMENT OF ERROR II – C.A. NO. 21AP0019
THE MAGISTRATE AND THE TRIAL COURT ERRED AS A MATTER OF
LAW BY ISSUING AND ADOPTING A MAGISTRATE’S ORDER, SUA
SPONTE, IMPOSING A STAY WITHOUT ADDRESSING THE QUESTION OF
BOND.
{¶53} In his second assignment of error in C.A. No. 21AP0019, Mr. Sharp argues that the
trial court erred by imposing a stay without addressing the issue of bond. He asserts that his Motion
to Modify included a request that spousal support payments be escrowed or held pending a decision
on that motion. He argues that the magistrate’s order imposed a stay that requires him to pay
spousal support pending a final decision on his Motion to Modify and the two appeals currently
pending before this Court. He argues that the trial erred by denying his motion to set aside that
order, and the trial court should have addressed the issue of bond.
{¶54} Like his first assignment of error in C.A. No. 21AP0019, Mr. Sharp’s second
assignment of error is premised upon his erroneous belief that the trial court has not ruled on his
Motion to Modify. As discussed in the previous assignment of error, the magistrate issued an
order after the trial court issued its judgment entry on remand, clarifying that the trial court’s
judgment entry implicitly denied Mr. Sharp’s Motion to Modify. Any argument premised upon
the trial court’s failure to rule on that motion, therefore, lacks merits.
{¶55} Moreover, Mr. Sharp erroneously conflates the magistrate’s order with an order
issuing a stay. The magistrate’s order did not issue a stay; it clarified the fact that the trial court
implicitly denied Mr. Sharp’s Motion to Modify when it issued its judgment entry on remand. Mr.
Sharp’s arguments regarding the imposition of a stay, therefore, lack merit.
{¶56} In light of the foregoing, Mr. Sharp’s second assignment of error in C.A. No.
21AP0019 is overruled.
III.
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{¶57} Mr. Sharp’s first assignment of error in C.A. No. 21AP0007 is overruled in part,
and sustained in part. Mr. Sharp’s second, third, and fourth assignments of error in C.A. No.
21AP0007 are overruled. Mr. Sharp’s assignments of error in C.A. No. 21AP0019 are overruled.
The judgment of the Wayne County Court of Common Pleas relative to C.A. No. 21AP0007 is
affirmed in part, reversed in part, and the matter is remanded for further proceedings consistent
with this decision. The judgment of the Wayne County Court of Common Pleas relative to C.A.
No. 21AP0019 is affirmed.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
JENNIFER HENSAL
FOR THE COURT
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TEODOSIO, J.
SUTTON, J.
CONCUR.
APPEARANCES:
JAMES M. RICHARD, Attorney at Law, for Appellant.
ROSANNE K. SHRINER, Attorney at Law, for Appellee.