Smith v. Smith

[Cite as Smith v. Smith, 2019-Ohio-899.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
REBBECCA R. SMITH, :
: Case No. 18CA11
Plaintiff-Appellant, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
CLIFFORD F. SMITH JR., :
:
Defendant-Appellee. : Released: 03/07/19
_____________________________________________________________
APPEARANCES:
Rebbecca R. Smith, Logan, Ohio, Pro Se Appellant.
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Rebbecca R. Smith and Clifford R. Smith, Jr., were granted a
divorce on June 11, 2018. Rebbecca R. Smith appeals the Decision and
Judgment Entry of the Hocking County Common Pleas Court, entered May
21, 2018, which overruled her objections to the Magistrate’s Decision of
January 4, 2018. Upon review, we find the trial court did not abuse its
discretion with regard to its rulings on the objections. Accordingly, we
overrule all assignments of error and affirm the judgment of the trial court.
FACTS
{¶2} The parties, Appellant Rebbecca R. Smith and Appellee Clifford
Hocking App. No. 18CA11 2
F. Smith, Jr., were married on December 30, 2016. Appellant filed a
complaint for divorce in the Hocking County Common Pleas Court on May
1, 2017. Contemporaneously, Appellant filed an ex parte motion for a
temporary restraining order and an ex parte motion for temporary orders
granting exclusive occupancy of the marital residence. On May 4, 2017, the
Magistrate granted Appellant’s motions. On May 17, 2017, Appellee filed
an answer and counter-claim in which he agreed that the parties were
incompatible and also requested the divorce complaint to be granted.
{¶3} Appellant subsequently filed a request for mediation which was
denied. On June 16, 2017, the trial court filed an order granting Appellant’s
notice of voluntary dismissal of the action. However, on July 10, 2017,
Appellant filed a notice of withdraw of voluntary dismissal. She also filed a
request for sale of the marital residence. On July 12, 2017, Appellant filed a
motion for contempt. Attached to the motion for contempt was Appellant’s
affidavit, in which she made several allegations that Appellee had violated
the temporary restraining order. Pertinent to this appeal, Appellant alleged
that Appellee had removed her teenage son from the automobile insurance.
{¶4} The divorce action came on for hearing before the Magistrate on
November 15, 2017. The parties filed post-trial briefs on the contested
Hocking App. No. 18CA11 3
issues. On January 4, 2018, the Magistrate’s Decision/Judgment Entry was
filed.
{¶5} The Magistrate found that the parties stipulated certain
preliminary and foundational issues. The Magistrate took judicial notice of
a civil protection order case, 17-DR/DV-0061, originally filed May 1, 2017.
The Magistrate found the remaining issues were: (1) equity in the marital
residence and (2) division of marital joint savings and checking accounts.
The Magistrate made findings of fact and conclusions of law and ordered
Appellee’s counsel to prepare a Decree of Divorce within 14 days of the
time period for objections to the decision.
{¶6} Appellant filed Objections to the Decision of the Magistrate on
January 11, 2018. In the objections’ pleading, Appellant’s counsel set forth
6 objections. Included within this pleading was Appellant’s own listing of
objections and related arguments, along with proposed documentation. On
January 17, 2018, Appellee filed a Motion to Strike Attachments to
Plaintiff’s Objections to Decision of Magistrate, arguing that nearly all of
the attachments had not been made exhibits at trial.
{¶7} On March 20, 2018, Appellee filed a reply to the objections. On
May 21, 2018, the trial court filed a Judgment Entry. The trial court
overruled all objections and affirmed all other orders of the Magistrate. The
Hocking App. No. 18CA11 4
trial court filed a Judgment Entry-Decree of Divorce on June 11, 2018. This
timely appeal followed.
JURISDICTION OF THIS COURT
{¶8} We are initially presented with the question of whether we have
a final appealable order. The judgment entry attached to the June 20, 2018
notice of appeal is the trial court’s Journal Entry filed May 21, 2018.1 Two
issues are presented: (1) Appellant did not attach a copy of the Judgment
Entry-Final Decree of Divorce filed June 11, 2018; and (2) the record does
not reflect that Appellee’s counter-claim was dismissed either orally or
writing.
{¶9} Section 3(B)(2), Article IV of the Ohio Constitution provides
that courts of appeals have “such jurisdiction as may be provided by law to
review and affirm, modify, or reverse judgments or final orders of the courts
of record inferior to the court of appeals within the district * * *.” Generally
speaking, “[a]n order of a court is a final appealable order only if the
requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met.
Liming v. Liming, at ¶ 3, quoting State ex rel. Scruggs v. Sadler, 97 Ohio
St.3d 78, 776 N.E.2d 101, 2002-Ohio-5315, at ¶ 5. If an order is not both
final and appealable, a reviewing court has no jurisdiction to consider the
1
Appellant also attaches to the notice of appeal a document captioned “Plaintiff’s Objections to Judges
Decision/Judgment Entry filed May 21, 2018.”
Hocking App. No. 18CA11 5
matter and has no choice but to dismiss the appeal. The Bell Drilling &
Producing Co. v. Kilbarger Constr., Inc., 4th Dist. Hocking No. 96CA23,
1997 WL 361025 (June 26, 1997), at *2.
{¶10} To determine whether an order is final and appealable, an
appellate court's review involves a two-step process. Liming, supra, at ¶ 6,
citing Wisintainer v. Elcen Power Strut Co., 67 Ohio St.3d 352, 354, 1993-
Ohio-120, 617 N.E.2d 1136. First, and most important, a reviewing court
must focus its attention on whether the appealed order is “final” as
established by R.C. 2505.02; that is, whether the order affects a substantial
right and in effect determines the action and prevents a judgment.
Wisintainer at 354, 617 N.E.2d 1136. A divorce proceeding is a “special
proceeding.” Robinson v. Robinson, ¶ 6. See Wilhelm–Kissinger v.
Kissinger, 129 Ohio St.3d 90, 91, 2011-Ohio-2317, 950 N.E.2d 516; State ex
rel. Papp v. James, 69 Ohio St.3d 373, 379, 632 N.E.2d 889 (1994); Davis v.
Davis, 4th Dist. Jackson No. 00CA28, 2001 WL 884090, *3. However, an
order made in a special proceeding is final only if it affects a substantial
right. Robinson, supra, at ¶ 7. R.C. 2505.02(B)(2). “An order which affects
a substantial right has been perceived to be one which, if not immediately
appealable, would foreclose appropriate relief in the future.” Bell v. Mt.
Sinai Med. Ctr., 67 Ohio St.3d 60, 63, 616 N.E.2d 181 (1993).
Hocking App. No. 18CA11 6
{¶11} App.R. 4(A) provides that a party who wishes to appeal from an
order that is final upon its entry shall file the notice of appeal required by
App.R. 3 within 30 days of that entry. App.R. 3(D) requires that a notice of
appeal “designate the judgment, order or part thereof appealed from.” Here,
Appellant attached the May 21, 2018 entry to the notice of appeal but did not
attach the Judgment Entry-Final Decree of Divorce dated June 11, 2018. A
final decree of divorce determines the entire case and reserves nothing for
future determination. R.C. 2505.02. Evans v. Cole, 4th Dist. Jackson No.
00CA17, 2011 WL 688594 (June 11, 2001), at *4. And, temporary orders
merge into the final divorce decree. Evans, supra, citing Colom v. Colom, 58
Ohio St.2d 245, 389 N.E.2d 856 (1979).
{¶12} In Jenkins v. Hill, 4th Dist. Meigs No. 4CA4, 2015-Ohio-118,
Appellant Jenkins designated the trial court's February 27, 2014 judgment
denying his motion for new trial in his notice of appeal, but his assignment
of error and related argument contested the trial court's February 10, 2014
judgment entered on the jury verdict in favor of the opposing parties.
Jenkins did not request a new trial but instead requested a reversal of the
judgment entered by the trial court on the jury verdict. We were guided by
the decision in Transamerica Inc. Co. v. Nolan, 72 Ohio St.3d 320, 649
N.E.2d 1229 (1995), syllabus, wherein the Supreme Court of Ohio expressly
Hocking App. No. 18CA11 7
recognized that “[p]ursuant to App.R. 3(A), the only jurisdictional
requirement for a valid appeal is the timely filing of a notice of appeal.” See
Jenkins, supra, at ¶ 9. Therefore, in Jenkins we held, consistent with
Transamerica, that a failure to comply with App.R. 3(D) is not a
jurisdictional defect. Id. See, e.g., Bank of Am., N.A. v. Robledo, 10th Dist.
Franklin No. 13AP–278, 2014–Ohio–1185, ¶ 14, a case in which the
appellants failed to comply with App.R. 3(D) (“This court has rejected the
contention that a defect in a notice of appeal that has been timely filed from
a final judgment defeats jurisdiction.”)
{¶13} The Transamerica decision further provided at ¶ 10: “When
presented with other [i.e. nonjurisdictional] defects in the notice of appeal, a
court of appeals is vested with discretion to determine whether sanctions,
including dismissal, are warranted, and its decision will not be overturned
absent an abuse of discretion.” Id. at syllabus. In Jenkins, we noted that
there was in fact a final appealable order, and the appellees had not
established any prejudice from the App.R. 3(D) defect. In the briefing, the
appellees had addressed the merits of Jenkins' claims. Under these
circumstances, we exercised our discretion to address the merits of this
Hocking App. No. 18CA11 8
appeal. See also Avery v. Avery, 2nd Dist. Greene No. 2001-CA-100, 2002-
Ohio-1188, at *1.2
{¶14} In this case, Appellant’s notice of appeal specifies that she is
appealing the Judgment Entry filed May 21, 2018. Appellant is acting pro
se. Pro se civil litigants are bound by the same rules and procedures as those
litigants who retain counsel. Hinton v. Shoop, 4th Dist. Ross No. 17CA3619,
2018-Ohio-3647, at Fn. 2; see Meyers v. First Natl. Bank, 3 Ohio App.3d
209, 210, 444 N.E.2d 412 (1981). However, to decide cases on their merits
and further the interest of justice, we must give pro se litigants wide latitude.
Miller v. Kutschbach, 111 Ohio App.3d 157, 159, 675 N.E.2d 1277 (4th
Dist.1996).
{¶15} The May 21, 2018 journal entry was merged into the Judgment
Entry-Final Decree of Divorce. Appellant could not have appealed the May
entry until the final decree of divorce was entered on the record. Once the
final decree was entered, Appellant timely filed her notice of appeal. As in
Jenkins, supra, given that Appellee received adequate notice of the issues
raised and has responded to them, we find no harm. Therefore, we do not
find this non-jurisdictional defect prevents our consideration of the appeal.
2
Appellate court considered the merits of a cross-appeal where, after examining the record and the timely-
filed notice of cross-appeal, and while observing that the notice might have been better worded, the defect
did not merit sanction, including dismissal. Appellee was not harmed in any way, and both Appellee and
the appellate court could adequately tell from the notice that cross-appellant intended to appeal from the
final judgment of the trial court.
Hocking App. No. 18CA11 9
{¶16} The second issue with regard to our ability to consider the
appeal is the fact that the record reveals Appellee’s counterclaim was not
dismissed either orally or in writing. However, generally, when an order
does not contemplate further action and no other related issues remain
pending, the order normally constitutes a final order. Cummin v. Cummin;
Elliott v. Rhodes at ¶ 17; citing In re H.T.–W., 6th Dist. Lucas No. L-10-
1027, 2010-Ohio-1714, 2010 WL 1531682, ¶ 7; see also Christian v.
Johnson, 9th Dist. Summit No. 24327, 2009-Ohio-3863. Civ.R. 75(F)
forbids a trial court from entering a final judgment unless the judgment also
divides the parties' property and allocates parental responsibilities. If the
requirements of the two-step process have been met and the order disposes
of all claims and/or parties involved in the action, it is final and appealable
and subject to appellate review.
{¶17} In this case, the Judgment Entry-Decree of Divorce entered
June 11, 2018 addressed all issues raised by the parties and none are
outstanding. Although the trial court's judgment entry did not expressly
dismiss Appellee’s counterclaim, the effect of the judgment makes clear that
all issues were resolved. See Park v. Park, 10th Dist. Franklin No. 08AP-
612, 2008-Ohio-6315, at ¶ 6; Gleason v. Gleason, 4th Dist. Scioto No.
08AP612, 2008-Ohio-6315, (Mar. 7, 1990), at *1. See also Wise v. Gurskey,
Hocking App. No. 18CA11 10
66 Ohio St.2d 241, 421 N.E.2d 150, 151 (1981) and Noble v. Colwell, 44
Ohio St.3d 92, 96, 540 N.E.2d 1381, (1989), fn. 4. The fact that the
counterclaim was not expressly dismissed also does not prevent us from
considering the appeal. Therefore, and in the interests of justice, we proceed
to consider Appellant’s assignments of error.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN GRANTING THE JOINT
COMMINGLED CHECKING/SAVINGS ACCOUNT WAS
SOLE PROPERTY OF THE HUSBAND WITH NO
INTEREST WITH WIFE THEREIN.
II. THE TRIAL COURT ERRED WHEN IT TOTALLY
DISCOUNTED AN EXPERT’S REPORT AS TO THE
VALUATION OF THE HOME AS $237,000.00.
III. THE TRIAL COURT ERRED WHEN IT FOUND THAT
THE DURATION OF THE MARRIAGE WAS DECEMBER
30, 2016 TO MAY 1, 2017.
IV. THE TRIAL COURT ERRED WHEN IT FOUND THAT
THE WIFE SHOULD REPAY HUSBAND THE SUM OF
$11,000.00.
V. THE TRIAL COURT, THROUGH THE MAGISTRATE,
ERRED IN NOT CONDUCTING A HEARING ON THE
CONTEMPTS.”
DURATION OF THE MARRIAGE
{¶18} For ease of analysis, we begin with consideration of
Appellant’s third assignment of error.
Hocking App. No. 18CA11 11
1. STANDARD OF REVIEW
{¶19} “Trial courts possess broad discretion in choosing the
appropriate marriage termination date for purposes of property valuation.”
Cornelius v. Cornelius, 4th Dist. Washington No. 12CA19, 2012-Ohio-6293,
at ¶ 8, quoting Soulsby v. Soulsby, 4th Dist. Meigs No. 07CA1, 2008-Ohio-
1019, ¶ 26, citing Berish v. Berish, 69 Ohio St.2d 318, 319, 432 N.E.2d 183(1982). “Thus, we will not disturb the termination of marriage date absent
an abuse of discretion.” Id., citing Berish at 319. The phrase “abuse of
discretion” implies that the court's attitude is unreasonable, unconscionable,
or arbitrary. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
“When applying the abuse of discretion standard, a reviewing court is not
free to merely substitute its judgment for that of the trial court.” In re Jane
Doe 1, 57 Ohio St.3d 135, 137–138, 566 N.E.2d 1181 (1991).
{¶20} “The duration of the marriage is critical in distinguishing
marital, separate, and post-separation assets and liabilities, and determining
appropriate dates for valuation.” Cornelius, supra, at ¶ 9, quoting Liming v.
Damos, 4th Dist. Athens No. 08CA34, 2009–Ohio–6490, ¶ 26, citing Eddy
v. Eddy, 4th Dist. Washington No. 01 CA20, 2002–Ohio–4345, ¶ 23. Under
R.C. 3105.171(A)(2), “during the marriage” means whichever of the
following is applicable:
Hocking App. No. 18CA11 12
(a) Except as provided in division (A)(2)(b) of this section, the
period of time from the date of the marriage through the date of
the final hearing in an action for divorce or in an action for
legal separation;
(b) If the court determines that the use of either or both of the
dates specified in division (A)(2)(a) of this section would be
inequitable, the court may select dates that it considers
equitable in determining marital property. If the court selects
dates that it considers equitable in determining marital property,
“during the marriage” means the period of time between those
dates selected and specified by the court.
{¶21} “Thus, the court may presume the date of the final hearing for
divorce is the appropriate termination date of the marriage unless the court
determines that the application of such a date would be inequitable.”
Cornelius, at ¶ 10, quoting Liming at ¶ 27. Accordingly, “[e]quity may
occasionally require valuation as of the date of the de facto termination of
the marriage. The circumstances of a particular case may make a date prior
to trial more equitable for the recognition, determination and valuation of
relative equities in marital assets.” Berish, supra, at 320. As the Berish
Court explained:
“The choice of a date as of which assets available for equitable
distribution should be identified and valued must be dictated
largely by pragmatic considerations. The public policy giving
rise to equitable distribution is at least in part an
acknowledgment that marriage is a shared enterprise or joint
undertaking. While marriage is literally a partnership, it is a
partnership in which the contributions and equities of the
partners do differ from individual case to individual case.
Assets acquired by the joint efforts of the parties should be, on
Hocking App. No. 18CA11 13
termination, eligible for distribution. But the precise date upon
which any marriage irretrievably breaks down is extremely
difficult to determine, and this court will avoid promulgating
any unworkable rules with regard to this determination. It is the
equitableness of the result reached that must stand the test of
fairness on review. Id. at 319–320.”
{¶22} “This court has noted that trial courts generally ‘use a de facto
termination of marriage date when the parties separate, make no attempt at
reconciliation, and continually maintain separate residences, separate
business activities and/or separate bank accounts.’ ” Cornelius, at ¶ 11,
quoting Murphy v. Murphy, 4th Dist. Lawrence No. 07CA35, 2008–Ohio–
6699, ¶ 38, quoting Soulsby, supra, at ¶ 29. “Courts should be reluctant to
use a de facto termination of marriage date solely because one spouse
unilaterally vacates the marital home.” Soulsby at ¶ 29. However, the “ ‘trial
court may use a de facto termination of marriage date when the evidence
clearly and bilaterally shows that it is appropriate based upon the totality of
the circumstances.’ ” Murphy at ¶ 38, quoting Soulsby at ¶ 29.
2. LEGAL ANALYSIS
{¶23} Here, the trial court found the duration of the marriage was
from December 30, 2016 to May 1, 2017. Appellant asserts that the
magistrate should have used the final hearing date of November 16, 2017 as
the date of the parties’ divorce. Appellant bases her argument on the fact
Hocking App. No. 18CA11 14
that the parties still maintained equity in the marital home up to the final
hearing date and improvements to the home were ongoing.
{¶24} The trial court found as follows:
“Pursuant to ORC Section 3105.171(A)(2), the duration of the
marriage is from December 30, 2016 to May 1, 2017. The
Court finds that use of said dates is fair and equitable. The
parties were married for a little over 4 months. There were no
financial entanglements upon the filing of the Complaint. In
fact, Wife had made a withdraw from the savings account with
the specific intent to essentially wipe-out the marriage as if it
did not exist in the first place. Husband denied a credit card
claim and closed-out accounts in order to disentangle the parties
at or about May 1, 2017. The only remaining claim is by Wife
that there is some marital equity in the Deerfield home.
Wherefore, the Court finds May 1, 2017 an equitable de facto
termination date for this marriage.”
{¶25} Appellee argues the trial court did not err in its finding,
asserting that from the time Appellant filed her Complaint for Divorce and
removed money from the savings account, the parties separated, lived
separately, and remained separate. Appellee points out that the parties made
no attempts at reconciliation. They also maintained separate residences and
separate accounts from that time on.
{¶26} We agree with the court’s de facto finding. In this case, the
parties had only been married four months when the divorce complaint was
filed on May 1, 2017. The evidence clearly shows that under the totality of
the circumstances, the marriage was effectively over as of May 1, 2017. As
Hocking App. No. 18CA11 15
such, we find no merit to Appellant’s argument. The trial court did not
abuse its discretion in making its de facto finding. Appellant’s third
assignment of error is hereby overruled.
DIVISION OF PROPERTY
{¶27} Because Appellant’s arguments under assignments of error one
and four are interrelated, we consider them jointly.
1. STANDARD OF REVIEW
{¶28} Trial courts must divide marital property equitably between the
spouses. King v. King, 4th Dist. Washington No. 2014-Ohio-5836, at ¶ 14;
R.C. 3105.171(B). Usually, this requires that marital property be divided
equally. R.C. 3105.171(C)(1). “However, if the trial court determines that
an equal division would produce an inequitable result, it must divide the
property in a way it deems equitable.” O'Rourke v. O'Rourke, 4th Dist.
Scioto No. 08CA3253, 2010–Ohio–1243, ¶ 15; R.C. 3105.171(C)(1). In
contrast, “the court shall disburse a spouse's separate property to that
spouse.” R.C. 3105.171(D). Because the trial court possesses great
discretion in reaching an equitable distribution, we will not reverse its
division of property absent an abuse of discretion. O'Rourke at ¶ 15.
Hocking App. No. 18CA11 16
2. LEGAL ANALYSIS
{¶29} Appellant asserts that the trial court committed error by
concluding that the parties’ joint checking account was Appellee’s sole
property. The trial court found as follows:
“The Court finds that Husband has adequately traced the
proceeds of the savings account to the proceeds of the sale of
his separate property on Barton Street. Wherefore, the down
payment of $11,556.11 on the Deerfield residence is Husband’s
separate property. The remainder of the savings account was
Husband’s separate property.”
{¶30} Appellant also asserts the trial court erred when it found the
wife should repay husband the sum of $11,000.00. The court made this
finding:
“The Court finds that Wife’s withdrawal from the savings
account of $11,000.00 was from Husband’s separate property.
Without proof that the marriage was a nullity or that there was
fraud in the consummation of the marriage, Wife had no claim
to be “made whole” as if the marriage had not occurred.
Wherefore, she had no claim to take the $11,000.00 from the
savings account. Wife shall repay the Husband the $11,000.00
for his separate property that she withdrew.”
{¶31} “[U]nder R.C. 3105.171(B), a court is under a mandatory duty
to classify property in a divorce proceeding as either marital or separate
before dividing the property.” King, supra, at ¶ 15, quoting Girton v. Girton,
4th Dist. Athens No. 08CA30, 2009–Ohio–4458, ¶ 6. And because “ ‘[a]
trial court must take into account marital debt when dividing marital
Hocking App. No. 18CA11 17
property,’ ” it must also classify the parties' debts, as well as assets, before
distributing their property. Machesky v. Machesky, 4th Dist. Ross No.
10CA3172, 2011–Ohio–862, ¶ 10, quoting Smith v. Emery–Smith, 11th Dist.
Geauga No.2009–G–2941, 2010–Ohio–5302, ¶ 45.
{¶32} Furthermore, the trial court must also value the parties' property
before distributing it. King, supra, at ¶ 16, citing Bray v. Bray, 4th Dist.
Ross No. 10CA3167, 2011–Ohio–861, ¶ 28. “Indeed, a trial court must
place a monetary value on every contested asset of the parties in a divorce
proceeding.” Id. “In any order for the division or disbursement of property
or a distributive award made pursuant to [R.C. 3105.171], the court shall
make written findings of fact that support the determination that the marital
property has been equitably divided * * *.” R.C. 3105.171(G). “[T]he trial
court must make findings ‘in sufficient detail to allow for meaningful
appellate review of its decision.’ ” O'Rourke at ¶ 16, quoting Knight v.
Knight, 4th Dist. Washington No. 99CA27, 2000 WL 426167, *4 (Apr. 12,
2000). See also Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197(1988), paragraph two of the syllabus.
{¶33} In this case, at trial the parties’ testimony and the exhibits
revealed that prior to marriage, Appellee had a PNC savings account he held
jointly with his daughters. When he married Appellant in December 2016,
Hocking App. No. 18CA11 18
he put Appellant’s name on both his checking and savings accounts as of
December 29, 2016. Appellant testified it was Appellee’s desire to put her
name on the accounts and to commingle funds. Appellant testified Appellee
wanted her to have unlimited access to funds.
{¶34} Prior to the marriage, Appellee owned a home on Barton Street
in Logan where he lived prior to his marriage to Appellant. Prior to the
marriage, Appellant was living in a home she was purchasing under a land
contract in Nelsonville. The parties lived in the Nelsonville home for the
first few months of the marriage. Appellant testified she paid for the parties
household expenses the first few months of marriage when they lived in the
Nelsonville home. This depleted Appellant’s prior separate checking
account.
{¶35} The parties decided to purchase a home on Deerfield Street in
Logan. Appellant sold his Barton street property, netting $39, 027.58.
Appellant paid the down payment of $11,556.32 to purchase the Deerfield
Street property from the savings account. The parties stipulated that the
proceeds from the Barton property sale went to the joint checking first;
$5,000.00 stayed in checking and the rest of the proceeds, over $34,000.00
was transferred to the joint savings.
{¶36} On April 28, 2017, Appellant withdrew $11,000.00 from the
Hocking App. No. 18CA11 19
savings account. Appellant testified she withdrew $11,000.00 because she
estimated that was the amount belonging to her as a result of her own
paychecks and her son’s social security checks which were directly
deposited in the savings account. Appellant acknowledged when she figured
up the amount she claimed to be her separate property, she did not figure up
the amount of Appellee’s paychecks and contributions. Appellant agreed it
was fair to say that Appellant had payroll deposits as well into the account,
although she added that he had been on short-term disability, and the amount
of his income would have been reduced.
{¶37} We agree that there is a confusion of the issues with regard to
the checking and the savings accounts in both Appellant’s brief and in her
trial testimony. While Appellant acknowledged the parties had both a joint
checking and joint savings account, Appellant indicates that the parties’
paychecks, other income, and her son’s social security checks were
deposited into the savings account instead of checking. Nevertheless, the
trial court’s ruling pertained solely to the savings account. The documentary
evidence Appellee presented at trial included:
1. Exhibits 10 and 11, which vested sole ownership of the
Barton Street property in him in 2003;
2. Exhibit 6, the check to Appellee for the proceeds in the
amount of $39, 047.58 from the sale of the Barton Street
property;
Hocking App. No. 18CA11 20
3. Exhibit 5, the deposit slip evidencing the proceeds from the
sale were deposited into the parties’ checking account
(reflecting an account number of 9827 as the last four
digits);
4. Exhibit 4, the deposit slip evidencing the deposit of $34,
047.58, (which came from checking) into the savings
account; and,
5. Exhibit 3, the savings account statement evidencing the
$34,047.58 deposit. (This is actually captioned “Premier
Money Market Statement” and reflects an account number
of 9567 as the last four digits.)
{¶38} Appellant did not provide documentary evidence to contradict
these exhibits. She urges reliance upon her unsupported testimony.
However, we will not reverse a trial court's findings of fact if they are
supported by some competent, credible evidence. Patterson v. Patterson v.
Patterson, 4th Dist. Adams No. 95CA654, 1998 WL 880494 (Dec. 14,
1998), at *1; State ex rel. Pizza v. Strope, 54 Ohio St.3d 41, 46, 560 N.E.2d
765 (1990); C.E. Morris v. Foley Construction Co., 54 Ohio St.2d 279, 376
N.E.2d 578 (1978). ).
{¶39} We find that the trial court’s findings are supported by the
record and that Appellee, through testimony and documentation, adequately
traced the proceeds of the savings account to the proceeds from the sale of
his Barton Street property which he owned separately prior to marriage. We
Hocking App. No. 18CA11 21
agree that the savings account and the down payment were correctly deemed
to be Appellant’s separate property.
{¶40} We further agree with the trial court’s order that Appellant
repay Appellee $11,000.00. Appellant testified prior to withdrawing
$11,000.00 from the savings account, the parties had lived in the Deerfield
Street home for approximately four weeks. Appellant testified she was
looking at the accounts online and had seen some improprieties with the
accounts (“pockets of money” being removed). Appellant questioned
Appellee and he became upset. Appellant admitted that the money removed
may have been for use on projects on the new house. Appellant testified as
follows:
“I texted him and I said well I think we need to get separate
accounts for a while, I said until I’m sure what’s going on here
I said because I don’t like some of the behaviors I’m seeing and
I just think we need separate accounts. He texted back he said
fine you get your own I’ll get mine, and I said okay.”
Appellant further testified:
“When I took the money I didn’t take the money with the intent
of thinking we’re going to get divorced and this is going to be
it. I thought I was going to take the money and he was going to
go to a doctor and be looked at and figure out what was going
on.”
***
Hocking App. No. 18CA11 22
“What I did was and you have to understand this wasn’t a clear
I mean it wasn’t like I premeditated to do this it was a split
minute decision based on what was going on.”
{¶41} Appellant withdrew the $11,000.00 from the savings account
on April 28, 2017, two days prior to her filing for divorce. The parties had
been married approximately 4 months. The trial court found this savings
account to be Appellee’s separate property due to Appellee’s ability to
adequately document and trace the proceeds from his sale of his Barton
Street property, separate property he owned prior to his marriage.
{¶42} The trial court is entitled to make its own determination as to
the weight of the evidence and, more importantly, the credibility of
witnesses because it is in the best position to observe the witness's gestures
and voice inflections. See State v. Grant, 67 Ohio St.3d 465, 477, 620
N.E.2d 50 (1993); Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461
N.E.2d 1273 (1984); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1968), at paragraph one of the syllabus. The court is free to believe all, part
or none of the testimony of any witness appearing before it. State v. Nichols,
85 Ohio App.3d 65, 76, 619 N.E.2d 80 (1993); State v. Caldwell, 79 Ohio
App.3d 667, 679, 607 N.E.2d 1096 (1992); State v. Harriston, 63 Ohio
App.3d 58, 63, 577 N.E.2d 1144 (1989). Given the court’s finding that the
proceeds from the sale of the Barton Street property, Appellee’s home and
Hocking App. No. 18CA11 23
separate property for years prior to the marriage, had been adequately traced,
we do not find the trial court’s order to be unsupported. Appellant provided
no documentation of a valid claim to the $11,000.00 and the trial court was
in the best position to view the evidence and assess witnesses’ credibility.
{¶43} We find no merit to Appellant’s first and fourth assignments of
error. They are hereby overruled.
VALUATION OF MARITAL HOME
1. STANDARD OF REVIEW
{¶44} The valuation of property in a divorce case is a question of fact.
Thus, the issue is subject to review under a manifest weight of the evidence
standard. Covert v. Covert, 4th Dist. Adams No. 03CA778, 2004-Ohio-3534,
at ¶ 6. See Brown v. Brown, 4th Dist. Pike No. 02CA689, 2003–Ohio–304, at
¶ 13; Cole v. Cole 4th Dist. Jackson No. 00CA3 (Dec. 15, 2000); Rinehart v.
Rinehart 4th Dist. Gallia No. 96CA10 (May 18, 1998). Consequently, the
trial court's judgment will not be reversed as long as it is supported by some
competent, credible evidence. See Shemo v. Mayfield Hts., 88 Ohio St.3d 7,
10, 2000–Ohio–258, 722 N.E.2d 1018, 1022; Vogel v. Wells, 57 Ohio St.3d
91, 96, 566 N.E.2d 154, 159 (1991); C.E. Morris Co. v. Foley Construction
Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), at the syllabus. This
standard of review is highly deferential and even “some” evidence is
Hocking App. No. 18CA11 24
sufficient to sustain the judgment and to prevent a reversal. See Barkley v.
Barkley, 119 Ohio App.3d 155, 159, 694 N.E.2d 989, 992 (1997); Willman
v. Cole, 4th Dist. Adams No. 01CA725, 2002–Ohio–3596, at ¶ 24; Simms v.
Heskett, 4th Dist. Athens No. 00CA20, (Sept. 18, 2000).
2. LEGAL ANALYSIS
{¶45} The magistrate found the value of the marital home to be
$215,000.00. Appellant asserts that the trial court erred by completely
ignoring an expert’s report as to the valuation of the home in the amount of
$237,000.00. Appellant presented the testimony of Bill Wyskiver, a
licensed appraiser. Appellant concludes that the magistrate should have
considered the $22,000.00 increase in value and split the amount equitably
between the parties.
{¶46} Appellee responds that the magistrate did not totally disregard
the certified appraiser’s opinion. Appellee points out the magistrate
established a de facto termination of marriage date of May 1, 2017. The
property was sold in an arms-length transaction only six weeks prior, for
$215,000.00. Appellee emphasizes that the sale price is the best evidence of
the value.
{¶47} In Jones v. Jones, 4th Dist. Athens No. 14CA33, 2015-Ohio-
3650, we observed at ¶ 29:
Hocking App. No. 18CA11 25
“The Ohio Supreme Court has stated the following concerning
the sale price being the best evidence of the value of a piece of
property: Indeed, as this court has often observed, ‘[a]ppraisals
based upon factors other than sales price are appropriate for use
in determining value only when no arm's-length sale has taken
place, or where it is shown that the sales price is not reflective
of the true value.’ * * * Columbus Bd. of Edn. v. Fountain
Square Assoc., Ltd., 9 Ohio St.3d [218,] 219, 459 N.E.2d 894(1984). See, also, N. Olmsted Bd. of Edn. v. Cuyahoga Cty. Bd.
of Revision, 54 Ohio St.3d 98, 561 N.E.2d 915 (1990), in which
we held that ‘[i]n the absence of evidence of a recent arm's-
length sale between a willing buyer under no compulsion to buy
and a willing seller under no compulsion to sell, the testimony
of expert witnesses becomes necessary’; and Dublin Senior
Community Ltd. Partnership v. Franklin Cty. Bd. of Revision,
80 Ohio St.3d 455, 459, 687 N.E.2d 426 (1997), in which we
held that ‘when an actual sale is not available, “when an
appraisal becomes necessary,” quoting Park Invest. Co. [v. Bd.
of Tax Appeals] 175 Ohio St. [410] 412, 195 N.E.2d 908.’ ”
{¶48} When valuing a marital asset, a trial court is neither required to
use a particular valuation method nor precluded from using any method.
Covert, supra, at ¶ 29; Clymer v. Clymer, 10th Dist. Franklin No. 99AP–924
(Sept. 21, 2000); Kell v. Kell, 4th Dist. Ross No. 92CA1931, 1993 WL
525003 (Dec. 14 1993). However, the court may not simply adopt an
intermediate figure without a supporting rationale when the parties present
substantially different valuations of an asset. See Patterson, supra, at *2.
{¶49} Mr. Wyskiver testified that, as of October 21, 2017, he valued
the home at $237,000.00. The home was purchased on March 14, 2017 for
the amount of $215,000.00. Mr. Wyskiver testified that there were
Hocking App. No. 18CA11 26
significant improvements such as a new HVAC system and floor coverings
which increased the value of the home. Given that Appellee did not present
contradictory testimony, Appellant concludes that the trial court abused its
discretion by totally ignoring the appraiser’s opinion as to the value.
{¶50} Appellee has directed us to the following findings of fact. In
Finding of Fact 8, the court found in pertinent part:
“The marital residence was purchased on March 14, 2017 for
$215,000.00. The appraisal on the residence was $225,000.00,
per wife. * * * Exhibit 8 indicates the withdrawal from the
savings account of $11,556.32. A note was taken for $204,250.
With the borrower only being Clifford Smith, husband.”
{¶51} In Finding of Fact 13, the court further found:
“Wife submits there were some improvements to the Deerfield
residence. * * * Wife’s current appraisal, performed by Bill
Wyskiver, however, would not comment on the prior appraisal,
(which he performed), or indicate an assessment of value
added, if any, by improvements like flooring.”
{¶52} In the trial court’s Conclusions of Law- Property/Debt
Allocation, the court found:
“The Court does not believe the Deerfield property increased in
value as of May 1, 2017. The appraiser indicated he was not
making a retroactive evaluation. The best evidence of the value
is the actual price paid just a matter of 6 weeks prior of
$215,000.00. Wherefore, there is no equity to divide between
the parties.”
{¶53} We agree with the trial court’s finding. We hold that some
Hocking App. No. 18CA11 27
competent credible evidence supports the trial court’s finding that the recent
arms-length sale price is the best evidence of the value in this case,
especially since the appraiser was unable to testify as to the value of any
improvement. The trial court was not required to utilize a particular
valuation method. The court also provided a brief supporting rationale for
its decision.
{¶54} Under these circumstances, we find no merit to Appellant’
argument. Accordingly, the second assignment of error is hereby overruled.
FAILURE TO ADDRESS CONTEMPT
1. STANDARD OF REVIEW
{¶55} Generally, a trial court possesses broad discretion when
considering a contempt motion. Burchett v. Burchett, 4th Dist. Scioto No.
16CA3784, 2017-Ohio-8124, at ¶ 19; State ex rel. Cincinnati Enquirer v.
Hunter, 138 Ohio St.3d 51, 2013–Ohio–5614, 3 N.E.3d 179, ¶ 29, citing
Denovchek v. Trumbull Cty. Bd. of Commrs., 36 Ohio St.3d 14, 16, 520
N.E.2d 1362 (1988) (“the primary interest involved in a contempt
proceeding is the authority and proper functioning of the court, [and
therefore] great reliance should be placed upon the discretion of the
[court]”). Thus, ordinarily, absent an abuse of discretion, an appellate court
will uphold a trial court's contempt decision. E.g., id.; Welch v. Muir, 4th
Hocking App. No. 18CA11 28
Dist. No. 08CA32, 2009–Ohio–3575, ¶ 10. “ ‘[A]buse of discretion’
[means] an ‘unreasonable, arbitrary, or unconscionable use of discretion, or
* * * a view or action that no conscientious judge could honestly have
taken.’ ” State v. Kirkland, 140 Ohio St.3d 73, 15 N.E.3d 818, 2014–Ohio–
1966, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008–Ohio–4493,
894 N.E.2d 671, ¶ 23.
2. LEGAL ANALYSIS
{¶56} In this case, Appellant filed a motion for contempt on July 12,
2017. She alleged that pursuant to the temporary protection order, Appellee
was ordered to keep the parties’ insurance on the car. However, she further
alleges her teenage son was removed from the car insurance policy on May
10, 2017, ten days after the filing of the divorce.3
{¶57} Contempt has been defined as the disregard for judicial
authority. Hambuechen v. 221 Market North, Inc., 5th Dist. Stark No.
2016CA-00216, 2017-Ohio-8998, at ¶ 17; State v. Flinn, 7 Ohio App.3d
294, 455 N.E.2d 691 (9th Dist.1982). “It is conduct which brings the
administration of justice into disrespect, or which tends to embarrass,
impede or obstruct a court in the performance of its functions.” Windham
3
Appellant made additional allegations in the contempt motion. She also emphasized that the date her son
was removed from the insurance coincided with the same day as he had testified in court at the CPO
hearing against Appellee.
Hocking App. No. 18CA11 29
Bank v. Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), paragraph
one of the syllabus.
{¶58} Contempt may be classified as direct or indirect. Hambuechen,
supra, at ¶ 18; In re: Purola, 73 Ohio App.3d 306, 310, 596 N.E.2d 1140(3rd Dist.1991). Direct contempt occurs in the presence of the court, while
indirect contempt occurs outside its immediate presence. Id. “An indirect
contempt is one committed outside the presence of the court but which also
tends to obstruct the due and orderly administration of justice.”
Hambuechen, supra, at ¶ 18; In re Lands, 146 Ohio St. 589, 595, 67 N.E.
433 (1946). In addition, “[c]ontempt is further classified as civil or criminal
depending on the character and purpose of the contempt sanctions.” Purola
at 311. “Civil contempt is designed to benefit the complainant and is
remedial in nature. * * *. State v. Miller, 5th Dist. Holmes No. 02 CA 16,
2003–Ohio–948, ¶ 28, citing Purola, supra. Due process must be observed
in both civil and criminal contempt proceedings. See, e.g., In re Oliver, 333
U.S. 257, 274–275, 68 S.Ct. 499 (1948).
{¶59} The record reflects that the final divorce hearing commenced
with no mention of the contempt motion. During the hearing, Appellant’s
counsel elicited testimony on the insurance and contempt issue by stating at
page 58 of the trial transcript “Okay we have a pending contempt in this
Hocking App. No. 18CA11 30
matter.” Appellant briefly testified that Appellee had canceled her son’s
insurance and attempted to provide hearsay evidence in support. However,
the magistrate sustained all objections to the hearsay evidence. Later in his
testimony, Appellee specifically denied cancelling the insurance. Appellant
rested the case without requesting a specific ruling on the contempt issue.
{¶60} Appellant’s assigns as error the fact that the magistrate failed to
rule on the pending contempt motion. A motion that is not expressly ruled
upon when a case is concluded is presumed overruled. State ex rel. Mender
v. Chauncey, 4th Dist. Athens No. 14CA27, 2015-Ohio-3559, at ¶ 27, citing
Kastelnik v. Helper, 96 Ohio St.3d 1, 3, 2002–Ohio–2985, 770 N.E.2d 58;
see also Physiatrists Associates of Youngstown, Inc. v. Saffold, 11th Dist.
Trumbull No.2003–T–0038, 2004–Ohio–2793, at ¶ 18. Thus, we may
presume the magistrate overruled Appellant’s motion for contempt.
{¶61} Here, Appellee responds that although Appellant filed the
motion for contempt on July 12, 2017, she did not cause proper service to be
made. No attempt was made to serve Appellee directly. Appellee points out
that the hearing notice issued August 2, 2017 for the final hearing made no
mention of the motion for contempt. The civil rules regarding notice apply
when the contempt is civil in nature. Hambuechen, supra, at ¶ 19; Bierce v.
Howell, 5th Dist. Delaware No. 06 CAF 05 0032, 2007–Ohio–3050.
Hocking App. No. 18CA11 31
Appellee concludes the trial court made no error by declining to address the
motion for contempt that was not properly before the court due to
insufficient service.
{¶62} In the May 21, 2018 judgment entry which addressed
Appellant’s objections, the trial court found:
“The fifth objection alleged failure to rule on Ms. Smith’s
motion for contempt. It is clear that the motion was not ruled
upon. However, Mr. Smith argued that in order for the
Magistrate to hear the contempt, it was necessary that the
motion for contempt be served on the party, not just sent to his
attorney. This was not done. Therefore, this objection is
overruled.”
{¶63} Civil Rule 75, divorce actions, provides that the continuing
jurisdiction of the court shall be invoked by motion filed in the original
action, notice of which shall be served in the manner provided for the
service of process under Civ. R. 4 to 4.6. See Civ.R. 75(J). In this appeal,
our review indicates that Appellee made no objection to issue of the
contempt motion itself, based on a lack of personal service. Lack of proper
service under Civ.R. 75(J) can, however, be waived. Where a party appears
in court, fails to object to improper service pursuant to Civ.R. 75(J) and
defends on the merits of the case, that party will be deemed to have waived
the issue of improper service. Sweeney v. Sweeney, 2016-Ohio-1384, 63
Hocking App. No. 18CA11 32
N.E. 3d 542, at ¶ 25. See, e.g., Bedi–Hetlin at ¶ 26; Huston v. Huston, 5th
Dist. Coshocton No. 2013CA0030, 2014-Ohio-5654, at ¶ 37.
{¶64} In this case, at the final divorce hearing, Appellee did not object
when Appellant announced that the contempt was pending and the testimony
elicited pertained to the contempt. Appellee cross-examined Appellant on
the issue. Appellee even raised objections to the introduction of hearsay
evidence supporting Appellant’s testimony without raising objection to the
topic of the contempt itself. And Appellee answered questions regarding the
contempt issue without objecting as to the lack of service and any assumed
lack of ability to prepare for his testimony due to lack of service. Given that
Appellee failed to object to proper service and actually defended on the
contempt issue, we deemed him to have waived the issue of personal
service.
{¶65} Further, based on our review of the record, we find no error or
abuse of discretion in the magistrate’s implicit overruling of the contempt
motion. The trial court was in the best position to view the witnesses and
assess credibility. Appellant testified that Appellee removed her son from
the car insurance in violation of the temporary orders in place. Appellee
denied doing so. The abuse-of-discretion standard is deferential and does
Hocking App. No. 18CA11 33
not permit an appellate court to simply substitute its judgment for that of the
trial court. Burchett, supra, at ¶ 19; Darmond at ¶ 34.
{¶66} For the foregoing reasons, we find no merit to Appellant’s final
assignment of error. As such, the fifth assignment of error is hereby
overruled. Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Hocking App. No. 18CA11 34
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Hocking County Court of Common Pleas to carry this judgment into
execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.