2017 Ohio 8659
Ohio Ct. App.2017Background
- Divorce action between Deborah Alman (plaintiff-appellee) and Jeffrey J. Alman (defendant-appellant); domestic relations court entered a pretrial order, on its own motion, requiring sale at auction of three parcels of real estate with proceeds held in escrow.
- Trial court also had awarded temporary spousal support arrears and sanctions against Jeffrey; the order of sale did not state an explicit reason for selling the real estate.
- Jeffrey argued the sale was ordered to secure payment of roughly $30,000–$40,000 in temporary spousal-support arrears and contended he should have been allowed to liquidate other assets (stock) instead of forcing a sale of real property.
- The appellate court stayed the sale pending appeal and considered whether the order of sale was a final, appealable order and whether the trial court abused its discretion by ordering the sale.
- After the appeal was filed, Jeffrey and the parties submitted an agreed judgment entry showing he could (and did) liquidate stock to pay $51,000 to satisfy the support arrearage and sanctions, raising mootness arguments as to the need for the sale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court’s pretrial order directing sale of real estate is a final, appealable order | The order is nonfinal because proceeds were to be held in escrow and further court action was contemplated | The order is final because it affects a substantial right in a special proceeding (divorce) and would be irretrievable if property sold | Final: order is final and appealable — sale affects a substantial right in a special proceeding |
| Whether the court abused its discretion by ordering immediate sale of real estate to secure payment of temporary spousal-support arrears/sanctions | Court’s sale order was proper to secure enforcement and reflect court’s frustration with Jeffrey’s conduct | Sale was arbitrary and excessive: sale of ~$428,500 in property to secure ~$8,000 in sanctions and ~$40,000 in arrears; Jeffrey offered to liquidate stock to satisfy arrears | Abuse of discretion: order was arbitrary because court did not state lawful basis for sale and ignored less drastic alternatives; remanded to vacate order of sale |
| Whether the sale order is moot after Jeffrey tendered funds/was permitted to liquidate stock to pay arrears | Not directly argued by Deborah at first; court’s original order remains in place | Jeffrey contends order is moot because he liquidated assets to satisfy obligations | Mootness: largely moot as to securing arrears and sanctions, but sale order still needed vacatur because appeal kept trial court from vacating it; court remanded with instruction to vacate |
| Whether the trial court may order sale of marital/party property predecree under Civ.R. 75 and R.C. 3105.171 | Sale can be authorized under court rules/statute for temporary orders | Jeffrey accepted that court has authority but argued it must exercise discretion reasonably and not arbitrarily | Court has authority under Civ.R. 75 to enter temporary orders, but here exercise of that authority was arbitrary and an abuse of discretion |
Key Cases Cited
- Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90 (2011) (divorce actions are "special proceedings" for final-order analysis)
- Oatey v. Oatey, 83 Ohio App.3d 251 (8th Dist. 1992) (predecree order to sell real estate affects substantial rights and can be final)
- State ex rel. Papp v. James, 69 Ohio St.3d 373 (1994) (discusses special-proceeding category for divorce cases)
- In re A.G., 139 Ohio St.3d 572 (2014) (mootness principles where subsequent events render the controversy nonjusticiable)
- Angelkovski v. Buckeye Potato Chips Co., 11 Ohio App.3d 159 (10th Dist. 1983) (arbitrary or unreasonable actions by trial court constitute abuse of discretion)
- State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94 (1978) (appellate jurisdiction and effect of pending appeals on trial-court actions)