Herrara v. Chung
2021 Ohio 1728
Ohio Ct. App.2021Background
- Wife (Herrera) and Husband (Chung) married March 19, 2016; they separated when Chung left the marital home on December 8, 2016 and Chung moved to Texas. Their daughter was born May 3, 2017.
- Wife filed for divorce May 31, 2017; an initial decree was journalized in October 2017, later reopened after Chung obtained relief under Civ.R. 60(B); full evidentiary hearings occurred in 2020.
- The parties had opened joint checking and savings accounts during the marriage; those accounts were depleted and closed by trial. Wife also had pre-marital joint accounts with her ex-husband and her brother.
- Wife submitted an exhibit (Ex. 30): a summary of hospital, pharmacy, and insurance documents she compiled that purported to show $11,438.46 in medical expenses related to the child’s birth; Chung objected as hearsay.
- The trial court (1) denied Chung’s annulment request and granted a divorce, (2) set the de facto termination date of the marriage as December 8, 2016, (3) ordered Chung to reimburse half of the alleged medical expenses, and (4) made other personal-property allocations. Chung appealed.
Issues
| Issue | Herrera's Argument | Chung's Argument | Held |
|---|---|---|---|
| Admissibility of medical bills / reimbursement obligation | Exhibit 30 and attached documents established $11,438.46 in medical expenses and justified awarding Herrera half. | Exhibit 30 was inadmissible hearsay; Herrera failed to lay a business-records foundation so the evidence cannot support an award. | Reversed: Exhibit 30 was inadmissible hearsay absent a records-custodian foundation; the reimbursement order vacated. |
| De facto termination date of marriage | Trial court’s selection of Dec. 8, 2016 (date Chung left) was appropriate given separation facts. | The marriage’s termination date should be May 31, 2017 (date Herrera filed for divorce). | Affirmed: Court did not abuse discretion in choosing Dec. 8, 2016 based on totality of circumstances. |
| Proceeds from Wife’s alleged April 2016 real-estate sale (~$115,941) | Herrera: either no sale/proceeds shown or proceeds were separate property. | Chung: he is entitled to part of the proceeds because they were received during the marriage. | Affirmed: Bank statement evidence was excluded and wife’s testimony did not establish deposit; Chung failed to prove marital interest. |
| Funds used to buy brother’s car and $30,000 gift/repayment | Herrera: funds originated from her pre-marital or separate accounts or were post-marriage gifts, not marital funds. | Chung: he is entitled to a share of those monies. | Affirmed: Court did not err — funds traced to Herrera’s separate accounts or post-separation transactions and thus not marital property. |
Key Cases Cited
- Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245 (Ohio 1947) (explains rationale for reliability of business records exception)
- State v. Davis, 116 Ohio St.3d 404, 880 N.E.2d 31 (Ohio 2008) (describes foundation requirements for admitting business records)
- State v. Davis, 62 Ohio St.3d 326, 581 N.E.2d 1362 (Ohio 1991) (testifying witness must understand recordkeeping system)
- State v. Richcreek, 964 N.E.2d 442 (Ohio App. 2011) (discusses de novo review of hearsay rulings on appeal)
- State v. Sutorius, 701 N.E.2d 1 (Ohio App. 1997) (addresses limits on admitting hearsay)
- State v. Sorrels, 593 N.E.2d 313 (Ohio App. 1991) (noting hearsay cannot be admitted absent exception)
- Berish v. Berish, 69 Ohio St.2d 318, 432 N.E.2d 183 (Ohio 1982) (trial court may select equitable de facto termination date earlier than final hearing date)
- Gullia v. Gullia, 93 Ohio App.3d 653, 639 N.E.2d 822 (Ohio App. 1994) (when de facto date is appropriate: continuous separation, separate residences and finances)
- Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (Ohio 1989) (standard of review for division of marital property)