MISTY OLIVER v. JOSEPH OLIVER
Case No. 2012 AP 11 0067
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 1, 2013
[Cite as Oliver v. Oliver, 2013-Ohio-4389.]
Hon. W. Scott Gwin, P.J., Hon. Sheila G. Farmer, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2009TM030151; JUDGMENT: Affirmed
For Plaintiff-Appellant / Cross-Appellee: SHARON BUCKLEY-MIRHAIDARI, 152 N. Broadway Ave., Ste 200, New Philadelphia, OH 44336
For Defendant-Appellee / Cross-Appellant: BRADLEY HILLYER, 201 N. Main Street, Box 272, Uhrichsville, OH 44683
{1} Wife and Husband appeal the October 13, 2011 judgment entry of the Tuscarawas County Common Pleas Court granting the parties’ divorce and the October 10, 2012 judgment entry of the Tuscarawas County Common Pleas Court allocating the business tax liability between the parties.
Facts & Procedural History
{2} Joseph Oliver (“Husband“) and Misty Oliver (“Wife) were married in 1999. The parties have no children together, but each has children from a previous marriage. The parties lived separate and apart beginning in 2007. Husband admitted to starting a relationship with Nan Cobb (“Cobb“) in January of 2007 and to having a child with Cobb in February of 2010.
{3} Husband is a registered nurse and earns approximately $65,000 per year. Wife is a licensed practical nurse, but has not been employed since 2005. She obtained her Associate‘s Degree in Nursing in May of 2009 and was eligible to take her RN examination in December of 2009, but, as of the time of the trial in June of 2010, she had not yet taken the exam. Wife attends Malone College and is working to obtain her Master‘s Degree in Nursing to be a nurse practitioner and spends her days studying, baking and selling pies, cleaning, and looking after the household. She has limited her job search to approximately eight employers and several job fairs. Wife relies on her family and friends to assist in paying her expenses and she does not pay rent.
{4} From 2002 to 2005, the parties owned a business called Guardian Nurses, a temporary agency sending nurses to hospitals and other medical facilities as
{5} The parties divided their personal property by agreement prior to the trial. However, Husband testified Wife still has possession of two guns given to him by his father. Wife testified Husband disposed of some of her and her children‘s personal property such as trophies and hot wheels in a dumpster outside the Mineral City property without her consent. Both Husband and Wife presented a list they had each prepared of marital debts they have purportedly paid or that are still owing. Some of the bills are in both of the parties’ names and some are in either Husband‘s or Wife‘s name.
{6} When the parties married, Wife owned real estate at 4033 West State Street, New Philadelphia. The parties lived together in this home for approximately one year with their children after they were married. In 2000, the parties sold the property to Wife‘s mother, Jacquie Whitmire (“Whitmire“) for a net profit of approximately $26,000. In April of 2000, the parties also bought a parcel of vacant land in Bolivar, Ohio. The parties used the funds from the sale of 4033 West State Street to help purchase the home at 8859 First Street, Mineral City, from Husband‘s mother Norma Oliver (“Oliver“)
{7} In June of 2006, Wife quit-claimed her interest in the Mineral City home to Husband and he quit-claimed his interest in 4047 West State Street to Wife. In July of 2006, the parties transferred the 4047 West State Street property to Whitmire in an attempt to protect the property from bankruptcy and so that she could refinance the home. After a foreclosure action was initiated against the 4047 West State Street property in September of 2006, Whitmire transferred the property to family friend Rick Morrison (“Morrison“). Morrison transferred the property back to Whitmire in October of 2006. In December of 2006, Whitmire sold the property to Morrison and Larry Tufford (“Tufford“), Whitmire‘s partner, for $265,000. Whitmire received $137,000 from the sale of the property and put most of the money back into the home. She and Morrison agreed she would use the money to improve the home in exchange for Morrison obtaining a mortgage on the 4047 West State Street property. Husband and Wife
{8} Wife testified she and Husband are parties to an agreement dated September 24, 2006, with Whitmire, Morrison, Wife‘s father, and Tufford, stating Wife and Husband would pay the December 2006 mortgage obtained by Morrison. Husband denies signing the agreement and neither Wife nor Husband has paid pursuant to the agreement. Morrison has owned the 4047 West State Street property since December of 2006 and is the only mortgagee listed on the mortgage loan documents. However, Morrison currently resides at 4033 West State Street, which is owned by Whitmire. Whitmire, Tufford, and Wife‘s father each pay Morrision $500 per month to assist with the mortgage payment on the 4047 West State Street property. Morrision pays the balance of the $2,400 per month mortgage each month. Wife continues to live at 4047 West State Street with her three adult children, Whitmire, and Tufford. Wife does not pay rent or contribute to the mortgage, but helps with the bills when she can. Husband resides with Cobb in a rental home and has an option to purchase the home.
{9} Wife filed a complaint for divorce on March 31, 2009. Prior to the trial date in June of 2010, Wife filed a motion for contempt on April 22, 2010 against Husband for failure to maintain the Mineral City property and for incurring additional debt. The evidentiary hearing on this motion was continued to the trial date. The case proceeded to trial before a magistrate in June of 2010 and the magistrate issued her decision on January 14, 2011. Objections were filed to the magistrate‘s decision. The trial court held a hearing on the objections and adopted the magistrate‘s decision in part and modified the magistrate‘s decision in part. The trial court granted Wife a divorce on
{10} On October 10, 2012, the trial court found Husband engaged in financial misconduct in failing to file business income taxes for the years 2003, 2004, and 2005. The trial court found because of Husband‘s financial misconduct he should be ordered to pay a disproportionate share of the unpaid taxes. The trial court concluded Husband should be responsible for 100% of any payroll taxes due for Guardian Nurses for 2003 – 2005 and 75% of any income tax liability for Guardian Nurses for 2003 – 2005.
{11} Wife appeals both the October 13, 2011 judgment entry and the October 10, 2012 judgment entry and assigns the following errors:
{12} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ONLY AWARDING $500.00 PER MONTH IN SPOUSAL SUPPORT.
{13} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ORDERING MISTY OLIVER 25% RESPONSIBLE FOR THE UNPAID TAXES DUE TO FEDERAL, STATE, AND LOCAL INCOME TAX DEPARTMENTS. JOSEPH OLIVER SHOULD BE ORDERED TO BE SOLELY RESPONSIBLE FOR ANY AND ALL TAX LIABILITY DUE TO HIS FRAUDULENT BEHAVIOR AND FINANCIAL MISCONDUCT.
{15} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT ASSIGNING A VALUE TO THE MINERAL CITY PROPERTY AND IN AWARDING THE PROPERTY TO JOE OLIVER. THE TRIAL COURT‘S DECISION DENIED MISTY OLIVER HER RIGHT TO DUE PROCESS.
{16} “V. THE TRIAL COURT ERRED IN NOT RENDERING A DECISION WITH REGARD TO HEALTH INSURANCE FOR MISTY OLIVER.
{[17} “VI. THE TRIAL COURT ERRED IN AWARDING MISTY OLIVER ONLY $250.00 AFTER FINDING JOE IN CONTEMPT OF COURT FOR TRASHING MISTY AND HER CHILDREN‘S PERSONAL PROPERTY IN THE DUMPSTER.
{18} “VII. THE TRIAL COURT ERRED IN NOT ORDERING THE RETURN OF MISTY‘S PERSONAL PROPERTY SHE SAW JOE AND HIS MISTRESS HAVE AT THEIR HOUSE IN PICTURES SHE SAW ON FACEBOOK. THE TRIAL COURT‘S REFUSAL TO ADMIT THE FACEBOOK PHOTOGRAPHS INTO EVIDENCE DENIED MISTY THE RIGHT TO DUE PROCESS AND A FAIR TRIAL.
{19} “VIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT ISSUING A DECISION WITH REGARD TO ALL OF THE MARITAL DEBT.
{20} “IX. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING ONE HALF OF THE VANGUARD ACCOUNT TO MISTY OLIVER. MISTY
{21} “X. THE TRIAL COURT ERRED IN NOT AWARDING ATTORNEY FEES TO MISTY OLIVER.
{22} “XI. THE TRIAL COURT‘S REFUSAL TO ADDRESS APPELLANT‘S MOTIONS PRIOR TO TRIAL AND ADMIT EVIDENCE AND TESTIMONY AT TRIAL WAS AN ABUSE OF DISCRETION AND DENIED APPELLANT DUE PROCESS AND A FAIR TRIAL.
{23} “XII. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO ORDER THE PROCEEDS FROM THE SALE OF THE 4033 W. STATE STREET PROPERTY AND MISTY‘S RETIREMENT BENEFITS AS SEPARATE PROPERTY.
{24} “XIII. THE TRIAL COURT ERRED IN AWARDING JOE OLIVER GUNS.”
{25} Husband also filed an appeal of the October 13, 2011 and October 10, 2012 judgment entries and assigns the following errors:
{26} “I. THE TRIAL COURT WRONGLY ORDERED SPOUSAL SUPPORT WITHHOLDING FROM THE APPELLEE, JOSEPH OLIVER, AS THE APPELLANT IN THE INSTANT CASE IS VOLUNTARILY UNDEREMPLOYED.
{27} “II. THE JUDGE IN THE INSTANT CASE WRONGLY ATTRIBUTED THE DELINQUENT TAX BURDEN TO THE APPELLEE, JOSEPH OLIVER.
{28} “III. THE TRIAL COURT ERRED IN FINDING A CHARGE OF CONTEMPT AGAINST THE APPELLEE. THE APPELLEE DID NOTHING THAT WAS NOT ALLOWED BY VIRTUE OF THE COURT ORDER TO FACILITATE THE SALE OF THE STATE STREET HOME IN MIDVALE, OHIO.
I., V., and Cross-Assignment of Error I
{30} Wife argues the trial court erred in only awarding her $500 per month in spousal support for thirty-six (36) months and in failing to require Husband to cover her on his health insurance for as long as she was eligible. Husband argues the trial court erred in awarding Wife any spousal support because she is voluntarily underemployed.
{31} We review the trial court‘s decision relative to spousal support under an abuse of discretion standard. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990). To find an abuse of discretion, this court must determine that the trial court‘s decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Further, a judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).
{32}
{33} Husband essentially argues that voluntary underemployment is an automatic bar to spousal support for Wife. However, he has not cited any authority to support his position. See Schenck v. Schenck, 12th Dist. No.CA2012-08-150, 2013-Ohio-991. Much of Husband‘s argument centers on the earning ability of Wife. Earning ability involves “both the amount of money one is capable of earning by his or her
{34} The trial court completed a thorough analysis of all the above-listed, relevant factors. The trial court found many of the factors to be similar between the parties, such as their health, age, retirement benefits since Husband‘s marital retirement benefits were split equally between the parties, lack of necessity for child care, standard of living, education, lack of assets, contribution and time for education, and tax consequences. The trial court specifically noted that Wife will lose her insurance coverage as a consequence of the divorce, and that Wife has the ability to earn almost as much as Husband but does not have as much experience in the nursing field.
{35} In this case, we find no abuse of discretion in the trial court‘s decision regarding spousal support and our review of the record reveals the presence of credible
{36} Accordingly, Wife‘s first and fifth assignments of error and Husband‘s first cross-assignment of error are overruled.
II. & Cross-Assignment of Error II.
{37} Wife contends the trial court erred in ordering her 25% responsible for the unpaid income taxes of Guardian Nurses. Husband argues the trial court erred in
{38}
{39} In this case, the trial court found that an equal division of the business tax liability would be inequitable due to Husband‘s financial misconduct regarding the failure to file income taxes and, if applicable, payroll taxes. The failure of a party to pay taxes or file a tax return is financial misconduct for purposes of
Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.
{41} State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{42} Husband argues there is no evidence of financial misconduct on his part. However, it is undisputed that no tax returns were filed for the business in 2003, 2004, and 2005. Wife testified she believed Husband filed the taxes for these three years because he would handle the filing of the taxes. Husband testified the parties always filed separate tax returns and he did not remember filing or doing paperwork for Wife but he “can‘t say I didn‘t do it.” (T. at 28). Husband filed his personal taxes for the 2003, 2004, and 2005 tax years. Husband hired his friend Dominic Spinelli to assist with the completion of Wife‘s taxes in 2002 due to the starting of the business, but there is no evidence Spinelli was retained in subsequent years. Husband routinely worked nursing shifts but sometimes assisted Wife with the bookkeeping for the company. The credibility of the witnesses and the weight to be given to their testimony were matters for
{43} Wife contends the trial court erred in ordering her responsible for 25% of the unpaid business income taxes. We disagree. Both parties testified Husband was an employee of the company and worked at a reduced rate. Wife testified Husband sought to work at this lower rate so he could reduce the amount of income reported to the child support agency. Husband testified he was paid substantially less than normal so that more money could go back into the business. Wife was compensated for her work because the money made from the business was deposited directly into a joint account under control of both her and Husband. Both Husband and Wife reaped the benefits from the business and utilized the income for which the tax is due. Wife received a financial benefit in the form of funds from the business being deposited into a joint bank account. Husband received the benefit of an hourly wage, but also received the added benefit of the ability to report less income on his own personal taxes and report a lower income to the child support agency. Taking into account the benefit Wife received from the income generated by the business, the benefit Husband received from the business income, and the financial misconduct of Husband‘s failing to file the tax returns, we find the allocation by the trial court of the unpaid business taxes is an appropriate division. Wife‘s second assignment of error and Husband‘s second cross-assignment of error are overruled.
{44} Wife argues the trial court erred in not allowing Stan Sherman (“Sherman“), a certified public accountant, to testify at trial as an expert because without his testimony the court could not determine the amount of tax liability of Guardian Nurses. We disagree. “A trial court‘s decision on whether to admit or exclude expert testimony will not be reversed absent an abuse of discretion.” Herzner v. Fischer Attached Homes, Ltd., 12th Dist. No. CA2007-08-090, 2008-Ohio-2261.
{45} In this case, the magistrate excluded Sherman‘s testimony because he was not timely disclosed pursuant to the discovery dates provided by the trial court. A pretrial order issued on April 2, 2009 provides that, with regard to expert witnesses, each party shall comply with the local rule about expert witnesses. The local rule applicable to expert witnesses states as follows:
For each person who is anticipated to be called as an expert at trial, a party shall provide written notice to the opposing party or counsel and file a copy with the Court, within a reasonable time after being identified, but not later than 45 days prior to the date set for discovery cut-off unless otherwise agreed by between the parties * * * Failure to timely provide this information may, upon motion to the Court and for good cause shown, cause the Court to exclude the testimony of the expert at trial.
{46} Loc.R. 11 of the Court of Common Pleas of Tuscarawas County, General Division. “The inherent purpose of local rules that provide for the timely exchange of expert reports and timely identification of expert witnesses is to avoid unfair surprise at trial and to ensure that the adverse party has a reasonable opportunity to
{47} The discovery cutoff was set for one week prior to the first mediation by the April 2, 2009 order. The first mediation conference was held in August of 2009 and was continued to December 11, 2009. While appellant argues she disclosed the expert as soon as she could on May 21, 2010, the information was provided to the court and opposing counsel approximately nine months after the first mediation and five months after the continued mediation. The May 21st date is long after the 45 day requirement contained in the local rule and did not provide the opportunity for the adverse party to respond to the expert testimony prior to the beginning of the trial since discovery cutoff had passed.
{48} Further, there is no evidence to support Wife‘s assertion that Sherman‘s testimony would assist the trier of fact in determining the tax liability of Guardian Nurses. The trial court heard both Husband and Wife testify regarding the tax liability of the business and the parties agreed the amount was significant. Wife testified she thought the tax liability could be upwards of $100,000. There is no evidence Sherman actually prepared any tax returns for Guardian Nurses or had enough information to approximate the tax liability for the business. After counsel for Husband objected to the introduction of Sherman‘s testimony at trial, Wife‘s counsel stated she did not “intend to have Sherman testify that he knows what the tax liability is.” The letter from Sherman to Wife dated May 21, 2010 stated that Sherman could not determine the tax liability prior to the June divorce hearing because there was “far too much missing information” to prepare accurate and complete tax returns before the trial. Thus, even if the trial court
IV.
{[49} Wife contends the trial court erred in not assigning a value to the Mineral City property and in awarding the property to Husband to sell at an arm‘s length sale. We disagree.
{50} “The trial court is vested with broad discretion in determining the appropriate scope of these property awards. Although its discretion is not unlimited, it has authority to do what is equitable.” Holcomb v. Holcomb, 44 Ohio St.3d 128, 541 N.E.2d 597 (1989). A trial court‘s decision allocating marital property and debt will not be reversed absent an abuse of discretion. Id. An abuse of discretion is more than a mere error; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An unequal division does not in and of itself constitute an abuse of discretion. Kaechele v. Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988). Further, a judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).
{51}
{52} While Wife argues the trial court failed to assign a value to the Mineral City property, we find the trial court did assign a value to the property. The trial court specifically found the Mineral City property had “no value over and above what is owed to Norma Oliver and is a liability.” Both parties agreed the amount owed to Norma Oliver is $40,000. We find this valuation to be supported by competent, credible evidence. Husband testified he believed the Mineral City property, in its current condition, was worth $40,000 to $45,000. Wife did not testify as to the value of the Mineral City property, but testified that when she accompanied an appraiser to the home in November of 2009, the home needed drywall, had water in the basement, and the general condition of the home had deteriorated. While she believed the property could be salvageable for someone to live there, she did not know how much time or money it would take to make the home livable.
{53} Wife further argues the trial court erred in awarding the Mineral City property to Husband. In essence, the trial court awarded the Mineral City property to
{54} Wife states the trial court abused its discretion in ordering an arm‘s length sale, but fails to cite any legal authority or statutes in support of her argument as required by App.R. 16 (A)(7).
{55} Further,
The court may issue any orders under this section which it deems equitable, including, but not limited to, either of the following types of orders: * * *
(2) an order requiring the sale of or encumbrancing of any real or personal property, with the proceeds from the sale and the funds from any loan secured by the encumbrance to be applied as determined by the court.
{[56} Accordingly, the trial court had the discretion to order the sale of the Mineral City real property with the proceeds to be applied as determined by the court. Further, though Wife argues there are no safeguards to ensure an arm‘s length transaction, in Wife‘s subsequent motions filed in November of 2012 and currently
{57} Wife also attempts to argue in her appellate brief that the sale of the Mineral City property to Husband‘s cousin subsequent to the trial court‘s October 13, 2011 judgment entry of divorce was not an arm‘s length transaction and is fraudulent. On November 28, 2012, Wife filed a post-judgment motion for accounting on the sale of the Mineral City property and a motion to show cause against Husband for failing to sell the Mineral City property at an arm‘s length sale. The trial court set a hearing on the motions for December 17, 2012. At the December hearing, the trial court determined the motions should be held in abeyance pending this appeal. Thus, the question of whether the particular transaction in question is an arm‘s length transaction is not properly before this Court.
{58} Accordingly, Wife‘s fourth assignment of error is overruled.
VI. & Cross-Assignment of Error III.
{59} Wife argues the trial court erred in awarding her only $250.00 after finding Husband in contempt of court for discarding her property in a dumpster. In his cross-assignment of error, Husband argues the trial court erred in finding him in contempt of court and in awarding Wife any money because the property was not used for several years and was damaged by the house fire.
{60} “A prima facie case of civil contempt is made when the moving party proves both the existence of a court order and the nonmoving party‘s noncompliance
{61} On April 2, 2009, the magistrate issued an order stating that “each party is restrained from selling, damaging, destroying disposing of * * * the assets of the parties, or the assets of either party, including, but not limited to real estate, household furniture and furnishings, personal items or automobiles.” While Husband testified he only disposed of drywall and siding in the dumpster outside the Mineral City home, both Wife and Whitmire testified they saw Wife‘s personal items in the dumpster outside the Mineral City home in the spring of 2009. Wife submitted as an exhibit a copy of a receipt for a dumpster paid for by Husband in May of 2009. Whitmire testified the items she saw in the dumpster were items such as trophies and hot wheels belonging to Wife‘s children.
{62} We find no abuse of discretion in the trial court‘s finding Husband in contempt. The April 2, 2009 court order existed and he failed to comply with that order when he placed personal property belonging to Wife and her children from the garage at the Mineral City property into a dumpster. The credibility of the witnesses and the weight to be given to their testimony were matters for the trial court to resolve. The trial court did not err in choosing to believe Wife and her mother as to what items were in the dumpster. Wife and Whitmire classified the items as trophies, children‘s toys, and hot wheels, but failed to provide any evidence about the value of the items during the trial.
VII.
{63} Wife contends the trial court erred in not ordering the return of her property she saw in pictures on Facebook and the trial court erred in refusing to admit the Facebook photographs into evidence. We disagree.
{64} Generally, the admission or exclusion of relevant evidence is within the sound discretion of the trial court and its decision to admit or exclude evidence will not be disturbed absent an abuse of discretion. State v. Awkal, 76 Ohio St.3d 324, 333, 667 N.E.2d 960 (1996). As for photographs, a proper foundation is required in which there must be testimony that the photograph is a fair and accurate representation of that which it is purported to be. State v. Hill, 12 Ohio St.2d 88, 90, 232 N.E.2d 394 (1967).
{65} In this case, Wife testified she saw items on Cobb‘s Facebook page that were Wife‘s property she had stored in the Mineral City garage, including an oak coffee table, end tables, an oak corner cabinet, and Longaberger baskets. Wife sought to introduce two photographs purportedly showing these items in the background of Cobb‘s Facebook photographs. Husband testified the furniture and items in the photographs were not Wife‘s items, that no items owned by Wife were in the home he lived in with Cobb, and that Cobb purchased her own Longaberger baskets. Husband objected to the admission of the Facebook photographs due to lack of foundation because there was no evidence as to where the photographs were taken and who took the photographs. Counsel for Wife stated she did not know when the photographs were
{66} We further find the trial court did not abuse its discretion in failing to order the return of the coffee table, end table, cabinet, and baskets. As noted above, the credibility of the witnesses and the weight to be given to their testimony were matters for the trial court to resolve. The trial court did not err in choosing to believe Husband that none of the items in the home he shares with Cobb belonged to Wife. Wife‘s seventh assignment of error is overruled.
VIII.
{67} Wife argues the trial court erred in not issuing a decision with regard to all marital debt including the 4047 West State Street Property, Guardian Nurses tax liability, and other marital debt. We disagree.
{68} Marital debt is “any debt incurred during the marriage for the joint benefit of the parties or for a valid marital purpose.” Ketchum v. Ketchum, 7th Dist. No. 2001CO60, 2003-Ohio-2559, citing Turner, Equitable Division of Property (2d Ed. 1994). Marital property includes all real property that currently is owned by either or both of the spouses and that was acquired by either or both of the spouses during the marriage.
{69} “Because [a]ll debts are not necessarily marital debts * * * equity generally requires that the burden of nonmarital debts be placed upon the party responsible for them. * * * Consequently, any property acquired as a result of a nonmarital debt belongs to the party who incurred the debt.” Minges v. Minges, 12th Dist. No. CA87-06-085, 1988 WL 25913.
4047 West State Street Property
{70} Wife states the trial court erred in awarding the 4047 West State Street property to Wife because the court lacks the authority to award property to Wife that is owned by a third party and that the trial court erred in holding Wife responsible for the debt at 4047 West State Street. We disagree.
{71} Both parties agree that Husband and Wife do not own the property at 4047 West State Street. The parties transferred the home to Whitmire who subsequently sold the property to Morrision. Morrison testified he obtained a mortgage on the property in December of 2006 and he is listed as the owner of the property. Whitmire, Tufford, Morrision, and Wife‘s father contribute funds to Morrison each month for the mortgage. Morrison collects the funds and sends the money to the mortgage company each month.
{72} The mortgage on 4047 West State Street does not qualify as marital debt because it is not debt incurred during the marriage for the joint benefit of the parties or for a valid marital purpose. The property is not marital property because it is
Other Marital Debt
{73} Wife contends the trial court erred in not holding Husband 100% responsible for marital debts. We disagree.
{74} During the trial, both parties testified about unpaid debts. Husband‘s list of marital debts included real estate taxes for the Mineral City property, fines, gas bills, and credit card bills. Husband did not submit any documentation with regards to the purported marital debts. Wife submitted an itemized list of purported marital debts with individual bills attached. Wife did not provide any testimony about the individual bills
{75} While Wife argues the trial court failed to allocate the other marital debts, it is clear the trial court did allocate the remaining marital debts, as the trial court determined the parties’ evidence was insufficient to demonstrate what marital debt is owed and ordered that “each party shall pay any debt in their own name that has not been addressed and hold the other party harmless thereon. Both parties shall pay 50 percent each of any debt in both parties name.” We find the trial court did not abuse its discretion in allocating the debts in each party‘s name to that party and the debts in both names to be split by the parties absent evidence proving the debt in each party‘s individual name had been incurred for a joint purpose.
Federal and State Income Taxes and Payroll Taxes of Guardian Nurses
{76} Wife argues Husband should be ordered to pay all income and payroll taxes for the business. Pursuant to our analysis in Assignment of Error Number II, we find the trial court did not abuse its discretion in ordering Wife 25% responsible for the income taxes of Guardian Nurses.
{77} Accordingly, Wife‘s eighth assignment of error is overruled in its entirety.
IX.
{78} Wife contends the trial court erred in only awarding one-half of Husband‘s retirement account to Wife. Wife asserts she is entitled to the full amount of Husband‘s retirement account because she cashed in her pre-marital retirement
{79} Pursuant to
{80} The characterization of property as separate or marital is a mixed question of law and fact, and the trial court‘s ruling must be supported by sufficient credible evidence. Globokar v. Globokar, 5th Dist. No. 2009CA00138, 2010-Ohio-1737. We will not reverse the trial court‘s judgment as being against the manifest weight of the
{81} Wife testified she utilized her pre-marital retirement accounts to pay for Husband‘s custody dispute in 1999. Wife submitted a statement indicating $5,386.55 was distributed from the Public Employee Retirement System of Ohio to Wife in the 1999 calendar year, a statement from American Funds stating $834.76 was distributed to Wife in 1999, a statement from Bank One indicating Wife cashed out treasury bonds in the amount of $211.22 in 1999, and a statement from Edward Jones stating in December of 1999 they issued a check to Wife for $1,320.13. Wife did not present any records showing where the money was deposited after it was cashed out or any records showing the cost of the custody litigation or documentation that it was paid for with her separate retirement funds. Husband testified he was involved in custody litigation during the first years of his marriage to Wife and that he and Wife paid for it during the marriage. Husband knows any debts regarding his custody litigation were incurred and paid off during his marriage, but did not know what specific funds were used to pay the custody litigation debts.
{82} While Wife submitted evidence that she cashed out the PERS retirement account and other accounts during the 1999 tax year, Wife did not provide any evidence, other than her own very general testimony, as to where the funds from the account went or that the funds went directly into an account used for the custody
{83} Husband‘s retirement account is marital property pursuant to
X.
{84} Wife argues the trial court erred in not awarding her attorney fees. We disagree.
{85} An award of attorney fees in a domestic relations action is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Wildman v. Wildman, 5th Dist. No. 12-CA-21, 2012-Ohio-5090.
In an action for divorce * * * or an appeal of that action, a court may award all or part of the reasonable attorney‘s fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.
{86} We first note that the trial court did award Wife $150.00 in attorney fees for having to defend Husband‘s premature motion for orders. The trial court ordered that, other than the $150.00, each party is responsible for his or her own attorney fees and costs of litigation.
{87} We have reviewed the record, weighed
XI.
{88} Wife argues the trial court erred in refusing to address four of her motions prior to trial and in failing to admit evidence because the rulings on these motions was required for Wife to be prepared at trial. We disagree. The decision to grant or deny a continuance falls within the sound discretion of the trial court, and thus will not be reversed absent an abuse of that discretion. Nationwide Mut. Fire Ins. v. Barrett, 7th Dist. No. 08 MA 130, 2008-Ohio-6588, at ¶ 19, citing State v. Unger (1981), 67 Ohio St.2d 65, 67, 21 O.O.3d 41, 423 N.E.2d 1078.
{89} On October 30, 2009, Wife filed a motion to allocate the Mineral City residence. Wife sought to prohibit Husband from occupying the home and sought permission to enter the property to obtain an appraisal. While the trial court continued the hearing on the final allocation of the home and property until the trial date, the court issued a temporary order stating neither party could occupy the Mineral City home and that counsel for wife would make arrangements for Robert Sweitzer to appraise the residence. Any failure to rule on the final allocation of the property was not prejudicial to Wife and she was permitted access to the Mineral City home to appraise the residence.
{90} On January 28, 2010, Wife filed a motion to modify interim orders and requested access to the Mineral City property to obtain estimates. The magistrate did rule on this motion on March 2, 2010 and ordered that Wife was granted access to the Mineral City home to arrange for estimates and “she shall have access during daylight hours with at least 24 hours notice to counsel for Joseph Oliver.” On March 15, 2010,
{¶91} Wife contends the lack of rulings by the trial court prevented her from introducing certain evidence at trial, such as Sherman‘s testimony, documents on Husband‘s option to purchase the home he lives in, and Cobb‘s Facebook photographs. According to Wife‘s counsel during trial, she disclosed expert Sherman as soon as possible on May 21, 2010; the evidence of the option to purchase Husband‘s current home was not obtained by Wife until the Monday before trial; and counsel for Wife was unsure as to when or how the Facebook photographs became available. The last motion Wife claims was not ruled on properly before trial was filed on April 22, 2010 and thus any failure of the trial court to rule on the motions had no impact on this evidence being admitted or not admitted because this evidence was not available until well after the motions were filed.
{¶92} Wife‘s eleventh assignment of error is overruled.
XII.
{¶94} Wife testified she owned 4033 West State Street prior to the marriage and that the parties lived in that home for approximately one year after they were married until they moved to the Mineral City home. The parties sold the home to Whitmire in 2000 and Wife testified they received a “twenty six thousand something dollars” profit from the sale. Wife stated she was provided with a closing statement with the exact amount of profit, but this statement was not offered into evidence. Wife testified the profit from the 4033 West State Street home went into fixing up the Mineral City home so that it could accommodate her, Husband, and each of their three children. After the fire at the Mineral City home, the parties received insurance money to pay off the mortgage and to replace personal property like clothing and furniture. Some of the insurance money was used for the mortgage on 4033 West State Street as the parties moved back in there after the fire, though the home was still owned by Whitmire. Husband testified the money from the insurance proceeds went to pay off the Mineral City mortgage and to make improvements to 4047 West State Street, a home the parties purchased to accommodate themselves and each of their children. The parties subsequently transferred the property to Whitmire in 2006. There was no evidence as
{¶95} While the evidence demonstrates Wife owned the 4033 West State Street residence at the time of the marriage, we find the trial court did not err in not finding the profits from the sale Wife‘s separate property because the funds cannot be conclusively traced. No records were submitted as to the exact amount of the profit made from the sale of the house and Wife could not remember an exact figure. Further, Wife failed to submit any evidence demonstrating or tracing where the funds went throughout the complicated sequence of events of: making improvements to the Mineral City home, receiving insurance proceeds after the fire at the Mineral City home, utilizing the insurance proceeds to buy personal property, paying the mortgage on the 4033 West State Street home, making improvements on the 4047 West State Street home, and transferring the 4047 West State Street property to Whitmire. The record does not indicate to what extent appreciation in any of the homes or the improvements made in the homes is directly attributable to the funds from the sale of the 4033 West State Street home. Thus, we find the trial court did not err in finding any profit from the sale of the 4033 West State Street home to be marital property because Wife failed to meet her burden of proving the traceability of the funds. We thoroughly addressed Wife‘s retirement funds supra, in Assignment of Error Nine. Accordingly, Wife‘s twelfth assignment of error is overruled.
XIII.
{¶96} Wife argues the trial court erred in awarding Husband the guns he requested because she does not have either of the guns. The trial court found the
Cross-Assignment of Error IV.
{97} Husband argues the trial court erred in granting the divorce on grounds of adultery. We disagree.
{98} A trial court has broad discretion in determining the proper grounds for divorce and its decision will not be reversed absent an abuse of discretion. Brokaw v. Brokaw, 8th Dist. No. 92729, 2010-Ohio-1053, ¶ 4. Further, “proof of adultery can be established in Ohio by a preponderance of the evidence upon proof of circumstances from which guilt can be inferred, but such proof must be clear, positive, and sufficiently definite to show the circumstances under which it was committed.” Ashley v. Ashley, 118 Ohio App. 155, 193 N.E.2d 535 (6th Dist. 1962).
{¶99} During his testimony at trial, Husband stated he started a relationship with Cobb in January of 2007 and had a child with Cobb in February of 2010. Further, when Wife attempted to call Cobb as a witness during the trial, counsel for Husband stated, “we admit to adultery your honor. Stipulated.” Thus, we find sufficient proof through Husband‘s testimony and stipulation that the trial court could find, by a preponderance of the evidence, that Husband committed adultery. We find the trial court did not abuse its discretion in granting Wife‘s petition for divorce based on both incompatibility and adultery. Husband‘s fourth cross-assignment of error is overruled.
{¶100} Based on the foregoing, the October 13, 2011 and October 10, 2012 judgment entries of the Tuscarawas County Common Pleas Court are affirmed.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur
WSG:clw 0917
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
HON. PATRICIA A. DELANEY
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MISTY OLIVER :
Plaintiff-Appellant /Cross-Appellee :
-vs- : JUDGMENT ENTRY
JOSEPH OLIVER :
Defendant-Appellee /Cross-Appellant : CASE NO. 2012 AP 11 0067
For the reasons stated in our accompanying Memorandum-Opinion, the October 13, 2011 and October 10, 2012 judgment entries of the Tuscarawas County Common Pleas Court are affirmed. Costs to be split between the parties.
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
HON. PATRICIA A. DELANEY