Oliver v. OliverOliver v. Oliver
For Plaintiff-Appellant: SHARON BUCKLEY-MIRHAIDARI, 152 North Broadway Ave., Ste. 200, New Philadelphia, OH 44663
For Defendant-Appellee: BRADLEY HILLYER, 201 N. Main Street, P.O. Box 272, Uhrichsville, OH 44683
Gwin, P.J.
{¶1} Appellant appeals the March 11, 2014 judgment entry of the Tuscarawas Court of Common Pleas denying appellant‘s motion for extension of time to file transcript, overruling appellant‘s objections to the magistrate‘s decision, and adopting the findings of fact, conclusions of law, and recommendations of the magistrate as orders of the court.
Facts & Procedural History
{¶2} Appellee Joseph Oliver and appellant Misty Oliver were married in 1999. Appellant filed a complaint for divorce on March 31, 2009. 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. As part of the trial court‘s decision, a property in Mineral City was ordered sold at arm‘s length with any amount over and above a $40,000 debt owed to appellee‘s mother to be split equally between the parties. Further, appellee would be responsible for the debt in full if the sale price did not cover the amount owed to appellee‘s mother. Appellant appealed the trial court‘s decision, assigning thirteen assignments of error. Appellee also appealed the trial court‘s entry and assigned four assignments of error. In Oliver v. Oliver, 5th Dist. Tuscarawas No. 2012 AP 11 0067, 2013-Ohio-4389, this Court overruled all of appellant‘s and appellee‘s assignments of error and affirmed the trial court‘s decision.
{¶3} As part of the first appeal, appellant argued that the trial court failed to assign a value to a property in Mineral City and argued the trial court erred in awarding
{¶4} On November 28, 2012, appellant filed a motion for contempt against appellee for failing to sell the Mineral City property at arm‘s length and a motion for accounting seeking legal documentation of the sale of the Mineral City property. Appellee filed an affidavit on December 11, 2012 stating that he sold the Mineral City property at an arm‘s length. Appellee also provided the settlement statement prepared by the title company for the sale of the Mineral City property. On December 20, 2012, appellee filed additional supplemental documents, including a signed real estate purchase agreement and release of mortgage, indicating the purchase price of the property was $40,000 with a $20,000 down payment and monthly payments of $400 per month to appellee‘s mother until the debt is paid in full. On January 16, 2013, the trial court held these motions in abeyance pending a ruling by this Court in Oliver v. Oliver, 5th Dist. Tuscarawas No. 2012 AP 11 0067, 2013-Ohio-4389.
{¶5} On December 11, 2013, the magistrate held a hearing on appellant‘s motions and issued a decision on January 2, 2014. The magistrate found that, since the purpose of an arm‘s length transaction is to obtain fair market value for the property and the property was sold for fair market value, the necessity of an arm‘s length
{¶6} On January 16, 2014, appellant filed objections to the magistrate‘s decision, including objections to the magistrate‘s findings of fact and conclusions of law. In a January 24, 2014 letter to appellant‘s attorney, the court reporter indicated that the estimated cost of the transcript for the December 2013 hearing was $280.00 and stated a deposit was required within ten (10) days. On February 24, 2014, a notice was provided to the trial court that no deposit was paid for the transcript.
{¶7} The trial court set the matter for an objection hearing on March 10, 2014. On March 7, 2014, appellant filed a memorandum in support of objections and motion for extension of time to file the transcript. Appellant indicated that she needed additional time to pay the deposit for the transcript. In a March 11, 2014 judgment entry, the trial court denied appellant‘s motion for extension of time to file transcript, overruled appellant‘s objections with regards to the Mineral City property, and adopted the findings of fact, conclusions of law, and recommendations of the magistrate.
{¶8} Appellant appeals the March 11, 2014 judgment entry of the Tuscarawas County Court of Common Pleas and assigns the following as error:
{¶9} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THE TRANSFER OF THE MINERAL CITY PROPERY WAS AN ARM‘S LENGTH TRANSACTION. THE TRIAL COURT‘S DECISION DENIED APPELLANT/MISTY OLIVER HER RIGHT TO DUE PROCESS IN ORDERING THE TRANSFER AN ARM‘S LENGTH TRANSACTION.
{¶10} “II. THE TRIAL COURT‘S DECISION THAT NO FURTHER ACCOUNTING WAS NECESSARY WAS AN ABUSE OF DISCRETION AND DENIED MISTY OLIVER HER RIGHT TO DUE PROCESS AS GUARANTEED BY THE U.S. AND OHIO CONSTITUTION.
{¶11} “III. THE TRIAL COURT ERRED IN DENYING MISTY OLIVER ADDITIONAL TIME TO FILE A TRANSCRIPT AND DENIED HER RIGHT TO DUE PROCESS.”
I.
{¶12} We first must address appellant‘s failure to present a transcript to the trial court for its review of appellant‘s objections to the magistrate‘s decision. Appellant did not file a transcript of the proceedings with the trial court for ruling on her objections as required by
{¶14} Appellant argues the trial court erred in not finding appellant in contempt for the failure to sell the Mineral City property in an arm‘s length transaction because the property was sold to appellee‘s cousin for $40,000 with a $20,000 down payment and $400 no-interest, monthly payments to appellee‘s mother to pay off the liability. An arm‘s length transaction possesses three primary characteristics: it is “voluntary, i.e. without compulsion or duress; it generally takes place in an open market; and the parties act in their own self-interest.” North Royalton City School District Board of Education v. Cuyahoga County Board of Revision, 129 Ohio St.3d 172, 2011-Ohio-3092, 950 N.E.2d 955. The Supreme Court explained that while an arm‘s length
{¶15} The findings of fact by the magistrate establish that: the fair market value of the Mineral City property is $40,000 and the property sold for $40,000; as long as the property sold for fair market value, the necessity of an arm‘s length transaction is superfluous; the sale of the Mineral City property is an arm‘s length sale because there is no evidence that either the buyer or seller had more or less bargaining power; there is no evidence it was a forced sale; an arm‘s length transaction can occur between relatives as long as it is conducted as if they were strangers; and there is no evidence that any stranger offered more than $40,000 for the property or that such an offer was pending.
{¶16} Based upon these established facts, we find the trial court did not abuse its discretion in reaching the legal conclusion that appellee was not in contempt for failing to sell the Mineral City property at an arm‘s length sale. There is no evidence that either the buyer or seller had more or less bargaining power, that the sale was forced, or that the parties did not act in their own self-interest. The absence of an open-market element does not negate the arm‘s length nature of the transaction in this case
II.
{¶17} Appellant next argues the trial court erred in not finding appellee in contempt for the failure to provide appellant with an accounting of the sale of the Mineral City property. We disagree. In her findings of fact, the magistrate found that, pursuant to the terms of the decree, appellee was not required to provide appellant an accounting. Further, that appellee provided appellant a copy of the agreement to sell real estate, the closing statement and the release of mortgage, stating that the property sold for $40,000. Thus, appellee was not found to be in contempt regarding the failure to provide an accounting.
{¶18} We find no abuse of discretion in the trial court‘s decision in reaching the conclusion that appellee was not in contempt for failure to provide an accounting based upon the established facts as listed above. Appellant‘s second assignment of error is overruled.
III.
{¶19} Appellant finally argues the trial court erred in denying her motion for additional time to file a transcript as she was unable to secure the funds for the transcript. We disagree.
{¶21} In this case, appellant filed her objections, without a transcript, within fourteen days of the magistrate‘s decision as required by
{¶22} Further, appellant could have, but did not, seek to file an affidavit of the evidence under
{¶23} Accordingly, appellant‘s third assignment of error is overruled.
{¶24} Based on the foregoing, appellant‘s assignments of error are overruled and the March 11, 2014 judgment entry of the Tuscarawas County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur