RHONDA ROBERTS v. JOHN D. ROBERTS
CASE NOS. CA2012-07-015, CA2012-07-016
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY
4/29/2013
2013-Ohio-1733
M. POWELL, J.
APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Cаse No. DRA 2010 609
James R. Kirkland, 130 West Second Street, Suite 840, Dayton, Ohio 45402, for defendant-appellant/cross-appellee
M. POWELL, J.
{¶ 1} Defendant-appellant/cross-appellee, John Roberts (Husband), and plaintiff-appellee/cross-appellant, Rhonda Roberts (Wife), both appeal a decision of the Clinton County Court of Common Pleas, Domestic Relations Division, granting a divorce between them and dividing their property.
{¶ 3} On October 21, 2011, the magistrate found that (1) the marriage terminated on July 30, 2010, the date Wife filed for divorce; (2) there were two mortgages on the marital home: a first mortgage with a balance of $125,505.63, and a home equity line of credit with a balance of $16,682.47; (3) the parties had two joint bank accounts: a Liberty Bank account with a balance of $42,225.10, and a checking account with a balance of $1,173.05; (4) the value of Husband‘s farming and excavating equipment was $382,900; and (5) all property of the parties was marital property with the exception of crops planted and harvested in 2010. The magistrate awarded Wife one-half of the equity in the marital home, one-half of the value of the joint bank aсcounts, and one-half of the value of the farming and excavating equipment.
{¶ 4} The magistrate awarded Husband the profits from crops planted in 2010, awarded Wife $320,600 as her share of the parties’ marital property, and ordered Husband to pay $320,600 to Wife as follows: $150,600 to be paid within 90 days from the effective date of the divorce decree, and $170,000 to be paid in quarterly payments beginning “on the first day of the fоurth full month after the effective date of the Divorce Decree * * * for 20 consecutive quarters (every three months) or until said amount is paid in full.” The magistrate also assessed a 5 percent interest on the quarterly payments.
{¶ 5} On November 2, 2011, Husband filed 16 objections to the magistrate‘s decision
{¶ 6} The trial court granted some objections and denied other objections of Husband, and denied Wife‘s objections. With regard to Husband‘s supplemental objections, the trial court found that to the extent those objections “rаise[d] new issues not originally identified in the original Objections filed November 2, 2011, the Court shall not consider those issues as timely filed. The Court shall not ignore the filing, however, as it does contain argument in support of the [original] 16-listed Objections.” The trial court upheld the magistrate‘s decision regarding the termination date of the marriage, the amounts due on the marital home mortgages, the value of the parties’ two joint bаnk accounts, and the award to Husband of the 2010 net crop profits.
{¶ 7} By divorce decree filed on June 8, 2012, the trial court ordered Husband to pay $307,851.22 to Wife. Husband‘s payment plan requires him to pay $125,600 to Wife within 90 days from the effective date of the divorce decree, and $157,251.22 in quarterly payments (the payment schedule for the quarterly payments is identical to the schedule ordered by the magistrate). The trial court assessed a 3 percent interest on the quarterly payments.
{¶ 8} Husband appeals, raising six assignments of error. For ease of discussion, we will address Husband‘s assignments of error out of order. We will also address his second, third, and fifth assignments of error together. On cross-appeal, Wife raises one cross-assignment of error.
{¶ 9} Assignment of Error No. 2:
{¶ 10} THE TRIAL COURT ERRED BY USING A LATER DATE FOR THE
{¶ 11} Assignment of Error No. 3:
{¶ 12} THE JUDGE FAILED TO RULE ON OBJECTIONS MADE BY APPELLANT EVEN THOUGH THE ISSUES WERE RAISED IN THE INITIAL OBJECTIONS.
{¶ 13} Assignment of Error No. 5:
{¶ 14} THE JOINT MARITAL BANK ACCOUNT WAS OVERVALUED BECAUSE OF THE IMPROPER DATE USED FOR DIVISION.
{¶ 15} In his second assignment of error, Husband argues the trial court erred in using May 2011 as the valuation dаte for the two marital home mortgages rather than the balances as they existed in April 2010 when Wife moved out of the marital home. In his fifth assignment of error, Husband argues the trial court erred in using March 22, 2010 as the valuation date for the parties’ two joint bank accounts because it does not reflect pending marital expenses that were ultimately paid by Husband.
{¶ 16} The record shows that Husband failed to propеrly object to the magistrate‘s decision regarding the foregoing valuation dates in his original objections.
{¶ 17} In his third assignment of error, Husband takes issue with the trial court‘s finding that Husband‘s challenge to the mortgage valuation date was not raised in his original objections. Husband asserts it was properly raised in his original objection No. 1: “[Husband] states that he believes the Magistrate has used the improper dates and figures for debts and credit as it may affect the property items in this matter.”
{¶ 18}
{¶ 19} According to
{¶ 20} We recognize that within Husband‘s original objections, Husband requested the right to supplement his objections once the hearing transcript was filed. While
{¶ 21} We also note that Husband has not assigned as error the trial court‘s failure to
{¶ 22} We therefore find that the trial court properly declined to rule on Husband‘s objection to the valuation date for the two marital home mortgages. We also find that Husband has waived his right to appeal issues regarding the mortgages and joint bank accounts.
{¶ 23} Husband‘s second, third, and fifth assignments of error are overruled.
{¶ 24} Assignment of Error No. 1:
{¶ 25} THE COURT ERRED BY USING JULY 30, 2010 AS THE TERMINATION DATE OF THE MARRIAGE WHICH RESULTED IN SEVERAL ASSETS BEING OVERVALUED.
{¶ 26} Husband argues the trial court abused its discretion in using July 30, 2010, the date Wife filed fоr divorce, as the termination date of the marriage. Husband asserts that because he bore sole financial responsibility for the marital house, the children, and the farm after Wife moved out of the marital home, the most equitable termination date should be April 1, 2010, when the parties began living apart.
{¶ 27} We note at the outset that Husband did not specifically object to the July 30, 2010 termination date in his original objеctions, but objected to it in his supplemental objections. However, because the trial court ostensibly construed Husband‘s original objection No. 1 as challenging the termination date of the marriage, we will address whether the trial court abused its discretion in finding that the marriage terminated on July 30, 2010.
{¶ 28} Traditionally, the proper date for the termination of a marriage, for purposes of property division, is thе date of the final divorce hearing.
{¶ 29} The trial court found that “[g]iven the lengthy history of this case and the somewhat complicated financial transactions and appraisals the Court must decide,” July 30, 2010 was an equitable termination date of the marriage. We find that the trial court did not abuse its discretion in adopting July 30, 2010 as the marriage termination date. A spouse‘s unilateral decision to leave the marital home “does not, in and of itself, сonstitute a de facto termination of marriage.” Day v. Day, 40 Ohio App.3d 155, 158 (10th Dist.1988); Dill v. Dill, 179 Ohio App.3d 14, 2008-Ohio-5310, ¶ 11 (3d Dist.). By contrast, the act of filing a divorce complaint formally and clearly shows the spouse‘s intent regarding the marriage.
{¶ 30} Husband‘s first assignment of error is accordingly overruled.
{¶ 31} Assignment of Error No. 4:
{¶ 32} THE TRIAL COURT ERRED BY FAILING TO FIND THAT A $27,000 DEBT WAS OWED ON THE KINZE PLANTER AT THE TERMINATION OF THE MARRIAGE. THIS RESULTED IN OVERVALUING THIS ASSET BY $27,000.
{¶ 34} When dividing property in a divorce proceeding, a trial court must first determine what constitutes marital property and what constitutes separate property.
{¶ 35} The magistrate found that the value of Husband‘s farming and excavating equipment was $382,900 and that Wife was entitled to one-half of the value. The magistrate‘s finding was based on two separate March 2011 appraisals of the equipment, one by Frank McCullough and the other by Herbert Erwin. The record shows McCullough valued the Kinze planter at $27,000 and that the magistrate used that figure in her valuation of the equipment. The Kinze planter was identified in two exhibits of Husband: exhibit DD (titled “John‘s Position at Trial“) which lists a $27,000 marital debt on the Kinze planter, and exhibit G which lists Husband‘s monthly expenses and, when applicable, the balance due at the “end of March 2010 or close thereto.” Exhibit G shows a monthly payment of $630.41 on the Kinze planter and a $27,000 balance.2 Both exhibits G (in its original form) and DD were admitted into evidence.
{¶ 37} We find that the trial court‘s failure to find there was a marital debt on the Kinze planter at the time the marriage terminated or thereabout was unreasonable, and thus an abuse of discretion.
{¶ 38} Husband testified that as shown on exhibit G, there was a debt on thе Kinze planter, a payment was due annually, the annual payment had already been made for 2011, and the next annual payment was due in January 2012. Husband also testified that as shown on exhibit DD, at the time he and Wife separated, there was a debt on the Kinze planter, and the overall debt owed on the planter, a 1997 Kenworth Semi, a combine, a Chevrolet pickup truck, and a Caterpillar truck totaled $74,22.41. Both exhibits G and DD list a $27,000 debt on the planter. At the time of the hearing, Husband believed his marriage terminated in April 2010, when Wife moved out of the marital home, and therefore used that date with regard to the marital property and marital debts, rather than the date Wife filed for divorce.
{¶ 39} It is well-established that while as a general matter, “a trial court should consistently apply the same set of dates when evaluating all mаrital property that is subject to division and distribution in a divorce proceeding, * * * it is within the trial court‘s discretion to use different valuation dates where the valuation or account balances at a certain date were
{¶ 40} In the case at bar, the only valuation date presented regarding the Kinze planter was at the times the parties separated. While the magistrate found that the marriage terminated on July 30, 2010, the record shows that other dates were used to value the mortgages and the joint banking accounts. Thus, it was unreasonable for the trial court to find that nо debt existed on the Kinze planter.
{¶ 41} Husband‘s fourth assignment of error is well-taken and sustained. The property division is reversed to the extent the court found there is no debt on the Kinze planter, and this matter is remanded to the trial court to determine the marital debt that existed on the planter at the time the marriage ended and to adjust the division of marital property by allocating that debt between the parties.
{¶ 42} Assignment of Error No. 6:
{¶ 43} THE COURT HAS IMPOSED A REPAYMENT SCHEDULE THAT IS IMPOSSIBLE FOR APPELLANT TO COMPLY WITH.
{¶ 44} Husband argues the payment plan imposed by the trial court is impossible to comply with, and is thus unreasonable. Husband also argues that to order him to pay interest on the property settlement is “purely punitive in nature.”
{¶ 45} Husband objected to the payment plan and the imposition of the 5 percent interest rate in both his original and supplemental objections. Husband argued that because “mortgages [were] currently 3.9% and passbook CD money [was] 1.1%,” the 5 percent
{¶ 46} The trial court sustained Husband‘s objection to the 5 percent interest rate as follows: “The Court agrees that 5% is higher than the current statutory rate оf 3% used by the Court in assessing rates on Judgments. It would appear 3% is a more equitable interest rate.” The trial court, however, overruled Husband‘s objection to the payment plan as follows:
[Husband] challenges the payment plan recommended by the Magistrate to ensure [Wife] receives her share of the marital assets. As pointed out by [Wife], [Husband] assuredly has known for some time that ultimately, a significant amount оf money would be owed to [Wife] to equalize the marital assets. Liquidity is always a problem when assets are primarily real estate and/or farm equipment. To suggest as [Husband] contends that there is no basis for [Husband] to obtain funds to comply with the payment plan ignores refinancing options on the marital real estate as well as other alternatives. * * * With respect to the recommended Payment Plan itself, the Court finds it reasonable and possible. To the extent [Husband] cannot comply through no fault of his own, that defense would presumably be presented at a Motion for Contempt that would likely be filed by [Wife.]
{¶ 47} Husband testified (1) he would be able to refinance the real property within the 90-day time frame; (2) if need be, he would borrow money from his father; and (3) he could not pay Wife within a year but could make yearly payments of $40,000 to $50,000.
{¶ 48} The trial court noted that Husband can obtain funds to comply with the payment plan by refinancing the marital real estate and/or using other alternatives. Upon thoroughly reviewing the record and the parties’ testimony, we find that the payment plan ordered by the trial court is not an abuse of discretion.
{¶ 49} We likewise uphold the trial court‘s assessment of a 3 percent interest rate. We
{¶ 50} Husband‘s sixth assignment of error is overruled.
{¶ 51} We now turn to Wife‘s cross-assignment of error:
{¶ 52} THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO AWARD WIFE HER EQUITY SHARE OF THE 2010 NET CROP PROFITS.
{¶ 53} Wife argues the trial court abused its discretion when it declined to award Wife half of the net profits from the 2010 crops. Wife asserts she is entitled to half of the profits because the seeds were planted in March 2010, before the parties’ separation, and were from the 2009 harvest which was kept in bins on their farm. We disagree.
{¶ 54} Wife testified that when she moved out of the marital home in April 2010, Husband still had some crops from the 2009 harvest which was kept in grain bins on the farm. Wife asserted that in 2010, Husband “replanted with the 2009 crop.” Wife explained that she “was there when he took it out of the bin and put it in the grain cart.” Wife also testified Husband “planted 2010 usually April-May,” and that she did not help Husband plant or harvest the crops in 2010.
{¶ 56} The parties’ foregoing testimony clearly show that Wife did not help Husband plant or harvest the 2010 crops. Husband unequivocally testified he planted the 2010 crops after the parties’ separation. By contrast, Wife did not testify Husband planted the 2010 crops before she moved out of the marital home and her testimony as to when the crops were planted was confusing. As to whether the crops planted in 2010 were from the 2009 harvest, because the trial court was best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use those observations in weighing the credibility of the testimony, we find no error in the trial court‘s decision finding that Wife was not entitled to a share of the 2010 net crop profits. See Homme, 2010-Ohio-6080 at ¶¶ 60-61.
{¶ 57} Wife‘s cross-assignment of error is accordingly overruled.
{¶ 58} Judgment affirmed in part, reversed in part, and remanded for further proceedings in accordance with the law and consistent with this opinion.
RINGLAND, P.J. and PIPER, J., concur.