NANCY L. STRATTON v. ROBERT B. STRATTON
No. 107798
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 15, 2019
2019-Ohio-3279
MARY EILEEN KILBANE, A.J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. DR-17-368178
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 15, 2019
Appearances:
Joyce E. Barrett, and James P. Reddy, for appellee.
Robert B. Stratton, pro se.
MARY EILEEN KILBANE, A.J.:
{¶ 1} Robert and Nancy were married in September 1981. Two sons were born as issue of their marriage, both of whom were emancipated at the time of the divorce proceedings. In August 2017, Nancy filed a complaint for divorce. Robert filed his answer, and the trial court scheduled the matter for trial in July 2018.
{¶ 3} In September 2018, based on the joint stipulations and joint exhibits, the trial court divided the marital property and granted the divorce.
{¶ 4} Robert now appeals, assigning the following 11 errors for review.
Assignment of Error One
The judge failed to grant continuance so it could be determined if [Nancy] needed a guardian appointed.
Assignment of Error Two
The judge failed to delay trial so [Robert] could retain new counsel when his counsel abruptly withdrew on July 25.
Assignment of Error Three
The judge refused to require [Nancy] to provide [Robert] his personal records so he could submit evidence and prepare his case.
Assignment of Error Four
The judge refused to clarify whether the restraining order required [Robert] to continue buying Marsh stock.
Assignment of Error Five
The decision regarding the marital residence was not equitable and totally ignored the housing situation of [Robert].
The division of the retirement assets was not equitable considering the health of [Nancy] and [Robert].
Assignment of Error Seven
[It was] plain error and an abuse of discretion in deciding the marital credit card debt.
Assignment of Error Eight
[It was] plain error and an abuse of discretion in assigning the entire student loan debt to [Robert].
Assignment of Error Nine
[It was] plain error and an abuse of discretion in dividing the marital assets and the marital debt when looked at in the totality.
Assignment of Error Ten
[It was] plain error and an abuse of discretion in considering that [Robert] earned a professional degree during the marriage.
Assignment of Error Eleven
[There were] many plain errors in the budget report for 2018 and special spousal support is arbitrary, unreasonable and an abuse of discretion.
Continuance
{¶ 5} We will address the first and second assignments of error together, Robert argues the trial court erred when it failed to grant a continuance to determine if Nancy needed a guardian appointed. Robert also argues the trial court erred when it failed to grant a continuance for him to retain new counsel.
{¶ 6} The decision to grant or deny a motion for a continuance of trial lies within the sound discretion of the trial court. Kinas v. Kinas, 8th Dist. Cuyahoga No.
{¶ 7} When determining whether a trial court abused its discretion in denying a motion for a continuance, the reviewing court should consider the following factors: (1) the length of the delay requested; (2) whether other continuances have been requested and received; (3) the inconvenience to witnesses, opposing counsel, and the court; (4) whether there is a legitimate reason for the continuance; (5) whether the defendant contributed to the circumstances giving rise to the need for the continuance; and (6) other relevant factors, depending on the unique facts of each case. Depompei v. Santabarbara, 8th Dist. Cuyahoga No. 101163, 2015-Ohio-18, ¶ 41, citing State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981).
{¶ 8} On July 25, 2018, while acting without an attorney, Robert orally motioned the trial court to continue the trial to determine whether Nancy, who had been in poor health and had recently undergone surgery for glioblastoma, needed a guardian appointed to adequately protect her interest. Nancy was present in court
{¶ 9} A review of the record reveals that despite Nancy‘s poor health and recent surgery, she was present in court with counsel, who did not believe a guardian was necessary, and who was prepared to proceed. Granting the continuance so the probate court could determine whether a guardian was needed would have involved an indeterminate delay. As a result, we do not find that the trial court abused its discretion in denying Robert‘s motion to continue.
{¶ 10} Robert also argues the trial court erred when it denied his motion to continue after his attorney abruptly resigned. However, we find Robert‘s argument moot.
{¶ 11} The record indicates that Robert‘s counsel orally motioned the court for a mandatory withdrawal, ostensibly because she had been dismissed. Robert, who had four different counsel while the divorce was pending, indicated that he did not want counsel to withdraw. However, counsel indicated she could not continue on the case. The trial court granted counsel‘s motion to withdraw.
{¶ 12} Afterward, Robert orally motioned the court to continue the trial so the previously discussed guardianship determination could be made. Two days later, Robert appeared in court with the same counsel, who had withdrawn earlier.
{¶ 13} Based on the unfolding of events, in particular counsel‘s reappearance on the case, Robert‘s present assertion is moot.
{¶ 14} Accordingly, the first and second assignments of error are overruled.
Personal Records
{¶ 15} In the third assignment of error, Robert argues the trial court erred by refusing to require that Nancy provide him with access to his personal records located in the marital home. Robert argues the sought-after personal records would have helped in his preparation for the case. Robert argues that the inability to get his personal records prevented him from establishing that 20 percent of the Vanguard Retirement Account was acquired before his marriage to Nancy.
{¶ 16} However, the record indicates that Robert and Nancy entered into a consent agreement providing Nancy with exclusive use of the marital home, and providing that Robert could arrange to obtain his personal items from the residence in the company of uniformed law enforcement officers. Therefore, based on the provision of the consent agreement, Robert could have arranged to get his personal records from the marital home.
{¶ 17} Moreover, Robert and Nancy stipulated that the Vanguard Retirement Account was worth $330,661. A stipulation is “a voluntary agreement entered into between opposing parties concerning the disposition of some relevant point in order to avoid the necessity for proof on an issue” or to “narrow the range
{¶ 18} Once entered into by the parties and accepted by the court, a stipulation is binding upon the parties as “a fact deemed adjudicated for purposes of determining the remaining issues in the case.” Bodrock at ¶ 19, quoting Dejoseph v. Dejoseph, 7th Dist. Mahoning No. 10 MA 156, 2011-Ohio-3173, ¶ 35. As a result of the above stipulation, Robert has waived any error that may have occurred with respect to the Vanguard Retirement Account.
{¶ 19} Accordingly, the third assignment of error is overruled.
Marsh Stock
{¶ 20} In the fourth assignment of error, Robert argues the trial court erred by failing to clarify whether the temporary restraining order required him to continue purchasing Marsh stock in the Morgan Stanley investment account. This argument lacks merit.
{¶ 21} In February 2018, Robert filed an emergency motion to amend the temporary financial orders seeking, among other things, to cease all future direct payments to the purchasing of Marsh stock. Robert also sought permission to liquidate $30,000 of the Marsh stock to pay legal fees.
{¶ 23} The trial court addressed the Marsh stock in the final decree as follows:
Pursuant to the parties’ Joint Stipulations (Joint Exhibit 1), the Court finds that [Robert] has titled in his name a non-retirement brokerage account with Morgan Stanley containing 2255.490 shares of Marsh & McLennan US common stock, with a trial date value of $196,000.
[Robert] argues for the sale of the Marsh stock in the Morgan Stanley account to be used to pay certain marital debts, different from the debts to which the parties stipulated. [Robert] also includes a lengthy discussion about the 2018 federal capital gains rates; but it is unclear how application of those rates would affect these parties.
The Court finds that the Marsh stock has been purchased over time at different values throughout the marriage; and considers that there may be capital gains taxes based on those different values (share price and cost basis) upon sale. The Court finds it equitable to divide (not sell) the Marsh & McLennan stock equally between the parties on a pro rata basis as to acquisition date. Dividing the stock between the parties will permit each of them to exercise control over the timing of any sale and resulting tax liability.
{¶ 24} As seen from the above findings, the trial court considered the temporary restraining order regarding the Marsh stock and specifically addressed it within the final decree. As a result, the temporary order is now merged into the final decree.
Division of Marital Property
{¶ 26} The remaining assignments of error challenge, in some respect, the trial court‘s division of the marital property.
{¶ 27}
{¶ 28} In order to determine what is equitable, the trial court must consider the factors outlined in
{¶ 29} In the fifth assignment of error, Robert argues the trial court‘s division of the marital residence was not equitable.
{¶ 30} In the instant case, Robert and Nancy stipulated that the marital home had a fair market value of $159,000, with an outstanding mortgage balance of
{¶ 31} During the pendency of the divorce, Nancy was residing in the home and Robert had no permanent residence, but was staying with a friend. Robert requested that he be awarded sole interest in the home, that he would compensate Nancy for her one-half interest in the equity, and that Nancy would vacate the home by August 31, 2018. Nancy proposed that the home be listed for sale, on or before May 1, 2019, that she be permitted to reside there until that date, and that she would receive one-half of the net proceeds.
{¶ 32} The trial court found Robert‘s proposal more equitable, except for the date on which Nancy was to vacate the property. To that end, the trial court stated:
[Robert‘s] proposal that [Nancy] immediately vacate the marital residence is unreasonable due to [Nancy‘s] present health. The Court finds, therefore, that [Nancy] should be permitted to continue to enjoy sole use and possession of the marital residence until she elects to vacate same, she dies, or no later than May 1, 2019, at which time [Nancy] should relinquish her interest in said real property to [Robert].
Thereafter, [Robert] shall be awarded the marital residence as his sole property, free and clear of any claim by [Nancy]. [Nancy] will be compensated for her one-half (1/2) interest in the marital residence of $19,000 in the overall division of assets and liabilities.
{¶ 33} Here, the trial court awarded the marital residence to Robert and awarded each party an equal share of the equity in the property. Allowing Nancy to remain in the marital residence until she vacated or died, but no later than May 1, 2019, was equitable under the circumstances. Nancy was gravely ill, had undergone brain cancer surgery during the pendency of the divorce, and, as previously noted,
{¶ 34} Accordingly, the fifth assignment of error is overruled.
{¶ 35} In the sixth assignment of error, Robert argues the division of the retirement assets was not equitable. Specifically, Robert argues the trial court failed to consider that Nancy‘s prognosis indicated that she would pass away prior to June 2019. Robert further argues that, although sad and tragic, giving half of the retirement assets to Nancy, who would the give those assets to an unrelated third party was not equitable.
{¶ 36} As defined in
{¶ 37} In the instant case, the trial court found that Nancy had no retirement assets accumulated during the marriage. Robert and Nancy stipulated to having three retirement assets namely: the Vanguard IRA, with a value of $330,661; the Marsh 401(K), with a value of $334,589; and a CNA pension plan in a payout phase, with a monthly benefit of $622.37. Nancy proposed an equal division of these three assets, while Robert proposed that he be awarded the Marsh 401(K) in full and Nancy be awarded the Vanguard IRA in full.
{¶ 39} Accordingly, the sixth assignment of error is overruled.
{¶ 40} In the seventh assignment of error, Robert argues the division of the credit card debt was not equitable.
{¶ 41} A trial court must also take into account the parties’ marital debt when dividing marital property. Turner v. Davis-Turner, 8th Dist. Cuyahoga No. 106002, 2018-Ohio-2194, ¶ 14 (8th Dist.), citing Kehoe v. Kehoe, 2012-Ohio-3357, 974 N.E.2d 1229. Marital debt includes any debt that is incurred during the marriage for the joint benefit of the parties or for a valid marital purpose. Rossi v. Rossi, 8th Dist. Cuyahoga Nos. 100133 and 100144, 2014-Ohio-1832, ¶ 62, citing Cooper v. Cooper, 12th Dist. Clermont No. CA2013-02-017, 2013-Ohio-4433, ¶ 18.
{¶ 42} In the instant case, Robert and Nancy stipulated to having marital credit card debt of $21,000. The trial court found that in February of 2018, the balance had been paid in full, but both parties subsequently charged some of their attorney fees to the credit card. Based on Nancy‘s lack of income, then health
{¶ 43} The above division was fair, just and equitable under the circumstances. Thus, we find no abuse of discretion.
{¶ 44} Accordingly, the seventh assignment of error is overruled.
{¶ 45} In the eighth assignment of error, Robert argues it was inequitable to be assigned full responsibility for the debt for the education of their adult children. Robert and Nancy stipulated to having a student loan debt of $31,000 incurred on behalf of their now emancipated sons. Nancy proposed that Robert be held solely responsible for repayment of the loan.
{¶ 46} We have held that student loan obligations undertaken during the marriage for the benefit of a couple‘s emancipated child should be treated as any other expense of the marriage and, thus, is considered marital debt. Kaletta v. Kaletta, 8th Dist. Cuyahoga No. 98821, 2013-Ohio-1667, ¶ 16, citing Kehoe, 8th Dist. Cuyahoga No. 97357, 2012-Ohio-3357.
{¶ 47} The trial court did find that the repayment of the student loan should be allocated to Robert, but found that Nancy should share in the overall debt by taking a reduced value in other assets. To this end, the trial court did not award Nancy any share of Robert‘s CNA pension, because he had been allocated sole
{¶ 48} Accordingly, the eighth assignment of error is overruled.
{¶ 49} In the ninth assignment of error, Robert argues the trial court abused its discretion by not dividing the marital assets and debts equally.
{¶ 50} It has long been established that broad discretion is vested in the trial court to determine an equitable property division, because “the different facts and circumstances which each divorce case presents to a trial court requires that a trial judge be given wide latitude in dividing property between the parties.” Wojanowski v. Wojanowski, 8th Dist. Cuyahoga No. 99751, 2014-Ohio-697, quoting Koegel v. Koegel, 69 Ohio St.2d 355, 357, 432 N.E.2d 206 (1982).
{¶ 51} Our review of the record in the instant case reveals that the trial court considered the factors outlined in
{¶ 52} Accordingly, the ninth assignment of error is overruled.
{¶ 53} In the tenth assignment of error, Robert argues the trial court erred by giving weight to the fact that he earned a law degree during the marriage.
{¶ 54}
{¶ 55} Among the factors to be considered is:
“[t]he contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party‘s contribution to the acquisition of a professional degree of the other party[.]”
{¶ 56} In the final decree, the trial court addressed all of the factors that applied to the parties. Regarding
Neither party presented documentation specifically addressing this factor, and in-court testimony was waived. However, [Robert] was not licensed as an attorney in Ohio until 1992 -- a full 11 years after the marriage. Therefore, this factor will be given weight by the Court.
{¶ 57} There is nothing in the record to indicate how much weight the trial court gave to this factor or anything to suggest that it was given more weight than the other factors. Because the trial court ordered that the spousal support payments continue until the death of either party, and Nancy passed away in February 2019, any perceived error in the trial court‘s consideration of this factor, is now moot.
{¶ 58} Accordingly, the tenth assignment of error is overruled.
{¶ 60} As discussed in the preceding assignment of error, the trial court considered the statutory factors set forth in
{¶ 61} Accordingly, the eleventh assignment of error is overruled.
{¶ 62} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court, domestic relations division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
ANITA LASTER MAYS, J., and
RAYMOND C. HEADEN, J., CONCUR