REBECCA L. TRETOLA, PLAINTIFF-APPELLEE, v. ROBERT J. TRETOLA, DEFENDANT-APPELLANT.
CASE NO. 8-14-12
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
December 15, 2014
2014-Ohio-5484
Judgment Affirmed
APPEARANCES:
Robert J. Tretola, Appellant
Sheila E. Minnich for Appellee
{1} Defendant-appellant, Robert J. Tretola (“Robert“), pro se, appeals the May 27, 2013 judgment entry of the Logan County Court of Common Pleas, Family Court-Domestic Relations Division, granting the plaintiff-appellee, Rebecca L. Tretola (“Rebecca“) divorce from Robert. For the reasons that follow, we affirm.
{2} The facts relevant to this appeal are as follows. Robert and Rebecca were married on June 9, 1995. (Doc. No. 1). Rebecca filed a complaint for divorce on September 17, 2012. (Id.). No children were born as issue of this marriage. (Id.).
{3} At the same time Rebecca filed her complaint for divorce, she filed three motions requesting that the trial court issue three ex parte orders: ordering Robert to designate her as the sole beneficiary on his life-insurance policy with Lincoln National because Robert changed the beneficiary to his daughter on September 7, 2012; preventing Robert from withdrawing money from the “6058”1 Scottrade account; and ordering Robert to return coins valued between $15,000 and $20,000 that he removed from the marital home on or around September 7, 2012. (Doc. Nos. 7, 8, 9). Rebecca also filed motions requesting that the trial court issue a temporary restraining order against Robert and for Robert to pay temporary spousal support to Rebecca. (Doc. Nos. 10, 11).
{5} On December 4, 2012, Robert filed a motion for leave to file his answer, filed his answer, and filed his counterclaim. (Doc. Nos. 32, 33, 36). The trial court granted Robert‘s motion for leave to file his answer on December 7, 2012. (Dec. 7, 2012 JE, Doc. No. 37). Rebecca filed her answer to Robert‘s counterclaim on January 2, 2013. (Doc. No. 43).
{6} On December 28, 2012, Robert filed a motion requesting that the trial court partially release him from the restraining order and permit him to withdraw monies from the “6058” Scottrade account for living expenses. (Doc. No. 42).
{7} On January 28, 2013, Rebecca filed a motion for an ex parte order permitting her to remove household goods from the marital home to allow her to relocate from the marital home. (Doc. No. 53). The trial court issued an ex parte order that same day granting Rebecca‘s request to remove household goods from the marital home. (Jan. 28, 2013 JE, Doc. No. 54). Robert filed a motion
{8} After a hearing on February 6, 2013, the magistrate issued his temporary orders. (Feb. 25, 2013 JE, Doc. No. 61). The magistrate‘s temporary orders ordered Robert to pay Rebecca temporary spousal support in a lump sum of $20,000 within 30 days of the order, to pay for all of Rebecca‘s medical expenses, and to pay for all debts and obligations associated with the marital home. (Id.). The magistrate‘s temporary orders permitted Robert to withdraw $40,000 from the “6058” Scottrade account and ordered him to pay $20,000 of that $40,000 to Rebecca to satisfy the temporary spousal support that the magistrate ordered him to pay her. (Id.). The temporary orders also ordered Robert to submit documentation to the trial court that he complied with the court‘s ex parte order requiring him to name Rebecca as the sole beneficiary on his Lincoln National life-insurance policy. (Id.).
{9} On February 11, 2013, Robert filed “Defendant‘s Support and Clarification of Positions at Conference/Hearing on ‘Temporary Orders.‘” (Doc. No. 58). On February 19, 2013, Robert filed a motion requesting Rebecca and her attorney pay late fees associated with the mortgage and property taxes of the marital property. (Doc. Nos. 59, 60). On February 28, 2013, Robert filed a
{10} On April 9, 2013, Rebecca filed a response to Robert‘s objections. (Doc. No. 68). Also on April 9, 2013, Rebecca filed a motion requesting that the trial court issue an ex parte order that the marital home be listed for sale. (Doc. No. 70).
{11} On April 12, 2013, Robert filed “Defendant‘s Reply to Plaintiff‘s Complaint that Defendant is in Contempt of Court” and admitted that he did not comply with the magistrate‘s temporary orders because he did not agree with them. (Doc. No. 71).3 On April 15, 2013, Robert filed an objection to Rebecca‘s motion requesting that the trial court order that the marital home to be listed for sale. (Doc. No. 72).
{12} Also on April 15, 2013, Rebecca filed a motion to dismiss Robert‘s objections to the magistrate‘s orders. (Doc. No. 70).
{13} On May 29, 2013, Robert filed a “Pre-Trial Motion for ‘Summary Judgment on the Issue of Plaintiff‘s Submitting Two (2) False Affidavits’ in Support of Plaintiff‘s ‘Motion to Restrain Defendants [sic] Retirement Account.‘” (Doc. No. 77).
{15} On June 27, 2013, Rebecca filed a second motion requesting that the trial court issue an ex parte order ordering that the marital home be listed for sale. (Doc. No. 83). Also on June 27, 2013, Rebecca filed a motion requesting that the trial court issue an ex parte order allowing her to withdraw $20,000 from her life insurance policy because Robert refused to comply with the magistrate‘s temporary orders requiring him to pay her spousal support. (Doc. No. 84).
{16} On July 3, 2013, Robert filed a “Motion for Summary Judgment or Final Divorce Decree.” (Doc. No. 85). Also on July 3, 2013, Robert filed a response to Rebecca‘s motions requesting ex parte orders and a motion to sanction Rebecca and her attorney. (Doc. No. 86).
{17} The trial court denied Rebecca‘s requests for ex parte orders and, instead, scheduled the issues for a hearing. (July 9, 2013 JE, Doc. No. 90).
{18} On July 19, 2013, Robert filed a motion requesting that the trial court release the “6058” Scottrade account from the restraining order. (Doc. No. 92).
{19} After a hearing on August 1, 2013, the trial court: overruled Robert‘s objections to the magistrate‘s temporary orders; ordered Robert to pay
{20} On August 13, 2013, Robert filed an objection to the trial court‘s August 8, 2013 judgment entry. (Doc. No. 100). On August 16, 2013, Robert filed an appeal with this court. (Doc. No. 102). On September 3, 2013, this court dismissed Robert‘s appeal for lack of a final, appealable order. (Sept. 3, 2013 JE, Doc. No. 108).
{21} On August 27, 2013, Rebecca filed a motion requesting that Robert be held in contempt of court for failing to comply with the trial court‘s August 8, 2013 judgment entry and prior orders of the trial court. (Doc. No. 105). On August 30, 2013, Robert filed a response to Rebecca‘s motion requesting that he be held in contempt of court, alleging that he could not comply with the trial court‘s order because “Scottrade will not release the money ordered by the court.” (Doc. No. 107).
{22} On September 18, 2013, Robert filed a motion requesting that the trial court order Scottrade to release the monies the trial court previously
{23} On November 1, 2013, Robert filed a notice of appeal with this court. (Doc. No. 126). On November 15, 2013, this court dismissed Robert‘s appeal because he failed to attach the final order he sought to have reviewed on appeal and because the record did not reflect that the trial court recently filed a final order or any order subject to appeal. (Nov. 15, 2013 JE, Doc. No. 131).
{24} On January 31, 2014, Rebecca filed a motion requesting that the trial court release $10,000 from the “6058” Scottrade account for the upkeep and preservation of the marital home during the pendency of this case. (Doc. No. 136). On February 10, 2014, Robert filed a memorandum in opposition to Rebecca‘s motion. (Doc. No. 141).
{25} On February 13, 2014, the trial court issued an opinion and findings and ordered Rebecca‘s counsel to “prepare an appropriate entry in conformity with [its] findings.” (Feb. 13, 2014 JE, Doc. No. 142). On February 21, 2014, Robert filed an objection to the trial court‘s February 13, 2014 opinion and findings. (Doc. No. 147). That same day, Robert also filed “Defendants [sic] Testimony
{26} On February 27, 2014, Robert filed his notice of appeal of the trial court‘s February 13, 2014 opinion and findings. (Doc. No. 152). On March 26, 2014, this court dismissed Robert‘s appeal for lack of a final, appealable order since the trial court‘s February 13, 2014 opinion and findings made only findings regarding how the parties’ claims should be resolved. (Mar. 26, 2014 JE, Doc. No. 156).
{27} On April 3, 2014, the trial court authorized Rebecca to receive $21,759.48 from the “6058” Scottrade account to pay for expenses related to the marital home. (Apr. 3, 2014 JE, Doc. No. 159).
{28} On May 27, 2014, the trial court issued a final divorce decree. (May 27, 2014 JE, Doc. No. 164).
{29} On May 30, 2014, Robert filed his notice of appeal and a motion to stay the trial court‘s final order pending appeal. (Doc. Nos. 172, 175). The trial court denied Robert‘s motion to stay on July 3, 2014. (July 3, 2014 JE, Doc. No. 179). Robert raises eighteen assignments of error for our review. We elect to
Assignment of Error No. I
The trial court erred by conducting the proceedings with extreme prejudice toward Defendant/Appellant.
{30} In his first assignment of error, Robert argues that the trial court demonstrated an obvious bias against him as a pro se litigant. Specifically, Robert argues that the trial court caused his February 27, 2014 appeal to be dismissed, improperly took judicial notice of cases with the intent to punish him, refused to accept his expert witness, caused the loss of his expert witness‘s testimony from the record, refused to admit his financial exhibit, failed to require Rebecca to abide by deadlines, refused to hear his motion to receive money for expenses, and refused his request for a stay of execution.
{31} This court does not have jurisdiction to vacate a trial court‘s judgment based on a claim of judicial bias. Beer v. Griffith, 54 Ohio St.2d 440, 441-42 (1978). See also Fernandez v. Ohio State Pain Control Ctr., 10th Dist. Franklin No. 03AP-1018, 2004-Ohio-6713, ¶ 24-25 (finding that the plaintiff‘s argument that the trial court‘s decisions were erroneous based on bias or prejudice were not properly before the court even though it was unclear whether the plaintiff was arguing that the trial judge should have disqualified himself). In Beer, “the Ohio Supreme Court explicitly and unequivocally stated that, since only the Chief
{32} Even if this court had jurisdiction to consider this assignment of error, Robert‘s arguments are without merit. “A judge is presumed not to be biased or prejudiced, and a party alleging bias or prejudice must present evidence to overcome the presumption.” Cline v. Mtge. Electronic Registration Sys., Inc., 10th Dist. Franklin No. 13AP-240, 2013-Ohio-5706, ¶ 33, quoting Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-Ohio-4423, ¶ 20 (10th Dist.), citing In re Disqualification of Kilpatrick, 47 Ohio St.3d 605, 606 (1989) and Eller v. Wendy‘s Internatl, Inc., 142 Ohio App.3d 321, 340 (10th Dist.2000). “The existence of prejudice or bias against a party is a matter that is particularly within the knowledge and reflection of each individual judge and is difficult to question unless the judge specifically verbalizes personal bias or prejudice toward a party.” Id. at ¶ 33, quoting Wardeh at ¶ 20. “A judge‘s rulings of law are legal issues, subject to appeal, and are not by themselves evidence of bias or prejudice.” Id., citing Okocha v. Fehrenbacker, 101 Ohio App.3d 309, 322 (8th Dist.1995).
{34} Robert‘s first assignment of error is dismissed.
Assignment of Error No. III
The trial court erred by not adopting or rejecting the Magistrate‘s temporary orders from hearing on February 6 2013[.]
Assignment of Error No. XIII
The trial court erred by awarding an additional $ 20000 [sic] dollars to Plaintiff for no apparent reason in addition to spousal support.
{35} In support of these assignments of error, Robert failed to cite any authority, failed to cite to the record, and failed to make any argument in support of his claims. “[A]n appellate court may disregard an assignment of error pursuant to App.R. 12(A)(2): ‘if the party raising it fails to identify in the record the error
{36}
{37} “It is not the duty of an appellate court to search the record for evidence to support an appellant‘s argument as to any alleged error.” Rodriguez at ¶ 7, quoting State v. McGuire, 12th Dist. Preble No. CA95-01-001, 1996 WL 174609, *14 (Apr. 15, 1996). “An appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” Id., citing State v. Watson, 126 Ohio App.3d 316, 321 (12th Dist.1998) and McGuire at *14.
{38} “Pro se civil litigants ‘are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept their own mistakes and errors.‘” State ex rel. Hines v. Holland, 3d Dist. Allen No. 1-95-62, 1996 WL 16869, *1 (Jan. 19, 1996), quoting Meyers v. First Natl. Bank of Cincinnati, 3 Ohio App.3d 209, 210 (1st Dist.1981).
Assignment of Error No. II
The trial court erred by denying Defendant his due process.
{40} In his second assignment of error, Robert initially contends that the trial court did not provide him due process of law by issuing a temporary restraining order against him. However, Robert did not assert this argument before the trial court. “[A] party waives the right to appeal an issue that it could have raised, but did not, in earlier proceedings.” During v. Quoico, 10th Dist. Franklin No. 11AP-735, 2012-Ohio-2990, ¶ 36 (concluding that because Quoico failed to assert her due-process argument before the trial court, she waived her argument on appeal), citing Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, ¶ 34 and Trish‘s Café & Catering, Inc. v. Ohio Dept. of Health, 195 Ohio App.3d 612, 2011-Ohio-3304, ¶ 19 (10th Dist.). See also Erwin v. Erwin, 3d Dist. Marion No. 9-08-15, 2009-Ohio-407, ¶ 17, 20, citing State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278 (1993), citing State ex rel. Gibson v. Indus. Comm., 39 Ohio St.3d 319 (1988). Because Robert failed to assert his due-process argument before the trial court, he waived his argument on appeal. As such, we decline to address it. During at ¶ 36; Erwin at ¶ 18.
{42} Robert further avers in this assignment of error that his restraining order against Rebecca was rendered useless when the trial court granted Rebecca‘s ex parte motion to remove items from the marital home and that Rebecca improperly submitted ex parte motions. Robert did not provide an argument relative to either assertion, and we decline to make one for him. State v. Fisher, 3d Dist. Hardin No. 6-13-03, 2014-Ohio-436, ¶ 7, citing
{43} Robert‘s second assignment of error is overruled.
Assignment of Error No. IV
The trial court erred by awarding to Plaintiff that [sic] the real estate on which the marital home was constructed was [sic] gifted to Plaintiff/Appellee without documentation or evidence to support such claim.
The trial court erred in allowing landscaping cost to be granted as a gift to Plaintiff without documentation or evidence to support such claim.
Assignment of Error No. VI
He [sic] trial court erred by allowing the appraised value of the 3 motor vehicles of the parties to be conducted by Plaintiff herself and not a certified appraiser.
Assignment of Error No. VII
Trial court erred by not considering Defendant‘s testimony and documentation that he had his life insurance policy 5 years prior to the marriage‘s beginning.
Assignment of Error No. IX
The trial court erred by dismissing open testimony and evidentiary proof that Defendant/Appellant had at least $225000 [sic] dollars in his retirement plan prior to the marriage.
Assignment of Error No. XVII
The trial court erred by demonstrating un-equivocally an abuse of discretion and complete disregard for the facts and the law.
{44} In his fourth, fifth, sixth, seventh, ninth, and seventeenth assignments of error, Robert avers that the trial court erred in its determination of marital and separate assets and its distribution of those assets.
{45} In determining the equitable distribution of assets in a divorce proceeding, the trial court engages in a two-step process-first, the trial court must
{46} This court reviews a trial court‘s classification of property as marital or separate property under a manifest-weight-of-the-evidence standard. Id. Accordingly, we will not reverse the trial court‘s judgment if the decision is supported by some competent, credible evidence. Eggeman v. Eggeman, 3d Dist. Auglaize No. 2-04-06, 2004-Ohio-6050, ¶ 14, citing DeWitt v. DeWitt, 3d Dist. Marion No. 9-02-42, 2003-Ohio-851, ¶ 10 (“This highly deferential standard of review permits the affirmation of the trial court‘s judgment if there is ‘even some evidence’ to support the court‘s finding.“). In determining whether competent, credible evidence exists, “[a] reviewing court should be guided by a presumption that the findings of a trial court are correct, since the trial judge is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use
{47} Once the characterization has been made, “the court should normally award each spouse his or her separate property and then distribute the marital estate equally unless an equal division would be inequitable.” Id., citing
{48} In his fourth and fifth assignments of error, Robert argues that the trial court erred in determining that the the value of land on which the marital home was built and the value of its landscaping was separate property and in distributing it to Rebecca. We disagree. A review of the record indicates that the trial court‘s determination that the land on which the marital home was built and
{49} In addition, Ann Thornberg (“Thornberg“), Rebecca‘s sister, testified that their mother provided her a similar land gift-that is, an acre and a half of land-and her mother gifted all of her children $20,000 “2 years ago when she sold her house.” (Id. at 63-64). Thornberg also testified that Rebecca told her that she was going to use her $20,000 gift from their mother for landscaping. (Id. at 64).
{50} Accordingly, Rebecca met her burden of proving by a preponderance of the evidence that the land and value of the landscaping was separate property, and the trial court‘s conclusion that those items were Rebecca‘s separate property is supported by some competent, credible evidence. See Barkley, 119 Ohio App.3d at 159. Therefore, the trial court did not abuse its discretion in allocating
{51} In his sixth assignment of error, Robert argues that the trial court erred by basing the value of the marital automobiles on Rebecca‘s appraisals. However, a review of the record reflects that Robert did not object to the introduction of the appraisals provided by Rebecca, nor did he offer appraisals of his own. (See Oct. 30, 2013 Tr. at 90-92, 170). The failure to timely object to the admission of evidence waives all but plain error on review. Am. Builders & Contrs. Supply Co., Inc. v. Frank‘s Roofing, Inc., 3d Dist. Marion No. 9-11-41, 2012-Ohio-4661, ¶ 17; Evid.R. 13(A)(1), (D). “In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” Id., quoting Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus.
{52} The circumstances of this case are not exceptional and do not give rise to plain error. Robert only cross-examined Rebecca on the appraisals she offered into evidence and did not offer his own appraisals into evidence. (Oct. 30, 2013 Tr. at 166-168, 210). (See also Defendant‘s Exs. I, J, K). Thus, Robert
failed to demonstrate that the trial court committed plain error by basing the value of the marital vehicles on Rebecca‘s appraisals.{¶53} Without providing any substantive argument, Robert simply avers in his seventh and ninth assignments of error that the trial court erred by classifying portions of his life insurance policy and retirement plan as marital property. Because Robert was seeking to establish that portions of his life insurance policy and retirement plans were separate property, he bore the burden of proving by a preponderance of the evidence that those portions were separate property. See Schalk, 2008-Ohio-829, at ¶ 6.
{¶54} Once again, Robert failed to point us to any evidence in the record supporting that he met his burden of proving that portions of his life insurance policy and retirement plan should be considered separate property. In his case-in-chief, Robert testified that he purchased the life insurance policy in 1988 and made Rebecca the beneficiary in 1997 or 1998. (Oct. 30, 2013 Tr. at 175). He testified that he thought the principle value of the life insurance policy was $10,500.4 (Id.). Robert did not provide any testimony regarding any portion of his retirement plan being separate property; rather, he stated, “My retirement program, my... I will let me [sic] expert witness go into the details on that. Okay.” (Id.).
{¶56} Since Robert provided no evidence as to the premarital value of his life insurance policy and retirement plan, it was impossible to determine what
{¶57} In Robert‘s seventeenth assignment of error, he contends that the trial court‘s allocation of marital property is unsupported by facts and is contrary to law. However, in this assignment of error Robert does not cite any specific allocation of a marital asset or any legal support for why he contends its division was contrary to law. Thus, we decline to further address this assignment of error.
{¶58} For these reasons, Robert‘s fourth, fifth, sixth, seventh, ninth, and seventeenth assignments of error are overruled.
Assignment of Error No. XII
Trial court erred by finding Defendant in contempt not only as un-justified but based on the Magistrate‘s order which was never acted upon by the court.
Assignment of Error No. XV
Trial court erred by awarding attorney‘s [sic] based on the Judges allegations not supported in the final order nor supported by the record.
{¶60} A trial court has inherent authority to enforce its prior orders through contempt. Dozer v. Dozer, 88 Ohio App.3d 296, 302 (4th Dist.1993). See also
{¶61} “A finding of civil contempt requires clear and convincing evidence that the alleged contemnor has failed to comply with the court‘s prior orders.” Moraine v. Steger Motors, Inc., 111 Ohio App.3d 265, 268 (2d Dist.1996), citing ConTex, Inc. v. Consolidated Technologies, Inc., 40 Ohio App.3d 94, 95 (1st Dist.1988). “‘Clear and convincing evidence’ has been defined as ‘that measure or degree of proof which is more than a mere preponderance of the evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in
{¶62} This court will not reverse a finding of contempt absent an abuse of discretion by the trial court. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11 (1981); Dozer at 302. Similarly, an appellate court reviews the punishment imposed for contempt under an abuse-of-discretion standard. Wilson v. Jones, 3d Dist. Seneca No. 13-13-06, 2013-Ohio-4368, ¶ 32, citing Whitman v. Whitman, 3d Dist. Hancock No. 5-11-20, 2012-Ohio-405, ¶ 52.
{¶63} The trial court did not abuse its discretion in finding Robert in contempt of court because there was clear and convincing evidence that Robert disobeyed a prior order of the court. Yet, Robert argues that he was not required to comply with the magistrate‘s temporary orders because the orders were not adopted by the trial court. Robert is mistaken.
{¶64} Objections to a magistrate‘s decision must meet the requirements set forth in
{¶65} Robert filed his objections to the magistrate‘s temporary orders on March 1, 2013. (Doc. No. 67). However, because Robert failed to file a transcript in accordance with the rule, the trial court overruled Robert‘s objections. (Aug. 8, 2013 JE, Doc. No. 97); (Aug. 2, 2013 Tr. at 11-19). See also Elson v. Plokhooy, 3d Dist. Shelby No. 17-10-24, 2011-Ohio-2009, ¶ 31 (concluding that the trial court did not abuse its discretion in failing to consider the transcript because it was not filed in accordance with
{¶67} We are also unable to conclude that the trial court abused its discretion in ordering Robert to pay Rebecca‘s attorneys’ fees based on finding Robert in contempt for failing to pay temporary spousal support. First, for an order finding a party in contempt of court to be a final, appealable order, the trial court must impose a penalty or sanction. Cichanowicz, 2013-Ohio-5657, at ¶ 88. Second,
If any person required * * * to pay spousal support under an order made or modified by a court on or after January 1, 1991, is found in contempt of court for failure to make alimony or spousal support payments under the order, the court that makes the finding, in
addition to any other penalty or remedy imposed, shall assess all court costs arising out of the contempt proceeding against the person and shall require the person to pay any reasonable attorney‘s fees of any adverse party, as determined by the court, that arose in relation to the act of contempt.
(Emphasis added.) The trial court ordered Robert to pay Rebecca‘s attorney‘s fees based its finding of contempt and “the court costs resulting from this action to date.” (May 27, 2014 JE, Doc. No. 164). Therefore, because contempt of court requires a finding of contempt and the imposition of a penalty, and
{¶68} Robert also argues that the trial court abused its discretion in assessing the remainder of Rebecca‘s attorney‘s fees that it imposed on him. As an initial matter regarding the trial court‘s award of attorney‘s fees to Rebecca, we note that Robert waived all but plain error as to this issue for appeal because he failed to object to Rebecca‘s request for attorney‘s fees. (See Oct. 30, 2013 Tr. at 127, 171). See also Am. Builders & Contrs. Supply Co., Inc., 2012-Ohio-4661, at ¶ 17;
{¶69} Robert failed to demonstrate that the trial court committed plain error in awarding Rebecca reasonable attorney‘s fees. See Carroll v. Carroll, 5th Dist. Delaware No. 05CAF110079, 2006-Ohio-5531, ¶ 84 (concluding that the appellant failed to assert that the trial court committed plain error in awarding attorney‘s fees).
In an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that action, a court may award all or part of 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.
{¶70} The trial court considered the totality of the circumstances and the equities of the parties in awarding Rebecca $9,022.50 in attorney‘s fees, including
{¶71} Robert‘s twelfth and fifteenth assignments of error are overruled.
Assignment of Error No. XI
Trial court erred by not only awarding spousal support to Plaintiff but the grossly inappropriate duration.
{¶72} In his eleventh assignment of error, Robert argues that the trial court erred in awarding Rebecca spousal support for a grossly inappropriate duration.
(C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:
(a) The income of the parties * * *;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;
(g) The standard of living of the parties established during the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
(j) The 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;
(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment,
provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support;
(m) The lost income production capacity of either party that resulted from that party‘s marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant and equitable.
{¶74} After reviewing the record, we cannot conclude that the trial court abused its discretion by ordering Robert to pay Rebecca spousal support in the amount of $700 per month for sixty months, and $500 per month thereafter until either party dies or until Rebecca remarries. While the trial court did not specifically state that it considered
{¶76} Therefore, considering the totality of the circumstances of this case, the trial court did not act unreasonably, arbitrarily, or unconscionably in ordering Robert to pay Rebecca spousal support.
{¶77} Robert‘s eleventh assignment of error is overruled.
Trial court erred by not stating in it‘s [sic] final order any evidentiary findings or citation of financial facts to support any order put forward.
{¶78} In his sixteenth assignment of error, Robert argues that the trial court erred by “not presenting a detailed accounting of its decision supported by the evidence as required by Ohio law.” (Appellant‘s Brief at 18). Before we address the merits of this assignment of error, we note that Robert did not draw our attention to any specific failure of the trial court in its judgment entry, nor did Robert indicate any facts or law that the trial court failed to consider. However, because Robert argues in this assignment of error that the trial court prejudicially divided marital assets, we are presuming that he is also arguing that the trial court did not make the appropriate findings of fact and conclusion of law under
In any order for the division or disbursement of property or a distributive award made pursuant to this section, the court shall make written findings of fact that support the determination that the marital property has been equitably divided and shall specify the dates it used in determining the meaning of “during the marriage.”
{¶79} Robert‘s assignment of error is meritless for two reasons. First, Robert‘s argument is erroneous because the trial court issued a detailed and
{¶80} Second, Robert did not request from the trial court its findings of fact or conclusions of law under
When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to Civ. R. 58, or not later than seven days after the party filing the request has been given notice of the court‘s announcement of its decision, whichever is later, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.
“[T]he burden is on the party objecting to request findings of fact” under
{¶81} For these reasons, Robert‘s sixteenth assignment of error is overruled.
The trial court erred by causing Defendant/Appellant‘s Expert Witness testimony to be lost from the record.
{¶82} In his eighteenth assignment of error, Robert alleges that the trial court erred by causing his expert witness‘s testimony to be lost from the record. Specifically, Robert argues that, because the portion of transcript containing the testimony of his expert witness was lost, he was denied the opportunity to present a proper defense and denied a fair division of marital assets. While Robert again failed to cite any legal authority or cite to the record in support of his argument, and also failed to provide a relevant argument in support of this assignment of error, we elect to address it in the interests of justice.
{¶83} Under
{¶84} Here, the record indicates that the recording device was inadvertently shut off and the portion of the transcript of which Robert complains was not recorded. As a result, Robert had a duty under
(1) If no recording of the proceedings was made, if a transcript is unavailable, or if a recording was made but is no longer available for transcription, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant‘s recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to App. R. 10 and the appellee may serve on the appellant objections or propose amendments to the statement within ten days after service of the appellant‘s statement; these time periods may be extended by the court of appeals for good cause. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant to App.R. 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal.
(Emphasis added.)
(1) In lieu of the record on appeal as defined in division (A) of this rule, the parties, no later than ten days prior to the time for transmission of the record under App.R. 10, may prepare and sign a
statement of the case showing how the issues raised in the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with additions as the trial court may consider necessary to present fully the issues raised in the appeal, shall be approved by the trial court prior to the time for transmission of the record under App.R. 10 and shall then be certified to the court of appeals as the record on appeal and transmitted to the court of appeals by the clerk of the trial court within the time provided by App.R. 10.
(Emphasis added.)
{¶85} Robert submitted to the trial court on February 21, 2014 “Defendants [sic] Testimony Regarding Missing Time From Court Tape Recorded Required by the Court” in which he espouses his recollection of his expert witness‘s testimony. (See Doc. No. 148). There is no evidence in the record that Robert served his statement of the evidence on Rebecca, that the parties agreed to any statement of the evidence, or that the trial court transmitted an approved statement of the evidence to this court in accordance with
{¶86} “In the absence of a complete transcript of the proceedings, a statement of the evidence pursuant to
{¶87} Thus, because Robert failed to file a statement of evidence under
{¶88} Therefore, Robert‘s eighteenth assignment of error is overruled.
The trial court erred by allowing Plaintiff to assert that Defendant/Appellant‘s investment behavior was responsible for losing assets without evidentiary proof or an independent forensic accounting.
Assignment of Error No. X
The trial court erred by not allowing Defendant‘s Expert witness to perform tracings of Defendant‘s financial accounts, earnings and distribution of said monies.
Assignment of Error No. XIV
The trial erred by ignoring Plaintiff‘s admission that she submitted false affidavits in support of Plaintiff‘s restraining order preventing Defendant‘s access to said account resulting in the loss of at least $250000 [sic] dollars from said account.
{¶89} In his eighth, tenth, and fourteenth assignments of error, Robert challenges the trial court‘s admission and exclusion of evidence at the trial. “‘[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence.‘” Hart v. Cardinal Health 110, Inc., 3d Dist. Hancock No. 5-10-10, 2010-Ohio-3551, ¶ 9, quoting Rigby v. Lake County, 58 Ohio St.3d 269, 271 (1991). See also Cottrell v. Cottrell, 12th Dist. Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 79, citing Donovan v. Donovan, 110 Ohio App.3d 615, 520 (12th Dist.1996), In re Bays, 12th Dist. Warren No. CA2003-02-026, 2004-Ohio-915, ¶ 7, and State v. Robb, 88 Ohio St.3d 59, 68 (2000). “Therefore, a trial court‘s admission or exclusion of evidence will not be reversed absent an abuse of discretion.” Id.; Id.
{¶90} In his eighth and tenth assignments of error, Robert argues that the trial court erred by prohibiting his expert witness from testifying. Whether a trial court properly admits expert testimony depends on whether the facts and data that the expert witness‘s opinion is based on is “admitted in evidence at the hearing.” Hart at ¶ 10, quoting
{¶91} Determining whether the trial court properly admitted or excluded Robert‘s expert witness‘s testimony requires the portion of the trial transcript that contained his expert witness‘s trial testimony, which, as we addressed in Robert‘s eighteenth assignment of error, Robert failed to provide. Id. at ¶ 9. Because Robert failed to provide that portion of the transcript, we presume that the trial court properly excluded Robert‘s expert witness‘s testimony. Id. at ¶ 10, citing
{¶92} Also in his eighth assignment of error, Robert contends that the trial court erred by allowing Rebecca to assert that his investment behavior was responsible for losing assets. However, because Robert failed to cite any legal authority and failed to cite to the record support of this argument, we decline to address it. Rodriguez v. Rodriguez, 2009-Ohio-3456, ¶ 7.
{¶93} In Robert‘s fourteenth assignment of error, he contends that the trial court erred by ignoring Rebecca‘s admission that the affidavit that she submitted in support of her temporary restraining order request was incorrect.
{¶94} For these reasons, Robert‘s eighth, tenth, and fourteenth assignments of error are overruled.
{¶95} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr