JEFFREY R. WELLY v. THERESA J. WELLY
CASE NO. 13-15-15
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
Date of Decision: November 23, 2015
[Cite as Welly v. Welly, 2015-Ohio-4804.]
O P I N I O N
Aрpeal from Seneca County Common Pleas Court Domestic Relations Division Trial Court No. 07-DR-0099
Judgment Affirmed
APPEARANCES:
Charles R. Hall, Jr. for Appellant
Harold M. Hanna for Appellee
{¶1} Plaintiff-appellant, Jeffrey R. Welly (“Jeffrey”), appeals the April 9, 2015 judgment entry of the Seneca County Court of Common Pleas, Domestic Relations Division, concluding that the increase in net value of two hog barns during the marriage is marital property and ordering Jeffrey to pay defendant-appellee, Theresa J. Welly (“Theresa”), “the sum of $174,660.00 as an equitable, equal division of the parties’ marital property interest in the Hog Barns.” For the reasons that follow, we affirm.
{¶2} The trial court issued a judgment entry оf divorce on February 9, 2011. (Doc. No. 395). In it, the trial court stated, “It is ORDERED that the Hog Barns are premarital property and is [sic] the Plaintiff’s separate property, and is hereby awarded to the Plaintiff.” (Id.). Neither party appealed that judgment entry.
{¶3} After the trial court filed its February 9, 2011 judgment entry, Theresa hired new counsel who, two weeks later, filed a “motion to modify judgment or for a new trial.” (Doc. No. 396). Among other things, Theresa argued that the trial court failed to remedy deficiencies that this court identified in dismissing a previous, 2008 appeal in this case, Third District Court of Appeals case No. 13-08-45, concerning thе valuation and division of the hog barns. (Id.). On February 28 and March 7, 2011, Jeffrey filed a memorandum in opposition to and Theresa filed
{¶4} On June 1, 2012, Jeffrey filed a “motion to dismiss the pending hog barn issue for failure to prosecute.” (Doc. No. 475). In that motion, Jeffrey argued that the trial court should “dismiss the pending issue of the ‘hog barns’” under Civ.R. 37(B)(2)(c) and 41(B)(1). (Id.). Therеsa filed her memorandum in opposition to Jeffrey’s motion on June 12, 2012. (Doc. No. 477). On August 30, 2012, the trial court denied Jeffrey’s motion to dismiss. (Doc. No. 491).
{¶5} On August 25, 2014, Jeffrey filed two motions. The first was a “motion to dismiss defendant’s motion for new trial for hog barns.” (Doc. No. 557). In it, Jeffrey argued—as he did in his February 28, 2011 memorandum in opposition to Theresa’s “motion to modify judgment or for a new trial”—that Theresa’s disagreement with the trial court’s property division in the February 9, 2011 judgment entry of divorce is not a valid ground for granting a motion for a new trial. (Id.). Jeffrey also argued in that motion that the trial court lacked jurisdiction to modify the property division in its February 9, 2011 judgment entry of divorce. (Id.). Jeffrey’s other August 25, 2014 motion was a “motion in limine
{¶6} On August 29, 2014, Theresa filed a “response to plaintiff’s motion to dismiss” and a “response to plaintiff’s motion in limine.” (Doc. Nos. 560, 561).
{¶7} On September 3, 2014, the trial court filed an entry denying Jeffrey’s August 25, 2014 motion to dismiss and motion in limine. (Doc. No. 563). Concerning Jeffrey’s motion in limine, the trial court stated, “The Defendant retained an expert and said expert is qualified and ready to testify at the September 8, 2014 [sic]. The Court will permit Robert C. Hunt to testify as an expert witness in this matter.” (Id. at 2).
{¶8} A hearing before a magistrate was held on September 8, 2014 concerning “the limited issue of hog barns.” (Sept. 8, 2014 Tr. at 5).
{¶9} The magistrate filed her decision on October 22, 2014. (Doc. No. 570). In it, the magistrate concluded that “[t]he increase in net value of the hog bаrns * * * is marital property” and recommended that the trial court award
{¶10} On October 31, 2014, Jeffrey filed objections to the magistrate’s decision, followed, on December 11, 2014 with leave of court, by a supplemental memorandum in support of his objections. (Doc. Nos. 573, 578). Theresa filed responses to Jeffrey’s objections on November 17, 2014 and December 22, 2014. (Doc. Nos. 576, 581).
{¶11} On February 11, 2015, the trial court filed a judgment entry overruling Jeffrey’s objections and “affirm[ing]” the magistrate’s decision “in its entirety.” (Doc. No. 582).
{¶12} On March 6, 2015, Jeffrey filed a notice of appeal of the trial court’s February 11, 2015 judgment entry. (Doc. No. 583).
{¶13} On March 20, 2015, we dismissed Jeffrey’s appeal, Third District Court of Appeals case No. 13-15-05, for lack of a final order because, by simply adopting the magistrate’s decision, the February 11, 2015 judgment entry did not comply with the trial court’s obligation to enter its own, independent judgment determining the action.
{¶14} On April 9, 2015, the trial court issued the judgment entry that is the subject of this appeal. (Doc. No. 586). In that entry, the trial court stated that “the divorce was final as of February 9, 2011” because neither party appealed the trial
{¶15} On May 1, 2015, Jeffrey filed his notice of appeal of the trial court’s April 9, 2015 judgment entry. (Doc. No. 590). He raises nine assignments of error. We will first address together Jeffrey’s first, second, third, and seventh assignments of error, followed by his fourth and fifth assignments of error together, followed by his sixth and eighth assignments of error together, followed by his ninth assignment of error.
Assignment of Error No. I
The trial court improperly granted the Appellee’s Motion for New Trail [sic].
Assignment of Error No. II
The Trial Court lacked the jurisdiction to make changes to its own judgment entry.
Assignment of Error No. III
The Trail [sic] Court failed to provide an adequate basis for the new trial.
The Trial Court’s April 9, 2015 Judgment Entry is not a Final Appealable Order.
{¶16} In his first and third assignments of error, Jeffrey argues that the trial court erred by granting Theresa’s motion for a new trial because Theresa failed to demonstrate, and the trial court failed to specify, any of the grounds for a new trial listed in
{¶17} We conclude that Jeffrey waived any error that could have been raised regarding the trial court’s March 30, 2011 judgment entry granting in part Theresa’s motion for a new trial. “An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order
{¶18} In this case, the trial court’s March 30, 2011 judgment entry granting in part Theresa’s motion for a new trial was a final appealable order.
{¶20} Jeffrey’s first, second, third, and seventh assignments of error are overruled.
Assignment of Error No. IV
The Trial Court erred in accepting the Appellee’s appraisal without prior hearing.
The Trial Court erred in finding the Appellee’s witness as an expert without prior hearing.
{¶21} In his fourth and fifth assignments of error, Jeffrey argues that the trial court abused its discretion by qualifying Theresa’s valuаtion witness, Hunt, as an expert and admitting Hunt’s appraisal report because Jeffrey “requested a hearing on the matter and was improperly denied a hearing.” (Appellant’s Brief at 9).
{¶22} The qualification of a witness as an expert and the admissibility of an expert witness’s testimony are distinct inquiries, but both are governed by
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procеdure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 17.
{¶23} “The determination of whether a witness is qualified to testify as an expert lies within the sound discretion of the trial court.” Radford v. Monfort, 3d Dist. Mercer No. 10-04-08, 2004-Ohio-4702, ¶ 5, citing Bishop v. Ohio Bur. of Workers’ Comp., 146 Ohio App.3d 772, 781 (10th Dist.2001). Similarly, “any decision concerning the admission or exclusion of expert testimony will not be disturbed absent an abuse of discretion.” Wasinski v. PECO II, Inc., 3d Dist. Crawford Nos. 3-08-14 and 3-08-16, 2009-Ohio-2615, ¶ 38, citing State v. Jones, 90 Ohio St.3d 403, 414 (2000). An abuse of discretion suggests that the trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “However, ‘even where a trial court
{¶24} Here, Jeffrey filed an August 25, 2015 motion in limine seeking to exclude Hunt’s expert testimony and requesting a hearing concerning the motion. (Doc. No. 558). In its September 3, 2014 entry denying Jeffrey’s motion, the trial court qualified Hunt as an expert witness and stated that Hunt would be allowed to testify as an expert witness. (Doc. No. 563). The trial court denied Jeffrey’s request for a separate hearing concerning his motion in limine, but at the September 8, 2014 hearing before a magistrate, Hunt testified on direct examination concerning his qualifications and his opinions regarding the value of the hog barns. (See Sept. 8, 2015 Tr. at 52-73). Jeffrey’s counsel had the opportunity to cross-examine Hunt concerning his qualifications and his opinions regarding the value of the hog barns. (See id. at 73-80).
{¶25} Under his fourth and fifth assignments of error, Jeffrey does not challenge Hunt’s September 8, 2014 testimony concerning his qualifications and his opinions regarding the value of the hog barns. Rather, Jeffrey’s arguments under these assignments of error are based on his contention that, because “Hunt
{¶26} A trial court has discretion concerning whether to hold a hearing on a motion in limine to exclude the testimony of a proposed expert witness under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Sliwinski v. St. Edwards, 9th Dist. Summit No. 27247, 2014-Ohio-4655, ¶ 15; Preston v. All Vinyl Fence & Decks, Inc., 11th Dist. Trumbull No. 2008-T-0015, 2008-Ohio-6997, ¶ 26, 33; State v. Shalash, 12th Dist. Warren No. CA2013-06-052, 2014-Ohio-2584, ¶ 42. “It is well established that a decision on a motion in limine is a ‘tentative, preliminary or presumptive ruling about an evidentiary issue that is anticipated but has not yet been presented in its full context.’” Wasinski, 2009-Ohio-2615, at ¶ 52, quoting State v. Geboy, 145 Ohio St.3d 706, 726 (2001). “‘An appellate сourt need not review the propriety of such an order unless the claimed error is preserved by an objection, proffer, or ruling on the record when the issue is actually reached and the context is developed at trial.’”
{¶27} At the September 8, 2014 hearing, Jeffrey preserved his objection to the trial court’s qualification of Hunt as an expert witness and admission of Hunt’s appraisal report. (See Sept. 8, 2014 Tr. at 64, 148). However, on appeal, Jeffrey does not contest Hunt’s testimony at the September 8, 2014 hearing concerning his qualifications and his opinions regarding the value of the hog barns. Instead, Jeffrey bases his arguments on Hunt’s deposition testimony, which was taken before the September 8, 2014 hearing. Therefore, even assuming the trial court abused its discretion by sua sponte qualifying Hunt as an expert witness in its September 3, 2014 entry denying Jeffrey’s motion in limine, Jeffrey failed on appeal to suggest how the error—in light of Hunt’s September 8, 2014 testimony and Jeffrey’s counsel’s ability to cross-examine Hunt at that hearing—affected a substantial right of Jeffrey’s. Indeed, Jeffrey does not dispute that Hunt testified on September 8, 2014 concerning his qualifications and his opinions regarding the value of the hog barns. Nor dоes he dispute the substance of Hunt’s September 8, 2014 testimony. We will not construct an argument for Jeffrey. See Union Bank Co. v. Lampert, 3d Dist. Auglaize No. 2-13-32, 2014-Ohio-4427, ¶ 21, citing Camp v. Star Leasing Co., 10th Dist. Franklin No. 11AP-977, 2012-Ohio-3650, ¶ 67 (“It is not the duty of this court to construct legal arguments in support of an
{¶28} Jeffrey’s fourth and fifth assignments of error are overruled.
Assignment of Error No. VI
The Appellant provided evidence that the Hog Barns were his separate property.
Assignment of Error No. VIII
The Trial Court improperly gave the Appellee an interest in the Appellant’s hog barns.
{¶29} In Jeffrey’s sixth and eighth assignments of error, he argues that the trial court erred by not concluding that the hog barns are his separate property. Specifically, Jeffrey argues that he “built the hog barns in 1997 and 1998 before the parties were married” and that he “provided testimony and tax records to show the traceability of the hog barns being his separate рroperty.” (Appellant’s Brief at 11, 14). He also argues that Theresa “did not provide how much her suppose [sic]
{¶30} “In a divorce proceeding, the division of marital and separate property involves a two-step process governed by
{¶31} Jeffrey’s arguments under his sixth and eighth assignments of error concern the first step of the two-step process set forth in
(ii) All interest that either or both of the spouses currently has in any real or personal property * * * and that was acquired by either or both of the spouses during the marriage;
(iii) Except as otherwise provided in this section, all inсome and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage * * *.
[A]ll real and personal property and any interest in real or personal property that is found by the court to be any of the following:
* * *
(ii) Any real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage;
(iii) Passive income and appreciation acquired from separate property by one spouse during the marriage * * *.
{¶32} “The plain language of
{¶33} “The party seeking to establish that property is separate rather than marital bears the burden of proof, by a preponderance of the evidence, to trace the asset to separate property.” Tretola v. Tretola, 3d Dist. Logan No. 8-14-12, 2014-Ohio-5484, ¶ 45, citing Schalk v. Schalk, 3d Dist. Seneca No. 13-07-13, 2008-Ohio-829, ¶ 6. See also Golick v. Golick, 12th Dist. Clermont Nos. CA99-05-040 and CA99-05-045, 2001 WL 1598290, *9 (Dec. 17, 2001) (“Because [husband-appellant] sоught to have the appreciation of the * * * properties characterized as
{¶34} “This court reviews the trial court’s classification of property as marital or separate under a manifest-weight-of-the-evidence standard.” Lotz, 2014-Ohio-5625, at ¶ 16, citing Reed v. Reed, 3d Dist. Allen No. 1-09-63, 2010-Ohio-4550, ¶ 7. “Accordingly, we will not reverse the trial court’s judgment if it is supported by some competent, credible evidence.” Id., citing Reed at ¶ 7. “‘This highly deferential standard of review permits the affirmation of the trial court’s judgment if there is even ‘somе’ evidence to support the court’s finding.’” Reed at ¶ 7, quoting Huelskamp v. Huelskamp, 185 Ohio App.3d 611, 2009-Ohio-6864, ¶ 15 (3d Dist.).
{¶35} In this case, the trial court made the following findings, all of which are supported by some competent, credible evidence. Before the parties married on June 12, 1999, Jeffrey borrowed a total of $300,000.00 to purchase the hog barns. (Doc. No. 586 at 4-5, ¶ 1, 3, 5). Jeffrey purchased the hog barns for a total initial cost of $322,360.00 and later invested at least an additional $16,075.75 in capital improvements to the hog barns. (Id. at 5, ¶ 4, 6, 7, 8).
{¶36} Following the construction of the hog barns and the parties’ marriage on June 12, 1999, Jeffrey and Theresa refinanced the indebtedness when the loans of the hogs barns came due on November 5 and December 30, 2002. (Id. at 5, ¶ 9,
{¶37} Based on these findings, the trial court concluded, “The repayment of Hog Barn indebtedness during the marriage by the parties’ joint labor, monetary or in-kind contributions, increased the net value of the Hog Barns by $349,320,” making the increase in the hog barns’ net value marital property. (Id. at 7, ¶ 1, 2). The trial court added that Jeffrey “failed to establish that the increase in the value of the Hog Barns is separate property.” (Id. at 7, ¶ 3).
{¶38} We conclude that the trial court’s classification of $349,320.00 in increased net value of the hog barns as marital property is supported by some competent, credible evidence and therefore not against the manifеst weight of the evidence. Jeffrey bore the burden of proving, by a preponderance of the evidence, that the appreciation on his separate property is likewise separate property. While Jeffrey may be able to trace his premarital ownership of the hog barns through the
{¶39} Jeffrey failed to carry his burden of proving that the increаse in net value is other than as a result of the labor, monetary, or in-kind contribution of either spouse. See Fisher v. Fisher, 3d Dist. Henry No. 7-01-12, 2002 WL 444904, *10 (Mar. 22, 2002). Theresa, on the other hand, produced evidence—which Jeffrey did not and does not dispute—that the parties, during the marriage, repaid $349,320.00 in indebtedness from the hog barns using joint, marital income from their swine finishing operation and their employment at Whirlpool. (See Sept. 8, 2014 Tr. at 85-116, 142-143, 151-154, 156-157); (Defendant’s Exs. B, C, D, F, G, H, J, K, L, N, O, P, Q, R, S, T, V, W, Y, Z). Theresa correctly asserts that the parties’ increased equity in the hog barns—based on their repaying indebtedness on the hog barns during the marriage using marital funds—is marital property. See Scott, 2008-Ohio-530, at ¶ 21, citing
{¶40} Because Jeffrey does not present any argument as to the second step of the property-division process set forth in
{¶41} Jeffrey’s sixth and eighth assignments of error are overruled.
Assignment of Error No. IX
The Trail [sic] Court abused its discretion not dismissing the Appellee’s motions pursuant to Civil Rule 41.
{¶42} In his ninth assignment of error, Jeffrey argues that the trial court erred by not granting his “motion to dismiss the pending Hog Barn issue for failure to prosecute” under
the trial court should consider “the history of the case; all the facts and circumstances surrounding the noncompliance, including the number of opportunities and the length of time within which the faulting party had to comply with the discovery or the order to comply; what efforts, if any, were made to comply; the ability or inability of the faulting party to comply; and such other factors as may be appropriate.”
Id., quoting Foley v. Nussbaum, 2d Dist. Montgomery No. 24572, 2011-Ohio-6701, ¶ 31.
{¶44} “The decision to dismiss under
{¶45} Under this assignment of error, Jeffrey argues, without explanation or citation to the record, “The Appellee had failed to comply with a court order regarding the discovery cut-off.” (Appellant’s Brief at 15).
{¶46} Nevertheless, we conclude that the trial court did not abuse its discretion by denying Jeffrey’s June 1, 2012 “motion to dismiss the pending Hog Barn issue for failure to prosecute.” After the trial court “grant[ed] a hearing on the limited issues of the ‘hog barns’” on March 30, 2011, the hearing was originally scheduled for September 26, 2011; however, the trial court granted Theresa’s August 17, 2011 motion to continue the hearing so that the parties could complete discovery and so that her counsel could attend a family reunion in France. (See Doc. Nos. 406, 418, 419). Jeffrey’s counsel did not oppose that motion for a continuance. (Doc. No. 418). Also on August 17, 2011, Theresa served a request for production of documents on Jeffrey. (See Doc. Nos. 422, 427). Jeffrey filed a response to that request on October 28, 2011. (Doc. No. 427). However, according to Theresa, Jeffrey’s response was incomplete. (See Doc. Nos. 476, 477). The trial court held a pretrial conference on December 19, 2011, at which it set Theresa’s discovery cut-off date as February 29, 2012 and Jeffrey’s discovery cut-off date as June 1, 2012. (Doc. No. 455).
{¶47} Apparently unable to complete discovery without intervention by the trial court, Jeffrey on June 1, 2012 filed his “motion to dismiss the pending Hog
{¶48} Based on our review of the record, it was not unreasonable, arbitrary, оr unconscionable for the trial court to deny Jeffrey’s June 1, 2012 “motion to dismiss the pending Hog Barn issue for failure to prosecute.” Not surprisingly, the parties disagree over who was at fault in their discovery dispute. Although the trial court did not say so explicitly in its judgment entry denying Jeffrey’s motion, it appears the trial court was satisfied that Theresa acted reasonably diligently in procuring and producing an appraisal report. (See Doc. No. 491). Amid the finger pointing, it was not an abuse of discretion for the trial court to deny Jeffrey’s request to dismiss the hog barns issue, particularly considering that dismissal is the “harshеst” discovery-violation sanction that “should only be imposed when the failure to comply with discovery is due to willfulness, bad faith or fault on behalf
{¶49} Jeffrey’s ninth assignment of error is overruled.
{¶50} 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
SHAW and WILLAMOWSKI, J.J., concur.
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