Williams v. WilliamsWilliams v. Williams
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-329331
RELEASED AND JOURNALIZED: March 3, 2011
Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Jacob M. Rzepka
5035 Mayfield Rd.
Suite 102
Cleveland, Ohio 44124
COLLEEN CONWAY COONEY, P.J.:
{¶ 1} Defendant-appellant, Eric D. Williams (“Eric“), appeals the court‘s judgment entry of divorce. We find some merit to the appeal, affirm in part, and reverse in part.
{¶ 2} On December 11, 2009, plaintiff-appellee, Mariea Williams (“Mariea“), filed a complaint for divorce, which was served on Eric on February 10, 2010. Eric failed to file an answer, and the court scheduled an uncontested divorce hearing for April 20, 2010. Eric appeared for the hearing without counsel and requested leave to plead and a continuance. The trial cоurt granted his request and continued the hearing to allow Eric to
{¶ 3} Eric failed to file an answer before May 27, 2010, and no attorney entered an appearance on his behalf. The court proceeded with the uncontested divorce hearing, at which Mariea testified that the parties were married on May 18, 2007, separated in November 2008, and had no children. Mariea testified that she purchased the marital home located on East 214th Street in Euclid before the parties were married. She verified a schedule from her homeowner‘s insurance policy showing that her engagement ring was appraised and insured for $10,254. Eric testified that the engagement ring was either “lost or stolen” but admitted that it was in his possession when it disappeared.
{¶ 4} Mariea further testified that Eric received a settlement award of $47,100 in an employment discrimination lawsuit during their marriage. Eric presented no evidence or testimony to establish that the award should be treated as separate рroperty. There was evidence that the parties shared several credit cards with outstanding balances. Mariea testified, however, that the Citicard account was “primarily” used by Eric.
{¶ 5} In the decree of divorce, the trial court categorized the award from Eric‘s lawsuit as marital property and divided the funds evenly between
{¶ 6} Eric now appeals, raising three assignments of error.
The Settlement Award
{¶ 7} In his first assignment of error, Eric аrgues the trial court erred in equally dividing his settlement award from his employment discrimination case. He contends the court‘s categorization of the settlement as marital property is against the manifest weight of the evidence. We disagree.
{¶ 8} The determination of whether property is marital or separate is a mixed question of law and fact and will not be reversed unless it is against the manifest weight of the evidence. Torres v. Torres, Cuyahoga App. Nos. 88582 and 88660, 2007-Ohio-4443, at ¶14. Once the characterization is made, the actual distribution of the property will not be disturbed absent an abuse of discretion. Larkey v. Larkey (Nov. 4, 1999), Cuyahoga App. No. 74765, citing Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 421 N.E.2d 1293.
{¶ 9} Marital property is defined as “[a]ll real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage.”
{¶ 10} Property acquired during marriage is presumed to be marital рroperty. Any party to a divorce proceeding may ask the trial court to classify property as separate or marital property.
{¶ 11} Eric argues the settlement was awarded as compensation for a personal injury and that, pursuant to
{¶ 12} Compensation in employment discrimination cases is generally awarded to make the employee “whole and to place that employee in the position the employee would have been in absent a violation of the employment contract.” Stacy v. Batavia Local School Dist. Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298, ¶26. Just as wages earned during the marriage constitute marital property,
{¶ 13} Therefore, the first assignment of error is overruled.
Denial of Continuance
{¶ 14} In his second assignment of error, Eric argues the trial court abused its discretiоn in denying his motion for continuance to obtain counsel. Eric contends his request for a continuance was reasonable because the case had only been pending for five months, there had only been one рrevious continuance, and he needed the benefit of counsel at trial.
{¶ 15} The decision to grant or deny a continuance is entrusted to the broad, sound discretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d 1078. In determining whether a trial court abused its discretion in denying a motion for a continuance, an appellate court should consider the following factors: (1) the length of the delay requested; (2) whether other сontinuances 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 defеndant contributed to the circumstances giving rise to the need for the continuance, and other relevant factors, depending on the unique facts of each case. Id. at 67-68. The reviewing court must also weigh the potentiаl prejudice to the movant against the trial court‘s right to control its own docket. In re Barnick, Cuyahoga App. No. 88334, 2007-Ohio-1720, ¶10, quoting Unger.
{¶ 16} Eric was aware of these divorce proceedings for several months before the first uncontested divorce hearing on April 20, 2010 and fаiled to retain counsel during that time. Eric was aware of and appeared for the uncontested divorce hearing on April 20, 2010, at which the trial court granted him a continuance to answer and return for the new hearing dаte. The continuance was also granted for the obvious purpose of obtaining representation. If the trial court had granted a second continuance, all the parties would have to be convened for a third time at significant expense and inconvenience. Although Eric advised the court that he had an appointment with an attorney in five days, such a statement demonstrates that he had not prepared for the hearing during the 30 days he had been allowed a continuance. Eric‘s conduct was the sole cause for his need for another continuance. Under these circumstances, we find the trial court‘s decision to deny the secоnd continuance was not an abuse of discretion.
{¶ 17} The second assignment of error is overruled.
The Citicard Debt
{¶ 18} In his third assignment of error, Eric argues the trial court abused its discretion in assigning him the sole responsibility for the unpaid balance on the parties’ Citicard account. Eric cоntends there was no evidence to support the trial court‘s finding that Eric solely incurred this $4,700 debt.
{¶ 19} When a divorce is granted, the trial court must equitably divide and distribute the marital estate between the parties. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 130, 541 N.E.2d 597. The trial court is vested with brоad discretion in determining what constitutes an equitable division of the property. Id. We therefore review the trial court‘s division of marital property for an abuse of discretion. Id.
{¶ 20} In making an equitable division of marital property, the court must consider “all relevant factors,” including those found in
{¶ 21} In assigning the debt to Eric, the trial court found, as stated in the divorce decrеe, that Mariea “established through testimony that the Defendant incurred solely the outstanding non-marital debt on the Citicard account and the Defendant did not deny this testimony.” However, Mariea did not testify that Eric was the sole user of the Citicard account, but rather that the Citicard account was “primarily” used by Eric. “Primarily” suggests that although Eric used it more than Mariea, Mariea sometimes used it. There is no evidence upon which the court could ascеrtain what percentage of the debt was actually incurred by Eric, but it must have been less than 100%.
{¶ 22} Accordingly, the third assignment of error is sustained.
{¶ 23} Judgment is affirmed in part and reversed in part. Case remanded for the court to make an equitable division of the Citicard debt.
It is ordered that appellant and appellee share the 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.
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COLLEEN CONWAY COONEY, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR