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Berry v. Berry

Court of Appeals of Ohio, Third District

September 23, 2013

CHARLES BERRY, PLAINTIFF-APPELLANT,
v.
CAROL S. BERRY, DEFENDANT-APPELLEE.

Appeal from Logan County Family Court Domestic Relations Division Trial Court No. DR11-09-0161

Beverly J. Farlow for Appellant

Andrew B. King for Appellee

OPINION

WILLAMOWSKI, J.

(¶1} Plaintiff-Appellant Charles Berry ("Charles") brings this appeal from the judgment of the Logan County Family Court, Domestic Relations Division, granting Defendant-Appellee Carol Berry ("Carol") a divorce and ordering a property settlement. For the reasons set forth below, the judgment is affirmed in part and reversed in part.

(¶2} On October 28, 1999, Charles and Carol were married in Kentucky. No children were born of the marriage. The couple resided in a home owned by Carol prior to the marriage and Carol was working as an RN. The home was located at 4127 County Road 190, Belle Center, Ohio, which is located in Hardin County. She quit her job in 2008 after Charles started receiving settlement payments and the couple lived off of that income. In 2010, Carol and Charles purchased a retirement home in Florida. On September 23, 2011, Charles left the marital home. Charles filed a complaint for divorce in the trial court on September 29, 2011. Carol filed her answer denying the complaint in its entirety on October 27, 2011.[1] On December 23, 2011, Carol filed a counterclaim for a legal separation and requested spousal support. In her counterclaim Carol alleged that she had been a resident of Ohio for more than six months, but made no allegation as to county residency. Carol did not request a divorce. On December 23, 2011, the trial court issued an order specifying that Charles would pay Carol temporary spousal support and that they would share the Florida and Ohio properties with each having the right to alternating months at the properties.

(¶3} On July 31, 2012, Charles filed a motion for a continuance claiming that he could not make it to Ohio in time for the August 1, 2012, hearing. The motion to continue was denied. Counsel for Charles then made an oral motion to dismiss the complaint for divorce, which was granted. The trial court conducted a hearing on the counterclaim for a legal separation and spousal support. At the conclusion of the hearing, Carol moved to amend her counterclaim to request a divorce. The motion was granted. Charles appeals from this judgment and raises the following assignments of error.

First Assignment of Error
The trial court erred as a matter of law in failing to require a cooling off period of 28 days following [Carol's] amendment of her counterclaim for "Alimony Only" to add a cause of action for divorce.
Second Assignment of Error
The trial court abused its discretion in refusing to grant [Charles'] motion for continuance.
Third Assignment of Error
The trial court committed plain error in finding that the case was properly venued in Logan County, in admitting unsupported evidence as to property value, and in failing to include legal ...

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