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Mullen v. Mullen

Court of Appeals of Ohio, Ninth District, Summit

January 11, 2017

BETHANNE MULLEN Appellee
v.
PATRICK MULLEN Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2014-05-1216

          LESLIE S. GRASKE, Attorney at Law, for Appellant.

          BRIAN ASHTON, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER, JUDGE

         {¶1} Appellant-Defendant, Patrick Mullen, appeals the judgment of the Summit County Court of Common Pleas, Domestic Relations Division, granting a divorce decree. This court affirms in part, reverses in part, and remands.

         I.

         {¶2} This is a divorce action between Mr. Patrick Mullen and Ms. Bethanne Mullen after 27 years of marriage. Ms. Mullen filed a complaint for divorce, together with a motion for temporary orders and Mr. Mullen answered. Following a hearing on the motion for temporary orders, the court ordered Mr. Mullen to pay temporary spousal support in the amount of $1, 300.00 a month. The parties stipulated during trial that Mr. Mullen had a past due support arrearage of $3, 672.00.

         {¶3} At the time of trial, the parties had no unemancipated children and the maj ority of their debt had been discharged in bankruptcy. The parties had divided the bulk of their personal property, but during trial Ms. Mullen identified a number of additional items she would permit Mr. Mullen to have. However, she also stated that Mr. Mullen had admitted to taking her jewelry after they had separated. Mr. Mullen denied having the jewelry, but the trial court resolved the issue in Ms. Mullen's favor. The trial court ordered Mr. Mullen to return the jewelry within thirty days or Ms. Mullen could retain all of Mr. Mullen's personal property then in her possession.

         {¶4} At the time of trial, Mr. Mullen was 52 and was employed full-time. Ms. Mullen was 51 and employed part-time as a nurse's aide for two separate employers. The trial court found Ms. Mullen's health issues limited her ability to work full-time. The trial court also determined that a Parent Plus Loan executed in Mr. Mullen's name during the time of the marriage was his sole responsibility. As a result of these findings and other considerations, the trial court awarded Ms. Mullen spousal support in the amount of $1, 800.00 per month. Additionally, the trial court ordered Mr. Mullen to maintain life insurance naming Ms. Mullen as beneficiary in an amount sufficient to satisfy his obligation of spousal support, during the pendency of his support obligation.

         {¶5} Mr. Mullen now brings this timely appeal, raising three assignments of error for our review.

         II.

         Assignment of Error I

         The trial court erred in permitting [Ms. Mullen] to retain [Mr. Mullen's] personal property, including his separate property, unless he gave wife property which he did not have in his possession.

         {¶6} In his first assignment of error, Mr. Mullen contends the trial court erred when it found that Ms. Mullen may retain all of his personal property already in her possession if he did not return her personal property. However, at oral argument, the parties agreed that Ms. Mullen had found the missing jewelry and returned Mr. Mullen's personal property to him. Therefore, Mr. Mullen's first assignment of error is moot and we decline to address the merits. See Bayview Loan Servicing, LLC v. Salem, 9th Dist. Summit No. 27460, 2015-Ohio-2615, ¶ 7 quoting Aurora Loan Servs v. Kahook, 9th Dist. Summit No. 24415, 2009-Ohio-2997, ¶ 6 ("Appellate courts will not review questions that do not involve live controversies.").

         Assignment of Error II

         The trial court erred in awarding [Ms. Mullen] spousal support on an equalization-of-income basis and without taking into account [Mr. Mullen's] obligation to pay the Parent Plus Loan and in the absence of expert ...


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