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Hawkins v. Hawkins

Court of Appeals of Ohio, Second District, Champaign

June 9, 2017

DONNA HAWKINS Plaintiff-Appellee
v.
GREGORY D. HAWKINS Defendant-Appellant

         Civil Appeal from Common Pleas Court, Division of Domestic Relations T.C. NO. 2013-DR-190

          RONALD C. TOMPKINS, Attorney for Plaintiff-Appellee

          JOHN C.A. JUERGENS, Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} Defendant-appellant Gregory D. Hawkins appeals from a decision of the Champaign County Court of Common Pleas, Domestic Relations Division, granting him and plaintiff-appellee Donna Hawkins "Judgment Order and Decree of Divorce" on September 20, 2016. Gregory filed a timely notice of appeal with this Court on October 20, 2016.

         {¶ 2} Gregory and Donna were originally married in 1976, but divorced four years later in 1980. Although they were divorced, the parties continued to cohabitate with one another for the next twenty-two years. In 2002, the parties remarried in Las Vegas, Nevada. We note that two children were born as a result of the parties' union, but both children were emancipated at the time that the instant litigation occurred.

         {¶ 3} The parties are owners of real property located at the following addresses: 2529 St. Rt. 245, Cable, Ohio (the marital residence), and a 5.708 acre lot located next to the marital residence. The parties purchased the properties in 1995 and 1998, respectively, prior to their remarriage in 2002. Also at issue was Gregory's business, Pro-Rite Mufflers, located at 396 E. 9th Street in Marysville, Ohio. The evidence established that Gregory opened his business in 1988, but did not purchase the property on which the business is situated in Marysville until during the parties' second marriage. Both parties' names are on the deed to the business property in Marysville. The record established that although the business was started by Gregory, it later became a marital asset as a result of the actions taken by the parties.

         {¶ 4} On July 25, 2013, Donna filed a complaint for divorce. On September 23, 2013, Gregory filed his answer and counterclaim. Thereafter, Donna filed her answer to Gregory's counterclaim on September 27, 2013. Both parties hired appraisers in order to valuate the marital assets for distribution, specifically the muffler business. Gregory hired Heather Deskins, d/b/a P.D. Eye Forensics, to appraise the business. Deskins testified that she calculated the value of the business to be $0.00 (zero dollars). Donna hired an individual named Bill Ditty to appraise the business. Ditty testified that he calculated the value of the business to be approximately $86, 000.00.

         {¶ 5} We also note that evidence was adduced regarding the parties' marital debts, consisting primarily of tax liens levied because Gregory failed to file his business taxes. From 2002 until 2007, the parties filed their taxes jointly, but the record establishes that they did not file their federal taxes in 2005 and therefore owe approximately $19, 000.00 for that year. At the time of final hearing, Donna was employed as a mail carrier for the United States Postal Service and her wages were being garnished by the federal government for her share of the unpaid taxes from 2005. In 2008, the parties separated, and Gregory separately owes federal taxes from 2008 until the present. Donna's wages were also being garnished for the years of 2008 through 2014 when she refused to file jointly with Gregory.

         {¶ 6} Furthermore, evidence was adduced which established that the marital residence was encumbered by two mortgages. Gregory paid off the first mortgage in the amount of $60, 203.53 between the years 2008 and 2013. However, at the time of the final divorce hearing, there was a second mortgage on the marital property in the amount $73, 142.82. It is undisputed that the funds from the second mortgage were used to purchase the property where Gregory's muffler business is currently situated. The evidence also established that there were tax liens on the marital residence in the amount of approximately $182, 000.00 from Gregory's failure to pay his income taxes from 2008 until the present. The record establishes that Gregory made some payments towards the liens while the parties were separated. It is also important to note that Gregory lived alone in the marital residence from 2010 until the date of the final divorce hearing.

         {¶ 7} Evidentiary hearings were held before the trial court on July 10, 2014, August 4, 2014, and June 23, 2015. As previously stated, on September 20, 2016, the trial court issued the parties' final judgment and decree of divorce in which it ordered that the parties' marital residence be sold, and the profits from the sale to first be used to pay for the parties' second mortgage and tax liens, with any remaining amount to be distributed equally between Gregory and Donna. Donna was awarded the 5.708 acre lot located next to the parties' former marital residence. Donna was also awarded her retirement pension free and clear of any claim of Gregory. Gregory was awarded the muffler business, as well as the building and real property upon which the business is located. The remaining marital property was divided equitably amongst the parties. We note that neither party requested nor received any spousal support award.

         {¶ 8} It is from this judgment that Gregory now appeals.

         {¶ 9} Gregory's first assignment of error is as follows:

         {¶ 10} "THE TRIAL COURT ERRED TO FIND THAT THE APPELLEE'S EXPERT WITNESS WAS MORE CREDIBLE ...


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