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Alman v. Alman

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 22, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-14-351618



          BEFORE: Stewart, J., E.A. Gallagher, P.J., and Boyle, J.



         {¶1} In a pretrial order issued in a pending divorce case between plaintiff-appellee Deborah Alman and defendant-appellant Jeffrey Alman, the domestic relations court acted on its own to order Jeffrey to sell three parcels of real estate at auction with the proceeds held in escrow. Jeffrey appeals, arguing that the court ordered the sale of the real estate to satisfy his outstanding obligation to pay $30, 000 (at the time) for retroactive, temporary spousal support, but abused its discretion by ordering the pretrial sale of the property without giving him an opportunity to liquidate other assets that could satisfy the support obligation. We stayed the order of sale pending appeal.

         {¶2} Before addressing the substantive issues on appeal, we consider Deborah's argument that the order of sale is nonfinal because the order of sale required the proceeds to be held in escrow, thus contemplating further action by the court. She made this same argument prior to commencement of briefing in a motion to dismiss the appeal. We denied the motion to dismiss on grounds that the order of sale constituted a final order. See Motion No. 500658 (Oct. 28, 2016). Although we conclude that her renewed argument continues to lack merit, we address the issue to give a more detailed explanation of our reasons.

         {¶3} An appellate court can only review final orders. Ohio Constitution Article IV, Section 3(B)(2). What constitutes a "final" order is defined in R.C. 2505.02. As applicable here, a final order includes "[a]n order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment[.]" R.C. 2505.02(B)(2). A "substantial right" is "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." R.C. 2505.02(A)(1). A "special proceeding" is "an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity." R.C. 2505.02(A)(2). Divorce actions are considered "special proceedings" for purposes of R.C. 2505.02(B)(2). Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 6, citing State ex rel. Papp v. James, 69 Ohio St.3d 373, 379, 632 N.E.2d 889 (1994).

         {¶4} The order denying Deborah's motion to dismiss the appeal cited two cases: Joseph v. Joseph, 5th Dist. Stark No. CA-7126, 1988 Ohio App. LEXIS 250 (Jan. 25, 1988), and Oatey v. Oatey, 83 Ohio App.3d 251, 614 N.E.2d 1054 (8th Dist.1992). In Joseph, the court issued a divorce decree and an order requiring the parties to liquidate marital assets. The court stated that until the maritial assets had been liquidated, it could not divide them nor could it determine the sustenance alimony rights of one of the parties. On appeal from those orders, the Fifth District Court of Appeals noted that the marital property had yet to be divided nor had the interest of each party in the liquidated net proceeds been determined. Nevertheless, the court of appeals determined that the order of liquidation constituted a final order because it "impacted] with finality the rights of the respective parties as to 'affect a substantial right' of these parties." Id. at 7. The court of appeals found that the rights involved were substantial because "[t]he sale of the business assets would be an event from which the trial court and the parties could hardly retrench in the event if [sic] was determined the judgment was in error." Id.

         {¶5} In Oatey, the court entered a predecree order requiring a party to sell marital property (real estate), with the proceeds held in escrow to pay the other party's interim attorney fees. On appeal from that judgment, we held that the order of sale affected a "substantial" right of the appealing party because "[o]rdering such an immediate wholesale sacrifice sale of real property accumulated over the course of years is not commercially reasonable and may irrevocably deprive both parties from realizing the fair market value of the assets to their detriment." Oatey at 261.

         {¶6} Similar to Joseph and Oatey, in this case the court entered an order requiring the sale of marital property that substantially affected the rights of the appealing party. Jeffrey claims that the property is separately his. Regardless of whether the property is deemed to be Jeffrey's separately or marital property, Jeffrey has a right in it. That right is substantial. If the property is sold before appellate review takes place, Jeffrey would be unable to regain possession of the property in the event he prevailed in his appeal. In addition, the property is the location of Jeffrey's business; a forced sale of the property would likely have a significant impact on Jeffrey's business. For these reasons, we conclude that the order of sale is a final order because it was made in a special proceeding and affects a substantial right.

         {¶7} After he filed his brief in this appeal, Jeffrey gave notice to the trial court that he was current on his support obligation. He based this notice on his representation that he "hand-delivered certified funds totaling $51, 000" to Deborah's attorney. That payment was consistent with an agreed judgment entry, filed after this appeal was filed, in which the court and parties agreed that Jeffrey could sell $51, 000 of stock "so that he can pay his spousal support obligation in full." If, as Jeffery asserts on appeal, the court ordered the sale of the real estate in order to secure his payment on the retroactive temporary spousal support, the order of sale is moot because there is no longer any reason to sell the real estate. In re AG., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37.

         {¶8} Deborah argues that we cannot view the order of sale without referencing Jeffrey's history of discovery violations that the court found to be "one of the most egregious examples of dilatory tactics perpetrated in a Domestic Relations case the undersigned has ever witnessed." The court's judgment entry does detail examples of dilatory conduct by Jeffrey, causing the court to impose a total of $8, 000 in sanctions against him. But if Deborah is correct in arguing that the court entered the order of sale in order to ensure payment of the sanctions, the court acted arbitrarily by ordering the sale of $428, 500 in assets to satisfy an $8, 000 award of sanctions. In any event, the court issued a judgment entry stating that "the alleged contemnor, Jeffrey J. Alman, has brought himself into substantial compliance with the Court's prior orders at this time by depositing $8, 000.00" into a trust account held by Deborah's attorney. So even if the order of sale was intended to fund the sanctions, that order is likewise moot.

         {¶9} This brings us to a broader point - the court's judgment entry does not actually say why the court was ordering the sale of the real estate. The judgment entry states: "Upon the Court's own motion, temporary orders pursuant to Rule 75 are hereby further made regarding the parties['] real estate as noted below." The judgment entry goes on to order both parties to contact an auction company "to make full arrangements for an absolute auction forthwith on theses properties." Again, if indeed the order of sale was meant to be used to pay the arrears on Jeffrey's temporary spousal support, the order was arbitrary: the court ordered the sale of $428, 000 in assets (including land on which Jeffrey's business operates) to satisfy $40, 000 of arrears and sanctions. When the court issued the order of sale, it was aware that Jeffrey insisted that he could satisfy the outstanding temporary spousal support obligation by liquidating assets other than the real property - the transcript shows that Jeffrey asked the court to stay any order of sale so that he could ...

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