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Thompson v. Myers

Court of Appeals of Ohio, Fifth District, Tuscarawas

June 10, 2019

DAVID L. MYERS, SR., ET AL. Defendants-Appellees/Cross-appellant

          Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2017 TM 07 0244

          For Appellant/Cross-appellee Bridgett Thompson PAUL HERVEY

          For Appellee Jean Tisdall J. KEVIN LUNDHOLM

          For Appellee/Cross-appellant David Myers, Sr. MICHAEL JOHNSON

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.


          GWIN, P.J.

         {¶1} Appellant/cross-appellee Bridgett Thompson, as Guardian of Brenda Myers, and appellee/cross-appellant David L. Myers appeal the October 24, 2018 judgment entry of the Tuscarawas Court of Common Pleas.

         Facts & Procedural History

         {¶2} On July 10, 2017, appellant/cross-appellee Bridgett Thompson ("Thompson"), Guardian of the Person and Estate of Brenda Myers ("Wife") filed a complaint for divorce against appellee/cross-appellant David L. Myers ("Husband"). Thompson also included Delores Jean Tisdall ("Tisdall"), Husband's paramour, as a defendant in the divorce action. The parties had been married for over thirty years. They had no children together, but each have children from their first marriages.

         {¶3} In 2016, the Tuscarawas County Probate Court appointed Thompson as the guardian of the person and guardian of the estate for Wife. Husband appealed that decision to this Court, arguing the trial court abused its discretion in appointing Thompson as Wife's guardian. In In re: Brenda Myers, 5th Dist. Tuscarawas No. 2016 AP 05 0028, 2017-Ohio-603, we affirmed the trial court. Prior to the filing of this case, the Tuscarawas County Probate Court issued an order authorizing Thompson to file the divorce action.

         {¶4} The magistrate held a hearing with regards to temporary orders on November 29, 2017. The magistrate issued a detailed order with extensive findings of fact on December 5, 2017. Thompson filed objections and a motion to set aside on December 15, 2017. Thompson did not provide the trial court with a transcript of the November 29, 2017 hearing. The trial court overruled Thompson's objections and motion to set aside on January 9, 2018.

         {¶5} On September 14, 2017, Husband filed a motion to appoint a Guardian Ad Litem for Wife. The magistrate granted the motion on December 5, 2017 and appointed Attorney Kristin Zemis ("Zemis") as Guardian Ad Litem for Wife. Thompson filed a motion to set aside on December 15, 2017. On January 9, 2018, the trial court overruled the motion.

         {¶6} Tisdall filed a motion to dismiss on April 26, 2018, arguing she should be dismissed from the case because the trial court did not have personal jurisdiction over her. Prior to the beginning of the trial on May 3, 2018, the magistrate dismissed Tisdall as a party.

         {¶7} Additionally, during the trial, the parties came to a partial agreement. The partial agreement was memorialized in an agreed magistrate's order. The parties: agreed to the granting of the divorce; stipulated the parties have lived separate and apart continuously for more than one year; agreed Myers Machining, Inc. and the real estate owned by Edifiee Ltd. shall be sold and the net proceeds divided equally between the parties; agreed the Ridge Avenue property and vehicles shall be sold by auction and the net proceeds divided equally; agreed each party shall keep their personal items and personal property free from claim of the other party; agreed that to satisfy Thompson's debt to Husband, she shall pay $2, 000 to Husband and $2, 000 to the Guardianship account of Wife; agreed Husband will keep the debt owed by Gary Stanley and if any collected thereon, the net proceeds shall be equally divided between the parties; agreed the Stanley debt shall not count against either party in the division of marital assets; David Myers Jr., Husband's son, agreed to waive any inheritance from Wife; agreed all other actions pending or which could be filed in Probate Court will be dismissed; agreed Thompson will keep all insurance policies titled to or on the life of Wife without claim by Husband; agreed Husband shall keep all insurance policies and annuities owned by him on his life without claim by Wife, with the exception of the policy owned by Myers Machining, which shall be distributed as part of the division of corporate assets; agreed Thompson, David Myers Jr., and Gary Stanley shall transfer their one share of stock each back to Myers Machining without consideration; agreed Husband shall continue to run Myers Machining at his current salary; agreed Husband shall continue to pay $4, 000 per month for the benefit of Wife as temporary orders until he ceases to work for Myers Machining; agreed David Myers Jr. shall be dismissed as a party to the action; agreed to dismiss the motion for contempt against Thompson; and agreed Husband shall pay up to a total of $6, 400 for appraisal and evaluations.

         {¶8} After the parties came to the partial agreement, the parties agreed that there were three outstanding issues left for trial: spousal support, attorney fees, and the equalization of the bank accounts. The magistrate took evidence on the remaining issues.

         {¶9} Zemis stated Wife requires full-time care, although she is in good physical condition. Zemis testified the current monthly financial need to care for Wife is between $857 and $1, 350 per month.

         {¶10} On cross-examination, Husband stated he does not have any plans for after Myers Machining is sold. He may or may not work. Husband testified he has two bank accounts, one in Huntington Bank in Bolivar and one in TD Bank in Florida, with approximately $8, 000 in the Huntington account and approximately $76, 000 in the TD Bank account. Husband puts $2, 000 per pay in the Huntington account, $2, 000 in a Chase account for Wife's support, and the balance in the TD Bank account. Husband testified he put about $80, 000 into upgrading the pole barn at the house he lives in now.

         {¶11} On direct examination, Husband testified he receives a gross salary of about $152, 000, about one-third of which is withheld for taxes. Husband receives $32, 355 per year in Social Security and Wife receives $16, 117 per year in Social Security. Once the business is sold, Husband will no longer have a job and he does not plan to work anywhere else since he is seventy years old. Husband testified to his monthly expenses. Husband stated that, when the parties sold the marital residence, the proceeds were split equally. The $63, 000 Husband received from the sale of the marital home he deposited in the TD Bank account.

         {¶12} Thompson testified Wife has Wernicke's Encephalopathy, which is a lot like dementia. Starting in approximately 2008 or 2009, there was a home healthcare worker who stayed with Wife from 10:00 a.m. until 7:00 p.m. In 2013, Husband found a live-in healthcare worker to care for Wife and when the live-in was off, Wife came to Thompson's house. Thompson worked at Myers Machining during that time. Thompson has been providing around the clock care for Wife for the past three years. Thompson testified Wife currently needs someone to watch her full-time, remind her to take her medicine, bathe her, do her laundry, and clean the house. Thompson stated the $875 to $1, 350 per month is accurate for Wife's monthly care, but does not include things Wife doesn't pay directly, but is shared with Thompson and her husband. Thompson has investigated replacing her care with a professional or a private provider. Thompson stated home healthcare nurses run about $18 per hour and if Thompson got a job, it would be about $4, 000 per month to have someone come in and watch Wife. Thompson testified the dentist is formulating a plan to do some dental implants and permanent dentures for Wife.

         {¶13} The magistrate asked Thompson if everything Husband and Wife own is sold and the proceeds divided equally, does Thompson believe there would be enough money to take care of Wife, and Thompson stated she did not know. Thompson believes in the future if Wife has to go to a nursing home it will cost $7, 000 per month and home healthcare would cost $3, 000 to $4, 000 per month.

         {¶14} Thompson testified Wife does not have any income other than her social security and the $4, 000 in temporary support. Thompson stated Husband and Wife agreed he would take the higher amount of social security for tax purposes. Wife's guardianship account is at Huntington Bank and has a balance of approximately $15, 000. The Probate Court has authorized Thompson to take out $4, 500 every month for Wife's care. Thompson testified she would take care of Wife regardless of whether or not Wife had any money.

         {¶15} On cross-examination, Thompson testified that during their marriage, Husband and Wife would spend whatever money came in. They did not put money into retirement or investments, because they felt the shop was their retirement and it would provide them an income for the rest of their lives. Thompson stated they tried senior day care before and it did not work, so she did not check into the cost. Thompson used the $63, 000 from Wife's share of the proceeds from the marital property to pay expenses. Thompson does not have any evidence to dispute that Husband put his $63, 000 into the TD Bank account. Thompson agrees that $63, 000 is his separate property.

         {¶16} Thompson charges Wife one-third of the payment on a new car Thompson purchased, one-third of the house payment, one-third of the water bill, and one-third of all household and related expenses, including cell phone, water, electric, and cable television. Thompson testified she was not sure how to determine the household expenses with regards to Wife and Zemis told her to divide the household expenses into thirds, since three people live in the house, so that is what Thompson did.

         {¶17} On re-direct, Thompson testified she is reimbursing herself $3, 000 per month to take care of Wife. When she looked into finding alternative care so she could work every day full-time, it would be about $4, 000 per month.

         {¶18} At the hearing, the magistrate took judicial notice of the testimony at the temporary ...

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