Court of Appeals of Ohio, Second District, Montgomery
(Domestic Relations Appeal) Trial Court Case No. 2016-DR-127
PAUL RION, Atty. Reg. No. 0067020, Attorney for
G. EAGLE, Atty. Reg. No. 0034492, Attorney for
1} Defendant-appellant Jeffrey Jones appeals from a
final judgment and decree of divorce entered by the
Montgomery County Common Pleas Court, Domestic Relations
Division. Jeffrey contends that the trial court abused its
discretion in the division of property. He further contends
that the court erred by failing to release documents for
which he executed a subpoena. Finally, he claims that the
court abused its discretion by ordering him to pay spousal
2} We conclude that the trial court erred by not
releasing the documents that were the subject of
Jeffrey's subpoena, and we also conclude that the trial
court's property division constituted an abuse of
discretion. Because our decision regarding the property
division may have an effect on the spousal support
determination, we further conclude that the award of spousal
support must be reconsidered. Accordingly, the judgment of
the trial court is reversed, and the matter is remanded for
further proceedings in accordance with this opinion.
Course of the Proceedings
3} Jeffrey and Diana Jones were married in February
2008. They have no children as a result of their union.
4} Relevant to this appeal, Jeffrey became employed
with the Montgomery County Engineer's Office in 1991.
Diana became employed with the same office in August 2002.
Jeffrey's employment was terminated in 2007. Diana's
employment was terminated in August 2009. In July 2013, Diana
and Jeffrey filed a civil suit against the Engineer's
Office and the former County Engineer, Joseph Litvin. The
suit sought damages for gender discrimination, retaliation,
intentional infliction of emotional distress, loss of
consortium and breach of contract. The complaint alleged
that, prior to their marriage, Jeffrey had been employed as
Diana's supervisor and that his employment was terminated
in retaliation for his attempt to "intercede on her
behalf with Defendant Litvin." Def. Exh. JJ. The
complaint also alleged that Diana had been bypassed for
promotions and raises and that she had been subject to gender
discrimination. The matter was settled in June 2015. The
settlement agreement stated that the settlement was the
"result of bona fide adversarial negotiations to resolve
a tort based case involving Plaintiff, Diana Jones'
physical sickness." Def. Exh. A. The settlement further
provided that, in exchange for the dismissal of all claims
made by both Jeffrey and Diana, the Engineer's Office
would pay the sum of $750, 000 in four separate checks
payable to Diana.
5} In February 2016, Diana filed a complaint for
divorce. Jeffrey filed an answer and counterclaim. During
discovery, Jeffrey issued a subpoena to the Montgomery County
Prosecutor's Office and the Engineer's Office seeking
documents related to the 2013 civil suit. Jeffrey argued
that the information was relevant to his claim that the
settlement proceeds from the lawsuit constituted marital
property. The Prosecutor's Office filed a motion to quash
on the basis that the request was unduly burdensome. The
motion also argued that the documents sought were
confidential. The confidentiality claim was asserted because
the parties' settlement agreement included a
confidentiality clause. The motion also sought to have the
court conduct an in camera review of the requested documents.
The trial court granted the request for an in camera review
of the documents.
6} The final divorce hearing was conducted over two
days in late 2017 and early 2018. During that time, both
parties testified and both presented the testimony of
appraisers regarding the value of real estate and businesses
owned by the parties. At the end of the hearing, Jeffrey
asked the court whether it would release the documents that
it had reviewed in camera as the court had not rendered a
decision on the issue. The court stated that none of the
requested documents delineated how the proceeds of the
employment lawsuit were to be divided. The court, thus,
implicitly overruled the request for the release of the
documents to Jeffrey.
7} The trial court issued a decision on May 18, 2018
related to property division and spousal support; this
decision was incorporated into the June 26, 2018 final
judgment and decree of divorce. The court concluded that
because the settlement agreement provided that the payments
would be made to Diana for her "physical sickness,"
the proceeds were her non-marital property. The court ordered
Jeffrey to pay spousal support in the sum of $900 per month
for a period of 36 months. The court retained jurisdiction
over the amount but not the duration of the spousal support.
8} The trial court's decision also divided
Jeffrey's interest in two businesses he acquired prior to
the marriage, specifically his farming business and a snow
removal/trucking business known as South West Ohio Services.
There was no testimony or other evidence presented regarding
the value of the businesses at the time of the marriage. But
the trial court relied on the testimony of Diana's
expert, who assigned a combined value of $202, 477 for both
businesses as of the date of the hearing. There was evidence
that the farming business purchased equipment valued at $110,
000 during the course of the marriage. Based on this
evidence, the court concluded that the value of the farming
business was $110, 000, $55, 000 of which belonged to Diana.
The court then deducted this value from the expert's
total valuation and concluded that the snow removal/trucking
business had a value of $92, 477. The court awarded Diana
one-half of that value, or $46, 238.50.
9} Jeffrey filed an appeal, Diana filed a
cross-appeal. Diana has failed to prosecute her cross-appeal,
thus we have dismissed that appeal by separate order
(Decision & Entry, June 5, 2019).
10} Jeffrey's first assignment of error is as
THE TRIAL COURT ERRED IN NOT RELEASING SUBPOENAED RECORDS
REGARDING THE PARTIES' SETTLEMENT.
11} Jeffrey contends that the trial court erred when
it did not release the documents submitted to the court by
the Montgomery County Engineer's and Prosecutor's
Offices following the issuance of his subpoena for such
documents. We agree.
12} While the Prosecutor's Office correctly
points out that that the terms of the settlement were subject
to a confidentiality clause, we cannot conclude that such
clause prohibited Jeffrey, a party to the settlement, from
accessing the requested materials. Further, we have inspected
the documents that were submitted to the trial court. Most of
the documentation consisted of correspondence between the
attorney for the Joneses and the Prosecutor's Office
concerning settlement of the action. None of the documents appear
to be work-product or subject to attorney/client privilege.
13} The trial court did not state, and we can
discern no reason for, the denial of Jeffrey's request to
release the requested documentation. Therefore, we conclude
that the trial court erred by failing to permit Jeffrey to
inspect the documents submitted to the court. Accordingly,
the first assignment of error is sustained.
14} Jeffrey's second assignment of error ...