Court of Appeals of Ohio, Seventh District, Noble
NORMA J. DIMMERLING, PLAINTIFF-APPELLANT/ CROSS-APPELLEE,
DUANE E. DIMMERLING, DEFENDANT-APPELLEE/ CROSS-APPELLANT.
Appeal from the Court of Common Pleas of Noble County, Ohio
Domestic Relations Division Case No. 215-0048.
Timothy C. Loughry, Loughry, Buell & Sipe, LLC, for
Plaintiff-Appellant/ Cross-Appellee and
Miles D. Fries, Gottlieb, Johnston, Beam & Dal Ponte, for
BEFORE: Carol Ann Robb, Gene Donofrio, David A.
OPINION AND JUDGMENT ENTRY
Plaintiff-Appellant/Cross-Appellee Norma Dimmerling (Wife)
and Defendant-Appellee/Cross-Appellant Duane Dimmerling
(Husband) appeal the Noble County Common Pleas Court's
Wife, in total, raises fourteen assignments of error. Her
arguments concern the end date of the marriage, division of
property, the trial court's reliance on certain witnesses
for valuation of property, child support, and the trial
court's failure to rule on her motion for contempt.
Husband raises three assignments of error and his arguments
focus on the division of property.
For the reasons expressed below, all of the parties'
arguments, except for one lack merit. Wife's division of
property argument concerning Husband's bank Account # 896
has merit. The trial court in determining marital and
separate property and dividing property did not account for
Husband's bank Account # 896 that was opened immediately
prior to Wife filing for divorce, in Husband's sole name,
and was used to operate the farm. Thus, the matter is
remanded for determination of whether that bank account is
marital or separate, and if it is marital to account for it
in the division of property.
of the Case
Husband and Wife were married on August 5, 1989 and had four
children. The final divorce decree was issued February 27,
2018 and a nunc pro tunc order was issued March 26, 2018. At
the time of the decree, one child was still a minor.
Prior to marrying Wife, Husband, in 1988, purchased
approximately 133 acres of land in Noble County, Ohio. The
property was purchased for $96, 500.00. Husband paid $40,
000.00 as a down payment. At the date of the marriage in
1989, $47, 000.00 was owed on the property. The parties paid
off that mortgage during the marriage. The property was
titled in Husband's name only.
When Husband purchased the 133 acres a house was situated on
the property. During the marriage renovations were made to
the house. Testimony indicated the major renovation increased
the value of the property by $90, 000.00. The cost of the
renovation was approximately $125, 000.00. Also buildings for
operating a beef cattle farm were added during the marriage.
At the time of the divorce the farm, including the home and
farm buildings, were appraised for $428, 000.00 to $477,
During the marriage, two additional pieces of property were
acquired. The first was one acre of land that was situated in
the middle of the 133 acres. This land was titled in both
parties names and they paid $300.00 for it. The second tract
of land was 19 acres that was not contiguous to their farm.
The 19 acres was titled to both of them from the wife of
Husband's friend who had passed away. The land was a
The farm operates as a beef farm and is Husband's sole
income. Wife worked throughout the marriage and is a
respiratory therapist. The parties have little to no debt.
Wife filed for divorce in August 2015; Husband answered and
filed a counterclaim in November 2015. Both parties sought
divorce based on incompatibility and other grounds. The
divorce trial was held on December 23, 2016 and March 15,
2017. Each party presented their own experts for the
valuation of the farm, cattle, and farm equipment. The
parties agreed Wife should be custodial parent of the minor
child and Husband would be entitled to parenting time as long
as he was sober.
Following the hearing, the trial court found the parties
incompatible and granted them a divorce. The trial court
determined the value of the farm was $428, 000.00 and the
value of the marital portion of the farm, which included the
one acre situated in the middle of the farm that was acquired
during the marriage, to be $254, 760.00. The total marital
asserts were $735, 434.08. Each party received certain cars
and bank accounts, which are not at issue in this case. After
division of property, the total marital assets Wife received
equaled $130, 404.44. Husband's total marital assets
equaled $605, 029.64. In order to equalize the distribution,
the trial court ordered Husband to pay Wife $237, 312.60 over
15 years. He was ordered to pay a yearly installment of $15,
000.00 every April 30 for the next 15 years. The trial court
held as long as the payments were timely there would be no
As to the marital and separate portion of the 133 acre farm,
the trial court determined 51.3% of the farm was
Husband's separate property. Therefore, 48.7% was
marital. The trial court also determined based upon that
computation that Husband was entitled 75.65% of the mineral
interests and Wife was entitled to 24.35%.
As to the 19 acres of land gifted to Husband and Wife from
the wife of Husband's deceased friend, the trial court
determined that since it was deeded to both Husband and Wife
it was not Husband's separate property. The court
determined the parties are tenants in common in this 19 acres
of land, each owning an undivided one-half interest in the 19
The trial court did not award Wife spousal support, but did
order Husband to pay child support in accordance with the
statutory support guidelines. 2/27/18 J.E.; 3/26/18 Nunc Pro
Tunc Order. The order did not explicitly specify the
effective date of the child support order.
Both Husband and Wife appealed the trial court's order.
To conserve judicial resources we ordered the appeals to
merge and proceeded under one case number. 6/11/18 J.E. Wife
was named the Appellant/Cross-Appellee and Husband was named
Some of Husband and Wife's assignments of error overlap
and therefore, will be addressed together in order to
eliminate as much redundancy as possible.
The majority of the assignments of error address the trial
court's division of property. The appropriate standard of
review in a divorce proceeding is an abuse of discretion
standard. Cherry v. Cherry, 66 Ohio St.2d 348, 421
N.E.2d 1293 (1981). An abuse of discretion connotes more than
a mere error of judgment; it implies that the court's
attitude is arbitrary, unreasonable or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). When applying this standard of review, we
may not freely substitute our judgment for that of the trial
court. In re Jane Doe I, 57 Ohio St.3d 135, 137-138,
566 N.E.2d 1181 (1991); Berk v. Matthews, 53 Ohio
St.3d 161, 169, 559 N.E.2d 1301 (1990). With that standard in
mind we turn our attention to the assignments of error.
First and Second Assignments of Error End Date of
court failed to specify the duration of the marriage."
the end date of the marriage is the date of the final
hearing, then such finding is an abuse of discretion."
Wife asserts the trial court failed to state in the divorce
decree the start date or end date of the marriage and such
failure constitutes reversible error. She contends the
duration of the marriage is critical in determining marital
and separate property. This is especially the case here where
the property includes a cattle farm where cattle are bought
and sold regularly and the business operates largely on cash.
Husband counters asserting the court stated the parties were
married on August 5, 1989, which is the start date of the
marriage. He acknowledges the trial court did not specify an
end date, but contends the statutes establish that the end
date is presumed to be the final hearing date.
Wife disagrees with Husband's position that there is a
presumption regarding the end date of the marriage. She
maintains the end date must be expressly stated in the
judgment entry. In the alternative, she asserts if the end
date is presumed to be the final hearing date, the
presumption was rebutted. She contends Husband diverted funds
into his personal account on April 21, 2015 and that should
be considered the end date of the marriage. She further
asserts using the end date as the final hearing date is an
abuse of discretion because of the diverted funds and
appraisals of the cattle and real property were done on dates
prior to the final hearing. Since the value of real property
and cattle change on a daily basis the end date should
correspond with the appraisals, not the hearing date.
"In making a division of marital property and in
determining whether to make and the amount of any
distributive award under this section, the court shall
consider * * * [t]he duration of the marriage * * *."
R.C. 3105.171(F)(1). Logically, this means, the trial court
must determine the duration of the marriage prior to dividing
marital assets. See, e.g., Alexander v. Alexander,
10th Dist. Franklin No. 09AP-262, 2009-Ohio-5856, ¶ 37
("It is the duration of marriage that determines the
valuation of the marital estate. Therefore, once the duration
of marriage is established, assets and liabilities are
determined in accordance with those dates.").
A trial court's determination as to the duration of
marriage under R.C. 3105.171(A)(2) is reviewed for an abuse
of discretion. Lemarr v. Lemarr, 1st Dist. Hamilton
No. C-100706, 2011-Ohio-3682, ¶ 4. See also Walpole
v. Walpole, 8th Dist. Cuyahoga No. 99231,
2013-Ohio-3529, ¶ 102, citing Berish v. Berish,
69 Ohio St.2d 318, 321, 432 N.E.2d 183 (1982) ("The
trial court has broad discretion in choosing the appropriate
marriage termination date and this decision should not be
disturbed on appeal absent an abuse of discretion.").
R.C. 3105.171 provides:
(2) "During the marriage" means whichever of the
following is applicable:
(a)Except as provided in division (A)(2)(b) of this section,
the period of time from the date of the marriage through the
date of the final hearing in an action for divorce or in an
action for legal separation;
(b)If the court determines that the use of either or both of
the dates specified in division (A)(2)(a) of this section
would be inequitable, the court may select dates that it
considers equitable in determining marital property. If the
court selects dates that it considers equitable in
determining marital property, "during the marriage"
means the period of time between those dates selected and
specified by the court.
The trial court's judgment entry specifically indicated
the parties were married August 5, 1989. 3/26/18 J.E. Despite
Wife's statement to the contrary, considering the
language of R.C. 3105.171(A)(2)(a), the trial court's
statement of the date the parties were married is the start
date of the marriage.
The judgment entry, however, does not expressly state an end
date. Husband contends that the language of R.C.
3105.171(A)(2) creates a presumption that when there is no
end date stated it is the date of the final hearing. Wife
asserts it must be expressly stated and cites subsection (G)
of R.C. 3105.171, which states:
In any order for the division or disbursement of property or
a distributive award made pursuant to this section, the court
shall make written findings of fact that support the
determination that the marital property has been equitably
divided and shall specify the dates it used in determining
the meaning of "during the marriage."
The Second Appellate District has concluded that even when a
party argues for a de facto end date and the trial court
fails to state the end date in the judgment entry, there is
no error when the trial court uses the presumed date - the
final hearing date. Lakkapragada v. Lakkapragada, 2d
Dist. Montgomery No. 25883T, 2014-Ohio-331, ¶ 54-56. The
Lakkapragada court explained:
We conclude that although the court did not expressly state
the ending date of the marriage, it is clear from the record
that the court considered "during the marriage" to
include the time up to and including the final hearing. The
court terminated the temporary orders as of July 24, 2013,
and it designated June 30, 2013 as the valuation date for the
SEI-Services and Siemens Savings Plans retirement accounts.
There is nothing to suggest that the date of the final
hearing is inequitable for purposes of dividing the marital
Id. at ¶ 56.
The Sixth Appellate District in reviewing R.C. 3105.171(A)(2)
and (G) has remanded a case for a determination of the start
and end dates of the marriage; the trial court did not
specify the dates used to determine "during the
marriage." Jackson v. Jackson, 6th Dist. Fulton
No. F-12-013, 2014-Ohio-1145, ¶ 10-15. In that case, it
was the start date of the marriage that was at issue. As to
the retirement accounts, the appellate court indicated that
it appeared the trial court used the "default
dates," the date of the marriage and date of the final
hearing to define "during the marriage," because
an expert testified as to what portion of the
retirement was premarital and what portion was accumulated
during the marriage. Id. at ¶ 10-11. However,
as to a car that was purchased prior to the date of marriage,
the trial court determined the vehicle was marital property.
Id. at ¶ 11. The appellate court concluded that
it appeared the trial court was using a second date for the
start date of marriage for this property. Id. The
trial court did not explain why a de facto date was necessary
for this property or even expressly indicate it was applying
a de facto date instead of the presumed date. Id. at
¶ 11-12. In remanding for clarification, the appellate
On this record, we cannot determine the basis of the trial
court's decision to treat the Mustang as marital
property. In its July 6, 2012 judgment, the trial court
adopted "in toto" the allocations and valuations of
personal property detailed in Ken's post-hearing brief.
In the allocations, the Mustang was treated as marital
property. However, the trial court did not make any findings
concerning the Mustang and specifically did not state a
determination under R.C. 3105.171(A)(2)(b) that it would be
inequitable to use the default dates specified under R.C.
3105.171(A)(2)(a) to determine whether the Mustang is marital
property. The court also did not select and specify other
dates in its judgment for use in determining whether the
Mustang is marital property.
Pursuant to R.C. 3105.171(G), we reverse and remand the trial
court's judgment with respect to classification of
property as marital or separate and with respect to division
of marital property, including treatment of retirement
accounts, the Ford Mustang automobile, and other personal
property. We remand to permit the trial court to clarify and,
if necessary, correct its judgment. In revisiting these
issues on remand, the trial court shall specify in its
judgment the dates it employs to define the meaning of
"during the marriage" for purposes of R.C.
3105.171. If it is the trial court's intent to employ
dates other than those specified under R.C. 3105.171(A)(2)(a)
to constitute "during the marriage," the court
shall clarify whether it determined that utilizing the R.C.
3105.171(A)(2)(a) dates would be inequitable and also specify
under R.C. 3105.171(A)(2)(b) any alternative dates it
Id. at ¶ 14-15.
The situation at hand is more akin to Lakkapragada
than to Jackson. Here, there is nothing in the
record to suggest the trial court used any other date than
the date of the final hearing as the end date of the
marriage. The presumption applies. While it would be better
practice for a trial court to expressly state the start date
and end date of the marriage in the judgment entry rather
than relying on the presumption, when the record indicates
the trial court used the presumed date, it does not appear
there is a basis for reversal merely because the trial court
did not expressly state the dates. See Lakkapragada,
2014-Ohio-331, ¶ 54-56.
Wife asserts the presumption should not be used because the
values of the cattle, feed, farm equipment, and real estate
fluctuate with the market. She also argues Husband allegedly
diverted funds in April 2015 to open a separate bank account.
Accordingly, Wife asserts use of the presumed date is an
abuse of discretion.
These arguments are meritless. Wife's expert appraised
the real estate and farm equipment in March 2016; he
appraised the real estate at $477, 500.00 and the farm
equipment at $354, 260.00. Tr. 20, 24; Plaintiffs Exhibit 1
and 2. This expert testified almost 9 months after the
appraisal. He was asked whether the value of the property,
both real and personal, changed since the appraisal in March
2016. As to the farm equipment, he avowed it would have been
a "minimal change." Tr. 23. As to the real estate,
he stated the valuation would not have "substantially or
significantly" changed. Tr. 19. This expert also
appraised the cattle; however, the trial court found he was
not an expert on the valuation of cattle.
Husband presented three experts. His first expert testified
as to the value of the real estate; he testified it had a
fair market value of $428, 000.00. Tr. 117; Defendant's
Exhibit V. The appraisal report is dated December 14, 2016,
approximately three months prior to his testimony; this
expert testified on March 15, 2017. Defendant's Exhibit
V. His second expert testified about the value of the cattle.
He testified he did the appraisal in early September 2016.
Tr. 191. His appraisal was not a set amount, but a range. Tr.
194-195; Defendant's Exhibit A. He also indicated this
was the range on the date he viewed the cattle; it would be
different on the date of the hearing. Tr. 192. His third
expert testified as to the value of the farm equipment. This
appraisal was done in September 2016. Defendant's Exhibit
F. This expert testified that the value of the equipment
probably did not change from the time of the appraisal. Tr.
203. His testimony occurred about six months after the
appraisal report date.
All property most likely will fluctuate in value from the
time of appraisals to time of the hearing. That, however,
does not mean that it is an abuse of discretion to use the
final hearing date as the end date of the marriage rather
than another de facto date. In this case, as to the real
estate and farm equipment, the experts testified the value
would have minimally changed from the time of the appraisal.
As to the cattle, the trial court explained why Husband's
expert's appraisal was used and why it was the most
accurate value of the cattle:
29. Both parties had a cattle appraisal performed, Plaintiff
by Jason Miller. Mr. Miller is not engaged on a full time
basis in the buying and selling of cattle as is the
Defendant's appraiser. The appraisals were performed
months apart. The Defendant's inventory of cattle varies
constantly as cattle are being bought and sold on a regular
basis. The cattle being appraised by the Plaintiff's
appraiser are not the same as were appraised by the
Defendant's appraiser. Most of the cattle appraised by
Plaintiff's appraiser, Jason Miller, are no longer in the
possession of Defendant. Therefore, this appraisal is of no
evidentiary value as it is an appraisal of assets that no
30. Brad Haury, Defendant's cattle appraiser, is in the
business of buying and selling cattle, and conducting cattle
auctions, on a full time basis and has done so for many
years. The Defendant, no longer owns most of the cattle
appraised by Mr. Haury. However, his appraisal was conducted
shortly before the case was originally scheduled for trial
and, therefore, constitutes the best evidence of what should
be considered marital property for purposes of equitably
dividing the marital estate. The court finds that for
purposes of establishing a valuation, the Defendant's
appraisal should be used. Mr. Haury appraised the cattle
using a range. His total cattle valuation is one hundred four
thousand seven hundred twenty-five dollars ($104, 725.00).
The Court believed the Haury appraisal to be the most
accurate representation of the value of the cattle.
This reasoning is logical and does not establish an abuse of
discretion for using the presumed date rather than a de facto
date for the end of the marriage.
As aforementioned, Wife asserts Husband allegedly diverted
funds in April 2015 and opened a new account, account #896,
in his name only establishing the trial court should have
used the April 2015 date as the de facto date for the end of
marriage. Wife's arguments concerning this account are
more directed to the equal distribution of the monies, which
are addressed in the next assignment of error. That said,
this allegation does not establish the failure to use April
2015 as the de facto end date of the marriage was an abuse of
discretion. There are no appraisals for the real estate or
real property from that date. Her complaint for divorce was
not filed until a month later and both were still living in
the marital residence together until November 2015. The
Eleventh Appellate District has explained:
"Generally, trial courts use a de facto termination of
marriage date when the parties separate, make no attempt at
reconciliation, continually maintain separate residences,
separate business activities and/or separate bank accounts. *
* * Courts should be reluctant to use a de facto termination
of marriage date solely because one spouse vacates the
marital home. * * * Rather, a trial court may use a de facto
termination of marriage date when the evidence clearly and
bilaterally shows that it is appropriate based upon the
totality of the circumstances."
Marini v. Marini, 11th Dist. Trumbull No.
2005-T-0012, 2006-Ohio-3775, ¶ 13, quoting Harris v.
Harris, 11th Dist. No. 2002 A 81, 2003-Ohio-5350, at
¶ 11 (citation omitted).
Applying this reasoning, solely diverting funds from a
marital account and opening an individual account does not
necessarily justify using a de facto date rather than the
In conclusion, the first two assignments of error are
meritless. Although the trial court did not state the end
date of the marriage, the record supports the conclusion that
it used the presumed date, which is the date of the final
Third Assignment of Error and Husband's Third
Cross-Assignment of Error Account # 896 and the 19 Acres
court did not divide all the marital assets."
acres given as a gift should have been awarded to Appellee
[Husband] as his separate property."
These assignments of error address Account # 896 and the 19
acres acquired from the wife of Husband's deceased
friend. Each property will be addressed separately. 1.
Account # 896
Husband opened Account # 896 in April 2015. Wife claimed at
the hearing the account was opened with diverted marital
funds. She was unclear where these funds originated, but
believed it might have been from the 2015 cattle sales. Tr.
95-96. She claimed Husband kept large amounts of cash in his
truck and operated mostly on a cash basis. Wife contends the
trial court did not address Account # 896 when it distributed
Husband argues the account was used for the cattle business
and there was significant fluctuations in the balance because
of cattle being bought and sold. He asserts Wife did not
present any evidence of the account balance at the December
23, 2016 divorce trial. Therefore, she did not prove there
was any money in that account or that she was entitled to any
of it. He notes she also did not reference this account in
her proposed findings of fact. Furthermore, Husband states if
her claim was that he depleted marital funds she should have
presented evidence supporting that, which she did not.
From the exhibits it appears Husband operated the farm using
Account # 197 titled Double D Farms prior to April 2015.
Plaintiff's Exhibit 18. That account was in both Husband
and Wife's names. Plaintiff's Exhibit 18. Account #
197 was not closed and the trial court found that account was
marital and awarded the $4, 322.67 remaining in that account
to Wife as a means to equalize the distribution since Husband
was awarded the farm. 3/26/18 J.E.
Husband opened a new account in April 2015, Account # 896,
and it appears he used that account to operate the farm.
Plaintiff's Exhibit 18. That account was solely in
Husband's name. Plaintiffs Exhibit 18. The balance in
September 2016 was approximately $133, 000.00. Plaintiffs
Exhibit 18. This exhibit was introduced at the December 2016
hearing and admitted at the March 2017 hearing.
Minimal testimony on Account # 896 was introduced at trial,
and that account is not listed in the divorce decree. Wife
did not include this account in her proposed findings of
fact. Also, while Wife's Exhibit 18 does establish the
amount in the account as of September 2016, no one testified
about that amount. Husband is correct the exhibits do
establish there is a fluctuation in this account, but Exhibit
18 indicates it averaged over $100, 000.00.
Pursuant to R.C. 3105.171(B), "[i]n divorce proceedings,
the court shall * * * determine what constitutes marital
property and what constitutes separate property."
Considering the trial court does not address Account # 896
and does not indicate if it is marital or separate, and if
marital divide it, this issue must be remanded for that
determination. It appears given the amount of property being
divided it was an oversight by the trial court to not address
Account # 896.
Therefore, there is merit with the argument that the trial
court did not address Account # 896. 2. 19 acres
Husband and Wife were deeded 19 acres of property during the
marriage from Marjorie J. McElfresh. The deed to this
property was admitted as evidence. Plaintiff's Exhibit
15. The deed specifically indicated it was given to both
Husband and Wife. Plaintiff's Exhibit 15. This 19 acres
is not adjacent to the 133 acre farm; it is a couple of miles
away from the 133 acre farm.
In dividing the property, the trial court stated:
22. During the marriage, nineteen (19) acres were acquired by
deed from Marjorie McElfresh the surviving spouse of a
life-long friend of the Defendant. The parties did not pay
anything in consideration for the acquisition of these
nineteen (19) acres, which is unimproved. Defendant bales hay
on it once a year. It is not land that can be built upon.
Defendant states that he believe that land was intended to be
a gift to him. However, clearly the land was deeded to both
Plaintiff and Defendant. Plaintiff and
Defendant are and will remain tenants in common each owning
an undivided one-half of that 19 acre parcel.
15. Although Defendant claimed the nineteen (19) acres as a
gift to him alone, the deed indicates otherwise (from a third
party to both Plaintiff and Defendant). The nineteen (19)
acres is marital ...