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Dimmerling v. Dimmerling

Court of Appeals of Ohio, Seventh District, Noble

June 24, 2019

NORMA J. DIMMERLING, PLAINTIFF-APPELLANT/ CROSS-APPELLEE,
v.
DUANE E. DIMMERLING, DEFENDANT-APPELLEE/ CROSS-APPELLANT.

          Civil Appeal from the Court of Common Pleas of Noble County, Ohio Domestic Relations Division Case No. 215-0048.

          Atty. Timothy C. Loughry, Loughry, Buell & Sipe, LLC, for Plaintiff-Appellant/ Cross-Appellee and

          Atty. Miles D. Fries, Gottlieb, Johnston, Beam & Dal Ponte, for Defendant-Appellee/Cross-Appellant

          BEFORE: Carol Ann Robb, Gene Donofrio, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          Robb, J.

         {¶1} Plaintiff-Appellant/Cross-Appellee Norma Dimmerling (Wife) and Defendant-Appellee/Cross-Appellant Duane Dimmerling (Husband) appeal the Noble County Common Pleas Court's divorce decree.

         {¶2} 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.

         {¶3} 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.

         Statement of the Case

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} At the time of the divorce the farm, including the home and farm buildings, were appraised for $428, 000.00 to $477, 500.00.

         {¶8} 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 gift.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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 interest.

         {¶12} 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%.

         {¶13} 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 acres.

         {¶14} 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.

         {¶15} 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 the Appellee/Cross-Appellant.

         {¶16} 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.

         Standard of Review

         {¶17} 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.

         Wife's First and Second Assignments of Error End Date of Marriage

         "The court failed to specify the duration of the marriage."

         "If the end date of the marriage is the date of the final hearing, then such finding is an abuse of discretion."

         {¶18} 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.

         {¶19} 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.

         {¶20} 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.

         {¶21} "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.").

         {¶22} 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.").

         {¶23} 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.

R.C. 3105.171(A)(2)(a)(b).

         {¶24} 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.

         {¶25} 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."

R.C. 3105.171(G).

         {¶26} 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 property.

Id. at ¶ 56.

         {¶27} 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 court stated:

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 employs.

Id. at ¶ 14-15.

         {¶28} 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.

         {¶29} 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.

         {¶30} 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.

         {¶31} 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.

         {¶32} 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.

         {¶33} 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 longer exist.
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.

3/26/18 J.E.

         {¶34} 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.

         {¶35} 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).

         {¶36} 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 presumed date.

         {¶37} 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 divorce hearing.

         Wife's Third Assignment of Error and Husband's Third Cross-Assignment of Error Account # 896 and the 19 Acres

         "The court did not divide all the marital assets."

         "19.1 acres given as a gift should have been awarded to Appellee [Husband] as his separate property."

         {¶38} 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

         {¶39} 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 the property.

         {¶40} 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.

         {¶41} 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.

         {¶42} 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.

         {¶43} 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.

         {¶44} 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.

         {¶45} Therefore, there is merit with the argument that the trial court did not address Account # 896. 2. 19 acres

         {¶46} 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.

         {¶47} 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 ...

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