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Bass v. Bass

Court of Appeals of Ohio, Second District, Montgomery

July 5, 2019

RHONDA SMITH BASS Plaintiff-Appellee
MICHAEL C. BASS Defendant-Appellant

          Trial Court Case No. 2010-DR-793 (Domestic Relations Appeal)

          DAVID M. MCNAMEE, Attorney for Plaintiff-Appellee

          JAY B. CARTER, Attorney for Defendant-Appellant


          WELBAUM, P.J.

         {¶ 1} This case is the fourth appeal concerning the divorce of Appellant, Michael Bass, and Appellee, Rhonda Smith (also known as Rhonda Smith Bass).[1] According to Michael, the trial court erred in failing to enforce a May 2017 contempt order and a September 2018 agreed order. After reviewing the record, we find no error on the trial court's part. Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 2} The parties in this case were married in 1998, and no children were born as a result of the marriage. In July 2010, Rhonda filed a complaint for divorce, and Michael filed an answer and counterclaim for divorce in September 2010.

         {¶ 3} After an evidentiary hearing, the trial court issued an order in August 2013 granting a divorce and dividing the parties' assets. In the order, the court noted the parties' disagreement about personal property and ordered that an inventory be conducted by both parties with a third person present. After the inventory was completed, the parties were to divide the personal property items within 30 days pursuant to Mont. D.R. Rule 4.40(C). The final decree, which was entered on September 13, 2013, ordered the inventory and division as noted in the court's earlier order.

         {¶ 4} Michael appealed from the final judgment and decree of divorce, challenging the trial court's division and distribution of marital assets. See Bass v. Bass, 2d Dist. Montgomery No. 25922, 2014-Ohio-2667, ¶ 4 (Bass I). He did not challenge the personal property division. Instead, "[t]he disputed issues were the value of [Rhonda's] retirement account, the disposition of a condo owned by the parties, on which there was no mortgage and in which [Rhonda's] mother lived, and the disposition of the marital home, on which there were two mortgages. Improvements had been made to the marital home; the parties also disputed whether these improvements had been made using funds loaned to [Michael] by his son, which the parties were obligated to repay." Id. at ¶ 5. We found no error and affirmed the trial court's judgment in June 2014.

         {¶ 5} Thereafter, many post-decree motions and appeals were filed (mostly by Michael), resulting in the fact that litigation still continues in this minimal asset case, nearly nine years after the parties separated and the divorce complaint was filed.

         {¶ 6} The second appeal, in 2015, concerned Michael's disagreement with two post-decree judgments. See Bass v. Bass, 2016-Ohio-596, 47 N.E.3d 224, ¶ 1 (2d Dist.) (Bass II). As pertinent here, Michael challenged a July 2015 trial court judgment, which had "ordered the return of Michael's unspecified jewelry and ordered the sale of the time share. As to the personal property, the court added some items to the inventory list for the parties to divide under Mont. D.R. Rule 4.40(C) and found that the rest of the items were not 'missing.'" Id. at ¶ 18. According to Michael, the court's judgment was against the manifest weight of the evidence. Id. at ¶ 20. After reviewing the evidence, we disagreed, stating that:

It seems that the parties have been squabbling over substantially the same set of items for years. Regardless, Michael's testimony - that Exhibit M represents all the missing items as of the inventory - is the limiting aspect of our review. Each of those items either has been accounted for or, as the trial court found, went missing during Michael's occupation of the home. It is apparent that the trial court believed Rhonda's testimony that the appliances had to be replaced, that she gave [Michael] the four chairs, that her bar stools were not their bar stools, that the red couch was the "rust" couch, and that the one or two remaining items went missing during Michael's occupancy. The court also believed Rhonda that she did not take the one or two remaining items. On this issue there is evidence to support the trial court's decision.

(Footnote omitted.) Id. at ¶ 27. We, therefore, affirmed the judgment.

         {¶ 7} Bass II was issued in February 2016. In May 2016, Michael filed a motion addressing several matters, including sale of the time-share, return of personal property, division of marital property, and payment of equity in real estate. He then filed a motion to show cause in August 2016, concerning Rhonda's alleged failure to pay him for his equity in the real estate and marital vehicles. A hearing was held concerning these matters in September 2016.

         {¶ 8} In December 2016, the parties' counsel agreed that Rhonda and Michael would meet at Rhonda's residence, and a third party would divide the property pursuant to local rules. However, in January 2017, Michael filed another motion to show cause because Rhonda failed to be present on the agreed-upon date. Subsequently, in February 2017, the magistrate found Rhonda in contempt, stating that Rhonda had "repeatedly and persistently failed to cooperate with the procedure for a division of property which has contributed to this 'squabbling' persisting for yet another year." Docket for Third Appeal ("Third Appeal"), Doc. #57, p. 5.[2] The magistrate, therefore, found Rhonda in contempt and imposed a 30-day sentence and a $1, 000 fine, which were suspended pending Rhonda's cooperation with a property division procedure. On May 22, 2017, the trial court overruled Rhonda's objections to the magistrate's decision. Rhonda did not appeal from that judgment. Michael then filed a motion on June 28, 2017, asking the court to impose sentence because Rhonda had failed to pay fees that were imposed. He did not mention the property division. Id. at Doc. #81. A hearing on that motion was set for September 7, 2017.

         {¶ 9} In the meantime, in July 2017, a magistrate filed a decision on the motion that Michael had filed in May 2016, and the motion to show cause that he filed in August 2016. As noted, these motions involved Rhonda's alleged failure to pay the money the divorce decree ordered for the division of marital property, her alleged failure to list the time-share for sale, and her alleged failure to return a set of diamond cuff links to Michael.

         {¶ 10} The magistrate found Rhonda in contempt because she made partial payment of around $51, 000, but failed to pay Michael for his share of the value of the motor vehicles ($7, 805.66). See Third Appeal, Doc. #84. However, the magistrate found insufficient evidence to establish that Rhonda failed to comply with the order to list the time-share for sale, or that Rhonda possessed diamond cuff links that Michael claimed to be entitled to possess. Id. at p. 3. Both parties filed objections to the magistrate's decision.

         {¶ 11} As noted, the trial court had previously filed a judgment on May 22, 2017, agreeing with the magistrate that Rhonda was in contempt for failing to cooperate with the division of the parties' personal property. On September 7, 2018, the magistrate held a hearing on Michael's July 28, 2017 motion to impose sentence. An agreed order was then filed on September 8, 2017, acknowledging that Rhonda had paid the amounts imposed for contempt. The order further stated that Rhonda "acknowledges that the full purge conditions as set forth in paragraph 4 of the May 22, 2017 decision and judgment have not been met." Third Appeal, Doc. #103, p. ...

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