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Dejak v. Dejak

Court of Appeals of Ohio, Eleventh District, Lake

August 12, 2019

MARIA DEJAK, Plaintiff-Appellee,
v.
JOHN F. DEJAK, Defendant-Appellant.

Appeal from the Lake County Court of Common Pleas, Domestic Relations Division, Case No. 2016 DR 000533.

         Judgment: Affirmed.

          David J. Sternberg, Sternberg & Zeid Co., L.P.A., (For Plaintiff-Appellee).

          Adam J. Thurman and Alexis M. Gacey, Rosenthal Thurman, LLC, (For Defendant-Appellant).

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} Appellant, John F. Dejak, appeals from the final judgment of divorce, entered by the Lake County Court of Common Pleas, Domestic Relations Division. We affirm.

         {¶2} Appellant and appellee, Maria Dejak, were married on July 12, 2013. Prior to the marriage, the parties executed a prenuptial agreement. Appellant requested the agreement and his attorney drafted the same. Both parties signed the agreement, which was notarized and also signed by both parties' counsel. On September 1, 2016, appellee filed her complaint for divorce, claiming gross neglect, extreme cruelty, adultery, and incompatibility. Appellant filed his answer and counterclaim for divorce, alleging gross neglect, extreme cruelty, and incompatibility. Appellee was represented by counsel from the inception of the case through its completion; appellant, alternatively, was initially represented by counsel, but counsel withdrew prior to a hearing on the enforceability of the prenuptial agreement. The magistrate continued the hearing and set a pretrial for June 21, 2017 to allow appellant to obtain new counsel. The magistrate issued a subsequent order stating the enforceability hearing would proceed on September 15, 2017; the order also advised the parties that if appellant retained counsel prior to that date, the hearing would be continued to afford counsel an opportunity to prepare. Appellant did not obtain counsel and, instead, proceeded pro se during the enforceability hearing.

         {¶3} At the close of the hearing, the magistrate addressed the parties and, in particular, appellant, who was proceeding pro se. The magistrate stated: "So what I have to do is make a written decision explaining how I reach whatever conclusion I reach. As I mentioned, with these types of cases, this decision is something that becomes part of a later decision. So it's not something which I believe is subject to being objected to until the divorce is granted." (Emphasis added.)

         {¶4} On October 25, 2017, the magistrate issued his decision and concluded the prenuptial agreement was enforceable. In particular, the magistrate determined the agreement was entered into freely and voluntarily, without fraud, duress, coercion or overreaching; the magistrate observed there was full disclosure and full knowledge of the property at issue and the agreement did not promote or encourage divorce. The magistrate further determined that this ruling would be incorporated into the final judgment of divorce; the magistrate noted, however, that merely because the agreement was enforceable did not imply all issues of interpretation of the agreement were resolved. As such, the magistrate determined any additional issues relating to the meaning of the agreement would be addressed at the final hearing on divorce.

         {¶5} Notwithstanding the magistrate's statement at the end of the hearing regarding his "belief that no objections need to be filed, his decision concluded with the following accurate advisement: "Except for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b)." Appellant failed to file timely objections to the magistrate's decision and the trial court adopted the same on November 20, 2017.

         {¶6} The matter proceeded to a final hearing on February 28, 2018. Both parties were represented by counsel. On March 14, 2018, the magistrate issued his decision concluding, in light of the prenuptial agreement, appellee was entitled to 20% of appellant's assets as set forth in the agreement. And the magistrate determined appellee was entitled to divorce upon grounds of incompatibility. The magistrate's decision again included the Civ.R. 53 advisement.

         {¶7} On March 28, 2018, appellant filed objections with a motion for leave to supplement the objections upon filing of the transcript of proceedings. In his objections, appellant alleged the magistrate erred when it validated the prenuptial agreement in his October 2017 decision. He further alleged the magistrate erred by considering the testimony of appellant's former counsel relating to the circumstances surrounding the entry of the agreement in the October 2017 decision. Appellant also objected to the magistrate's determination regarding the date of the end of the marriage, the magistrate's award of 20% of his assets to appellee, and the magistrate's alleged failure to obtain a complete disclosure of all marital property. On May 30, 2018, appellant supplemented his objections in which he elaborated more fully on his initial objections. He also added an objection to the magistrate's determination that the marriage should be terminated for incompatibility. Appellee subsequently filed a response to appellant's preliminary and supplemental objections.

         {¶8} On October 16, 2018, the trial court issued its judgment entry adopting the magistrate's decision. Regarding appellant's objections, the trial court determined the issue of the magistrate's validation of the prenuptial agreement was waived for failure to file timely objections to the same. With respect to appellant's objection to his former attorney's testimony, the court determined the attorney-client privilege does not apply where an attorney is testifying in his or her capacity as a witness to the circumstances of the signing and execution of a document. The trial court also determined the magistrate did not err in concluding the marriage should be terminated based upon incompatibility; it found the magistrate's decision relating to the end-date of the marriage, i.e., the date of appellee's filing for divorce, was equitable; and, it determined there was no evidence of additional marital property save that listed in the prenuptial agreement. In short, the trial court adopted the magistrate's decision in full.

         {¶9} On November 5, 2018, the trial court adopted the foregoing conclusions into its final judgment of divorce. This appeal ensued. Appellant assigns four errors for our review. His first asserts:

         {¶10} "The trial court erred and abused its discretion in validating the ...


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