[Cite as Lemarr v. Lemarr, 2011-Ohio-3682.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MELISSA M. LEMARR, : APPEAL NO. C-100706
TRIAL NO. DR-0901380
Plaintiff-Appellee, :
D E C I S I O N.
vs. :
VIRGIL H. LEMARR, :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas, Domestic
Relations Division
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: July 29, 2011
Cohen, Todd, Kite & Stanford, LLC, and Jeffrey M. Rollman, for Plaintiff-Appellee,
Moskowitz & Moskowitz, LLC, and James H. Moskowitz, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
S UNDERMANN , Presiding Judge.
{¶1} Virgil Lemarr appeals from the decree of divorce entered by the
Hamilton County Court of Common Pleas, Domestic Relations Division. We
conclude that the trial court erred when it awarded Melissa Lemarr attorney fees of
$17,000, so we modify the judgment and enter judgment in the amount of $15,000
for attorney fees to Melissa Lemarr. In all other respects, we affirm the judgment of
the trial court.
{¶2} Virgil and Melissa Lemarr were married in 1999 and had two
children. In August 2007, Melissa filed for divorce, and she moved out of the family
home in November 2007. Melissa dismissed that divorce complaint in February
2008 because the parties were attempting to mediate the issues related to the
divorce. On April 8, 2009, Virgil and Melissa signed an agreement that stated, in
part, the following: “As of this date 04-08-09, both parties agree that their marriage
is over without any chance of reconciliation.” Melissa filed the divorce complaint
that is the subject of this appeal in June 2009.
{¶3} A hearing for a final determination of the issues was held on July 6,
2010, and July 8, 2010. At the conclusion of the hearing, the trial court issued a final
entry with findings of fact and conclusions of law that determined a de facto
termination date of the marriage of April 8, 2009, divided marital property, and
awarded Melissa $17,000 in attorney fees. A decree of divorce incorporating the
trial court’s findings and conclusions was entered by the court on September 24,
2010. This appeal followed.
{¶4} In his first assignment of error, Virgil asserts that the trial court erred
when it determined that April 8, 2009, was the de facto termination date of the
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OHIO FIRST DISTRICT COURT OF APPEALS
marriage. Under R.C. 3105.171(A)(2), the termination date of a marriage is the date
of the final hearing in a divorce, or if the trial court determines that that date would
be inequitable, “the court may select dates that it considers equitable in determining
marital property.” We review the trial court’s determination under an abuse-of-
discretion standard.1 Virgil contends that the de facto termination date of the
marriage should be November 1, 2007, when Melissa moved out of the family home
(“the Reily Avenue home”) and into the family’s other home (“the Forest Avenue
home”). But evidence was presented to demonstrate that, even after Melissa had
moved out, the Lemarrs had remained financially intertwined. Virgil had made
payments on a credit card that was in Melissa’s name, and the Lemarrs had divided
rental income from the Reily Avenue home. Virgil also testified that he had
continued to pay for Melissa’s term life insurance after she had moved out. And as
indicated by the agreement signed by the parties, Melissa was covered by Virgil’s
health insurance until April 8, 2009. We conclude that the trial court did not abuse
its discretion when it determined that April 8, 2009, was the de facto date of
termination of the marriage. The first assignment of error is without merit.
{¶5} In his second assignment of error, Virgil asserts that the trial court
abused its discretion when it valued assets and liabilities on a date other than the de
facto termination date of the marriage. In support of this assignment, Virgil points
to the trial court’s finding that “[t]here was insufficient evidence adduced to
determine that either party was in possession of marital funds on deposit in April of
2009.” The parties addressed the division of their joint bank accounts in stipulations
presented to the court prior to the hearing. There was no evidence of further marital
funds other than those addressed by the court in its decision. “[T]rial courts are
1 Renz v. Renz, 12th Dist. No. CA2010-05-034, 2011-Ohio-1634.
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OHIO FIRST DISTRICT COURT OF APPEALS
vested with broad powers in determining the appropriate scope of property awards
in divorce actions.”2 We conclude that the trial court in this case did not abuse its
discretion in determining that there were no further marital funds subject to
division. The second assignment of error is without merit.
{¶6} The third assignment of error is that the trial court erred when it
determined that Melissa’s Spectra and Ohio Casualty stocks were part of her
brokerage account. Evidence was presented that Melissa had a brokerage account
that included stock in Ohio Casualty Corporation, Spectra Energy, and Duke Energy.
Although Melissa testified that she had opened the account prior to her marriage to
Virgil, the trial court ordered that $286.17 that remained in the account be
considered marital property because income from Melissa’s photography business
had been added to the brokerage account during the marriage.
{¶7} Virgil argued that, in addition to the brokerage account, Melissa had
separate stock in Spectra and Ohio Casualty that should have been included as
marital property. Virgil contended that two statements from 2007 showed that
Melissa had different amounts of Spectra and Ohio Casualty stock than were in her
brokerage account. But Melissa testified that she had not purchased stock separately
from the account. No evidence of the stock in 2009 was presented. We conclude
that the trial court’s finding that Melissa did not hold Spectra and Ohio Casualty
stock separately from her brokerage account was not against the manifest weight of
the evidence.3 The third assignment of error is overruled.
2 Berish v. Berish (1982), 69 Ohio St.2d 318, 319, 432 N.E.2d 183.
3 See C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} In his fourth assignment of error, Virgil asserts that the trial court
abused its discretion by failing to make an equitable division of property. He points
to several conclusions by the court that he claims were inequitable.
{¶9} First, he asserts that Melissa was allowed to keep $4,000 of rent from
the Reily Avenue home that was Virgil’s share of the rent. But there was no evidence
that these funds still existed, and the court credited Virgil’s spousal support with the
$4,000.
{¶10} Virgil also asserts that he was made responsible for all of the marital
debt. The evidence did show that Virgil had made payments toward the parties’ joint
credit cards prior to the de facto termination date. The trial court credited Virgil
with the amount that he had paid toward the credit cards and the support payments
that he had made to Melissa prior to the de facto termination date, when it
determined that Virgil did not owe any further spousal support. As part of the
property settlement, Virgil was ordered to pay $6,751 that remained on a Disney
credit card, but he was credited with that amount when the court determined the
final property settlement. After crediting Virgil with having paid $6,751 of marital
debt, the trial court held that Melissa owed Virgil $4,572 to equalize the division of
property. We conclude that the trial court did not abuse its discretion in dividing the
marital property.
{¶11} In his fifth assignment of error, Virgil asserts that the trial court
abused its discretion when it awarded Melissa $17,000 in attorney fees. He first
contends that the trial court abused its discretion when it allowed Melissa to present
evidence in support of her attorney fees and refused to allow Virgil additional time to
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OHIO FIRST DISTRICT COURT OF APPEALS
obtain an expert witness. A trial court’s admission or exclusion of evidence is subject
to review under an abuse-of-discretion standard.4
{¶12} On the first day of the hearing, Melissa’s attorney sought to present
testimony about the reasonableness of Melissa’s attorney fees. When Virgil’s counsel
told the court that he had not seen the fee statement or the accompanying affidavit of
Melissa’s counsel, the trial court continued the issue of attorney fees for two days to
allow counsel to review the statement. Two days later, when the issue was addressed
again, Virgil’s counsel told the court that he would like time to retain an expert
witness to testify about the reasonableness of 26.6 hours of time that was reportedly
spent preparing the initial complaint for divorce. Rather than allowing counsel the
additional time to retain an expert, the trial court excluded from consideration the
26.6 hours. We conclude that this was an appropriate sanction for failing to disclose
the attorney-fees statement prior to the hearing, and that the trial court did not
abuse its discretion when it did not grant Virgil a further continuance.
{¶13} Virgil also asserts that the trial court erred when it determined that
Virgil should pay $17,000 toward Melissa’s attorney fees. We review the court’s
decision to award attorney fees for an abuse of discretion.5 In her written closing
argument, Melissa requested that Virgil be ordered to pay attorney fees in the
amount of $15,166.50, which included $2,000 for the preparation of written closing
arguments that had been requested by Virgil. In its entry, the trial court found that
Melissa’s requested amount of $15,000 for presentation of the case was reasonable.
But then the court went on to state, “Further, the Court indicated that the allowance
for the written closing as requested by Husband and opposed by Wife would result in
4See State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343.
5 Zerbe v. Zerbe, 1st Dist. Nos. C-040435 and C-040036, 2005-Ohio-1180, ¶3. See, also, R.C.
3105.73.
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the award of fees to Wife. Wife incurred an additional $2,000 in the preparation of
written closing arguments. Given the disparity in income and the length of time this
matter has been pending, it is equitable to award Wife with attorney fees. Wife is
awarded $17,000 in attorney fees from Husband.” We conclude that the trial court
did not abuse its discretion when it decided to award attorney fees to Melissa. But it
appears that the trial court added $2,000 for the written closing argument to the
amount requested by Melissa, even though that amount had already been included in
the fee request. Therefore, we conclude that the trial court erred when it awarded
$17,000 in attorney fees instead of $15,000. The fifth assignment of error is well
taken.
{¶14} In his final assignment of error, Virgil contends that the trial court
erred when it denied his motion to withdraw a stipulation related to his retirement
account. We review the trial court’s refusal to allow Virgil to withdraw the
stipulation for an abuse of discretion.6
{¶15} On the first day of the hearing, the parties submitted stipulations that
were incorporated into the trial court’s findings of facts and conclusions of law. As
part of that submission, Virgil stipulated that he had a retirement account from his
past employment with Northwest Airlines. He further stipulated that Melissa should
receive 50% of the balance of the account as of the date of the decree and any
appreciation, growth, depreciation, or loss from her share until the date that the
balance was actually divided. On the second day of the hearing, Virgil made an oral
motion to set aside the stipulation. He argued that he had meant to stipulate that
Melissa should receive 50% of the account as of the date of their separation, not the
date of the decree. But the stipulation clearly stated that the balance would be
6 Beagle v. Beagle, 10th Dist. No. 07AP-494, 2008-Ohio-764, ¶45.
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OHIO FIRST DISTRICT COURT OF APPEALS
divided as of the decree date. It appears that Virgil changed his mind after realizing
that the amount of the balance was greater than he had first thought. We conclude
that the trial court did not abuse its discretion in denying Virgil’s request to
withdraw the stipulation. The final assignment of error is without merit.
{¶16} Because the trial court erred when it awarded $17,000 to Melissa for
attorney fees, we modify that part of the judgment to reflect an award of $15,000. In all
other respects, the judgment of the trial court is affirmed.
Judgment affirmed as modified.
H ENDON and F ISCHER , JJ., concur.
Please Note:
The court has recorded its own entry this date.
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