Snell v. Snell

[Cite as Snell v. Snell, 2014-Ohio-3285.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

DIANE L. SNELL JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 13CA80
DOUGLAS D. SNELL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Domestic Relations
Division Case No. 2011 DIV 0587

JUDGMENT: Affirmed in part; Reversed in part and
Remanded

DATE OF JUDGMENT ENTRY: July 16, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DIANE SNELL, PRO SE DOUGLAS D. SNELL, PRO SE
213 N. Main St. 7340 Garber Road
Butler, Ohio 44822 Bellville, Ohio 44813
Richland County, Case No. 13CA80 2

Hoffman, P.J.

{¶1} Defendant-appellant Douglas D. Snell appeals the August 6, 2013

Judgment Entry/Decree of Divorce entered by the Richland County Court of Common

Pleas, Domestic Relations Division. Plaintiff-appellee is Diane L. Snell.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant and Appellee were married on December 28, 1987, in Los

Angeles, California. Eight children were born as issue of the marriage, four of the

children were emancipated at the time of trial, and four were minors. Prior to the

marriage, the parties entered into a pre-nuptial agreement.

{¶3} On December 22, 2005, Appellee sought a domestic violence civil

protection order against Appellant, alleging Appellant not only physically, mentally, and

emotionally abused her, but also intimidated and threatened her. The trial court issued

an ex parte civil protection order on the same date. Following a full hearing, the trial

court issued a domestic violence civil protection order on January 17, 2006. The order

was modified on July 11, 2006, providing the parties with an opportunity to reconcile.

The parties reconciled for a period of time between July, 2006, and September, 2007, at

which point Appellee decided to leave Appellant as he allegedly once again began to

verbally abuse, harass, and intimidate her.

{¶4} The parties executed a separation agreement ("the Agreement") on

September 13, 2007. Appellee acknowledged she voluntarily signed the Agreement,

but claimed such was done under mental and emotional duress. She hoped Appellant

would leave her and the children alone if she signed the Agreement. Appellee filed a

second petition for domestic violence civil protection order on October 7, 2009. The trial
Richland County, Case No. 13CA80 3

court issued an ex parte civil protection order on the same date. Following a full

hearing, the trial court issued a domestic violence civil protection order on October 23,

2009.

{¶5} Appellee filed a complaint for divorce on May 24, 2011. Appellant filed

Defendant’s Motion- Property Division on December 22, 2011, and Defendant’s Action

filed May 23, 2012. The trial court conducted a hearing on the motions on May 31,

2012. Via Judgment Entry filed June 22, 2012, the trial court overruled Appellant’s

motions, noting it had also considered the Memorandum in Support and Motion for

Summary Judgment filed by Appellant on June 4, 2012. The trial court ruled the

Agreement would not be enforced. The trial court found, assuming arguendo, the

parties voluntarily entered into the Agreement, enforcement of such would not be in the

interest of justice or equity.

{¶6} The trial court conducted the final hearing over the course of four days.

Via Judgment Entry filed April 11, 2013, the trial court ordered Appellee be granted a

divorce from Appellant. The trial court adopted stipulations of the parties, ordered

Appellee to pay child support for two children, allocated the tax exemptions for

dependents, divided the marital assets and debts, and awarded Appellee attorney fees

in the amount of $2,500.00. The trial court found the parties’ prenuptial agreement was

not knowingly entered into by Appellee and was unconscionable; therefore, the trial

court would not enforce it. The trial court determined the duration of marriage was from

the date of marriage, December 28, 1987, to the date of final hearing, February 13,

2013. The trial court also found Appellant had not met his burden of proving $50,000 of

equity in the parties’ real estate was his separate property.
Richland County, Case No. 13CA80 4

{¶7} The trial court issued its final Judgment Entry/Decree of Divorce on

August 6, 2013.

{¶8} It is from the August 6, 2013 Judgment Entry/Decree of Divorce Appellant

appeals. Appellant sets forth the following as his “Statement of Assignments of Error

Presented for Review”:

{¶9} "A. AWARDING THE PLAINTIFF'S ATTORNEY, AND BURDENING THE

APPELLANT WITH, AND UNACCOUNTED FOR NEWLY CREATED DEBT OF

$2500.00 ATTORNEY FEES.

{¶10} "B. ORDERS CUSTODY-RESIDENCY (AND TAX EXEMPTIONS)

DIFFERENT THAN STIPULATIONS AND AGREEMENTS ON RECORD.

{¶11} "C. DENIES SEPARATION AGREEMENT, DENIES SUMMARY

JUDGEMENT [SIC] IN PROCEDURAL ERROR.

{¶12} "D. FAILS TO RETURN PREMARITAL SEPARATE PROPERTY TO THE

APPELLANT.

{¶13} "E. FAILS TO ACCOUNT FOR APPELLANT'S MARITAL DEBTS.

{¶14} "F. FAILS TO USE CORRECT VALUE FOR PARCEL #013.

{¶15} "G. FAILS TO USE THE PROPER SEPARATION DATE (MARRIAGE

ENDED DATE) THAT IS FAIR AND EQUITABLE.

{¶16} "H. FAILS TO USE THE PROPER AUTOMOBILE VALUES, AND

INCLUDES SEPARATE AUTOS IN MARITAL.

{¶17} "I. FAILS TO ISSUE A DECREE/JUDGEMENT [SIC] WITH ORDERS

THAT ARE FAIR AND EQUITABLE.
Richland County, Case No. 13CA80 5

{¶18} "J. FAILS TO ALLOW THE APPELLANT REPRESENTATION BY AN

ATTORNEY."

A

{¶19} In Subsection A of his assignment of error, Appellant takes issue with the

trial court ordering him to pay $2,500.00 of Appellee's attorney fees.

{¶20} R.C. 3105.73(A) governs the award of attorney fees and litigation

expenses in domestic relations cases and provides: “In an action for divorce * * * or an

appeal of that action, a court may award all or part of the reasonable attorney's fees and

litigation expenses to either party if the court finds the award equitable. In determining

whether an award is equitable, the court may consider the parties' marital assets and

income, any award of temporary spousal support, the conduct of the parties, and any

other relevant factors the court deems appropriate.”

{¶21} “An award of attorney fees in a domestic relations action is within the

sound discretion of the trial court and will not be reversed on appeal absent an abuse of

discretion.” McEnery v. McEnery, 10th Dist. No. 00AP–69, 2000 WL 1863370 (Dec. 21,

2000) at *3, citing Goode v. Goode, 70 Ohio App.3d 125, 134, 590 N.E.2d 439 (10th

Dist.1991).

{¶22} Upon our review of the record, we do not find the trial court abused its

discretion in ordering Appellant to pay a portion of Appellee's attorney fees. Appellant’s

actions caused considerable delay in the resolution of this matter.

{¶23} Subsection A is overruled.
Richland County, Case No. 13CA80 6

B

{¶24} In Subsection B, Appellant contends the trial court erred and abused its

discretion by failing to issue orders regarding custody and tax exemptions for

dependents pursuant to the parties’ stipulations.

{¶25} When reviewing a ruling pertaining to the allocation of parental rights, the

trial court is to be afforded great deference. Miller v. Miller, 37 Ohio St.3d 71, 523

N.E.2d 846 (1988). Thus, we will not reverse a child custody decision that is supported

by a substantial amount of competent, credible evidence absent an abuse of discretion.

Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178, syllabus, 49 Ohio St.3d 21, 550

N.E.2d 178 (1990).

{¶26} Appellant argues the parties stipulated custody and residency of three of

the four minor children would be with him, however, the trial court did not issue orders

accordingly. At the June 16, 2012 trial, the parties discussed the living arrangements of

the children. The parties agreed to a shared parenting plan with each party having

custody of two children. However, the parties’ minor son who was in Appellee’s custody

had recently moved into Appellant’s residence. The parties stipulated three of the four

children would reside with Appellant, and each party would have parenting time

pursuant to Local Rule 24. The parties’ stipulations were memorialized via Judgment

Entry filed April 11, 2013, which provides, in relevant part:

The parties shall share the parenting of the children. [T.S., C.S.

and E.S.] shall reside primarily with [Appellant]. [Appellee] shall have

parenting time pursuant to Local Rule 24 with [T.S., C.S. and E.S.]. [P.S.]
Richland County, Case No. 13CA80 7

shall reside primarily with [Appellee]. [Appellant] shall have parenting time

pursuant to Local Rule 24 with [P.S.]. * * *

{¶27} Via Judgment Entry filed August 6, 2013, the trial court adopted the

parties’ shared parenting plan as order of the court. With respect to the allocation of

parental rights and responsibilities, the shared parenting plan reads:

As provided by O.R.C. 3109.04, each party shall be deemed the

residential parent and legal custodian of the parties’ minor children, with

physical residence of the minor children alternating between the parties as

follows: The minor children [T.S. and P.S.] shall primarily reside with

[Appellee] and the minor children [C.S. and E.S.] shall primarily reside with

[Appellant]. Each parent is entitled to parenting time with the children not

in their primary care * * *.

{¶28} We find the trial court’s order relative to the allocation of parental rights

and responsibilities does not accurately reflect the parties’ stipulations. We vacate that

portion of the Judgment Entry/Decree of Divorce, and remand the matter to the trial

court to issue an order in accordance with the stipulations.

{¶29} We now turn to the portion of Appellant’s argument which addresses the

issue of the tax exemptions for dependents.

{¶30} We review a trial court's decision allocating tax exemptions for dependents

under an abuse of discretion standard. See Eickelberger v. Eickelberger, 93 Ohio

App.3d 221, 225–26, 638 N.E.2d 130 (1994), citing Hughes v. Hughes, 35 Ohio St.3d

165, 518 N.E.2d 1213 (1988). However, this discretion is both guided and limited by the

statutory requirements of R.C. 3119.82.
Richland County, Case No. 13CA80 8

{¶31} In the instant action, the trial court allocated the tax exemptions for three

of the four children to Appellee, and the exemption for the remaining child to Appellant.

{¶32} A review of the record does not affirmatively demonstrate the trial court

abused its discretion in allocating the tax dependency exemptions as it did. Primary

residency of the children is not the sole determinative factor. We note Appellee

received the tax exemptions only if she remained substantially current on her child

support obligation.

{¶33} Subsection B is sustained in part, and overruled in part.

C

{¶34} In Subsection C, Appellant challenges the trial court’s decision not to

enforce the parties’ separation agreement and failure to grant summary judgment in

Appellant’s favor on the issue.

{¶35} “A court may refuse to enforce a separation agreement if the agreement is

not fair and equitable at the time of signing.” Jarvis v. Jarvis, 9th Dist. No. 16618, 1994

WL 500887, *2 (Sept. 14, 1994). See also R.C. 3105.10(B)(2). Additionally, “[a]

separation agreement that is the product of duress will be held to be unenforceable.”

Quebodeaux v. Quebodeaux, 102 Ohio App.3d 502, 505, 657 N.E.2d 539 (9th

Dist.1995).

{¶36} The parties signed the Agreement of September 13, 2007. On December

22, 2011, Appellant filed a Motion – Property Division, asking the trial court to divide the

parties’ property pursuant to the Agreement. Appellant also filed a Memorandum in

Support and Motion for Summary Judgment on June 4, 2012. Again, Appellant asked

the trial court to enforce the property division set forth in the Agreement. The trial court
Richland County, Case No. 13CA80 9

conducted a hearing on the motions. Appellee testified she entered into the Agreement

voluntarily, but did so under mental and emotional duress, explaining she hoped the

parties’ children would not be put through unnecessary pain and drama, and that she

would not have to endure Appellant’s wrath.

{¶37} Via Judgment Entry filed June 22, 2012, the trial court found the

Agreement was not voluntarily entered into by the parties. The trial court noted

although Appellee admitted she "voluntarily" entered the Agreement, the court

determined it would not be in the interests of justice and equity to enforce it given the

coercive environment under which the Agreement was entered.

{¶38} We have reviewed the record related to the trial court’s review of the

Agreement, and conclude the trial court did not abuse its discretion by not enforcing the

Agreement.

{¶39} Subsection “C” is overruled.

D

{¶40} In Subsection D, Appellant challenges the trial court’s failure to award him

$50,000 as his separate property. Specifically, Appellant claims he had premarital cash

on deposit in the amount of $47,000, plus $3,000 in accrued interest, which the parties

used as a down payment on the marital residence.

{¶41} We review a trial court's classification of property as marital or separate

under a manifest weight of the evidence standard and will affirm if the classification is

supported by some competent, credible evidence. Taub v. Taub, 10th Dist. No.

08AP750, 2009-Ohio-2762, 2009 WL 1653823, ¶ 15. Valuing property involves factual

inquiries and also requires an appellate court to apply a manifest weight of evidence
Richland County, Case No. 13CA80 10

standard of review. Wright v. Wright (Nov. 10, 1994), Hocking App. No. 94CA02, 1994

WL 649271. An appellate court will not reverse a trial court's valuation if it is supported

by some competent, credible evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio

St.3d 77, 461 N.E.2d 1273.

{¶42} In its April 11, 2013 Judgment Entry, the trial court found the parties’

prenuptial agreement was not enforceable as Appellee had not knowingly entered into

it. The trial court noted Appellee had no knowledge Appellant had any significant

property at that time, and specifically found Appellee “did not know that [Appellant] had

$47,000 in cash on deposit.” In the same judgment entry, the trial court found Appellant

“has not met his burden of proving that $50,000 of equity in the parties’ real estate is his

separate property. He has not proven that he had premarital property in the amount of

$47,000. He has also not traced the same.”

{¶43} We find the aforementioned findings by the trial court to be facially

inconsistent. On one hand, the trial court refuses to enforce the prenuptial agreement

because Appellee was unaware Appellant had $47,000 in cash on deposit at the time of

their marriage, yet, on the other, the trial court finds Appellant did not prove he had

$47,000 of premarital property. Nevertheless, the trial court also concluded Appellant

failed to trace the claimed $47,000 premarital separate property. Appellant testified as

to same, but did not produce documentation in support. We find the trial court's

decision in this regard is not against the manifest weight of the evidence.

{¶44} Subsection D is overruled.
Richland County, Case No. 13CA80 11

E

{¶45} In Subsection E, Appellant asserts the trial court erred in its determination

and allocation of the parties’ marital debts.

{¶46} The standard for appellate review of a domestic relations court's division

of assets and debts is the abuse of discretion standard, which is set forth supra. In

allocating debts between the parties “the trial court must indicate the basis for its award

in sufficient detail to enable a reviewing court to determine that the award is fair,

equitable, and in accordance with the law.” Kaechele v. Kaechele (1988), 35 Ohio St.3d

93, 97, 518 N.E.2d 1197.

{¶47} Upon review of the record, we find no abuse of discretion in the trial

court’s allocation of debts.

{¶48} Subsection E is overruled.

F

{¶49} In Subsection F, Appellant challenges the $74,290 value the trial court

placed on Parcel #13. Appellant submits the Auditor appraised the parcel at $24,500.

{¶50} Although the trial court's division of property is reviewed under an abuse of

discretion standard, factual determinations such the value of the property subject to

division are reviewed under a manifest weight of the evidence standard. Brown v.

Brown, Pike County App. No. 02CA689, 2003–Ohio–304.

{¶51} In support of his position the trial court incorrectly valued Parcel #13,

Appellant presented a copy of the Richland County Auditor’s appraised revision placing

a value on the parcel of $24,500. This evidence was provided to the trial court by

Appellant through a supplemental memorandum filed April 3, 3013, following the final
Richland County, Case No. 13CA80 12

hearing, and after the parties had filed their respective written closing arguments. The

trial court struck the memorandum via Judgment Entry filed April 11, 2013.

{¶52} At the final hearing, Appellee presented evidence of the market value of

the parties’ four parcels. We find there was some competent, credible evidence to

support the value the trial court placed on Parcel #13.

{¶53} Subsection F is overruled.

G

{¶54} In Subsection G, Appellant maintains the trial court’s use of the final

hearing date rather than the separation date in determining the duration of the marriage

was inequitable as it resulted in a $15,459 error against him.

{¶55} The trial court must determine the beginning and ending date that defines

the duration of the marriage. “[T]he date of the final hearing is presumed to be the

appropriate termination date of the marriage unless the court, in its discretion, uses a de

facto termination.” O'Brien v. O'Brien, 8th Dist. Cuyahoga No. 89615, 2008–Ohio–1098,

¶ 40, citing R.C. 3105.171(A)(2). We will not reverse the trial court's decision absent an

abuse of discretion. Id. at ¶ 41.

{¶56} In the instant action, the trial court found the duration of the marriage to be

from December 28, 1987, through the final hearing date of February 13, 2013. In its

April 11, 2013 Judgment Entry, the trial court conducted an extensive analysis

comparing the resulting property division if it used the values of the parties’ assets and

debts using the date of separation as the end date of the marriage versus the values of

the parties’ assets and debts using the date of the final hearing as the end date. The

trial court concluded Appellant would actually receive $2,296 less in total marital and
Richland County, Case No. 13CA80 13

separate property if the separation date was used as the end date of the marriage. We

find no abuse of discretion.

{¶57} Subsection G is overruled.

H

{¶58} In Subsection H, Appellant takes issue with the values the trial court

assigned to the parties’ automobiles. Appellant claims the trial court used the highest

Blue Book value for each of the vehicles, which resulted in a total overvalue of

$29,700.00.

{¶59} Appellee presented the trial court with the NADA Blue Book values of the

parties’ vehicles. Appellant presented his own self-serving testimony regarding the

values of the vehicles.

{¶60} We cannot find, based upon the evidence presented, the trial court's

decision to accept the Blue Book value was against the manifest weight of the evidence.

{¶61} Subsection H is overruled.

I

{¶62} In Subsection I, Appellant asserts the cumulative effect of the trial court’s

numerous errors resulted in a final judgment entry/decree of divorce which was neither

fair nor equitable towards him.

{¶63} Pursuant to the cumulative error doctrine, which is usually presented in

criminal cases, a conviction will be reversed where the cumulative effect of errors in a

trial deprives the defendant of the constitutional right to a fair trial even though each

individual error by itself does not constitute cause for reversal. State v. Garner, 74 Ohio

St.3d 49, 656 N.E.2d 623 (1995).
Richland County, Case No. 13CA80 14

{¶64} Ohio Courts have found “the extension of the cumulative error doctrine to

civil cases is warranted where the court is confronted with several errors, which either

are harmless individually or have marginally prejudicial effects, but combine to require a

new trial.” Edge v. Fairview Hosp., 8th Dist. Cuyahoga No. 95215, 2011–Ohio–2148, ¶

46. However, we do not find the doctrine applicable here where there have not been

multiple errors.

{¶65} Subsection I is overruled.

J

{¶66} In Subsection J, Appellant submits he was denied a fair and unbiased

hearing because the trial court failed to permit Appellant to obtain counsel.

{¶67} We find a review of the record belies this assertion. The trial court

provided Appellant with ample opportunity to find counsel. The fact Appellant chose not

to procure representation does not equate to the trial court’s refusal to allow him to do

so.

{¶68} Subsection J is overruled.
Richland County, Case No. 13CA80 15

{¶69} The judgment of the Richland County Court of Common Pleas, Domestic

Relations Division, is affirmed in part, and reversed in part, and the matter remanded for

further proceedings consistent with this Opinion and the law.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur