Planey v. Planey

[Cite as Planey v. Planey, 2010-Ohio-1295.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

SUZANNA PLANEY, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 08-MA-203
)
JOSEPH PLANEY, ) OPINION
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Domestic Relations Division of
Mahoning County, Ohio,
Case No. 1994DR00929

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiff-Appellee Attorney Charles E. Dunlap
3855 Starr’s Centre Drive, Suite A
Canfield, Ohio 44406

For Defendant-Appellant Joseph Planey, Pro-se
880 Squirrel Hill Drive
Youngstown, Ohio 44512

JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro

Dated: March 25, 2010
[Cite as Planey v. Planey, 2010-Ohio-1295.]
DONOFRIO, J.

{¶1} Defendant-appellant Joseph Planey appeals a decision of the
Mahoning County Common Pleas Court, Domestic Relations Division, entering a
Qualified Domestic Relations Order (QDRO) stemming from a 1995 divorce decree
concerning the distribution of plaintiff-appellee Suzanna Planey’s share of the marital
home and an IRA.
{¶2} The parties were married in 1968. Suzanna filed for divorce in 1994.
When the case was called to trial, Joseph told the court he believed his counsel was
ineffective and was going to dismiss him. The court allowed the dismissal but
cautioned Joseph that the case was going to proceed to trial that day whether he
dismissed his counsel or not. Joseph chose to proceed pro se at trial. During trial,
the parties reached an oral separation agreement, the agreement was read into the
record, and a final divorce decree was entered on September 1, 1995. (Docket 40.)
{¶3} The parties had various marital assets. The two biggest ones and the
subject of this appeal were the marital home and an IRA. The marital home was to
remain titled in both parties’ names, but effective September 9, 1995, Suzanna was
awarded sole and exclusive possession of the home and Joseph was ordered to
vacate the home that same day. The property was not to be sold until 1998. Until
then, neither party was to further encumber the home, which was still subject to a first
mortgage. Suzanna was responsible for the first-mortgage payment, real estate
taxes, homeowner’s insurance, and all utilities. Suzanna was also responsible for all
repair and maintenance costs of $50.00 and under. Costs exceeding $50.00 were to
be shared equally between the parties after Suzanna obtained Joseph’s consent for
the repair or maintenance.
{¶4} In April 1998, the parties were to list the house for sale with a realtor at
a mutually agreed upon price. After certain deductions, the net equity of the home
was to be divided equally between the parties.
{¶5} Concerning the sale of the marital home, Joseph was given the right to
buy out Suzanna’s equity in the property at fair market value. If they could not agree
on the fair market value, they were to each choose an appraiser who would together
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choose a third appraiser to assess the fair market value.
{¶6} The IRA was with Fidelity Trust Company and titled in Joseph’s name.
Pursuant to the divorce decree, each party was to receive one-half of the IRA
including interest that accrued from the date of the decree until the sale of the marital
home. Until the sale, Joseph was to withdraw $2,100.00 per month from the IRA and
give it to Suzanna. At the time of the sale, Suzanna was to receive the difference
between $93,500.00 and the sum of the monthly payments received from Joseph
plus fifty percent of the accrued interest. The decree stated that each party was to
sign a QDRO to effectuate the division of the IRA.
{¶7} On December 20, 1995, the trial court modified the divorce decree to
provide for $1,700.00 monthly withdrawals from Joseph’s IRA to Suzanna, upon a
motion filed by Suzanna’s attorney. (Docket 44, 48.)
{¶8} Joseph appealed the divorce decree arguing that he was forced to go to
trial without counsel because the trial court denied his motion for a continuance. On
appeal, this court noted that Joseph had only provided select portions of the trial
transcript, failing to provide the complete record as required by law. This court noted
that Joseph had no constitutional right to counsel in divorce proceedings and found
that the trial court had not abused its discretion in denying his motion for a
continuance based on the limited record before it. Planey v. Planey (Sept. 17, 1997),
7th Dist. No. 95-C.A.-213.
{¶9} Thereafter, the parties never prepared or filed the QDRO for the IRA,
nor did Joseph make the $1,700.00 monthly withdrawals for Suzanna. Also,
apparently sometime in the fall of 2004, the parties reached an agreement whereby
Suzanna sold her equity interest in the marital home to Joseph for $95,000. In
December 2004, Suzanna quit claimed her interest in the home to Joseph in
accordance with that agreement.
{¶10} In February 2005, AVCO Financial Services Loan Inc. (n.k.a.
CitiFinancial Mortgage) filed a foreclosure action against Joseph on the home. AVCO
Financial Services Loan Inc. v. Planey, Mahoning County Common Pleas Case No.
 -3-

2005CV00479. A decree of foreclosure was issued on October 5, 2005, with sale
pending.
{¶11} In January 2007, Joseph filed claims which were in substance claims of
civil conspiracy and intentional infliction of emotional distress against Suzanna,
Suzanna’s divorce attorney, a collection agent for CitiFinancial, CitiFinancial
Mortgage, and CitiFinancial Mortgage’s attorney. Planey v. Planey, Mahoning County
Common Pleas Case No. 2007CV00115.
{¶12} Back in the divorce action, Suzanna filed a motion for credit and motion
to approve a QDRO on February 16, 2007. (Docket 64.) Suzanna sought approval of
a QDRO so she could receive her portion of the IRA as designated by the divorce
decree. In addition, she sought an additional $95,000 from the IRA as a credit for her
interest in the marital home which she sold to Joseph. A hearing was held before a
magistrate on April 10, 2007. Joseph sought to delay the proceedings citing the civil
suit he had filed in the general division and the need to hire an attorney. Suzanna’s
counsel indicated that an additional ten days would be needed in order to obtain the
required information from Fidelity concerning the IRA by way of a subpoena. The
magistrate continued the matter to May 24, 2007, and stated that the matter would
not be stayed or delayed due to the other litigation absent a court order to do so.
(Docket 70.) Joseph filed a “response” to the magistrate’s order contending that he
was seeking a stay of the proceedings based only on the other litigation and not his
desire to seek counsel. (Docket 71.) He also took issue with the magistrate’s
impartiality, claiming that the magistrate was “rather aggressive” and in “opposition”
to him.
{¶13} On April 19, 2007, Joseph filed a motion to quash the subpoena issued
by Suzanna’s attorney to Fidelity Investments. (Docket 72.) In response, Fidelity
declined to forward the information regarding Joseph’s IRA. As the May 24, 2007
hearing date neared, Joseph was diagnosed with gout and sought a further
continuation of the proceedings. The magistrate reset the hearing for June 7, 2007.
(Docket 75.)
 -4-

{¶14} The hearing went forward on June 7, 2007, and the magistrate filed a
decision on July 6, 2007. (Docket 76.) The magistrate again denied Joseph’s motion
to stay. As for the marital home, the magistrate found based on the equitable
doctrine of partial performance that the parties reached an agreement evidenced by
Suzanna’s testimony and a writing between the parties that Joseph would pay
Suzanna $95,000 as payment for her share of the home. The magistrate denied
Joseph’s motion to quash the Fidelity subpoena. Fidelity was ordered to provide the
court with the information about the IRA to the court under seal so that only that
information that was necessary to issue the QDRO would be disclosed and all other
information about the IRA would remain confidential. Joseph filed objections to the
magistrate’s decision without filing a transcript of the proceedings in support. (Docket
77.) Later, Joseph filed another motion to quash the subpoena issued by Suzanna’s
attorney to Fidelity Investments. (Docket 78.) Also, he filed a renewed motion to stay
based on his filing for a writ of prohibition in this court in Planey v. Mahoning Cty.
Common Pleas Ct., 7th Dist. 07 MA 141. (Docket 79.)
{¶15} In the prohibition case before this court, Joseph sought to prohibit the
domestic relations division from proceeding any further on Suzanna’s motion to
approve a QDRO. Joseph again cited the civil action for damages he filed against
Suzanna and others in Planey v. Planey, Mahoning County Common Pleas Case No.
2007CV00115. This court later dismissed Joseph’s motion for a writ of prohibition
reasoning that the domestic relations court had jurisdiction to rule on Suzanna’s
motion and that no other court was about to entertain that motion. Planey v. Court of
Common Pleas of Mahoning Cty., 7th Dist. No. 07 MA 141, 2007-Ohio-7273.
{¶16} On August 20, 2007, a visiting judge for the domestic relations court
conducted a hearing on Joseph’s objections. Joseph again argued that the
proceedings should be stayed because of the other civil action and his filing for a writ
of prohibition in this court. The court denied the stay and proceeded to hear
arguments on Joseph’s objections to the magistrate’s decision. When it became
apparent that Joseph had failed to provide a transcript of the proceedings before the
 -5-

magistrate, the court overruled the objections and adopted the magistrate’s decision
in full. (Docket 82.) Joseph never appealed that decision.
{¶17} Joseph then filed an “urgent” motion to stay again based on his filing for
a writ of prohibition in this court and a motion for restraining order to prevent Fidelity
from releasing information about the IRA to Suzanna’s attorney. (Docket 83, 85.)
{¶18} On August 28, 2007, in response to the domestic relations court’s order
to comply with the subpoena, Fidelity sent the requested records to the court in an
encrypted CD-ROM. Due to the prohibition action Joseph filed in this court in Planey
v. Court of Common Pleas of Mahoning Cty., 7th Dist. No. 07 MA 141, Fidelity
withheld the password to decrypt the CD-ROM until a ruling from the court.
{¶19} On September 19, 2007, the domestic relations court’s magistrate held
a hearing to review the information provided by Fidelity concerning Joseph’s IRA in
order to issue the previously granted QDRO. Implicitly referencing the June 7, 2007
hearing before this same magistrate, Joseph complained that he was not made
aware by the court that the proceedings were recorded. The magistrate explained to
Joseph that all the hearings were recorded. He also reminded Joseph of the court’s
duty to remain fair and impartial, and because of that duty it was not permitted to give
him legal advice. The magistrate also explained that the rules of procedure applied
equally to those parties appearing with counsel and those proceeding pro se. The
court went on to advise Joseph that the writ action in this court had been dismissed
and denied his renewed motion to stay the proceedings. Joseph continued to lodge
numerous objections to the proceedings, take issue with protocol, and complain that
his rights and justice were not being well served by the magistrate. The magistrate
unsuccessfully attempted to contact Fidelity’s representative for the password to
decrypt the information on the CD-ROM. The magistrate concluded the proceedings
and reset the hearing to October 2, 2007, to provide time to coordinate with Fidelity’s
representative. (Docket 87.)
{¶20} On September 28, 2007, Joseph filed a complaint in this court seeking
a writ of mandamus against the domestic relations court’s magistrate, Suzanna and
 -6-

her attorney, and Fidelity. Joseph again sought to delay the QDRO proceedings until
his civil case (Planey v. Planey, Mahoning County Common Pleas Case No.
2007CV00115) was resolved. In response, the magistrate continued the QDRO
proceedings until this court resolved the mandamus action. (Docket 88.)
{¶21} On February 13, 2008, this court dismissed Joseph’s mandamus action.
This court reasoned that the domestic relations court was fully within its jurisdiction to
proceed on the QDRO and that Joseph had an adequate remedy at law via filing a
motion to set aside the domestic relations court magistrate’s order. Planey v.
Hepfner, 7th Dist. No. 07 MA 172, 2008-Ohio-711. Joseph appealed that decision to
the Ohio Supreme Court and requested a stay.
{¶22} In an entry filed February 26, 2008, and following dismissal of the
mandamus action, the visiting judge for the domestic relations court reset the QDRO
proceedings for May 27, 2008. (Docket 90.) On May 27th, Joseph filed a motion in
the domestic relations court to stay the proceedings based on his appeal of this
court’s decision in the mandamus action to the Ohio Supreme Court and the
attendant motion there to stay that decision. (Docket 91.) Joseph also filed a civil suit
in Mahoning County Common Pleas Court against the common pleas court itself, the
visiting judge, the domestic relations court judge, the magistrate, the chief magistrate,
this court, and Suzanna and her attorney. Joseph accused the court, including this
one, of prejudice against him and failing to protect his constitutional rights resulting in
the invasion of the “sanctity” of “his” IRA. He claimed that he had suffered irreparable
harm to his health and “mental status” which prevented him from working in gainful
employment to earn an income. Joseph sought five million dollars ($5,000,000) in
damages. Planey v. Mahoning Cty. Ct. of Common Pleas, Mahoning County
Common Pleas Case No. 2008CV2166.
{¶23} The QDRO proceedings commenced on May 27, 2008, before the
visiting judge. Suzanna’s counsel presented the court with a fax copy of an order
from the Ohio Supreme Court denying the stay request and dismissing his appeal.
Planey v. Hepfner, 118 Ohio St.3d 1414, 2008-Ohio-2488, 887 N.E.2d 352,
 -7-

reconsideration denied by 119 Ohio St.3d 1417, 2008-Ohio-3880, 891 N.E.2d 774.
The court accepted the copy (and later verified it with the Ohio Supreme Court by
phone) and denied Joseph’s motion to stay the QDRO proceedings. Joseph
complained that he had not received a copy of the Ohio Supreme Court’s order.
Throughout the proceedings he continually objected and complained about his
constitutional rights being invaded and not protected by the court. The court was able
to contact Fidelity’s representative and obtain the password to decrypt the CD-ROM.
Copies of the IRA documents were provided to both parties and the court allowed
each fourteen days to file a proposed QDRO. An entry memorializing the visiting
judge’s decision concerning the May 27th hearing was filed June 2, 2008. (Docket
92.)
{¶24} In yet another attempt to delay the issuance of the QDRO, Joseph filed
several motions, including a motion for injunction, response and motion to dismiss
the visiting judge’s June 3, 2008 decision, motion for a restraining order, and motion
to recuse. (Docket 93, 94, 95, 96.) Joseph also filed a motion with the Ohio Supreme
Court to disqualify the visiting judge that presided over the QDRO proceedings.
(Docket 97.) The Court later denied the motion and subsequent reconsideration
thereof, finding no basis for which to disqualify the visiting judge and that Joseph had
failed to provide any evidence that the visiting judge had violated his constitutional
civil rights. (Docket 98, 101.)
{¶25} On June 26, 2008, the visiting judge filed the QDRO ordering Fidelity to
transfer $188,500 plus fifty percent of the accumulated interest from July 10, 1995,
from Joseph’s IRA to Suzanna’s IRA. (Docket 100.) Joseph never appealed the
QDRO. On September 10, 2008, the visiting judge issued a supplemental entry
directing Fidelity to transfer a fixed amount of $229,500 from Joseph’s IRA to
Suzanna’s IRA. (Docket 105.) The entry also added language indicating that the
transfer would be a nontaxable event. Joseph timely appealed the supplemental
judgment entry to this court which is the subject of the present appeal.
{¶26} Joseph, still proceeding pro se, raises eleven assignments of error.
 -8-

They state respectively:
{¶27} “The Trial Court erred to the prejudice of Appellant by having ex parte
communication with Appellee without the permission of Appellant[.]”
{¶28} “The Trial Court erred to the prejudice of Appellant by making a ruling
that had not been served upon Appellant[.]”
{¶29} “The Trial Court erred to the prejudice of Appellant by allowing Appellee
to withhold the calculations for the IRA distribution[.]”
{¶30} “The Trial Court committed reversible error by allowing Appellee to
make false and misleading statements when the Trial Court had personal knowledge
that statements were false[.]”
{¶31} “The Judge of the Trial Court committed reversible error by not recusing
himself after being named a Co-Defendant in a related case[.]”
{¶32} “The Trial Court erred by having ex-parte communication with Appellee
Fidelity Investments and Risk Management without the permission of Appellant[.]
{¶33} “The Trial Court erred by their failure to issue requested timely findings
of fact with separate conclusions of law in support of its judgment[.]”
{¶34} “The Trial Court erred to the prejudice of Appellant by the
miscalculation of the amount of money that was available to Appellant[.]”
{¶35} “The Trial Court erred to the prejudice of Appellant by allowing Appellee
to invade Appellant’s IRA[.]”
{¶36} “The Trial Court failed to allow Appellant the credit in the amount of
$235,869.69 that was expended during the time Appellee chose to remain in the
family dwelling[.]
{¶37} “[T]he trial court failed to protect Appellant[’s] * * * civil and
constitutional rights[.]”
{¶38} A divorce decree is final and appealable even though the QDRO
implementing the judgment has not been entered yet. Wilson v. Wilson, 116 Ohio
St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16. Here, the court orders concerning the
division and distribution of the parties’ marital assets were entered on September 1,
 -9-

1995, and August 20, 2007 (Docket 40, 82). Joseph appealed the September 1,
1995 order and to the extent that his assignments of error are directed to that
decision, they are barred by the doctrine of res judicata.1
{¶39} Joseph never appealed the August 20, 2007 decision concerning
Suzanna’s credit for her share of the marital home and to the extent that his
assignments of error are directed to that decision, they are untimely.
{¶40} Accordingly, each of Joseph’s assignments of error is without merit.
{¶41} The judgment of the trial court is affirmed.

Vukovich, P. J., concurs.

DeGenaro, J., concurs.

1 When the trial court attempted to explain to Joseph the narrowness of the QDRO proceedings and
that the appeal from the divorce decree had been exhausted, Joseph acknowledged that he should
have pursued those issues then but did not because the parties were attempting to reconcile.
(05/27/2008 Hearing, Tr. 52.)