[Cite as Moore v. Moore, 2013-Ohio-5649.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
REBECCA MOORE, : OPINION
Plaintiff-Appellant/ :
Cross-Appellee,
CASE NOS. 2012-P-0136
- vs - : and 2012-P-0138
RANDALL MOORE, et al., :
Defendant-Appellee/ :
Cross-Appellant.
Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations
Division, Case No. 10 DR 439.
Judgment: Affirmed.
Gregory J. Moore, 55 Erieview Plaza, 5th Floor, Cleveland, OH 44114 (For Plaintiff-
Appellant/Cross-Appellee).
David L. Engler, 839 Southwestern Run, Youngstown, OH 44514 (For Defendant-
Appellee/Cross-Appellant).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant and cross-appellee, Rebecca Moore, and defendant-
appellee and cross-appellant, Randall Moore, appeal the Judgment Entry of Divorce,
rendered by the Portage County Court of Common Pleas, Domestic Relations Division.
The issues before this court are whether a residence should be deemed marital
property, where the contract of sale is entered into prior to marriage but payment is
made after marriage; whether temporary spousal support should be awarded based on
the disparity of the parties’ incomes despite the short duration of the marriage; whether
a partial award of attorney fees is merited based on a party’s conduct in contempt of
court orders; and whether temporary spousal support should be awarded where a
spouse’s financial situation improved during the course of the marriage. For the
following reasons, we affirm the judgment of the court below.
{¶2} On September 1, 2010, Rebecca Moore filed a Complaint for Divorce
against Randall Moore and IDS (Randall’s business interest).
{¶3} On October 1, 2010, Randall filed his Answer and Counterclaim for
Divorce.
{¶4} On November 5, 2010, a Magistrate’s Order was issued, requiring Randall
to pay temporary spousal support in the amount of $2,000 per month, commencing
November 1, 2010.
{¶5} On December 16, 2011, April 6, 2012, and June 15, 2012, the final
contested hearings on the merits were held.
{¶6} On September 21, 2012, the domestic relations court issued its Judgment
Entry (Final Decree of Divorce). The court made the following findings: The parties
married on October 11, 2008, and have become incompatible. No children were born
as issue of the marriage. Prior to the marriage, the parties entered into a binding
Statement and Agreement of Pre-marital Assets and Debts/Obligations. The
termination date of the marriage was set as April 6, 2012 (the date of the second
contested hearing).
{¶7} The domestic relations court ordered Randall to pay $4,000 in retroactive
spousal support for the months of October and November 2010, and an additional
$4,000 in unpaid spousal support for the months of May and June 2012. Randall’s
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spousal support obligation was terminated, effective June 30, 2012. The court ordered
the parties to “consult with a professional tax preparer to determine the most
advantageous way to file their 2011 income tax returns,” and to “equally share in the
total of their refunds or liabilities as determined by the tax preparer.” Randall was
ordered to contribute $1,000 toward Rebecca’s attorney fees. Apart from this
contribution, each party was held responsible for his or her own attorney fees.
{¶8} On October 19, 2012, Rebecca filed a Notice of Appeal (11th Dist. No.
2012-P-0136).
{¶9} On October 22, 2012, Randall filed a Notice of Cross-Appeal (11th Dist.
No. 2012-P-0138).
{¶10} On December 21, 2012, this court consolidated the appeals on Randall’s
motion.
{¶11} On appeal, Rebecca raises the following assignments of error:
{¶12} “[1.] The trial court erred and/or abused its discretion in its decision
relating to Rainbow’s End and Bonnie Lane Residences.”
{¶13} “[2.] The trial court erred and/or abused its discretion in that its judgment
entry is incomplete and fails to divide property, debts, and other issues.”
{¶14} “[3.] The trial court erred and/or abused its discretion in its determination
of prospective spousal support.”
{¶15} “[4.] The trial court erred and/or abused its discretion in failing to issue
orders relating to contempt for Randall’s cancellation of health insurance and
reimbursement to Rebecca for the amounts she had to pay due to Randall’s conduct.”
{¶16} “[5.] The trial court erred and/or abused its discretion in its award for
attorney fees and litigation expenses.”
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{¶17} “[6.] The trial court decisions [sic] are against the manifest weight of the
evidence.”
{¶18} On cross-appeal, Randall raises the following assignment of error:
{¶19} “[7.] The trial court erred by abusing their [sic] discretion in determining the
award of spousal support.”
{¶20} In her first assignment of error, Rebecca contends that the domestic
relations court erred by not awarding her a share of the proceeds from the sale of the
residence at 333 Rainbows End, Aurora, Ohio.
{¶21} “In divorce proceedings, * * * the court shall divide the marital and
separate property equitably between the spouses.” R.C. 3105.171(B). “A trial court has
broad discretion in making divisions of property in domestic cases.” Middendorf v.
Middendorf, 82 Ohio St.3d 397, 401, 696 N.E.2d 575 (1998), citing Berish v. Berish, 69
Ohio St.2d 318, 319, 432 N.E.2d 183 (1982). “A trial court’s decision will be upheld
absent an abuse of discretion.” Id., citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131,
541 N.E.2d 597 (1989).
{¶22} The Statement and Agreement of Pre-marital Assets and
Debts/Obligations, entered into by the parties, prior to their marriage, on October 7 and
8, 2008, provides in relevant part:
{¶23} Randall J. Moore (husband) and Rebecca S. Guthlein (wife) * * *
agree * * * that the property listed in Exhibits A and B attached, is an
accurate statement of the value of their respective pre-marital assets, and
that neither party shall obtain any right[,] title or interest of any kind in and
to the value of the premarital property of the other * * * by virtue of the
parties’ marriage nor by virtue of any use or occupancy of that property * *
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*. However, any appreciation to any and all the asset values listed in
Exhibits A and B attached as well as any assets acquired by the parties
during their marriage are presumed to be post-marital assets and
therefore community property, and shall be divided equally in the event of
a termination of the marriage * * *. However, as each is presumed by this
Agreement to be sole owner of any property he or she owns prior to the
marriage, joint use of that property does not give rise to joint ownership,
unless the parties agree otherwise in writing. * * * Neither party shall
have the right to reimbursement for any contributions made from his or her
separate property toward the acquisition of community or joint property
and each party hereby expressly waives any such right.
The subject property, 333 Rainbows End, is not listed in the Exhibits attached to the
Agreement.
{¶24} On October 8, 2008, Randall entered into a Land Installment Contract for
the purchase of 333 Rainbows End. The sole “buyer” in the Land Contract is identified
as: “RANDALL J. MOORE, presently a divorced and non remarried man.” The Land
Contract provided that Randall would make the initial down payment for the purchase
before the date of possession, fixed as November 11, 2008.
{¶25} As noted above, the parties married on October 11, 2008. Subsequent to
the marriage, Randall made the initial down payment with funds obtained from a line of
credit against Randall’s equity in a residence at 315 Bonnie Lane, Aurora, Ohio. The
equity in the Bonnie Lane property was identified in the parties’ prenuptial Agreement as
Randall’s separate property.
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{¶26} The Rainbows End property was sold during the pendency of the divorce
proceedings.
{¶27} Rebecca contends that the proceeds from the sale of 333 Rainbows End
are marital property subject to equitable division. Rebecca’s claim is based on the
following arguments: the Rainbows End property is not identified in the prenuptial
Agreement; the down payment was made, the property occupied, and title transferred
during the course of the marriage; the prenuptial Agreement provides that there shall be
no reimbursement for contributions made from separate property for the acquisition of
marital property; and Randall sold the Rainbows End property during the divorce
proceedings contrary to court order.
{¶28} Rebecca’s arguments fail to convince this court that the domestic relations
court abused its discretion by not awarding her a share of the proceeds from the sale of
333 Rainbows End. As noted by the court, Randall entered the purchase agreement as
a “divorced and not remarried man,” prior to his marriage with Rebecca. The fact that
the property is not identified in the prenuptial Agreement is not determinative, inasmuch
as that Agreement did not purport to provide an exclusive list of all premarital assets.
Rather, the Agreement presumes that each party is the “sole owner of any property he
or she owns prior to the marriage,” not just the property identified in the Exhibits. The
Agreement further provided that joint use or occupancy of separate property will not
convert that property into marital property. Since the Rainbows End property remained
Randall’s separate property, the provision against reimbursement for contributions
toward the acquisition of marital property is not relevant. Finally, Rebecca provides no
legal authority for the proposition that the acquisition or purchase of real estate does not
occur until all executory portions of the purchase agreement are fulfilled.
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{¶29} Rebecca also claims a share of the “appreciation” of the Bonnie Lane
property by virtue of the “pay-down of the liabilities associated with the Bonnie Lane
residence which occurred during the marriage.” We reject this argument, as any
increase in Randall’s equity in 315 Bonnie Lane is distinct from the property’s
appreciation, i.e., its increase in value. Black’s Law Dictionary 110 (8th Ed.2004).
Moreover, Rebecca did not make a claim against the appreciation of the Bonnie Lane
property in the proceedings below and did not introduce evidence of appreciation.
{¶30} The first assignment of error is without merit.
{¶31} In her second assignment of error, Rebecca claims the domestic relations
court erred by not fully dividing the marital estate. Rebecca claims the court failed to
divide a washer and dryer in which she claimed an interest. We find no error. The only
testimony regarding the washer and dryer given at the hearings was that they were
located at the Bonnie Lane property, which, by stipulation, was acknowledged to be
Randall’s separate property.
{¶32} Rebecca also claims that the domestic relations court should have
awarded her a 2012 Audi, which Randall testified to having recently purchased. During
the course of the proceedings, Randall was ordered to allow Rebecca to use a 2009
Honda Accord, which was identified as Randall’s separate property according to the
parties’ prenuptial Agreement. The Agreement also identified a 2005 Hummer as
Randall’s separate property. For the first sixteen months of the divorce proceedings,
Rebecca used the Honda while Randall paid the car note and insurance. In January
2012, Randall took possession and disposed of the Honda contrary to court order.
Again we find no error. The Honda and the Hummer were Randall’s separate property,
and the court was under no obligation to divide them. Moreover, Randall paid Rebecca
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the sum of $1,500 in compensation for the use of the Honda and $500 in related
attorney fees. With respect to the Audi, Randall acquired this vehicle after the parties
separated, but before the termination date of the marriage. Rebecca made no claim
against the Audi during the course of the proceedings, and has, thus, waived the issue
on appeal. Dolan v. Dolan, 11th Dist. Trumbull Nos. 2000-T-0154 and 2001-T-0003,
2002-Ohio-2440, ¶ 10.
{¶33} Lastly, Rebecca argues that “the trial court should order the parties to
meet and file an amended [tax] return which maximizes the tax benefits for both parties
for the year 2011 and to divide the tax refund.” In the Final Decree of Divorce, the court
ordered the parties to consult with a professional tax preparer to determine the most
advantageous way of filing the 2011 returns and to equally divide any refund/liability.
Rebecca’s argument on appeal suggests that the court’s order was not complied with
rather than that it was erroneous. Accordingly, there is no basis for disturbing the
court’s judgment.
{¶34} The second assignment of error is without merit.
{¶35} In the third assignment of error, Rebecca asserts the domestic relations
court erred in its award of spousal support.
{¶36} “In divorce and legal separation proceedings, upon the request of either
party and after the court determines the division or disbursement of property * * *, the
court of common pleas may award reasonable spousal support to either party. During
the pendency of any divorce, or legal separation proceeding, the court may award
reasonable temporary spousal support to either party.” R.C. 3105.18(B).
{¶37} “In determining whether spousal support is appropriate and reasonable,
and in determining the nature, amount, and terms of payment, and duration of spousal
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support, which is payable either in gross or in installments, the court shall consider all of
the following factors: (a) The income of the parties * * *; (b) The relative earning abilities
of the parties; (c) The ages and the physical, mental, and emotional conditions of the
parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; * * *
(g) The standard of living of the parties established during the marriage; (h) The relative
extent of education of the parties; (i) The relative assets and liabilities of the parties * * *;
* * * [and] (n) Any other factor that the court expressly finds to be relevant and
equitable.” R.C. 3105.18(C). “The trial court is not required to comment on each
statutory factor; the record need only show that the court considered the statutory
factors when making its award.” Komes v. Komes, 11th Dist. Lake No. 2012-L-086,
2013-Ohio-2140, ¶ 21.
{¶38} The propriety of a domestic relations court’s award of spousal support is
reviewed under the abuse of discretion standard. Riley v. Riley, 11th Dist. Ashtabula
No. 2012-A-0037, 2013-Ohio-1604, ¶ 14.
{¶39} In the present case, Randall was ordered to pay $2,000 a month for
temporary spousal support, commencing in November 2010 and terminating in June
2012, for a total of $40,000 over twenty months.
{¶40} Rebecca argues the amount of spousal support awarded was inadequate
given the disparity in the parties’ earning abilities, retirement benefits, and in
consideration of the parties’ “opulent” lifestyle during the course of the marriage. At the
time of the Final Decree of Divorce, Randall was earning $150,000 per year while
Rebecca was earning $20,000. Randall had retirement accounts worth in excess of
$250,000 while Rebecca’s retirement assets were less than $1,500.
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{¶41} We find no abuse of discretion. Although there is a significant disparity in
the parties’ incomes and retirement accounts, they were married for less than two years
before separation and no children were born of the marriage. Rebecca has suffered no
detriment to her earning ability as a result of her marriage to Randall, despite her claim
that she was earning more as an assistant manager at Starbucks prior to the marriage
than she is now as a preschool teacher. Rebecca has benefited from a temporary
award of spousal support, essentially doubling her income for a length of time
comparable to the duration of the marriage before separation. Finally, Rebecca agreed
that Randall’s retirement accounts would remain his separate property as part of the
prenuptial Agreement. To award her spousal support as compensation for the disparity
in retirement savings would undermine the purpose of the prenuptial Agreement.
{¶42} The third assignment of error is without merit.
{¶43} In the fourth assignment of error, Rebecca argues the domestic relations
court should have awarded her compensation for Randall’s violation of the court order
that he provide health insurance for her and her children from a prior marriage.
{¶44} Following Rebecca’s filing of the Complaint for Divorce, Randall was
ordered to maintain Rebecca, and her two children from an earlier marriage, on his
insurance. Randall complied with the domestic relations court’s order through
November 2011, when he removed Rebecca and her children. Thereafter, Rebecca
paid for her own insurance at the rate of $244.36 per month.
{¶45} In its Final Decree of Divorce, the domestic relations court acknowledged
that Randall “terminated Plaintiff-Wife’s coverage from his health insurance plan,
causing her to incur additional attorney fees.” The court decided to compensate
Rebecca through an award of attorney fees, as discussed in the following assignment of
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error. It is within the court’s discretion to decide how it addresses Randall’s contempt of
its orders. In the present case, we find no abuse of discretion, noting that Rebecca
benefitted from Randall paying the insurance for her two children from a prior marriage
for a period of one year.
{¶46} The fourth assignment of error is without merit.
{¶47} In the fifth assignment of error, Rebecca argues the domestic relations
court’s award of $1,000 in attorney fees constitutes an abuse of discretion in light of her
total fees in the amount of $19,000 and Randall’s contemptuous conduct throughout the
proceedings.
{¶48} “In an action for divorce * * *, a court may award all or part of 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.”
R.C. 3105.73(A).
{¶49} “[A]n award of attorney fees is within the sound discretion of the trial
court.” Rand v. Rand, 18 Ohio St.3d 356, 359, 481 N.E.2d 609 (1985), citing Cohen v.
Cohen, 8 Ohio App.3d 109, 111, 456 N.E.2d 581 (11th Dist.1983).
{¶50} Rebecca cites to the following instances of Randall’s conduct as entitling
her to an award of all attorney fees incurred in the course of the litigation: failure to
timely pay his support obligation and repeated efforts to terminate and/or modify the
obligation; depriving her of the use of vehicles contrary to court order; sale of the
Rainbows End property contrary to court order; and the termination of her and her
children’s medical insurance contrary to court order.
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{¶51} Randall counters that Rebecca is responsible for the length and the cost
of the divorce proceedings in that two of her original attorneys were disqualified during
the course of the proceedings; her attorneys caused the appointment of a visiting judge;
and her attorneys repeatedly continued, interrupted and delayed hearings.
{¶52} We note that after Randall deprived Rebecca of the use of the 2009
Honda, the domestic relations court ordered him to pay $500 toward Rebecca’s attorney
fees. In the Final Decree of Divorce, the court ordered him to pay $1,000 toward her
attorney fees in compensation for the termination of her and her children’s health
insurance.
{¶53} In light of the record before this court, which indicates that both parties’
conduct contributed to the length and cost of the proceedings, we defer to the domestic
relations court’s judgment that each party should bear the cost of his or her own
representation, which costs are roughly equal.
{¶54} The fifth assignment of error is without merit.
{¶55} In the sixth assignment of error, Rebecca contends that the domestic
relations court’s decisions are against the manifest weight of the evidence. Rebecca
does not, however, identify any specific finding of the court that is against the weight of
the evidence, but, rather, “incorporates herein the facts, law and argument set forth
above as if fully rewritten.” Accordingly, we find no error for the reasons set forth above.
{¶56} The sixth assignment of error is without merit.
{¶57} In his sole assignment of error on cross-appeal, Randall argues the
domestic relations court erred in its award of temporary spousal support, based on a
decision to fix April 6, 2012, the date of the second contested hearing, as the
termination date of the marriage.
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{¶58} The term “[d]uring the marriage” means “the period of time from the date
of the marriage through the date of the final hearing in an action for divorce or in an
action for legal separation.” R.C. 3105.171(A)(2)(a). “If the court determines that the
use of either or both of the dates specified in division (A)(2)(a) of this section would be
inequitable, the court may select dates that it considers equitable in determining marital
property. If the court selects dates that it considers equitable in determining marital
property, ‘during the marriage’ means the period of time between those dates selected
and specified by the court.” R.C. 3105.171(A)(2)(b).
{¶59} A trial court enjoys broad discretion in determining the dates constituting
the duration of the marriage. Berish, 69 Ohio St.2d at 319-320, 432 N.E.2d 183.
{¶60} Randall contends the termination date of the marriage should be July 7,
2011, as the original date scheduled for final hearing. Randall asserts that Rebecca
and her attorneys are responsible for the continuation of this hearing and the thirteen-
month delay in completing the proceedings.
{¶61} The docket reveals that the original hearing date of June 17, 2011, was
continued on motion of Rebecca’s counsel, due to a scheduling conflict. The matter
was rescheduled for July 7, 2011, before a magistrate of the domestic relations court.
At this hearing Rebecca’s counsel raised the issue of a conflict of interest with the
domestic relations court judge. The magistrate noted that Rebecca’s counsel was
aware of the alleged conflict prior to the scheduled hearing dates. Randall’s counsel
offered to waive the conflict but Rebecca’s counsel insisted that it could not be waived.
As a result, the hearing did not go forward and a visiting judge was appointed to hear
the case.
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{¶62} The docket further reveals that on July 7, 2011, Randall discharged his
trial counsel and that substitute counsel did not enter an appearance until July 25, 2011.
{¶63} Thereafter, the proceedings were further delayed by the filing of various
motions, including motions to terminate the award of temporary spousal support,
motions for contempt occasioned by Randall’s violation of court orders, a motion to
remove plaintiff’s counsel for conflict of interest, and further motions for continuances.
{¶64} In light of the particular facts of the underlying case, the recognition that
both parties bear some responsibility for the delay in resolving the proceedings, and
Randall’s repeated disregard for orders of the lower court, we find no abuse of
discretion in fixing April 6, 2012, as the termination date of the marriage.
{¶65} The sole assignment of error on cross-appeal is without merit.
{¶66} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas, Domestic Relations Division, terminating the parties’ marriage, is
affirmed. Costs to be taxed against the parties equally.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
_________________________
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
{¶67} I write separately regarding Rebecca’s first assignment of error,
concerning the properties at 333 Rainbows End and 315 Bonnie Lane. Rebecca
contends that the proceeds from the sale of the former are marital property, subject to
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equitable division; and, that she is entitled to a share of the appreciation in value of the
latter, due to pay-down in the liabilities associated with it during the marriage.
{¶68} By the prenuptial agreement in this case (the validity of which the parties
stipulated to in the trial court) each party retained as separate property the “value” of
their premarital assets. Randall listed his equity in the 315 Bonnie Lane as his separate
premarital asset. The prenuptial agreement was signed by the parties October 7, 2008,
and October 8, 2008. Also, on October 8, 2008, Randall signed the land installment
contract regarding 333 Rainbows End. The parties were married October 11, 2008.
Randall did not make a down payment on the land installment contract until November
2008.
{¶69} Pursuant to R.C. 5313.01:
{¶70} “‘(A) “Land installment contract” means an executory agreement which by
its terms is not required to be fully performed by one or more of the parties to the
agreement within one year of the date of the agreement and under which the vendor
agrees to convey title in real property located in this state to the vendee and the vendee
agrees to pay the purchase price in installment payments, while the vendor retains title
to the property as security for the vendee’s obligation.’” Blue Ash Bldg. & Loan Co. v.
Hahn, 20 Ohio App.3d 21, 24 (1st Dist.1984).
{¶71} Rebecca’s argument on appeal, as in the trial court, is that ownership of
the property did not transfer until title to 333 Rainbows End transferred, which occurred
during the marriage, thus rendering the house marital property.
{¶72} This is incorrect. The lead case on the subject appears to be the First
District’s decision in Hahn, supra. The First District concluded that the vendee in a land
installment contract becomes an equitable owner of the subject property when the
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contract is entered. Id. Hahn has been widely cited by the courts of appeals of this
state, including the Eleventh District. Craft v. Edwards, 11th Dist. Ashtabula No. 2007-
A-0095, 2008-Ohio-4971, ¶23. Randall became an equitable owner of 333 Rainbows
End October 8, 2008, when he entered the land installment contract for its purchase.
Thus, he was an owner of the property three days prior to his marriage with Rebecca,
and the house was his separate property. Since he did not gain any monetary equity in
the property until November 2008, when he made the down payment on it, he was not
required to list it in the assets named in the prenuptial agreement, which spoke in terms
of value.
{¶73} Regarding the 315 Bonnie Lane property, the majority notes that Rebecca
did not make any claim against its appreciation in the trial court, and did not introduce
any evidence on the subject. I agree. I disagree with the majority’s other conclusion
that any pay down of the property’s liabilities during the marriage (resulting in an
increase in Randall’s equity), cannot be considered an appreciation in its value, or
marital property, as a matter of law. Under proper circumstances either or both of these
scenarios can occur. See, e.g., Lowe v. Lowe, 4th Dist. Pickaway No. 10CA30, 2011-
Ohio-3340, ¶30-35. But it was Rebecca’s burden to show this in the trial court, and she
did not do so.
{¶74} I respectfully concur.
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Moore v. Moore
Combined Opinion