Welly v. Welly

[Cite as Welly v. Welly, 2015-Ohio-4804.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY

JEFFREY R. WELLY,

PLAINTIFF-APPELLANT, CASE NO. 13-15-15

v.

THERESA J. WELLY, OPINION

DEFENDANT-APPELLEE.

Appeal from Seneca County Common Pleas Court
Domestic Relations Division
Trial Court No. 07-DR-0099

Judgment Affirmed

Date of Decision: November 23, 2015

APPEARANCES:

Charles R. Hall, Jr. for Appellant

Harold M. Hanna for Appellee
Case No. 13-15-15

PRESTON, J.

{¶1} Plaintiff-appellant, Jeffrey R. Welly (“Jeffrey”), appeals the April 9,

2015 judgment entry of the Seneca County Court of Common Pleas, Domestic

Relations Division, concluding that the increase in net value of two hog barns

during the marriage is marital property and ordering Jeffrey to pay defendant-

appellee, Theresa J. Welly (“Theresa”), “the sum of $174,660.00 as an equitable,

equal division of the parties’ marital property interest in the Hog Barns.” For the

reasons that follow, we affirm.

{¶2} The trial court issued a judgment entry of divorce on February 9,

2011. (Doc. No. 395). In it, the trial court stated, “It is ORDERED that the Hog

Barns are premarital property and is [sic] the Plaintiff’s separate property, and is

hereby awarded to the Plaintiff.” (Id.). Neither party appealed that judgment

entry.

{¶3} After the trial court filed its February 9, 2011 judgment entry, Theresa

hired new counsel who, two weeks later, filed a “motion to modify judgment or

for a new trial.” (Doc. No. 396). Among other things, Theresa argued that the

trial court failed to remedy deficiencies that this court identified in dismissing a

previous, 2008 appeal in this case, Third District Court of Appeals case No. 13-08-

45, concerning the valuation and division of the hog barns. (Id.). On February 28

and March 7, 2011, Jeffrey filed a memorandum in opposition to and Theresa filed

-2-
Case No. 13-15-15

a reply memorandum in support of Theresa’s “motion to modify judgment or for a

new trial,” respectively. (Doc. Nos. 399, 400). On March 30, 2011, the trial court

filed an entry concerning Theresa’s “motion to modify judgment or for a new

trial” and “grant[ed] a hearing on the limited issues [sic] of the ‘hog barns.’”

(Doc. No. 406).

{¶4} On June 1, 2012, Jeffrey filed a “motion to dismiss the pending hog

barn issue for failure to prosecute.” (Doc. No. 475). In that motion, Jeffrey

argued that the trial court should “dismiss the pending issue of the ‘hog barns’”

under Civ.R. 37(B)(2)(c) and 41(B)(1). (Id.). Theresa filed her memorandum in

opposition to Jeffrey’s motion on June 12, 2012. (Doc. No. 477). On August 30,

2012, the trial court denied Jeffrey’s motion to dismiss. (Doc. No. 491).

{¶5} On August 25, 2014, Jeffrey filed two motions. The first was a

“motion to dismiss defendant’s motion for new trial for hog barns.” (Doc. No.

557). In it, Jeffrey argued—as he did in his February 28, 2011 memorandum in

opposition to Theresa’s “motion to modify judgment or for a new trial”—that

Theresa’s disagreement with the trial court’s property division in the February 9,

2011 judgment entry of divorce is not a valid ground for granting a motion for a

new trial. (Id.). Jeffrey also argued in that motion that the trial court lacked

jurisdiction to modify the property division in its February 9, 2011 judgment entry

of divorce. (Id.). Jeffrey’s other August 25, 2014 motion was a “motion in limine

-3-
Case No. 13-15-15

regarding the defendant’s expert witness and exhibits for ‘hog barns’ and request

hearing [sic].” (Doc. No. 558). Jeffrey argued that the trial court should preclude

Theresa from relying on her appraiser, Robert C. Hunt (“Hunt”), at the hearing

because Hunt “failed to provide during his deposition any verifiable reliable,

scientific, technical, or other specialized information that would relate this [sic]

matter.” (Id. at 3). Jeffrey requested a hearing concerning his motion in limine.

(Id. at 5).

{¶6} On August 29, 2014, Theresa filed a “response to plaintiff’s motion to

dismiss” and a “response to plaintiff’s motion in limine.” (Doc. Nos. 560, 561).

{¶7} On September 3, 2014, the trial court filed an entry denying Jeffrey’s

August 25, 2014 motion to dismiss and motion in limine. (Doc. No. 563).

Concerning Jeffrey’s motion in limine, the trial court stated, “The Defendant

retained an expert and said expert is qualified and ready to testify at the September

8, 2014 [sic]. The Court will permit Robert C. Hunt to testify as an expert witness

in this matter.” (Id. at 2).

{¶8} A hearing before a magistrate was held on September 8, 2014

concerning “the limited issue of hog barns.” (Sept. 8, 2014 Tr. at 5).

{¶9} The magistrate filed her decision on October 22, 2014. (Doc. No.

570). In it, the magistrate concluded that “[t]he increase in net value of the hog

barns * * * is marital property” and recommended that the trial court award

-4-
Case No. 13-15-15

Theresa “an equitable share of the marital property interest in the Hog Barns in the

amount of $174,660.00.” (Id. at 9, 14).

{¶10} On October 31, 2014, Jeffrey filed objections to the magistrate’s

decision, followed, on December 11, 2014 with leave of court, by a supplemental

memorandum in support of his objections. (Doc. Nos. 573, 578). Theresa filed

responses to Jeffrey’s objections on November 17, 2014 and December 22, 2014.

(Doc. Nos. 576, 581).

{¶11} On February 11, 2015, the trial court filed a judgment entry

overruling Jeffrey’s objections and “affirm[ing]” the magistrate’s decision “in its

entirety.” (Doc. No. 582).

{¶12} On March 6, 2015, Jeffrey filed a notice of appeal of the trial court’s

February 11, 2015 judgment entry. (Doc. No. 583).

{¶13} On March 20, 2015, we dismissed Jeffrey’s appeal, Third District

Court of Appeals case No. 13-15-05, for lack of a final order because, by simply

adopting the magistrate’s decision, the February 11, 2015 judgment entry did not

comply with the trial court’s obligation to enter its own, independent judgment

determining the action.

{¶14} On April 9, 2015, the trial court issued the judgment entry that is the

subject of this appeal. (Doc. No. 586). In that entry, the trial court stated that “the

divorce was final as of February 9, 2011” because neither party appealed the trial

-5-
Case No. 13-15-15

court’s February 9, 2011 judgment entry of divorce. (Id. at 2). The trial court

concluded that the increase in net value of the hog barns during the marriage is

marital property and ordered, “The Plaintiff shall pay the Defendant the sum of

$174,660.00 as an equitable, equal division of the parties’ marital property interest

in the Hog Barns.” (Id. at 9).

{¶15} On May 1, 2015, Jeffrey filed his notice of appeal of the trial court’s

April 9, 2015 judgment entry. (Doc. No. 590). He raises nine assignments of

error. We will first address together Jeffrey’s first, second, third, and seventh

assignments of error, followed by his fourth and fifth assignments of error

together, followed by his sixth and eighth assignments of error together, followed

by his ninth assignment of error.

Assignment of Error No. I

The trial court improperly granted the Appellee’s Motion for
New Trail [sic].

Assignment of Error No. II

The Trial Court lacked the jurisdiction to make changes to its
own judgment entry.

Assignment of Error No. III

The Trail [sic] Court failed to provide an adequate basis for the
new trial.

-6-
Case No. 13-15-15

Assignment of Error No. VII

The Trial Court’s April 9, 2015 Judgment Entry is not a Final
Appealable Order.

{¶16} In his first and third assignments of error, Jeffrey argues that the trial

court erred by granting Theresa’s motion for a new trial because Theresa failed to

demonstrate, and the trial court failed to specify, any of the grounds for a new trial

listed in Civ.R. 59(A). In his second assignment of error, Jeffrey argues that,

because the trial court’s February 9, 2011 judgment is a final judgment, “[t]he trial

court lacked jurisdiction to make substantive changes to the property division in its

February 9, 2011 judgment entry” and that “the Appellee’s request to modify or to

change the February 9, 2011 judgment its [sic] original property division would be

void and would have no legal effect.” (Appellant’s Brief at 7). Jeffrey similarly

argues in his seventh assignment of error that the trial court’s February 9, 2011

judgment entry “was the final appealable order in this matter” and that “the April

9, 2015 judgment that modified the original property division are [sic] void and

have [sic] no legal effect” because “[t]he trial court lacked the jurisdiction to

modify its original judgment and property division.” (Id. at 12).

{¶17} We conclude that Jeffrey waived any error that could have been

raised regarding the trial court’s March 30, 2011 judgment entry granting in part

Theresa’s motion for a new trial. “An order is a final order that may be reviewed,

affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order

-7-
Case No. 13-15-15

that * * * grants a new trial.” R.C. 2505.02(B)(3). See also Utz v. Stovall, 11th

Dist. Portage No. 2012-P-0135, 2013-Ohio-4299, ¶ 57 (“An order that * * * grants

a new trial is a final, appealable order under R.C. 2505.02(B)(3).”). If a party

wishes to challenge a trial court’s order granting a new trial, it must appeal the

order within 30 days of its entry. See App.R. 4(A)(1), (B)(2). See also Kahler v.

Capehart, 3d Dist. Seneca No. 13-03-55, 2004-Ohio-2224, ¶ 7, citing R.C.

2505.02(B)(3) and App.R. 4(A). “‘Failure to appeal a final appealable order

waives any error that could have been raised with respect to that order.’” Michel

v. Michel, 7th Dist. Noble No. 10 NO 376, 2012-Ohio-4037, ¶ 19, quoting In re

Mapley, 7th Dist. Mahoning No. 07 MA 36, 2008-Ohio-1180, ¶ 9. See also

Kahler at ¶ 7.

{¶18} In this case, the trial court’s March 30, 2011 judgment entry granting

in part Theresa’s motion for a new trial was a final appealable order. R.C.

2505.02(B)(3); Utz at ¶ 57. Jeffrey failed to appeal that judgment entry within 30

days of its entry. Therefore, he waived any error that could have been raised

regarding the trial court’s March 30, 2011 judgment entry, and we lack jurisdiction

to address Jeffrey’s arguments—raised in his first and third assignments of error—

regarding the trial court’s granting a new trial concerning the issue of the hog

barns. See Michel at ¶ 19; Kahler at ¶ 7, citing Bellamy v. Bellamy, 110 Ohio

App.3d 576, 580 (6th Dist.1996).

-8-
Case No. 13-15-15

{¶19} In his second and seventh assignments of error, Jeffrey challenges

the trial court’s jurisdiction to enter the April 9, 2015 judgment entry, arguing that

the February 9, 2011 judgment entry of divorce is the controlling judgment in this

case concerning division of property. Civ.R. 59(A) provides, “On a motion for a

new trial in an action tried without a jury, the court may open the judgment if one

has been entered, take additional testimony, amend findings of fact and

conclusions of law or make new findings and conclusions, and enter a new

judgment.” See Wolf-Sabatino v. Sabatino, 10th Dist. Franklin No. 12AP-307,

2012-Ohio-6232, ¶ 12. Because the trial court opened the February 9, 2011

judgment by granting in part Theresa’s motion for a new trial, the trial court was

free, under Civ.R. 59, to “take additional testimony, amend findings of fact and

conclusions of law or make new findings and conclusions, and enter a new

judgment.” Therefore, Jeffrey’s arguments that the trial court lacked jurisdiction

to enter the April 9, 2015 judgment are without merit. See Moffett v. Moffett, 7th

Dist. Columbiana No. 87-C-27, 1988 WL 34625, *2 (Mar. 21, 1988).

{¶20} Jeffrey’s first, second, third, and seventh assignments of error are

overruled.

Assignment of Error No. IV

The Trial Court erred in accepting the Appellee’s appraisal
without prior hearing.

-9-
Case No. 13-15-15

Assignment of Error No. V

The Trial Court erred in finding the Appellee’s witness as an
expert without prior hearing.

{¶21} In his fourth and fifth assignments of error, Jeffrey argues that the

trial court abused its discretion by qualifying Theresa’s valuation witness, Hunt, as

an expert and admitting Hunt’s appraisal report because Jeffrey “requested a

hearing on the matter and was improperly denied a hearing.” (Appellant’s Brief at

9).

{¶22} The qualification of a witness as an expert and the admissibility of an

expert witness’s testimony are distinct inquiries, but both are governed by Evid.R.

702, which provides:

A witness may testify as an expert if all of the following apply:

(A) The witness’ testimony either relates to matters beyond

the knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(B) The witness is qualified as an expert by specialized

knowledge, skill, experience, training, or education regarding the

subject matter of the testimony;

(C) The witness’ testimony is based on reliable scientific,

technical, or other specialized information. To the extent that the

-10-
Case No. 13-15-15

testimony reports the result of a procedure, test, or experiment, the

testimony is reliable only if all of the following apply:

(1) The theory upon which the procedure, test, or

experiment is based is objectively verifiable or is validly derived

from widely accepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably

implements the theory;

(3) The particular procedure, test, or experiment was

conducted in a way that will yield an accurate result.

Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 17.

{¶23} “The determination of whether a witness is qualified to testify as an

expert lies within the sound discretion of the trial court.” Radford v. Monfort, 3d

Dist. Mercer No. 10-04-08, 2004-Ohio-4702, ¶ 5, citing Bishop v. Ohio Bur. of

Workers’ Comp., 146 Ohio App.3d 772, 781 (10th Dist.2001). Similarly, “any

decision concerning the admission or exclusion of expert testimony will not be

disturbed absent an abuse of discretion.” Wasinski v. PECO II, Inc., 3d Dist.

Crawford Nos. 3-08-14 and 3-08-16, 2009-Ohio-2615, ¶ 38, citing State v. Jones,

90 Ohio St.3d 403, 414 (2000). An abuse of discretion suggests that the trial

court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). “However, ‘even where a trial court

-11-
Case No. 13-15-15

abuses its discretion in the admission of evidence,’ a reviewing court will not

reverse unless the error affected a substantial right of the party at issue.” Hickle v.

Hayes-Albion Corp., 3d Dist. Seneca No. 13-06-24, 2007-Ohio-4236, ¶ 31, citing

State v. Lundgren, 73 Ohio St.3d 474, 486 (1995), Evid.R. 103(A), and Civ.R. 61.

In that scenario, the error is harmless. See Civ.R. 61.

{¶24} Here, Jeffrey filed an August 25, 2015 motion in limine seeking to

exclude Hunt’s expert testimony and requesting a hearing concerning the motion.

(Doc. No. 558). In its September 3, 2014 entry denying Jeffrey’s motion, the trial

court qualified Hunt as an expert witness and stated that Hunt would be allowed to

testify as an expert witness. (Doc. No. 563). The trial court denied Jeffrey’s

request for a separate hearing concerning his motion in limine, but at the

September 8, 2014 hearing before a magistrate, Hunt testified on direct

examination concerning his qualifications and his opinions regarding the value of

the hog barns. (See Sept. 8, 2015 Tr. at 52-73). Jeffrey’s counsel had the

opportunity to cross-examine Hunt concerning his qualifications and his opinions

regarding the value of the hog barns. (See id. at 73-80).

{¶25} Under his fourth and fifth assignments of error, Jeffrey does not

challenge Hunt’s September 8, 2014 testimony concerning his qualifications and

his opinions regarding the value of the hog barns. Rather, Jeffrey’s arguments

under these assignments of error are based on his contention that, because “Hunt

-12-
Case No. 13-15-15

failed to provide during his deposition any verifiable reliable, scientific, technical,

or other specialized information that would relate to this matter,” the trial court

erred by qualifying Hunt as an expert and by admitting his appraisal report without

holding a separate, prior hearing. (Appellant’s Brief at 10).

{¶26} A trial court has discretion concerning whether to hold a hearing on a

motion in limine to exclude the testimony of a proposed expert witness under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786

(1993).1 Sliwinski v. St. Edwards, 9th Dist. Summit No. 27247, 2014-Ohio-4655,

¶ 15; Preston v. All Vinyl Fence & Decks, Inc., 11th Dist. Trumbull No. 2008-T-

0015, 2008-Ohio-6997, ¶ 26, 33; State v. Shalash, 12th Dist. Warren No. CA2013-

06-052, 2014-Ohio-2584, ¶ 42. “It is well established that a decision on a motion

in limine is a ‘tentative, preliminary or presumptive ruling about an evidentiary

issue that is anticipated but has not yet been presented in its full context.’”

Wasinski, 2009-Ohio-2615, at ¶ 52, quoting State v. Geboy, 145 Ohio St.3d 706,

726 (2001). “‘An appellate court need not review the propriety of such an order

unless the claimed error is preserved by an objection, proffer, or ruling on the

record when the issue is actually reached and the context is developed at trial.’”

1
“The United States Supreme Court in Daubert * * * interpreted Fed.R.Evid. 702, the federal version of
Evid.R. 702, as vesting the trial court with the role of gatekeeper. This gatekeeping function imposes an
obligation upon a trial court to assess both the reliability of an expert’s methodology and the relevance of
any testimony offered before permitting the expert to testify. [The Supreme Court of Ohio] adopted this
role for Ohio trial judges in Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 687 N.E.2d 735.”
(Citations omitted.) Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, ¶ 24.

-13-
Case No. 13-15-15

(Emphasis deleted.) Gollihue v. Consol. Rail Corp., 120 Ohio App.3d 378, 388

(3d Dist.1997), quoting State v. Grubb, 28 Ohio St.3d 199, 203 (1986).

{¶27} At the September 8, 2014 hearing, Jeffrey preserved his objection to

the trial court’s qualification of Hunt as an expert witness and admission of Hunt’s

appraisal report. (See Sept. 8, 2014 Tr. at 64, 148). However, on appeal, Jeffrey

does not contest Hunt’s testimony at the September 8, 2014 hearing concerning his

qualifications and his opinions regarding the value of the hog barns. Instead,

Jeffrey bases his arguments on Hunt’s deposition testimony, which was taken

before the September 8, 2014 hearing. Therefore, even assuming the trial court

abused its discretion by sua sponte qualifying Hunt as an expert witness in its

September 3, 2014 entry denying Jeffrey’s motion in limine, Jeffrey failed on

appeal to suggest how the error—in light of Hunt’s September 8, 2014 testimony

and Jeffrey’s counsel’s ability to cross-examine Hunt at that hearing—affected a

substantial right of Jeffrey’s. Indeed, Jeffrey does not dispute that Hunt testified

on September 8, 2014 concerning his qualifications and his opinions regarding the

value of the hog barns. Nor does he dispute the substance of Hunt’s September 8,

2014 testimony. We will not construct an argument for Jeffrey. See Union Bank

Co. v. Lampert, 3d Dist. Auglaize No. 2-13-32, 2014-Ohio-4427, ¶ 21, citing

Camp v. Star Leasing Co., 10th Dist. Franklin No. 11AP-977, 2012-Ohio-3650, ¶

67 (“It is not the duty of this court to construct legal arguments in support of an

-14-
Case No. 13-15-15

appellant’s appeal.”). Therefore, we conclude that any error by the trial court in

qualifying Hunt as an expert witness or in admitting Hunt’s appraisal report is

harmless. See Metro. Life Ins. Co. v. Tomchik, 134 Ohio App.3d 765, 776 (7th

Dist.1999). Moreover, to the extent Jeffrey argues that the trial court abused its

discretion or otherwise erred because a trial court must always hold a Daubert

hearing if requested, we reject his argument because the law does not support it.

Sliwinski at ¶ 15, citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152,

119 S.Ct. 1167 (1999).

{¶28} Jeffrey’s fourth and fifth assignments of error are overruled.

Assignment of Error No. VI

The Appellant provided evidence that the Hog Barns were his
separate property.

Assignment of Error No. VIII

The Trial Court improperly gave the Appellee an interest in the
Appellant’s hog barns.

{¶29} In Jeffrey’s sixth and eighth assignments of error, he argues that the

trial court erred by not concluding that the hog barns are his separate property.

Specifically, Jeffrey argues that he “built the hog barns in 1997 and 1998 before

the parties were married” and that he “provided testimony and tax records to show

the traceability of the hog barns being his separate property.” (Appellant’s Brief at

11, 14). He also argues that Theresa “did not provide how much her suppose [sic]

-15-
Case No. 13-15-15

efforts at the evidentiary hearing increased the value of the property.” (Id. at 14).

Jeffrey does not dispute the value that the trial court placed on the hog barns or the

trial court’s allocation of property. In response to Jeffrey’s arguments, Theresa

concedes that the hog barns themselves and the land on which they sit are separate

property because Jeffrey owned them before the marriage; however, she argues

that the hog barns’ increase in value during the marriage is marital property

because the parties “repaid at least $349,320 of Hog Barn indebtedness during the

marriage” from their joint, marital income and that she “worked in all aspects of

their swine finishing business.” (Appellee’s Brief at 16-17).

{¶30} “In a divorce proceeding, the division of marital and separate

property involves a two-step process governed by R.C. 3105.171.” Lotz v. Lotz,

3d Dist. Auglaize No. 2-14-06, 2014-Ohio-5625, ¶ 11, citing Forman v. Forman,

3d Dist. Marion No. 9-13-67, 2014-Ohio-3545, ¶ 13. “First, the trial court must

determine whether property is marital or separate property, and, second, the trial

court must equitably allocate the marital and separate property.” Id., citing

Forman at ¶ 13. See also R.C. 3105.171(B), (D).

{¶31} Jeffrey’s arguments under his sixth and eighth assignments of error

concern the first step of the two-step process set forth in R.C. 3105.171—the trial

court’s determination of whether property is marital or separate. Under R.C.

3105.171(A)(3)(a), “marital property” includes:

-16-
Case No. 13-15-15

(i) All real and personal property that currently is owned by either

or both of the spouses * * * and that was acquired by either or both

of the spouses during the marriage;

(ii) All interest that either or both of the spouses currently has in

any real or personal property * * * and that was acquired by either or

both of the spouses during the marriage;

(iii) Except as otherwise provided in this section, all income and

appreciation on separate property, due to the labor, monetary, or in-

kind contribution of either or both of the spouses that occurred

during the marriage * * *.

R.C. 3105.171(A)(3)(a)(i)-(iii). Under R.C. 3105.171(A)(6)(a), “separate

property” includes:

[A]ll real and personal property and any interest in real or personal

property that is found by the court to be any of the following:

***

(ii) Any real or personal property or interest in real or personal

property that was acquired by one spouse prior to the date of the

marriage;

(iii) Passive income and appreciation acquired from separate

property by one spouse during the marriage * * *.

-17-
Case No. 13-15-15

R.C. 3105.171(A)(6)(a)(ii)-(iii). “‘Passive income’ means income acquired other

than as a result of the labor, monetary, or in-kind contribution of either spouse.”

R.C. 3105.171(A)(4). The statute also provides, “The commingling of separate

property with other property of any type does not destroy the identity of the

separate property as separate property, except when the separate property is not

traceable.” R.C. 3105.171(A)(6)(b).

{¶32} “The plain language of R.C. 3105.17[1](A)(3)(a)(iii) unambiguously

mandates that when either spouse makes a labor, money, or in-kind contribution

that causes an increase in the value of separate property, that increase in value is

deemed marital property.” (Emphasis deleted.) Middendorf v. Middendorf, 82

Ohio St.3d 397, 400 (1998). For example, if separate property increases in value

due to the expenditure of marital funds, that increase in value is marital property.

See Scott v. Scott, 11th Dist. Trumbull No. 2007-T-0059, 2008-Ohio-530, ¶ 21.

{¶33} “The party seeking to establish that property is separate rather than

marital bears the burden of proof, by a preponderance of the evidence, to trace the

asset to separate property.” Tretola v. Tretola, 3d Dist. Logan No. 8-14-12, 2014-

Ohio-5484, ¶ 45, citing Schalk v. Schalk, 3d Dist. Seneca No. 13-07-13, 2008-

Ohio-829, ¶ 6. See also Golick v. Golick, 12th Dist. Clermont Nos. CA99-05-040

and CA99-05-045, 2001 WL 1598290, *9 (Dec. 17, 2001) (“Because [husband-

appellant] sought to have the appreciation of the * * * properties characterized as

-18-
Case No. 13-15-15

separate property, he had the burden of proof on this issue by a preponderance of

the evidence.”), citing Peck v. Peck, 96 Ohio App.3d 731, 734 (12th Dist.1994).

{¶34} “This court reviews the trial court’s classification of property as

marital or separate under a manifest-weight-of-the-evidence standard.” Lotz,

2014-Ohio-5625, at ¶ 16, citing Reed v. Reed, 3d Dist. Allen No. 1-09-63, 2010-

Ohio-4550, ¶ 7. “Accordingly, we will not reverse the trial court’s judgment if it

is supported by some competent, credible evidence.” Id., citing Reed at ¶ 7.

“‘This highly deferential standard of review permits the affirmation of the trial

court’s judgment if there is even ‘some’ evidence to support the court’s finding.’”

Reed at ¶ 7, quoting Huelskamp v. Huelskamp, 185 Ohio App.3d 611, 2009-Ohio-

6864, ¶ 15 (3d Dist.).

{¶35} In this case, the trial court made the following findings, all of which

are supported by some competent, credible evidence. Before the parties married

on June 12, 1999, Jeffrey borrowed a total of $300,000.00 to purchase the hog

barns. (Doc. No. 586 at 4-5, ¶ 1, 3, 5). Jeffrey purchased the hog barns for a total

initial cost of $322,360.00 and later invested at least an additional $16,075.75 in

capital improvements to the hog barns. (Id. at 5, ¶ 4, 6, 7, 8).

{¶36} Following the construction of the hog barns and the parties’ marriage

on June 12, 1999, Jeffrey and Theresa refinanced the indebtedness when the loans

of the hogs barns came due on November 5 and December 30, 2002. (Id. at 5, ¶ 9,

-19-
Case No. 13-15-15

10). During the marriage, and before their separation and first divorce hearing in

2008, the parties repaid $349,320.00 of the original and refinanced indebtedness

for the hog barns from income derived from their joint operation of their swine

finishing business and their employment at Whirlpool. (Id. at 5, ¶ 10, 11, 16).

Hunt testified that the contributory fair market value of the hog barns as of June

22, 2011 is $342,000.00. (Id. at 6, ¶ 13, 14). Jeffrey did not file an appraisal or

produce expert-witness testimony concerning the value of the hog barns. (See id.

at 2-3).

{¶37} Based on these findings, the trial court concluded, “The repayment of

Hog Barn indebtedness during the marriage by the parties’ joint labor, monetary or

in-kind contributions, increased the net value of the Hog Barns by $349,320,”

making the increase in the hog barns’ net value marital property. (Id. at 7, ¶ 1, 2).

The trial court added that Jeffrey “failed to establish that the increase in the value

of the Hog Barns is separate property.” (Id. at 7, ¶ 3).

{¶38} We conclude that the trial court’s classification of $349,320.00 in

increased net value of the hog barns as marital property is supported by some

competent, credible evidence and therefore not against the manifest weight of the

evidence. Jeffrey bore the burden of proving, by a preponderance of the evidence,

that the appreciation on his separate property is likewise separate property. While

Jeffrey may be able to trace his premarital ownership of the hog barns through the

-20-
Case No. 13-15-15

marriage, as he claims he can, that is not the issue. Rather, the question is whether

the hog barns’ increase in net value during the marriage is “other than as a result

of the labor, monetary, or in-kind contribution of either spouse.” R.C.

3105.171(A)(4). See also R.C. 3105.171(A)(3)(a)(iii) and 3105.171(A)(6)(a)(iii).

{¶39} Jeffrey failed to carry his burden of proving that the increase in net

value is other than as a result of the labor, monetary, or in-kind contribution of

either spouse. See Fisher v. Fisher, 3d Dist. Henry No. 7-01-12, 2002 WL

444904, *10 (Mar. 22, 2002). Theresa, on the other hand, produced evidence—

which Jeffrey did not and does not dispute—that the parties, during the marriage,

repaid $349,320.00 in indebtedness from the hog barns using joint, marital income

from their swine finishing operation and their employment at Whirlpool. (See

Sept. 8, 2014 Tr. at 85-116, 142-143, 151-154, 156-157); (Defendant’s Exs. B, C,

D, F, G, H, J, K, L, N, O, P, Q, R, S, T, V, W, Y, Z). Theresa correctly asserts that

the parties’ increased equity in the hog barns—based on their repaying

indebtedness on the hog barns during the marriage using marital funds—is marital

property. See Scott, 2008-Ohio-530, at ¶ 21, citing R.C. 3105.171(A)(3)(a)(iii)

and Middendorf, 82 Ohio St.3d at 400; Ray v. Ray, 9th Dist. Medina No.

03CA0026-M, 2003-Ohio-6323, ¶ 8, citing Charles v. Charles, 9th Dist. Lorain

No. 96CA006396, 1997 WL 28247, *4 (Jan. 22, 1997). Presented with Theresa’s

competent, credible evidence, the trial court concluded that the increase in net

-21-
Case No. 13-15-15

value of the hog barns is $349,320.00 and that this increased equity is marital

property because the parties used marital funds to repay the indebtedness.

$349,320.00 is near Hunt’s appraisal amount of $342,000.00. Therefore, we hold

that the trial court’s classification of the increase in net value of the hog barns—

$349,320.00—as marital property is not against the manifest weight of the

evidence.

{¶40} Because Jeffrey does not present any argument as to the second step

of the property-division process set forth in R.C. 3105.171—namely, equitable

allocation of the marital and separate property—we need not address that aspect of

the trial court’s decision. See Lakner v. Lakner, 12th Dist. Butler No. CA97-07-

150, 1998 WL 130202, *3-4 (Mar. 23, 1998).

{¶41} Jeffrey’s sixth and eighth assignments of error are overruled.

Assignment of Error No. IX

The Trail [sic] Court abused its discretion not dismissing the
Appellee’s motions pursuant to Civil Rule 41.

{¶42} In his ninth assignment of error, Jeffrey argues that the trial court

erred by not granting his “motion to dismiss the pending Hog Barn issue for

failure to prosecute” under Civ.R. 37(B)(2)(c) and 41(B)(1) because Theresa

“failed to comply with a court order regarding the discovery cut-off.”

(Appellant’s Brief at 15).

-22-
Case No. 13-15-15

{¶43} Civ.R. 37(B) provides various sanctions for failure to comply with an

order to provide or permit discovery, including dismissal of “the action or

proceeding or any part thereof.” Civ.R. 37(B)(2)(c). See also Collias v. Redburn,

3d Dist. Wyandot No. 16-11-10, 2012-Ohio-2128, ¶ 23, citing Civ.R. 37(B)(2)(c).

“Ohio courts have long recognized that the interests of justice are better served

when courts address the merits of claims rather than using procedural devices to

resolve pending cases.” Collias at ¶ 23, citing Moore v. Emmanuel Family

Training Center, Inc., 18 Ohio St.3d 64, 70 (1985). In determining whether

dismissal of an action is warranted for a discovery violation,

the trial court should consider “the history of the case; all the facts

and circumstances surrounding the noncompliance, including the

number of opportunities and the length of time within which the

faulting party had to comply with the discovery or the order to

comply; what efforts, if any, were made to comply; the ability or

inability of the faulting party to comply; and such other factors as

may be appropriate.”

Id., quoting Foley v. Nussbaum, 2d Dist. Montgomery No. 24572, 2011-Ohio-

6701, ¶ 31. Civ.R. 41(B)(1) provides, “Where the plaintiff fails to prosecute, or

comply with these rules or any court order, the court upon motion of a defendant

or on its own motion may, after notice to the plaintiff’s counsel, dismiss an action

-23-
Case No. 13-15-15

or claim.” “Civ.R. 41(B)(1) permits a trial court to dismiss an action or claim

where a plaintiff fails to comply with any court order, whether related to discovery

or not.” Action Group, Inc. v. NanoStatics Corp., 10th Dist. Franklin No. 13AP-

72, 2013-Ohio-5542, ¶ 28.

{¶44} “The decision to dismiss under Civ.R. 37(B)(2)(c) and 41(B)(1) is

within the sound discretion of the trial court.” Action Group, Inc. at ¶ 29, citing

Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 47 (1997) and Toney v.

Berkemer, 6 Ohio St.3d 455, 458 (1983). Accordingly, we review for an abuse of

discretion a trial court’s decision whether to dismiss an action or part of an action

based on a discovery violation. See Collias at ¶ 25, citing Vaught v. Cleveland

Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, ¶ 13. As we previously

stated, an abuse of discretion suggests the trial court’s decision is unreasonable,

arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.

{¶45} Under this assignment of error, Jeffrey argues, without explanation

or citation to the record, “The Appellee had failed to comply with a court order

regarding the discovery cut-off.” (Appellant’s Brief at 15). App.R. 16(A)(7)

requires that Jeffrey include in his brief: “An argument containing the contentions

of the appellant with respect to each assignment of error presented for review and

the reasons in support of the contentions, with citations to * * * parts of the record

on which appellant relies.” (Emphasis added.) Under App.R. 12(A)(2), we are

-24-
Case No. 13-15-15

not required to address arguments that have not been sufficiently presented for

review or supported by proper authority, as required by App.R. 16(A)(7). Black v.

St. Marys Police Dept., 3d Dist. Mercer No. 10-11-11, 2011-Ohio-6697, ¶ 14.

{¶46} Nevertheless, we conclude that the trial court did not abuse its

discretion by denying Jeffrey’s June 1, 2012 “motion to dismiss the pending Hog

Barn issue for failure to prosecute.” After the trial court “grant[ed] a hearing on

the limited issues of the ‘hog barns’” on March 30, 2011, the hearing was

originally scheduled for September 26, 2011; however, the trial court granted

Theresa’s August 17, 2011 motion to continue the hearing so that the parties could

complete discovery and so that her counsel could attend a family reunion in

France. (See Doc. Nos. 406, 418, 419). Jeffrey’s counsel did not oppose that

motion for a continuance. (Doc. No. 418). Also on August 17, 2011, Theresa

served a request for production of documents on Jeffrey. (See Doc. Nos. 422,

427). Jeffrey filed a response to that request on October 28, 2011. (Doc. No.

427). However, according to Theresa, Jeffrey’s response was incomplete. (See

Doc. Nos. 476, 477). The trial court held a pretrial conference on December 19,

2011, at which it set Theresa’s discovery cut-off date as February 29, 2012 and

Jeffrey’s discovery cut-off date as June 1, 2012. (Doc. No. 455).

{¶47} Apparently unable to complete discovery without intervention by the

trial court, Jeffrey on June 1, 2012 filed his “motion to dismiss the pending Hog

-25-
Case No. 13-15-15

Barn issue for failure to prosecute.” (Doc. No. 475). It appears from Jeffrey’s

motion that he argued that Theresa failed to produce requested documents by the

February 29, 2012 discovery cut-off set by the trial court. (See Doc. Nos. 455,

475). In response, Theresa argued that she was unable to complete her discovery

by the cut-off date because Jeffrey failed to provide the documentation that she

requested on August 17, 2011, which was necessary for the preparation of her

discovery responses—namely, Hunt’s appraisal report. (See Doc. No. 477). The

trial court denied Jeffrey’s June 1, 2012 motion on August 30, 2012. (Doc. No.

491).

{¶48} Based on our review of the record, it was not unreasonable, arbitrary,

or unconscionable for the trial court to deny Jeffrey’s June 1, 2012 “motion to

dismiss the pending Hog Barn issue for failure to prosecute.” Not surprisingly, the

parties disagree over who was at fault in their discovery dispute. Although the

trial court did not say so explicitly in its judgment entry denying Jeffrey’s motion,

it appears the trial court was satisfied that Theresa acted reasonably diligently in

procuring and producing an appraisal report. (See Doc. No. 491). Amid the finger

pointing, it was not an abuse of discretion for the trial court to deny Jeffrey’s

request to dismiss the hog barns issue, particularly considering that dismissal is the

“harshest” discovery-violation sanction that “should only be imposed when the

failure to comply with discovery is due to willfulness, bad faith or fault on behalf

-26-
Case No. 13-15-15

of the respondent.” Collias, 2012-Ohio-2128, at ¶ 23; Houston v. Pickens, 3d

Dist. Marion No. 9-96-48, 1997 WL 86995, *2 (Feb. 26, 1997), citing

Cunningham v. Garruto, 101 Ohio App.3d 656, 659-660 (3d Dist.1995) and

Toney, 6 Ohio St.3d at 458.

{¶49} Jeffrey’s ninth assignment of error is overruled.

{¶50} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

-27-