COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71277, 71806 & 71807 DROGO K. MONTAGUE : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : PRUDENCE B. MONTAGUE : OPINION : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Domestic Relations Division, Case No. D-240998 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiff-Appellee: GALE S. MESSERMAN Messerman & Messerman Co., L.P.A. 4100 Society Center 127 Public Square Cleveland, Ohio 44114 For Defendant-Appellant: JOYCE E. BARRETT 800 Standard Building Cleveland, Ohio 44113 -2- O'DONNELL, J.: Prudence B. Montague appeals from three separate judgments of the Domestic Relations court: one, granting a divorce to Drogo K. Montague; another, denying her motions seeking contempt, attorney fees, and a new trial; and a third, a qualified domestic relations order, which awarded her $375,000.00 from her ex-husband's pension accounts. We consolidated these three separate appeals for purposes of resolution and, after full review of the record, we find no abuse of discretion, and affirm the decisions for the following reasons. The record reveals that Prudence and Drogo Montague married in 1967, in Dearborn, Michigan, following his junior year of medical school. They raised two children, now both emancipated, and the parties are now both fifty-three years of age. On June 13, 1995, appellee, a urologist employed by the Cleveland Clinic, filed for divorce, and appellant counterclaimed seeking temporary spousal support. The evidence revealed that in 1995, appellee earned an annual salary of $268,000.00 and additional honoraria fees of $23,183.00. On August 19, 1996, the court granted the decree of divorce, denied the motion for temporary spousal support, but awarded appellant post-decree spousal support and, in its decree, divided the marital assets. The record further reveals that appellant filed a motion for a new trial, and a motion to show cause and sought attorney fees in connection with that motion. Thereafter, the court issued a -3- qualified domestic relations order, awarding appellant the sum of $375,000.00 from appellee's pension funds, denying her motions for new trial, to show cause, and for attorney fees. She now appeals raising fifteen assignments of error for our review. The first assignment of error states: I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS DIVISION OF PROPERTY. Appellant contends the trial court abused its discretion when it designated, and calculated the value of, certain marital and separate property. She argues that the residence located at 17415 Shelburne Road, Cleveland Heights, Ohio, the furniture in that home and a 1995 Jeep Cherokee constituted her separate property and, therefore, the court abused its discretion when it designated these as marital property. She further urges the court abused its discretion when it calculated the value of appellee's furniture in his condominium. Appellee urges the trial court did not abuse its discretion regarding these matters. The issue then presented for our review is whether the trial court abused its discretion when it divided the real and personal property of the parties. R.C. 3105.171(B) mandates the equitable distribution of marital and separate property. Separate property includes all real and personal property, or interests in these, acquired by one spouse prior to the date of the marriage, but includes [a]ny gift of * * * personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to -4- have been given to only one spouse. R.C. 3105.171(A)(6)(a)(ii), (vi). Marital property does not include any separate property. R.C. 3105.171(A)(3)(b). In Baker v. Baker (1992), 83 Ohio App.3d 700, the court defined our scope of appellate review, stating in relevant part: A court should not review discrete aspects of the property division out of the context of the entire award. * * * A court should consider whether the trial court's disposition of marital property as a whole resulted in a property division which was an abuse of discretion. An abuse of discretion signifies more than an error of law but, rather, implies the court's attitude was arbitrary, unconscionable or unreasonable. See Will v. Will (1996), 113 Ohio App.3d 8. Regarding appellant's claim in connection with the Shelburne Road home, the record reveals that in 1987, appellant's mother, Mary E. Ludwig, issued two checks to appellant totaling $76,000, and one to appellee in the amount of $50,000, for the express purpose that they purchase a home located on Chesterton Road in Shaker Heights, Ohio. The parties did, in fact, use the entire $126,000 to purchase that home. Appellant's mother listed these gifts on a separate Gift Tax Return which she filed with her 1987 federal tax return. In 1992, the parties separated, sold the Chesterton Road home, and appellant used the proceeds of that sale to purchase the Shelburne Road home for herself. She argued at trial that the $126,000.00, given to the parties by her mother, constituted an -5- exclusive gift to her and, therefore, the Chesterton Road home, and the proceeds of its sale, constituted her separate property. Our review leads to the conclusion that appellant has failed to prove by clear and convincing evidence that her mother gave the $126,000.00 gift exclusively to her. The $126,000.00 gift, in this instance, constituted marital property, as did the Chesterton Road home, and the proceeds of the sale of that home also constituted marital property. Thus, appellant purchased the Shelburne Road home with marital property and, accordingly, the trial court did not abuse its discretion when it determined that the Shelburne Road home constituted marital property. Regarding appellant's claims in connection with the furniture and 1995 Jeep Cherokee, the record reveals that the parties either purchased or received as gifts from her mother during their marriage, the furniture in the Shelburne Road home. It also shows that appellant traded in marital property, a 1992 Jeep, when she and her mother purchased the 1995 Jeep Cherokee. Hence, the furniture and the 1995 Jeep Cherokee constituted marital property and the trial court properly made this determination. Regarding appellant's claim in connection with the valuation of appellee's furniture, the record demonstrates that the court calculated the value by applying a 50% discount to the purchase price which appellant's expert witness, Mavis Klein, applied to the remainder of the furniture. Hence, we cannot conclude the court abused its discretion in valuing the appellee's furniture. -6- In this case, the court awarded the Shelburne Road home (net equity of $85,634.51), its furniture, valued at $71,428.00, the 1995 Jeep, valued at $30,430.00, $375,000.00 of appellee's pension accounts, and $138,365.00, representing the remainder of the proceeds of the sale of the Chesterton Road home, to appellant. Thus, the court awarded more than $700,000.00 to appellant, which does not constitute an abuse of discretion. Accordingly, this assignment of error is overruled. The second and third assignments of error state: II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS AWARD OF SPOUSAL SUPPORT AND CONTINGENCIES RELATED THERETO. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS FAILURE TO AWARD TEMPORARY SPOUSAL SUPPORT TO THE APPELLANT. Appellant contends the court abused its discretion when it failed to award her lifetime spousal support in an amount that equalizes her net income with appellee's, and when it failed to award her spousal support during the pendency of the divorce proceedings. Appellee urges the court did not abuse its discretion regarding these matters. The issue then presented for our review is whether the trial court abused its discretion with respect to is spousal support orders. R.C. 3105.18 provides for awards of spousal support and temporary spousal support to either party, that [m]ust not exceed an amount which is reasonable. See Kunkle v. Kunkle (1990), 51 -7- Ohio St.3d 64, syllabus 3. The statute does not require the court to provide an equal standard of living to the parties. See Goldbach v. Goldbach (December 29, 1993), Lor. App. No. 92CA005510, unreported. Where a spouse possesses the resources, abilities and opportunitiesto develop meaningful employment outside the home, a spousal support award should terminate on a certain date,. See Kunkle, supra, at syllabus 1. Here, the court awarded appellant spousal support of $582,000.00, for a period of ten years, payable at a rate of $78,000.00, for the first year, but decreasing to $48,000.00 in the tenth year. We, therefore, conclude that the spousal support award is reasonable and the court did not abuse its discretion in this regard. Regarding the matter of temporary spousal support, the evidence at trial revealed that during the divorce proceedings, appellee paid $6,500.00 per month to appellant as and for support, and that she received substantial sums of money from her mother, including a $100,000.00 inheritance. Thus, an award of temporary spousal support would not have been appropriate or reasonable, and the court did not abuse its discretion by failing to make such an order in this instance. Accordingly, these assignments of error are overruled. The fourth assignment of error states: IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO PLACE A VALUE UPON APPELLEE'S CONSULTING BUSINESS AND IN STRIKING THE TESTIMONY OF APPELLANT'S BUSINESS VALUATION EXPERT. -8- Appellant contends the court abused its discretion when it failed to designate appellee's potential future income, from honoraria, lecture and consulting engagements, as marital property, and failed to consider that income when it calculated her spousal support award. Appellee urges that such income did not constitute marital property. The issue then presented for our review is whether the court abused its discretion regarding these matters. In Stevens v. Stevens (1986), 23 Ohio St.3d 115, the court stated in its syllabus: A professional degree or license is not marital property and the present value of the projected future earnings of the degreed spouse is not a marital asset subject to division upon divorce. Although not an asset, the future value of a professional degree or license acquired by one of the parties during the marriage is an element to be considered in reaching an equitable award of alimony in accordance with R.C. 3105.18. Here, the court correctly granted a motion to strike the testimony of her business valuation expert, and found that appellee's potential future income from honoraria, lecture and consulting engagements did not constitute marital property. Further, the court stated its intention to take that potential income into consideration, and admitted the expert report, which determined its fair market value. The record, thus, contains no evidence that the court failed to consider his potential future income when it calculated her spousal support award, which we have already found to be reasonable. -9- The court, therefore, did not abuse its discretion in this matter. Accordingly, this assignment of error is overruled. The fifth assignment of error states: V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT PERMITTING APPELLANT TO CALL APPELLEE AS UPON CROSS-EXAMINATION IN HER CASE IN CHIEF. Appellant contends the court abused its discretion when it refused to permit her to cross-examine appellee for a second time, five months after she had initially conducted cross-examination. Appellee urges that appellant had originally conducted an extensive cross-examination of him, and the court, therefore, did not abuse its discretion when it refused to permit further cross- examination. The issue then presented for our review is whether the court abused its discretion when it denied cross-examination. Evid.R. 611 governs cross-examination and states in relevant part: (A) The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as [to] (1) make the interrogation and presentation effective for the ascertainmentof the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. Here, appellant extensively cross-examined appellee during the presentation of his case-in-chief. Five months later, during her own case-in-chief, she sought to again cross-examine him, allegedly -10- regarding his income, although he had already testified and evidence regarding that income had already been admitted. The court refused to permit this, noting its desire to avoid any further waste of time or any harassment of this witness. In harmony with Evid.R. 611, supra, and since competent, credible evidence had already been adduced regarding appellee's income, the court did not abuse its discretion when it refused to permit the second cross-examination. Accordingly, this assignment of error is overruled. The sixth and seventh assignments of error state: VI. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO ABIDE BY ITS PRIOR ANNOUNCEMENT OF DECISION AFTER APPELLEE HAD RESTED HIS CASE. VII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN JOURNALIZING A QUALIFIED DOMESTIC RELATIONS ORDER. Appellant contends the trial court abused its discretion when it failed to award her one-half of the value of appellee's pension accounts, since the court, during a March, 1996 hearing, pronounced an interim order that it would award her one-half of the value of those accounts. Appellee urges that the trial court did not abuse its discretion since it awarded appellant more than one-half of the total marital property. The issue then presented for our review is whether the trial court erred in this regard. Civ.R. 54(B) provides for the finality of orders and states in relevant part: -11- In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties * * * is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (Emphasis added). Here, the trial court revised its March, 1996 decision when it divided the marital property. As we have already determined, supra, the court equitably divided that property, including appellee's pension accounts, between him and appellant, with appellant receiving nearly 60% of the marital property. In light of this fact, and since Civ.R. 54(B) permits a court to revise interlocutory orders prior to entering a final judgment, the trial court did not abuse its discretion regarding this matter. Accordingly, this assignment of error is overruled. The eighth assignment of error states: VIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN STRIKING APPELLANT'S EXPERT WITNESS'S TESTIMONY RELATING TO THE TAX CONSEQUENCES OF SPOUSAL SUPPORT. Appellant contends the court abused its discretion when it refused to permit her expert witness to testify regarding income equalization, which allegedly would have produced evidence in support of a greater spousal support award. She, thus, does not claim the court failed to consider the tax consequences of spousal support. -12- Appellee urges the court did not abuse its discretion regarding this matter because appellant failed to produce an expert report, and because the testimony is speculative. The issue then presented for our review is whether the trial court abused its discretion in refusing to permit appellant's expert to testify regarding income equalization. Loc.R. 21.1(B) provides that [a] party may not call an expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel. Here, appellant failed to provide an expert witness report, in accordance with the local rules of court, but instead faxed a worksheet to appellee's counsel on the morning her expert intended to testify. The court, upon being faced with this situation, exercised its discretion to exclude the expert's testimony. Based upon the foregoing, we do not conclude this to be an abuse of discretion. Accordingly, this assignment of error is overruled. The ninth assignment of error states: IX. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO FIND THAT APPELLEE HAD BEEN GUILTY OF ECONOMIC MISCONDUCT. Appellant contends that during her separation, appellee committed economic misconduct by purchasing an $8,000.00 engagement ring, a $1,800.00 necklace, an $800.00 pair of earrings, and clothing for his fiancee, Marge Barrett, whom he subsequently married. -13- Appellee urges that he fully disclosed these expenditures at trial and that he did not purchase them with marital assets but, rather, purchased them with his credit card. The issue then presented for our review is whether the trial court erred when it failed to find economic misconduct. R.C. 3105.171(E)(3) states: If a spouse has engaged in financial misconduct, including, but not limited to, the dissipation, destruction, concealment, or fraudulent disposition of assets, the court may compensate the offended spouse with a distributive award or with a greater award of marital property. (Emphasis added). Here, the evidence at trial showed that appellee continued to earn income and maintain his own personal charge accounts, which he used to make those purchases for Ms. Barrett. No evidence of dissipation, destruction,concealment, or fraudulent disposition of assets is contained in the record before us. The trial court, therefore, did not err regarding this matter. Accordingly, this assignment of error is overruled. The tenth assignment of error states: X. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR CONTINUANCE OF THE TRIAL. Appellant contends the court abused its discretion when it denied her February 15, 1996 motion to continue the March 4, 1996 trial date, due to her counsel's schedule conflict. Appellee urges the court did not abuse its discretion since the motion to continue trial was not timely filed. -14- The issue then presented for our review is whether the trial court abused its discretion in denying the trial continuance. Dom.Rel.Loc.R. 3(B) provides that for good cause shown, a case awaiting trial may be continued. C.P.Sup.R. 7(A) leaves the matter of a continuance to the sound discretion of the court, and 7(B) states in relevant part: The court should not consider any motion for a continuance due to a conflict of trial assignment dates unless * * * the motion is filed not less than thirty days prior to trial. Here, appellant's motion for continuance was filed seventeen days prior to trial; hence, it did not comply with C.P.Sup.R. 7(A), supra. The court, in this instance, did not abuse its discretion when it denied that motion. Accordingly, this assignment of error is overruled. The eleventh assignment of error states: XI. THE TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE NOT SUPPORTED BY THE EVIDENCE. Appellant contends the findings of fact and conclusions of law, which we have already reviewed in the previous assignments of error, are not supported by the evidence. However, in our review of the previous assignments of error, we have found competent, credible evidence in support of those findings and conclusions. We may not reverse a trial court's decisions when they are supported by some competent, credible evidence. See Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581; C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. -15- Accordingly, this assignment of error is overruled. The twelfth assignment of error states: XII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN OVERRULING APPELLANT'S MOTION FOR NEW TRIAL. Appellant contends the court abused its discretion when it denied her motion for new trial. She argues the court should have granted that motion, based upon her allegations that the court abused its discretion regarding the division of property and the spousal support orders. Appellee urges the court did not abuse its discretion in this matter, since its denial of the motion for new trial did not result in a substantial injustice. The issue then presented for our review is whether the court abused its discretion when it denied her motion for new trial. Civ.R. 61 states in relevant part: * * * No error or defect in any ruling or order or in anything done or omitted by the court * * * is ground for granting a new trial * * * unless refusal to take such action appears to the court inconsistent with substantial justice. Here, we have previously concluded that the court's orders regarding the division of property and spousal support did not constitute an abuse of discretion. Therefore, the court's failure to grant a new trial, based upon those allegedly erroneous orders, is not inconsistent with substantial justice. Thus, the court did not abuse its discretion when it denied appellant's motion for a new trial and, accordingly, this assignment of error is overruled. -16- The thirteenth assignment of error states: XIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO SHOW CAUSE RELATING TO NON-PAYMENT OF SPOUSAL SUPPORT. Appellant contends the court abused its discretion when it overruled her September 13, 1996 motion to show cause, which alleged that appellee's payment of spousal support directly to her, rather through the CSEA, constituted a gift to her, and constituted his non-compliance with the spousal support order. Appellee urges he paid her spousal support in compliance with the spousal support order. The issue then presented for our review is whether the court abused its discretion when it overruled her motion to show cause. Pursuant to R.C. 2301.36(A), there exists [a] rebuttable presumption that monies not paid through the bureau of support are gifts. The statute [g]ives a payor spouse a sufficient opportunity to rebut the presumption that support payments not made through the bureau of support are gifts. See Mihna v. Mihna (1989), 48 Ohio App.3d 303, 305. In this instance, the spousal support order required appellee to pay appellant $6,500.00 per month beginning on September 1, 1996. The evidence revealed that he paid the September spousal support directly to her, since his employer had not as yet commenced a monthly deduction from his pay check. The evidence further revealed that she received the October spousal support payment through CSEA, and that the November payment had been deducted from his pay check but not, as yet, sent by CSEA to her. -17- Thus, appellee rebutted the presumption that his September payment, made directly to appellant, constituted a gift to her, and he demonstrated compliance with the spousal support order. Hence, the court did not abuse its discretion when it overruled her motion to show cause. Accordingly, this assignment of error is overruled. The fourteenth assignment of error states: XIV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO AWARD APPELLANT ATTORNEY FEES RELATING TO APPELLANT'S MOTION TO SHOW CAUSE FOR NON-PAYMENT OF SPOUSAL SUPPORT. Appellant contends the court abused its discretion when it failed to award her attorney fees, incurred when she filed the September 13, 1996 motion to show cause. Appellee urges the court did not abuse its discretion in this matter, since the court failed to find him in contempt. The issue then presented for our review is whether the court abused its discretion when it failed to award appellant attorney fees in connection with her motion to show cause. R.C. 3105.18(G) mandates that if a person, who is ordered to pay spousal support, is found in contempt for failure to pay the support, the court shall order that person to pay any reasonable attorney fees which arose in relation to the contempt. Here, the court did not find appellee in contempt of the spousal support order. Hence, the court did not abuse its discretion when it denied the motion for attorney fees related to appellant's motion to show cause. -18- Accordingly, this assignment of error is overruled. The fifteenth assignment of error states: THE TRIAL COURT ERRED IN PERMITTING APPELLEE TO RE-OPEN HIS CASE AND MOVE INTO EVIDENCE HIS EXHIBITS. Appellant contends the court abused its discretion when it permitted appellee, during closing argument, to reopen his case-in- chief, in order to move for admission of his exhibits. Appellee urges the court properly permitted him to reopen his case-in-chief, in order to move for admission of his exhibits, which he inadvertently neglected to do prior to commencing his closing argument. The issue then presented for our review is whether the court abused its discretion in this regard. Evid.R. 103(A) provides that [e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected * * *. Here, the court conducted a bench trial, during which appellee's counsel adduced all of his exhibits before the trial judge, thus, informing the judge of their contents and their relevance and materiality to his case-in-chief. Prior to commencing closing argument, his counsel failed to move for admission of those exhibits into evidence. Appellant's counsel then objected, during appellee's closing argument, to counsel's reference to an exhibit, arguing that it had not been admitted into evidence. Over objection, the court then permitted appellee to reopen his case-in-chief, only to move for admission of the -19- exhibits which he had already adduced before the judge during trial. Under these circumstances, we cannot say this ruling constituted an abuse of discretion. Accordingly, this assignment of error is overruled. Judgment affirmed. -20- It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Domestic Relations Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and ROCCO, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .