COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71860 & 72105 LEONARD RUSSELL, D.D.S., : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : CATHLEEN V. CARR, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 18, 1997 CHARACTER OF PROCEEDING: : Civil appeals from : Common Pleas Court -- : Domestic Relations Division : Case No. D-216266 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART, AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Richard D. Messerman Jane C. Murphy RICHARD D. MESSERMAN & ASSOCIATES 1940 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 For defendant-appellee: Cathleen V. Carr, Pro Se 13610 Shaker Boulevard Cleveland, Ohio 44120 Michael Troy Watson WATSON & WATSON 1367 East Sixth Street, Suite 400 Cleveland, Ohio 44114 NAHRA, J.: This is an appeal of divorce proceedings between appellant, Leonard Russell, and appellee, Cathleen Carr. We have previously -2- heard and decided certain issues in this case in Russell v. Carr (June 15, 1996), Cuyahoga App. No. 66104, unreported. Appellant filed for divorce on February 14, 1992. Appellant and appellee were married on May 28, 1989 and have a daughter born on February 2, 1990. The pretrial proceedings were protracted and were associated with the `contemptuous, deceitful, frivolus [sic], and litigious conduct' of the appellant. Russell, supra, at 2 (Quoting the court's December 21, 1994 Findings of Fact.) Trial commenced on January 11, 1994, ended on April 14, 1994, and was heard on 28 separate dates. The court issued a divorce decree in December, 1994, and two previous appeals followed. See, Russell, supra; Russell v. Carr (Dec. 4, 1996), Cuyahoga App. No. 78614, unreported (Cause dismissed for lack of jurisdiction because no final appealable order was before the court.) The instant consolidated appeal concerns the court's August 18, 1992 judgment entry awarding temporary spousal support; the 28- day trial; the December 21, 1994 divorce decree (hereinafter the divorce decree ); the December 21, 1994 judgment entry of separate findings of fact in support of the divorce decree (hereinafter the findings of fact ); the December 6, 1996 judgment entry finding appellant to owe $12,493.92 in additional temporary support arrearages for the period of April 14, 1994 through December 21, 1994; and the January 31, 1997 journal entry allowing appellee to withdraw motions after a hearing had begun. -3- Specific factual findings of the court and additional information from the record will be noted within our discussion of appellant's twelve assignments of error. I. I. THE TRIAL COURT ERRED IN FAILING TO UTILIZE A DEFACTO TERMINATION DATE OF THE MARRIAGE IN DETERMINING THE VALUE OF THE MARITAL ESTATE. The trial court found that the marriage ended on April 14, 1994, the last date it heard evidence at trial. R.C. 3105.17.1 provides in part: (A) As used in this section: *** (2) During the marriage means whichever of the following is applicable: (a) Except as provided in division (A)(2)(b) of this section, 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; (b) 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. In Berish v. Berish (1982), 69 Ohio St.2d 318, 320, 432 N.E.2d 183, 185, the Ohio Supreme Court discussed why a trial court has broad discretion to determine the date a marriage terminates by stating: -4- Equity may occasionally require valuation as of the date of the de facto termination of the marriage. The circumstancesof a particular case may make a date prior to trial more equitable for the recognition, determination and valuation of relative equities in marital assets. Appellant argues that the court abused its discretion by finding that the marriage ended on April 14, 1994, the last day of trial in this case. For the following reasons, we agree. In Berish, supra, the Supreme Court elaborated on the justificationto apply a de facto date of termination of marriage, stating: Assets acquired by the joint efforts of the parties should be on termination eligible for distribution. But the precise date upon which any marriage irretrievably breaks down is extremely difficult to determine, and this court will avoid promulgating any unworkable rules with regard to this determination. It is the equitableness of the result reached that must stand the test of fairness on review. 69 Ohio St.2d at 320, 432 N.E.2d at 184-85. In Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140, syllabus, the Ohio Supreme Court determined that a reviewing court should disturb a trial court's discretionary decision only upon a showing of abuse of that discretion. `The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable.' Id. at 219, 450 N.E.2d at 1142 (quoting State v. Adams (1980), 62 Ohio St.2d 151, 157.) In this marriage, appellee initially left the marital home after only three months of marriage. However, she did not live completely separate and apart from appellant. The court heard -5- testimony from appellee that she and appellant held each other out as husband and wife; they attended numerous social functions together; they took a vacation to New York City; and they celebrated anniversaries together from the time of appellee's initial departure from the marital home until the complaint for divorce was filed. Additionally, appellee maintained an office at the home, stayed in the home for at least two months following the birth of their daughter, and moved back to the home in November, 1991. Following the filing of the divorce, appellee and appellant no longer held each other out as a married couple and no longer attempted to reconcile their differences. In this case, the marital estate and separate property were determined as of April 14, 1994. The court's determination of the marital property, especially the appreciation of appellant's dental practice, encompassed a period of five years: May, 1989 through April, 1994. Given that the court found appellant's practice had nearly doubled in value (from $115,000.00 to $200,000.00) over that time, a large portion of the marital estate was comprised of assets acquired after the parties separated and were awaiting the formal termination of marriage. See, Berish, supra, 69 Ohio St.2d at 319, 432 N.E.2d at 184. As a result, an inequitable distribution of marital assets has occurred. We remand this case to the court for the purpose of establishing and distributing the parties' separate property and marital property as of the filing for divorce on February 14, 1992. II. -6- Appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN AWARDING CHILD SUPPORT IN THE AMOUNT OF $1130.29 PER MONTH, WHERE CHILD SUPPORT PURSUANT TO THE GUIDELINES WOULD HAVE BEEN $726.00. Appellant argues that 1) the court erred by overestimating his income for the purposes of determining his child support obligation pursuant to R.C. 3113.215 and 2) that the court erred by awarding an additional amount of money for tuition for the parties' child. A court has discretion to determine the actual income to be used in completing the calculations required by R.C. 3113.215. In its findings of fact, the court stated that appellant's testimony was incredible and found appellant's gross annual income for the purposes of child support to be $63,864.00. Based on this determination, the court found that appellant was to pay $726.21 per month for the support of his daughter per the child support guidelines in R.C. 3113.215 and an additional $404.08 per month for his daughter's pre-school tuition. In order to deviate from the child support guidelines, a court must state specific findings of fact to demonstrate why the guideline amount would be unjust, inappropriate, or not in the best interest of the child. R.C. 3113.21.5(B)(2)(C)(i), (ii). In Marker v. Grimm (1992), 65 Ohio St.3d 139,601 N.E.2d 496, syllabus paragraph 3 states: Any court ordered deviation from the applicable worksheet and the basic child support schedule must be entered by the court in its journal and must include findings of fact to support such determination. -7- In this case, the trial court failed in both its divorce decree and findings of fact to address its reasons to deviate from the child support guidelines. As the court did not support its deviation, we strike the child support ordered by the court in its divorce decree and remand this issue for the court to enter an amount of support in conformity with R.C. 3113.215 and Marker v. Grimm, supra. III. Appellant's fourth assignment of error states: IV. THE TRIAL COURT ERRED IN AWARDING THE DEFENDANT JUDGMENT AGAINST THE PLAINTIFF IN THE AMOUNT OF $28,310.67 ON THE TEMPORARY SUPPORT ORDER OF APRIL 15, 1994, WHERE SAID ORDER SHOULD HAVE BEEN MODIFIED BASED UPON THE DEFENDANT'S CHANGED CIRCUMSTANCES. Appellant complains that the court erred by not modifying the temporary support order which required him to pay appellee $1500 in spousal support and $500 in child support. During trial, evidence that appellee accepted employment with the City of Cleveland, was presented to the court. Appellant argues that the court erred by not modifying the temporary support order from April 15, 1994 to December 21, 1994. In its December 21, 1994 findings of fact at page 14, the trial court stated: The court further finds that Plaintiff Leonard A. Russell did not present sufficient evidence to demonstrate the change in circumstances required to modify the agreed judgment entry for temporary support, and his motion to modify same should be denied. In Russell v. Carr (June 15, 1995), Cuyahoga App. No. 66104, unreported, we determined that the court did not err by not -8- modifying the temporary spousal support. Accordingly, appellant may only contest the court's failure to modify the temporary support order from the end of trial on April 14, 1994 to the time of the divorce decree on December 21, 1994 as reflected in its December 6, 1996, journal entry. At that time, the court found that appellant was required to pay $16,260 in support from the end of trial to the divorce decree, that appellant had paid $3,766.08, and that he was in arrears in the amount of $12,493.92. R.C. 3105.18 provides in part: (B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section 3105.171 of the Revised Code, 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. *** (E) If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is determined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies: *** (F) For purposes of divisions (D) and (E) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses. -9- In Blakemore, supra, the Ohio Supreme Court determined that when reviewing a decision regarding the modification of spousal support, then alimony, a reviewing court should disturb the trial court's decision only upon a showing of an abuse of that discretion. In this case, appellee's salary rose from a minimal income when the court ordered temporary support in 1992 to $37,500 per year following the trial. This is a significant change of circumstance warranting a modification of support pursuant to R.C. 3105.18. See, e.g., Conrad v. Conrad (Dec. 29, 1994), Cuyahoga App. No. 66780, unreported (Drastic change in income is a significant factor warranting a modification of spousal support.) In light of appellee's significant increase in income in April, 1994, we find that the court abused its discretion when it failed to modify its award of spousal support from April 14, 1994 through December 21, 1994. Appellant's fourth assignment of error is well taken. We reverse the trial court's December 6, 1996 judgment entry and remand this issue to the court to determine the amount of spousal support, if any, due appellee from April 14, 1994 through December 21, 1994. IV. Appellant's eighth assignment of error states: VIII. THE TRIAL COURT ERRED IN AWARDING THE DEFENDANT ADDITIONAL ATTORNEY FEES IN THE AMOUNT OF $40,000.00 AS ADDITIONAL SPOUSAL SUPPORT. In the divorce decree at 4, the court stated: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant Cathleen V. Carr is hereby awarded judgment against Plaintiff Leonard A. Russell in the amount of -10- $40,000.00 in payment of Defendant Cathleen V. Carr's attorney fees as and for additional spousal support, for which execution may issue. Plaintiff Leonard A. Russell shall pay to Defendant Cathleen V. Carr the sum of $250.00 which sum includes 2% poundage, per month toward said spousal support judgment, said sums to be paid through CSEA. In the findings of fact at page 16, the trial court found that appellee incurred $137,620.25 in reasonable attorney fees and stated at pages 16-17: The Court further finds that this matter became excessively complex because Plaintiff Leonard A. Russell prolonged this litigation: by giving false, evasive, incomplete and inconsistent testimony not only at trial but at pretrial hearings and at depositions; by filing frivolous motions containing false statements under oath (e.g.his motion for emergency restraining order wherein his affidavit was directly contradicted by his testimony at trial); by altering his financial records to conceal his financial misconduct and his disposition of marital funds; and by dilatory and deceitful actions in providing discovery. *** R.C. 3105.18 provides in part: (H) In divorce or legal separation proceedings, the court may award reasonable attorney's fees to either party at any stage of the proceedings, including, but not limited to, any appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it determines that the other party has the ability to pay the attorney's fees that the court awards. When the court determines whether to award reasonable attorney's fees to any party pursuant to this division, it shall determine whether either party will be prevented from fully litigating his rights and adequately protecting his interests if it does not award reasonable attorney's fees. In this divorce, the court awarded appellee $40,000.00 of an amount over $137,600.00, in attorney's fees. In light of appellant's conduct, the award of fees is reasonable if appellant -11- has the ability to pay. However, because of our determination of appellant's first assignment of error in part I, supra, we must reverse this award and remand this issue for the court to determine, after its division of the marital estate, whether or not appellant has the ability to pay the reasonable amount of attorney's fees as found by the trial court. V. Appellant's ninth assignment of error states: IX. THE TRIAL COURT ERRED IN RESERVING JURISDICTION IN THE EVENT THAT THE DISTRIBUTIVE AWARD TO THE DEFENDANT IS NOT PAID IN FULL FROM CASH OBTAINED BY LIQUIDATION OF THE PLAINTIFF'S BANKRUPTCY ESTATE AND FURTHER ERRED IN RESERVING JURISDICTION TO AWARD ADDITIONAL SPOUSAL SUPPORT IN THE EVENT THAT ANY OF THE PLAINTIFF'S OBLIGATIONS ARE DISCHARGED BY THE BANKRUPTCY COURT. Following the filing of this divorce, appellant filed for bankruptcy in federal court. In the divorce decree, the trial court stated: IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that in the event the Plaintiff's assets are not liquidated/converted to cash, or are released by the Bankruptcy Court, then this issue shall be reset for hearing before the Court. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that should it come to the Court's attention by affidavit of defendant Cathleen V. Carr or otherwise, that the Greenvale property cannot be transferred or that the full amount of the distributive award granted to Defendant Cathleen V. Carr is not paid in full from cash obtained by liquidation of Plaintiff Leonard A. Russell's Bankruptcy Estate, then in that even[t] this matter shall be reset for hearing before the Court. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that jurisdiction is hereby reserved to award additional spousal support to Defendant Cathleen V. Carr in the event: that any of the obligations imposed upon Plaintiff are discharged by the Bankruptcy court to the financial -12- detriment of Defendant Cathleen V. Carr; that interests awarded herein to Defendant Cathleen V. Carr are not released to her or have been dissipated or encumbered by Plaintiff; and/or that any tax liability is imposed upon Defendant Cathleen V. Carr for joint returns where such liability arises from Plaintiff's business activities. R.C. 3105.171 provides in part: (I) A division or disbursement of property or a distributive award made under this section is not subject to future modification of the court. In Ricketts v. Ricketts (1996), 109 Ohio App.3d 746, 751, 673 N.E.2d 156, 159, the court stated: A trial court has broad discretion in dividing marital property, including pension benefits. *** However, a trial court does not have continuing jurisdiction to modify a property division incident to a divorce decree. See, R.C. 3105.171(I); Bean v. Bean (1983), 14 Ohio App.3d 358, 361-362, 14 OBR 462, 465-467, 471 N.E.2d 785, 789-791. It is evident from the trial court's order that it retained jurisdiction to modify its division of property in the event that appellee was unable to fully collect the award in light of appellant's bankruptcy. However well-intentioned, under R.C. 3105.171(I), this reservation of jurisdiction is impermissible. Appellant's ninth assignment of error is well taken. Accordingly, we strike the above cited paragraphs from the divorce decree which attempt to retain jurisdiction in order to modify the division of marital property and remind the court, on remand, to insure its division of marital property is final and not subject to modification. VI. Appellant's tenth assignment of error states: -13- X. THE TRIAL COURT ERRED IN ORDERING THE PLAINTIFF TO POST A BOND IN THE AMOUNT OF $10,000.00. Appellant argues that the court erred by requiring him to post a $10,000 bond with the Cuyahoga County Support Agency in that it exceeded its authority pursuant to R.C. 3313.04(A) which provides in part: (A) Sentence may be suspended if a person, after conviction under section 2919.21 of the Revised Code [nonsupport of dependents] and before sentence under that section, appears before the court of common pleas in which the conviction took place and enters into bond to the state in a sum fixed by the court at not less that five hundred nor more than one thousand dollars conditioned that the person will furnish the child or other dependent with necessary or proper home, care, food, and clothing, or will pay promptly each week for such purpose to the child support enforcement agency, a sum to be fixed by the agency. *** Appellant's argument is void of merit. Appellant was not convicted of violating R.C. 2919.21 and this section is inapplicable to the bond ordered by the court. The court has authority to require a bond posted in an amount up to $10,000. R.C. 3113.21 (D)(6). We find that the court did not err by ordering appellant to post a $10,000 bond and appellant's tenth assignment of error is not well taken. VII. Appellant's eleventh assignment of error states: XI. THE TRIAL COURT ERRED IN DISMISSING WITHOUT PREJUDICE APPELLEE'S MOTIONS AFTER THE COMMENCEMENT OF THE HEARING IN REGARD TO SAME. -14- Appellant argues that the court erred by allowing appellee to withdraw her July 2, 1996 motions for modification of alimony, child support, and other relief and a motion to show cause once evidence was heard by a magistrate. Appellant argues that Civ.R. 41 applies to the withdrawal of a motion, and that the court should have dismissed appellee's motions with prejudice. We disagree. Civ.R. 41 does not apply to the dismissal or withdrawal of motions within an action, rather it applies to the withdrawal or dismissal of the action itself. Even if Civ.R. 41 applied, the rule allows a court to permit a party to dismiss an action after it has commenced. Here, the court allowed appellee to withdraw her motions. We find that appellant's argument is without merit and appellant's eleventh assignment of error is not well taken. VIII. Appellant's twelfth assignment of error states: XII. THE ENTIRE FINDINGS OF FACT AND SEPARATE JUDGMENT ENTRY OF THE TRIAL COURT REFLECTS A MANIFEST ABUSE OF DISCRETION. Appellant's contentions in this assignment of error have been addressed in other assignments of error. We also find this assignment of error to be in violation of App.R. 12(A)(2), failing to set forth specific references to the record in support of this argument. Appellant's twelfth assignment of error is not well taken. IX. Appellant's remaining assignments of error state: -15- III. THE TRIAL COURT ERRED IN FINDING THAT THE VALUE OF THE PLAINTIFF'S DENTAL PRACTICE HAD INCREASED BY $85,000.00 AND FAILING TO FIND THAT SAID INCREASE WAS THE PLAINTIFF'S SEPARATE PROPERTY. V. THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF SECRETED $114,339.00 IN MARITAL ASSETS AND AWARDING SAID ASSETS TO THE PLAINTIFF IN ORDER TO ACHIEVE WHAT PURPORTED TO BE AN EQUAL DIVISION OF MARITAL ASSETS. VI. THE TRIAL COURT ERRED IN AWARDING APPELLEE VIRTUALLY ALL OF THE MARITAL PROPERTY, VIRTUALLY ALL OF THE APPELLANT'S SEPARATE PROPERTY AND THEN PROCEEDING TO MAKE A DISTRIBUTIVE AWARD TO APPELLEE. VII. THE TRIAL COURT ERRED IN FINDING THAT THE $5,881.64 AND $20,000.00 RELEASED TO THE DEFENDANT FROM THE PLAINTIFF'S RESTRAINED ACCOUNTS WAS THE DEFENDANT'S SEPARATE PREMARITAL PROPERTY AND SHOULD NOT BE CREDITED TOWARD PLAINTIFF'S SUPPORT ARREARAGE OR ATTORNEY FEE OBLIGATION. These assignments of error have been rendered moot by our resolution of appellant's first assignment of error in part I, supra, and need not be addressed. App.R. 12(A)(1)(c). Judgment affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion as stated in parts I, II, III, IV, and V. -16- Costs to be divided equally between plaintiff-appellant and defendant-appellee. It is ordered that a special mandate be sent to said court 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. SWEENEY, JAMES D., C.J., and _____________________________ JOSEPH J. NAHRA McMONAGLE, TIMOTHY E., J., CONCUR. JUDGE 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 .