COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70653 & 70679 GERALDINE BEARD CHANEY : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION and cross-appellee : -vs- : : EDWARD ALLEN CHANEY : : Defendant-appellee : and cross-appellant : DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Domestic Relations Division Case No. CP-D-210788 JUDGMENT: Affirmed in part and Reversed in part. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: RAMON BASIE, ESQ. ANDREW L. JOHNSON, ESQ. 3669 Lee Road 733 Leader Building Shaker Hts., Ohio 44120 526 Superior Avenue Cleveland, Ohio 44114 -2- DYKE, P.J.: Appellant, Geraldine Beard Chaney, is appealing the journal entry of the Common Pleas Court, Domestic Relations Division dated 4-17-96 and a nunc pro tunc journal entry correcting the above journal entry, dated 5-15-96, in case number 70653. Cross- appellant, Edward Allen Chaney appeals these same journal entries in case number 70679. For the following reasons, we affirm in part and reverse in part. Appellant-plaintiff was granted a divorce in a journal entry dated June 6, 1994. Cross-appellant filed a motion for a new trial on various grounds. A hearing was held on this motion on February 14, 1995 and March 17, 1995. The trial court granted the motion for a new trial in part, and denied the motion in part. The court made changes to the journal entry of divorce in the journal entries which are the subject of this appeal. As an initial matter, we must rule on cross-appellant's Motion to Strike Appellant's Reply Answer Brief in Opposition to Cross- Appellant's Reply Brief. Only the first page and top of the second page of Appellant's Reply Answer Brief are responsive to Cross- Appellant's Reply Brief. Loc. App. R. 6. requires reply briefs be responsive to an answer brief. Therefore, we strike the non- responsive portions of the reply answer brief. Appellant is not prejudiced by this ruling because the stricken portions of the Reply Answer Brief appear to be a verbatim copy of appellant's brief in opposition, filed April 4, 1997. -3- Appellant's assignments of error will be considered out of order. I. Appellant's fourth assignment of error states: THE COURT ERRED IN AWARDING THE DEFENDANT HUSBAND THE SUM OF $9,000.00 WHICH REPRESENTS ONE-HALF OF APPELLANT WIFE'S PERS PENSION THAT SHE ENTIRELY EARNED BEFORE HER MARRIAGE TO THE APPELLEE. The PERS account was listed on the husband's 1992 pre-trial statement. The PERS account was not mentioned in the journal entry of divorce. Appellee-husband moved for a new trial on the ground that the judgment was not supported by the manifest weight of the evidence, because appellant falsely testified that she expended all the money in her PERS account to pay household bills. See Civ. R. 59(A)(6). A full transcript of the original divorce trial was not in the record on appeal. Appellant testified at the hearing on the motion for a new trial that she earned the PERS account while working at Metro Hospital from 1980 to 1989. The journal entry of divorce states that the period of the marriage was March 30, 1985 to June 6, 1994. No evidence was presented concerning what proportion of the PERS account was earned before the marriage. Appellant testified she withdrew the entire amount of the PERS account, $18,000, in February, 1990. She purchased $10,000 of savings bonds with the proceeds. She completely expended the bonds and other PERS funds on household expenses from 1991 to 1993, when appellee was no longer living in the marital home. Appellant testified as to some of the expenditures, but did not present any -4- documentation. Appellant stated that at the original trial, she presented documentation. She no longer had these records because her home was burglarized. Appellee did not present any evidence showing the bonds or other PERS funds still existed. The trial court's order after the hearing on the motion for a new trial states: Defendant is entitled to one-half (1/2) of plaintiff's PERS in the amount of $9,000.00. Plaintiff's admission that she withdrew $18,000.00 for household expenses is without corroboration or evidentiary proof. The trial court's decision to grant a new trial can only be reversed if the trial court abused its discretion, unless a new trial is granted due to an error of law and the trial court's decision was contrary to law. See Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio St.3d 144, Markan v. Sawchyn (1987), 36 Ohio App.3d 136. The bases for granting a new trial must be specifically stated in order to allow a reviewing court to determine whether the trial court erred or abused its discretion in ordering a new trial. Antal, supra, Winson v. Fauth (1989), 63 Ohio App.3d 738, Allis-Chalmers Credit Corp. v. Majestic Steel Serv., Inc. (1984), 14 Ohio App.3d 325. If a trial court does not specifically state its grounds, the order granting a new trial must be reversed and remanded in order for the trial court to reconsider its decision and specify a reason for granting the new trial. Winson, Allis-Chalmers, supra. In this case, the trial court did not specify why it granted a new trial on the issue of the PERS account. It is not clear from the record why a new trial was granted on this issue. This court -5- is unable to review this assignment of error. Accordingly, we reverse and remand the decision of the trial court granting a new trial on the PERS issue. We note that if the new trial was granted on the manifest weight of the evidence, this court would have to affirm the decision of the trial court, as no transcript of the original trial was submitted. See generally Rohde v. Farmer (1970), 23 Ohio St.2d 82, 94, Tobler v. Hannon (1995), 105 Ohio App.3d 128, 130. If appellant fails to present the record on appeal, the reviewing court must presume validity of the lower court's action. Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197, 199. Appellant had the burden to show the asset was dissipated for reasonable support. Spychalski v. Spychalski (1992), 80 Ohio App.3d 10. She failed to do so at the hearing on the motion for a new trial. Appellant did not present evidence as to what proportion of the PERS account was non-marital. See Peck v. Peck (1994), 96 Ohio App.3d 731 However, the basis for the trial court's decision to grant a new trial is unclear, so we must reverse and remand the trial court's order dividing the PERS account. Accordingly, this assignment of error is sustained. II. Appellant's first assignment of error states: THE COURT ERRED IN AWARDING THE DEFENDANT-HUSBAND A CREDIT OF $5,000.00 AS HIS SHARE OF U.S. SAVINGS BONDS WHICH WERE OWNED BY THE PLAINTIFF AND/OR HER DAUGHTER VALARIE (SIC) - ISSUE OF PLAINTIFF'S FIRST MARRIAGE. The original journal entry of divorce did not mention the savings bonds. Appellee moved for a new trial based on Civ. R. -6- 59(A)(6), claiming appellant presented false testimony that she had spent the bonds on household expenses. The trial court modified the original journal entry, stating: The Court finds plaintiff has not accounted for $10,000.00 in U.S. Savings Bonds, and awards one-half (1/2) of same, to wit $5,000.00 to defendant. The court's journal entry does not specify the basis for granting a new trial, so the trial court's decision on this issue must be reversed and remanded. We note that the bonds are essentially the same asset as the PERS account. At the hearing on the motion for a new trial, appellant testified that she purchased savings bonds using the proceeds of the PERS account. The court could not give credit for half of the PERS account and half of bonds, when they are essentially the same asset. However, we must reverse and remand because the court failed to specify its reasons for granting a new trial on this issue. Accordingly, this assignment of error is sustained. III. Appellant's second assignment of error states: THE COURT INITIALLY AWARDED THE APPELLANT WIFE ONE-HALF OF THE MORTGAGE PAYMENTS FOR THE MARITAL HOME THAT THE APPELLEE HUSBAND FAILED TO PAY FOR A 34 MONTH PERIOD TOTALING $15,504.00. THE TRIAL COURT REVERSED ITSELF UPON HEARING THE MOTION FOR A NEW (SIC) TRIAL DIS- REGARDING THE FACT THAT THE APPELLEE HUSBAND CONCEALED THE FACT THAT HE WAS A FULLY EMPLOYED TEACHER IN THE CLEVELAND SCHOOL SYSTEM. The journal entry of divorce dated June 6, 1994 awarded the marital home to appellant-wife, with credit of one-half the equity -7- to appellee-husband. Each party would be responsible for one-half the marital debt, including one-half of the mortgage. Appellee was no longer living in the marital residence as of July, 1991. He did not contribute to any mortgage payments from July, 1991 to June, 1994. The journal entry of divorce stated that appellee owed appellant $15,504, representing one half of the mortgage payments from July, 1991 through June, 1994. This amount was added to the arrearage owed by appellee. However, a temporary support order dated January 15, 1992 and signed by Judge Celebrezze, ordered appellant to pay the entire mortgage, and appellee to pay temporary support. Judge Stanley Fisher was unaware of this prior order when he entered the June 6, 1994 journal entry. At the hearing on the motion for a new trial, the temporary support order was brought to the court's attention. The trial court's subsequent order stated that upon reconsideration, the $15,504 for appellee's share of the mortgage be credited to appellee. The record is clear as to why a new trial was granted on this issue. A new trial may be granted if the trial court's decision was contrary to law. Civ. R. 59(A)(7). A court can not retroactively modify temporary support orders. See Brown v. L.A. Wells Const. Co. (1944), 143 Ohio St. 580, see also R.C. 3113.21(M)(3), Merkle v. Merkle (1996), 115 Ohio App.3d 748, 754. The trial court did not err in correcting its prior decision, which was contrary to law. -8- Appellant contends that the temporary support order was incorrect, because appellee concealed the fact that he was working as a teacher. Appellant presents no record from which it can be determined that the trial court erred in making the temporary support order. Accordingly, this assignment of error is overruled. IV. Appellant's third assignment of error states: THE COURT ERRED IN AWARDING A CREDIT OF $2,000.00 TO THE APPELLEE HUSBAND FOR THE 1988 TOYOTA OWNED BY THE APPEL- LANT WIFE, WITHOUT AWARDING HER ANY CREDIT FOR THE APPELLEE'S 1982 VOLVO WHICH HE TOTALED IN AN ACCIDENT AND FOR THE EQUITABLE VALUE OF THE NEW LEXUS WHICH HE THEN PURCHASED. At the hearing on the motion for a new trial, appellee argued that the appellant's Toyota automobile was listed as an asset on the pretrial statements, but this property was never divided. The court credited appellee with half the value of this automobile. The testimony on the hearing on the motion for a new trial indicated that appellee totaled his 1982 Volvo, and was now driving a Lexus. Appellee's pretrial statement did not list the Volvo or the Lexus. Appellant's pretrial statement could not be located in the file. A full transcript of the original trial was not submitted. A new trial may be granted for a mistake which could not have been prevented in the exercise of reasonable diligence. Civ. R. 59(A)(3). We can not say that the trial court abused its -9- discretion in finding that evidence concerning the automobile was presented at the original trial, but the court mistakenly failed to divide the property. Appellant has not demonstrated that the appellee's automobile was brought to the court's attention in the original trial. Accordingly, this assignment of error is overruled. V. Cross-appellant-husband's first and second assignments of error are interrelated. They state: THE TRIAL COURT ERRED ON THE NEW TRIAL IN ITS REAFFIRMATION OF THE ACCEPTANCE OF THE $119,000.00 APPRAISAL VALUE OF THE MARITAL RESIDENCE, DESPITE CROSS- APPELLANT'S OFFER OF A HIGHER $148,000.00 APPRAISAL PREPARED BY EVERETT J. PREWITT. THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT THE REASONABLE VALUE OF THE MARITAL RESIDENCE WAS $119,000.00, AS DETERMINED DURING THE ORIGINAL DIVORCE TRIAL. As appellant was awarded the marital home, cross-appellant was given a credit of half the equity in the home towards his support arrearage. Cross-appellant claimed newly discovered evidence as to the value of the real estate. Cross-appellant appears to argue that he did not have a chance to object to the $119,000 figure, because he appeared without counsel at the June 6, 1994 hearing. Cross-appellant's counsel, Pinkie Clark, filed a motion to withdraw on 5-23-94. The court would not allow a recess for cross-appellant to obtain new counsel, because cross-appellant was represented by counsel at all the prior hearings when the evidence was taken. The purpose of the June 6, -10- 1994 proceeding was solely to read the court's findings into the record. The court also noted that Ms. Clark was cross-appellant's fifth counsel of record. The $119,000 appraisal was directed by the court and was made in 1992. The appraisal was introduced into evidence as a court exhibit on March 8, 1994. Cross-appellant was represented by counsel at that time. Cross-appellant did not object to the appraisal and did not offer his own appraisal, although he had every opportunity to do so. At the hearing on the motion for a new trial, cross-appellant presented another appraisal conducted in February, 1995. This appraisal stated the value of the property was $148,000 as of June 6, 1994. The 1995 appraisal was not newly discovered evidence because it could have been discovered in the exercise of due diligence at the time of trial. See Sheen v. Kubiac (1936), 131 Ohio St. 52, Douglas Elec. Corp. v. Grace (1990), 70 Ohio App.3d 7. Cross- appellant was not entitled to a new trial on the issue of the appraisal of the marital home. Cross-appellant asserts that his motion for a new trial was granted, so the court was required to try the entire case de novo. The trial court did not grant the motion for a new trial, but held a hearing on whether to grant the motion for a new trial. The trial court may order a new trial on some issues, and allow the issues tried free of error to stand. Mast v. Doctor's Hospital -11- North(1976), 46 Ohio St.2d 539. The issue of the valuation of the home was tried free from error and should stand. Accordingly, this assignment of error is overruled. VI. Cross-appellant's third assignment of error states: THE TRIAL COURT ERRED ON THE NEW TRIAL IN FINDING THAT THE CHILD SUPPORT SHALL REMAIN IN FULL FORCE AND EFFECT, SUBJECT TO FURTHER ORDER OF THE COURT. Cross-appellee-wife was granted custody of the parties' daughter, Ashley. The transcript of the June 6, 1994 hearing states that the Judge originally ordered $311.60 per month child support, based on cross-appellant's income of $15,000 as a school teacher, and $5,000 imputed income for the summer. Cross-appellant objected, and the Judge agreed to use the $15,000 figure. The Judge ordered $162.15 per month child support. However, the journal entry dated June 6, 1994 stated cross-appellant must pay $311.60 per month. The cross-appellant's motion for a new trial asserted that the court made a clerical error in using the $311.60 figure in the journal entry. The journal entry after the hearing on the motion for a new trial states that the child support order shall remain in full force and effect. Cross-appellee's appellate briefs concede that the $311.60 figure is in error. The trial court should have corrected this error, pursuant to Civ. R. 60(A). Accordingly, this assignment of error is sustained. -12- VII. Cross-appellant's fourth assignment of error states: THE TRIAL COURT ERRED BY ITS FAILURE TO RENDER ANY DECI- SION ON THE EQUITABLE DISTRIBUTION OF CERTAIN PERSONAL PROPERTY OBTAINED DURING THE MARRIAGE, EVEN THOUGH SUB- STANTIAL EVIDENCE AND TESTIMONY WAS TAKEN BY THE COURT ON THIS ISSUE DURING THE NEW TRIAL. Exhibit B , submitted in the original divorce trial, was a list of property to be returned to each party. At the June 6, 1994 proceeding, cross-appellant stated that he had not received all the items on Exhibit B . Cross-appellee admitted that she had not turned over all the property belonging to cross-appellant as listed on Exhibit B. Cross-appellee said that all her personal property had not been returned to her. Cross-appellant also stated that Exhibit B did not list all the items of property which belonged to him. Cross-appellee said all cross-appellant's property was on the list. The judge stated that the personalty award would be in accordance with Exhibit B. The journal entry dated June 6, 1994 stated that cross-appellee had in fact turned the property over to cross-appellant. At the hearing on February, 1995, the wife again admitted that she had not returned all of cross-appellant's items listed on Exhibit B. Cross-appellee stated that some of the items claimed by cross-appellant were stolen by a burglar in August of 1994. Cross- appellee received $5,003.06 total from the insurance company for the stolen items. The wife stated that there are items on the list which cross-appellant was required to turn over to her, but she has not received them. -13- Cross-appellant testified that most of the items on Exhibit B had not been returned to him. He admitted he had not returned some of the wife's items. He submitted a list of items he had not received, including items which were not on Exhibit B. Cross-appellant stated that the wife had $4,750 of artwork, an item not included on Exhibit B, which cross-appellant held on consignment from the artist. The parties have a lawsuit in Cuyahoga County Common Pleas Court over which party is entitled to possession of the art. Some of the art was stolen by the burglar, and compensation was included in the $5,003.06 insurance proceeds. The court awarded cross-appellant one half of the insurance proceeds from the burglary, amounting to $2,501.53. The court made no other orders as to the personal property. The trial court did not err in failing to award cross- appellant other personal property not on Exhibit B. Cross- appellant had every opportunity to claim these items at the first trial. The trial court should have stricken the language in its prior journal entry, stating that the parties received all their personal property from the other party. This statement was mistaken and against the manifest weight of evidence. Civ. R. 59(A)(3),(6). The court should order the parties to turn over the property specified in Exhibit B to the proper party, except for those items stolen in the burglary. -14- Accordingly, this assignment of error is sustained in part and overruled in part. VIII. Cross-appellant's fifth assignment of error states: THE TRIAL COURT ERRED ON THE NEW TRIAL IN ITS AWARD OF $10,000.00 ATTORNEY FEES TO APPELLANT (CROSS-APPELLEE) AS SPOUSAL SUPPORT. Cross-appellant's motion for a new trial asserted that attor- ney's fees were awarded in violation of Local Rule 21 of the Court of Common Pleas of Cuyahoga County, Division of Domestic Relations. Cross-appellant asserts there was no written request for fees. See Loc. R. 21. Attorney fees were requested in the cross-appellee's complaint for divorce. Cross-appellant asserts no itemized bill was filed, but same was filed as Plaintiff's Exhibit 18 and is contained in the record on appeal. Cross-appellant fails to demonstrate that the court did not inquire into the fees during the original trial. There is no transcript of the original trial before this court. Accordingly, this assignment of error is overruled. In summary, the decision of the trial court is reversed as follows: The trial court erred by failing to state its reasoning for granting the husband a new trial on the issues concerning the PERS account and the savings bonds. The trial court erred in failing to correct the clerical error as to the amount of child support, the proper amount being $162.15 per month. The trial court should correct its order to reflect that certain items of personal property as listed in Exhibit B have not been turned over -15- to the proper party. The trial court should order both parties to return these items, except for the items stolen in the burglary. Otherwise, the decision of the trial court is affirmed. -16- It is ordered that appellee and appellant split the 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 Common Pleas Court, 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. KARPINSKI, J., AND SWEENEY, J., CONCUR. ANN DYKE PRESIDING 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 .