O'Neal v. O'Neal , 2022 Ohio 372 ( 2022 )

[Cite as O'Neal v. O'Neal, 2022-Ohio-372.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
KATHLEEN PERRY O’NEAL, :
Plaintiff-Appellant, :
No. 110114
v. :
KENNETH JOSH O’NEAL, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: February 10, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-19-376934
Appearances:
James L. Hardiman, for appellant.
Edward M. Heindel, for appellee.
LISA B. FORBES, J.:
Kathleen Perry O’Neal (“Kathleen”) appeals from the domestic
relations court’s judgment granting her and Kenneth Josh O’Neal (“Kenneth”) a
divorce, alleging that the court erred when making various determinations
concerning marital assets and spousal support. After reviewing the facts of the case
and pertinent law, we affirm the lower court’s judgment in part, and reverse and
remand the judgment in part.
I. Facts and Procedural History
Kathleen and Kenneth were married on May 29, 1999. Kathleen filed
for divorce on May 29, 2019, representing herself pro se in the domestic relations
court. The case proceeded to a videoconference trial on October 14, 2020.
A. Divorce Trial Testimony
For ease of discussion in this opinion, our reference to the “Evening
Star” property refers to residential property that Kathleen allegedly purchased
during the parties’ marriage. Kenneth’s role in the purchase of this property is
unclear from the evidence in the record.
Wanda Ware (“Ware”) testified on behalf of Kathleen. Ware opined
that Kathleen and Kenneth’s relationship was “more of a roommate type situation.
He had his own room. She had her own room. They never did anything together.
* * * I don’t know if you want to call it a friendship. It was just never like an actual
marriage.” According to Ware, Kenneth “did not contribute to anything in the
household, as far as doing anything. And even on a financial end, as far as repairing
anything.”
Kenneth’s attorney chose not to cross-examine Ware, and the context
within which Ware knew Kathleen and Kenneth was never established.
Harold Hubbard (“Hubbard”) also testified on behalf of Kathleen.
Hubbard testified that he and Kenneth are “old friends, schoolmates. We grew up
together.” Hubbard testified that “there was a time * * * when * * * [Kenneth] didn’t
have anywhere to go. So I allowed him to move into my back room. * * * [H]e never
did pay the rent at all. * * * I just know that he wasn’t living with [Kathleen] at all
for a while.”
Kathleen testified in her case-in-chief as follows:
When Kenneth was fired, he withdrew his retirement under PERS,
$51,000, and he blew it.
Also, my retirement from Reserve was earned prior to our marriage.
My retirement from Reserve was earned in 1998.
And the [Evening Star] property that he mentioned that should be
divided was purchased by me in 2008.
Kathleen testified that Kenneth did not contribute to the
“maintenance and repairs” regarding the house. From the time the [Evening Star]
property was purchased in 2008 through “four months of 2010,” Kathleen made the
mortgage payments and paid “half of the rent on the condominium that Kenneth
moved into * * *. He moved into that condominium because he had been evicted
from two other places * * * for nonpayment of rent.”
According to Kathleen, Kenneth purchased a house in 2004, and
“contributed 700.” Kathleen “contributed 400.” Kenneth “stopped paying the note.
And the house went into foreclosure.” At some point, Kenneth moved into the
Evening Star house with Kathleen. “He paid 400.”
Kathleen testified that Kenneth “won the case against the foreclosure
in Oakwood Village, he received a total of * * * $34,000 restitution. * * * And he
spent that money.”
On cross-examination, Kathleen testified that she and Kenneth were
married on May 29, 1999, and they have no children together. She receives $956
per month in “Reserve retirement”; $3,000 per month in “Coast Guard retirement”;
and $153 per month in “other money.” Kathleen started working for the Coast
Guard in October 1967 and retired on July 3, 2014. Kathleen conceded that her
retirement benefits “acquired during the marriage” were from 1999 to 2014.
Kathleen purchased the Evening Star property on November 7, 2008,
when she was married to Kenneth. Kathleen testified that the Evening Star property
is worth “approximately $69,000”; however, she also testified that she had “no idea”
how much a reasonable buyer might pay for the property. She further testified that
she owed $72,500 on the mortgage, as well as “[t]ax liens because I haven’t filed
income taxes” since 2015.
Kenneth testified on his own behalf. He is employed by the
“Cleveland Playhouse Theaters,” where he is “in-house security” and receives “after
taxes $1,800 a month.” Kenneth was a deputy bailiff at “the court” from November
1986 to 2003, when he “walked off and * * * never returned.” He withdrew his PERS
contribution, which amounted to “around about $60,000.” Kenneth testified that
the money “is all gone now.” Specifically, he stated as follows: “I was taking care of
my personal business because I didn’t have a job at that time.”
According to Kenneth, he did not know that Kathleen bought the
Evening Star property in 2008 until “the people that came to my job for me to sign
them papers — boom, that’s when I knew she went out and bought the house.” He
testified that he and Kathleen lived in the house together starting in 2009, and he
paid “400 on the mortgage” until he moved out in September 2019.
Kenneth testified that he “looked it up,” and the house was worth
“over $100,000.” He testified that he has a 401(k) from “Playhouse Theatre,” but
he does not know how much “is in it.” He has worked at the Playhouse since July
24, 2004.
B. The Journal Entry
On October 27, 2020, the court granted the parties a divorce and
made the following findings of fact and conclusions of law pertinent to this appeal:
DIVISION OF PROPERTY
The Court finds the parties have obtained the following real property
during their marriage, all of which is determined to be assets of the
marriage: 15716 Evening Star Avenue, Maple Heights, Ohio 44137. The
property was purchased in 2008. [Kathleen] testified the home was
purchased for approximately $69,000.00 and is encumbered by a
mortgage of approximately $72,000.00.
* * * [T]he real property located at 15716 Evening Star Avenue, Maple
Heights, Ohio, 44137 is hereby ordered immediately sold and the
parties shall split equally the proceeds and/or the deficiency on the
property.
***
The Court finds the parties have the following retirement [assets]
earned during the marriage: a Coast Guard pension held by [Kathleen]
and a Fidelity 401K earned by [Kenneth].
* * * It is * * * ordered [that] all of the aforementioned retirement assets
are [marital] in nature and shall be divided equally among the parties.
* * * It is further ordered * * * [that] each party shall be entitled to gains
and losses on their respective shares of the retirement accounts.
***
The Court finds [that Kathleen] maintains the following life insurance
policy: a whole life policy from United of Omaha Life Insurance
Company, with an unknown cash value.
It is * * *ordered * * * [that Kathleen] shall surrender 50% of the cash
value of the aforementioned life insurance policy to [Kenneth] within
[30] days from the journalization of this Order.
SPOUSAL SUPPORT
The Court finds, upon considering the [following] factors * * * in [R.C.]
3105.18(C) that it is appropriate and reasonable for [Kathleen] to pay
spousal support to [Kenneth]:
(a) The income of the parties * * *: [Kathleen] derives income from
[two] retirement plans as well as social security for an approximate
monthly amount of $4,000.00. [Kenneth] is currently employed as a
security officer at Playhouse Square and makes approximately
$1,800.00 per month.
(b) The relative earning abilities of the parties: [Kathleen] is currently
retired. [Kenneth] is currently employed.
(c) The ages and physical, mental and emotional condition of the
parties: [Kathleen’s] DOB is September 27, 1946 and she is [74] and
[Kenneth’s] DOB is March 23, 1955 and he is [65]. [Kathleen] testified
she is in good physical health and has no mental or emotional
conditions. [Kenneth] testified he has arthritis and COPD and has no
mental or emotional conditions.
***
(h) The relative extent of education of the parties: [Kathleen] has an
Associate’s Degree and [Kenneth] graduated from high school and
completed peace officer training.
***
The court ordered Kathleen to pay Kenneth spousal support of $350
per month for 96 months beginning on November 1, 2021.
It is from this order regarding division of property and spousal
support that Kathleen appeals and assigns five errors for our review.
II. Law and Analysis
A. Standard of Review
In Feldman v. Feldman, 8th Dist. Cuyahoga No. 92015, 2009-Ohio-
4202, ¶ 11, this court held that
[t]he Ohio Supreme Court has long recognized that a trial court must
have discretion to do what is equitable upon the facts and
circumstances of each divorce case. Booth v. Booth, 44 Ohio St.3d 142,
144, 541 N.E.2d 1028 (1989). Thus, when reviewing a trial court’s
determination in a domestic relations case, an appellate court generally
applies an abuse of discretion standard.
“The term ‘abuse of discretion’ connotes more than an error of law or
of judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
In Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), the Ohio
Supreme Court held that “[a]lthough Adams dealt with ‘abuse of discretion’ in a
criminal law context, * * * the term has the same meaning when applied in a
domestic relations context.”
B. Civ.R. 75(M) Requirement
In her first assignment of error, Kathleen argues that “the testimony
that was provided by [Kenneth] relative to his financial situation, including his
income and its sources was not corroborated by any party, in any way.” Specifically,
Kathleen argues as follows:
[H]e acknowledged that he had owned a 401(K) through Fidelity * * *
although there was no way to corroborate any of his testimony since he
had ignored his obligations under both 3105.171(E)(3) and Local Rule
14 and failed to corroborate any of his testimony pursuant to Civ.R. 75
(M).
[S]ince there was no corroboration of the testimony presented by
[Kenneth] that supported his testimony relative to the actual date of
the marriage, the residency in Cuyahoga County or the State of Ohio
prior to the date of the actual filing of the complaint or [Kathleen’s]
pregnancy the Court should not have granted the divorce since,
pursuant to Civ.R. 75 (M), such testimony was not “[s]upported by
other credible evidence.”
[N]one of the testimony relative to ownership of property, the parties’
financial situation, including what, if any payments [Kenneth] actually
made towards the mortgage obligation or the value of [Kenneth’s]
investment with Fidelity was corroborated.
Pursuant to Civ.R. 75(M), a “[j]udgment for divorce * * * shall not be
granted upon the testimony or admission of a party not supported by other credible
evidence.” Civ.R. 75(M) appears to apply to the allegations and grounds for granting
or denying a divorce, rather than to the allocation of assets and liabilities within the
divorce. See Geiger v. Geiger, 80 Ohio App. 161, 168-169, 72 N.E.2d 766(2d Dist.1947) (“as a matter of law a divorce cannot be granted solely on the
admissions of a party, unsupported by other evidence. The corroborative evidence
must be of sufficient weight and have such probative value as to convince the court
of the truth of the admissions, and, together with such admissions prove the grounds
for divorce alleged in the petition by a preponderance of the evidence”).
In the case at hand, Kathleen filled out and filed a preprinted form
captioned “Complaint for Divorce.” Under item No. 4, which states “Plaintiff seeks
a divorce on the following grounds(s),” Kathleen checked two boxes: “Plaintiff and
Defendant are incompatible” and “Defendant has been guilty of the following.”
Plaintiff did not check any of the eight boxes listing items of which Kenneth “has
been guilty.”
Our review of the limited testimony presented in the transcript
reveals that Kathleen and Kenneth were incompatible, which, according to the
complaint, is the ground upon which Kathleen sought the divorce. This finding is
supported by testimony from all the witnesses: Kathleen, Kenneth, Ware, and
Hubbard. Because Civ.R. 75(M) relates to the alleged grounds for the divorce, and
because the parties’ incompatibility is supported by all the evidence in the record,
we cannot say that the court abused its discretion by granting Kathleen’s petition for
divorce. See Gebi v. Worku, 10th Dist. Franklin No. 17AP-75, 2017-Ohio-8462, ¶ 13,
27 (“We review a trial court’s decision regarding grounds for divorce under an abuse
of discretion standard. * * * Once one establishes grounds for divorce, the granting
of a divorce is appropriate.”).
Accordingly, her first assignment of error is overruled.
C. Disclosure Requirement
Under her second assignment of error, Kathleen argues that “in spite
of the clear mandate of Local Rule 14 and R.C. 3105.171(E)(3) [Kenneth] was
permitted to avoid compliance with the mandatory disclosure requirements which,
quite obviously, placed [Kathleen] at a distinct disadvantage and constituted an
abuse of discretion.”
R.C. 3105.171(E)(3) states that the “court shall require each spouse to
disclose in a full and complete manner all marital property, separate property, and
other assets, debts, income, and expenses of the spouse.”
Loc.R. 14 of the Court of Common Pleas of Cuyahoga County,
Domestic Relations Division, states that each party to a divorce action
shall disclose to the other all of the following:
1. All real estate deeds;
2. All vehicle titles;
3. Most recent statements regarding pensions, profit sharing plans,
retirement benefits and IRA’s including the most recent summary plan
description;
4. All life insurance policies and most recent cash value statement;
5. Last three year’s income tax returns;
6. Proof of year to date current income from all sources;
7. Health, dental and vision insurance coverage available along with all
plan options and costs including the marginal costs for covering the
minor children;
8. COBRA benefits to which either party may be entitled, including cost
estimates;
9. Child care/day care expenses;
10. Most recent statements regarding all liabilities including, but not
limited to mortgages, lines of credit, loans, and credit card accounts;
11. Financial Disclosure Statement completed pursuant to Local Rule
12;
12. Antenuptial/Prenuptial agreements;
13. Any court order involving the minor children or the marriage
including administrative support orders.
On May 29, 2019, the same day Kathleen filed her complaint for
divorce, the court issued a standard mandatory disclosure order to both parties
directing them to exchange documentation, mostly financial in nature, within 30
days of the filing of an answer.
Kenneth filed his answer in this case on July 2, 2019. On March 23,
2020, the court issued a journal entry granting Kenneth’s motion to compel
discovery, although the docket does not reflect that this motion was filed, and the
motion is not part of the record. This journal entry ordered Kathleen to produce
various financial documents to Kenneth within 14 days of the date of the journal
entry.
Upon review of Kathleen’s appellate brief, as well as the entire record
from the domestic relations court, we conclude that Kathleen fails to identify any
specific disclosure that Kenneth allegedly failed to make. We further find that,
outside of the mandatory disclosure order from the court, there is no evidence in the
record that Kathleen requested any documents from Kenneth. In her opening
statement at the divorce trial, Kathleen said, “I have not received any documents
from the defendant’s attorney. * * * I submitted all of my documents on August 17th
to the Court. And my request is for a summary judgment.”
The court asked if Kenneth’s attorney wanted to respond to
Kathleen’s statement prior to giving his opening statement on behalf of Kenneth.
Counsel declined to respond to Kathleen’s request for summary judgment, and the
court stated to Kathleen, “Your request for summary judgment is denied.”
Our review of the record does not show that Kathleen “submitted”
anything to the court on August 17.1 Furthermore, it does not appear that either
party complied with the court’s disclosure order. Kathleen fails to establish that the
court abused its discretion by “permitting” Kenneth to “avoid compliance” with
disclosure requirements. Her allegations are nothing more than mere speculation
at this point. By failing to specify potential missing documentation, Kathleen fails
to show how this may have prejudiced her. See Hardesty v. Hardesty, 11th Dist.
Geauga Nos. 2004-G-2582 and 2005-G-2614, 2006-Ohio-5648, ¶ 27 (holding that
the “trial court’s failure to address assets of which it had no knowledge” was not an
abuse of discretion. “This court can only review the trial court’s decision under the
same restraints in which the trial court was placed.”).
Accordingly, her second assignment of error is overruled.
D. Marital Property v. Separate Property
In Kathleen’s third assignment of error, she argues that “the trial
court erred and abused its discretion by failing to determine whether certain items
of property were marital or separate.”
Pursuant to R.C. 3105.171(B), “[i]n divorce proceedings, the court
shall * * * determine what constitutes marital property and what constitutes
separate property. In either case, upon making such a determination, the court shall
1 The record does not establish the year in which this occurred.
divide the marital and separate property equitably between the spouses, in
accordance with this section.”
Kathleen’s argument is based on an inaccurate assessment of the trial
court’s judgment. The domestic relations court determined, under the heading
“Division of Property,” which property was marital, and which was separate.
Specifically, the court determined that the Evening Star property, both parties’
retirement assets,2 and Kathleen’s life insurance policy were marital property.
In KeyBank Natl. Assoc. v. Guarnieri & Secrest, P.L.L., 7th Dist.
Columbiana No. 07 CO 46, 2008-Ohio-6362, ¶ 27, the court overruled an
assignment of error that was based on “a factually incorrect assertion.” The
appellant argued that the trial court erred by granting summary judgment on a
breach of trust claim. Id. The appellate court determined that the trial court did not
grant summary judgment on that claim. “[R]ather, it was dismissed for failing to
state a claim upon which relief could be granted” pursuant to Civ.R. 12(B)(6). Id.The court held that “it is inappropriate for this court to make a ruling on whether or
not [a] claim could survive summary judgment” when “[n]o ruling for summary
judgment was rendered on [the] issue * * *.” Id.Although the procedural posture of Guarnieri and the case at hand
are different, we use this analogy to stand for the proposition that overruling an
assignment of error is proper when the appellant bases his or her argument on an
2 We address under assignment of error four whether all or a portion of Kathleen’s
retirement assets were properly designated as marital assets.
inaccurate assessment of trial court proceedings. Accordingly, Kathleen’s third
assignment of error is overruled.
E. Retirement Assets Accumulated Prior to the Marriage
Pursuant to R.C. 3105.171(A)(6)(a)(ii), “separate property” includes
“[a]ny real or personal property or interest in real or personal property that was
acquired by one spouse prior to the date of the marriage * * *.”
In her fourth assignment of error, Kathleen argues that because “she
started working for the Coast Guard in October of 1967,” the “non-marital portion
of [her] Coast Guard retirement should not be subject to any type of division as a
marital asset * * *.”
Kenneth concedes this assignment of error, which is sustained.
Specifically, Kenneth concedes the following:
The trial court found the duration of the marriage to be from May 29,
1999, until October 14, 2020. To the extent that the coast guard
pension was acquired before May 29, 1999, Kenneth concedes that it
should not be divided. The only portion of the coast guard pension that
ought to be divided is the portion that was acquired during the
marriage.
In the case at hand, there is evidence in the record that Kathleen
started working for the Coast Guard in 1967, the parties married in 1999, and
Kathleen retired in 2014. Therefore, this case is remanded to the domestic relations
court for modification of the division of property, which currently states that all of
Kathleen’s retirement benefits are marital assets, to reflect the aforementioned
concession.
F. Financial Misconduct
In her fifth and final assignment of error, Kathleen argues that “in
ignoring [Kenneth’s] admitted financial misconduct and dissipation of marital
assets the trial Court committed an abuse of discretion in awarding spousal
support.” Specifically, Kathleen argues that the following four actions constitute
“financial misconduct” by Kenneth:
Failure to contribute to the household mortgage in spite of his presence
in the home.
Dissipation of marital assets including some $60,000.00 from his
PERS retirement account and approximately $34,000.00 from the
proceeds from a lawsuit.
Payment of his personal debts while leaving to [Kathleen] the
responsibility to address down payment and household mortgage.
Walking away from his employment and leaving the household
expenses to [Kathleen].
Pursuant to R.C. 3105.171(E)(4), “If a spouse has engaged in financial
misconduct, including, but not limited to, the dissipation, destruction, concealment,
nondisclosure, or fraudulent disposition of assets, the court may compensate the
offended spouse with a distributive award or with a greater award of marital
property.” Furthermore, under R.C. 3105.18(C)(1)(n), the court, when determining
the amount of spousal support, “shall consider * * * [a]ny * * * factor that the court
expressly finds to be relevant and equitable.”
At trial in the case at hand, Kathleen testified that, during their
marriage, Kenneth withdrew and spent all of his retirement, was evicted from at
least one rental property for nonpayment of rent even though Kathleen paid half of
his rent, and purchased a house that “went into foreclosure.” Kenneth corroborated
Kathleen’s testimony that he withdrew his retirement and spent it all, which
amounted to “around $60,000.”
“The burden of proving financial misconduct is on the complaining
spouse. Financial misconduct implies some type of wrongdoing in that the
offending spouse will either profit from the misconduct or intentionally defeat the
other spouse’s distribution of marital assets.” Bostick v. Bostick, 8th Dist. Cuyahoga
No. 90711, 2008-Ohio-5119, ¶ 23.
In Haynes v. Haynes, 8th Dist. Cuyahoga No. 92224, 2009-Ohio-
5360, this court found that the domestic relations court abused its discretion by
finding financial misconduct by both parties but not modifying the distributive
award accordingly. Specifically, the husband in Haynes “acknowledged incurring a
great deal of debt during the marriage without [the wife’s] knowledge.” Id. at ¶ 38.
The parties refinanced one of their properties during their marriage to pay off the
husband’s $56,899.78 credit card debt. Id. Furthermore, the wife in Haynes spent
more than $125,000 gambling at casinos during the marriage. Id. at ¶ 37. The
magistrate found that the husband “should be compensated with a distributive
award of marital property in the amount of $25,000.” Id. at ¶ 39. The trial court
“disregarded the magistrate’s recommendation and chose to make no distributive
award.” Id. at ¶ 41. This court found that the domestic relations court abused its
discretion and reversed and remanded “the matter to the trial court with respect to
the division of marital assets.” Id. at ¶ 49.
Following Haynes, we find that the domestic relations court abused
its discretion by failing to find financial misconduct and failing to account for this
misconduct in the division of property or spousal support. It is undisputed that
Kenneth dissipated his retirement in the amount of approximately $60,000. Under
Ohio law, some of this retirement money was marital property of which Kathleen
was entitled to half. Additionally, it is unclear from the record how much money —
if any — Kathleen is entitled to as compensation for Kenneth’s financial misconduct
regarding eviction from and foreclosure of real property, which should be reflected
in the distributive award of marital property or an adjustment in the amount of
spousal support.
Accordingly, Kathleen’s fifth assignment of error is sustained.
III. Conclusion
Judgment affirmed in part and reversed and remanded in part. The
division of property and spousal support awards are affirmed as noted in
assignments of error Nos. 1, 2, and 3. The division of property and spousal support
awards are reversed as noted in assignments of error Nos. 4 and 5. This case is
remanded to the domestic relations court for modification of the division of property
and spousal support to take into consideration Kathleen’s retirement account from
1999-2014 as noted in assignment of error No. 4 and Kenneth’s financial misconduct
as noted in assignment of error No. 5.
Affirmed in part, reversed in part, and remanded to the lower court
for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
LISA B. FORBES, JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR