Gibson v. Gibson , 87 Ohio App. 3d 426 ( 1993 )

I concur in the judgment of reversal, but I would sustain assignments of error one and two on the issue of the motionin limine and would add a comment on assignment of error three.

The motion in limine is widely misunderstood. As the majority opinion notes, the scope of the motion is rather limited. The error arising out of a motion in limine is not from the granting of the motion per se, but from the refusal to admit the evidence. Thus, like any other claim of evidentiary error, in order to preserve the claim of error on a motion in limine, the party must get the refused evidence into the record by means of a proffer.

A motion in limine is simply a pretrial procedure whereby the court orders that a party not attempt to introduce testimony at trial until it has first been proffered at trial and a ruling on its admissibility be obtained at that time. It is designed to prevent a party from dropping some bombshell in front of the jury where the prejudicial effect is such that it probably cannot be cured by any instruction. Rinehart v. Toledo Blade Co. (1985), 21 Ohio App.3d 274, 21 OBR 345, 487 N.E.2d 920.

But a motion in limine can only apply in a jury trial case. It would have no application in a bench trial because there is no way to prevent a judge from hearing about the evidence before he can rule on its admissibility.

Unfortunately, many of the trial bench and bar still consider a motion in limine to be the civil equivalent of the criminal motion to suppress. It is not. Nonetheless, we still have cases where it is treated as if it were — as in this case, for example. The trial court in this case granted what was called a motion in limine, but what the plaintiff actually asked was that only evidence about the second marriage be admissible and that evidence about the prior divorce and property settlement be declared inadmissible. The trial court called for briefs on that issue and ruled that evidence relating to the first marriage would not be admitted. It was not a ruling in limine, it was a ruling on admissibility. See State v. Fewerwerker (1985),24 Ohio App.3d 27, 24 OBR 49, 492 N.E.2d 873.

When a trial court treats a motion in limine as a final ruling on the question of admissibility, an appellate court should review it on that basis. I would sustain assignments of error one and two and decide the issue of whether evidence of the prior marriage and settlement is relevant on its merits.

The majority is absolutely correct in holding that a domestic relations court cannot award a judgment for vandalism. On the other hand, it is entirely within the power of that court to make an equitable distribution of the marital assets, and 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."

In this case, the trial court should have taken the willful damage, the destruction, out of appellee's share of the marital assets. I would explicitly reject the idea suggested by counsel for appellee that appellant must resort to a separate action to recover for the damage. The purpose of any lawsuit is to resolve issues, even a divorce action. To allow one party to destroy or waste marital property and to then require the injured party to seek redress in an entirely separate action would only compound the many vexatious, bruising divorce battles. Divorcing couples who seek vengeance cause enough problems without us encouraging that kind of conduct. The only way to stop destruction, concealment or waste of marital assets is to order that it come out of the malefactor's share of the division of property.

Thus, I concur in part and dissent in part.