[Cite as Henry v. Henry,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

ANGELA D. HENRY,

PLAINTIFF-APPELLANT, CASE NO. 8-11-04

v.

BRIAN E. HENRY, OPINION

DEFENDANT-APPELLEE.

Appeal from Logan County Common Pleas Court Domestic Relations Division Trial Court No. DR06-01-0035

Judgment Affirmed

Date of Decision: February 21, 2012

APPEARANCES:

Angela D. Henry, Appellant

Linda J. Cushman for Appellee

SHAW, P.J. Case No. 8-11-04

{¶1} Plaintiff-appellant, Angela D. Henry (“Angela”), appeals from the

February 9, 2011 judgment of the Logan County Court of Common Pleas,

Division of Domestic Relations, granting the parties a divorce.

{¶2} Angela and defendant-appellee, Brian E. Henry (“Brian”), were

married on June 9, 1999. No children were born as issue of their marriage.

{¶3} On January 27, 2006, Angela filed for divorce, and on February 22,

2006, Brian counter-claimed for divorce. The parties separated in March of 2006,

and temporary orders were filed on April 5, 2006. Final hearings were conducted

on June 9, 2006, October 5, 2006, and October 12, 2006. The magistrate filed his

decision on February 21, 2007. Both parties objected to parts of the magistrate’s

decision, and on December 24, 2007, the trial court overruled both parties’

objections. On May 13, 2008, the trial court issued its final decree of divorce.

Angela appealed the judgment of the trial court, asserting nine assignments of

error.

{¶4} On July 13, 2009, this Court vacated the judgment of the trial court,

and reversed and remanded the matter, concluding “that several of the trial court’s

findings [were] either inconsistent or unsupported by the record.” Henry v. Henry,

3rd Dist. No. 8-08-12,

.

{¶5} Upon remand, the trial court ordered the parties to participate in

mediation. The parties subsequently reached a “limited agreement” regarding the

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division of personal property and household assets, and Angela’s entitlement to a

portion of Brian’s retirement accounts.

{¶6} On December 7, 2009, the trial court issued temporary orders granting

Angela spousal support in the amount of $75.00 per week and ordered the parties

to attend mediation prior to pre-trial to attempt to resolve and settle, by way of

stipulation, any matters upon which the parties may agree. The trial court also

summarily determined that “a re-trial of the Divorce in it’s [sic] entirety is in

order.” (JE Dec. 7, 2009).

{¶7} On January 25, 2010, the parties appeared before the magistrate for a

pre-trial hearing. The final divorce hearing took place on February 19, 2010.

{¶8} On July 12, 2010, the magistrate issued his decision, stating his

conclusions and recommendations. Brian filed objections to the magistrate’s

decision with the trial court, but failed to file the transcript of the magistrate’s

proceedings within the thirty-day timeframe required by Civ.R. 53(D)(3)(b)(iii).

Angela did not file her own objections to the magistrate’s July 12, 2010 decision,

but instead filed a response to Brian’s objections, in which she stated that she

“agrees with the findings of the Magistrate and believes his decision is fair and

equitable to both parties.” (Pl. Resp. to Def. Obj. July 28, 2010).

{¶9} On September 16, 2010, the trial court overruled Brian’s objections

and adopted the findings of fact and conclusions of law contained in the

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magistrate’s decision. The trial court ordered “the parties to file a joint stipulation

as to the amounts due and owing on the [residence located at] 256 [County Road]

113 and the 316-318 and 320 North Detroit Street properties as ordered in

paragraphs 6 and 7 of the magistrate’s decision, and the balance sheet provided in

paragraph 11 of the magistrate’s decision. This joint stipulation and balance sheet

shall be filed within thirty days of this judgment, and shall be accompanied by a

proposed final judgment entry of divorce for the court’s journalization.” (JE Sept.

16, 2011 at 4).

{¶10} On November 2, 2010, after reviewing the proposed judgment entries

submitted by the parties, the trial court filed a judgment entry remanding the case

to the magistrate for the limited purpose of resolving two specific issues. First, the

trial court noted that the magistrate never considered whether Angela is entitled to

certain farm rental income and ordered him to address this issue. The second issue

the trial court remanded to the magistrate concerned the valuation of any marital

equity in the former marital home located at 256 CR 113.

{¶11} On November 16, 2010, the magistrate entered his “Findings on

Remand” in which he determined that Angela was equally entitled to the farm

rental income. The magistrate also determined that the real estate located at 256

CR 113 is Brian’s separate property due to the fact that he acquired the property

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prior to the parties’ marriage, but that Angela was entitled to half of the marital

equity accrued in the home after the parties married.

{¶12} On December 1, 2010, Angela filed objections to the magistrate’s

supplemental decision. In particular, Angela objected to the magistrate’s finding

that the real estate located at 256 CR 113 is Brian’s separate property. Angela also

objected to the magistrate’s finding in his July 12, 2010 decision that the rental

properties located at 316-318 and 320 North Detroit Street are marital property.

{¶13} On February 9, 2011, the trial court issued the parties’ final divorce

decree, adopting the findings and conclusions contained in the magistrate’s July

12, 2010 and November 16, 2010 decisions. Angela appealed the decision of the

trial court, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AND WENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO APPEALS COURT ORDERS IN HAVING A DE NOVO HEARING INSTEAD OF SIMPLY DOING THE JUDGMENT ENTRY OVER AGAIN AS ORDERED BY THE APPEALS COURT.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AND WENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW IN ALLOWING THE TESTIMONY OF AN “EXPERT WITNESS” WHEN PLAINTIFF WAS NOT GIVEN A LIST OF WITNESSES OR REPORTS.

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ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AND WENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW IN NOT ALLOWING PLAINTIFF/APPELLANT [TO] BE REPRESENTED BY COUNSEL.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT FINDING THE PROPERTY AT CO. RD. 113 WEST, BELLEFONTAINE, OHIO TO HAVE BEEN CONVERTED AND TRANSMUTED INTO MARITAL PROPERTY.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AND WENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN NOT ALLOWING PLAINTIFF TO GET HER PERSONAL PROPERTY.

{¶14} For ease of discussion, we elect to address some of Angela’s

assignments of error together and out of order.

Third Assignment of Error

{¶15} In her third assignment of error, Angela asserts that the trial court

erred “in not allowing [her to] be represented by counsel.” Specifically, Angela

claims that “[t]he Judge did not adequately determine if it was necessary to have

[her] rights protected during a hearing he simply, arbitrarily and randomly stated

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an immediate ‘no’ with total disregard for the fact that [she] would not be able to

properly represent herself.” (Appt. Brief at 10-11).

{¶16} Initially, we note that Angela failed to file a transcript of the trial

court proceedings in which she claims the trial court denied her access to counsel.

The appellant bears the burden of demonstrating error by reference to the record of

the trial court proceedings, and it is the appellant’s duty to provide the reviewing

court with an adequate transcript. Knapp v. Edwards Laboratories,

,

(1980); see App.R. 9(B). Thus, we are limited in our

review of this issue and must presume the regularity of the trial court proceedings

in the absence of evidence to the contrary. Burrell v. Kassicieh,

,

(3d Dist. 1998).

{¶17} In addition, the right to be represented by counsel in a civil

proceeding where the state seeks to take the party’s life, liberty, or property is

guaranteed by the Fifth Amendment to the United States Constitution as applied to

the states by the Fourteenth Amendment. Roth v. Roth,

(6th Dist. 1989). However, litigants have no generalized right to appointed counsel

in civil actions. See State ex rel. Jenkins v. Stern,

,

(1987). Especially in a civil case between individual litigants, there is

no constitutional right to representation.

.

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{¶18} Moreover, the record indicates that Angela had ample time to retain

an attorney between this Court’s remand of this case to the trial court on July 13,

2009, and the trial on the matter on February 19, 2010.

{¶19} For all these reasons, Angela’s third assignment of error is overruled.

First Assignment of Error

{¶20} In her first assignment of error, Angela argues that the trial court

erred in ordering a de novo hearing on remand from this Court, rather than simply

re-writing the final divorce decree using the evidence from the previous

proceedings. In particular, Angela claims that the trial court’s decision to hold a

de novo hearing is contrary to the prior judgment of this Court in Henry v. Henry,

3rd Dist. No. 8-08-12,

. In making this assertion, Angela

misconstrues the reasoning of this Court in our prior decision.

{¶21} Angela raised nine assignments in the previous appeal which

primarily involved the trial court’s division and distribution of marital property

and debt, and the award of spousal support to Angela. In that decision, we pointed

out numerous discrepancies between the findings of the trial court and the

evidence in the record. One of our primary concerns with the trial court’s

judgment was that, in several areas, it appeared to be inconsistent with the findings

and conclusions of the magistrate without providing any explanation. We were

also troubled by the fact that the record, particularly the distribution sheet listing

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the parties’ debts and assets, did not appear to support the findings of the trial

court. Because of these substantive issues, we vacated the judgment of the trial

court and, reversed and remanded the case for further proceedings. Vacate means

“[t]o nullify or cancel; make void; invalidate * * *.” Black’s Law Dictionary (9th

Ed. 2009), at 1688. We did not order, as Angela argues, for the trial court to

simply “re-write” the final divorce decree.

{¶22} Upon remand, the trial court determined that a de novo hearing was

warranted. Given the state of the record in the previous proceedings, and in

particular our inability to discern any legitimate basis from the record to support

the trial court’s conclusions in those proceedings, we believe that the trial court’s

decision to hold a de novo hearing on remand was prudent and did not constitute

an abuse of discretion. Notably, Angela fails to cite to any case law in support of

her position that the trial court abused its discretion in ordering a de novo hearing

under these circumstances.

{¶23} Moreover, prior to the de novo hearing, the parties were able to

stipulate and agree to many of the issues assigned as error in the first appeal. By

the time the parties appeared before the magistrate at the de novo hearing, only

three issues remained contested. Even assuming arguendo that the trial court

erred in ordering a de novo hearing upon remand, Angela fails to demonstrate any

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prejudice suffered as a result of the trial court’s decision. Angela’s first

assignment of error is overruled.

Second and Fifth Assignments of Error

{¶24} In her second and fifth assignments of error, Angela challenges the

admissibility of the testimony elicited from Brian’s expert witness at trial

regarding the valuation of the marital real estate at the termination of the parties’

marriage. Angela also argues that the magistrate and trial court erred in not

allowing her to retrieve her personal property from Brian’s home. Notably,

Angela did not object to the admissibility of Brian’s expert witness at the trial

proceedings. Angela also did not present any evidence at trial relating to her

personal items which remained in Brian’s home for the magistrate to consider and

rule upon.

{¶25} In addition, Angela failed to raise these issues before the trial court

by specifying her challenges on these points in the form of an objection to either

of the magistrate’s decisions addressing these matters. Because Angela did not

object to these specific portions of the magistrate’s decisions she cannot now raise

them on appeal.

{¶26} Civil Rule 53(D)(3)(b)(ii) governs the filing of objections to a

magistrate’s decision and provides that “[a]n objection to a magistrate’s decision

shall be specific and state with particularity all grounds for objection.” Except for

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a claim of plain error, a party is prohibited from assigning as error on appeal the

trial court’s adoption of any finding of fact or legal conclusion, unless that party

has objected to that finding or conclusion to the trial court. Civ.R.

53(D)(3)(b)(iv).

{¶27} Consequently, Angela has waived all but plain error in the trial

court’s judgment. The plain error doctrine is not favored in civil appeals, and

“may be applied only in the extremely rare case involving exceptional

circumstances where error, to which no objection was made at the trial court,

seriously affects the basic fairness, integrity, or public reputation of the judicial

process, thereby challenging the legitimacy of the underlying judicial process

itself.” Goldfuss v. Davidson,

,

,

, syllabus.

{¶28} After a thorough review of the record, we do not find exceptional

circumstances in this present case affecting the fairness or integrity of the judicial

process to constitute plain error.

{¶29} We note that Angela asks this court for leniency in its determination

because she was unrepresented by counsel. However, a party proceeding pro se is

held to the same procedural standards as other litigants that have retained counsel.

State ex rel. Fuller v. Mengel,

, 2003–Ohio–6448,

, at ¶ 10. While a court may grant a certain amount of latitude toward pro se

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litigants, the court cannot simply disregard the Rules of Civil Procedure in order to

accommodate a party who fails to obtain counsel. Pinnacle Credit Servs., LLC v.

Kuzniak, 7th Dist. No. 08 MA 111, 2009–Ohio–1021, at ¶ 30. Accordingly,

Angela’s second and fifth assignments of error are overruled.

Fourth Assignment of Error

{¶30} In her fourth assignment of error, Angela contests the trial court’s

determination and division of marital and separate property regarding two specific

pieces of real estate: 1) the marital home located at 256 CR 113, West,

Bellefontaine, Ohio and; 2) the parties’ rental properties located at 316-318 and

320 North Detroit Street, Bellefontaine, Ohio.

{¶31} In a divorce proceeding, the trial court must determine whether

property is marital or separate. Gibson v. Gibson, 3d Dist. No. 9–07–06, 2007–

Ohio–6965, ¶ 29, citing R.C. 3105.171(B), (D). This Court reviews a trial court’s

classification of property as marital or separate under a manifest weight of the

evidence standard. Gibson at ¶ 26 (citations omitted). Accordingly, we will not

reverse the trial court’s judgment in this regard if the decision is supported by

some competent, credible evidence. DeWitt v. DeWitt, 3d Dist. No. 9–02–42,

2003–Ohio–851, ¶ 10.

{¶32} Once the trial court classifies the property, it must then “divide the

marital and separate property equitably between the spouses * * *.” R.C.

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3105.171(B). The Revised Code further requires that a trial court divide the

marital property equally unless an equal division would be inequitable, in which

case “the court shall not divide the marital property equally but instead shall

divide it between the spouses in the manner the court determines equitable.” R.C.

3105.171(C)(1). Trial courts have “broad discretion to determine what property

division is equitable in a divorce proceeding.” Cherry v. Cherry,

,

(1981). A trial court’s decision allocating marital

property and debt will not be reversed absent an abuse of discretion. Jackson v

Jackson, 2008–Ohio–1482, ¶ 15 (3d Dist.), citing Holcomb v. Holcomb,

,

(1989).

{¶33} Marital property includes property that is currently owned by either

or both spouses and that was acquired by either or both of the spouses during the

marriage. See R.C. 3105.171(A)(3)(a). Property acquired during a marriage is

presumed to be marital property unless it can be shown to be separate. Huelskamp

v. Huelskamp,

, 2009–Ohio–6864,

.

1. The real estate located at 256 CR 113, West, Bellefontaine, Ohio

{¶34} The trial court made the following disposition of this property in the

parties’ final divorce decree:

8. Brian Henry shall retain as his own, free and clear of any claim of Angela Henry, the property located at 256 CR 113, Bellefontaine, Ohio. Brian shall remove Angela from any indebtedness associated with that property, and shall indemnify

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and hold her harmless therefrom. The court finds that the value of this real estate to be $111,000 at the time of the marriage, and $165,600 as of the termination of the marriage. The court finds that there is a mortgage balance due thereon, as of September 30, 2009,1 in the amount of $38,336.06. Therefore, the court determines that the equity is $127,263.94. This court finds that $111,000 and an additional $5,000 of this equity is Brian’s separate property. The remaining equity of $11,263.94, being marital property, shall be divided between the parties with Brian owing Angela $5,631.97. The net equity owed, after dividing all the real estate, shall be paid to the other party within thirty days of the filing of this judgment entry, and Angela shall execute a quit claim deed to Brian for this property at the time of the final settlement of the real estate obligations herein.

(Final Divorce Decree, Feb. 9, 2011).

{¶35} On appeal, Angela asserts that the trial court erred in making this

property distribution for two specific reasons: 1) that the trial court erred in

calculating the premarital value of the 256 CR 113 property and; 2) that the entire

value of the 256 CR 113 property should have been characterized as marital

because marital funds were used to make improvements on the property and the

real estate was encumbered by a mortgage held in both parties’ names. We will

address in turn each of Angela’s contentions regarding this property.

{¶36} It is undisputed by the parties that the marital home was located at

256 CR 113. It is also undisputed that Brian’s mother transferred the property to

Brian prior to the parties’ marriage. At trial, Brian submitted the general warranty

deed executed by his mother and recorded on March 13, 1998, that conveyed to

1 The date of the termination of the parties’ marriage stated in the final divorce decree.

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Brian the family homestead located on the property and the surrounding 21.72

acres. In addition, Brian presented receipts at trial demonstrating that, prior to the

parties’ marriage, he paid a $5,000 deposit on December 31, 1997, toward the

May 22, 1998 purchase of the mobile home located on the property. The parties

were subsequently married on June 9, 1999.

{¶37} Angela maintains that, regardless of Brian’s premarital interest, the

entire value of the 256 CR 113 property should be considered marital property

because she and Brian took a mortgage out on the property during their marriage

and executed a new deed, which placed the property in both of their names.

Angela argues that this mortgage and deed “converted” and “transmuted” Brian’s

separate property interest in the real estate into marital property.

{¶38} Contrary to Angela’s argument, R.C. 3105.171(A)(6)(b) states that

“the commingling of separate property with other property of any type does not

destroy the identity of the separate property as separate property, except when the

separate property is not traceable.” R.C. 3105.171(A)(6)(b) (emphasis added).

Thus, traceability is the key to determining whether separate property has lost its

separate character after being commingled with marital property. Ward v. Ward,

3d Dist. No. 01–03–63, 2004–Ohio–1390, ¶ 4, citing Peck v. Peck (1994),

,

.

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{¶39} Here, Brian presented unequivocal evidence establishing that he

owned the 256 CR 113 property prior to the marriage. Brian also presented an

appraisal demonstrating that the homestead and the surrounding 21.72 acres were

valued at $111,000 one month prior to the parties’ marriage. Angela presented no

evidence at trial to support her position that the parties’ execution of a mortgage

on the property “transmuted” Brian’s premarital and separate interest in the real

estate into marital property. However, the magistrate and the trial court did

consider the numerous substantial improvements made on the property during the

parties’ marriage and determined that all equity accrued in the property after the

parties’ married was marital property and that Angela was entitled to half of the

marital equity in the real estate.

{¶40} Based on the evidence in the record, we find that the trial court did

not err in finding that Brian had sufficiently traced his premarital interest in the

256 CR 113 property and that this interest remained Brian’s separate property.

Moreover, we find that the trial court’s distribution of this real estate to the extent

that it constituted marital property was equitable.

{¶41} Angela also contends that the trial court erred in valuing Brian’s

premarital interest in the 256 CR 113 property. The parties each submitted an

appraisal of the property prior to the parties’ marriage as evidence at trial.

Angela’s appraisal was performed on January 29, 1998 and valued the property at

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$42,000. However, Angela’s appraisal only valued the house and the curtilage

consisting of two acres. Angela presented no evidence for the value of the entire

21.72 acre property and homestead prior to the marriage.

{¶42} Brian submitted a “retrospective appraisal” of the property, which

was performed in 2006, but estimated the value of the property in 1999, one month

before the parties married. Brian’s appraiser viewed the property and then

researched market values of “comparables” to the 256 CR 113 property on May

31, 1999 to determine that the value of the entire 21.72 acres plus the homestead

was $111,000 as of that date. The appraiser also noted in his report that the

appraisal was “prepared in accordance with the Uniform Standards of Professional

Appraisal Practice.” (Def. Ex. DD at 3).

{¶43} Notably, Angela presented no evidence at trial to dispute the findings

of Brian’s appraisal valuing the entire 21.72 acres and homestead prior the parties’

marriage at $111,000. Absent evidence to the contrary, we conclude that the trial

court did not abuse its discretion in finding that the premarital value of the

property was $111,000.

2. The Rental Properties Located at 316-318 and 320 N. Detroit Street, Bellefontaine, Ohio.

{¶44} The trial court made the following disposition of this property in the

parties’ final divorce decree:

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7. Angela Henry shall retain as her own, free and clear of any claim of Brian Henry, the property located at 316-318 and 320 North Detroit Street, Bellefontaine, Ohio. Angela shall remove Brian from any indebtedness associated from that property, and shall indemnify and hold him harmless therefrom. The court finds that the value of this real estate to be $116,100, with a mortgage balance due thereon, as of September 30, 2009, in the amount of $89,377.32. Therefore, the court determines that the equity is $26,722.68. The court finds that $10,000 of this equity is Angela’s separate property. The remaining equity of $16,722.68, being marital property, shall be divided between the parties, with Angela owing Brian $8,361.34. The net equity owed, after dividing all of the real estate, shall be paid to the other party within thirty days of the filing of this judgment entry, and Brian shall execute a quit claim deed to Angela for this property at the time of final settlement of the real estate obligations herein.

(Final Divorce Decree, Feb. 9, 2011).

{¶45} On appeal, Angela maintains that the trial court erred in determining

that the rental properties located at 316-318 and 320 North Detroit Street,

Bellefontaine, Ohio are marital property. Angel asserts that these properties are

her separate property.

{¶46} The evidence adduced at trial demonstrates that on September 27,

2002, after having been married for three years, Angela and Brian jointly executed

a land installment contract with Eicholtz, Inc. to purchase the real estate located at

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316-318 and 320 North Detroit Street.2 The parties stipulated to the fact that

Angela paid the $10,000 down payment to purchase these properties with funds

that were her separate property.

{¶47} The evidence also demonstrates that the parties maintained a joint

checking account relating to expenses and income received from the rental

properties. In 2004 and 2005, the parties included the rental income and expenses

from these properties in their jointly filed tax returns, which were admitted as

exhibits at trial. Brian testified that during the marriage, he performed a

significant amount of maintenance on the rental properties to prepare them for

renters and that he helped manage the rental properties. Brian also presented

several cancelled checks drafted on his separate checking account, totaling

$1,752.93, that he claimed demonstrated his payment of various expenses relating

to the rental properties.

{¶48} Angela acknowledged that Brian performed some of the maintenance

on the rental properties and paid some expenses, but claimed that he was

reimbursed for those expenses and his labor. However, Angela again presented no

evidence to substantiate her position and Brian disputed Angela’s claims that he

was reimbursed. Angela also admitted to giving Brian a manager position relating 2 We note that on appeal Angela makes a separate argument regarding these properties, asserting that the land installment contract is now in default and that Eicholtz, Inc. has repossessed the properties. However, no evidence relating to the status of the land installment contract or any default was presented at trial and, consequently, this particular issue was not considered by either the magistrate or the trial court in the prior proceedings. Therefore, we cannot consider Angela’s argument as it relates to this contention because it is not properly before us on appeal.

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to the rental properties because, at the time, she wanted him to feel included in the

investment.

{¶49} In sum, the parties jointly entered into the land installment contract

during their marriage to purchase the rental properties and claimed the expenses

and income related to the rental properties on their joint tax returns. The evidence

supports that the parties both contributed time, labor, and money into the rental

properties during their marriage. Based upon the parties’ stipulation, the

magistrate and the trial court found that Angela was entitled to recoup the $10,000

she paid as a down payment as her separate property from the equity in the rental

properties valued at the termination of the marriage. The remaining evidence in

the record supports the trial court’s conclusion that the rental properties located at

316-318 and 320 North Detroit Street are marital property. Based on the evidence

presented at trial, we find no error in the trial court’s determination that the rental

properties are marital properties and conclude that the trial court’s ultimate

distribution of the rental properties was equitable. Angela’s fourth assignment of

error is overruled.

{¶50} For all these reasons, the judgment is affirmed.

Judgment Affirmed

WILLAMOWSKI, J., concurs. PRESTON, J., concurs in Judgment Only.

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