[Cite as Oliver v. Oliver,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: MISTY L. OLIVER : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellant : Julie A. Edwards, J. : -vs- : Case No. 2011 AP 11 0044 : : JOSEPH D. OLIVER : OPINION

Defendant-Appellee

CHARACTER OF PROCEEDING: Civil Appeal from Tuscarawas County Court of Common Pleas Case No. 2009 TM 03 0151

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: July 30, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

SHARON BUCKLEY-MIRHAIDARI BRAD HILLYER 152 N. Broadway Ave., Suite 200 201 N. Main Street, Box 272 New Philadelphia, Ohio 44663 Uhrichsville, Ohio 44683 [Cite as Oliver v. Oliver,

.]

Edwards, J.

{¶1} Appellant, Misty L. Oliver, appeals a judgment of the Tuscarawas County

Common Pleas Court granting her a divorce from appellee Joseph D. Oliver on the

grounds of adultery and incompatibility.

STATEMENT OF FACTS AND CASE

{¶2} The parties were married in 1999. They did not have children together,

but each had children from a prior marriage. The parties lived separate and apart

beginning in 2007. Appellee admitted to having an adulterous affair and lived with his

mistress and their child.

{¶3} Appellee is a registered nurse. Appellant had previously been employed

as an LPN. She was eligible to test to be an RN and was attending school full time to

be a nurse practitioner.

{¶4} From 2002-2005, the parties owned a business called Guardian Nurses,

which was a temporary agency sending nurses to hospitals and other medical facilities

as needed. Appellee was employed by the agency as a nurse, and appellant did most

of the administrative work for the company out of their home. The parties filed separate

tax returns with the business income reported on appellant’s tax returns. No tax returns

were filed for appellant or the business in 2003, 2004, and 2005. Appellant was

concerned that the IRS would take action against her in the future and was further

concerned that payroll taxes on the business had not been paid.

{¶5} The instant action for divorce was filed on March 31, 2009. The case

proceeded to a hearing before a magistrate. Objections were filed to the magistrate’s

report. Following a hearing on the objections, the trial court granted appellant a divorce Tuscarawas County App. Case No. 2011 AP 11 0044 3

on the grounds of adultery and incompatibility. The court divided marital property and

debt and ordered appellee to pay appellant spousal support in the amount of $500.00

per month for 36 months. Regarding the tax liability related to Guardian Nurses, the

court stated, “The Court shall retain jurisdiction to address any tax liability that may arise

from Guardian Nurses, the marital business of the parties.” Judgment, October 13,

2011.

{¶6} Appellant assigns twelve errors to this Court on appeal:

{¶7} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

ONLY AWARDING $500.00 A MONTH IN SPOUSAL SUPPORT.

{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT

RENDERING A DECISION WITH REGARD TO UNPAID TAXES DUE TO THE

FEDERAL, STATE AND LOCAL INCOME TAX DEPARTMENTS.

{¶9} “III. THE TRIAL COURT ERRED IN NOT RENDERING A DECISION

WITH REGARD TO HEALTH INSURANCE FOR MISTY OLIVER.

{¶10} “IV. THE TRIAL COURT ERRED IN AWARDING JOE OLIVER GUNS.

{¶11} “V. THE TRIAL COURT ERRED IN AWARDING MISTY OLIVER ONLY

$250.00 AFTER FINDING JOE IN CONTEMPT OF COURT FOR TRASHING MISTY

AND MISTY’S CHILDREN’S PERSONAL PROPERTY IN THE DUMPSTER.

{¶12} “VI. THE TRIAL COURT ERRED IN NOT ORDERING THE RETURN OF

MISTY’S PERSONAL PROPERTY SHE SAW JOE AND HIS MISTRESS HAVE AT

THEIR HOUSE IN PICTURES SHE SAW ON FACEBOOK. THE TRIAL COURT

FURTHER ERRED AND ABUSED ITS DISCRETION IN NOT ADMITTING THE

FACEBOOK PHOTOGRAPHS INTO EVIDENCE. Tuscarawas County App. Case No. 2011 AP 11 0044 4

{¶13} “VII. THE TRIAL COURT ERRED IN NOT AWARDING THE MINERAL

CITY PROPERTY TO MISTY OLIVER.

{¶14} “VIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

NOT ISSUING A DECISION WITH REGARD TO ALL OF THE MARITAL DEBT.

{¶15} “IX. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

AWARDING ONE HALF OF THE VANGUARD ACCOUNT TO MISTY OLIVER. MISTY

OLIVER SHOULD HAVE BEEN AWARDED THE FULL AMOUNT OF THE

VANGUARD ACCOUNT.

{¶16} “X. THE TRIAL COURT ERRED IN NOT AWARDING ATTORNEY FEES

TO MISTY OLIVER.

{¶17} “XI. THE TRIAL COURT’S REFUSAL TO ADDRESS APPELLANT’S

MOTIONS PROIR [SIC] TO TRIAL AND ADMIT EVIDENCE AND TESTIMONY AT

TRIAL WAS AN ABUSE OF DISCRETION AND DENIED APPELLANT DUE PROCESS

AND A FAIR TRIAL.

{¶18} “XII. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

ORDER THE PROCEEDS FROM THE SALE OF THE 4033 W. STATE STREET

PROPERTY AND MISTY’S RETIREMENT BENEFITS AS SEPARATE PROPERTY.”

{¶19} Appellee assigns the following errors on cross-appeal:

{¶20} “I. THE JUDGE ERRED IN FINDING A DIVORCE ON GROUNDS OF

ADULTERY.

{¶21} “II. THE TRIAL COURT ERRED IN FINDING A CHARGE OF CONTEMPT

AGAINST THE APPELLEE.” Tuscarawas County App. Case No. 2011 AP 11 0044 5

{¶22} As a preliminary matter, we address the issue of whether the judgment

appealed from is a final, appealable order due to the court’s retention of jurisdiction to

address tax liability from Guardian Nurses.

{¶23} If an order is not final and appealable, then an appellate court has no

jurisdiction to review the matter and must dismiss it. See General Acc. Ins. Co. v.

Insurance Co. of N. Am. ,

,

(1989); Noble v.

Colwell,

,

(1989). In the event that the parties to the

appeal do not raise this jurisdictional issue, then we must raise it sua sponte. See Chef

Italiano Corp. v. Kent State Univ.,

,

, syllabus (1989).

{¶24} R.C. 3105.171(B) provides for a division of marital property. Debt, like

assets, are classified as property, and an order assigning debt is a form of property

division. Arnett v. Arnett, 2nd Dist. No. No. Civ. A. 20332,

. R.C.

3105.171(I) states:

{¶25} “(I) A division or disbursement of property or a distributive award made

under this section is not subject to future modification by the court except upon the

express written consent or agreement to the modification by both spouses.”

{¶26} In the instant case, appellee agreed orally at trial to reopen the divorce

case regarding the issue of tax liability from Guardian Nurses if the IRS attempted to

collect taxes from appellant. However, the parties did not agree in writing to future

modification of the property division, and appellant did not consent to reserving the

issue for future modification.

{¶27} A divorce decree which leaves issues relating to the property division

unresolved is not a final order. Muhlfelder v. Muhlfelder, 11th Dist. No. 200-L-183, 2000- Tuscarawas County App. Case No. 2011 AP 11 0044 6

L-184,

. The trial court was without statutory authority to reserve

jurisdiction over this division of debt pursuant to R.C. 3105.171(I). Whether or not the

IRS becomes aware of the unpaid taxes and chooses to pursue a claim, unpaid taxes

incurred by the parties during the marriage from a marital business constitute marital

debt. Because the trial court failed to divide this debt and left the matter open for future

resolution, the judgment appealed from is not a final, appealable order.

{¶28} The appeal is dismissed.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/r0710 [Cite as Oliver v. Oliver,

.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

MISTY L. OLIVER : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : JOSEPH D. OLIVER : : Defendant-Appellee : CASE NO. 2011 AP 11 0044

For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Tuscarawas County Court of Common Pleas is dismissed. Costs

assessed to appellant.

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_________________________________

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JUDGES