Mullinix v. Mullinix, 21AP-206

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtBEATTY BLUNT, J.
Citation2022 Ohio 3398
PartiesLogan E. Mullinix, Plaintiff-Appellee, v. Pamela R. Mullinix, Defendant-Appellant.
Docket Number21AP-206
Decision Date27 September 2022

2022-Ohio-3398

Logan E. Mullinix, Plaintiff-Appellee,
v.

Pamela R. Mullinix, Defendant-Appellant.

No. 21AP-206

Court of Appeals of Ohio, Tenth District

September 27, 2022


APPEAL from the Franklin County Court of Common Pleas No. 17DR-399, Division of Domestic Relations and Juvenile Branch

On brief:

David K. Greer, for appellant.

Argued:

David K. Greer.

On brief:

Logan E. Mullinix, pro se.

Argued:

Logan E. Mullinix.

DECISION

BEATTY BLUNT, J.

{¶ 1} Defendant-appellant, Pamela R. Mullinix, appeals the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch overruling her motion for Civ.R. 60(B) relief and granting the oral motion of her ex-husband, plaintiff-appellee, Logan E. Mullinix, to dismiss the Civ.R. 60(B) motion pursuant to Civ.R. 41(B)(2).

{¶ 2} Pamela and Logan Mullinix were married in 1988 in Tennessee and have two children. Logan filed for divorce in Franklin County in 2017, and an uncontested decree of divorce, including property division, was entered on May 11, 2018. Pamela filed a motion for relief from judgment on May 13, 2019, arguing that Logan misrepresented the value of his personal property either in the decree itself or in a separate contempt action in which he alleged in a contempt motion that Pamela has refused to return to him. The divorce

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decree states that [Logan] shall be entitled to recover any of his tools and musical equipment in [Pamela]'s possession." Pamela contends that prior to her approval of the agreed decree, Logan estimated the worth of the "tools and musical equipment" at approximately $20,000.00 but now claims they have an estimated value of $121,495. She argues that if she had been aware of that higher value, she would not have agreed to the property division.

{¶ 3} Pamela's motion was filed by her former counsel on May 13, 2019, and after a few continuances, was set for hearing on August 27, 2020. But on that date, Pamela's counsel was permitted to withdraw because of a conflict with his client. The hearing was continued again, and ultimately did not occur until April 2, 2021. Pamela was apparently unable to obtain new counsel by that date, and instead proceeded on the motion pro se.

{¶ 4} At the outset of the hearing, the court specifically addressed Pamela and clarified what subjects it would consider at the hearing:

There is basically one issue with respect to this 60(B), and that relates to your 60(B) that says Logan did not disclose $121,495,000 [sic] worth of personal property at the time of the negotiated settlement
That's your burden to prove today, to show whether or not that information rises to the level of a 60(B)

(Tr. at 9.[1])

{¶ 5} In her hearing testimony, Pamela stated that prior to the divorce Logan had valued the "tools and musical equipment" alleged to be in her possession at approximately $20,000, but after the decree was entered Logan claimed in a contempt motion that the tools and musical equipment were worth approximately $121,495. Her primary documentary evidence consisted of (1) Logan's affidavit of property filed February 2, 2017 and prepared as part of his initial disclosures in the case, and which approximated the value of his "equipment" at $20,000, (see Def. Pamela Mullinix's Ex. C), (2) an email sent by Logan's former counsel after the decree was signed, itemizing the musical instruments and equipment allegedly in Pamela's possession and assigning them an alleged "total replacement cost estimate" of $121,495, (see Def. Pamela Mullinix's Ex. D at 1-3), and (3) a

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"marital balance sheet" prepared prior to the decree that listed the value of "business tools and machinery" at $20,000. (See Def. Pamela Mullinix's Ex. R at 3.)

{¶ 6} But during Pamela's cross-examination, Logan's attorney confronted her with her answer to a pre-trial interrogatory, in which she asserted that Logan had "Music equipment purchased over the last 9 +/- years-spent in excess of $100,000.00." (See Pl. Logan Mullinix's Ex. 7 at Interrogatory No. 12.) She testified:

Q: So I would like to turn to Exhibit 7. If it helps, the front page looks like this.
Pam, is it fair to say these are your discovery responses from what I had requested during litigation in the original divorce?
A: Yes.
Q: Can you please turn to the last page of Exhibit 7? Is that your signature on that page?
A: Yes.
Q: And if you can turn in the exhibit to Interrogatory Number 12, it should be, I believe, on page 5, although I don't think I have the pages numbered.
A: I don't have the page numbers. All right. 12.
Q: In that exhibit, I'd asked you to identify and describe any and all items of property which you believe plaintiff presently had in his possession which you thought were worth more than $50 or greater and the amount you believe they were worth. Correct?
A: Correct
Q: If you turn to the next page as part of your answer, you answered, Music equipment, purchased over the last nine plus-or-minus years, spent in excess of $100,000.
A. Correct.
Q. So prior to signing the decree, you knew that this music equipment existed, correct?
A. I knew he said it existed. The value of it, I don't know. Where the money came from to purchase it, I don't know. We didn't have that kind of excess.
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THE CO URT: Remember, just answer his questions.
Q: So prior to signing the decree, you stated your belief that those items were worth hundred thousand dollars, or -- I'm sorry. Let me correct myself.
You stated that you believe that he had spent in excess of a hundred thousand dollars purchasing that equipment, correct?
A: Correct. Based on - - based on what Logan said.
Q: If we turn three pages forward to Interrogatory Number 20, you reiterated a little over halfway through your response to Interrogatory 20 that Logan had purchased-sorry, large amounts of music equipment purchased over the last five to seven years, spent in excess of $100,000.
So twice, you acknowledge your belief that those items had a purchase cost of over a hundred thousand dollars, correct?
A: Correct.

(Tr. at 63-65.)

{¶ 7} At the conclusion of testimony, the court accepted all of Pamela's exhibits into evidence. It proceeded to hear Pamela's objections to Logan's exhibits numbered 4, 5, and 6:

THE COURT: Exhibit 4, do you have an objection to Exhibit 4?
MS. MULLINIX: Is this John's Exhibit 4?
THE COURT: This is John's Exhibit 4, uh-huh. Let's see if I can help you. Exhibit 4 is one of the balance statements that you testified that you found in your basement and you gave to [the court's forensic accountant]. Any objection to Exhibit 4?
MS. MULLINIX: I do object on the grounds that it still does not prove that anything existed, in actuality. It proves that there is a spreadsheet. There is no proof of actual purchase or existence.
THE COURT: All right. Noting your objection, Exhibit 4 will be admitted.
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Exhibit 5 is another one of those I'll call it an itemization that you testified you found in your basement and you gave to [the court's forensic accountant].
Is there any objection to Exhibit 5?
MS. MULLINIX: Same objection, Your Honor. It doesn't prove that items exist or their value.
THE COURT: All right. Noting the objection, Exhibit 5 will be admitted. Exhibit 6 is the email chain between [Pamela's trial
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