Ortiz v. Ortiz, 2006 Ohio 3488 (Ohio App. 6/29/2006)
| Decision Date | 29 June 2006 |
| Docket Number | No. 05 JE 6.,05 JE 6. |
| Citation | 2006 Ohio 3488 |
| Parties | Gwendolyn Ortiz, Plaintiff-Appellee v. Jorge Ortiz, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Atty. William Haynes, Jr., 806 Franklin Avenue, Toronto, Ohio 43964, for Defendant-Appellant.
Before: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich.
{¶1} Appellant Jorge Ortiz appeals the final decree of divorce granted by the Jefferson County Court of Common Pleas. Although Appellant has initiated this appeal, he is also challenging whether the divorce decree is a final appealable order. Appellant contends that the trial court failed to value and divide marital assets held in a storage locker in Florida. The divorce decree distributes the contents of that locker so that each party may take their personal items. The record contains no valuations for those items except by referring to it collectively as "junk." The divorce decree specifically retains jurisdiction over the actual process of physically removing and handing over the contents of the locker. We conclude that the trial court has simply retained the jurisdiction to enforce its order that is inherent in every court order, but does not prevent the decree from being final and appealable. Appellant also argues that Appellee Gwendolyn Ortiz did not satisfy the six-month residency requirement for filing for divorce, but the record clearly shows that it was satisfied. Appellant's other arguments deal with the exercise of the court's discretion in failing to grant a continuance and an alleged error in the equitable division of the marital property. Based on the record, there was no abuse of discretion in these matters, and the divorce decree is affirmed.
{¶2} The parties were married on December 1, 1977, in Florida. Appellee wife moved from Florida to Jefferson County, Ohio, in December 2003. On August 10, 2004, Appellee filed a complaint for divorce in the Jefferson County Court of Common Pleas. Final hearing was set for November 1, 2004. Appellant was not represented by counsel at the time, and he did not personally appear at the hearing. Appellee's counsel notified the court at the hearing that Appellant had pleaded guilty to a criminal charge related to a stalking protection order, and that he could not be located after he failed to report to his probation officer. (11/1/04 Tr., p. 4.) On November 5, 2004, the court issued a final decree of divorce. Appellant filed an appeal of the divorce decree.
{¶3} On November 29, 2004, Appellant, who had by this time obtained counsel, filed a motion to set aside the divorce on the grounds that he had not been notified of the final divorce hearing. The court vacated the divorce decree on December 7, 2004.
{¶4} On December 9, 2004, Appellant filed a notice to dismiss the appeal. It was dismissed on December 27, 2004.
{¶5} On December 9, 2004, Appellant also filed a motion to dismiss the divorce complaint for lack of jurisdiction, arguing that Appellee had not met the residency requirement for filing for divorce in Ohio pursuant to R.C. §3105.03. A hearing was held on the motion on December 13, 2004. During the hearing, Appellee repeatedly stated that she moved to Ohio in December of 2003, that she intended to reside in Ohio, and that she had no intention of returning to Florida. (12/13/04 Tr., pp. 6, 14-15, 17-18, 20.) The court subsequently overruled the motion to dismiss.
{¶6} On January 3, 2005, the court permitted Appellant's counsel to withdraw from the case. A final divorce hearing was scheduled for January 19, 2005. Appellant had not secured new counsel by the time of the hearing, and showed up late for the hearing. After interrupting the hearing, Appellant asked for a continuance so that he could obtain counsel. The trial judge reminded Appellant that he had fired his prior counsel. The trial judge also noted that Appellant had previously been told that the final hearing had been delayed too long already and that no further extensions would be granted. (1/19/05 Tr., pp. 16-17.) Appellant acknowledged that he had been informed that no further delays would be tolerated. (1/19/05 Tr., p. 17.)
{¶7} Appellant then acted as his own attorney and immediately began badgering Appellee during cross-examination. (1/19/05 Tr., pp. 17ff.) When the matter of Appellant's stalking conviction arose, he denied that it ever occurred. The trial judge stated: (1/19/05 Tr., p. 19.) Appellant denied he was at the hearing, and the trial judge again reminded him that, "[y]ou were here, you testified, I remember your testimony very clearly." (1/19/05 Tr., p. 19.)
{¶8} There was considerable discussion about numerous personal items that were stored in two storage units in Florida. Apparently, many personal items belonging to both parties had been stored in the first unit. Pursuant to the prior divorce decree of November 5, 2004, Appellee was awarded the right to enter the storage unit and retrieve all items of her personal property. Appellee removed most of the items from the first storage unit and placed them in another storage unit in Florida. (1/19/05 Tr., p. 11.) The parties were vague as to the contents of the storage unit, and the contents were described several times as junk or valueless personal property. (1/19/05 Tr., pp. 11, 25, 45, 46, 49). Appellee testified that, "everything that's in that storage room is basically stuff that's been given to me by my family down through the years." (1/19/05 Tr., p. 49.) Appellant briefly mentioned that there might be some electronic equipment and two china sets. (1/19/05 Tr., p. 102.) There were somewhat vague references made to old coins, a sword, and Appellant's family jewelry. (1/19/05 Tr., p. 68.) Despite repeated prodding by the court, the parties could not establish values for any specific item in the storage locker. There was testimony that at the time of the hearing the only property the parties owned were two automobiles and the contents of the storage lockers. (1/19/05 Tr., p. 45.) Appellee believed that Appellant had, at one time, a hidden bank account with $6000 in it, but this was apparently spent by the time of the hearing. (1/19/05 Tr., p. 39.)
{¶9} Appellant agreed that Appellee could keep any of her personal items, such as clothing, jewelry, or watches. (1/19/05 Tr., p. 102.) Appellee also agreed that Appellant could have his personal items from the storage locker. (1/19/05 Tr., p. 56.)
{¶10} There was some testimony about marital debt. Appellee believed that Appellant had accumulated considerable credit card debt, but those cards were not in her name and she did not have access to them. (1/19/05 Tr., pp. 12, 21, 22.) Appellant later stated that there might be up to $53,000 in credit card debt. (1/19/05 Tr., p. 83.) Appellant believed he had seven or eight credit cards in his name, but did not know any details about them. (1/19/05 Tr., p. 84.) He thought that Appellee's name was on one of them. (1/19/05 Tr., p. 87.) Appellant also described a number of undocumented loans he had received from friends, in amounts of $2000, $10,000, $4,000, $900, and $700. Some of these loans had been repaid, but Appellant was vague about the amounts. (1/19/05 Tr., pp. 88-91.) There was no indication that Appellee had anything to do with these loans or that she knew about them.
{¶11} The trial court issued a new divorce decree on January 28, 2005. The court found that Appellant had resided in Ohio for more than six months prior to filing for divorce. The court took judicial notice of the three-year anti-stalking order issued against Appellant. The court granted the divorce on grounds of extreme cruelty, incompatibility, and on the grounds that the parties had lived apart for more than one year. The court made Appellant responsible for all marital debt. Each party was awarded one vehicle. The court also formulated a procedure for the parties to retrieve, "various items of personal property," that were in a storage locker in Florida. The exchange was to take place with local law enforcement officers present, and the anti-stalking order was to remain in effect except to the extent needed to carry out the exchange.
{¶12} The divorce decree also stated:
{¶13}
{¶14} On February 24, 2005, Appellant filed this timely appeal.
{¶15} Appellant has raised two jurisdictional issues, as well as two additional assignments of error. Both parties are represented by counsel in this appeal.
{¶16} "THE FINAL DECREE OF DIVORCE ENTERED BY THE TRIAL COURT ON JANUARY 28, 2005 IS NOT A FINAL APPEALABLE ORDER"
{¶17} Appellant argues that the judgment being appealed is not a final appealable order. Uniquely, Appellant, who filed the appeal, is making this argument. It is unclear why Appellant is raising this argument, since he filed the appeal and can always dismiss his own appeal if he chooses not to have the matter decided. Be that as it may, Appellant argues that the trial court has failed to dispose of all issues by failing to determine exactly what was in the...
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