R. Joyce King, Executrix of the Estate of William G. King v. Brenda L. King
| Decision Date | 08 March 2002 |
| Docket Number | 01CA719,02-LW-0828 |
| Parties | R. JOYCE KING, EXECUTRIX OF THE ESTATE OF WILLIAM G. KING, Plaintiff-Appellee v. BRENDA L. KING, Defendant-Appellant. Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: Richard B. Reiling and John C. Harrison Walsh, Harrison & Reiling, 130 West Second Street, Suite 840 Dayton, Ohio 45402
COUNSEL FOR APPELLEE: Charles H. Wilson, Jr., 108 E. Mulberry Street, West Union, Ohio 45693
This is an appeal from an Adams County Common Pleas Court judgment that overruled a Civ.R. 60(B) motion filed by Brenda L. King, defendant below and appellant herein. Appellant's brief does not contain assignments of error, as required by App.R. 16(A)(3). Appellant does, however, claim that the following issues are involved in this appeal:
This case is yet another installment in the King divorce saga. A brief summary of the proceedings thus far, as well as an overview of the facts pertinent to this particular appeal, is as follows.
Appellant and William G. King were married in Kentucky on August 1, 1988. No children were born as issue of that marriage.
On September 11, 1996, William King commenced the action below and sought a divorce on grounds of gross neglect of duty, extreme cruelty and incompatibility. He asked that their assets be divided and that responsibility for their debts be allocated between them.
Appellant denied her husband's allegations and counterclaimed for divorce on identical grounds. She, too, sought an equitable division of assets and, in addition, asked for a portion of his monthly "retirement check."
The matter came on for several hearings over the next year and a half until, on May 19, 1998, a magistrate recommended that the couple be granted a divorce on grounds of incompatibility. The magistrate also made a number of recommendations concerning the property division. For our purposes, however, we need only be concerned with a farm situated in Adams and Highland Counties. This farm was purchased during the marriage, but was recorded under appellant's name only. The magistrate recommended that appellant be awarded the property but, in order to compensate her husband for "equity built up" therein, appellant would be required to pay $47,250 plus eight percent (8%) interest from the date of the decision. In order to secure that obligation, the appellant must execute a mortgage to her husband in that amount.
The trial court approved and adopted the magistrate's decision pending any future objections. Several days later, appellant objected and argued that the evidence did not support a finding that her husband had a $47,250 interest in the farm. On July 20, 1998, the trial court overruled appellant's objection and adopted the magistrate's decision as its own.
Appellant then filed her first appeal and sought a review of that judgment. During the pendency of that appeal, William King passed away and the executrix of his estate was substituted as a party.[1] On June 9, 1999, we dismissed this appeal for lack of a final appealable order. See King v. King (Jun. 9, 1999), Adams App. No. 98CA668, unreported (King I). In so doing, we held that the trial court's July 20, 1998 entry did not constitute a proper judgment under Civ.R. 54(A). We noted that the judgment simply included the magistrate's decision without the trial court making its own determination of the rights of the parties.
The matter returned to the trial court and, on August 13, 1999, the court issued a nunc pro tunc judgment that reaffirmed that the parties were divorced and, inter alia, ordered that appellant retained ownership of the "Adams-Highland County property" but must pay her husband $47,250 plus eight percent (8%) interest. The trial court further ordered appellant to execute a mortgage within thirty days in order to secure the debt.
Appellant filed her second appeal from that judgment and, on March 20, 2000, we sustained one of her assignments of error and reversed the trial court's judgment. See King v. King (Mar. 20, 2000), Adams App. No. 99CA680, unreported (King II). We remanded the matter in order to determine the farm's value and to determine whether the farm is marital or separate property. Furthermore, we noted that the trial court must issue written findings to support its ruling so that we could conduct an appropriate review of the judgment.
On remand, the trial court asked the parties to submit proposed findings of fact and conclusions of law. On June 28, 2000, the magistrate filed his decision and found, inter alia, that the farm is marital property and is worth $250,000. The magistrate again recommended that appellant keep the property and pay her ex-husband $47,250 for his interest therein.[2] The trial court, on July 3, 2000, adopted the magistrate's decision. Several days later, appellant objected to the magistrate's decision. Appellant made no specific argument against the magistrate's findings or recommendations other than to say they were "arbitrary and capricious." Subsequently, the trial court overruled appellant's objections because they did not state, with particularity, the reasons for the objection. No appeal was taken from that judgment.
On September 11, 2000, R. Joyce King, the executrix of the estate of William G. King, the substituted plaintiff below and appellee herein, filed a motion to alert the court that appellant had not complied with the order to pay the estate for her ex-husband's marital interest in the property and that appellant had not given a mortgage on the property to secure that obligation. Appellee asked that appellant show cause why she should not be held in contempt and that a judgment be filed in both the Adams and Highland County Recorder's offices to show that appellee had an interest in the subject property. The court, on January 17, 2001, ordered appellant to execute and to deliver a mortgage to appellee's counsel in the amount of $47,250 with interest at the rate of ten percent (10%) per annum running from July 3, 2000. Appellant filed her third appeal from that judgment, but later, voluntarily dismissed the matter. See King v. King (Jun. 22, 2001), Adams App. No. 01CA708, unreported (King III).
In the meantime, appellant refused to comply with the trial court's order.[3] The matter came on for hearing on February 12, 2001. The trial court found appellant in contempt and sentenced her to ten days in jail with the proviso that she could purge herself of that contempt by obeying the court's order. Appellant refused and, consequently, spent ten days confined in the Adams county jail. The trial court then prepared an entry to be filed with the Highland and Adams County Recorder's offices that granted appellee a mortgage interest in the property in the amount of $47,250 plus interest at the rate of ten percent (10%) per annum from July 3, 2000.[4]
The proceedings that gave rise to the current appeal began on July 24, 2001 when appellant filed a motion for relief from the judgments of July 3, 2000, July 24, 2000, January 17, 2001, and February 16, 2001. Appellant argued that she was entitled to relief for a wide variety of reasons including (1) the trial court did not properly adopt the magistrate's decisions, (2) the trial court did not acquire jurisdiction over this case because William King was not a resident of Ohio when he filed for divorce and (3) the divorce action "abated" when William King died, thereby requiring that the case be dismissed. The trial court, on July 31, 2001, found appellant's motion "not well taken" and overruled her request for relief from judgment. This appeal followed.
We note at the outset that our review of this case has been considerably hampered by the fact that appellant did not posit any "assignments of error" for review. The Ohio Rules of Appellate Procedure state that an appeal is to be decided "on its merits on the assignments of error set forth in the briefs under App.R. 16." (Emphasis added.) App.R. 12(A)(1)(b). Obviously, if there are no assignments of error, there is nothing to review. Thus, we would be justified in summarily affirming the trial court's judgment. See City Loan Financial Services v. Koon (Sep. 3, 1996), Hocking App. No. 95CA8, unreported. Nevertheless, in the interests of justice we will treat the issues set out in the brief's "statement of issues" as appellant's assignments of error.[5]
Appellant argues in her first "assignment of error" that the trial court erred by exercising jurisdiction in this case. The gist of her argument appears to be that her ex-husband was not a resident of Ohio at the time he filed the divorce action. Thus, appellant concludes, the trial court lacked jurisdiction to enter any judgment against her and all trial court judgments are void. We find no merit in this argument.[6]
R.C 3105.03 states that the plaintiff in a divorce action must be an Ohio resident for at least six months immediately before filing the complaint. This requirement is jurisdictional and, if a plaintiff does not satisfy the six month residency requirement, the trial court has no jurisdiction to grant a divorce and any decree is absolutely void. See McMaken v. McMaken (1994), 96 Ohio App.3d 402, 405, 645 N.E.2d 113, 115; Hager v. Hager (1992), 79 Ohio App.3d 239, 243, 607 N.E.2d 63, 66; also see Nain v. Nain ...
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