Sue A. Oatey v. Gary A. Oatey

• Decision Date: 25 April 1996
• Docket Number: 96-LW-2224,67809 and 67973
• Parties: SUE A. OATEY, PLAINTIFF-APPELLANT v. GARY A. OATEY, ET AL., DEFENDANTS-APPELLEES NOS. 67809 and 67973.
• Court: Ohio Court of Appeals

SUE A. OATEY, PLAINTIFF-APPELLANT v. GARY A. OATEY, ET AL., DEFENDANTS-APPELLEES

NOS. 67809, 67973.

96-LW-2224 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

April 25, 1996

Civil appeal from Domestic Relations, Case No. D-200521.

For Plaintiff-Appellant: Joyce E. Barrett, Esq., 800 Standard Building, 1370 Ontario Street, Cleveland, OH 44113.

For Defendants-Appellees: Jose C. Feliciano, Esq., James A. Loeb Esq., Baker & Hostetler, 3200 National City Center, 1900 East Ninth Street, Cleveland, OH 44114-3485 and William E Coughlin, Esq., James F. Lang, Esq., Calfee, Halter &amp Griswold, 1800 Society Building, Cleveland, OH 44114.

DAVID T. MATIA, P.J.

Sue Oatey, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. D-200521, in which plaintiff-appellant was granted a divorce from her husband Gary Oatey defendant-appellee. In its judgment entry, the trial court determined the extent of the marital estate, the value of the assets within the marital estate and the division of those assets. The trial court also determined spousal support, child support and custody as well as attorney fees and costs. Plaintiff-appellant assigns twenty-four errors arising out of the judgment of the trial court for this court's review.

Gary Oatey, defendant-appellee, has filed a cross-appeal arising out of the same judgment entry of divorce. Defendant-appellee assigns seven errors for this court's review.

Based upon the following reasons, Sue Oatey's, plaintiff-appellant's, appeal is affirmed in part, reversed in part and remanded. Gary Oatey's, defendant-appellee's, cross-appeal is affirmed in part, reversed in part and remanded.

I. THE FACTS

Sue Oatey, plaintiff-appellant, and Gary Oatey, defendant-appellee, were married on June 20, 1970. Three children were born as issue of this marriage: Courtney, born April 23, 1973 and handicapped with cerebral palsy; Gary Jr born March 25, 1975; and Christopher, born October 20, 1977. Both plaintiff-appellant and defendant-appellee were college graduates. Plaintiff-appellant held a bachelor's degree in fine arts and defendant-appellee held a degree in economics. Prior to the birth of Courtney, Sue Oatey, plaintiff-appellant, worked outside of the home as a school teacher. After Courtney's birth, plaintiff-appellant worked as a homemaker raising the couple's children, managing the home and participating in business and social activities.

In 1977, Gary Oatey, defendant-appellee, began working in the family business, the Oatey Company, as a manufacturer of plumbing products since 1916. By 1988, defendant-appellee had became Chief Executive Officer of the Oatey Company.

During the duration of the marriage, Sue Oatey, plaintiff-appellant, and Gary Oatey, defendant-appellee, enjoyed a fairly elevated standard of living. The family lived in a lakefront home situated in the Cleveland suburb of Rocky River valued at approximately $875,000, belonged to Westwood Country Club with all the attendant privileges and enjoyed the use of a vacation home located in Chautauqua, New York along with membership at the

Chautauqua Institute.

In addition, the family took yearly vacations to such places as Vail, Colorado, San Francisco, California and the Bahamas. Evidence was also introduced to demonstrate that the family possessed season tickets to many local sporting events as well as tickets to concerts and other Cultural events.

In November 1989, Sue Oatey, plaintiff-appellant, retained counsel and informed Gary oatey, defendant-appellee, of her intention to seek a divorce. Apparently, defendant-appellee provided money to be used by plaintiff-appellant as the retainer fee for her attorney. Defendant-appellee did this in spite of his stated desire to attempt a reconciliation. On February 26, 1990, plaintiff-appellant filed her complaint for divorce.

The filing of the complaint triggered approximately four years of protracted and bitter litigation in which both parties alleged that the other was engaged in unnecessary and prejudicial conduct designed to obfuscate the real nature of the property making up the marital estate. Sue Oatey, plaintiff-appellant, alleged that Gary Oatey, defendant-appellee, did the following:

(1) amended Article XII of the Code of Regulations of the Oatey Company preventing transfer of company stock;

(2) failed to respond to a letter from plaintiff-appellant's counsel seeking equitable dissolution;

(3) attempted to divest himself of interest in the Chautauqua, New York home;

(4) failed to disclose his true cash flow or provide full discovery in general;

(5) purchased a condominium within six months of divorce filing;

(6) allowed his life insurance policy to lapse; and against the trial court

(7) filed an affidavit of prejudice against the trial court judge.

In turn, Gary Oatey, defendant-appellee, alleged that Sue Oatey, plaintiff-appellant, had:

(1) filed over fifty motions, rarely addressing substantive issues or asserting legally sufficient positions;

(2) abused the domestic relations court by using court process to harass, punish and coerce defendant-appellee;

(3) encumbered the marital residence with a $100,000 mortgage which she used for legal fees and paying for expert witnesses without the knowledge or consent of the trial court or defendant-appellee; and

(4) attempted to coerce the couple's oldest daughter Courtney, who has cerebral palsy, into moving out of the assisted living program she was currently involved with and moving into plaintiff-appellant's residence so that child support for Courtney would not be terminated.

During the course of the Lower court proceedings, Sue Oatey, plaintiff-appellant, filed a motion for interim attorney fees and costs. The trial court granted this motion awarding plaintiff-appellant $100,000 in interim fees. However, Gary Oatey, defendant-appellee, appealed the trial court's award and on April 23, 1992, this court reversed the interim fee award. See Oatey v. Oatey (1992), 83 Ohio App.3d 251.

Given the nature of the proceedings in the lower court and the size of the disputed marital est.ate, the trial court appointed attorney Nicholas Kemock as valuation expert for this case. Mr. Kemock conducted three sets of hearings in an effort to determine the value of property in the marital estate. On June 7, 9, 10, 11 and 16, 1993, Mr. Kemock conducted a hearing to determine the value of defendant-appellee's interest in the Oatey Company stock. On September 24, 27, 28 and 30 and October 5 and 6, 1993, Mr. Kemock conducted a second set of evidentiary hearings to determine the value of all other marital assets. The remaining issues regarding division of property, child and support and Sue oatey's, plaintiff-appellant's, request for attorney fees were determined at hearings on October 26, 27, 28; November 3, 4, 8, 9, 10, 12, 15, 16, 30 and December 15, 1993.

Mr. Kemock filed his amended report, and recommendation on February 7, 1994. Both parties filed objections to Mr. Kemock's amended recommendation.

On July 29, 1994, the trial court overruled all objections to the recommendations of Mr. Kemock and entered its final decree of divorce. on August 12, 1994, Sue Oatey, plaintiff-appellant, filed a motion for a new trial which was denied by the trial court on September 9, 1994.

Sue Oatey, plaintiff-appellant, filed a notice of appeal on August 29, 1994. On September 1, 1994, Gary Oatey, defendant- appellee, filed a notice of cross-appeal. On September 7, 1994, the Oatey Company, an additional defendant in the lower court case, filed its notice of cross-appeal.

II. PLAINTIFF-APPELLANT'S FIRST ASSIGNMENT OF ERROR

Sue Oatey's, plaintiff-appellant's first assignment of error states:

THE REPORTS AND RECOMMENDATIONS OF THE "SPECIAL MASTER" ARE INSUFFICIENT PURSUANT TO CIVIL RULE 53 (E) FOR THE TRIAL COURT TO HAVE MADE AN INDEPENDENT ANALYSIS OF THE ISSUES AND TO APPLY APPROPRIATE RULES OF LAW IN REACHING A JUDGMENT.

A.

THE ISSUE RAISED: SUFFICIENT FACTUAL FINDINGS IN REPORTS AND RECOMMENDATIONS OF SPECIAL MASTER.

Plaintiff-appellant argues, through her first assignment of error, that the reports and recommendations of Mr. Nicholas Kemock dated June 28, 1993, October 26, 1993 and February 7, 1994 failed to set forth sufficient factual findings for the trial court to have made an independent analysis of the issues and apply the appropriate rules of law pursuant to Civ.R. 53(E)(5)(6). Plaintiff-appellant fails to specify any grounds in support of her first assignment of error nor provide examples to demonstrate the alleged insufficiency of the reports and recommendations.

Plaintiff-appellant's first assignment of error is not well taken.

B. STANDARD OF REVIEW.

Civ.R. 53(E)(5), which deals with the approval of a referee's report by the trial court, provides in part:

(5) When effective. The report of a referee shall be effective and binding only when approved and entered as a matter of record by the court. The referee's findings of fact must be sufficient for the court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order. The court may adopt the referee's recommendations about appropriate conclusions of law and the appropriate resolution of any issues.

In addition, when independently assessing facts and conclusion contained in a referee's report, the trial court must undertake a de novo determination and does not apply the same manifest weight of the evidence standard used on review by the court of appeals. DeSantis v. Soller (1990), 70 Ohio App.3d 226.

C. REPORTS AND RECOMMENDATIONS CONTAIN SUFFICIENT FACTUAL FINDINGS.

In the case sub judice, a review of the reports and recommendations of...