Victor v. Kaplan
| Decision Date | 28 May 2020 |
| Docket Number | No. 108252,108252 |
| Parties | Vladimir B. VICTOR, Plaintiff-Appellant/Cross-Appellee, v. Marina KAPLAN, et al., Defendants-Appellees/Cross-Appellants. |
| Court | Ohio Court of Appeals |
Cavitch, Familo & Durkin, Co., and Roger L. Kleinman, Cleveland, for appellant/cross-appellee.
Rosenthal | Thurman | Lane L.L.C., and Scott S. Rosenthal, Cleveland, for appellee/cross-appellant M.K.
Skirbunt & Skirbunt L.L.C., James R. Skirbunt, and Sharon A. Skirbunt, Cleveland, for cross-appellee Skirbunt & Skirbunt, L.L.C.
JOURNAL ENTRY AND OPINION
{¶1} Plaintiff-appellant Vladimir B. Victor ("Husband") appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, adopting the magistrate's decision primarily regarding distribution of marital assets, as modified. Defendant-appellee/cross-appellant Marina Kaplan ("Wife") also appeals the judgment. Third-party defendant/cross-appellee Skirbunt & Skirbunt, L.L.C. ("Skirbunt") answers Wife's cross-appeal concerning the trial court's granting of Skirbunt's motion to intervene and the trial court's award of attorney fees. For the reasons that follow, we affirm in part, reverse in part, and remand.
{¶2} Husband and Wife married on February 22, 2000. One child, J.V., was born as issue of the marriage and is now emancipated. Wife has one adult daughter, Rachel, from a previous marriage.
{¶3} During the marriage, Husband worked at various jobs. Initially, he worked as a computer and financial consultant with Richler Victor & Associates. He was also employed by Ameriprise as a financial advisor. At some point in time, however, Husband's license as a financial advisor was suspended. He then worked in real estate, primarily purchasing, managing, and rehabilitating rental properties.
{¶4} Throughout the marriage, Wife worked in the medical sales industry for several different companies. She worked at Bayless-Pathmark ("Bayless") as a contractual employee from 1996 through 1998, and then under a different contract for the entirety of 1999, before marrying Husband in early 2000. Wife continued employment with Bayless into the marriage. According to Wife, at the end of 1999, she learned that her contract would not be renewed, so she began negotiations with Bayless. (Tr. 539, exhibit No. 69.) Wife continued working at Bayless in 2000, under different employment terms that expired on December 31, 2000. (Tr. 515, exhibit No. 9, 1495.) In 2000, Bayless offered Wife a new contract but she declined the offer. (Tr. 1501.)
{¶5} On October 12, 2001, Wife procured a structured settlement with Bayless for $350,000. Bayless agreed to make payments to Wife over five years, with the first payment payable within seven days of execution of the agreement.
{¶6} During the marriage, Husband and Wife had acquired numerous bank or investment accounts including the following: (1) FCI Global Chase Checking #5390; (2) FCI Global Chase Savings #8060; (3) A1 Huntington Money Market #9122; (4) A1 Huntington Checking #3639; (5) 1612 Wood Huntington Checking #8192; (6) 1534 Parkhill Huntington Checking #8189; (7) H Huntington #9122; (8) 4208 Cedar Huntington Checking #8202; (9) 3259 Desota Land Huntington #8163; (10) 3675 Randolph Huntington #7173; (11) Gevaldig Enterprises KeyBank Checking #2679; (12) H KeyBank Checking #2679; (13) MA Kaplan Living Trust Chase Checking #5660; (14) MA Kaplan Living Trust Chase Savings #7146; (15) MA Kaplan Living Trust NYCB Checking #3715; (16) MA Kaplan Living Trust KeyBank Checking #0198; (17) MA Kaplan Living Trust T. Rowe Price [#916]; (18) MA Kaplan Living Trust Fidelity #4424; (19) W Fifth Third Checking #1516; and (20) MA Kaplan Living Trust Vanguard #9847.
{¶7} Throughout the marriage, the parties maintained the following retirement accounts: (1) FCI Global 401(k) Trust (Chase); (2) W Fidelity IRA #7888; (3) W Fidelity SEP IRA #6625; and (4) W Oppenheimer.
{¶8} Husband and Wife had also acquired interest in certain real estate. Husband claims an interest in the following real properties: (1) 1534 Parkhill Road; (2) 1612 Wood Road; (3) 3259 Desota Avenue; (4) 3316 Desota Avenue; (5) 3675 Randolph Road; (6) 3744 Berkeley Road; and (7) 4208 Cedar Avenue. Wife owned the following properties: (1) 3494 Shannon Road (the marital residence); (2) 3631 Bendemeer Road; (3) 2664 Brentwood Road; and (4) 2547 Edgewood Road.
{¶9} Husband and Wife accumulated credit card debt during the marriage, including the following: (1) Home Depot; (2) FCI Global Chase #8017; (3) Discover; (4) Amex #84008, #11001, #43007, and #9-71001; (5) Capital One #5299 and 1118; (6) British Airlines #2242; (7) Nordstrom; and (8) Citicards.
{¶10} On August 17, 2015, Husband filed a complaint for divorce, alleging gross neglect of duty and extreme cruelty and requesting that he be designated the residential parent of the minor child. On September 14, 2015, Wife filed an answer denying Husband's allegations and a counterclaim. The court issued restraining orders against both parties.
{¶11} The matter was heard before the court magistrate on May 8, 2017, June 12-14, 2017, June 19-20, 2017, July 24-28, 2017, and September 12, 2017. At the time of trial, numerous motions filed by both Husband and Wife were pending, including several motions for attorney fees, motions to show cause, and motions to compel. On April 5, 2018, the magistrate issued a 42-page decision that also addressed the pending motions.
{¶12} The magistrate made initial findings of fact concerning the parties' credibility and conduct throughout the proceedings:
The court finds both [Husband] and [Wife] lack credibility, generally. This finding is based on the totality of the parties' conduct during the pendency of this action, and more specifically their conduct during trial both in and out of court. This finding is based on the court's consideration and evaluation of the parties' testimony when compared to the testimony of the other witnesses, and also in comparison to each other's testimony.
{¶13} The magistrate noted in support that Husband refused to permit Wife's real estate appraisal expert witnesses to enter the structures he owns or to provide Wife with copies of the lease agreements for Husband's rental properties. Additionally, Husband "consistently feigned a lack of memory on matters of substance when it suited his purposes, yet conveniently remembered even seemingly insignificant details about matters [that] advanced his positions or arguments."
{¶14} Regarding Wife's behavior, the magistrate noted that Wife sold a piece of real estate in violation of the mutual restraining orders during trial, then "conveniently failed to disclose this fact while on the witness stand and under oath," despite being questioned about the real estate. The magistrate found that Wife had knowledge of the restraining orders, yet knowingly sold the property and intentionally concealed this fact from the court. The magistrate further noted that Wife "frustrated the court's efforts to efficiently complete the trial and caused an undeterminable amount of delay by consistently refusing to answer the simplest and most straightforward questions during cross-examination."
{¶15} The magistrate then made findings concerning the parties' real and personal property, including the Bayless settlement proceeds, financial and retirement accounts, debt, allocation of parental rights, child support, and spousal support. And the magistrate entered a disposition concerning the approximately 31 pending motions. Both parties filed objections. In particular, Husband objected to nearly the entirety of the magistrate's decision, including the magistrate's disposition of various pending motions.
{¶16} On January 28, 2019, the trial court adopted the magistrate's decision as modified. The court addressed each of the Husband's objections as follows: objection Nos. 1-10, 12-13, and 16, overruled; objection No. 11, sustained in part; objection No. 14, sustained; and objection No. 15, sustained in part.
{¶17} The trial court's modifications to the magistrate's decision included the following: Husband's objection No. 11 addressing the magistrate's granting of Wife's motion and amended motion to compel response to records subpoena issued to [the attorney] and motion for attorney fees and expenses (motion No. 400500). The magistrate determined that Husband failed to provide discovery and ordered Husband to complete 50 hours of community service in lieu of a monetary sanction. The trial court found the community service order inappropriate and vacated the sanction. The court instead ordered Husband to pay Wife's attorney fees in the amount of $2,000.
{¶18} In objection No. 14, Husband argued that the magistrate erred in ordering Husband to pay for the minor child's annual health care costs. Finding the magistrate made a clerical error, because Wife "offered and requested to be responsible for" the minor child's health care in her closing arguments, the trial court sustained this objection and amended the magistrate's decision to reflect Wife's responsibility for the child's health care costs.
{¶19} In objection No. 15, Husband argued that the magistrate erred in adopting the guardian ad litem's ("GAL") proposed shared parenting plan, which designated Wife as the residential parent for school purposes. Husband proposed instead that both parents be designated as residential parent. Because J.V. is now emancipated, a shared parenting plan is moot, and we therefore decline to address the court's judgment pertaining to Husband's objection No. 15.
{¶20} Finally, the trial court overruled all six of Wife's objections.
{¶21} This appeal now follows.
{¶22} Husband assigns the following 12 errors for our review:
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