[Cite as Chiro v. Foley, 2013-Ohio-4808.]


                  Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99888




                                     JOSEPH A. CHIRO

                                                     PLAINTIFF-APPELLANT

                                               vs.

                                   MARCIE L. FOLEY
                                                     DEFENDANT-APPELLEE



                                            JUDGMENT:
                                             AFFIRMED


                                     Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                  Domestic Relations Division
                                    Case No. CP-D-330950

        BEFORE: E.A. Gallagher, J., Rocco, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                     October 31, 2013
ATTORNEY FOR APPELLANT

Douglas P. Whipple
Whipple Law, L.L.C.
13940 Cedar Road
Suite 420
University Heights, OH 44118


ATTORNEY FOR APPELLEE

Joyce E. Barrett
800 Standard Building
1370 Ontario Street
Cleveland, OH 44113




EILEEN A. GALLAGHER, J.:
       {¶1} Joseph A. Chiro appeals from the decision of the Cuyahoga County

Common Pleas Court, Domestic Relations Division. Chiro argues the trial court erred

in concluding that he constructively discharged Marcie Foley from her position, by

admitting an email message into evidence, by excluding Chiro’s employee handbook, by

denying his motion to present additional evidence and in causing a delay of 16 months

from the presentation of evidence until the issuance of the decision. For the following

reasons, we affirm the decision of the trial court.

       {¶2} Chiro filed for divorce from Foley in 2010 and the court entered a final

decree on November 19, 2010.       Prior to their divorce, Foley had been an employee of

Chiro’s company, CHJ Corporation, d.b.a. Westview Acres Apartments. In the final

divorce decree, the parties agreed to the following language regarding spousal support:

       Husband and Wife each waive his or her right to any spousal support
       which may be due from the other at the present time. However, the court
       retains jurisdiction for a period of three years to award spousal support to
       the Wife for three (3) years in the event Wife’s employment is terminated
       not for cause in which event Wife will be entitled to monthly spousal
       support commensurate with her current salary of $50,000.00 plus benefits.


       {¶3} The order further provides that “each party agrees not to annoy or interfere

with the other in any manner whatsoever.”

       {¶4} On February 9, 2011, Foley filed a motion to establish spousal support.

On June 9, 2011, Chiro filed his motion to terminate spousal support.          The court

conducted numerous pretrials in an attempt to narrow the issues raised in the parties’

motion.   Ultimately, the parties stipulated that the issues raised in their respective
motions would be submitted to the court solely upon the parties’ submission of the

following documents to the court:

       1) a transcript of a hearing before Hearing Officer Martin Kraus of the
       State of Ohio Unemployment Compensation Review Commission
       regarding the Defendant’s claim for Unemployment benefits;

       2) such additional affidavits and written argument as the parties chose to
       submit.

       {¶5} Foley was employed by CHJ Corporation, Chiro’s business, before, during

and after the parties’ divorce.   On April 19, 2011, Foley took a leave of absence from

her position with the company and effectively resigned from her employment. Foley

claims she was constructively terminated from her employment without cause and Chiro

asserts that Foley quit her job of her own accord.

       {¶6} The evidence before the trial court included the previously-referenced

hearing before the State of Ohio Unemployment Compensation Review Commission

relating to Foley’s claim for unemployment benefits, which Chiro contested.           The

transcript contains the testimony of Chiro, Foley and Liz Blystone. As stated by the

magistrate:

       [A]t all times pertinent to this hearing, the Plaintiff was the President of
       CHJ Corporation, that the Defendant and Ms. Blystone were employees of
       the corporation before, during and after the parties’ divorce. Ms.
       Blystone remained an employee of the corporation, at least through her
       testimony before the State of Ohio Unemployment Compensation Review
       Commission.       Her email to the Defendant dated 7/13/11 was
       acknowledge[d] and used by the hearing officer in the Unemployment
       Compensation Review Commission proceeding.               That same email
       communique was submitted in this proceeding * * *.
      {¶7} The magistrate reviewed the submitted evidence and concluded that Foley

was constructively terminated from her employment.     The magistrate wrote as follows:

      By his inaction relative [to] the demeanor of his employees (including the
      Defendant) in the work place, the Plaintiff allowed a work environment
      hostile to the Defendant to develop and to continue. Too, Plaintiff took it
      on himself to change the Defendant’s employment in nature and in
      remuneration, leaving her no choice than to accept the new terms of
      employment put to her, or to quit. Either action by the Plaintiff, and
      certainly both in concert, are sufficient acts by the Plaintiff to warrant a
      finding that the Defendant was constructively terminated from her
      employment. That Defendant failed to accept the new conditions and
      wage reduction the Plaintiff instituted are not found to be circumstances
      that would support a finding of termination of employment for cause.
      The Magistrate concludes therefore that the Defendant was constructively
      terminated from her employment by the Plaintiff on 4/19/11. Defendant’s
      termination was neither with cause, nor is it deemed to have been
      voluntary. Defendant is entitled to receive spousal support from the
      Plaintiff, therefore, pursuant to the terms of the divorce.

      {¶8} The magistrate awarded Foley a total of $4,631.58 per month with all

spousal support terminating on September 18, 2013. Chiro objected to the magistrate’s

decision but the trial court adopted the decision in its entirety. Chiro appeals, raising

the following assigned errors:

                                 Assignment of Error I

      The conclusion that Appellee was forced into an involuntary resignation of
      her employment is against the manifest weight of the evidence.

                                 Assignment of Error II

      The Magistrate erred and abused his discretion, to the prejudice of
      Appellant, by admitting into evidence the email message of Elizabeth
      Blystone.

                                 Assignment of Error III
         The Magistrate erred and abused its discretion, to the prejudice of
         Appellant, by excluding from evidence the Employee Handbook of
         Appellee’s employer.

                                  Assignment of Error IV

         The Trial Court erred and abused its discretion, to the prejudice of
         Appellant, by denying Appellant’s motion to present additional evidence.

                                   Assignment of Error V

         Appellant sustained prejudice due to the delay of one year and four months
         from the presentation of evidence until the issuance of the Magistrate’s
         decision.

         {¶9} In his first assigned error, Chiro argues the trial court erred in concluding

that Foley was constructively discharged from her employment. We find no merit to

this assigned error.

         {¶10}   In Usaj v. Philips Med. Sys. Inc., 8th Dist. Cuyahoga No. 85296,

2005-Ohio-4132, this court discussed the required burden for a constructive discharge

claim.

          To establish a “constructive discharge,” a plaintiff must show that the
         employer “deliberately makes an employee’s working conditions so
         intolerable that the employee is forced into an involuntary resignation.”
         Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983), quoting
         Young v. Southwestern Savings & Loan Assn., 509 F.2d 140, 144 (5th
         Cir.1975). A constructive discharge generally cannot be established,
         however, simply through evidence that an employee was dissatisfied with
         the nature of his assignments. Stetson v. NYNEX Serv. Co., 995 F.2d 355,
         360-361 (2d Cir.1993).        “To find that an employee’s resignation
         amounted to a constructive discharge, the ‘trier of fact must be satisfied
         that the * * * working conditions would have been so difficult or
         unpleasant that a reasonable person in the employee’s shoes would have
         felt compelled to resign.” Lopez v. S.B. Thomas, Inc., 831 F.2d 1184,
      1188 (2d Cir.1987), quoting Rosado v. Santiago, 562 F.2d 114, 119 (1st
      Cir.1977). In Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62,
      73 (2d Cir.2000), the court found that constructive discharge occurs if
      “working conditions are intolerable if they are so difficult or unpleasant
      that a reasonable person in the employee’s shoes would have felt
      compelled to resign.” Id., quoting Chertkova v. Connecticut Gen. Life
      Ins., 92 F.3d 81, 89 (2d Cir.1996). Constructive discharge also requires
      deliberate action on the employer’s part, and while the meaning of
      “deliberate” is unsettled, “something beyond mere negligence or
      ineffectiveness is required.” Whidbee v. Garzarelli at 74; see, e.g., Kader
      v. Paper Software, Inc., 111 F.3d 337, 341 (2d Cir.1997).

      {¶11}    In the present case, the evidence shows that prior to the parties’ divorce,

Foley’s employment was that of the “boss’s wife” in a moderately sized business.

Foley performed a variety of tasks for the business, she was free to do what she pleased,

when she pleased and for which she was paid a salary of $51,000 per year with benefits.

Prior to the divorce, there was no set limit on Foley’s leave time and there was no

credible evidence before the trial court that Foley worked under any expectation that she

work any specified number of hours in a week.    Foley received bonuses regularly.

      {¶12}    Subsequent to the parties’ divorce, Chiro unilaterally changed the terms

of Foley’s employment, effectively changing the nature and description of her job.

Specifically, Chiro adjusted Foley from a salaried employee to an hourly rate employee

earning $22.36 per hour.   At that hourly rate and in order to maintain her yearly salary

of $51,000, Foley would be required to work 44 hours in a week, something that was

never required of her prior to the divorce.   Chiro brought his children into the office

and gave them authority over Foley. Additionally, Chiro took steps in the office to

more closely define and monitor the work Foley performed. Chiro’s daughter, with
whom Foley did not share a cordial relationship, was identified as the individual

communicating the new requirements and procedures to Foley. The evidence shows

that post divorce, the quality of the work environment dramatically declined.

      {¶13}    Based on the above evidence, the magistrate concluded that Foley was

constructively discharged from her employment.      We agree.    Chiro’s inaction relative

to the demeanor of his employees including both his children and Foley allowed a work

environment hostile to Foley to develop and to continue. Additionally, Chiro altered

Foley’s employment in nature and in compensation, leaving her no choice but to accept

the new terms of employment put to her or to quit.      These actions, taken together, are

sufficient to warrant a finding that Foley was constructively discharged from her

employment.

      {¶14}    Chiro’s first assignment of error is overruled.

      {¶15}    In his second assignment of error, Chiro argues the trial court erred and

abused its discretion by admitting into evidence the email message of Elizabeth

Blystone.   We disagree.

      {¶16}    The admission or exclusion of evidence rests within the sound discretion

of the trial court. Abriani v. Abriani, 8th Dist. Cuyahoga Nos. 88597 and 88599,

2007-Ohio-3534; State v. Jacks, 63 Ohio App.3d 200, 207, 578 N.E.2d 512 (1989).

Therefore, “an appellate court which reviews the trial court’s admission or exclusion of

evidence must limit its review to whether the lower court abused its discretion.” State

v. Finnerty, 45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989). An abuse of discretion
connotes more than an error in law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983). A reviewing court should not substitute its judgment for

that of the trial court. See generally State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d

264 (1984).

       {¶17}   Chiro argues the email is inadmissible according to Evid.R. 802, which

states that hearsay is not admissible except as otherwise provided by the rules.    Hearsay

is defined as an out of court statement offered to prove the truth of the matter asserted.

See Evid.R. 801(C).       However, Evid.R. 801(D) outlines statements that are not

considered hearsay, which include a prior statement by a witness.    In particular, Evid.R.

801(D)(1)(b) provides that if the declarant testifies at trial or hearing and is subject to

cross-examination concerning the statement and the statement is consistent with the

declarant’s testimony and is offered to rebut an express or implied charge against

declarant of recent fabrication or improper influence or motive, the statement is not

hearsay.

       {¶18}   The facts of the present case fit squarely within the Evid.R. 801(D)(1)(b)

hearsay exception.   Elizabeth Blystone wrote an email to Foley setting forth a litany of

events and occurrences at the CHJ office over the first six months of 2011.        The email

speaks of changes in staffing (the advent of Chiro’s children working at the office),

changes in office procedures, and bickering between Chiro’s children and Foley. Both

Chiro and Foley called Elizabeth Blystone as a witness in the Unemployment Hearing
Commission hearing and she was subjected to cross-examination by both parties.

Blystone’s testimony was consistent with her statements in the email to Foley. Further,

Chiro was audibly frustrated by Blystone’s testimony during the hearing as he believed

Blystone was not being forthcoming about the events in the office.

      {¶19}    This court concludes that the trial court did not abuse its discretion in

admitting the email of Elizabeth Blystone as it fell within the hearsay exclusion outlined

in Evid.R. 801(D)(1)(b). Chiro’s second assignment of error is overruled.

      {¶20}     In his third assignment of error, Chiro argues the trial court erred in

excluding the employee handbook of Westview Acres Apartments.          On November 21,

2011, Foley moved the trial court to strike the Westview Acres Apartments employees’

handbook claiming that it was not part of the agreed-upon evidence upon which this case

was to be decided.   The magistrate agreed and struck the employee handbook from the

evidence.

      {¶21}    As stated in the magistrate’s decision,

      the parties, through counsel, stipulated that the issues raised in the within
      motions would, in lieu of a full evidentiary hearing, be submitted to the
      court solely upon the parties’ submission to the Magistrate of the following
      documents:

      1) a transcript of a hearing before Hearing Officer Martin Kraus of the
      State of Ohio Unemployment Compensation Review Commission
      regarding the Defendant’s claim for Unemployment Benefits;

      2) such additional affidavits and written argument as the parties chose to
      submit.

      {¶22}    Thus, Chiro had an opportunity to present the employee handbook as
evidence before the court but failed to do so. We find no error with the court’s decision

upholding the evidentiary submissions in accordance with the parties’ own agreement.

      {¶23}    Chiro’s third assignment of error is overruled.

      {¶24}    In his fourth assignment of error, Chiro argues the trial court abused its

discretion in denying his motion to present additional evidence. Subsequent to the

magistrate’s decision, Chiro filed a motion to present additional evidence relating to an

alleged investigation of embezzlement involving Foley and company funds.               In

particular, Chiro sought to admit the following exhibits: 1) an affidavit signed by Foley

on February 4, 2011, detailing her hostile-work environment claim and demand for

spousal support, 2) a letter dated April 20, 2011, between Chiro’s counsel and Foley’s

then counsel regarding Chiro’s alleged claims of embezzlement and 3) a contract signed

by Chiro and North Coast Investigations dated April 14, 2011.

      {¶25}    The trial court denied Chiro’s motion and we see no reason not to affirm

this denial. Civ.R. 53(D)(4)(d) provides that in ruling on objections to the magistrate’s

decision, the court “may hear additional evidence but may refuse to do so unless the

objecting party demonstrates that the party could not, with reasonable diligence, have

produced that evidence for consideration by the magistrate.”       See also McClain v.

McClain, 11th Dist. Portage No. 98-P-0002, 1999 Ohio App. LEXIS 4655 (Sept. 30,

1999). Chiro failed to make any showing that he was unable to produce the three

exhibits for consideration by the magistrate. In fact, Chiro and Foley agreed to limit the

evidence before the magistrate to:
      1) a transcript of a hearing before Hearing Officer Martin Kraus of the
      State of Ohio Unemployment Compensation Review Commission
      regarding the Defendant’s claim for Unemployment Benefits;

      2) such additional affidavits and written argument as the parties chose to
      submit.

      {¶26}     Chiro never presented the three exhibits to the magistrate for

consideration even though all three were available for presentation at the time of the

court’s decision. Thus, the court was well within its rights to refuse to consider Chiro’s

additional evidence under Civ.R. 53(D)(4)(d).

      {¶27}    Chiro’s fourth assignment of error is overruled.

      {¶28}    In his fifth and final assignment of error, Chiro argues he suffered

prejudice because of the 16-month delay from the presentation of evidence until the

issuance of the magistrate’s decision. We find no merit to this assignment of error.

      {¶29}    In putting forth this argument, Chiro fails to cite to any legal authority for

his claim. An appellate court may disregard an assignment of error pursuant to App.R.

12(A)(2) if an appellant fails to cite to any legal authority in support of an argument as

required by App.R. 16(A)(7). State v. Martin, 12th Dist. Warren No. CA99-01-003,

1999 Ohio App. LEXIS 3266 (July 12, 1999), citing Meerhoff v. Huntington Mtge.

Co., 103 Ohio App.3d 164, 658 N.E.2d 1109 (3d Dist. 1995); Siemientkowshi v. State

Farm Ins., 8th Dist. Cuyahoga No. 85323, 2005-Ohio-4295. “If an argument exists that

can support this assigned error, it is not this court’s duty to root it out.” Cardone v.

Cardone, 9th Dist. Summit Nos. 18349 and 18673, 1998 Ohio App. LEXIS 2028 (May
6, 1998).

      {¶30}    Although we do find troubling the court’s delay between the presentation

of evidence and the magistrate’s decision, Chiro’s failure to cite to any legal authority

allows this court to disregard this argument, App.R. 12(A)(2); App.R. 16(A)(7).

      {¶31}    The judgment of the trial court is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

KENNETH A. ROCCO, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
