[Cite as Petty v. Blount-Petty, 2017-Ohio-7035.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 WILLIAM J. PETTY                                  :   JUDGES:
                                                   :
                                                   :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         :   Hon. W. Scott Gwin, J.
                                                   :   Hon. Earle E. Wise, Jr., J.
 -vs-                                              :
                                                   :   Case No. 2016CA00226
                                                   :
 SUSAN K. BLOUNT-PETTY                             :
                                                   :
                                                   :
        Defendant-Appellant                        :   OPINION


CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas, Domestic Relations
                                                       Division, 2016DR00191



JUDGMENT:                                              AFFIRMED




DATE OF JUDGMENT ENTRY:                                July 31, 2017



APPEARANCES:

 For Plaintiff-Appellee:                               For Defendant-Appellant:

 RICHARD P. GIBBS                                      LANCE D. GILL
 1001 South Main St.                                   3570 Executive Dr., Suite 102
 North Canton, OH 44720                                Uniontown, OH 44685

 KATHLEEN O. TATARSKY
 236 Third St. S.W.
 Suite 100, Carnegie Building
 Canton, OH 44702
Stark County, Case No. 2016CA00226                                                        2



Delaney, P.J.

       {¶1} Defendant-appellant Susan K. Blount-Petty (Wife) appeals from the

December 6, 2016 Judgment Entry of the Stark County Court of Common Pleas,

Domestic Relations Division. Plaintiff-appellee is William J. Petty (Husband).

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Husband and Wife were married, or “participated in a ceremonial marriage,”

as Wife prefers, on December 21, 1996, in Stark County, Ohio.

       {¶3} Wife had two children with a prior husband, Kenneth Fox. She believed she

had divorced Fox in 1989 in Franklin County, Ohio. After her 1996 marriage to Husband,

Wife sought child support for her two children with Fox and filed for child support in Stark

County. The child support action was dismissed because Wife was found to still be

“common law married” to Fox. In 1998, Wife commenced a divorce action against Fox

and the divorce was granted, terminating the common-law marriage.

       {¶4} On March 4, 2016, Husband filed a complaint for divorce against Wife, and

Wife answered with a motion to dismiss alleging the two were never validly married

because she was still effectively married to Fox at the time of the 1996 “marriage.”

Husband sought a division of marital property and alimony, but Wife filed a motion for

declaratory judgment to establish no marital property existed because the parties were

never “married.”

       {¶5} The trial court overruled the motion to dismiss and allowed the matter to

proceed under the same terms and conditions as a “divorce case filed in a valid marriage.”
Stark County, Case No. 2016CA00226                                                        3


       {¶6} The trial court found Wife was still married to Fox when she married

Husband:

                     * * * *.

                     R.C. 3105.01(A) provides that the Court of Common Pleas

              may grant a divorce if either party had a husband or wife living at the

              time of the marriage from which the divorce is sought. Therefore,

              this Court has statutory authority to grant a divorce to [Husband and

              Wife] even though their marriage was void ab initio.

                     * * * *.

                     Judgment Entry, April 28, 2016.

       {¶7} The trial court further found it had authority to grant alimony and other relief

authorized by divorce and alimony statutes.

       {¶8} In a Judgment Entry dated July 26, 2016, the trial court overruled Wife’s

motion for declaratory judgment, citing Eggleston v. Eggleston, 156 Ohio St.2d 422, 103

N.E.2d 395 (1952) [party to second marriage entitled to divorce despite bigamy, and court

may grant remedies otherwise available for divorce and alimony] and Snyder v. Snyder,

5th Dist. Stark No. 2008CA00219, 2009-Ohio-5292 [family court may divide property,

designate residential parent, order child/spousal support despite marriage void ab initio].

       {¶9} The matter proceeded to trial in November 2016 and the trial court entered

a final Judgment Entry of divorce on December 6, 2016.

       {¶10} Wife now appeals from the trial court’s judgment entries of April 28, July 26,

and December 6, 2016.

       {¶11} Wife raises four assignments of error:
Stark County, Case No. 2016CA00226                                                     4


                             ASSIGNMENTS OF ERROR

      {¶12} “I. THE TRIAL COURT ERRED IN FINDING THAT ARTICLE 15, SECTION

11 OF THE OHIO CONSTITUTION WAS UNCONSTITUTIONAL IN ITS ENTIRETY AS

THE SECOND SENTENCE OF SAID SECTION APPLIES IN THE INSTANT CASE.”

      {¶13} “II. THE TRIAL COURT ERRED IN FINDING THAT O.R.C. 3105.01(A)

WAS CONSTITUTIONAL GIVEN THE PROHIBITIONS STATED IN ARTICLE 15,

SECTION 11 OF THE OHIO CONSTITUTION.”

      {¶14} “III. THE TRIAL COURT ERRED IN FINDING THAT IT HAD THE POWER

TO GRANT A DIVORCE IN THE INSTANT CASE.”

      {¶15} “IV.     THE TRIAL COURT ERRED IN FINDING THAT MARITAL

PROPERTY AS DEFINED IN O.R.C. 3105.171 CAN BE ACQUIRED DURING A

MARRIAGE WHICH IS VOID AB INITIO.”

                                      ANALYSIS

                                        I., II., III.

      {¶16} Wife’s first three assignments of error are related and will be considered

together. Wife argues the trial court did not have any grounds upon which to grant a

divorce. We disagree.

      {¶17} We begin with the standard of review. “As a general rule, appellate courts

review the propriety of a trial court's determination in a domestic relations case for an

abuse of discretion.” Phillips v. Phillips, 5th Dist. Stark No. 2014CA00090, 2014-Ohio-

5439, 25 N.E.3d 371, ¶ 44, citing Saari v. Saari, 195 Ohio App.3d 444, 2011-Ohio-4710,

960 N.E.2d 539, ¶ 8 (9th Dist.). “This is true because the domestic relations court, as a

court of equity, ‘must have discretion to do what is equitable upon the facts and
Stark County, Case No. 2016CA00226                                                       5

circumstances of each case.’” Id. The Supreme Court has repeatedly held the term

“abuse of discretion” implies the court's attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). When applying the abuse-of-discretion standard, a reviewing court may not

substitute its judgment for that of the trial court. Holcomb v. Holcomb, 44 Ohio St.3d 128,

130, 541 N.E.2d 597 (1989).

       {¶18} It is well-established that a bigamous marriage is void ab initio and of no

legal purpose. Snyder v. Snyder, 5th Dist. Stark No. 2008CA00219, 2009-Ohio-5292, ¶

19. One who is already married has no capacity to enter into another marriage contract,

either ceremonial or common-law. Id., citing Johnson v. Wolford, 117 Ohio St. 136, 138,

157 N.E. 385 (1927) and Darling v. Darling, 44 Ohio App.2d 5, 335 N.E.2d 708 (8th

Dist.1975).   However, the Ohio Legislature has recognized that although a second

marriage may be void, a party to that marriage still may obtain a divorce. Snyder, supra,

at ¶ 20.

       {¶19} R.C. 3105.01 establishes the grounds for divorce in Ohio and section (A)

provides: “The court of common pleas may grant divorces for the following causes:

[e]ither party had a husband or wife living at the time of the marriage from which the

divorce is sought[.]” In construing the predecessor statute to R .C. 3105.01, the Ohio

Supreme Court declared “[s]ection 11979, General Code, authorizing the granting of a

divorce where ‘either party had a husband or wife living at the time of the marriage from

which the divorce is sought,’ provides an exclusive remedy in cases involving that

situation.” Eggleston v. Eggleston, 156 Ohio St. 422, 103 N.E.2d 395 (1952), paragraph

one of the syllabus. See also, Bubsey v. Oleyar, 8th Dist. Nos. 76266, 76267, 2000 WL
Stark County, Case No. 2016CA00226                                                       6


680447 (divorce may be granted even though one party lacked capacity to marry because

that party had spouse living at time of later marriage).

       {¶20} Wife argues in her first three assignments of error that our reliance upon

Eggleston, as evidenced by the Snyder decision, must be reconsidered in light of the

2004 “marriage amendment” to the Ohio Constitution. That amendment is found in Ohio

Constitution, Article XV, Section 11, and states:

                     Only a union between one man and one woman may be a

              marriage valid in or recognized by this state and its political

              subdivisions. This state and its political subdivisions shall not create

              or recognize a legal status for relationships of unmarried individuals

              that intends to approximate the design, qualities, significance or

              effect of marriage.

       {¶21} Wife’s argument is unavailing as the “marriage amendment” has been ruled

unconstitutional in the wake of the United States Supreme Court’s decision in Obergefell

v. Hodges, 135 S.Ct. 2584, 2605, 192 L.Ed.2d 609, 192 L.Ed.2d 609 (2015). That case

reviewed so-called “defense of marriage” acts and amendments, including Ohio’s, and

found such amendments “invalid to the extent they exclude same-sex couples from civil

marriage on the same terms and conditions as opposite-sex couples.” In Ohio, the matter

raising the challenge to Ohio’s marriage amendment was remanded to the United States

District Court for the Southern District of Ohio, and the trial court found the amendment

to be unconstitutional. Obergefell v. Hodges, S.D. Ohio No. 1:13-cv-501, unreported, 2-

3 (Nov. 2, 2015).
Stark County, Case No. 2016CA00226                                                         7

       {¶22} Wife responds, though, that the Obergefell decisions affect only the first

sentence of the amendment, and the second sentence survives [“This state and its

political subdivisions shall not create or recognize a legal status for relationships of

unmarried individuals that intends to approximate the design, qualities, significance or

effect of marriage.”]. On that basis, Wife argues the trial court in the instant case may not

recognize the parties’ relationship as a “marriage.”

       {¶23} As the trial court pointed out, however, the federal district court “gave no

indication that some portion of that section remained operative * * *” and we agree. Wife

points to no authority which would require us to find otherwise.

       {¶24} Moreover, the position urged by Wife is contrary to the rationale of

Eggleston and, by extension, Snyder, both supra. The domestic relations court could not

rationally refuse to grant a divorce on the ground that Wife had a spouse living at the time

of her marriage to Husband, nor decline to proceed accordingly in granting alimony and

other relief. R.C. 3105.01(A).

       {¶25} Wife’s first three assignments of error are overruled.

                                                IV.

       {¶26} In Wife’s fourth assignment of error, she argues in the alternative that

pursuant to Eggleston, supra, if the domestic relations court could grant a divorce, it could

not find that the parties had created “marital property.” We disagree.

       {¶27} After a divorce has been granted, the trial court is required to equitably

divide and distribute the marital estate between the parties and thereafter consider

whether an award of sustenance alimony would be appropriate (emphasis added).

Holcomb v. Holcomb, 44 Ohio St.3d 128, 130, 541 N.E.2d 597 (1989), citing Teeter v.
Stark County, Case No. 2016CA00226                                                         8

Teeter, 18 Ohio St.3d 76, 479 N.E.2d 890 (1985) and Wolfe v. Wolfe, 46 Ohio St.2d 399,

350 N.E.2d 413 (1976). The trial court is vested with broad discretion in determining the

appropriate scope of these property awards. Holcomb, supra, 44 Ohio St.3d at 131, citing

Berish v. Berish, 69 Ohio St.2d 318, 23 O.O.3d 296, 432 N.E.2d 183 (1982). Although its

discretion is not unlimited, it has authority to do what is equitable. Id., citing Cherry v.

Cherry, 66 Ohio St.2d 348, 355, 20 O.O.3d 318, 322, 421 N.E.2d 1293, 1298 (1981). A

reviewing court should measure the trial court's adherence to the test, but should not

substitute its judgment for that of the trier of fact unless, considering the totality of the

circumstances, it finds that the court abused its discretion. Id. “The term ‘abuse of

discretion’ connotes more than an error of law or judgment; it implies that the court's

attitude is unreasonable, arbitrary or unconscionable.” Blakemore, supra, 5 Ohio St.3d at

219.

       {¶28} In the instant case, the trial court found the marriage began on the date of

the “ceremonial marriage” on December 21, 1996 and ended on March 10, 2014, when

the parties separated. Pursuant to R.C. 3105.171, property acquired during that time

period was “marital property.”

       {¶29} As we addressed in our discussion of the first three assignments of error,

R.C. 3105.01(A) decrees that one statutory ground for divorce is either spouse having a

husband or wife living at the time of the marriage. Upon finding grounds for divorce

pursuant to R.C. 3105.01(A), the trial court is required to equitably divide and distribute

the marital estate between the parties. It would be inconsistent for us to determine the

trial court has the authority to grant the parties a divorce, but no authority to divide the
Stark County, Case No. 2016CA00226                                                      9


marital estate. We disagree with Wife’s characterization of the marriage to Husband as

a “legal fiction.”

        {¶30} Wife has not presented us with any authority in support of her novel

argument that a domestic relations court has no authority to divide the marital estate

under these circumstances, and we find this argument to be contrary to both the literal

language and the spirit of the relevant statutes and case law. Wife’s fourth assignment

of error is therefore overruled.

                                     CONCLUSION

        {¶31} Wife’s four assignments of error are overruled and the judgment of the Stark

County Court of Common Pleas, Domestic Relations Division is affirmed.

By: Delaney, P.J.,

Gwin, J. and

Wise, Earle, J., concur.
