[Cite as Stratton v. Stratton, 2019-Ohio-3279.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

NANCY L. STRATTON,                                 :

                 Plaintiff-Appellee,               :
                                                             No. 107798
                 v.                                :

ROBERT B. STRATTON,                                :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 15, 2019


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                              Domestic Relations Division
                                 Case No. DR-17-368178


                                             Appearances:

                 Joyce E. Barrett, and James P. Reddy, for appellee.

                 Robert B. Stratton, pro se.


MARY EILEEN KILBANE, A.J.:

                   Robert and Nancy were married in September 1981. Two sons were

born as issue of their marriage, both of whom were emancipated at the time of the

divorce proceedings. In August 2017, Nancy filed a complaint for divorce. Robert

filed his answer, and the trial court scheduled the matter for trial in July 2018.
              Robert and Nancy agreed to submit the case to the trial court to

render its decision based on joint stipulations and joint exhibits, proposed findings

of fact and conclusions of law, and a proposed judgment entry from each party. The

joint stipulations included retirement assets, checking and savings account

statements, joint credit card statements, a medical reimbursement statement,

information on COBRA health insurance rates available to Nancy, and a Civil

Protection Order in effect until August 2019.

              In September 2018, based on the joint stipulations and joint exhibits,

the trial court divided the marital property and granted the divorce.

              Robert now appeals, assigning the following 11 errors for review.

                             Assignment of Error One

      The judge failed to grant continuance so it could be determined if
      [Nancy] needed a guardian appointed.

                             Assignment of Error Two

      The judge failed to delay trial so [Robert] could retain new counsel
      when his counsel abruptly withdrew on July 25.

                            Assignment of Error Three

      The judge refused to require [Nancy] to provide [Robert] his personal
      records so he could submit evidence and prepare his case.

                             Assignment of Error Four

      The judge refused to clarify whether the restraining order required
      [Robert] to continue buying Marsh stock.

                             Assignment of Error Five

      The decision regarding the marital residence was not equitable and
      totally ignored the housing situation of [Robert].
                              Assignment of Error Six

      The division of the retirement assets was not equitable considering the
      health of [Nancy] and [Robert].

                            Assignment of Error Seven

      [It was] plain error and an abuse of discretion in deciding the marital
      credit card debt.

                             Assignment of Error Eight

      [It was] plain error and an abuse of discretion in assigning the entire
      student loan debt to [Robert].

                             Assignment of Error Nine

      [It was] plain error and an abuse of discretion in dividing the marital
      assets and the marital debt when looked at in the totality.

                             Assignment of Error Ten

      [It was] plain error and an abuse of discretion in considering that
      [Robert] earned a professional degree during the marriage.

                            Assignment of Error Eleven

      [There were] many plain errors in the budget report for 2018 and
      special spousal support is arbitrary, unreasonable and an abuse of
      discretion.

                                    Continuance

              We will address the first and second assignments of error together,

Robert argues the trial court erred when it failed to grant a continuance to determine

if Nancy needed a guardian appointed. Robert also argues the trial court erred when

it failed to grant a continuance for him to retain new counsel.

              The decision to grant or deny a motion for a continuance of trial lies

within the sound discretion of the trial court. Kinas v. Kinas, 8th Dist. Cuyahoga No.
98965, 2013-Ohio-3237, ¶ 28, citing State v. Lorraine, 66 Ohio St.3d 414, 423, 613

N.E.2d 212 (1993). An abuse of discretion 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). The decision whether to grant a continuance is

within the sound discretion of the trial court.    Wielgus v. Wielgus, 8th Dist.

Cuyahoga No. 95214, 2011-Ohio-1569, citing Hartt v. Munobe, 67 Ohio St.3d 3, 9,

1993-Ohio-177, 615 N.E.2d 617.     We will therefore not reverse the trial court’s

decision absent an abuse of discretion.

               When determining whether a trial court abused its discretion in

denying a motion for a continuance, the reviewing court should consider the

following factors: (1) the length of the delay requested; (2) whether other

continuances have been requested and received; (3) the inconvenience to witnesses,

opposing counsel, and the court; (4) whether there is a legitimate reason for the

continuance; (5) whether the defendant contributed to the circumstances giving rise

to the need for the continuance; and (6) other relevant factors, depending on the

unique facts of each case. Depompei v. Santabarbara, 8th Dist. Cuyahoga No.

101163, 2015-Ohio-18, ¶ 41, citing State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d

1078 (1981).

               On July 25, 2018, while acting without an attorney, Robert orally

motioned the trial court to continue the trial to determine whether Nancy, who had

been in poor health and had recently undergone surgery for glioblastoma, needed a

guardian appointed to adequately protect her interest. Nancy was present in court
with counsel, who opposed the motion and in response to the trial court’s inquiry,

opined that Nancy did not need an appointed guardian. The trial court denied the

motion and two days later the parties engaged in the previously mentioned joint

stipulations.

                A review of the record reveals that despite Nancy’s poor health and

recent surgery, she was present in court with counsel, who did not believe a guardian

was necessary, and who was prepared to proceed. Granting the continuance so the

probate court could determine whether a guardian was needed would have involved

an indeterminate delay. As a result, we do not find that the trial court abused its

discretion in denying Robert’s motion to continue.

                Robert also argues the trial court erred when it denied his motion to

continue after his attorney abruptly resigned. However, we find Robert’s argument

moot.

                The record indicates that Robert’s counsel orally motioned the court

for a mandatory withdrawal, ostensibly because she had been dismissed. Robert,

who had four different counsel while the divorce was pending, indicated that he did

not want counsel to withdraw. However, counsel indicated she could not continue

on the case. The trial court granted counsel’s motion to withdraw.

                Afterward, Robert orally motioned the court to continue the trial so

the previously discussed guardianship determination could be made. Two days

later, Robert appeared in court with the same counsel, who had withdrawn earlier.
With the aid of their respective counsel, Robert and Nancy submitted joint

stipulations and joint exhibits for the trial court’s consideration.

               Based on the unfolding of events, in particular counsel’s reappearance

on the case, Robert’s present assertion is moot.

               Accordingly, the first and second assignments of error are overruled.

                                  Personal Records

               In the third assignment of error, Robert argues the trial court erred

by refusing to require that Nancy provide him with access to his personal records

located in the marital home. Robert argues the sought-after personal records would

have helped in his preparation for the case. Robert argues that the inability to get

his personal records prevented him from establishing that 20 percent of the

Vanguard Retirement Account was acquired before his marriage to Nancy.

               However, the record indicates that Robert and Nancy entered into a

consent agreement providing Nancy with exclusive use of the marital home, and

providing that Robert could arrange to obtain his personal items from the residence

in the company of uniformed law enforcement officers. Therefore, based on the

provision of the consent agreement, Robert could have arranged to get his personal

records from the marital home.

               Moreover, Robert and Nancy stipulated that the Vanguard

Retirement Account was worth $330,661. A stipulation is “a voluntary agreement

entered into between opposing parties concerning the disposition of some relevant

point in order to avoid the necessity for proof on an issue” or to “narrow the range
of issues to be litigated.” Bodrock v. Bodrock, 8th Dist. Cuyahoga No. 104177, 2016-

Ohio-5852, citing Wilson v. Harvey, 164 Ohio App.3d 278, 2005-Ohio-5722, 842

N.E.2d 83, ¶ 12 (8th Dist.). Thus, a stipulation of a fact “remove[s] [the] issue from

the litigation,” id., citing McLeod v. McLeod, 11th Dist. Ashtabula No. 2012-A-0030,

2013-Ohio-4546, ¶ 32, and “renders proof unnecessary,” Rice v. Rice, 8th Dist.

Cuyahoga No. 78682, 2001 Ohio App. LEXIS 4983, 11 (Nov. 8, 2001).

              Once entered into by the parties and accepted by the court, a

stipulation is binding upon the parties as “a fact deemed adjudicated for purposes

of determining the remaining issues in the case.” Bodrock at ¶ 19, quoting Dejoseph

v. Dejoseph, 7th Dist. Mahoning No. 10 MA 156, 2011-Ohio-3173, ¶ 35. As a result

of the above stipulation, Robert has waived any error that may have occurred with

respect to the Vanguard Retirement Account.

              Accordingly, the third assignment of error is overruled.

                                    Marsh Stock

              In the fourth assignment of error, Robert argues the trial court erred

by failing to clarify whether the temporary restraining order required him to

continue purchasing Marsh stock in the Morgan Stanley investment account. This

argument lacks merit.

              In February 2018, Robert filed an emergency motion to amend the

temporary financial orders seeking, among other things, to cease all future direct

payments to the purchasing of Marsh stock. Robert also sought permission to

liquidate $30,000 of the Marsh stock to pay legal fees.
              In a domestic relations action, a temporary restraining order merges

within the final decree, and the right to enforce the order does not extend beyond

the decree, unless it has been reduced to a separate judgment or unless it has been

considered by the trial court and specifically referred to within the decree. Brown

v. Brown, 8th Dist. Cuyahoga No. 100499, 2014-Ohio-2402, ¶ 71. See also O’Brien

v. O’Brien, 8th Dist. Cuyahoga No. 89615, 2008-Ohio-1098, ¶ 83-88.

              The trial court addressed the Marsh stock in the final decree as

follows:

      Pursuant to the parties’ Joint Stipulations (Joint Exhibit 1), the Court
      finds that [Robert] has titled in his name a non-retirement brokerage
      account with Morgan Stanley containing 2255.490 shares of Marsh &
      McLennan US common stock, with a trial date value of $196,000.

      [Robert] argues for the sale of the Marsh stock in the Morgan Stanley
      account to be used to pay certain marital debts, different from the debts
      to which the parties stipulated. [Robert] also includes a lengthy
      discussion about the 2018 federal capital gains rates; but it is unclear
      how application of those rates would affect these parties.

      The Court finds that the Marsh stock has been purchased over time at
      different values throughout the marriage; and considers that there may
      be capital gains taxes based on those different values (share price and
      cost basis) upon sale. The Court finds it equitable to divide (not sell)
      the Marsh & McLennan stock equally between the parties on a pro rata
      basis as to acquisition date. Dividing the stock between the parties will
      permit each of them to exercise control over the timing of any sale and
      resulting tax liability.

              As seen from the above findings, the trial court considered the

temporary restraining order regarding the Marsh stock and specifically addressed it

within the final decree. As a result, the temporary order is now merged into the final

decree.
               Accordingly, the fourth assignment of error is overruled.

                             Division of Marital Property

               The remaining assignments of error challenge, in some respect, the

trial court’s division of the marital property.

               R.C. 3105.171 directs a trial court to equitably divide the parties’

marital property. Rodgers v. Rodgers, 8th Dist. Cuyahoga No. 105095, 2017-Ohio-

7886, ¶ 13. An equitable division of marital property generally involves an equal

division of marital property. Id. However, “[i]f an equal division of marital property

would be inequitable, the court shall not divide the marital property equally but

instead shall divide it between the spouses in the manner the court determines

equitable.” Id.; R.C. 3105.171(C)(1).

               In order to determine what is equitable, the trial court must consider

the factors outlined in R.C. 3105.171(F). Strauss v. Strauss, 8th Dist. Cuyahoga No.

95377, 2011-Ohio-3831, ¶ 37, citing Neville v. Neville, 99 Ohio St.3d 275, 2003-

Ohio-3624, 791 N.E.2d 434, ¶ 5. Such factors include, among others, the duration

of the marriage, the assets and liabilities of the spouses, tax consequences of the

property division, and any retirement benefits of the spouses, and “[a]ny other factor

the court expressly finds to be relevant and equitable.” Id.; R.C. 3105.171(F)(1)-(10).

               In the fifth assignment of error, Robert argues the trial court’s

division of the marital residence was not equitable.

               In the instant case, Robert and Nancy stipulated that the marital

home had a fair market value of $159,000, with an outstanding mortgage balance of
$121,000. Based on the parties’ stipulations, the trial court found that the equity in

the property was equal to $38,000.

              During the pendency of the divorce, Nancy was residing in the home

and Robert had no permanent residence, but was staying with a friend. Robert

requested that he be awarded sole interest in the home, that he would compensate

Nancy for her one-half interest in the equity, and that Nancy would vacate the home

by August 31, 2018. Nancy proposed that the home be listed for sale, on or before

May 1, 2019, that she be permitted to reside there until that date, and that she would

receive one-half of the net proceeds.

              The trial court found Robert’s proposal more equitable, except for the

date on which Nancy was to vacate the property. To that end, the trial court stated:

      [Robert’s] proposal that [Nancy] immediately vacate the marital
      residence is unreasonable due to [Nancy’s] present health. The Court
      finds, therefore, that [Nancy] should be permitted to continue to enjoy
      sole use and possession of the marital residence until she elects to
      vacate same, she dies, or no later than May 1, 2019, at which time
      [Nancy] should relinquish her interest in said real property to [Robert].

      Thereafter, [Robert] shall be awarded the marital residence as his sole
      property, free and clear of any claim by [Nancy]. [Nancy] will be
      compensated for her one-half (1/2) interest in the marital residence of
      $19,000 in the overall division of assets and liabilities.

              Here, the trial court awarded the marital residence to Robert and

awarded each party an equal share of the equity in the property. Allowing Nancy to

remain in the marital residence until she vacated or died, but no later than May 1,

2019, was equitable under the circumstances. Nancy was gravely ill, had undergone

brain cancer surgery during the pendency of the divorce, and, as previously noted,
died in February 2019, while this appeal was pending. As a result, we see no abuse

of discretion in this respect.

               Accordingly, the fifth assignment of error is overruled.

               In the sixth assignment of error, Robert argues the division of the

retirement assets was not equitable. Specifically, Robert argues the trial court failed

to consider that Nancy’s prognosis indicated that she would pass away prior to June

2019. Robert further argues that, although sad and tragic, giving half of the

retirement assets to Nancy, who would the give those assets to an unrelated third

party was not equitable.

               As defined in R.C. 3105.171(A)(3)(a), “marital property” includes

“[a]ll interest that either or both of the spouses currently has in any real or personal

property, including, but not limited to, the retirement benefits of the spouses, and

that was acquired by either or both of the spouses during the marriage.” Daniel v.

Daniel, 139 Ohio St.3d 275, 2014-Ohio-1161, 11 N.E.3d 1119, ¶ 8. See

R.C. 3105.171(A)(3)(a)(i) and (ii).

               In the instant case, the trial court found that Nancy had no retirement

assets accumulated during the marriage. Robert and Nancy stipulated to having

three retirement assets namely: the Vanguard IRA, with a value of $330,661; the

Marsh 401(K), with a value of $334,589; and a CNA pension plan in a payout phase,

with a monthly benefit of $622.37. Nancy proposed an equal division of these three

assets, while Robert proposed that he be awarded the Marsh 401(K) in full and

Nancy be awarded the Vanguard IRA in full.
               However, the trial court found it more equitable and just to divide the

Vanguard IRA and the Marsh 401(K) equally, whereby each party would receive

approximately $332,625 in funds that could be available without penalty. The trial

court awarded Robert the full interest in the CNA pension plan because he was

allocated sole responsibility of the marital student loan debt to be discussed below.

Under the circumstances, we do not find the trial court’s division of the retirement

assets, which were amassed during the parties’ 36 year marriage, to be an abuse of

discretion.

               Accordingly, the sixth assignment of error is overruled.

               In the seventh assignment of error, Robert argues the division of the

credit card debt was not equitable.

               A trial court must also take into account the parties’ marital debt

when dividing marital property. Turner v. Davis-Turner, 8th Dist. Cuyahoga No.

106002, 2018-Ohio-2194, citing Kehoe v. Kehoe, 2012-Ohio-3357, 974 N.E.2d 1229,

¶ 14 (8th Dist.). Marital debt includes any debt that is incurred during the marriage

for the joint benefit of the parties or for a valid marital purpose. Rossi v. Rossi, 8th

Dist. Cuyahoga Nos. 100133 and 100144, 2014-Ohio-1832, ¶ 62, citing Cooper v.

Cooper, 12th Dist. Clermont No. CA2013-02-017, 2013-Ohio-4433, ¶ 18.

               In the instant case, Robert and Nancy stipulated to having marital

credit card debt of $21,000. The trial court found that in February of 2018, the

balance had been paid in full, but both parties subsequently charged some of their

attorney fees to the credit card. Based on Nancy’s lack of income, then health
condition, and anticipated future medical expenses, the trial court allocated the

outstanding credit card debt to Robert. However, to be discussed below, the trial

court ordered each party to pay their own attorney fees, including the portion that

had been charged to the credit card.

               The above division was fair, just and equitable under the

circumstances. Thus, we find no abuse of discretion.

               Accordingly, the seventh assignment of error is overruled.

               In the eighth assignment of error, Robert argues it was inequitable to

be assigned full responsibility for the debt for the education of their adult children.

Robert and Nancy stipulated to having a student loan debt of $31,000 incurred on

behalf of their now emancipated sons. Nancy proposed that Robert be held solely

responsible for repayment of the loan.

               We have held that student loan obligations undertaken during the

marriage for the benefit of a couple’s emancipated child should be treated as any

other expense of the marriage and, thus, is considered marital debt. Kaletta v.

Kaletta, 8th Dist. Cuyahoga No. 98821, 2013-Ohio-1667, citing Kehoe, 8th Dist.

Cuyahoga No. 97357, 2012-Ohio-3357, at ¶ 16.

               The trial court did find that the repayment of the student loan should

be allocated to Robert, but found that Nancy should share in the overall debt by

taking a reduced value in other assets. To this end, the trial court did not award

Nancy any share of Robert’s CNA pension, because he had been allocated sole
responsibility for repaying the marital student loan debt. Based on this offset, we

find no abuse of discretion.

              Accordingly, the eighth assignment of error is overruled.

              In the ninth assignment of error, Robert argues the trial court abused

its discretion by not dividing the marital assets and debts equally.

              It has long been established that broad discretion is vested in the trial

court to determine an equitable property division, because ‘“the different facts and

circumstances which each divorce case presents to a trial court requires that a trial

judge be given wide latitude in dividing property between the parties.”’ Wojanowski

v. Wojanowski, 8th Dist. Cuyahoga No. 99751, 2014-Ohio-697, quoting Koegel v.

Koegel, 69 Ohio St.2d 355, 357, 432 N.E.2d 206 (1982).

              Our review of the record in the instant case reveals that the trial court

considered the factors outlined in R.C. 3105.171(F) in fashioning an equitable

division of the parties’ marital assets and debts. In the instances where the trial

court did not divide the assets and debts equally, the trial court provided its

reasoning.   In all instances, we found it equitable, fair, and just, under the

circumstances.

              Accordingly, the ninth assignment of error is overruled.

              In the tenth assignment of error, Robert argues the trial court erred

by giving weight to the fact that he earned a law degree during the marriage.

              R.C. 3105.18(C)(1) sets forth the factors a court must consider when

determining whether spousal support is appropriate and reasonable and in
determining the amount and duration of spousal support. The goal of spousal

support is to reach an equitable result. Hloska v. Hloska, 8th Dist. Cuyahoga No.

101690, 2015-Ohio-2153, citing Kaechele v. Kaechele, 35 Ohio St.3d 93, 96, 518

N.E.2d 1197 (1988). And while there is no set mathematical formula to reach this

goal, the Ohio Supreme Court requires the trial court to consider all 14 factors of

R.C. 3105.18(C) and “not base its determination upon any one of those factors taken

in isolation.” Id. at ¶ 11.

                Among the factors to be considered is:

       “[t]he contribution of each party to the education, training, or earning
       ability of the other party, including, but not limited to, any party’s
       contribution to the acquisition of a professional degree of the other
       party[.]”

R.C. 3105.18(C)(1)(j).

                In the final decree, the trial court addressed all of the factors that

applied to the parties. Regarding R.C. 3105.18(C)(1)(j), the trial court stated:

       Neither party presented documentation specifically addressing this
       factor, and in-court testimony was waived. However, [Robert] was not
       licensed as an attorney in Ohio until 1992 — a full 11 years after the
       marriage. Therefore, this factor will be given weight by the Court.

                There is nothing in the record to indicate how much weight the trial

court gave to this factor or anything to suggest that it was given more weight than

the other factors. Because the trial court ordered that the spousal support payments

continue until the death of either party, and Nancy passed away in February 2019,

any perceived error in the trial court’s consideration of this factor, is now moot.

                Accordingly, the tenth assignment of error is overruled.
              In the eleventh assignment of error, Robert argues the award of

spousal support was arbitrary and an abuse of discretion.

              As discussed in the preceding assignment of error, the trial court

considered the statutory factors set forth in R.C. 3105.18(C)(1) and made specific

findings to justify the award of spousal support to Nancy. We also found the issue

of spousal support is now moot because of the passing of Nancy.

              Accordingly, the eleventh assignment of error is overruled.

              Judgment 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 issue out of this court directing the

common pleas court, domestic relations division, 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.


                                      ______
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and
RAYMOND C. HEADEN, J., CONCUR
