[Cite as Nott v. Stegall, 2018-Ohio-4471.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




CHANDRA NOTT, ADMN. OF THE
ESTATE OF VICTOR JOHN STEGALL,
DECEASED,                                                  CASE NO. 2-18-04

        PLAINTIFF-APPELLANT,

        v.

DEBORAH STEGALL,                                           OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 1997-DR-115

                                       Judgment Affirmed

                           Date of Decision: November 5, 2018




APPEARANCES:

        Dianna M. Anelli for Appellant

        Rob C. Wiesenmayer, II for Appellee
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ZIMMERMAN, J.

      {¶1} Plaintiff-Appellant, Chandra Nott, (herein referred to as “Appellant”)

appeals the judgment of the Auglaize County Common Pleas Court, Domestic

Relations Division, granting summary judgment to Deborah Stegall (“Appellee”)

and awarding Appellee a $2.1 million lump sum judgment. On appeal, Appellant

argues that the Domestic Relations Court erred: 1) in granting summary judgment

to Appellee; 2) in finding that interest accrued from 10/16/1998 on the entirety of

the outstanding property division balance; 3) by modifying the property division in

violation of R.C. 3015.171(I); 4) when it accelerated the decedent’s, (hereafter

referred to as “Dr. Stegall”) periodic property division payments; and 5) by

awarding Appellee a $2.1 million judgment against Dr. Stegall’s estate. For the

reasons that follow, we affirm the judgment of the Auglaize County Common

Pleas Court, Domestic Relations Division.

                          Facts and Procedural History

                                 Divorce Decree

      {¶2} On October 16, 1998, Appellee and Dr. Stegall were granted a divorce

in the Auglaize County Common Pleas Court, Domestic Relations Division, in

case number 97-DR-115. (Doc. No. 62). The divorce decree (the “Decree”) was

filed the same day. (Id.). Pertinent to this appeal, and in regards to the Domestic




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Relations Court’s award of spousal support, the divorce decree provided as

follows:

      The Court further finds that at this time there shall be no payment of
      spousal support fka alimony by Plaintiff [Dr. Stegall] to the
      Defendant [Appellee] or by the Defendant to the Plaintiff. This
      provision of spousal support shall continue solely for the division of
      property and shall be subject to the continuing jurisdiction of the
      Court until such time as the division of property has been
      accomplished. The Court recognizes that the payment on the
      division of property is for maintenance and support of the Defendant
      and therefore is nondischargeable in bankruptcy.

(Id. at 6). With respect to the division of marital property, the divorce degree

further provided:

      THE COURT FURTHER FINDS that the parties have agreed that
      the Defendant [Appellee] shall receive as her division of the marital
      property and accounts $1,352,826.00 to be paid as follows: $500,000
      shall be paid within sixty (60) days of August 3, 1998. After that,
      the amount to be paid by the Plaintiff [Dr. Stegall] to the Defendant
      shall be $50,000.00 per year at an interest rate of ten (10%) until
      paid in full. The Plaintiff shall designate the Defendant as a
      beneficiary on the pension account to protect or secure her interest in
      this division of property until such time as this division of property
      is complete.

      IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
      that the Plaintiff shall pay to the Defendant $500,000 within (60)
      days of the final hearing of divorce held on August 3, 1998. Further,
      the balance which shall be due and owing to the Defendant shall be
      paid at the rate of $50,000 per year on January 1 of each year with
      ten percent (10%) interest accruing on the unpaid balance, which
      includes principle [sic] and interest.

      In order to protect Defendant’s interest, the Plaintiff shall designate
      the Defendant as beneficiary on his retirement accounts to protect or


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       secure Defendant’s interest in the division of property until the
       division of property is finalized.

       Until such time as the $500,000 has been paid by the Plaintiff to the
       Defendant, the Plaintiff shall continue to pay temporary spousal
       support in the amount of $1,027 per week.

(Emphasis added). (Id. at 11). Lastly, with respect to the division of property, the

divorce decree provided that “the division of property as set forth above is incident

to a divorce and is not a taxable event pursuant to IRS Code §408(b)(6) and IRS

Code §71(b)(2)(A).” (Id. at 13).

                         Post-Decree Filings and Appeals

       {¶3} On October 19, 2015, approximately seventeen (17) years after the

parties’ decree was filed, Dr. Stegall filed a post-judgment motion in the Domestic

Relations Division, entitled “Plaintiff’s [Dr. Stegall’s] Motion to Terminate or

Modify Spousal Support.” (Doc. No. 172). In that motion, Dr. Stegall requested

the Domestic Relations Court to review his property division payments, averring

that such “ha[d] nearly reached the end of the term.”     (Id. at 3). However, Dr.

Stegall’s motion also asserted that the Appellee was seeking an additional

$2,025,430 (at the time of the motion’s filing) “to complete payment of spousal

support pursuant to the Judgment and Final Decree of Divorce.” (Id.).

       {¶4} Prior to perfecting service of his post decree motion upon Appellee,

Dr. Stegall died on December 7, 2015. (Doc. No. 181). However, Dr. Stegall’s



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adult daughters, Chandra Nott (Appellant) and Ashley Stegall1 were substituted as

parties in the pending post-decree action. (Doc. No. 190). Service of the post

decree motion was perfected upon Appellee on December 31, 2015. (Doc. No.

193).

                                 Civil Division R.C. 2117.12 Suit

         {¶5} Before the Domestic Relations Court ruled on Dr. Stegall’s motion to

terminate or modify spousal support, Appellee filed a claim against the estate of

Dr. Stegall in the Auglaize County Probate Court on February 17, 2016, claiming

that the amount of $2,177,973.70 was owed her by the estate, and that such

amount represented the unpaid balance due her under the property division award

as set forth in the parties divorce decree. (Doc. Nos. 213; 222). Appellant,

pursuant to R.C. 2117.11, rejected Appellee’s claim against Dr. Stegall’s estate, so

Appellee filed a complaint (versus Dr. Stegall’s estate) in the Auglaize County

Court of Common Pleas, Civil Division, in case number 2016-CV-75, requesting

$2,177,973.70 from the estate. (Id.). Appellee also filed a motion for summary

judgment in the Domestic Relations Court. (Id.). Appellant filed a memorandum

contra to Appellee’s motion for summary judgment on September 12, 2016. (Doc.

No. 217). On October 16, 2016, the Domestic Relations Court dismissed all

pending motions for lack of jurisdiction. (Doc. No. 222).


1
  Ashley Stegall resigned her position as co-administrator of the estate prior to the filing of this appeal.
(Doc. No. 245).

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       {¶6} On March 30, 2017, the Auglaize County Common Pleas Court, Civil

Division, in case number 2016-CV-75, granted summary judgment to Appellee on

her claim against Dr. Stegall’s estate. (2016-CV-75, Doc. No. 62). Appellant

appealed that decision to this Court in “Stegall I,” and on December 13, 2017, we

sustained Appellant’s first assignment of error. See, Stegall v. Nott, 3rd Dist.

Auglaize No. 2-17-11, 2017-Ohio-8683. We found that the Domestic Relations

Court had original and exclusive jurisdiction to interpret the Decree and to

determine the amount of Appellee’s claim. (Id.). Thus, we reversed the Civil

Division’s decision and remanded the matter to the Domestic Relations Division

for further proceedings. (Id.).

                             Proceedings after Remand

       {¶7} After our remand, Appellant filed a supplemental motion for summary

judgment in the Auglaize County Common Pleas Court, Domestic Relations

Division on January 19, 2018. (Doc. No. 240). Appellee also filed a supplemental

motion in support of summary judgment on February 15, 2018. (Doc. No. 243).

       {¶8} On March 7, 2018, the trial court filed its entry on Dr. Stegall’s

original motion to modify or terminate spousal support. (Doc. No. 245). The trial

court found that the language of the Decree mandated that the 10% interest

provision accrued upon the unpaid balance of both the principal and interest owed

Appellee by Dr. Stegall. (Id. at 4740). In finding that interest ran on the entire


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amount of the property division, the Domestic Relations Court confirmed that

Appellee had a valid claim of $2,177,973.70 against Dr. Stegall’s estate. (Id.).

Further, the trial court granted summary judgment in favor of Appellee and

dismissed Appellant’s motion for summary judgment. (Id. at 4741). It is from

this judgment that Appellant appeals, and presents the following assignments of

error for our review:

                        ASSIGNMENT OF ERROR NO. I

       THE DR [DOMESTIC RELATIONS] COURT ERRED IN
       GRANTING SUMMARY JUDGMENT TO MRS. STEGALL
       BASED ON SANDRA B. FREEWALT’S IMPROPERLY
       SUPPORTED CIV.R. 56(E) AFFIDAVIT.

                        ASSIGNMENT OF ERROR NO. II

       THE DR [DOMESTIC RELATIONS] COURT ERRED IN
       HOLDING THAT INTEREST ACCRUED FROM 10/16/1998
       ON THE ENTIRETY OF THE PROPERTY DIVISION
       BALANCE THAT WAS TO BE PAID OVER TIME.

                        ASSIGNMENT OF ERROR NO. III

       THE DR [DOMESTIC RELATIONS] COURT’S RULING
       MODIFIES THE PROPERTY DIVISION IN VIOLATION OF
       R.C. 3015.171(I).

                        ASSIGNMENT OF ERROR NO. IV

       THE DR [DOMESTIC RELATIONS] COURT ERRED WHEN
       IT  ACCELERATED     DR.   STEGALL’S  PERIODIC
       PROPERTY DIVISION PAYMENTS[,] REDUCING THEM
       TO A LUMP SUM JUDGMENT OF $2.1 MILLION AS IT
       LACKED JURISDICTION TO DO SO.


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                      ASSIGNMENT OF ERROR NO. V

       THE DR [DOMESTIC RELATIONS] COURT ERRED WHEN
       IT AWARDED MRS. STEGALL A $2.1 MILLION CLAIM
       AGAINST DR. STEGALL [SIC] ESTATE[,] AS SUCH A
       RULING CONSTITUTES MODIFICATION OF THE
       DIVORCE DECREE.

       {¶9} For ease of analysis, we elect to address interrelated assignments of

error together and out of the order in which they were raised.

                     Appellant’s Second Assignments of Error

       {¶10} In her second assignment of error, Appellant argues that the trial

court erred in finding that interest accrued from the date of the Decree on the

entirety of the property division balance. For the reasons that follow, we disagree.

                                Standard of Review

       {¶11} “An interpretive decision by the trial court cannot be disturbed upon

appeal absent a showing of an abuse of discretion.” Jewett v. Jewett, 12th Dist.

Warren No. CA2013-11-110, 2014-Ohio-2343, 12 N.E.3d 502, ¶ 11, citing

Schneider v. Schneider, 5th Dist. Stark No. 2009CA00090, 2010-Ohio-534, ¶ 10,

quoting Bond v. Bond, 69 Ohio App.3d 225, 227-28, 590 N.E.2d 348 (9th

Dist.1990). “An abuse of discretion implies that the trial court’s attitude was

unreasonable, arbitrary, or unconscionable.” Dindal v. Dindal, 3rd Dist. Hancock

No. 5-09-06, 2009-Ohio-3528, ¶ 6.

                                     Analysis


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       {¶12} “[I]f there is good faith confusion over the interpretation to be given

to a particular clause of a divorce decree, the trial court in enforcing that decree

has the power to hear the matter, clarify the confusion, and resolve the dispute.”

Jewett, 12th Dist. Warren No. CA2013-11-110, 2014-Ohio-2343, 12 N.E.3d 502, ¶

11 citing Flint v. Flint, 5th Dist. Delaware No. 11 CAF 11 0102, 2012-Ohio-3379,

¶ 10, quoting Quisenberry v. Quisenberry, 91 Ohio App.3d 341, 348, 632 N.E.2d

916 (2nd Dist.1993).

       {¶13} In this case, it is evident that a “good faith confusion” exists over the

interpretation of the property division award contained within the parties’ divorce

decree. In dispute is the property division award, which provides:

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
       that the Plaintiff [Dr. Stegall] shall pay to the Defendant [Appellee]
       $500,000 within (60) days of the final hearing of divorce held on
       August 3, 1998. Further, the balance which shall be due and owing
       to the Defendant shall be paid at the rate of $50,000 per year on
       January 1 of each year with ten percent (10%) interest accruing on
       the unpaid balance, which includes principle [sic] and interest.

(Emphasis added). (Doc. No. 62).

       {¶14} Prior to his death, Dr. Stegall filed a motion to terminate or modify

spousal support. (Doc. No. 172). In the motion, Dr. Stegall contended that he had

paid $800,000 of the $852,825 ordered by the Domestic Relations Court. (Id.).

However, due to a difference in interpretation of the above property division

award, Appellee was demanding an additional $2,025,430 (at that time) to


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complete the payment of the property division award. (Id.). This represents the

parties’ good faith confusion here.

           {¶15} The trial court, in interpreting the decree provision in question,

referred to the plain language in the decree, which specifically provided that ten

percent (10%) interest would run on the unpaid balance of the property division,

including the principal and the interest. The trial court justified its interpretation

by referencing the decree provision that secured Dr. Stegall’s debt (to Appellee) to

his retirement account because the decree’s payment arrangement placed him in a

negative equity position. (Doc. No. 245 at 4740). Moreover, the trial court found

that Dr. Stegall understood that by paying Appellee only $50,000 a year, his

payments to her would never end.2 (Id.).

           {¶16} Because a “‘trial court has broad discretion in clarifying ambiguous

language by considering the parties’ intent and equities involved,’” we find that

the Domestic Relations Court did not abuse its discretion in interpreting the

disputed Decree provision. Jewett, 12th Dist. Warren No. CA2013-11-110, 2014-

Ohio-2343, 12 N.E.3d 502, ¶ 11 quoting Butcher v. Butcher, 8th Dist. Cuyahoga

No. 95758, 2011-Ohio-2550, ¶ 10. Accordingly, we overrule Appellant’s second

assignment of error.

                               Appellant’s First Assignment of Error



2
    (See, Doc. No. 242, Ex. L, Dep. of Dr. Stegall on 11/3/2003, at 19-20).

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      {¶17} In her first assignment of error, Appellant argues that the Domestic

Relations Court erred in granting Appellee’s motion for summary judgment,

because the affidavit of Sandra B. Freewalt was contrary to prior sworn testimony.

We disagree.

                               Standard of Review

      {¶18} An appellate court reviews a trial court’s decision on a motion for

summary judgment de novo. Hancock Fed. Credit Union v. Coppus, 3rd Dist.

Seneca No. 13-15-19, 2015-Ohio-5312, 54 N.E.3d 806, ¶ 15. Trial courts may

grant a motion for summary judgment when “(1) no genuine issue as to any

material fact remains to be litigated, (2) the moving party is entitled to judgment

as a matter of law, and (3) it appears from the evidence that reasonable minds can

come to but one conclusion and that conclusion is adverse to the party against

whom the motion for summary judgment is made.” Hamilton v. Hector, 117 Ohio

App.3d 816, 819, 691 N.E.2d 745, 747 (3rd Dist.1997).        Additionally, “‘upon

appeal from summary judgment, the reviewing court should look at the record in

the light most favorable to the party opposing the motion.’” Id. quoting Campbell

v. Hosp. Motor Inns, Inc., 24 Ohio St.3d 54, 58, 493 N.E.2d 239 (1986).

                                     Analysis

      {¶19} Once the trial court determined that the Decree required interest to

run on both the principal and interest on the unpaid balance amount from 1998,


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there was no genuine issue of material fact to be litigated in the trial court.

“‘Summary judgment is a procedural device to terminate litigation and to avoid a

formal trial where there is nothing to try.’” Pappas v. Ippolito, 177 Ohio App.3d

625, 2008-Ohio-3976, 895 N.E.2d 610, ¶ 38 quoting Norris v. Ohio Std. Oil Co.,

70 Ohio St.2d 1, 2, 433 N.E.2d 615 (1982).

      {¶20} The parties do not contest that Appellee had a claim against Dr.

Stegall’s estate for some amount. And, upon the determination as to what that

amount was by the trial court, there was no material fact as to what amount

Appellee was entitled to.

      {¶21} Nonetheless, Appellant raises concerns with Appellee’s accountant,

Sandra B. Freewalt’s (“Freewalt”), affidavit being improper under Civ.R. 56(E).

Specifically, Appellant argues that Freewalt’s testimony in previous hearings

indicated that Dr. Stegall’s payments to Appellee were being applied to principal

only. To support her argument, Appellant directs us to the Ohio Supreme Court’s

decision in Byrd v. Smith. Bryd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850

N.E.2d 47. In Byrd, the Ohio Supreme Court held:

      In summary, in response to the certified question, we answer that
      when an inconsistent affidavit is presented in support of, or in
      opposition to, a motion for summary judgment, a trial court must
      consider whether the affidavit contradicts or merely supplements the
      affiant’s earlier sworn testimony. A movant’s contradictory affidavit
      will prevent summary judgment in that party’s favor. A nonmoving
      party’s contradictory affidavit must sufficiently explain the
      contradiction before a genuine issue of material fact is created.

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Id. at ¶ 29.

        {¶22} However, we find Appellant’s reliance on Bryd misplaced in this

case.   In Bryd, the appellate court rejected the inconsistent affidavit without

considering Bryd’s explanation for the inconsistency or contradiction. Id. at ¶ 31.

Based on the lack of consideration, the Ohio Supreme Court remanded the matter

for further proceedings consistent with their opinion. Id. at ¶ 32.

        {¶23} In the case sub judice, we find that the Domestic Relations Court did

consider Freewalt’s alleged “inconsistent” affidavit, finding that issue was “of no

consequence to this decision.” (See, Doc. No. 245 at 4740).

        {¶24} Here, there is no allegation that the balance as calculated was

incorrect, because once the Domestic Relations Court interpreted the disputed

provision and held that interest ran on the entire balance of the property division,

Freewalt correctly calculated the balance owed to be $2,177,973.70.

        {¶25} Finding no genuine issue of material fact present before the

Domestic Relations Court to preclude summary judgment, we overrule

Appellant’s second assignment of error.

               Appellant’s Third, Fourth, and Fifth Assignments of Error

        {¶26} Because the Domestic Relations Court correctly granted summary

judgment to Appellee after it interpreted the language contained within the Decree,

we find no merit to Appellant’s third, fourth, and fifth assignments of error

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relating to modification and acceleration of the property division award.

Accordingly, we overrule Appellant’s third, fourth, and fifth assignments of error.

       {¶27} Having found no error prejudicial to Appellant herein in the

particulars assigned and argued, we overrule all of Appellant’s assignments of

error and affirm the judgment of the Auglaize County Common Pleas Court,

Domestic Relations Division.

                                                               Judgment Affirmed

PRESTON, J., concurs.
SHAW, J., concurs in Judgment Only.

/jlr




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