[Cite as Moore v. Moore, 2013-Ohio-5649.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


REBECCA MOORE,                                :       OPINION

                 Plaintiff-Appellant/         :
                 Cross-Appellee,
                                                      CASE NOS. 2012-P-0136
        - vs -                                :              and 2012-P-0138

RANDALL MOORE, et al.,                        :

                 Defendant-Appellee/          :
                 Cross-Appellant.


Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations
Division, Case No. 10 DR 439.

Judgment: Affirmed.


Gregory J. Moore, 55 Erieview Plaza, 5th Floor, Cleveland, OH 44114 (For Plaintiff-
Appellant/Cross-Appellee).

David L. Engler, 839 Southwestern Run, Youngstown, OH 44514 (For Defendant-
Appellee/Cross-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant and cross-appellee, Rebecca Moore, and defendant-

appellee and cross-appellant, Randall Moore, appeal the Judgment Entry of Divorce,

rendered by the Portage County Court of Common Pleas, Domestic Relations Division.

The issues before this court are whether a residence should be deemed marital

property, where the contract of sale is entered into prior to marriage but payment is

made after marriage; whether temporary spousal support should be awarded based on
the disparity of the parties’ incomes despite the short duration of the marriage; whether

a partial award of attorney fees is merited based on a party’s conduct in contempt of

court orders; and whether temporary spousal support should be awarded where a

spouse’s financial situation improved during the course of the marriage.         For the

following reasons, we affirm the judgment of the court below.

      {¶2}   On September 1, 2010, Rebecca Moore filed a Complaint for Divorce

against Randall Moore and IDS (Randall’s business interest).

      {¶3}   On October 1, 2010, Randall filed his Answer and Counterclaim for

Divorce.

      {¶4}   On November 5, 2010, a Magistrate’s Order was issued, requiring Randall

to pay temporary spousal support in the amount of $2,000 per month, commencing

November 1, 2010.

      {¶5}   On December 16, 2011, April 6, 2012, and June 15, 2012, the final

contested hearings on the merits were held.

      {¶6}   On September 21, 2012, the domestic relations court issued its Judgment

Entry (Final Decree of Divorce). The court made the following findings: The parties

married on October 11, 2008, and have become incompatible. No children were born

as issue of the marriage. Prior to the marriage, the parties entered into a binding

Statement and Agreement of Pre-marital Assets and Debts/Obligations.                 The

termination date of the marriage was set as April 6, 2012 (the date of the second

contested hearing).

      {¶7}   The domestic relations court ordered Randall to pay $4,000 in retroactive

spousal support for the months of October and November 2010, and an additional

$4,000 in unpaid spousal support for the months of May and June 2012. Randall’s


                                           2
spousal support obligation was terminated, effective June 30, 2012. The court ordered

the parties to “consult with a professional tax preparer to determine the most

advantageous way to file their 2011 income tax returns,” and to “equally share in the

total of their refunds or liabilities as determined by the tax preparer.” Randall was

ordered to contribute $1,000 toward Rebecca’s attorney fees.              Apart from this

contribution, each party was held responsible for his or her own attorney fees.

       {¶8}   On October 19, 2012, Rebecca filed a Notice of Appeal (11th Dist. No.

2012-P-0136).

       {¶9}   On October 22, 2012, Randall filed a Notice of Cross-Appeal (11th Dist.

No. 2012-P-0138).

       {¶10} On December 21, 2012, this court consolidated the appeals on Randall’s

motion.

       {¶11} On appeal, Rebecca raises the following assignments of error:

       {¶12} “[1.] The trial court erred and/or abused its discretion in its decision

relating to Rainbow’s End and Bonnie Lane Residences.”

       {¶13} “[2.] The trial court erred and/or abused its discretion in that its judgment

entry is incomplete and fails to divide property, debts, and other issues.”

       {¶14} “[3.] The trial court erred and/or abused its discretion in its determination

of prospective spousal support.”

       {¶15} “[4.] The trial court erred and/or abused its discretion in failing to issue

orders relating to contempt for Randall’s cancellation of health insurance and

reimbursement to Rebecca for the amounts she had to pay due to Randall’s conduct.”

       {¶16} “[5.] The trial court erred and/or abused its discretion in its award for

attorney fees and litigation expenses.”


                                             3
       {¶17} “[6.] The trial court decisions [sic] are against the manifest weight of the

evidence.”

       {¶18} On cross-appeal, Randall raises the following assignment of error:

       {¶19} “[7.] The trial court erred by abusing their [sic] discretion in determining the

award of spousal support.”

       {¶20} In her first assignment of error, Rebecca contends that the domestic

relations court erred by not awarding her a share of the proceeds from the sale of the

residence at 333 Rainbows End, Aurora, Ohio.

       {¶21} “In divorce proceedings, * * * the court shall divide the marital and

separate property equitably between the spouses.” R.C. 3105.171(B). “A trial court has

broad discretion in making divisions of property in domestic cases.”           Middendorf v.

Middendorf, 82 Ohio St.3d 397, 401, 696 N.E.2d 575 (1998), citing Berish v. Berish, 69

Ohio St.2d 318, 319, 432 N.E.2d 183 (1982). “A trial court’s decision will be upheld

absent an abuse of discretion.” Id., citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131,

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

       {¶22} The      Statement       and   Agreement      of    Pre-marital    Assets     and

Debts/Obligations, entered into by the parties, prior to their marriage, on October 7 and

8, 2008, provides in relevant part:

       {¶23} Randall J. Moore (husband) and Rebecca S. Guthlein (wife) * * *

       agree * * * that the property listed in Exhibits A and B attached, is an

       accurate statement of the value of their respective pre-marital assets, and

       that neither party shall obtain any right[,] title or interest of any kind in and

       to the value of the premarital property of the other * * * by virtue of the

       parties’ marriage nor by virtue of any use or occupancy of that property * *


                                              4
      *. However, any appreciation to any and all the asset values listed in

      Exhibits A and B attached as well as any assets acquired by the parties

      during their marriage are presumed to be post-marital assets and

      therefore community property, and shall be divided equally in the event of

      a termination of the marriage * * *. However, as each is presumed by this

      Agreement to be sole owner of any property he or she owns prior to the

      marriage, joint use of that property does not give rise to joint ownership,

      unless the parties agree otherwise in writing. * * * Neither party shall

      have the right to reimbursement for any contributions made from his or her

      separate property toward the acquisition of community or joint property

      and each party hereby expressly waives any such right.

The subject property, 333 Rainbows End, is not listed in the Exhibits attached to the

Agreement.

      {¶24} On October 8, 2008, Randall entered into a Land Installment Contract for

the purchase of 333 Rainbows End. The sole “buyer” in the Land Contract is identified

as: “RANDALL J. MOORE, presently a divorced and non remarried man.” The Land

Contract provided that Randall would make the initial down payment for the purchase

before the date of possession, fixed as November 11, 2008.

      {¶25} As noted above, the parties married on October 11, 2008. Subsequent to

the marriage, Randall made the initial down payment with funds obtained from a line of

credit against Randall’s equity in a residence at 315 Bonnie Lane, Aurora, Ohio. The

equity in the Bonnie Lane property was identified in the parties’ prenuptial Agreement as

Randall’s separate property.




                                           5
       {¶26} The Rainbows End property was sold during the pendency of the divorce

proceedings.

       {¶27} Rebecca contends that the proceeds from the sale of 333 Rainbows End

are marital property subject to equitable division. Rebecca’s claim is based on the

following arguments: the Rainbows End property is not identified in the prenuptial

Agreement; the down payment was made, the property occupied, and title transferred

during the course of the marriage; the prenuptial Agreement provides that there shall be

no reimbursement for contributions made from separate property for the acquisition of

marital property; and Randall sold the Rainbows End property during the divorce

proceedings contrary to court order.

       {¶28} Rebecca’s arguments fail to convince this court that the domestic relations

court abused its discretion by not awarding her a share of the proceeds from the sale of

333 Rainbows End. As noted by the court, Randall entered the purchase agreement as

a “divorced and not remarried man,” prior to his marriage with Rebecca. The fact that

the property is not identified in the prenuptial Agreement is not determinative, inasmuch

as that Agreement did not purport to provide an exclusive list of all premarital assets.

Rather, the Agreement presumes that each party is the “sole owner of any property he

or she owns prior to the marriage,” not just the property identified in the Exhibits. The

Agreement further provided that joint use or occupancy of separate property will not

convert that property into marital property. Since the Rainbows End property remained

Randall’s separate property, the provision against reimbursement for contributions

toward the acquisition of marital property is not relevant. Finally, Rebecca provides no

legal authority for the proposition that the acquisition or purchase of real estate does not

occur until all executory portions of the purchase agreement are fulfilled.


                                             6
      {¶29} Rebecca also claims a share of the “appreciation” of the Bonnie Lane

property by virtue of the “pay-down of the liabilities associated with the Bonnie Lane

residence which occurred during the marriage.”       We reject this argument, as any

increase in Randall’s equity in 315 Bonnie Lane is distinct from the property’s

appreciation, i.e., its increase in value.   Black’s Law Dictionary 110 (8th Ed.2004).

Moreover, Rebecca did not make a claim against the appreciation of the Bonnie Lane

property in the proceedings below and did not introduce evidence of appreciation.

      {¶30} The first assignment of error is without merit.

      {¶31} In her second assignment of error, Rebecca claims the domestic relations

court erred by not fully dividing the marital estate. Rebecca claims the court failed to

divide a washer and dryer in which she claimed an interest. We find no error. The only

testimony regarding the washer and dryer given at the hearings was that they were

located at the Bonnie Lane property, which, by stipulation, was acknowledged to be

Randall’s separate property.

      {¶32} Rebecca also claims that the domestic relations court should have

awarded her a 2012 Audi, which Randall testified to having recently purchased. During

the course of the proceedings, Randall was ordered to allow Rebecca to use a 2009

Honda Accord, which was identified as Randall’s separate property according to the

parties’ prenuptial Agreement.    The Agreement also identified a 2005 Hummer as

Randall’s separate property. For the first sixteen months of the divorce proceedings,

Rebecca used the Honda while Randall paid the car note and insurance. In January

2012, Randall took possession and disposed of the Honda contrary to court order.

Again we find no error. The Honda and the Hummer were Randall’s separate property,

and the court was under no obligation to divide them. Moreover, Randall paid Rebecca


                                             7
the sum of $1,500 in compensation for the use of the Honda and $500 in related

attorney fees. With respect to the Audi, Randall acquired this vehicle after the parties

separated, but before the termination date of the marriage. Rebecca made no claim

against the Audi during the course of the proceedings, and has, thus, waived the issue

on appeal. Dolan v. Dolan, 11th Dist. Trumbull Nos. 2000-T-0154 and 2001-T-0003,

2002-Ohio-2440, ¶ 10.

      {¶33} Lastly, Rebecca argues that “the trial court should order the parties to

meet and file an amended [tax] return which maximizes the tax benefits for both parties

for the year 2011 and to divide the tax refund.” In the Final Decree of Divorce, the court

ordered the parties to consult with a professional tax preparer to determine the most

advantageous way of filing the 2011 returns and to equally divide any refund/liability.

Rebecca’s argument on appeal suggests that the court’s order was not complied with

rather than that it was erroneous. Accordingly, there is no basis for disturbing the

court’s judgment.

      {¶34} The second assignment of error is without merit.

      {¶35} In the third assignment of error, Rebecca asserts the domestic relations

court erred in its award of spousal support.

      {¶36} “In divorce and legal separation proceedings, upon the request of either

party and after the court determines the division or disbursement of property * * *, the

court of common pleas may award reasonable spousal support to either party. During

the pendency of any divorce, or legal separation proceeding, the court may award

reasonable temporary spousal support to either party.” R.C. 3105.18(B).

      {¶37} “In determining whether spousal support is appropriate and reasonable,

and in determining the nature, amount, and terms of payment, and duration of spousal


                                               8
support, which is payable either in gross or in installments, the court shall consider all of

the following factors: (a) The income of the parties * * *; (b) The relative earning abilities

of the parties; (c) The ages and the physical, mental, and emotional conditions of the

parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; * * *

(g) The standard of living of the parties established during the marriage; (h) The relative

extent of education of the parties; (i) The relative assets and liabilities of the parties * * *;

* * * [and] (n) Any other factor that the court expressly finds to be relevant and

equitable.”   R.C. 3105.18(C).      “The trial court is not required to comment on each

statutory factor; the record need only show that the court considered the statutory

factors when making its award.” Komes v. Komes, 11th Dist. Lake No. 2012-L-086,

2013-Ohio-2140, ¶ 21.

       {¶38} The propriety of a domestic relations court’s award of spousal support is

reviewed under the abuse of discretion standard. Riley v. Riley, 11th Dist. Ashtabula

No. 2012-A-0037, 2013-Ohio-1604, ¶ 14.

       {¶39} In the present case, Randall was ordered to pay $2,000 a month for

temporary spousal support, commencing in November 2010 and terminating in June

2012, for a total of $40,000 over twenty months.

       {¶40} Rebecca argues the amount of spousal support awarded was inadequate

given the disparity in the parties’ earning abilities, retirement benefits, and in

consideration of the parties’ “opulent” lifestyle during the course of the marriage. At the

time of the Final Decree of Divorce, Randall was earning $150,000 per year while

Rebecca was earning $20,000. Randall had retirement accounts worth in excess of

$250,000 while Rebecca’s retirement assets were less than $1,500.




                                               9
      {¶41} We find no abuse of discretion. Although there is a significant disparity in

the parties’ incomes and retirement accounts, they were married for less than two years

before separation and no children were born of the marriage. Rebecca has suffered no

detriment to her earning ability as a result of her marriage to Randall, despite her claim

that she was earning more as an assistant manager at Starbucks prior to the marriage

than she is now as a preschool teacher. Rebecca has benefited from a temporary

award of spousal support, essentially doubling her income for a length of time

comparable to the duration of the marriage before separation. Finally, Rebecca agreed

that Randall’s retirement accounts would remain his separate property as part of the

prenuptial Agreement. To award her spousal support as compensation for the disparity

in retirement savings would undermine the purpose of the prenuptial Agreement.

      {¶42} The third assignment of error is without merit.

      {¶43} In the fourth assignment of error, Rebecca argues the domestic relations

court should have awarded her compensation for Randall’s violation of the court order

that he provide health insurance for her and her children from a prior marriage.

      {¶44} Following Rebecca’s filing of the Complaint for Divorce, Randall was

ordered to maintain Rebecca, and her two children from an earlier marriage, on his

insurance.    Randall complied with the domestic relations court’s order through

November 2011, when he removed Rebecca and her children. Thereafter, Rebecca

paid for her own insurance at the rate of $244.36 per month.

      {¶45} In its Final Decree of Divorce, the domestic relations court acknowledged

that Randall “terminated Plaintiff-Wife’s coverage from his health insurance plan,

causing her to incur additional attorney fees.”     The court decided to compensate

Rebecca through an award of attorney fees, as discussed in the following assignment of


                                           10
error. It is within the court’s discretion to decide how it addresses Randall’s contempt of

its orders. In the present case, we find no abuse of discretion, noting that Rebecca

benefitted from Randall paying the insurance for her two children from a prior marriage

for a period of one year.

       {¶46} The fourth assignment of error is without merit.

       {¶47} In the fifth assignment of error, Rebecca argues the domestic relations

court’s award of $1,000 in attorney fees constitutes an abuse of discretion in light of her

total fees in the amount of $19,000 and Randall’s contemptuous conduct throughout the

proceedings.

       {¶48} “In an action for divorce * * *, a court may award all or part of reasonable

attorney’s fees and litigation expenses to either party if the court finds the award

equitable. In determining whether an award is equitable, the court may consider the

parties’ marital assets and income, any award of temporary spousal support, the

conduct of the parties, and any other relevant factors the court deems appropriate.”

R.C. 3105.73(A).

       {¶49} “[A]n award of attorney fees is within the sound discretion of the trial

court.” Rand v. Rand, 18 Ohio St.3d 356, 359, 481 N.E.2d 609 (1985), citing Cohen v.

Cohen, 8 Ohio App.3d 109, 111, 456 N.E.2d 581 (11th Dist.1983).

       {¶50} Rebecca cites to the following instances of Randall’s conduct as entitling

her to an award of all attorney fees incurred in the course of the litigation: failure to

timely pay his support obligation and repeated efforts to terminate and/or modify the

obligation; depriving her of the use of vehicles contrary to court order; sale of the

Rainbows End property contrary to court order; and the termination of her and her

children’s medical insurance contrary to court order.


                                            11
       {¶51} Randall counters that Rebecca is responsible for the length and the cost

of the divorce proceedings in that two of her original attorneys were disqualified during

the course of the proceedings; her attorneys caused the appointment of a visiting judge;

and her attorneys repeatedly continued, interrupted and delayed hearings.

       {¶52} We note that after Randall deprived Rebecca of the use of the 2009

Honda, the domestic relations court ordered him to pay $500 toward Rebecca’s attorney

fees. In the Final Decree of Divorce, the court ordered him to pay $1,000 toward her

attorney fees in compensation for the termination of her and her children’s health

insurance.

       {¶53} In light of the record before this court, which indicates that both parties’

conduct contributed to the length and cost of the proceedings, we defer to the domestic

relations court’s judgment that each party should bear the cost of his or her own

representation, which costs are roughly equal.

       {¶54} The fifth assignment of error is without merit.

       {¶55} In the sixth assignment of error, Rebecca contends that the domestic

relations court’s decisions are against the manifest weight of the evidence. Rebecca

does not, however, identify any specific finding of the court that is against the weight of

the evidence, but, rather, “incorporates herein the facts, law and argument set forth

above as if fully rewritten.” Accordingly, we find no error for the reasons set forth above.

       {¶56} The sixth assignment of error is without merit.

       {¶57} In his sole assignment of error on cross-appeal, Randall argues the

domestic relations court erred in its award of temporary spousal support, based on a

decision to fix April 6, 2012, the date of the second contested hearing, as the

termination date of the marriage.


                                            12
      {¶58} The term “[d]uring the marriage” means “the period of time from the date

of the marriage through the date of the final hearing in an action for divorce or in an

action for legal separation.” R.C. 3105.171(A)(2)(a). “If the court determines that the

use of either or both of the dates specified in division (A)(2)(a) of this section would be

inequitable, the court may select dates that it considers equitable in determining marital

property. If the court selects dates that it considers equitable in determining marital

property, ‘during the marriage’ means the period of time between those dates selected

and specified by the court.” R.C. 3105.171(A)(2)(b).

      {¶59} A trial court enjoys broad discretion in determining the dates constituting

the duration of the marriage. Berish, 69 Ohio St.2d at 319-320, 432 N.E.2d 183.

      {¶60} Randall contends the termination date of the marriage should be July 7,

2011, as the original date scheduled for final hearing. Randall asserts that Rebecca

and her attorneys are responsible for the continuation of this hearing and the thirteen-

month delay in completing the proceedings.

      {¶61} The docket reveals that the original hearing date of June 17, 2011, was

continued on motion of Rebecca’s counsel, due to a scheduling conflict. The matter

was rescheduled for July 7, 2011, before a magistrate of the domestic relations court.

At this hearing Rebecca’s counsel raised the issue of a conflict of interest with the

domestic relations court judge.    The magistrate noted that Rebecca’s counsel was

aware of the alleged conflict prior to the scheduled hearing dates. Randall’s counsel

offered to waive the conflict but Rebecca’s counsel insisted that it could not be waived.

As a result, the hearing did not go forward and a visiting judge was appointed to hear

the case.




                                            13
       {¶62} The docket further reveals that on July 7, 2011, Randall discharged his

trial counsel and that substitute counsel did not enter an appearance until July 25, 2011.

       {¶63} Thereafter, the proceedings were further delayed by the filing of various

motions, including motions to terminate the award of temporary spousal support,

motions for contempt occasioned by Randall’s violation of court orders, a motion to

remove plaintiff’s counsel for conflict of interest, and further motions for continuances.

       {¶64} In light of the particular facts of the underlying case, the recognition that

both parties bear some responsibility for the delay in resolving the proceedings, and

Randall’s repeated disregard for orders of the lower court, we find no abuse of

discretion in fixing April 6, 2012, as the termination date of the marriage.

       {¶65} The sole assignment of error on cross-appeal is without merit.

       {¶66} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas, Domestic Relations Division, terminating the parties’ marriage, is

affirmed. Costs to be taxed against the parties equally.



CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


                             _________________________



COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

       {¶67} I write separately regarding Rebecca’s first assignment of error,

concerning the properties at 333 Rainbows End and 315 Bonnie Lane.                 Rebecca

contends that the proceeds from the sale of the former are marital property, subject to



                                             14
equitable division; and, that she is entitled to a share of the appreciation in value of the

latter, due to pay-down in the liabilities associated with it during the marriage.

        {¶68} By the prenuptial agreement in this case (the validity of which the parties

stipulated to in the trial court) each party retained as separate property the “value” of

their premarital assets. Randall listed his equity in the 315 Bonnie Lane as his separate

premarital asset. The prenuptial agreement was signed by the parties October 7, 2008,

and October 8, 2008. Also, on October 8, 2008, Randall signed the land installment

contract regarding 333 Rainbows End. The parties were married October 11, 2008.

Randall did not make a down payment on the land installment contract until November

2008.

        {¶69} Pursuant to R.C. 5313.01:

        {¶70} “‘(A) “Land installment contract” means an executory agreement which by

its terms is not required to be fully performed by one or more of the parties to the

agreement within one year of the date of the agreement and under which the vendor

agrees to convey title in real property located in this state to the vendee and the vendee

agrees to pay the purchase price in installment payments, while the vendor retains title

to the property as security for the vendee’s obligation.’” Blue Ash Bldg. & Loan Co. v.

Hahn, 20 Ohio App.3d 21, 24 (1st Dist.1984).

        {¶71} Rebecca’s argument on appeal, as in the trial court, is that ownership of

the property did not transfer until title to 333 Rainbows End transferred, which occurred

during the marriage, thus rendering the house marital property.

        {¶72} This is incorrect. The lead case on the subject appears to be the First

District’s decision in Hahn, supra. The First District concluded that the vendee in a land

installment contract becomes an equitable owner of the subject property when the


                                             15
contract is entered. Id. Hahn has been widely cited by the courts of appeals of this

state, including the Eleventh District. Craft v. Edwards, 11th Dist. Ashtabula No. 2007-

A-0095, 2008-Ohio-4971, ¶23. Randall became an equitable owner of 333 Rainbows

End October 8, 2008, when he entered the land installment contract for its purchase.

Thus, he was an owner of the property three days prior to his marriage with Rebecca,

and the house was his separate property. Since he did not gain any monetary equity in

the property until November 2008, when he made the down payment on it, he was not

required to list it in the assets named in the prenuptial agreement, which spoke in terms

of value.

       {¶73} Regarding the 315 Bonnie Lane property, the majority notes that Rebecca

did not make any claim against its appreciation in the trial court, and did not introduce

any evidence on the subject. I agree. I disagree with the majority’s other conclusion

that any pay down of the property’s liabilities during the marriage (resulting in an

increase in Randall’s equity), cannot be considered an appreciation in its value, or

marital property, as a matter of law. Under proper circumstances either or both of these

scenarios can occur. See, e.g., Lowe v. Lowe, 4th Dist. Pickaway No. 10CA30, 2011-

Ohio-3340, ¶30-35. But it was Rebecca’s burden to show this in the trial court, and she

did not do so.

       {¶74} I respectfully concur.




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