[Cite as Stites v. Stites, 2016-Ohio-235.]




                               IN THE COURT OF APPEALS OF OHIO
                                  SECOND APPELLATE DISTRICT
                                      MONTGOMERY COUNTY

 SHERYL A. STITES                                  :
                                                   :   Appellate Case No. 26652
          Plaintiff-Appellant                      :
                                                   :   Trial Court Case No. 02-DR-1467
 v.                                                :
                                                   :   (Civil Appeal from Common Pleas
 RODNEY A. STITES                                  :    Court, Domestic Relations)
                                                   :
          Defendant-Appellee                       :
                                                   :

                                              ...........
                                             OPINION
                             Rendered on the 22nd day of January, 2016.
                                              ...........

SHERYL A. STITES, 2052 Owendale Drive, Kettering, Ohio 45439
    Plaintiff-Appellant, pro se

DEAN HINES, Atty. Reg. No. 0062990, 7950 Clyo Road, Centerville, Ohio 45459
     Attorney for Defendant-Appellee

                                             .............

FAIN, J.

         {¶ 1} Plaintiff-appellant Sheryl Stites appeals from an order of the Montgomery

County Court of Common Pleas, Division of Domestic Relations, granting defendant-

appellee Rodney Stites access to the marital property, and appointing him as trustee over
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her interest in the property for the limited purpose of effecting repairs and the sale of the

property. Ms. Stites argues that the trial court inappropriately held her in contempt for

failing to sell the property. She also contends that the trial court erred by ordering her to

repay the sum of $3,645.60 to Mr. Stites, representing the amount she was overpaid from

his military pension.

       {¶ 2} We conclude that Ms. Stites is mistaken in her belief that the trial court held

her in contempt; as no contempt order was entered. We further conclude that the trial

court’s order regarding the residence does not constitute an abuse of discretion; it is

appropriately fashioned to ensure compliance with the terms of the divorce decree.

Finally, we conclude that Ms. Stites failed to present a defense to the claim for repayment.

Accordingly, the order of the trial court from which this appeal is taken is Affirmed.



                             I. The Course of Proceedings

       {¶ 3} The parties were divorced in 2004. The decree provided that the marital

residence would be awarded to Ms. Stites.          However, the decree required her to

refinance the mortgage on the home within six months or to list the house for sale. The

record indicates that the home was transferred, resulting in Ms. Stites holding sole title.

The decree also awarded her a portion of Mr. Stites’s military pension.

       {¶ 4} Over the years, Mr. Stites has attempted to secure compliance with the terms

of the decree involving the home. Indeed, Ms. Stites was previously held in contempt

due to her failure to list the home and to cooperate with realtors in order to sell the home.

See Stites v. Stites, 2d Dist. Montgomery No. 24979, 2012-Ohio-3179; Stites v. Stites, 2d

Dist. Montgomery No. 25595, 2013-Ohio-4950. As of December 2013, Ms. Stites had
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still failed to comply with the decree regarding the home.

       {¶ 5} On December 12, 2013, Mr. Stites moved to hold Ms. Stites in contempt of a

prior court order requiring her to pay attorney fees. The motion also sought an order

granting him exclusive possession of the home in order to effect necessary repairs and

to facilitate the sale of the home. Finally, the motion sought an order requiring Ms. Stites

to repay the sum of $3,645.60 in overpayments she received from his military pension.

       {¶ 6} At the hearing on the motion, Mr. Stites orally withdrew the motion to hold

Ms. Stites in contempt on the issue of attorney fees. Mr. Stites testified that the mortgage

on the residence is solely in his name, despite the fact that the deed to the property is

held only in Ms. Stites’s name. He further testified that he has made attempts to have

the house listed, but that Ms. Stites refused to list the property with two separate realtors

he had contacted. Instead, Ms. Stites listed the home with Kelly Moore, a realtor with

Coldwell Banker, but the house did not sell. He testified that he wanted access to the

home in order to make repairs and to sell it.

       {¶ 7} Ms. Moore testified that she listed the house for sale on May 9, 2013, for the

sale price of $79,900. She testified that the sale price was at the highest end of the

possible range of prices, and that in her opinion, the price was too high. She based her

opinion on the fact that the house needed numerous repairs, including a new roof. She

testified that she attempted to get Ms. Stites’s approval for a price reduction numerous

times, but Ms. Stites refused to lower the price. Moore testified that over the course of

the six-month listing, no one viewed the residence. She testified that the listing expired

on November 9, 2013, and that she and her company declined to re-list the property.

       {¶ 8} Ms. Stites testified on her own behalf, pro se. She testified that she had
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cooperated with Moore. Ms. Stites testified that she had not attempted to find another

realtor to list the house after Moore declined to relist the house, because she did not know

the amount of the mortgage payment, and because she believed that Moore still had the

home “listed somewhere,” despite her knowledge that Moore had informed her that she

would need to find a different realtor.

       {¶ 9} The magistrate entered a decision appointing Mr. Stites as trustee over Ms.

Stites’s interest in the property in order to execute any real listing contract, and to

authorize the sale of the property. The order also granted him access to the home to

make necessary repairs to the property.        The decision also ordered Ms. Stites to

reimburse the requested amount of the pension overpayment.

       {¶ 10} Ms. Stites objected to the magistrate’s decision.        Her objection was

overruled, and the magistrate’s decision was adopted as the order of the trial court. Ms.

Stites appeals.



            II. Ms. Stites Has Not Been Held in Contempt, and the Orders

         Establishing Mr. Stites as Trustee for Certain Specified Purposes

           Are Reasonably Contemplated to Achieve Compliance with the

         Trial Court’s Prior Orders Relating to the Sale of the Marital Home

       {¶ 11} Ms. Stites’s First through Seventh Assignments of Error state as follows:

              THE TRIAL COURT ERRED IN FINDING PLAINTIFF/APPELLANT

       IN CONTEMPT OF COURT FOR FAILING TO LIST THE MARITAL

       RESIDENCE FOR SALE.

              THE TRIAL COURT ERRED IN FINDING PLAINTIFF/APPELLANT
                                                                                     -5-


      IN CONTEMPT OF COURT FOR FAILING TO AGREE UPON ALLOWING

      THE REALTOR TO REDUCE THE SALE PRICE OF THE MARITAL

      RESIDENCE.

             THE TRIAL COURT ERRED IN FINDING PLAINTIFF/APPELLANT

      IN CONTEMPT OF COURT FOR FAILING TO ACTIVELY COMPLY WITH

      THE COURT’S ORDER TO REFINANCE OR PLACE THE MARITAL

      RESIDENCE FOR SALE.

             THE TRIAL COURT ERRED IN FINDING PLAINTIFF/APPELLANT

      IN CONTEMPT OF COURT AND NAMING THE DEFENDANT TRUSTEE

      OVER THE PLAINTIFF’S INTEREST IN THE MARITAL RESIDENCE,

      THUS ALLOWING HIM TOTAL CONTROL OVER ALL ASPECTS OF THE

      MARITAL RESIDENCE.

             THE TRIAL COURT ERRED IN FINDING PLAINTIFF/APPELLANT

      CONTINUES TO OBSTRUCT IN THE SALE OF THE PROPERTY.

             THE TRIAL COURT ERRED IN FINDING PLAINTIFF HAS NOT

      COOPERATED WITH FINDING A REALTOR AND LISTING THE

      PROPERTY FOR SALE.

             THE TRIAL COURT ERRED IN FINDING PLAINTIFF/APPELLANT

      HAS NOT COOPERATED WITH TRYING TO SALE [SIC] THE

      PROPERTY.

      {¶ 12} Ms. Stites contends that the trial court erred by finding her in contempt.

She further contends that the trial court erred by naming Mr. Stites trustee over her

interest in the property, and granting him access to the property.
                                                                                           -6-




       {¶ 13} As noted above, Mr. Stites did not seek to hold Ms. Stites in contempt on

the issue of the refinance or sale of the residence, but solely on the issue of attorney fees.

That portion of the motion was withdrawn, and the trial court did not hold Ms. Stites in

contempt on any matter at issue in this appeal. The trial court’s order is limited to

determining a method for effectuating the sale of the property.          Thus, we find the

arguments regarding contempt without merit.

       {¶ 14} We next turn to the claim that the trial court erred by giving Mr. Stites the

power to execute documents for the sale of the house, and to allow access for making

repairs to the house. The record contains evidence that Ms. Stites did not cooperate

with Moore regarding the sale price of the home. It further shows that she did not bother

to re-list the home with another realtor. Indeed, the record shows that during the more

than ten years since the divorce decree, the only listing was with Moore. The trial court

was free to disbelieve her claim that she was unable to list the home with another realtor,

or that she thought the home was listed “somewhere.” The credibility of the witnesses,

and the weight to be given to their testimony is a matter primarily for the trier of fact.

State v. Whitmore, 2d Dist. Miami No. 01-CA-29, 2002 WL 191656, * 2 (Feb. 8, 2002).

       {¶ 15} We conclude that the trial court did not abuse its discretion. The record

reflects that Ms. Stites has a history of failing to comply with the terms of the decree.

She has managed to live in a house, mortgaged solely in Mr. Stites’s name, for ten years

beyond the time allotted for refinancing or selling.       The order of the trial court is

reasonably contemplated to achieve compliance with its 2004 order.

       {¶ 16} Accordingly, Ms. Stites’ First through Seventh Assignments of Error are
                                                                                         -7-


overruled.



      III. Based Upon a 2012 Revision of the Order Pertaining to the Division

        of Mr. Stites’s Military Pension, the Trial Court Correctly Found that

         Ms. Stites Had Been Overpaid, and Correctly Ordered Repayment;

             Because Ms. Stites Did Not Appeal from the 2012 Revision, her

                 Contention that it Is in Error Is Barred by Res Judicata


       {¶ 17} Ms. Stites’ Eighth Assignment of Error provides as follows:

               THE      TRIAL     COURT       ERRED        IN     FINDING       THE

       PLAINTIFF/APPELLANT WAS ONLY ENTITLED TO 50% OF THE

       MARITAL SHARE OF HIS MILITARY RETIREMENT NOT 50% OF HIS

       ENTIRE MILITARY PENSION, AS THIS WAS NOT THE AGREEMENT

       DURING THE FINAL DIVORCE HEARING.

       {¶ 18} Ms. Stites contends that the trial court erred with regard to a 2012 revision

of her portion of the military benefits. She further claims that the trial court erroneously

required her to pay Mr. Stites the sum of $3,645.60 as reimbursement for an overpayment

made to her from his military pension.

       {¶ 19} The final decree and judgment of divorce provided that Ms. Stites would

receive 50% of Mr. Stites’s military pension. In 2012, an order was entered correcting a

clerical error with regard to the pension. Specifically, the order was amended to provide

that the amount subject to division was the marital portion of the pension, rather than the

entire pension. No appeal was taken from that order. Thus, to the extent that Ms. Stites

raises an argument regarding the revision of the pension order, we conclude that the
                                                                                        -8-


issue is barred by the doctrine of res judicata.

       {¶ 20} Furthermore, we note that Ms. Stites did not raise any other objection to the

order requiring her to repay the monies representing an overpayment. She did not

dispute the amount, or the need to repay the monies, other than to object to the 2012

revision. The record shows that Mr. Stites provided testimony, and appropriate

documentation, of the overpayment, without any rebuttal by Ms. Stites.          Thus, we

conclude that the trial court did not err in ordering repayment.

       {¶ 21} The Eighth Assignment of Error is overruled.



                                      IV. Conclusion


       {¶ 22} All of Ms. Stites’s assignments of error having been overruled, the judgment

of the trial court is Affirmed.

                                        ..........



DONOVAN, P.J., and FROELICH, J., concur.



Copies mailed to:

Sheryl Stites
Dean Hines
Hon. Denise L. Cross
