Opinion and Judgment Entry of the Stark County APPENDIX LETICIA V. BANEZ Plaintiff/Appellee vs. On...

IN THE SUPREME COURT OF OHIO

LETICIA V. BANEZ

Plaintiff/Appellee

vs.

On Appeal from theStark County Court of Appeals,Fifth Appellate District

Court of AppealsRAMON V. BANEZ ) Case No. 2006-CA-216

Defendant/Appellant ®"?'® ?. 929

APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION

Attorney for Appellant:

Marjorie R. Perlman (0020027)5502 Market Avenue NorthSuite BCanton, OH 44721Phone 330-497-4604Fax 330-497-6184

^^T 19 ?00yCLERK OF COURT

SUPREME COURT OF OHIO

TABLE OF CONTENTS

Pa eEXPLANATION OF WHY THIS CASE IS A CASE OF GREAT PUBLICOR GENERAL INTEREST 3

STATEMENT OF THE CASE 5

STATEMENT OF THE FACTS 6

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW 12

CONCLUSION 16

hPROOF OF SERVICE11 1711APPENDIX

Opinion and Judgment Entry of the Stark CountyCourt of Appeals (September 4, 2007)

Opinion of the trial court (June 26, 2006)

2

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST

This case involves the issue of criteria for a trial court to find a witness

here a plaintiff in a divorce case - competent to testify when that witness

suffers from Alzheimer's Disease and has been declared incompetent in

Probate Court. Is it an abuse of the trial judge's discretion if he considers

only his observation of the witness in determining competence? Must he

also consider the witness's answers to voir dire questions? May the trial

Judge ignore uncontradicted expert psychological and psychiatric

I'i evaluations of the witness?

As America ages, as advances in medicine enable Americans to live

longer, and as the baby boomer generation enters its post retirement years,

more and more people are likely to develop Alzheimer's Disease or other

forms of dementia. Some of these individuals will find themselves in Court

as witnesses, some as defendants, some as victims of crimes, some as

eyewitnesses to crimes, some as plaintiffs, and as in the instant case, as

divorce plaintiffs. Some of these witnesses will have been adjudicated

incompetent by probate courts, and some of them will still be legally

competent, but their ability to testify due to declining mental ability will be

questioned. The judges of the trial courts in which these individuals appear

will have to determine whether or not such persons are competent to

testify. Guidance from this Supreme Court will assist trial courts in making

this determination.

The instant case specifically involves a plaintiff in a divorce action who

is incompetent. According to existing case law, incompetence does not

automatically bar a person from obtaining a divorce, but the court must

ascertain the wishes of the incompetent plaintiff; it cannot grant a divorce

3

unless the plaintiff wants to be divorced, Boyd vs. Edwards (1982), 4 Ohio

App. 3d 142. Presumably the plaintiffs wishes would be determined

';through testimony. The criteria for the judges of the Domestic Relations

courts to determine the "wishes" of divorce plaintiffs have not been

established by case law. It can be expected that more individuals suffering

"from Alzheimer's Disease may seek divorces as the elderly population grows,

i!perhaps because they genuinely wish to be divorced, or perhaps because of

pressure or influence of family members. Guidance from this Supreme

Court will assist trial courts in making this determination.

The issue of valuing and dividing a pension as part of a property

division in a divorce is a matter of great interest to all divorce litigantsI,

lwhere a spouse has retired and has a pension in payout status. When an

I`employee who participates in a defined benefit pension retires, he or she

must elect to take either (1) a single life annuity, where the retiree receives

the maximum monthly payment and all benefits terminate upon the retiree's

,death, or (2) a joint and survivorship form of benefit, where the retiree

receives a smaller monthly payment, but the retiree's widow or widower will

continue to receive monthly benefits for the remainder of his or her life.

The election of the joint and survivorship benefit means that the

retiree has given his or her spouse a valued benefit at retirement that should

be included as a subtraction from the valuation of the pension upon divorce,

so as to reduce the amount of the pension available for distribution, or (as

more accurately reported by Pension Evaluators), to be considered a prior

payment to the spouse from the separate property of the retiree. To do

otherwise is to fail to credit a retiree's transfer of a valuable benefit to the

spouse, and to give the spouse not only the benefit of the joint and

survivorship election, but also to give the spouse half of the pension's entire

4

!value; this would be giving a double credit to the spouse, making the division

of marital property unequal and inequitable.

The question of valuing a pension where a joint and survivorship

election had previously been made is one that,trial courts will need to

consider whenever there is a divorce involving persons of retirement age

who are receiving pension benefits; this Court's guidance on that issue will

be of interest and benefit to the public.

STATEMENT OF THE CASE

Leticia V. Banez, Plaintiff-Appellee, filed her complaint for divorce in

the Stark County Domestic Relations Court against Defendant-Appellant

Ramon V. Banez, on April- 26, 2004.

Separately, Appellee filed a petition for a civil protection order against

Appellant in.March 2004. An evidentiary hearing was begun in June 2004,

but the issue of Appellee's competence was raised. The hearing was

continued so that both parties could undergo psychological testing. The

testing was completed within a few months, and the Appellee dismissed her

petition for a civil protection order in October 2004.

In a third separate proceeding, Appellee was declared incompetent by

the Cuyahoga County Probate Court on July 18, 2005 (Appellee resided in

Cuyahoga County at the time guardianship proceedings were filed.).

Appellee's daughter from her first marriage, Lilibeth Berta, was appointed

guardian of Appellee's person on that date, and Attorney Elizabeth Goodwin

was appointed guardian of Appellee's estate on July 26, 2005.

In September 2005, Appellant filed a motion for dismissal of the

divorce complaint, on the grounds that there had not been a suggestion of

incompetence filed on the record as required by Civil Rule 25(E), nor a

5

substitution of party for the incompetent Plaintiff as required by Civil Rule

25(B). Appellant's motion to dismiss was heard by the magistrate prior to

the scheduled commencement of the trial on September 14, 2005. The

magistrate granted the motion to dismiss, however the trial judge sustained

Appellee's objections, substituted the guardian of the estate as party plaintiff,

and set the case for trial. Trial was had over four days in March, May, and

June 2006.

The trial court granted the divorce, divided the parties' property, and

awarded spousal support to Appellee. Appellant appealed the trial court's

ruling to the. Court of Appeals for Stark County, Fifth District Court of

Appeals, and that Court entered its opinion on September 4, 2007, affirming

the granting of the divorce and all but one of the trial court's rulings on

financial issues. Appellant now appeals to the Supreme Court of Ohio.

STATEMENT OF FACTS

Plaintiff-Appellee Leticia Banez and Defendant-Appellant Ramon Banez

were married on August 6, 1981. It was a second marriage for both parties,

each having been widowed and each having adult children by their first

marriage. Appellee has three daughters, two living in suburban Cleveland,

Ohio, and one living in California. Appellant has a son living in Columbus,

Ohio and a daughter living in California. At the time of trial, Appellee was 71

years old and Appellant was 79 years old.

Both parties are natives of the Philippines. Each came to the United

States with their first spouses. Appellant is aretired physician who worked

in private practice for a number of years, and then after the death of his first

wife was employed by the Veterans Administration for several years, as the

regular hours of that employment was compatible with the needs of a single

father raising two children. He retired from the VA in 1994.

6

Appellee was employed prior to her marriage to Appellant, but did not

work during the marriage.

In late 2003, Appellant began to be concerned that his wife was

becoming increasingly forgetful and unable to perform routine tasks such as

driving and cooking. He suspected that she had developed Alzheimer's

Disease. Appellee refused to go to a doctor. In March 2004, Appellant

decided to.take Appellee to visit her daughter, Lilibeth Berta, who lives in

Strongsville, Ohio, so that Lilibeth could obser've Appellee and convince her

to seek medical help.

While Appellee was at the home of her daughter Lilibeth, Appellant

received a phone call from his other step-daughter, Evelyn Mirza, who said

that Lilibeth was alleging that Appellant had beaten Appellee. Appellant

immediately drove to Cleveland, took his wife from Lilibeth's home, and

drove her to Evelyn's home in Broadview Heights. There did not appear to

be anything wrong. After.dinner, the parties returned home to Canton.

Within a few days, the Jackson Township Police came to the Banez home,

accompanied by Sherry Dibble, a social worker from Adult Protective

Services, who had previously met with Lilibeth Berta. While the police

officers spoke with Appellant, Ms. Dibble met separately with Appellee in

another room. Ms. Dibble suggested that Appellee leave with her, and

Appellee complied. Daughter Lilibeth was waiting nearby in her vehicle,

and she drove Appellee to the, Crisis Center, from where she was sent to a

shelter, and then to Lilibeth's home, where she has lived ever since.

Shortly after that occurrence, a petition for civil protection order was

filed in the Stark County Domestic Relations Court. The petition was hand-

written by Lilibeth, and signed by Appellee. Lilibeth also located an attorney

for her mother, who filed this divorce in April 2004. Prior to the divorce

7

filing, several bank accounts in the parties' names were closed by Appellee,

and an annuity in Appellee's name was cashed in. By the end of 2004, more

than $50,000 of Appellee's funds found their way into Lilibeth's possession.

Trial of the civil protection order case that had begun in June 2004

was never completed. The magistrate ordered psychological testing of both

parties, and that was done in late summer/early autumn 2004 by Dr. Laurel

Smith, a psychologist with offices in Wooster, Ohio. Dr. Smith testified

concerning her findings at the divorce trial.

Dr. Smith found that Appellee had certain cognitive deficits.

Appellee's answers to qiiestions were "disorganized, tangential and lacking

illogical conclusions and judgment." When asked where she wanted to live,

Appellee told Dr. Smith "I'd like to live in my house," and when asked

whether she wanted to remain married to her husband, Appellee responded

affirmatively. Dr. Smith diagnosed dementia, including

significant cognitive impairments in multiple areas ...impairment in her orientation to person, place and time.... she mistakes the unusual for usual . . . her recentmemory . . . showed impairment . . . . long term recallwas also significantly impaired. . . . she tended to showmarked confabulations in which would make up responsesthat would initially approximate the accurate response andthen lapse into other answers which were circumstantialand irrelevant. . . . her verbal comprehension wasmoderately impaired . . . . illogical thinking and flawedjudgment as well as confabulation, memory loss and beingeasily led were noted . . . . she was easy led intosuggestibility but was unaware of her flawed reasoning.

I

Most importantly, Dr. Smith noted that

Projective testing did not indicate responses denotingaggression, physical conflict, relationship conflict orunmodulated affect which are typically seen with abuse.She also notes that she wishes to return to her home andhusband denying any potential future conflict.

8

Shortly after the civil protection order petition was dismissed in

October 2004, Appellant separately filed a petition for guardianship of his

wife in the Cuyahoga County Probate Court. The Probate Court ordered a

psychiatric evaluation of Appellee, and that was performed by Patrick Carey,

MD, a psychiatrist with offices in Lakewood, Ohio. On July 2, 2005, Dr.

Carey diagnosed Alzheimer's disease of moderate severity, and found that

Appellee

could not identify the day, the season, and the clinic aswell as the city and state in which she is located . . . shecould not follow the written instruction to close her eyes.... The patient's insight is poor. She cannot follow ahypothetical situation . . .

The patient's lack of insight and lack of ability to conceivequantities of distance and time accurately (she did reportbeing married to Dr. Banez for a total of two years) lead meto believe that the patient does not have the capacity tomake complex decisions regarding her own health ormaterial well-being based on full understanding of the datawhich are presented to her.

The Cuyahoga County Probate Court found Appellee incompetent on

July 18, 2005. The Court declined to appoint Appellant guardian of his

wife's person because of the pending divorce, and further declined to

appoint any relative guardian of Appellee's estate, because of the allegations

of fmancial misconduct on the part of Lilibeth Berta. Specifically, evidence

presented to the Probate Court, and to the trial court below at pre-trial

motions, *as that between March 2004, when Appellee first went to live

with Lilibeth, until December 2004, checks totaling more than $50,000 had

been written from Appellee's accounts to Lilibeth and her husband. The

Probate Court appointed an attorney as guardian of Appellee's estate.

Appellant did not and does not want to be divorced, and therefore

contested the divorce case on grounds. Appellee testified, but Appellant

9

objected to her testimony on the basis of her incompetence. Dr. Laurel

Smith testified concerning her evaluation of Appellee, and Dr. Carey's

written report-was admitfed into evidence. Several lay witnesses testified,

including acquaintances, relatives, and neighbors of Appellee. Each testified

concerning Appellee's deteriorating mental status prior to the divorce filing

and to various facts upon which Appellee had already testified, and the

witnesses contradicted Appellee on most of her testimony.

At trial, Appellee was unable to accurately remember or report most

impoxtant. facts concerning her life and her family and friends. Much of her

testimony was confabulation; her propensity to confabulate had been noted

by Dr. Smith. As examples, she said her daughter Evelyn lives in Canton, but

Evelyn actually lives in Broadview Heights. She did not know the name of

the street where she lived in Canton. She was unable to distinguish between

events that happened at the marital residence on Arbor Creek and events

that happened at prior residences. She said she did not have a lawyer, but

of course she did; then, after being asked about Attorney Goodwin, who is

the guardian of her estate, she stated that Ms. Goodwin was her lawyer;

apparently she was unaware of who her attomey was, even though her

attorney had just finished asking her questions. Appellee said that she went

to her daughter Grace's wedding in California, and failed to remember that

she had not attended the wedding. She said that two years ago she went to

California with just Lilibeth, but actually Lilibeth's husband and children also

accompanied her on the trip, which was in 2005. Appellee got confused

between who her sisters and daughters are, mistakenly identifying her

daughter Grace as a sister. She denied that any of her sisters live in

Califomia, but her sister Gloria does live there. She could not remember

how long she has been married to Appellant. She could not remember her

10

,husband's occupation. She could not remember Dr. Laurel Smith or Dr.

Patrick Carey. She could not explain how she makes phone calls. She did

not know who Joel Ty is, although he has been her financial advisor for years

and he has been a guest at her home. She did not know who Jerry

Rothermel is, although he is the real estate agent who worked with the

parties on more than one occasion and who had been a guest in their home.

She stated that she had no husband when she came to the United States,

and that she came to the U.S. by herself, but actually she came to this

country with her first husband and her children. Her first husband died in

1981, but she said it was in 1961. Appellee denied that her first husband,

Mr. Reyes, was the father of her three daughters, but of course her children

are all issue of her marriage to Mr. Reyes.

In spite of the overwhelming evidence that Appellee was not

competent to testify because she was unable to receive just impressions of

the facts and transactions respecting which she was examined, or of relating

them truly, which is the requirement of Evidence Rule 601(A), and in spite

of the findings of two experts, the trial judge found Appellee "lucid" and

competent to testify, and granted the divorce.

As to financial issues, Appellant introduced documents showing that

the marital residence was his premarital property and also testified on the

issue, yet #he trial court found that he had not demonstrated that the

property was his pre-marital property. One judge in the Court of Appeals

agreed with Appellant's position and would find that Appellant sufficiently

proved this issue.

Appellant has a pension from his service with the Veterans'

Administration. When he retired, he elected the survivorship option, which

means he.receives a reduced monthly payment, but Appellee will receive a

11

benefit for the remainder of her life if he predeceases her. Pension

Evaluators wrote a report that established the present value of the marital

lportion of the pension at $152,000. But they did not take into account the

,value of the "tail" or "excess survivorship", which is the value of Appellee's

right to receive payments if she survives Appellant. In a second report,

Pension Evaluators did establish the present value of the "excess

survivorship" at $59,000, and indicated that this amount can be considered

a"pre-existing payment already made to the non-participant by the

participant from separate property as a result of the, survivorship election."

"However, the trial court ignored the value of the "tail" and considered the

,jvalue of the entire marital portion of the pension in making its division of

j!Property.I! .

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1:

When a trial judge determines the competence of a witness, it is an

abuse of discretion for the trial judge to make that decision solely on the

basis of his observation of the witness, without considering the testimony of

the witness, the testimony of other witnesses and the opinions and findings

I'lof medical experts.

In the context of the instant case, a divorce cannot be granted to the

plaintiff on the basis of her testimony because of her incompetence; without

her testimony concerning her desire to be divorced, grounds are not

proven. •

A witness is not competent to testify, where the witness's own,i testimony and the testimony of other persons shows that the witness is

I unable to accurately receive "just impressions of the facts and transactions

12

jrespecting,which she was examined, or of relating them truly," as required

by Evidence Rule 601(A).

il Further, a witness is not competent to testify when, in the expert

opinion of both a psychologist and a psychiatrist, the witness suffers from

Alzheimer's Disease, has disordered thought processes, is impaired in

orientation to person, place, and time, has flawed judgment, has impaired

short term and long term memory, confabulates, and does not have the

capacity to make complex decisions.

The judge's finding that Appellee was lucid is an abuse of discretion;

lucidity is a medical determination when dealing with an Alzheimer's

patient, and there was no showing that Appellee's Alzheimer's had improved

to the point that she could observe, remember, and accurately report to the

court. It is not alleged that Appellee lied; it is simply alleged that Appellee

was unable to know the difference between truth and non-truth and that her

answers to most questions were confabulations.

The leading case on the issue of divorce plaintiffs who are

incompetent is Boyd v. Edwards (1982), 4 Ohio App. 3d 142. In that case

^ the plaintiff was under guardianship because of injuries suffered in an

accident and the divorce was filed by the plaintiffs guardian. The defendant

spouse, as in the instant case, believed that the plaintiff did not want a

divorce. The court held that the divorce court

... has a duty to ascertain from the party himself, ifpossible, whether it is his sincere wish and desire todivorce his spouse . . .4 Ohio App. 3d 142 at 148

The court in Boyd explained, citing Van DeRyt v. Van DeRA (1966), 6

Ohio St. 2d 31, that

The court had a duty to assure itself that appellant in factwanted a divorce, for the public policy of Ohio and its

13

sister states favors the preservation of the marriage bond.. . Thus the laws are strictly construed against thegranting of divorces. . . .

And that court further held that

a guardian cannot bring a divorce action on behalf ofan incompetent whose unremitting mental incapacityprecludes him from testifying.(citing Prather v. Prather (C.P. 1934), 33 Ohio Law Abs.336 and Jack v. Jack (App.1947), 49 Ohio Law Abs. 207)

The consideration of the medical testimony is crucial in determining

whether the Appellee is capable of the reasoning ability needed to even form

wishes regarding divorce, and should have been considered.

In other cases where competence of a witness was an issue, a cursory

questioning of the witness by the judge was not sufficient to make a

determination of competence; it was necessary to delve into the ability of

the witness to observe and report accurately the observations. See, e.g.,

State v. Papalevich (2001), 2001 Ohio App. LEXIS 5063, where the appeals

court found a witness with obviously diminished mental ability incompetent

to testify. The court also cited State v. Clark (1994), 71 Ohio St. 3d 466 and

State v. Frazier (1991), 61 Ohio St. 3d 247 for the propositions that a trial

court must take into account the ability of the witness to receive accurate

limpressions of fact, her ability to recollect those impressions, her ability to

communicate what she observed, and her understanding of truth and falsity.

The testimony of the other witness are pertinent to this determination; if

the witness cannot accurately observe or remember, or makes statements

that bear no relationship to reality, she cannot be considered competent to

testify.

14

Proposition of Law No. 2

When a pension in payout status is evaluated pursuant to division of

property in a divorce, the Court must consider the excess survivor portion of

the pension.

The present value of the marital portion of a defined benefit pension

can be calculated based on complex formulas used by companies such as

Pension Evaluators. The calculation gives a present value for the entire

marital portion of the pension as if a single life^ annuity option had been

elected by the retiree. The calculation does not take into account the fact

that a joint and survivorship option may have been elected by the retiree.

When a retiree makes a joint and survivorship election upon retirement, the

retiree thereby gives something.of value to his or her spouse, that is, the

right to receive benefits for life if the retiree predeceases the spouse.

Pension Evaluators calls this right to receive benefits for life if the spouse is

widowed the "excess" survivorship portion of the pension, and is able to

determine its present value. Pension Evaluators is of the opinion that when

the retiree elects the joint and survivorship option he transferred

something of value to the spouse, and the transfer should be considered a

prior payment to the spouse from the separate property of the retiree. It is

contrary to law and an abuse of discretion for the court to accept the value

placed on the pension by Pension Evaluators, but to ignore the value of the

excess survivor portion, also determined by Pension Evaluators. Ignoring

the excess survivor portion places too high a value on the pension, resulting

in an unequal and inequitable division of marital assets by allowing the

spouse to retain her survivorship interest, and then to also receive half the

value of the pension calculated without regard to her receipt of the

survivorslYip interest.

15

CONCLUSION

For the reasons discussed above, this case involves matters of great

public and general interest. A decision on these issues would be of

!assistance to trial courts. Appellant urges this Court to grant jurisdiction so

that the important issues presented in this case can be reviewed on the

merits.

Respectfully submitted,

ATTOREY FOR APPELLANT

16

PROOF OF SERVICE

A copy of the foregoing Memorandum in Support of Jurisdiction wassent by FedEx to Marietta M. Pavildis and Christopher C. Esker, Attorneysfor Appellee, Buckingham, Doolittle & Burroughs, 3800 Embassy Parkway,Suite.300, Akron, OH 44333 this 18th day of October, 2007.

^9^^63 -,MARJWE R. PERLMANATTORNEY FOR APPELLANT

I

17

(

APPENDIX:

OPINION AND JUDGMENT ENTRY.OF THESTARK COUNTY COURT OF APPEALS

(SEPTEMBER 4, 2007)

COURT OF APPEALSSTARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

LETICIA V. BANEZ

Plaintiff-Appellee

-vs-

RAMON V. BANEZ, ET AL.

Defendant-Appellants

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee

MARIETTA M. PAVLIDISCHRISTOPHER C. ESKER3800 Embassy Parkway, Suite 300Akron, Ohio 44333

ri 4;q -^4 ,

JUDGES:Hon. William B. Hoffman, P.J.Hon. Sheila G. Farmer, J_Hon. Julie A. Edwards, J.

Case No. 2006CA00216

OPINION

Appeal from the Stark County Court ofCommon Pleas, Domestic Relations CaseNo. 2004DR00580

Affirmed, in part; Reversed, in part, andRemanded

For Defendant-Appellant

MARJORIE R. PERLMAN5502 Market Avenue NorthSuite BCanton, Ohio 44721

^

Stark County, Case No. 2006CA00216 2

Hoffman, P.J.

{¶1} Defendant-appellant Ramon V. Banez appeals the June 26, 2006

Judgment Entry of the Stark County Court of Common Pleas, Domestic Relations

Division. Plaintiff-appellee is Leticia V. Banez.

STATEMENT OF THE CASE AND FACTS

{12} Appellee initiated this action by filing a complaint for divorce on April 26,

2004. The parties were married on August 6, 1981. both parties had been married

previously, with emancipated children from the prior marriages.

{13} In March of 2004, Sherry Dibble of the Stark County Adult Protective

Services, along with law enforcement officers, visited the marital residence after contact

from Appellee's daughter. The visit resulted in Appellee being transported to a crisis

center. Appellee eventually went to live with her daughter. Appellee stated living

separate and part for one year as the grounds for the divorce.

{14} On July 18, 2005, upon petition of Appellant to be appointed guardian of

Appellee in a separate proceeding before the Cuyahoga County Probate Court, that

court declared Appellee incompetent. The Probate court appointed Appellee's daughter

guardian of Appellee's person, and Attorney Elizabeth Goodwin guardian of Appellee's

estate.

{¶5} Following the Cuyahoga County Probate Court's declaration of

incompetency, Appellant filed a motion to dismiss Appellee's complaint for divorce for

failure to file neither a suggestion of incompetence pursuant to Civil Rule 25(E), nor a

substitution of party for the incompetent person as required by Civil Rule 25(B). The


trial court ultimately overruled the motion to dismiss, substituting the guardian of the

estate as party plaintiff.

{16} On June 26, 2006, via Judgment Entry, the trial court granted Appellee's

complaint for divorce, and ordered the division of the marital property.

{17} Appellant now appeals, assigning as error:

{18} "I. THE TRIAL COURT ERRED IN GRANTING A DIVORCE, BECAUSE

THE PLAINTIFF FAILED TO ESTABLISH GROUNDS FOR DIVORCE, DUE TO HER

INCOMPETENCE TO TESTIFY.

{19} "II. THE TRIAL COURT ERRED IN NOT DISMISSING THE CASE FOR

PLAINTIFF'S FAILURE TO COMPLY WITH CIVIL RULE 25(E), AS ORDERED BY THE

MAGISTRATE.

{110} "III. THE TRIAL COURT ERRED BY FAILING TO DISTINGUISH

MARITAL AND SEPARATE PROPERTY.

{111} "IV. THE TRIAL COURT ERRED IN ITS DIVISION OF THE

APPELLANT'S PENSION.

{112} "V. THE TRIAL COURT ERRED IN NOT ACCOUNTING FOR THE

COURT ORDERED PAYMENTS OF ATTORNEY FEES MADE BY APPELLANT

DURING THE PENDENCY OF THE CASE.

{113} "VI. THE TRIAL COURT ERRED IN AWARDING SPOUSAL SUPPORT

TO APPELLEE."


1.

{¶14} In the first assignment of error, Appellant asserts the trial court erred in

granting the divorce, as Appellee failed to establish grounds for the divorce due to her

incompetence.

{115} As set forth in the statement of the facts and case above, on July 18,

2005, the Cuyahoga County Probate Court declared Appellee an incompetent person,

and appointed a guardian of her person and guardian of her estate following Appellant's

petition for guardianship. The court ordered a psychiatric evaluation of Appellee

performed by Dr. Patrick Carey. On July 2, 2005, Dr. Carey diagnosed Appellee with

Alzheimer's disease of moderate severity.

{116} The appointment of a guardian for a mentally incompetent person will not

abate a divorce action instituted prior to the incompetence. Heskett v. Heskett (Nov. 25,

1991), Champaign Co. App. No. 91-CA-05.

{117} Evidence Rule 601 states:

{118} "Every person is competent to be a witness except:

{119} "(A) Those of unsound mind, and children under ten years of age, who

appear incapable of receiving just impressions of the facts and transactions respecting

which they are examined, or of relating them truly."

{¶20} The trial court is in the best position to determine the competency of

witnesses and is afforded considerable discretion in such matters_ State v. Uhler(1992),

80 Ohio App.3d 113, 118, citing State v. Bradley (1989), 42 Ohio St.3d 136, paragraph

one of the syllabus. See, also, State v. Wilson (1952), 156 Ohio St. 525. Absent an


abuse of discretion, the competency determinations of the trial court will not be

disturbed on appeal. State v. Frazier (1991), 61 Ohio St.3d 247, 251.

{%21} Even where a witness has been committed to a mental facility, that

commitment does not automatically render that witness incompetent to testify if he or

she has sufficient understanding to comprehend the obligation of an oath and is capable

of giving a correct account of the matters seen or heard in reference to questions at

issue, notwithstanding some unsoundness of mind. State v. Bradley (1989), 42 Ohio

St.3d 136, 140; State v. Wildman (1945), 145 Ohio St. 379, 386. Indeed, some

unsoundness of mind does not render a witness incompetent if the witness otherwise

possesses the three basic abilities required for competency: the ability to accurately

observe, recollect, and communicate that which goes on around him or her. Id. at 379.

{122} The following exchange occurred at trial during the testimony of Appellee:

{123} "Q. Okay. And do you understand why you're here today?

{¶24} "A. (no audible answer).

{125} "Q. Why?

{126} "A. Because I like to live peacefully.

{727} "Q. Live peacefully away from your husband, or with your husband - - what

do you mean?

{1[28} "A_ (no audible answer).

{129} "Q. You understand that you're supposed to tell the truth?

{130} "A. Uh huh (yes).

{1131} "Q. Okay. Do you understand what telling the truth means - - is that yes?

{132} "A. Yes.


{133} "Q. Do you want to get divorced from your husband?

{1134} "A. Yes.

{1[35} "Q. W hy?

{136} "A. (no audible answer).

{1[37} "Q. Leticia, do you want to get divorced from your husband?

{¶38} "A_ Yes.

{1[39} "Q. Why, you need to tell me why, tell the Judge why.


{1141} "Q. It's okay for you to answer the question, why don't you tell the Judge,

look at the Judge and tell the Judge why you want a divorce.

{142} "A. ( inaudible).

{143} "By the Court:

{144} "Q. You'd like to get divorced because he's so mean to you, is that what

you said?

{¶45} "A. (no audible answer).

{146} "Q. Can you teil me some of the things that have happened?

{¶47} "A. Yes.

{148} "0. Tell me some of the things that have happened where he's been

mean?

{149} "A. He start hurting me.

{150} "0. He hurts you?

{151} "By Ms. Perlman: Your Honor, I can't hear her.

{1152} "By the Court: Well, come up. - - Okay. You mean he hurt you?


{1[53} "A. (un huh) yes.

{154} "Q. How did that happen?

{155} "A. When I went to our house and, because I'm living with my daughter

and he start hurting me.

{156} "0. Physically hurting you? - - How. Can you tell me what happened?

{157} "A. I was living, - - well I was living with my daughter and I went there for

awhile in our house, because I live in Strongsville with my daughter and he lives in

Canton.

{158} "Q. Right. So you went, after you had been with your daughter for awhile

you went back to his house, to where you lived with him?

{159} "A. Yes.

{160} "Q. Did you stay there for awhile then?

{1[61} "A. Yes.

{162} "Q. What happened when you were there?

{163} "A. Welf, I was there only for about three days.

(164} "Q. Oka.v, about three days. What happened during those three days?

{165} "A. I was lying down and I was dizzy and ...

{166} "Q. You were lying down because you were dizzy?

{167} "A. Yes.

{168} "Q. Okay, and then what happened?

{169} "A. I went down the stairs.

{1170} "0. Okay, you walked downstairs? - - Okay. And then what happened?

{1171} "A. He pushed me.


{172} "Q. He pushed you - - from behind or in front?

{173} "A. From behind.

{174} "0. From behind. While you were going down the stairs, he pushed you

from behind, and then what happened, did you fall or not?

{175} "A. No, I did it myself.

{176} "Q. You grabbed, you held yourself up, you grabbed something, you didn't

fall, but he pushed you. Okay. Did anything else happen?

{m7}{¶78}

{¶79}

{¶80}

{¶8'!}

{¶82}

{¶83}

{¶84}

"A. I just stand up and went, I walk out

"Q. You walked out of the house.

"A. No, in the, in the court it's like a court.

"Q. Court yard, like - - at the house?

"A. Uh huh (yes).

"0. Was it outside.

"A. Yes.

"0. Okay. So the stairs you were going down when he pushed you was

outside of the house?

{1185} "A. No, it's not, it's not - - it's not the house.

{186} "Q. Oh, it's not the house.

{787} "A. Oh, yeah, it's in the house, it's at the house, okay.

{188} "Q.Okay.

{189} "A. It was evening.

{190} "Q. Evening. Okay.

{191} "A. Yes. I run to my neighbor.


{192} "Q. You went to your neighbor's house?

{¶93} "A. Yeah.

{194} "Q. Okay, did you tell them what happened?

{195} "A. Yes.

{¶96} "Q.Okay.

{1197} "A. They call the police.

{1198} "Q.Okay.

{799} "A. They put him in prison. And then the next day he's back to me.

{1[100} "Q. Okay.

{11101} "A. In the house.

{¶102} "Q. Okay.

{11103} "A. Because the policeman took him to prison. But I have a hard time.

{11104} "By Ms. Smithern:

{11105} "Q. Leticia, do you remember, do you know who Sherry Dibble (sp?)?

{¶106} "A. Yes, I know her.

{1[107} "0. Who is Sherry Dibble?

{¶108} "A. She's the one who helped me.

{1109} "Q. Helped you what?

{1110} "A. When I moved to, she took me to the shelter home.

{1111} "Q. Sherry took you to the shelter.

{1[112} "A. Yes.

{1113} "0. Is that what you said?

{1[114} "A. Yes.


11[1151 "Q. And did Sherry come to your house?

{1f116} "A. Yes.

{¶117} "Q.Okay.

{1[118} "A. Yes, she took me.

{1119} "Q. Okay, and did you go voluntarily with Sherry?

{¶120} "A. No, I - - I don't know that he's coming, but he knows what happened to

me, that's why he like to (unintelligible) with her.

{1121} "Q. I guess I didn't understand. Sherry came to the house, right?

{¶122} "A. Uh huh (yes).

{1123} "Q. And you went with Serry [sic].

{¶124} "A. Yeah.

{1125} "Q. Where did Sherry take you?

{1126} "A. To the nursing home. And it's far, you know.

{1127} "Q. Did you want to go with Sherry?

{1[128} "A. Yeah, I did. I like to go with her.

{1129} 'Q. And once you went with Sherry, then you went to Lilabeth's house, is

that what happened?

{11130} "A. No, I - - I already went to Lilabeth.

{1131} "Q. You want to go back to live with your husband, Ramone?

{1132} "A. No.

{1133} "Q. Why not?

{11134} "A. I - -


{1135} "Q. You can turn and look at the Judge and answer the question to the

Judge. The question was, did you want to go back to live with your husband Ramone?

{1[136} "A. No.

{1137} "Q. Are you afraid of your husband?

{1138} "A. Yes.

{1139} "Q. And why are you afraid of your husband? -- You can look at the

Judge and answer to the Judge.

{1140} "By the Court: Are you afraid of Ramone?

{1141} "A. Yes.

{1142} "By the Court: Why? Can you tell me why?

{¶143} "A. (no audible answer)

{1144} "By the Court: You told me about him pushing you, have there been other

cases, other times when he's hurt you, or tried to hurt you?

{1145} "A. He tried to hurt me, he push me and I ran to our neighbor --

{¶146} "By the Court: Uh huh (yes).

{1147} "A. (unintelligible) and my neighbor live beside our house, their house and

our house are very close, so my neighbor took me and paramedic lay on my sofa,

`cause she saw the blood and I had cut here.

{¶148}

{1149} "Q. Leticia, is anybody forcing you to come in today to tell the Judge that

you want to get divorced?

{1150} "A. No, I'm the one who like the divorce.

{1151} "Q. So you're doing this voluntarily of your own free will?


{1152} "A. Yes.

{1153} "0. Correct?

{11154} "A. Yes.

{7155} "Q.Okay.

{¶156}

{1157} "A. Because I like to - - I like to --

{¶158} "By the Court: This is the court, you remember that.

{11159} "A. Yes.

{1160} "By the Court: Okay, and do you know why you're here?

(1161) "A. Yes.

{1162} "By the Court: Why?

{¶163} "A. I like to buy a divorce.

{1164} "By the Court: You want to get divorce, is that what you said?


{1166} "By the Court: Okay. You're sure that's what you want to do?


{1168} "By the Court: You're saying, yes, is that right?

{1169} "A. Yes.

{1170} "By the Court: You don't want to be married to Ramone?

{1171} "A. No.

{¶172} "By the Court: Are you sure about that?

{¶173} "A. (no audible answer)."

{1174} "By the Court: You're sure. Okay."


{1175} Tr. at 7-14; 30-31.

{¶176} The trial court's June 26, 2006 Judgment Entry states:

{1177} "Despite the Cuyahoga County adjudication of incompetency, the Court

finds that, on the day of her testimony, she was lucid and competent to testify and

express her desire with regard to the divorce proceedings. This Court, after 1'/z days of

testimony on grounds, finds that Wife has been voluntarily living separate and apart

from Husband for more than one year. During Wife's testimony, she appeared at times

to have difficulty remembering details regarding the date of her marriage and her

Husband's occupation. However, when directly asked about her desires regarding the

divorce, Wife stated she wanted the divorce. She said she was not being forced, and

she was making the decision of her own free will. She stated that she wanted "to live

peacefully" and did not wish to return to live with Husband. She said she was afraid of

him, and her demeanor in the courtroom bolstered this assertion. Wife had previously

filed for divorce in 1986. During her testimony there was no indication that Wife had

changed her mind regarding following through with this divorce."

{1178} Based upon our review of the record and the case law set forth above, the

trial court did not abuse its discretion in determining Appellee competent to testify at

trial. The trial court was in the best position to observe the witness and assess her

credibility and propensity to competently testify. Although Appellee at times struggled to

communicate due to her difficulty with the English language, and at times seemed

confused, she demonstrated she was able to communicate and recollect her living apart

from her husband due to her fear of him.

{1179} The first assignment of error is overruled.


IL

{1[180} In the second assignment of error, Appellant asserts the trial court erred in

not dismissing this action based upon Appellee's failure to comply with Civil Rule 25(E).

{1181} The rule provides:

{1182} "( E) Suggestion of death or incompetency

{7183} "Upon the death or incompetency of a party it shall be the duty of the

attorney of record for that party to suggest such fact upon the record within fourteen

days after he acquires actual knowledge of the death or incompetency of that party. The

suggestion of death or incompetency shall be served on all other parties as provided in

Rule 5."

{1184} The time for filing a suggestion of death or incompetency may be

extended after its expiration upon a showing of excusable neglect. Markan v. Sawchyn

(1987), 36 Ohio App.3d 136, 521 N.E.2d 824. Whether a party has demonstrated

excusable neglect is within the discretion of the trial court and is to be decided upon the

facts of each individual case. 1d.

{1185} On September 14, 2005, the trial court conducted a hearing relative to

Appellee's motion to substitute a party and Appellant's motion to dismiss, both motions

being filed on September 12, 2005. The Magistrate recommended the court sustain

Appellant's motion to dismiss. At the hearing, the following exchange occurred:

{1186} "By Ms. Smithem: Thank you, your Honor. On behalf of the Plaintiff

Leticia Banez, your Honor, on July 18t" of 2005, Carmen Lilabeth is seated at the table

to the left who is Leticia's daughter was appointed in Probate Court as the Guardian of

the person. On July 26th, 2005, Attorney Elizabeth Goodwin was appointed Guardian of


the estate by the Probate court and the issue in Probate Court and the issue in Probate

Court was somewhat extended and quite frnakly [sic] I think up until Saturday, last

Saturday, J was actually unaware that Lilabeth had been appointed the Guardian of the

person at which point as soon as I became aware which was Saturday afternoon, fhat's

when I filed the motion to substitute. I fled the motion to substitute both Lilabeth and

that's who's referred to as Lilabeth instead of, her actual name is Carmen, as well as

Attorney Goodwin to the Guardian of the person and the estate, and under Rule 25 for

substitutions of parties paragraph (B), if the parties are judged incompetent the Court

upon motion served shall allow the action to be conceived buyer against [sic -

"continued by or against"] its representative. It's a mandatory obligation on the Court to

allow the substitution to occur, the Civil Rule does not say, may, it is not discretionary

with the Court, the Court must under the Civil Rule substitute the appropriate party so

that the action can proceed as the real parties, so these two Guardians can proceed as

the real party in interest on behalf of (inaudible) adjudicated incompetent.

{¶187} "• * *

{1J188} "By Ms. Perlman: Thank you, Your honor. First of all I'd like to say that I

frst became aware that Lilabeth was appointed Guardian of the person late Saturday

evening during a phone conversation with Atfomey Goodwin. My understanding is that

when the hearings were held, and we're talking about the Cuyahoga County Probate

Court, when the hearing was held in that court, which I believe was July 18`h, 2005, that

the Probate Court indicated that Miss - that Lilabeth would be appointed the Guardian

of the person and that a non-family member would be appointed as the Guardian of the


estate, and of course that's exactly what happened, with Miss Goodwin being a

Cuyahoga County attorney being appointed as Guardian of the estate."

{1189} Tr. at 4-6. (Emphasis added.)

{1190} Appellee filed objections to the Magistrate's recommendation, and the trial

court conducted a hearing. This Court has not been provided with a transcript of the

proceedings before the court on hearing Appellee's objections; therefore, we presume

the regularity of the proceedings. Furthermore, based upon the exchange at the

hearing before the magistrate set forth above and our disposition of the first assignment

of error, we find the trial court's granting Appellee's motion to substitute the party did not

cause prejudice to Appellant, and Appellee demonstrated excusable neglect for filing a

late suggestion of incompetency. We note it was Appellant himself who initiated the

suggestion of incompetency proceeding.

{1191} The second assignment of error is overruled.

Ill.

{1192} In the third assignment of error, Appellant argues the trial court erred in

the distribution of the parties' marital property.

{1193} First, Appellant argues the trial court failed to determine property he

owned prior to the marriage remained separate property. Specifically, Appellant

testified at trial he owned real property on the date of the marriage, free of any

mortgage.

{¶194} Appellant asserts the trial court should have found the real estate

remained his separate property..

{1195} R.C. Section 3105.171(A) states:


{1[196} "(6)(a) "Separate property" means all real and personal property and any

interest in real or personal property that is found by the court to be any of the following:

{¶197} "(ii) Any real or personal property or interest in real or personal property

that was acquired by one spouse prior to the date of the marriage;

{¶198} --

{¶199} "(v) Any real or personal property or interest in real or personal property

that is excluded by a valid antenuptial agreement;

{¶200} ""'

{11201} "(b) The commingling of separate property with other property of any type

does not destroy the identity of the separate property as separate property, except

when the separate property is not traceable."

{11202} The party seeking to establish an asset as separate property has the

burden of proof, by a preponderance of the evidence, to trace the asset to separate

property. Swaney v. Swaney 2003-Ohio-4641. The presumption is the property is

marital unless proven otherwise by a preponderance of the evidence. A factual finding

of the trial court will be reversed only if it is found to be against the manifest weight of

the evidence. Judgments supported by some competent, credible evidence will not be

reversed as against the manifest weight of the evidence. Mclendon v. Mclendon (Dec.

2, 1999) Muskingum App. No. CT99-0003.

{1203} The following exchange occurred at trial:

{1[204} "Q. Okay. Now you had ownership of the home on Cornwall at the time of

your marriage, correct?

{11205}. "A. Yes, maam.


{1206} "0. And that house on Cornwell [sic] did not have a mortgage, correct?

{11207} "A. No, maam.

{1208} "0. That is correct? - - No mortgage.

{1[209} "A. No mortgage.

{1210} "0. Okay. And let's go through what happened with the real estate as the

years went by.

{¶211} "A. Way back until - -

{¶212} "0. Well, I'm going to show you papers and you can tell me what they are.

I'm going to show you what's marked as Defendant's Exhibit "NN" and ask you if this is

the closing statement for when you originally purchased the house on Comwall?

{1213} "A. Yes, maam.

{1214} "Q. Okay. And that home was purchased in what year?

{1215} "A. 1980, - - June 12, 1980.

{¶216}

{11217} "0. Okay. If you could turn to page two, does that represent a sale of

Cornwall?

{1218} "A. Yes, maam.

{1219} "Q. And was that the closing statement from the sale of Cornwall?

{1220} "A.Yes, maam.

{1221} "Q. When was that sale of Cornwall closed?

{1222} "A. I think it was in 1992 - - '93 - - it should be here - - I cannot find - -

there's no date here.

{1[223} "0. Right here.


{1224} "A. Okay, okay, December 3, 1993.

{1225} "Q. Okay, and what was the sale price of Cornwall?

{1226} "A. 157,500.

{1227} Q. Okay, would you turn to the next page, please. And does this

represent the closing statement for the purchase of the property on St. Edmond Avenue

(sP)•

{7228} "A. Yes, maam.

{1229} "Q. And what was the purchase price of the property on St. Edmond

Avenue?

{7230} "A. 169,720.

{4231} "0. What was the date of that purchase?

{1232} "A. February 24, 1993.

{1233} "Q. And so that was right before you sold the house on Cornwall?

{1234} "A. Yes, maam.

{1235} "Q. So what happened money wise as far as the money that you used to

purchase St. Edmonds and the money that you received from the sale of Cornwall?

{1236} "A. From the sales of Cornwall?

{1237} "0. Yes, can you explain how that worked?

{1238} "A. From the sales of Cornwall I deposited it until I could purchase this

other one, until the date is, I think, I have to deposit it and put it in some of the funds.

{¶239} "Q. Can you turn to the next page, please. Does this next page represent

the closing statement from when Cornwall was sold -- not Cornwall, I'm sorry, St.

Edmonds was sold?


{1240} "A. Yes, maam.

{1241} "Q. And what was the date of the sale?

{1242} "A. November 14, 2003.

{7243} "Q. Okay, what was the sale price of the house on St. Edmonds?

{1244} "A. That's the settiement or the cash that we received?

{1245} "0. No, the sale price.

{7246} "A. 217,600.

{1247} "Q. And could you turn to the very next page, please. And is that the

closing statement from when you purchased the property on Arbor Creek

{1248} "A. Yes, maam.

,{1249} "0. What was the purchase price of the property on Arbor Creek?

{1250} "A.184,900.

{1251} "Q. Okay, and the house on Arbor Creek was actually purchased before

you sold the property on St. Edmonds, correct?

{1[252} "A. Ahh, this was purchased and we sold - - well the final thing we paid a

downpayment for two or 3,000 to start with before that because they build the house, so

this one is in the closing. - - We made a deposit of 3,000."

{1253} Tr. at 561-564.

{1254} The testimony set forth above demonstrates the Appellant's original

separate residence was sold, the funds deposited into a joint account and the parties

purchased another home. The monies from the sale of the first home were deposited in

an undisclosed account prior to the purchase of the second home. Appellant did not

introduce evidence to demonstrate the funds were not commingled and were earmarked


separately for down payment on the marital home. Nor did Appellant demonstrate the

equity in the home remained constant and separate during the pendency of the

marriage. The second home was then sold, the funds deposited into a joint account

and the current marital residence on Arbor Creek was purchased. Appellant himself

testified some joint marital funds were used in purchasing the property, and again did

not demonstrate the funds were not commingled and the equity remained separate

property.

{¶255} As Appellant has not demonstrated the assets from the original property

are traceable, and have not been commingled and the trial court did not find Appellant's

testimony sufficient to demonstrate traceability, the judgment of the trial court is

supported by competent, credible evidence, and will not be disturbed by this Court.

{1256} Second, Appellant argues he owned annuities and life insurance prior to

his marriage, which remained separate property.

{1257} Upon review of the record, Appellant stated when a policy matured; he

rolled it over into a different policy. He testified he never withdrew any funds from an

annuity, nor did he add funds.

{1258} The following exchange occurred at trial:

{1258} "0. Then let's go to the, you have a Lincoln Financial Group annuity

account number 985988814, is that correct?

{1260} "A. Yes, I have that.

{1261} "Q. Referring to Plainitff's Exhibit "17B", is this a copy of the quarterly

statement for this annuity, through March 31st of 2005, showing a value of $232,271.00?

{1262} "A. Correct, maam.


{11263} "0. And does it likewise show that total contributions to date are

$136,666.00? - - Yes, or no?

{11264} "A. The contribution like I told you was transferred, yes, but it was not me

that did it, I did not put any money there. I had first New England, then the advisor says,

when it matures, transfer to Capital, I agree and then when that mature they say transfer

to Lincoln, yes I did agree, then this was actually transferred to USD, I agree every

maturity, and I have not removed one cent and it has accumulated from time to time.

{¶265} "Q. Okay, and the contract effective date for this annuity was January 16th,

1995, is that correct?

{11266} "A. That is correct, when it went into this particular one.

{11267} "Q. So this annuity was opened during the marriage, is that correct?

{11268} "A. I do not know whether to call it open, because it was transferred from

another one.

{11269} "Q. Okay, well do you have documents to show the transfers since 1981 -

since 1981?

{1[270} "A. I was able to get some, I don't have the old old ones anymore, but I

have been with them and I have not withdrawn one cent from any of my annuities.

{11271} "Q. Okay, but you've added to, you've added, you've made contributions in

addition to increase - -

{11272} "A. No contributions from my finance except the transfers.

{¶273}

{11274} "0. Okay. At the time you married Leticia, what did you have in terms of

annuities and life insurance?


{7275} "A. I do not remember because it has been rolled over, rolled over, I think

it was Capital or Lincoln, the only ones I remember are the present one in the last ten

years, which was transferred to USG and I think it's Lincoln.

{1276} "Q. I'm going to hand you what's marked as Defendant's Exhibit "00", is

that the document that you prepared?

(1277) "A. Yes, maam.

{1278} "Q. Okay. Does that list contract numbers for prior annuities that you had?

{¶279} "A. Yes, as far as I could get it, that's why I can't even put the amount in

the New England and Capital because I don't remember.

{11280} "0. At the time, since you were married to Leticia, have you withdrawn any

monies from the annuities that you owned at the time of the marriage?

(1281) "A. No, I have not withdrawn any, except the roll overs, you know.

{1282} "Q. Well, but have you withdrawn any money - - since you married Leticia

have you added to any of those annuities that you had at the time?

{1283} "A. I don't' think I have, no.

{1[284} "Q. Okay. Now, when the annuities matured, first of all the annuities were

for a set term of years, correct?

{11285} "A. Yes, maam.

{11286} "Q. And so each annuity had a maturity date?

{11287} "A. Yes, rnaam.

{¶288} "Q. Okay, what happened when an annuity would mature?

{11289} "A. Well, upon the advice of, advice of the financial advisor says we are

going to get from this insurance a better retirement, why don't we do it. I accepted.


{11290} "Q. So that's what you were referring to as a roll over to another --

{¶291} "A. Yes, maam.

{11292} "0. Okay, and when you rolled over the annuities did you take any cash

out at that time?

{11293} "A. No, maam.

f1294} "Q. Okay, I'm going to show you what I've marked as Defendant's Exhibit

"pP„

{1295} "A. Yes, Maam.

{1296} "Q. Okay, and can you tell me if that is part of an application for an annuity

to the Equitable of Iowa?

{1297} "A. Yes, maam.

{1298} "Q. And that is a document that you signed when that document was first

made?

{1299} "A. Yes, maam.

{1300} "Q. Okay, and the date of this is 1998?

{1301} "A. Yes.

{1302} "Q. Okay, now was this one of the roll overs that you --

{¶303} "A. Yes, maam.

{1304} "Q. Okay, in the box that's number 6 on that form, is the box checked that

says the policy applied for to replace or change any existing life insurance or annuity

contract and the box is check marked, yes. Yes. Correct?

{1305} "A. Yes.

f13061 "0. Okay. Who were the beneficiaries that were listed on that application?


{1307} "A. I have never changed my beneficiary from the start to my two chiidren,

Kim and Cheri.

{1308} "Q. So they are the ones that are listed?

{11309} "A. Yes, maam.

{1310} "Q. So Leticia was not named as a beneficiary on this policy?

{1311} "A. No, maam

{¶312} "Q. Was Leticia ever listed as the beneficiary of the annuities that you had

at the time of your marriage?

{1313} "A. No, maam, because she always wants me to have everything separate

because she claims she has also her own annutities."

{1314} Tr. at 389-391; 567-569

{1315} Upon review of the record, we find Appellant established by clear and

convincing evidence the annuities remained separate property throughout the marriage.

{1316} The trial court found:

{1317} "H. The parties have life insurance and annuities. There is a Lincoln Life

Insurance policy with a value of $156,773; an ING annuity with a value of $254,346; a

second ING annuity with a value of $93,684; and an AIG annuity in Wife's name with a

value of $128,939. At one point, Wife had another annuity which was cashed in and

became part of the balance in the Medina County Federal Credit Union.

{1318} "7. During the course of the trial there were allegations made on the part

of Husband that some of the property in question was his separate property. He spoke

of rolling over proceeds from prior residences, prior insurance policies and prior

annuities. There was no documentary evidence to support this contention that any of


the assets were separate property and his testimony was not sufficient to convince the

Court a finding of separate property should be made."

{1319} The trial court can find an asset remained separate property without

documentary evidence. Upon review of the record, Appellant introduced clear and

convincing evidence the policies remained separate property and were not added to or

withdrawn from; rather, the policies matured, rolled over and accumulated. We overrule

the assignment of error with regard to the real property, but reverse the trial court's

determination with respect to the annuities and life insurance.

IV.

{1320} In the fourth assignment of error, Appellant asserts the trial court erred in

the division of Appellant's pension. Specifically, Appellant argues the trial court failed to

consider the pension evaluators report valuing the survivorship portion of the pension in

favor of Appellee. Appellant cites the second evaluator's report dated June 2, 2006

setting a value on Appellee's survivorship portion and stating the same can be

considered a "pre-existing payment already made to the non-participant by the

participant from separate property as a result of the survivorship election." Appellant

maintains the present value of the pension should be divided equally as marital property

and then the survivorship election should be subtracted.

{1321} At trial, the following exchange occurred with regard to Appellant's

pension:

{1322} "Q. All right. All right, let's go to, now you have a pension --

{¶323} "By Ms. Smithern: Are we stipulating to the pension report by QDRO

Consultants?


{¶324} "By Ms. Perlman: We can stipulate that that's what they say, but it does

not take into account Mrs. Banez's portion that she receives if Mr. , if Doctor Banez

predeceases her.

{1[325} "By Ms. Smithern: So do I need to call QDRO Consultants to get a fair

market value of the marital portion versus the separate portion?

{1326} "By Ms. Perlman: What I'm saying is, that when Dr. Banez retired he made

the election that everybody needs to make whether to take, I think they call it a single

wife calculation or the calculation where the spouse receives a lesser amount if the

husband dies first which in this case is $1730.00 --

{¶327} "A. As of 2004.

{11328} "By Ms. Perlman: - - per year - -

{1329} "A. - - received a letter from the Federal Government that because of my

contributions that I allowed them to deduct from my pension should I die she's going to

receive for the rest of her life, at that time the amount of $1,720.00 a month.

{1330} "By Ms. Smithern: Right. So what is your point?

{1331} "By Ms. Perlman: I don't' believe - - so I don't believe that the QDRO

Consultants report - -

(11332} "By Ms. Smithem: But he's alive, so he's alive, so we take the current fair

market value.

{1333} "By Ms. Perlman: Except that she has the rights, she ahs [sic] a vested

interest in receiving - -

{1334} "By Ms. Smithern: So if we - - I mean, are we stipulating to do a Qualified

Domestic Relations Order to divide the marital portion of the benefit?


{1335} "By Ms. Perlman: I'm saying that that is not necessarily the total marital

portion - - I mean I agree with the percentages, percentages you know, of time, but Mrs.

Banez has a vested interest in receiving a certain amount of money from the, from the

pension if Dr. Banez dies first, and I don't believe that that interest, which my

understanding is that was an irrevocable election and that cannot be changed, whether

that interest has been evaluated.

{1336} "By Ms. Smithern: Okay, so did you engage ODRO Consultants or another

expert to value what you believe that additional component to be?

{1337} "By Ms. Perlman: I didn't, but you're the one that is offering this as a total

value of the - - and what I'm saying is that there's an additional amount that has not

been evaluated.

{1338} "Ms. Smithern: Well then I'll just claim 100% of it is marital property and

then you'll have the burden of proving what is the separate property component, I mean,

this ridiculous - - can we go off the record?

{1339} "By the Court: We can.

{1340} (Tape resumes as follows);

{¶341} "By the Court: All right, we're back on the record.

{1342} "Q. So I would offer "18B1" which is the pension evaluation report

prepared by ODRO Consultants which indicates that as of November 18, 2005, the fair

market value of Mr. Banez's civil service retirement system plan is $279,767.00 and

likewise because part of the pension was earned prior to the marriage it reduced the

marital portion to $152,069.81

{¶343} Tr. at 398-401.


{1344} In making its determination of the parties' income, the trial court found:

{1345} "8. Ohio Revised Code Section 3105.18(C)(1) indicates that spousal

support must be both appropriate and reasonable and lists certain factors that the Court

must consider in determining spousal support. A discussion follows:

{11346} "A. Income of the parties from all sources. Husband's gross monthly

benefit from his Civil Service pension is $2,877. However, 54.36% of that pension is

marital. When the pension is divided equally by QDRO, Wife will be receiving 27.18%

of the $2,877 each month, or $782. Husband will be receiving 71.22% of the monthly

benefit or approximately $2,049. Based on his 2005 Federal Income Tax return,

Husband receives gross Social Security of $10,994 per year. Wife receives Social

Security of $5,138 per year. Therefore, Wife's gross monthly income will be $782 from

Husband's pension and $428 from her Social Security or $1,210 per month. Husband

will be receiving $2,049 from his pension and $916 per month from Social Security or

$2,965 per month. The total monthly income of the parties is $1,210 plus $2,965 or

$4,175. Half of that amount is $2,088. In order for Wife to have the monthly of $2,088,

Husband wouid have to transfer $878 per month to Wife tax free. in addition to Sociai

Security and pension, the parties will have income from their IRAs. They are of an age

where at least minimum distributions are mandatory and they can withdraw more than

the minimum. They also have savings which will generate some income."

{1347} We note Appellant's counsel stated the previous election by Dr. Banez to

provide survivorship benefits to Appellee was to her understanding irrevocable. We do

not know if a QDRO would supersede that election given that Appellee will no longer

qualify as Appellant's surviving spouse.


{1348} Assuming Appellant's counsel's understanding is correct, both parties are

currently proportionally receiving less under the trial court's division of the current

monthly payout status of the pension than they would have been had Appellant not

elected to give Appellee survivorship benefits. Though Appellee potentially stands to

benefit from an increased monthly payout amount if she survives Appellant, such

potential is speculative in nature- We suspect Appellant's monthly payout may be

increased if Appellee predeceases him. In any event, because of the speculation

inherent in actuarial estimates of the survivorship benefit and the fact that the present

payout amount is established and its division equitable, we find no abuse of discretion

by the trial court in its division of Appellant's pension.

{1349} Appellant's fourth assignment of error is overruled.

V.

{1350} In the fifth assignment of error, Appellant argues the trial court should

have considered $30,000 in attomey fees the Court ordered Appellant to pay to

Appellee in dividing the marital property.

{%351} In the trial court's findings of fact, the court specifically states husband's

decision to contest grounds resulted in Appellee incurring additional fees, as did

Appellant's lack of cooperation in discovery. Accordingly, the trial court acknowledges

the attomey fees paid to Appellee, and declines to award Appellee additional fees. We

find the trial court did not abuse its discretion in not including the fees paid as marital

property, where the trial court previously ordered Appellant to pay the fees during the

pendency of the case and given the trial court's stated reasons for their award.

{1352} The fifth assignment of error is overruled.


VI.

{1353} In the sixth assignment of error, Appellant argues the trial court erred in

awarding Appellee spousal support. Specifically, Appellant maintains the evidence

established Appellee's income and available assets are sufficient to meet her needs;

therefore, there has been no showing of need for spousal support for her sustenance

and support.

{1354} R.C. Section 3105.18(B) states:

{1355} "(C)(1) In determining whether spousal support is appropriate and

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

of spousal support, which is payable either in gross or in installments, the court shall

consider all of the following factors:

{1356} "(a) The income of the parties, from all sources, including, but not limited

to, income derived from property divided, disbursed, or distributed under section

3105.171 of the Revised Code;

{1357} "(b) The relative earning abilities of the parties;

{1358} "(c) The ages and the physical, mental, and emotional conditions of the

parties;

{1359} "(d) The retirement benefits of the parties;

{1360} "(e) The duration of the marriage;

{1361} "(f) The extent to which it would be inappropriate for a party, because that

party will be custodian of a minor child of the marriage, to seek employment outside the

home;

{1362} "(g) The standard of living of the parties established during the marriage;


{1363} "(h) The relative extent of education of the parties;

{1364} "(i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;

{1365} "(j) The 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;

{1366} "(k) The time and expense necessary for the spouse who is seeking

spousal support to acquire education, training, or job experience so that the spouse will

be qualified to obtain appropriate employment, provided the education, training, or job

experience, and employment is, in fact, sought;

{¶367} "(1) The tax consequences, for each party, of an award of spousal support;

{1368} "(m) The lost income production capacity of either party that resulted from

that party's marital responsibilities;

{¶369} "(n) Any other factor that the court expressly finds- to be relevant and

equitable."

{1370} A trial court's decision concerning spousal support under R.C. 3105.18

may only be altered if it constitutes an abuse of discretion. See Kunkle v. Kunkle (1990),

51 Ohio St.3d 64, 67, 554 N.E.2d 83. An 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 v. Blakemore (1983), 5 Ohio St.3d 217. Furthermore,

unlike the statute concerning property division, R.C. 3105.18 does not require the lower

court to make specific findings of fact regarding spousal support awards. While R.C.

3105.18(C)(1) does set forth fourteen factors the trial court must consider, if the court


does not specifically address each factor in its order, a reviewing court will presume

each factor was considered, absent evidence to the contrary_ Carroll v. Carroll,

Delaware App.No.2004-CAF-05035, 2004-Ohio-6710, citing Watkins v. Watkins,

Muskingum App. No. CT 2001-0066, 2002-Ohio-4237, (additional citations omitted).

{1371} Upon review of the record and the trial court's judgment, we find the trial

court did not abuse its discretion relative to the spousal support award. The trial court

specifically referenced its consideration of the factors outlined above, and a review of

the record supports the amount and duration of the award.

{¶372} The sixth assignment of error is overruled.

{1373} The June 26, 2006 Judgment Entry of the Stark County Court of Common

Pleas, Domestic Relations Division, is affirmed, in part; reversed, in part; and remanded

for further proceedings in accordance with the law and this opinion.

By: Hoffman, P.J.

Farmer, J. concur;

Edwards, J. concurs in part,dissents in part.

w

H

HON. WILLIAM B. HOFF

0 N. SHEIL

^ili l"J

ARMER

HON. JULIE A. EDWARDS

Stark County Appeals Case No. 2006CA00216 34

EDWARDS, J., CONCURRING IN PART, DISSENTING IN PART

{¶374) I concur with the majority as to its analysis and disposition of this case

except for the disposition of the third assignment of error.

{¶375} I find that appellant sufficiently demonstrated the traceability of his

separate funds that were used to purchase the Cornwall property prior to the marriage.

I would, therefore, reverse the trial court as to its finding that the current residence of

the parties was marital property.

{¶376} The trial court finds that appellant's testimony was not sufficient to

establish the traceability of this asset. But, there was some. documentary evidence to

support appellant's claim. While I understand the trial court's concern that there was

not more documentation presented by appellant, I find his testimony to be sufficient in

this case. The trial court did not find that appellant's testimony was not credible.

Judge Julie A. Edwards

JAE/rmn

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIOFIFTH APPELLATE DISTRICT

LETICIA V. BANEZ

Plaintiff-Appellee

-vs-

RAMON V. BANEZ, ET AL.

Defendant-Appellants

JUDGMENT ENTRY

Case No. 2006CA00216

For the reasons stated in our accompanying Memorandum-Opinion, The June

26, 2006 Judgment Entry of the Stark County Court of Common Pleas, Domestic

Relations Division, is affirmed, in part; reversed, in part; and remanded for further

proceedings in accordance with the law and this opinion. Costs assessed to Appellant.

HON. SHE[LPl,.G. FARMER

HON. JULIE A. EDWARDS

APPENDIX:

OPINION OF THE TRIAL COURT(JUNE 26, 2006)

I

I

IF1LED2 ^ 2W6

'., p^ift G. GIAYASISARK COFINTY OH10mo, €h` CoURTs

^^^^^vcj

LETICIA V. BANEZ . CASE NO. 2004-DR-00580

Plaintiff JUDGE MICHAEL HOWARD

vs

RAMON V. BANEZ

Defendant

appeared only to testify as to her wish to be divorced from her husband.

FINDINGS OF FACT

1 The Court has jurisdiction over the parties and the subject matter of this case.

2 The duration of the marriage is found to be from the ceremonial marriage on August 6,

1981, to the date of the final hearing, March 6, 2006, a term of twenty-four years, seven

months.

3 Wife filed her complaint for divorce on April 26, 2004. On May 19, 2005, she amended

her complaint to allege the additional grounds of living separate and apart for more than

one year. On July 18, 2005, Wife was found to be incompetent in the Cuyahoga County

Probate Court in Case Number 2005 GDN 0090026. Her daughter from her previous

marriage, Carmen Lilibeth Berta, was appointed Guardian of her person. On July 26,

IN THE COURT OF COMMON PLEASDOMESTIC RELATIONS DIVISION

STARK COUNTY, OHIO

JUDGMENT ENTRY

This matter came on for hearing before Judge Michael L. Howard on March 6, March 7,

May 2, and June 5, 2006 on Plaintiff's Complaint for Divorce. Present in the Courtroom were the

Guardian for the incompetent Plaintiff, Attorney Elizabeth Goodwin (hereinafter "Guardian"),

represented by her attorney, Michelle Smithern; and Defendant, Ramon Banez (hereinafter

"Husband"), represented by his attorney, Marge Perlman. Mrs. Banez (hereinafter "Wife")

1

2005, Attorney Goodwin was appointed as the Guardian of the Estate.

4 Despite the Cuyahoga County adjudication of incompetency, the Court finds that, on the

day of her testimony, she was lucid and competent to testify and express her desire with

regard to the divorce proceedinas. This Court, after 1','z days of testimony on grounds,

finds that Wife has been voluntarily living separate and apart from Husband for more than

one year. During Wife's tesiimony, she appeared at times to have difficulty remembering

details regarding the date of her marriage and her Husband's occupation. However, when

directly asked about her desires regarding the divorce, Wife stated she wanted the

divorce- She said she was not being forced, and she was making the decision of her own

free will. She stated that she wanted "to live peacefully" and did not wish to return to live

with Husband. She said she was afraid of him, and her demeanor in the courtroom

bolstered this assertion. Wife had previously filed for divorce in 1986. During her

testimony there was no indicafion that Wife had changed her mind regarding following

through with this divorce.

5 No children were born of the marriage.

6 The parties have a valuable marital estate with numerous investment assets and no debt.

Husband undoubtedly receives brokerage statements for all the investments on a monthly

basis, but he was less than cooperative in providing details of those investments both to

counsel and to the Court. This resulted in a greater expenditure of time and attorney fees

than should ever have been required. The parties have the following property:

A Real Estate. The marital home is at 3966 Arbor Creek, N.W., Canton, Ohio 44718.The value of that property is $170,000. There is no mortgage on the maritalresidence.

B The parties own two vehicles, a 1993 Acura Legend worth $4,775 and a 1985Buick Electra worth $2,700- Neither vehicle has debt associated with it.

C The Wife owns jewelry worth $54 and the parties stipulated that the householdgoods at the marital residence were worth $5,000. There was also $700 of cash

2

found in the basenient of the marital residence. The cash and the householdgoods will remain with the marital residence.

I

D The parties separated in March of 2004, and the divorce was filed in April of 2004and has remained pending ever since. The flow of the case was interrupted by theProbate Court proceedings in Cuyahoga County. During the pendency of the case,both parties utilized funds in various bank accounts and retirement accounts TheCourt has attempted to choose values for the bank accounts and other assets ina way that equitably accounts for the dissipation of marifal assets by both partiesPlaintiff's Exhibit 13A is a summary of the assets of the parties as of the date of thefiling of divorce. Plaintiff's Exhibit 13B are those same values as of March of 2006,the date of the final hearing. The accounts referenced herein are identified ingreater detail in the attached spreadsheet exhibitwhich contains account numbers.The parties have two Unizan checking accounts, both in Husband's name. TheCourt will value these as of the time of filing. One is valued at $21,480, the otherat $50,521. The parties had a third savings account identified as the Premier Onesavings account. At the time of the filing of the divorce, it has a balance of$35,647. The account was subsequently closed and deposited into one of theUnizan checking accounts. Wife has a Unizan checking account with a balanceof $5. When Wife went to live with her daughter in Medina, she had a balance ina Medina County Federal Credit Union account of $102,146. The current balancein that account is $700. The Court will show $102,146 on Wife's side of the ledger.

E The parties have a number of investment accounts. Husband has been in controlof all .of those accounts. Plaintiff's Exhibit 29 is a.summary of balances of thoseaccounts per his records. The underlying records were never admitted as exhibits,but the balances of the investment accounts are consistent with accountstatements presented by Wife. There are two Fidelity accounts, a Cash Reserveaccount with a balance of $12,210 and a Government Reserve account with abalance of $30,468; there is a Janus Capital Group account with a balance of$3,713; there is a Strong account with a balance of $22,472; there is a CalvertInvestments account with a balance of $21,160; there is a USAA account with abalance of $9,401; there are two Vanguard Group accounts, a money market witha balance of $48,270 and an Ohio Tax Exempt account with a balance of $14,514.Again, the above accounts are identified more specifically in the attached exhibit.

F Husband has a Civil Service pension which he earned during his years as aVeteran's Administration doctor. The marital portion of that pension is $152,070.This represents approximately 54.36% of the entire pension. The Court will dividethat pension by Qualified Domestic Relations Order.

G The parties have a number of IRA accounts. There is a Fidelity IRA with a balanceof $36,551; a Vanguard IRA in Wife's name with a balance of $8,367. There arefour other Vanguard IRA's with balances of $111,532, $37,764, $37,985 and$116,145. There is also an Old Mutual account which Husband reports as beingclosed. At the time of closure, it had a balance of $7,347. The Court will show thaton his side of the ledger.

H The parties have life insurance and annuities. There is a Lincoln Life Insurance

3

policy with a value of $156,773; an ING annuity with a value of $254,346; a secondING annuity with a value of $93,684; and an AIG annuity in Wife's name with avalue of $128,939. Ai one point, Wife had another annuity which was cashed inand became part of the balance in the Medina County Federal Credit Union.

The total value of the marital property as listed above is $1,696,738. There is no debt.

An equal division of the marital property would have each party receiving $848,369.

During the course of the trial there were allegations niade on the part of Husband that

some of the property in question was his separate properiy He spoke of rolling over

proceeds from prior residences, prior insurance policies and prior annuities. There was

no documentary evidence to support his contention that any of the assets were separate

property and his testimony was not sufficient to convince the Court a finding of separate

property should be made.

Ohio Revised Code Section 3105_18(C)(1) indicates that spousal support must be both

appropriate and reasonable and lists certain factors that the Court must consider in

determining spousal support. A discussion follows:

A Income of the parties from all sources. Husband's gross monthly benefit fromhis Civil Service Pension is $2,877. However, 54.36% of that pension is marital.When the pension is divided equally by QDRO, Wife will be receiving 27.18% ofthe $2,877 each month, or $782. Husband will be receiving 71.22% of the monthlybenefit or approximately $2,049. Based on his 2005 Federal Income Tax return,Husband receives gross Social Security of $10,994 per year. Wife receives SocialSecurity of $5,138 per year. Therefore, Wife's gross monthly income will be $782from Husband's pension and $428 from her Social Security or $1,210 per month.Husband will be receiving $2,049 from his pension and $916 per month from SocialSecurity or $2,965 per month. The total monthly income of the parties is $1,210plus $2,965 or $4,175. Half of that amount is $2,088. In order for Wife to half themonthly income of $2,088, Husband would have to transfer $878 per month toWife tax free. In addition to Social Security and pension, the parties will haveincome from their IRAs. They are of an age where at least minimum distributionsare mandatory and they can withdraw more than the minimum. They also havesavings which will generate some income.

B Relative earning abilities of the parties. Husband is retired and is of an agewhere returning to work would be unlikely, although it is theoretically possible.Wife, based on her mental disability, is incapable of working.

{

4

C Age and physical, mental and emotionai condition. Husband is 79 years ofage. Wife is 71 years of age. Husband enjoys good physical health and appearsto be in good health mentally. Given that he does not want the divorce, he issuffering emotionally as a result of these proceedings. Wife is in the early stagesof dementia and consequently is not in good mental or emotional health. She alsoappeared physically frait when she came to Court to testify- She requires almostconstant care. She is abfe to do some self care when she is supervised andsupported. She is on five prescription medications. She will require extensivedental care soon.

D Retirement benefits have been dtscussed above, they include Social Security,which was not divided as a property division. Husband's Civil Service Pension willbe divided by ODRO. There are numerous IRAs, annuities and investmentaccounts.

E Duration of the marriage is 24 years, 7 months.

F Whether the custodian of the children should seek employment outside thehome. Neither party is the custodian of a child.

G Standard of living. The parties enjoyed an above-average standard of living.They accumulated extensive assets. They have no debt.

H The parties' education. Husband is a medical doctor. Wife's educationalbackground is unclear. Regardless of that background, she is not capable ofworking at this time.

I Assets and liabilities of the parties. The parties will each be receivingapproximately $800,000 in assets, most of which are liquid. Neither will beresponsible for any significant debts other than his or her own attorney fees.

J Contribution to the educationltraininglearning ability by one party to theother. There was no testimony as to contribution by other party to the education,training and earning ability of the other. Husband was already a physician at thetime the parties married.

K Time and expense necessary for the spouse seeking spousal support toacquire new skills for employment. Neither party will be expending time orfunds to seek new skills for employment.

L Tax consequences. Spousal support payments qualify as alimony under Federaltax law are generally deductible to the payor and income to the payee. In thiscase, the Court is concerned about equalizing the income of the parties. That taskis unnecessarily complicated by the tax implications of deductibility by the payorand taxability to the payee. In order for Wife to receive the amount necessary toequalize the parties' incomes, Husband would have to pay more than that amount,but would receive a deduction. Wife would have to claim the taxable income, andthen pay tax on that amount. Given the fact that the parties may be withdrawing

5

substantial amounts from their IRAs for living expenses and, in the case of Wife,extensive amounts for medical payments, it is impossible to predict the parties taxsituation accurately_ Therefore, the Court will indicate that the spousal supportordered herein is not taxable to the payee, nor is it deductible to the payor TheFederal Income Tax Code alfows for such an election io be made, and the Couriwill order ihe parties to do so.

9

M Lost income production capacity of either spouse resulting from maritalresponsibility. Wife did not ;wrork during the marriage.

The award of attorney fees is governed by R.C. 3105.73, which requires a finding by the

Court tnat an award of fees is equitable. Atiorney fees in this case have been extensive.

Plaintiff's Exhibit 32(a) summarizes Wife's attorney fees through May 31, 2006. She has

incurred $132,784.83 as ofthat date, including $36,171.83 to litigate the Cuyahoga County

Probate matter. Husband's Exhibit II summarizes his attorney fees to date. He has

incurred $91,416, including $58,842 to litigate the Cuyahoga County Probate matter.

Husband has paid $27,500 to Wife for attorney fees during the pendency of this case.

Both parties have assets sufficient to cover his or her own fees. Husband's decision to

contest grounds did result in additional fees, but it is his right to mount a vigorous defense

considering he did not want the divorce. Husband's lack of cooperation in discovery did

cause Wife additional expense, but Husband has already transferred $27,500 to Wife for

attorneyfees. In Boney v. Bonei, 2006 WL 1431372, 2006-Ohio-2599, OhioApp.516Dist.,

May 22, 2006, the plaintiff did not comply with discovery and this Court awarded $1,200

attorney fees. The Fifth District Court of Appeals reversed that award of attorney fees

citing a failure to find that appellee was unable to pay his attorney. The Court cannot

make a finding of inability to pay in this case, and thus declines to make a further award

of fees.

CONCLUSIONS OF LAW

6

1 In Boyd. Guardian of the Estate of Edwards. Incompetent v Edwards (June 3, 1982)7 4

Ohio App.3d 142, 446 N.E.2d 1151, the 8`F Districi Court of Appeals found that "where a

Guardian sues for divorce for a ward previously adjudicated incompetent, a "no fault"

divorce cannot be granted without first determining if the ward is competent to testity and

to express his intentions as to the divorce".

2 In Prather v Prather ( 1934) 33 Ohio Law Abs 336, "a guardian cannot sue for divorce ori

behalf of a mentally incompetent person [who has had no interval of lucidity], since the will

of such a person cannot be known".

3 In Heskett v Heskett (Nov. 25, 1991) 1991 WL 256136 (Ohio App. 2 Dist.) not reported,

"the appointment of a guardian for a mentally incompetent person will not abate a divorce

action instituted prior(emphasis added) to the incompetency".

4 Evidence Rule 601 states that "Every person is competent to be a witness except: (a)

Those of unsound mind...._ who appear incapable of receiving just impressions of the facts

and transactions respecting which they are examined or relating them truly."

5 In State v. Wildman (1945), 145 Ohio St. 379, 61 N.E.2d 790, the court set forth the

following "governing principle": "A person who is able to correctly state matters which have

comewithin his perception, with respect to the issues involved, and [who] appreciates and

understands the nature and obligation of an oath is a competent witness, notwithstanding

some unsoundness of mind". This principle was reaffirmed in the 5'" District case of State

v_ Tanner (1991) 1991 WL 547923 which stated the proponent of the witness testifying has

the burden of proving competence and it is the trial court's decision to determine

competency.

DECISION

1 A divorce is granted to Plaintiff-Wife on the grounds of living separate and apart

7

i

continuously for niore than one year.

The maritai property is divided as follows

A The house on Arbor Creek is granted to Husband, along witiz all of ihehousehold goods therein and the $700 cash. Husband is also granted theAcura Legend and the Buick Electra free and clear of any claim by Wife Wifeis granted her jewelry.

B Husband is granted the Unizan checking accounts number 6823595 andnumber 30671825. Fje is also granted the funds dissipated from the PremierOne savings account which was closed Wife is granted her Unizan checkingaccount with the $5 balance as well as the Medina County Federal Credit Unionaccount, including those amounts dissipated by her and her daughter.

C Wife is granted the Fidelity Cash Reserve account, the Fidelity GovernmentReserve account and under account number 2BN-016519. Wife is also grantedthe Janus Capital Group account, the Strong account, and the CalvertInvestment account, and the USAA account. Husband is to transfer $9,575from the Vanguard Group money market account to Wife. He is granted theremainder in that account. Husband is granted the Vanguard Group Ohio taxexempt account-

D The marital portion of Husband's Civil Service Pension is to be divided byQualified Domestic Relations Order.

E Husband is granted the Fidelity Funds IRA account number 2BN-016500. Wifeis granted her Vanguard IRA, as well as Vanguard IRA 921937-20-7 andVanguard IRA 921984-10-5. Wife is also granted the $15,349 from VanguardIRA account number 9780809726/0050. That is to be accomplished byQualified Domestic Relations Order. Husband is granted the Old Mutualaccount with a balance of $7,347 which he indicates was previously closed.The Court has made an attempt to divide the IRA accounts equally because ofthe pretax character of those accounts.

F Husband is granted his Lincoln Life Insurance policy free and clear of any claimby Wife. He is also granted his ING annuity number CO13889-LM. Wife isgranted ING annuity number 581897 and AIG annuity number MN0399-10.

The above division of marital property is equal If for any reason it should be found not

to be equal, the Court specifically finds that it is equltable. As noted above, the Court

has specifically made an effort to take into account amounts dissipated by the parties

during the pendency of the divorce.

3 The Court has considered all the spousal support factors contained in Ohio Revised

8

iiCode Section 310518 and finds that spousal support is appropriate and reasonable as

follows: The Couit orders spousal support of $878.00 per month from Husband to Wife

payable through Child Support Enforcement Agency plus 2% processing fee The

spousal support will begin wth the first nionth following the filing of the Final Decree

and continue untii the death or remarriage of Wife, whichever occurs earlier Wife is

responsible for providing her ovan nealth insurance and uncovered expenses. Husband

is to provide COBRA information. The Court will retain jurisdiction to modify both the

amount and the length of the spousal support order. The Court specifically orders that

this award of spousal support is not taxable to the payee, not is it deductible to the

payor. Both parties are to comply fully with any requirements of the IRS to implement

this order.

EACH PARTY TO THIS SUPPORT ORDER MUST NOTIFY THE CHILD SUPPORT

ENFORCEMENT AGENCY IN WRITING OF HIS OR HER CURRENT MAILING ADDRESS,

CURRENT RESIDENCE ADDRESS, CURRENT RESIDENCE TELEPHONE NUMBER,

CURRENT DRlVER'S LICENSE NUMBER, AND OF ANY CHANGES IN THAT

INFORMATION. EACH PARTY MUST NOTIFY THE AGENCY OF ALL CHANGES UNTIL

FURTHER NOTICE FROM THE COURT. IF YOU ARE THE OBLIGOR UNDER A CHILD

SUPPORT ORDER AND YOU FAIL TO MAKE THE REQUIRED NOTIFICATIONS YOU MAY

BE FINED UP TO $50 FOR A FIRST OFFENSE, $100 FOR A SECOND OFFENSE, AND

$500 FOR EACH SUBSEQUENT OFFENSE. IF YOU ARE AN OBLIGOR OR OBLIGEE

UNDER ANY SUPPORT ORDER AND YOU WILLFULLY FAIL TO MAKE THE REQUIRED

NOTIFICATION YOU MAY BE FOUND IN CONTEMPT OF COURT AND BE SUBJECTED

TO FINES UP TO $1,000 AND IMPRISONMENT FOR NOT MORE THAN 90 DAYS.

IF YOU ARE AN OBLIGOR AND YOU FAIL TO MAKE THE REQUIRED

9

NOTIFICATIONS YOU MAY NOT RECEIVE NOTICE OF THE FOLLOWING

ENFORCEMENT ACTIONS AGAINST YOU: iMPOS1TION OF LIENS AGAINST YOUR

PROPERTY; LOSS OF YOUR PROFESSIONAL OR OCCUPATIONAL LICENSE, DRIVER'S

LICENSE, OR RECREATIONAL LICENSE; WITHHOLDING FROM YOUR INCOME;

ACCESS RESTRICTION AND DEDUCTION FROM YOUR ACCOUNTS IN FINANCIAL

INSTITUTIONS; AND ANY OTHER ACTION PERMITTED BY LAW TO OBTAIN MONEY

FROM YOU TO SATISFY YOUR SUPPORT OBLIGATION.

4 If there are arrearages under the temporary orders in this case, those arrearages will

not merge into the Final Decree and will remain due and owing until paid.

5 Attorney's fees.

6 Except as otherwise stated, within 30 days of this Final Entry, each party shall execute,

transfer and deliver all titles, deeds, conveyances, certificates or any other documents

necessary to effectuate this order.

7 If either party fails to execute, transfer or deliver any such documents to the other

party, this order may be presented to the County Auditor, Clerk of Courts, County

Recorder and any other public or private official in lieu of the document that is regularly

required to convey or transfer property.

8 All restraining orders are released effective with the filing of the Final Decree.

9 Except for arrearages on temporary orders as discussed above, all prior orders are

merged into this Final Entry.

10 The attorney shall prepare any necessary orders, support notices or other legal

documents-

11 Any other motions before this Court not specifically addressed are denied

12 After application of the initial filing fee deposit, the remaining Court costs shall be paid

10

by the Husband fn 30 days

JUDGE MICHAEL L HOWARD

Tape No.: MLH-16-3514; MLH-17-0000;MLH-17-3109; MLH-18-0000;MLH-34-0069; MLH-35-0000.MLH-40-2236; MLH-41-0000

PRAECIPE: TO THE CLERK OF COURTS

Pursuant to Civil Rule 58(B), you are hereby instructed to serve upon all parties not indefault for failure to appear notice of this Judgment and its date of entry upon thejournal, to wit: Attorney Michelle Smithern, counsel for Plaintiff and Guardian; AttorneyMarge Perlman, counsel for Defendant, all by interoffice mail. The Clerk of Courts isfurther directed to note the service in the appearance docket

11

LETICIA V BANEZ V. RAMON V BANEZ JR. 2004 DR 00580

Value Debt Net Value Husband Wife(JT) 3966 Arbor Creek NW Canton 44718 $170,000 $0 $170,000 $170,000(H) 1993 Acura Legend $4,775 $0 $4,775 $4,775(H) 1985 Buick Electra $2 ,700 $0 $2,700 $2,700(JT) Jewelry $54 $0 $54 $54(JTl Househcld Goods and Cash $5,700 $0 $5,700 $5,700

(H) Unizan checking # 6823595 $21,480 $0 $21,480 $21,480(H) Unlzan checking #30671825 $50,521 $0 $50,521 $50,521(H) Premier One Saving 1576613663 CLOSED $35,647 $0 $35,647 $35,647(W) Unizan checking #30434300 $5 $0 $5 $5(W & Daughter) Medina Co. Fed. CU $102,146 $0 $102,146 $102,146

(H) Fidelity #2BN-016519 Cash Reserve $12,210 $0 $12,210 $12,210(H) Fidelity#2BN-016519 RS Govt Reserve $30,468 $0 $30,468 $30,468(H) Janus Capital Group Acct #203559889 $3,713 $0 $3,713 $3,713(H) Strong Acct # 023-2301708452 $22,472 $0 $22,472 $22,472(H) Calvert Investments Acct # 6044012 $21,160 $0 $21,160 $21,160(H) USAA Acct # 42-42902616727 $9,401 $0 $9,401 $9,401(H) Vanguard Group Money Market 022906-20-1 $48,270 $0 $48,270 $38,695 $9,575(H) Vanguard Group OH Tax-exempt 921929-10-5 $14,514 $0 $14,514 $14,514

(H) Civil Service Retirement QDRO $152,070 $0 $152,070 $76,035 $76,035(H) Fidelity Funds IRA Acct. # 2BN-016500 $36,551 $0 $36,551 $36,551(W) Vanguard IRA 921948-10-5 $8,367 $0 $8,367 $8,367(H) Vanguard IRA Acct# 9780809726/0050 $111,532 $0 $111,532 $96,183 $15,349(H) Vanguard IRA #9780809726/0132 $37,764 $0 $37,764 $37,764(H) Va n guard IRA 921937-20-7 $37,985 $0 $37,985 $37,985(H) Vanguard IRA 921984-10-5 $116,145 $0 $116,145 $116,145(H) Old Mutual 5545309 CLOSED $7,347 $0 $7,347 $7,347

(H) Lincoln Financial 98-5988842 CLOSED(H) Lincoln Life Insurance#20-07129749 Acc. Val. $156,773 $0 $156,773 $156,773(H) ING Annuity # 581897 $254,346 $0 $254,346 $254,346(H) ING Annuity# C013889-LM $93,684 $0 $93,684 $93,684( W) AIG Annuity #MN0399-10 $128,939 $0 $128,939 $128,939

Equity To Split 50/50 $1,696,738 $0 $1,696,738 $848,369 $848,369

Opinion and Judgment Entry of the Stark County APPENDIX LETICIA V. BANEZ Plaintiff/Appellee vs. On...

Documents

Transcript of Opinion and Judgment Entry of the Stark County APPENDIX LETICIA V. BANEZ Plaintiff/Appellee vs. On...