IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Anita J. Kvinta,
:
Plaintiff-Appellee/
:
Cross-Appellant,
:
No. 02AP-836
v.
(C.P.C. No. 95DR-01-94)
:
Charles J. Kvinta,
(REGUL
AR CALENDAR)
:
Defendant-Appellant/
Cross-Appellee,
:
Mary Kvinta,
:
Third-Party Defendant-
:
Appellant.
:
O P I N I O N
Rendered on June 5, 2003
Kemp, Schaeffer, Rowe & Lardiere Co., L.P.A., and Harold R.
Kemp, for Anita J. Kvinta.
Tyack, Blackmore, & Liston Co., L.P.A., and Thomas M.
Tyack, for Charles J. Kvinta.
Frank Macke Co., L.P.A., and Jason Macke, for Mary Kvinta.
Thompson Hine LLP, and S. Craig Predieri, for Deloitte &
Touche, LLP.
APPEAL from the Franklin County Court of Common Ple as,
Division of Domestic Relations.
No. 02AP-836
2
BRYANT, J.
{¶1}
Defendant-appellant, Charles J. Kvinta, and third-p arty defendant-appellant,
Mary Kvinta, appeal, and plaintiff-appellee, Anita J. Kvinta, cross-appeals from a July 19,
2002 judgment of the Franklin County Court of Commo n Pleas, Division of Domestic
Relations, granting plaintiff a legal separation from defendant and awarding plaintiff
marital real estate as payment for spousal support.
{¶2}
On January 9, 1995, plaintiff filed a complaint aga inst defendant for legal
separation. Following plaintiff’s service of proces s on defendant in Kuwait, where he lived
and worked, defendant moved to dismiss the complain t for (1) lack of jurisdiction over the
subject matter because plaintiff could not establish the existence of a common law
marriage, (2) lack of personal jurisdiction over de fendant, and (3) insufficiency of service
of process. The trial court found: (1) a common law marriage existed between the parties
as of September 1981, (2) defendant was properly se rved by ordinary mail pursuant to
Civ.R. 4.6(D), and (3) the court had personal juris diction over defendant pursuant to
Civ.R. 4.3(A)(6) based on defendant’s acknowledged ownership of real property in
Mansfield, Ohio. Because it found personal jurisdic tion under Civ.R. 4.3(A)(6), the court
did not determine whether it also had personal juri sdiction pursuant to Civ.R. 4.3(A)(8).
{¶3}
On defendant’s appeal from an April 19, 1999 contem pt judgment of the
trial court, this court affirmed the trial court’s finding that service of process had been
perfected on defendant by ordinary mail pursuant to Civ.R. 4.6(D). Kvinta v. Kvinta
(Feb. 22, 2000), Franklin App. No. 99AP-508 (“ Kvinta I”). However, this court held the trial
court erred in finding personal jurisdiction pursua nt to Civ.R. 4.3(A)(6) because, even
though plaintiff “has sought a division of property [in this legal separation action], the
action is not one arising from [defendant’s] intere st in, possession, or use of the real
property in Mansfield, Ohio.” Id. This court remand ed for the trial court to determine if
personal jurisdiction existed over defendant pursua nt to Civ.R. 4.3(A)(8).
{¶4}
On remand, the trial court concluded it lacked pers onal jurisdiction over
defendant pursuant to Civ.R. 4.3(A)(8). Because it found no personal jurisdiction existed,
the court vacated its prior contempt judgment again st defendant and dismissed plaintiff’s
complaint for legal separation. (Mar. 9, 2001 Decis ion.) However, after sustaining
No. 02AP-836
3
plaintiff’s motion for new trial, the trial court f ound it had in rem jurisdiction over the
parties’ marital status and the Mansfield, Ohio rea l property, and the court reinstated
plaintiff’s legal separation action. Following a tw o-day trial, the trial court issued a final
judgment on July 19, 2002, granting plaintiff a leg al separation and awarding her the
Mansfield property as spousal support payment.
{¶5}
Defendant Charles Kvinta and third-party defendant Mary Kvinta appeal
from the judgment of legal separation. Defendant Ch arles Kvinta assigns the following
errors:
{¶6}
“1. The trial court erred by refusing to hear evide nce on the issue of
common law marriage at the trial on the merits cond ucted April 24-25, 2002.
{¶7}
“2. The trial court (Judge S. Brown) erred in faili ng to recognize, in ruling on
objections to a magistrate’s report overruling defendant’s motion to dismiss that the
burden of proof to prove a common law marriage in O hio judicial proceeding (clear and
convincing evidence) was applicable to this case.
{¶8}
“3. The court erred in ruling the evidence presente d to the magistrate for
consideration of defendant’s motion to dismiss affirmatively proved a common law
marriage by clear and convincing evidence.
{¶9}
“4. The trial court erred in ruling that the presen ce of real estate in Ohio
gave the court in rem jurisdiction in a separate ma intenance action to terminate
defendant’s ownership interest in the real estate.
{¶10}
“5. The trial court erred in ruling that a pretrial motion must be filed before
the court could consider a de facto termination dat e other than trial date and that the
defendant had not presented sufficient evidence as to that issue at trial when the court
had made a finding in its March 9, 2001 judgment en try that the marital relation was
ended in 1989 or 1990.
{¶11}
“6. The trial court abused its discretion by awardi ng to plaintiff 100% of the
real estate owned by defendant and third party defe ndant, Mary Kvinta.
{¶12}
“7. The trial court erred in granting plaintiff’s m otion for new trial from the
decision and judgment granting defendant’s motion t o dismiss plaintiff’s case.”
{¶13}
Third-party defendant Mary Kvinta assigns the follo wing errors:
No. 02AP-836
4
{¶14}
“[1.] The trial court erred when it concluded that Mary Kvinta had voluntarily
submitted herself to the court’s jurisdiction and h ad waived her right to present defenses
under Civ.R. 12.
{¶15}
“[2.] The trial court erred by awarding the real pr operty of Mary Kvinta to the
plaintiff, where Mary Kvinta was no longer a party to the case.
{¶16}
“[3.] The trial court erred by making a declaration regarding the status of the
plaintiff as the common law wife of Charles Kvinta and choosing a date of termination that
nullifies Mary Kvinta’s status as the wife of the C harles Kvinta, in violation of her right to
due process under the Ohio and United States Consti tutions.”
{¶17}
In her cross-appeal from the judgment granting lega l separation, plaintiff
Anita Kvinta assigns the following errors:
{¶18}
“1. The trial court erred as a matter of law when i t found that personal
jurisdiction over Mr. Kvinta did not exist.
{¶19}
“2. The trial court committed error and abused its discretion as a matter of
law when it found that personal jurisdiction could not exclusively exist pursuant to Civ.R.
4.3(A)(6).”
{¶20}
As an initial matter, in a motion filed with this c ourt, plaintiff contends third-
party defendant Mary Kvinta failed to comply with A pp.R. 3(D) by failing to designate the
May 17, 1999 order she is appealing. Because Mary K vinta’s first assignment of error is
predicated on the May 17, 1999 order, but her notic e of appeal designates only the trial
court’s July 19, 2002 final judgment as the order a ppealed, plaintiff contends Mary
Kvinta’s first assignment of error should be dismis sed. App.R. 3(D) provides a notice of
appeal “shall designate the judgment, order or part thereof appealed from.” Interlocutory
orders, however, are merged into the final judgment , and thus, an appeal from the final
judgment includes all interlocutory orders merged w ith it. Bard v. Society Natl. Bank
(Sept. 10, 1998), Franklin App. No. 97APE11-1497. B ecause the May 17, 1999 order did
not dispose of all the claims between the parties a nd did not contain an express
determination that there was no just reason for del ay, the order was interlocutory. Civ.R.
54(B); Id. Accordingly, it merged into the July 19, 2002 final judgment and did not need to
No. 02AP-836
5
be separately identified in the notice of appeal. P laintiff’s motion to dismiss Mary Kvinta’s
first assignment of error is denied.
{¶21}
As to the assignments of error raised by the partie s, we first address
defendant Charles Kvinta’s seventh assignment of er ror, in which defendant asserts the
trial court erred in granting plaintiff’s Civ.R. 59 (A)(7) motion for new trial from the trial
court’s March 9, 2001 decision and judgment entry d ismissing plaintiff’s complaint due to
lack of personal jurisdiction over defendant. Defen dant contends plaintiff’s motion for new
trial is not a proper response to the trial court’s judgment sustaining defendant’s Civ.R.
12(B)(2) motion to dismiss plaintiff’s complaint. A ccording to defendant, the court’s ruling
on the motion to dismiss did not constitute a “tria l” pursuant to the Ohio Rules of Civil
Procedure, and the trial court thus should have den ied plaintiff’s motion for new trial.
{¶22}
We preliminarily note that defendant’s challenge to the trial court’s order
granting plaintiff’s motion for a new trial is not timely. Pursuant to App.R. 5(B), the time for
appealing that order began to run when the order wa s entered. Because defendant did
not appeal within 30 days of that order, we lack th e jurisdiction to address the merits of
defendant’s seventh assignment of error. See, also, R.C. 2505.02(B)(3). Accordingly,
defendant’s seventh assignment of error is dismisse d.
{¶23}
Defendant’s first three assignments of error togeth er assert the trial court
erred in finding a common law marriage existed betw een plaintiff and defendant.
Specifically, defendant contends the trial court (1) failed to recognize that clear and
convincing evidence is the appropriate burden of pr oof to prove a common law marriage,
(2) erred in ruling that the evidence presented to the magistrate affirmatively proved a
common law marriage by clear and convincing evidenc e, and (3) erred in refusing to hear
evidence on the issue of common law marriage at the trial on the merits conducted on
April 24 and 25, 2002.
{¶24}
Under R.C. 3105.12(B)(3), a common law marriage is valid in Ohio if it
came into existence in another state that recognize s the validity of common law
marriages in accordance with the laws of that state . Here, plaintiff alleged her common
law marriage with defendant came into existence in Kansas. Therefore, following R.C.
No. 02AP-836
6
3105.12(B)(3)’s directive, the trial court appropri ately looked to Kansas law to determine if
plaintiff and defendant had established a valid com mon law marriage in that state.
{¶25}
Not able to ascertain the degree of proof necessary to establish a common
law marriage under Kansas law, the trial court, as the parties urged, expressly applied
Ohio’s standard of clear and convincing evidence to determine whether a common law
marriage existed. (Mar. 24, 1998 Decision, 7-8.) Se e Nestor v. Nestor (1984), 15 Ohio
St.3d 143, 146 (determining the elements of a commo n law marriage must be established
by clear and convincing evidence). Thus, contrary t o defendant’s contention, the trial
court did apply the clear and convincing standard o f proof. To the extent the court erred in
using a “clear and convincing” standard of proof ra ther than some other standard of proof,
defendant has waived any error because (1) he urged the trial court to use that standard
of proof, and (2) he contends here it was the corre ct standard of proof to apply in
determining whether a common law marriage existed.
{¶26}
With regard to defendant’s second contention, the t rial court did not err in its
March 24, 1998 decision in finding clear and convin cing evidence of a common law
marriage between plaintiff and defendant. In Kansas , the elements necessary for a
common law marriage are: (1) capacity of the partie s to marry, (2) a present marriage
agreement between the parties, and (3) a holding ou t of each other as husband and wife
to the public. In re Estate of Antonopoulos (1999), 268 Kan. 178, 192-193, 993 P.2d 637.
Defendant does not dispute that sufficient evidence was presented to establish the first
and third elements, but he contends clear and convi ncing evidence was not presented to
prove the second element, a present agreement betwe en the parties to enter into a
common law marriage.
{¶27}
Kansas law does not require a marriage agreement be tween the parties to
be in any particular form. In re Estate of Keimig (1974), 215 Kan. 869, 872, 528 P.2d
1228. Moreover, the Kansas Supreme Court has held a marriage agreement between the
parties may be shown by circumstantial evidence. Fleming v. Fleming (1977), 221 Kan.
290, 291, 559 P.2d 329.
{¶28}
Evidence was presented at the magistrate’s hearing that defendant called
plaintiff in 1981 and asked her and their children to join him in Kansas to restart their
No. 02AP-836
7
relationship. Plaintiff testified she and defendant made a commitment to each other to
restart their marriage and they continued with thei r lives “like [they] were before.” (Tr. 19.)
Although defendant argues that “like [they] were be fore” means he and plaintiff resumed
cohabitating, no evidence was presented that the pa rties ever cohabitated outside of
marriage before 1981. Therefore, an inference can r easonably be made that a
commitment to live “like [they] were before” refers to a commitment to live in a marital
relationship, as the parties previously had between 1966 and 1979.
{¶29}
Defendant’s own writings in 1981 also present evide nce of his intent to be
married to plaintiff at that time. In October 1981, defendant wrote a journal in which he
repeatedly referred to plaintiff as his “wife,” and he wrote a letter to plaintiff in which he
referred to “our marriage,” signing the letter “you r husband.”
{¶30}
Additionally, after plaintiff’s move to Kansas, the actions of plaintiff and
defendant are consistent with the actions of a husb and and wife: defendant moved
several times due to his job, and plaintiff and the ir children moved and resided with him in
Texas, Oklahoma, and Cyprus; plaintiff and defendan t were listed as husband and wife in
parish books in Kansas, Oklahoma, and Ohio; they ma intained a sexual relationship that,
according to plaintiff, was monogamous; and defenda nt designated plaintiff as his wife
and beneficiary on insurance policies.
{¶31}
The foregoing evidence supports the magistrate’s an d trial court’s finding
that a present marriage agreement existed between p laintiff and defendant in 1981. The
other elements of a common law marriage not being i n dispute, the trial court did not err
in finding a valid common law marriage between plai ntiff and defendant beginning in
1981, and in entering judgment accordingly. (Mar. 2 4, 1998 Decision and Judgment
Entry.)
{¶32}
Despite the trial court’s express finding in its Ma rch 24, 1998 decision and
judgment entry that a common law marriage existed b etween plaintiff and defendant,
defendant contends the trial court erred at the tri al conducted on April 24 and 25, 2002, in
refusing to hear evidence on the issue and to recon sider its previous finding. Because the
March 24, 1998 decision and judgment entry was an i nterlocutory order rather than a final
judgment in the case, the trial court retained juri sdiction at trial to reconsider its prior
No. 02AP-836
8
decision that a common law marriage existed between
plaintiff and defendant.
Featherstone v. CM Media, Inc. , Franklin App. No. 02AP-65, 2002-Ohio-6747, appeal not
allowed (2003), 98 Ohio St.3d 1491.
{¶33}
Defendant does not contend he did not have a full o pportunity at the
May 16, 1996 evidentiary hearing to present evidenc e a common law marriage did not
exist between plaintiff and defendant. Nor has he i dentified any evidence not presented at
that hearing that would have been produced at trial to refute the court’s finding,
journalized in its March 24, 1998 decision and judg ment entry, that a common law
marriage existed between plaintiff and defendant. Additionally, defendant has
demonstrated no prejudice, such as how the result a t trial would have been different if the
trial court had reconsidered the issue. Thus, defen dant has not shown the trial court erred
in adhering to the prior ruling that a common law m arriage existed. Accordingly, because
defendant has failed to demonstrate the trial court erred in finding clear and convincing
evidence of a common law marriage between plaintiff and defendant, defendant’s first
three assignments of error are overruled.
{¶34}
Defendant’s fifth assignment of error is directed t o the trial court’s finding in
its July 19, 2002 final judgment that the marital r elationship terminated on April 23, 2002,
the date of the final hearing on plaintiff’s compla int for legal separation. Defendant asserts
the court should have found a de facto termination date of 1989 to 1990, which the trial
court cited in its March 9, 2001 decision and judgm ent entry as the time when plaintiff and
defendant separated and their marriage “essentially ended.”
{¶35}
In cases of divorce and legal separation, we presum e the date of the final
hearing is the appropriate termination date of the marital relationship. However, the trial
court, in its discretion, may select a de facto termination date. R.C. 3105.171(A )(2)(a) and
(b); Bowen v. Bowen (1999), 132 Ohio App.3d 616, 630; Badovick v. Badovick (1998),
128 Ohio App.3d 18, 31.
{¶36}
Initially, defendant contends the trial court erred in ruling a pretrial motion
must be filed before the court would consider a de facto termination date. Contrary to
defendant’s contention, the trial court did not aff irmatively rule it would not consider a de
facto termination date because defendant failed to file a motion requesting same. Rather,
No. 02AP-836
9
the court considered the issue, even though it note d defendant did not file a motion for the
court to establish a de facto termination date. Aft er finding defendant did not present
sufficient evidence at the final hearing to establi sh a de facto termination date, the court
found the marriage terminated on the date of the fi nal hearing, in accord with the statutory
presumption of R.C. 3105.171(A)(2)(a). (July 19, 20 02 Decision and Judgment Entry, 6.)
{¶37}
Next, defendant maintains the trial court, in selec ting the date of the final
hearing as the termination date of the common law m arriage, improperly disregarded its
March 9, 2001 judgment entry in which it already ha d determined the marital relationship
ended in 1989 to 1990.
{¶38}
Without question, the trial court stated in its Mar ch 9, 2001 decision and
judgment entry that plaintiff and defendant’s marri age “essentially ended” and the parties
separated sometime in late 1989 to mid-1990. The st atements, however, were made in
conjunction with the court’s finding that it lacked personal jurisdiction over defendant and
were not the trial court’s express findings pursuan t to R.C. 3105.171 regarding the
duration of the marriage. Further, even if the cour t found plaintiff and defendant had
separated and the marriage “essentially ended” in 1 989 or 1990, the court acted within its
discretion in selecting the date of trial, rather t han the earlier date of separation, as the
date the marital relationship legally terminated pu rsuant to R.C. 3105.171. Bowen, supra;
Stafinsky v. Stafinsky (1996), 116 Ohio App.3d 781 (determining a trial co urt does not
abuse its discretion in choosing the final hearing date rather than the date of separation
as the date a marriage terminates). Accordingly, de fendant’s fifth assignment of error is
overruled.
{¶39}
Third-party defendant, Mary Kvinta, also takes issue with the marital
termination date the trial court selected. Defendant purported to marry Mary Kvinta
sometime before February 1997, when defendant conve yed an interest in the Mansfield
property to her as his “wife.” In her third assignm ent of error, Mary Kvinta asserts the trial
court’s decision not choosing an earlier de facto t ermination date nullified her status as
Charles Kvinta’s new “wife,” thus depriving her of the incidents and benefits flowing from
the marriage.
No. 02AP-836
10
{¶40}
Although Mary and Charles Kvinta contend they are m arried, the record
reflects no documentary or testimonial evidence that establishes, and no affirmative
finding of the trial court that recognizes, the exi stence of a valid marriage between
Charles Kvinta and Mary Kvinta. Moreover, absent ev idence in the record to that effect,
Mary Kvinta has not shown the trial court was under any obligation to consider her
purported marriage to Charles Kvinta when it select ed the marital termination date in
plaintiff’s legal separation action. Accordingly, t hird-party defendant Mary Kvinta’s third
assignment of error is overruled.
{¶41}
Defendant Charles Kvinta’s fourth and sixth assignm ents of error together
assert the trial court erred in awarding real estat e located in Mansfield, Ohio, to plaintiff.
{¶42}
R.C. 3105.171(B) provides that “[i]n divorce procee dings, the court shall,
and in legal separation proceedings upon the reques t of either spouse, the court may,
determine what constitutes marital property and wha t constitutes separate property. In
either case, upon making such a determination, the court shall divide the marital and
separate property equitably between the spouses, in accordance with this section. For
purposes of this section, the court has jurisdictio n over all property in which one or both
spouses have an interest .” (Emphasis added.) Pursuant to subsection (A)(3)( a) of the
statute, “marital property” includes all real prope rty currently owned by either spouse, or in
which either spouse currently has an interest, that was acquired by either spouse during
the marriage.
{¶43}
Defendant purchased and took sole title to the real property in Mansfield,
Ohio, in 1992. Thereafter, plaintiff and some of th e children lived on the Mansfield
property as their home. Defendant worked and reside d in Kuwait but stayed in the
Mansfield home on his visits to the United States.
{¶44}
On January 9, 1995, when plaintiff filed her compla int for legal separation,
she identified and claimed an interest in the Mansf ield property and requested the court to
award her a judgment of support as a charge against the property. In September 1995,
plaintiff filed a notice of lis pendens in the Rich land County Recorder’s office, the county
where the Mansfield property is located, attesting to her marital interest in the Mansfield
property. Approximately two years later, in 1997, d efendant executed and recorded a
No. 02AP-836
11
quitclaim deed granting third-party defendant Mary Kvinta, as his “wife,” an undivided
one-half interest in the Mansfield property and ret aining an undivided one-half interest in
the property for himself.
{¶45}
In its April 24, 2001 decision sustaining plaintiff ’s motion for new trial, the
trial court found that although the court lacked pe rsonal jurisdiction over defendant, the
court had in rem jurisdiction over the Mansfield pr operty and could make an award of
support to plaintiff from that property. In its fin al judgment of legal separation, the trial
court (1) expressly found the Mansfield property to be “marital property” pursuant to R.C.
3105.171(A)(3)(a)(i) because defendant had acquired it during his marriage to plaintiff,
(2) found defendant owed plaintiff a duty of suppor t that could be satisfied from an award
of the property, and (3) awarded plaintiff the prop erty in its entirety. (July 19, 2002
Decision and Judgment Entry.)
{¶46}
Defendant argues the Mansfield property was his “se parate” property
because he purchased and held sole title to the pro perty after he and plaintiff separated in
1989 or 1990. As noted, however, the trial court fo und, and this court has affirmed,
plaintiff and defendant were still married at the t ime defendant purchased the property.
One spouse’s holding title to property individually does not determine whether the
property is marital property or separate property.
R.C. 3105.171(H). Rather, a
presumption exists that property acquired during marriage is marital property. R.C.
3105.171(A)(3)(a)(i), Lust v. Lust, Wyandot App. No. 16-02-04, 2002-Ohio-3629. Because
defendant purchased the Mansfield property during h is marriage to plaintiff and he has
not presented evidence overcoming a presumption the property is marital property, he
has not shown the trial court abused its discretion in finding the Mansfield property to be
marital property. Id.
{¶47}
Defendant next contends the trial court erred in ru ling the presence of the
real property in Ohio gave the court in rem jurisdi ction to divest defendant of his
ownership interest in the property. Defendant argue s the court lacked authority in the
legal separation action to terminate defendant’s ow nership interest in the property and
award it to plaintiff as payment of spousal support where the court lacked personal
jurisdiction over defendant.
No. 02AP-836
12
{¶48}
A decree of divorce or legal separation is regarded as a judgment in rem
because it determines the marital status, or res, o f the parties. Hager v. Hager (1992), 79
Ohio App.3d 239, 243, citing McGill v. Deming (1887), 44 Ohio St. 645. Only one of the
spouses must be domiciled in the state to give a co urt jurisdiction to terminate the parties’
marriage. Id. A court has jurisdiction, pursuant to R.C. 3105.171(B), over all property in
which one or both spouses have an interest and has the power to divide the property.
Although a court in a divorce or legal separation p roceeding must have personal
jurisdiction over a nonresident defendant to render a personal or monetary judgment of
support against the defendant, personal jurisdictio n over the nonresident defendant is not
required where the court obtains jurisdiction over the defendant’s real property located
within the state and applies the property to a supp ort award. Reed v. Reed (1929), 121
Ohio St. 188; Benner v. Benner (1900), 63 Ohio St. 220; Meadows v. Meadows (1992),
73 Ohio App.3d 316, 320. See, also, R.C. 3105.18(B) (providing an award of spousal
support may be allowed in real property).
{¶49}
If a wife brings an action for support against her nonresident husband,
seeking appropriation of the husband’s real propert y situated within the state as payment
of the requested support, the action is essentially an action in rem. Reed; Benner, supra.
In such an action, the trial court has in rem juris diction to enter judgment awarding the
property as spousal support, despite the court’s la cking personal jurisdiction over the
nonresident defendant, if the nonresident defendant has been duly served notice of the
plaintiff’s petition requesting the court to approp riate the property identified in the petition
and to award the property as spousal support. Id. T he property thereby is brought within
the control and jurisdiction of the court, which ha s the power to adjust the parties’ rights in
the property as an incident of its power to grant a decree of divorce or legal separation.
Reed, supra.
{¶50}
In this case, service of process of plaintiff’s com plaint for legal separation
was made upon defendant, providing defendant notice of plaintiff’s request to the trial
court to appropriate the Mansfield, Ohio property a nd award it to plaintiff as support. The
property thus properly was brought within the contr ol and jurisdiction of the trial court,
which then had the power to adjudicate the parties’ rights in the property, including an
No. 02AP-836
13
award of the property to plaintiff as spousal suppo rt. R.C. 3105.171(B); Reed; Benner;
and Meadows, supra.
{¶51}
Even if the court had jurisdiction to award the Man sfield property in this
action, defendant contends the trial court abused i ts discretion in awarding plaintiff the
Mansfield property in its entirety, where the court not only ignored R.C. 3105.171(C)(1)’s
“requirement” that property be divided equally, but it failed to make written findings of fact
supporting its award as required by R.C. 3105.171(G ).
{¶52}
Contrary to defendant’s contention, pertinent statutes create neither
presumption nor requirement that marital property be divided equally. Instead, a
potentially equal division is merely the starting point of the trial court’s analysis before it
considers other factors. Booth v. Booth (1989), 44 Ohio St.3d 142, 144-145; Cherry v.
Cherry (1981), 66 Ohio St.2d 348, paragraph one of the syl labus. According to R.C.
3105.171(C)(1), marital property is to be divided e qually unless doing so would be
inequitable, in which case the court is to make an equitable division of the property.
“[E]quitable does not necessarily mean equal.” Ellars v. Ellars (1990), 69 Ohio App.3d
712, 720. Instead, the trial court is accorded broa d discretion in deciding what division of
marital property is equitable under the facts and c ircumstances of the case. Cherry, at
paragraph two of the syllabus. For the court to hav e abused its discretion, we look at the
totality of the circumstances and determine whether the court acted unreasonably,
arbitrarily or unconscionably in making its award. Kunkle v. Kunkle (1990), 51 Ohio St.3d
64, 67; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶53}
Here, due to the trial court’s lack of personal jur isdiction over defendant,
defendant’s income and assets outside of Ohio were not subject to discovery or the
court’s jurisdiction. However, evidence produced at trial revealed defendant earned from
$150,000 to $400,000 annually working overseas in t he 1990’s, while plaintiff had modest
earnings during that period. Moreover, in his respo nse to a request for admission,
defendant, through counsel, acknowledged that betwe en 1981 and January 1, 1995, he
acquired a total interest in real and/or personal p roperty valued in excess of $250,000 and
less than $500,000.
No. 02AP-836
14
{¶54}
Although the trial court did not have jurisdiction over defendant’s assets
outside of Ohio, the trial court did have jurisdict ion over the Mansfield, Ohio home. The
record shows defendant purchased the home for $124, 000 in 1992, and the home was
valued at $136,000 at the time of trial. Notably, t he value of the real estate awarded to
plaintiff was approximately half the value of defen dant’s acknowledged property interests.
Thus, upon plaintiff receiving her award, an equal or greater portion of the purported
property interests remained for defendant.
{¶55}
Even if, however, defendant did not receive an equa l share of the parties’
property, the court’s division of the property was nevertheless equitable in light of: (1) the
long duration of the marriage, (2) defendant’s inco me, all of which was outside the reach
of the court, and (3) defendant’s conveyance of a o ne-half interest in the Mansfield
property, in which plaintiff had a marital interest , to his purported new wife, Mary Kvinta.
Because defendant made the conveyance during the pe ndancy of the legal separation
proceedings after he was on notice of plaintiff’s c laim in the marital property, defendant’s
conveyance of the property interest arguably is a c onstructive or actual fraud upon
plaintiff designed to defeat any rights she had in the marital property, although the trial
court made no express finding in that regard. Leathem v. Leathem (1994), 94 Ohio
App.3d 470, 473, appeal not allowed, 70 Ohio St.3d 1454. Under these circumstances,
the trial court appropriately exercised its full eq uitable powers and jurisdiction in this
matter, R.C. 3105.11, and acted within its discreti on in awarding the Mansfield property to
plaintiff in its entirety. Defendant’s fourth and s ixth assignments of error are overruled.
{¶56}
Third-party defendant Mary Kvinta also claims error regarding the court’s
award of the Mansfield property. Together, her firs t two assignments of error assert the
trial court violated her right to procedural due pr ocess because she was not a proper
party to the action when the trial court awarded he r interest in the Mansfield property to
plaintiff. Mary Kvinta contends she was not a prope r party because she never voluntarily
submitted herself to the court’s jurisdiction or wa ived her right to present Civ.R. 12
defenses of lack of jurisdiction and insufficient s ervice of process.
{¶57}
A court obtains personal jurisdiction over a defend ant by (1) service of
process, (2) the voluntary appearance and submissio n of the defendant to the court’s
No. 02AP-836
15
jurisdiction, or (3) other acts the defendant commi ts which constitute a waiver of a
jurisdictional defense. Maryhew v. Yova (1984), 11 Ohio St.3d 154, 156. Pursuant to
Civ.R. 12(H), a defendant waives the affirmative de fenses of lack of jurisdiction over the
person or insufficiency of service of process unles s the defenses are presented (1) by
motion before pleading pursuant to Civ.R. 12(B), (2 ) affirmatively in a responsive pleading
under Civ.R. 8(C), or (3) within an amended pleadin g under Civ.R. 15. State ex rel. The
Plain Dealer Publishing Co. v. Cleveland (1996), 75 Ohio St.3d 31, 33. The failure to
utilize the prescribed methods results in a waiver of the affirmative defenses. Mills v.
Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 60.
{¶58}
In this case, pursuant to plaintiff’s request, Mary Kvinta was joined as a
third-party defendant on June 22, 1998. Although sh e did not file an answer and the
record does not reflect that personal service had b een perfected upon her, Mary Kvinta,
through counsel, filed three separate written motio ns with the trial court in September and
October 1998: a September 25 motion to quash a subp oena served upon defendant
Smith Barney, Inc. to obtain financial information regarding Mary Kvinta, a September 29
amended motion to quash the subpoena, and an Octobe r 13 motion to quash a request
for production of documents served upon Mary Kvinta ’s counsel. The latter motion
included a notice of special appearance by her coun sel, but none of the motions included,
and there was no separate filing of, a Civ.R. 12 mo tion to dismiss plaintiff’s complaint
based on lack of jurisdiction or insufficient servi ce of process. In a May 17, 1999 order,
the trial court denied all three of Mary Kvinta’s m otions and determined that, by filing the
motions, she became a proper party to this action a nd waived her defenses under Civ.R.
12.
{¶59}
Special appearances, where a person would appear in an action without
submitting to the court’s jurisdiction, were abolis hed with the adoption of the Rules of Civil
Procedure in Ohio. Maryhew, supra. The manner for presenting jurisdictional def enses,
and waiver of such defenses, is now prescribed in C iv.R. 12. Here, because Mary Kvinta
filed three written motions with the trial court wi thout including or filing a separate Civ.R.
12(B) motion to dismiss the complaint based on lack of jurisdiction or insufficient service,
she waived the jurisdictional defenses and voluntar ily submitted herself to the court’s
No. 02AP-836
16
jurisdiction. Mills; Maryhew, supra, at 158. Thus, she was a proper party to the action. Id.
Cf. Maryhew, supra (finding two requests made orally, not in writing, by defendant’s
counsel, granted by the trial court, for leave to m ove or otherwise plead in an action
where service was not perfected upon the defendant, did not constitute a waiver of the
defendant’s jurisdictional defenses).
{¶60}
Mary Kvinta next contends that, even if she was ini tially a proper party to
this action, the trial court’s March 9, 2001 decisi on and judgment entry dismissed her as a
party when it dismissed plaintiff’s complaint. Mary Kvinta maintains she was never re-
joined in the action after the court granted plaint iff’s motion for new trial on April 24, 2001
and reinstated the case.
{¶61}
The record reflects that subsequent to the trial co urt’s reinstating the case,
Mary Kvinta’s counsel did not file any motions purs uant to Civ.R. 12(B) objecting to the
court’s reassertion of jurisdiction over Mary Kvint a. To the contrary, her counsel actively
participated in the action and submitted to the tri al court’s jurisdiction by filing various
written motions and supporting memoranda, approving a judgment entry, and appearing
for the final trial on the merits, although her cou nsel did not participate in the trial
proceedings.
{¶62}
Under the foregoing circumstances, Mary Kvinta is d eemed to have
submitted herself to the court’s renewed jurisdiction over the case and waived any
jurisdictional defenses she could have raised under Civ.R. 12(B) after the case was
reinstated. Moreover, where her attorney had an opp ortunity to participate in the trial and
defend her interests in the Mansfield property, Mar y Kvinta was not denied procedural
due process by the trial court’s adjudication of th e interests in the real property.
{¶63}
Accordingly, Mary Kvinta’s first two assignments of error are overruled.
{¶64}
In the two assignments of error presented in her cr oss-appeal, plaintiff Anita
Kvinta asserts the trial court erred in its March 9 , 2001 decision in: (1) refusing to again
consider, upon this court’s remand, whether the tri al court had personal jurisdiction over
defendant pursuant to Civ.R. 4.3(A)(6) from defenda nt’s owning real property in Ohio, and
(2) finding it did not have personal jurisdiction o ver defendant Charles Kvinta pursuant to
Civ.R. 4.3(A)(8) arising out of defendant’s living in the marital relationship in Ohio.
No. 02AP-836
17
{¶65}
Regarding Civ.R. 4.3(A)(6), plaintiff asserts this court’s finding in Kvinta I,
that the trial court did not have personal jurisdic tion over defendant pursuant to Civ.R.
4.3(A)(6), was contrary to law and therefore should not have been followed on remand.
Plaintiff’s assertion is premised on her contention that the Ohio Supreme Court in a legal
separation action in Fraiberg v. Cuyahoga Cty. Court of Common Pleas, Do mestic
Relations Div. (1996), 76 Ohio St.3d 374, found personal jurisdict ion existed over the
defendant in that case pursuant to Civ.R. 4.3(A)(6) .
{¶66}
Initially, we note the Ohio Supreme Court dismissed an appeal of this
court’s decision in Kvinta I. Id., 89 Ohio St.3d 1427. Therefore, on remand, th e trial court
was bound to follow this court’s decision in Kvinta I as the law of the case regarding
Civ.R. 4.3(A)(6). See, e.g., Nolan v. Nolan (1984), 11 Ohio St.3d 1, 4.
{¶67}
Nonetheless, plaintiff’s argument regarding Civ.R. 4.3(A)(6) is not well-
founded. Contrary to plaintiff’s contention, the Su preme Court in Fraiberg did not find
personal jurisdiction existed pursuant to Civ.R. 4. 3(A)(6). Rather, the court expressly
decided that whether Civ.R. 4.3(A)(6) established personal jurisdiction in the legal
separation action was rendered moot when the court found personal jurisdiction vested
under Civ.R. 4.3(A)(8). Fraiberg at 379. The court therefore did not discuss whethe r
Civ.R. 4.3(A)(6) could provide a basis for personal jurisdiction in a legal separation action.
Id. Plaintiff’s second assignment of error is overr uled.
{¶68}
Plaintiff next asserts the trial court erred in its application of law and fact in
determining Civ.R. 4.3(A)(8) does not confer person al jurisdiction over defendant.
{¶69}
Personal jurisdiction over a defendant is premised on that person’s
minimum contacts with the forum state “such that th e maintenance of the suit does not
offend ‘traditional notions of fair play and substa ntial justice.’ ” International Shoe Co. v.
Washington (1945), 326 U.S. 310, 316, 66 S.Ct. 154, 158, quoti ng Milliken v. Meyer
(1940), 311 U. S. 457, 463, 61 S.Ct. 339, 343. “ ‘T he unilateral activity of those who claim
some relationship with a nonresident defendant cann ot satisfy the requirement of contact
with the forum State * * *. [I]t is essential in ea ch case that there be some act by which the
defendant purposely avails [him]self of the privile ge of conducting activities within the
No. 02AP-836
18
forum State * * *.’ ” Kulko v. California Superior Court (1978), 436 U.S. 84, 93-94, 98 S.Ct.
1690, 1698, quoting Hanson v. Denckla (1958), 357 U.S. 235, 253, 78 S.Ct. 1228, 1240.
{¶70}
R.C. 2307.382, Ohio’s long-arm statute, authorizes the exercise of personal
jurisdiction over nonresident defendants. Civ.R. 4. 3 provides for service and determines
the “minimum contacts” necessary to effectuate that jurisdiction. Kvinta I, citing Kentucky
Oaks Mall Co. v. Mitchell’s Formal Wear, Inc. (1990), 53 Ohio St.3d 73, 75. Civ.R.
4.3(A)(8) states, in pertinent part:
{¶71}
“Service of process may be made outside of this sta te * * * in any action in
this state, upon a person who, at the time of servi ce of process, is a nonresident of this
state or is a resident of this state who is absent from this state. ‘Person’ includes an
individual * * * who * * * has caused an event to o ccur out of which the claim that is the
subject of the complaint arose, from the person’s:
{¶72}
“* * *
{¶73}
“Living in the marital relationship within this sta te notwithstanding
subsequent departure from this state, as to all obl igations arising for spousal support,
custody, child support, or property settlement, if the other party to the marital relationship
continues to reside in this state[.]”
{¶74}
In determining the propriety of personal jurisdiction based on Civ.R.
4.3(A)(8), the dispositive issue is “whether the no nresident defendant lived in a marital
relationship within the state to an extent sufficie nt to satisfy the minimum-contacts
requirement of constitutional due process.” Fraiberg at 377-378. The trial court’s
determination whether personal jurisdiction exists over a party is a question of law that we
review de novo. Robinson v. Koch Refining Co. (June 17, 1999), Franklin App. No. 98AP-
900.
{¶75}
According to evidence presented to the trial court, plaintiff and defendant
were born and raised in Ohio, initially married in Ohio in 1966, had five children, and then
divorced in Ohio in 1979, after which defendant lef t the state and moved frequently. At
defendant’s request in 1981, plaintiff and the mino r children moved to Kansas, where
plaintiff and defendant commenced a common law marr iage. Thereafter, plaintiff and the
children continued to live and move with defendant to Oklahoma, Texas, and Cyprus. In
No. 02AP-836
19
1989, plaintiff left Cyprus and moved back to the U nited States, living in New Jersey and
New York, while some of the children remained with defendant in Cyprus.
{¶76}
In 1991, defendant moved to Kuwait, where plaintiff visited but did not live.
In 1991 or 1992, plaintiff and the minor children m oved to Ohio, where defendant
purchased a home in Mansfield for plaintiff and the children to live in and sent them
money for living expenses. As they had in other pla ces they lived, plaintiff and defendant
joined a parish in Mansfield and attended some dinn ers, events and services together.
Plaintiff testified defendant “visited” plaintiff a nd the children in Ohio during “vacations,”
usually twice a year for about a month each time, b ut he always returned to Kuwait where