[Cite as Deitz v. Deitz, 2014-Ohio-3531.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
KRISTEN DEITZ C.A. No. 13CA0030 Appellee
v. APPEAL FROM JUDGMENT THEODORE DEITZ ENTERED IN THE COURT OF COMMON PLEAS Defendant COUNTY OF WAYNE, OHIO CASE No. 12-DR-0217 and
WILMA DEITZ
Appellant
and
MATTHEW DEITZ
DECISION AND JOURNAL ENTRY
Dated: August 18, 2014
WHITMORE, Judge.
{¶1} Appellants, Wilma Deitz and Matthew Deitz, appeal from the judgment of the
Wayne County Court of Common Pleas, denying their motions for joinder. This Court affirms.
I
{¶2} Wilma Deitz and Matthew Deitz are the mother and brother of Theodore Deitz
(“Husband”). Husband and Appellee, Kristine Deitz (“Wife”), were married in 2001 and had
four children during the course of their marriage. Husband left the marital residence in March 2
2012 and began residing at Wilma’s home where his brother Matthew also resided. In May
2012, Wife filed a complaint for divorce, and Husband filed a counterclaim for the same. A trial
took place before a magistrate on April 9, 2013.
{¶3} At the trial, Wife introduced Exhibit H, a list of cars, trailers, parts, and tools that
she asked to have classified as marital property and sold at auction. Wife elaborated that, due to
his unemployment, Husband had accrued substantial child support arrearages and she hoped to
apply the proceeds from the auction to his arrearages. Wife, Husband, and Wilma all testified at
the trial regarding specific items of property that Wife sought to have classified as marital.
{¶4} On April 23, 2013, the magistrate issued his decision. Relevant to this appeal,
the magistrate ordered that the majority of the items on Exhibit H would be presumed to be
marital property, as Husband had failed to trace those items as his separate property. The
magistrate listed the various items in his decision and ordered that they be sold at public auction.
The trial court adopted the magistrate’s decision on the same day.
{¶5} On May 7, 2013, Husband filed objections to the magistrate’s decision. One of
his objections challenged the distribution of the property on the basis that “some of the property
listed appears to be the property of third parties.” Additionally, on May 23, 2013, Wilma and
Matthew filed identical motions for joinder as party-defendants pursuant to Civ.R. 75(B)(1).
Both attached affidavits to their motions in which they attested that several items of their
personal property had been wrongfully classified as Husband and Wife’s marital property. The
court denied the motions for joinder on the basis that they were “too little, too late.”
{¶6} Wilma and Matthew now appeal from the court’s denial of their motions and raise
one assignment of error for our review. 3
II
Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANTS’ MOTIONS FOR JOINDER PURSUANT TO CIV.R. 75(B)(1).
{¶7} In their sole assignment of error, Wilma and Matthew argue that the trial court
abused its discretion by denying their motions for joinder pursuant to Civ.R. 75(B)(1). We
disagree.
{¶8} Civ.R. 75(B) governs the joinder of parties in divorce proceedings. Pursuant to
Civ.R. 75(B)(1), “[a] person * * * claiming an interest in property, whether real, personal, or
mixed, out of which a party seeks a division of marital property, a distributive award, or an
award of spousal support or other support, may be made a party defendant.” Joinder under
Civ.R. 75(B)(1) “is within the sound discretion of the trial court.” Gest v. Gest, 9th Dist. Lorain
No. 96CA006580, 1998 WL 208872, *2 (Apr. 29, 1998). “The trial court may, in the exercise of
its discretion, allow [joinder] when the trial court believes that [a] third-party’s interest in the
property * * * need[s] to be protected within the divorce action.” Foster v. Foster, 9th Dist.
Medina No. 1735, 1989 WL 1632, *2 (Jan. 11, 1989). Consequently, this Court applies an abuse
of discretion standard of review when reviewing a trial court’s decision on a motion under Civ.R.
75(B)(1). Id. An abuse of discretion implies an attitude on the part of the trial court that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶9} Wife introduced Exhibit H at trial and specified that she was asking the court to
classify all of the items listed on the exhibit as marital property. Wife testified that she had
compiled Exhibit H from memory, as she did not know what property Husband currently had in
his possession. Exhibit H was, therefore, vague in its descriptions. For example, while Wife 4
listed several cars by year and model, she listed others as “Car purchased on Ebay by Ted
recently,” “Box truck,” “Duster,” and “Satellite.” None of the items on the list had VIN
numbers, serial numbers, or other features that might specifically identify them. Meanwhile,
Husband made no attempt to fully inventory the property in his possession. He also never
produced any titles or receipts for any of the property. Instead, Husband testified that several of
the items were his separate property because he had inherited them. He never testified, however,
that Exhibit H included items that belonged to other people.
{¶10} Wilma, Husband’s mother, also testified at trial. She was asked about several
specific items or groups of items (e.g., tools) and testified that Husband had inherited the items.
Wilma acknowledged that she owned property on which a pole barn and several storage
containers were located. She also testified that the pole barn contained property belonging to
Husband, as well as property belonging to her and possibly to her other son, Matthew. Yet,
Wilma did not identify any of the specific property at the pole barn. When asked if she knew
what specific items were located on her property, she testified that she had “a good idea” of what
was there. The record does not contain any reference to Wilma ever having been shown Exhibit
H at trial.
{¶11} Wilma and Matthew filed their motions for joinder one month after the trial court
issued a judgment decree of divorce in this matter. They each submitted affidavits in support of
their motions. In identical paragraphs, they each averred that
[a] number of the personal property items listed in [Wife’s] Exhibit H as referenced in both the Magistrate’s Decision * * * and the Decree of Divorce * * * in Deitz v. Deitz, are my sole and exclusive property.
Wilma and Matthew went on to aver that their “personal property items” did not belong to
Husband or Wife and had been wrongfully classified as marital property. Further, they averred 5
that, until the issuance of the magistrate’s decision and divorce decree, they had no knowledge
that their “personal property items” had been wrongfully classified as marital property.
{¶12} The trial court denied Wilma’s and Matthew’s motions for joinder on the basis
that they were “too little, too late.” We decline to address the court’s conclusion that the motions
were “too late,” as it is not necessary to decide this appeal. With regard to the motions being
“too little,” Civ.R. 75(B)(1) only permits joinder in a divorce action when a person “claim[s] an
interest in property” that is at issue in the action. “The term ‘interest,’ as found in Civ.R.
75(B)(1) means ‘lien or ownership, legal or equitable.’” Shannon v. Shannon, 8th Dist.
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[Cite as Deitz v. Deitz, 2014-Ohio-3531.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
KRISTEN DEITZ C.A. No. 13CA0030 Appellee
v. APPEAL FROM JUDGMENT THEODORE DEITZ ENTERED IN THE COURT OF COMMON PLEAS Defendant COUNTY OF WAYNE, OHIO CASE No. 12-DR-0217 and
WILMA DEITZ
Appellant
and
MATTHEW DEITZ
DECISION AND JOURNAL ENTRY
Dated: August 18, 2014
WHITMORE, Judge.
{¶1} Appellants, Wilma Deitz and Matthew Deitz, appeal from the judgment of the
Wayne County Court of Common Pleas, denying their motions for joinder. This Court affirms.
I
{¶2} Wilma Deitz and Matthew Deitz are the mother and brother of Theodore Deitz
(“Husband”). Husband and Appellee, Kristine Deitz (“Wife”), were married in 2001 and had
four children during the course of their marriage. Husband left the marital residence in March 2
2012 and began residing at Wilma’s home where his brother Matthew also resided. In May
2012, Wife filed a complaint for divorce, and Husband filed a counterclaim for the same. A trial
took place before a magistrate on April 9, 2013.
{¶3} At the trial, Wife introduced Exhibit H, a list of cars, trailers, parts, and tools that
she asked to have classified as marital property and sold at auction. Wife elaborated that, due to
his unemployment, Husband had accrued substantial child support arrearages and she hoped to
apply the proceeds from the auction to his arrearages. Wife, Husband, and Wilma all testified at
the trial regarding specific items of property that Wife sought to have classified as marital.
{¶4} On April 23, 2013, the magistrate issued his decision. Relevant to this appeal,
the magistrate ordered that the majority of the items on Exhibit H would be presumed to be
marital property, as Husband had failed to trace those items as his separate property. The
magistrate listed the various items in his decision and ordered that they be sold at public auction.
The trial court adopted the magistrate’s decision on the same day.
{¶5} On May 7, 2013, Husband filed objections to the magistrate’s decision. One of
his objections challenged the distribution of the property on the basis that “some of the property
listed appears to be the property of third parties.” Additionally, on May 23, 2013, Wilma and
Matthew filed identical motions for joinder as party-defendants pursuant to Civ.R. 75(B)(1).
Both attached affidavits to their motions in which they attested that several items of their
personal property had been wrongfully classified as Husband and Wife’s marital property. The
court denied the motions for joinder on the basis that they were “too little, too late.”
{¶6} Wilma and Matthew now appeal from the court’s denial of their motions and raise
one assignment of error for our review. 3
II
Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANTS’ MOTIONS FOR JOINDER PURSUANT TO CIV.R. 75(B)(1).
{¶7} In their sole assignment of error, Wilma and Matthew argue that the trial court
abused its discretion by denying their motions for joinder pursuant to Civ.R. 75(B)(1). We
disagree.
{¶8} Civ.R. 75(B) governs the joinder of parties in divorce proceedings. Pursuant to
Civ.R. 75(B)(1), “[a] person * * * claiming an interest in property, whether real, personal, or
mixed, out of which a party seeks a division of marital property, a distributive award, or an
award of spousal support or other support, may be made a party defendant.” Joinder under
Civ.R. 75(B)(1) “is within the sound discretion of the trial court.” Gest v. Gest, 9th Dist. Lorain
No. 96CA006580, 1998 WL 208872, *2 (Apr. 29, 1998). “The trial court may, in the exercise of
its discretion, allow [joinder] when the trial court believes that [a] third-party’s interest in the
property * * * need[s] to be protected within the divorce action.” Foster v. Foster, 9th Dist.
Medina No. 1735, 1989 WL 1632, *2 (Jan. 11, 1989). Consequently, this Court applies an abuse
of discretion standard of review when reviewing a trial court’s decision on a motion under Civ.R.
75(B)(1). Id. An abuse of discretion implies an attitude on the part of the trial court that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶9} Wife introduced Exhibit H at trial and specified that she was asking the court to
classify all of the items listed on the exhibit as marital property. Wife testified that she had
compiled Exhibit H from memory, as she did not know what property Husband currently had in
his possession. Exhibit H was, therefore, vague in its descriptions. For example, while Wife 4
listed several cars by year and model, she listed others as “Car purchased on Ebay by Ted
recently,” “Box truck,” “Duster,” and “Satellite.” None of the items on the list had VIN
numbers, serial numbers, or other features that might specifically identify them. Meanwhile,
Husband made no attempt to fully inventory the property in his possession. He also never
produced any titles or receipts for any of the property. Instead, Husband testified that several of
the items were his separate property because he had inherited them. He never testified, however,
that Exhibit H included items that belonged to other people.
{¶10} Wilma, Husband’s mother, also testified at trial. She was asked about several
specific items or groups of items (e.g., tools) and testified that Husband had inherited the items.
Wilma acknowledged that she owned property on which a pole barn and several storage
containers were located. She also testified that the pole barn contained property belonging to
Husband, as well as property belonging to her and possibly to her other son, Matthew. Yet,
Wilma did not identify any of the specific property at the pole barn. When asked if she knew
what specific items were located on her property, she testified that she had “a good idea” of what
was there. The record does not contain any reference to Wilma ever having been shown Exhibit
H at trial.
{¶11} Wilma and Matthew filed their motions for joinder one month after the trial court
issued a judgment decree of divorce in this matter. They each submitted affidavits in support of
their motions. In identical paragraphs, they each averred that
[a] number of the personal property items listed in [Wife’s] Exhibit H as referenced in both the Magistrate’s Decision * * * and the Decree of Divorce * * * in Deitz v. Deitz, are my sole and exclusive property.
Wilma and Matthew went on to aver that their “personal property items” did not belong to
Husband or Wife and had been wrongfully classified as marital property. Further, they averred 5
that, until the issuance of the magistrate’s decision and divorce decree, they had no knowledge
that their “personal property items” had been wrongfully classified as marital property.
{¶12} The trial court denied Wilma’s and Matthew’s motions for joinder on the basis
that they were “too little, too late.” We decline to address the court’s conclusion that the motions
were “too late,” as it is not necessary to decide this appeal. With regard to the motions being
“too little,” Civ.R. 75(B)(1) only permits joinder in a divorce action when a person “claim[s] an
interest in property” that is at issue in the action. “The term ‘interest,’ as found in Civ.R.
75(B)(1) means ‘lien or ownership, legal or equitable.’” Shannon v. Shannon, 8th Dist.
Cuyahoga No. 61747, 1993 WL 27633, *1 (Feb. 4, 1993), quoting Maher v. Maher, 64 Ohio
App.2d 22, 24 (6th Dist.1978). As the parties seeking to join in Husband and Wife’s divorce
action, Wilma and Matthew bore the burden of sufficiently detailing their respective property
interests and the basis for their claim of ownership. See Brunswick v. Brunswick Hills Twp. Bd.
Trustees, 81 Ohio App.3d 252, 255 (9th Dist.1992) (“It is fundamental that a potential party
seeking to intervene in an action bears the burden of proving an interest therein.”). Upon review
of their motions for joinder, we cannot conclude that the trial court abused its discretion by
denying their respective motions.
{¶13} Although Wilma and Matthew attached affidavits to their motions for joinder, the
affidavits merely claimed a vague interest in a “number of [] personal property items listed in
Plaintiff’s Exhibit H.” Neither Wilma, nor Matthew identified any specific items of personal
property as belonging to them or explained the nature of their exact interest in those items. See
In re M.N., 9th Dist. Wayne No. 07CA0088, 2008-Ohio-3049, ¶ 12 (person’s “mere claim of
right,” absent any evidence of a legal interest, is an insufficient ground upon which to seek
intervention). As previously explained, Exhibit H contained vague descriptions because Wife 6
had compiled it from memory. There was testimony that Husband and Matthew lived with
Wilma. There also was testimony that Husband kept property at Wilma’s pole barn and that the
barn also contained property belonging to Wilma and possibly Matthew. Accordingly, Wilma
and Matthew were both in a position to access and identify any specific items of property
belonging to them and to establish the exact nature of their interest in those items. Neither made
any attempt to do so. We cannot, therefore, conclude that the trial court’s discretionary decision
to deny their motions for joinder was unconscionable, unreasonable, or arbitrary. See Shannon at
*1. See also Velocity Dev., L.L.C. v. Perrysburg Twp. Bd. of Trustees, 6th Dist. Wood No. WD-
11-037, 2011-Ohio-6192, ¶ 17-19; Williams v. Avon, 52 Ohio App.2d 210, 212 (9th Dist.1977).
Compare Huener v. Huener, 110 Ohio App.3d 322, 327 (3d. Dist.1996) (court abused its
discretion by denying parents’ motion to join in son’s divorce proceeding under Civ.R. 75(B)(1)
where the record reflected that they were title owners of the real estate property at issue). Wilma
and Matthew’s sole assignment of error is overruled.
III
{¶14} Wilma and Matthew’s sole assignment of error is overruled. The judgment of the
Wayne County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 7
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
BETH WHITMORE FOR THE COURT
BELFANCE, P. J. HENSAL, J. CONCUR.
APPEARANCES:
BRIAN L. SUMMERS, Attorney at Law, for Appellants.
ROSANNE K. SHRINER, Attorney at Law, for Appellee.