Schwamb v. Eckard

2021 Ohio 2825

• Court: Ohio Court of Appeals
• Decided: August 12, 2021
• Docket: 2020 CA 00084
• Status: Published

Opinion

[Cite as Schwamb v. Eckard, 2021-Ohio-2825.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JENNIFER L. SCHWAMB JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 CA 00084 MATTHEW L. ECKARD

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Domestic Relations Division, Case No. 2020 DR 00617

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: August 12, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JENNIFER L. SCHWAMB MATTHEW L. ECKARD 161 S. 36th Street 5560 Chestnut Hills Road Newark, Ohio 43055 Newark, Ohio 43055 Licking County, Case No. 2020 CA 00084 2

Hoffman, J. {¶1} Plaintiff-appellant Jennifer L. Schwamb appeals the December 3, 2020

Judgment Entry - Decree of Divorce entered by the Licking County Court of Common

Pleas, Domestic Relations Division, which granted a divorce to her and defendant-

appellee Matthew L. Eckard1 and divided the parties' marital assets and debts.

STATEMENT OF THE CASE

{¶2} Appellant and Appellee were married on October 3, 2013. No children were

born as issue of the marriage, however, the parties each have children from prior

relationships. The parties purchased the marital residence in September, 2016.

Appellant and Appellee physically separated on May 26, 2017. Appellant remained in the

residence and Appellee moved into an apartment.

{¶3} Appellant filed a complaint for divorce on June 26, 2020. Appellee filed an

answer, but did not file a counterclaim for divorce. The trial court conducted a hearing on

November 16, 2020.

{¶4} The parties disputed the duration of the marriage, each presenting

conflicting testimony as to the events prompting Appellee’s departure from the marital

residence and the parties’ behaviors toward one another subsequent thereto. The parties

also disputed the marital and separate contributions made toward the marital residence

and the upkeep thereof.

{¶5} Via Judgment Entry – Decree of Divorce filed December 3, 2020, the trial

court granted the parties a divorce. The trial court found “[t]he period of ‘during the

marriage’ of the parties. . . [was]. . . the dates of October 3, 2013, through the date of the

1 Appellee has not filed a brief in this Appeal. Appellee did, however, write a letter to this Court, which was filed on April 26, 2021, indicating his support of the trial court’s judgment. Licking County, Case No. 2020 CA 00084 3

final hearing, being November 9, 2020 [sic].” Id. at 8. The trial court also found Appellant

contributed $3,759.03 of her separate property toward the marital residence. The trial

court determined the property was comprised of 92% marital property and 8% separate

property. The trial court awarded Appellant one-half of the marital equity and the full

amount it found to be her separate property.

{¶6} It is from the December 3, 2020 Judgment Entry – Decree of Divorce

Appellant prosecutes this appeal.

{¶7} We begin by noting Appellant has failed to comply with App. R. 16, which

provides:

Brief of the Appellant. The appellant shall include in its brief, under

the headings and in the order indicated, all of the following:

(1) A table of contents, with page references.

(2) A table of cases alphabetically arranged, statutes, and other

authorities cited, with references to the pages of the brief where cited.

(3) A statement of the assignments of error presented for review, with

reference to the place in the record where each error is reflected.

(4) A statement of the issues presented for review, with references

to the assignments of error to which each issue relates.

(5) A statement of the case briefly describing the nature of the case,

the course of proceedings, and the disposition in the court below. Licking County, Case No. 2020 CA 00084 4

(6) A statement of facts relevant to the assignments of error

presented for review, with appropriate references to the record in

accordance with division (D) of this rule.

(7) An argument containing the contentions of the appellant with

respect to each assignment of error presented for review and the reasons

in support of the contentions, with citations to the authorities, statutes, and

parts of the record on which appellant relies. The argument may be

preceded by a summary.

(8) A conclusion briefly stating the precise relief sought.

{¶8} Appellant's brief does not satisfy the requirements of App. 16(A); therefore,

is noncompliant. Compliance with the above-stated rule is mandatory. Zanesville v.

Robinson, 5th Dist. Muskingum App. No. 09-CA-39, 2010-Ohio-4843, ¶ 26. “It is not the

function of this court to construct a foundation for [an appellant's] claims; failure to comply

with the rules governing practice in the appellate court is a tactic which is ordinarily fatal.”

Musleve v. Musleve, 5th Dist. Stark App. No. 2007CA00314, 2008-Ohio-3961, ¶ 21. Such

deficiencies permit this court to dismiss Appellant's appeal. State v. Darby, 5th Dist.

Richland App. No. 2019 CA 0013, 2019-Ohio-2186, ¶¶ 21-24.

{¶9} Pursuant to App.R. 12(A)(2), we are not required to address issues which

are not argued separately as assignments of error, as required by App.R. 16(A). Kremer

v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (1996); Hawley v. Ritley, 35 Ohio St.3d

157, 159, 519 N.E.2d 390 (1988). We understand Appellant has filed this appeal pro se.

Nevertheless, “like members of the bar, pro se litigants are required to comply with rules Licking County, Case No. 2020 CA 00084 5

of practice and procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116,

2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-

2128, ¶ 11. Richland County, Case No. 2020 CA 0005 4. Although “an appellate court will

ordinarily indulge a pro se litigant where there is some semblance of compliance with the

appellate rules,” Oyler v. Oyler, 5th Dist. Stark App. No. 2014CA00015, 2014-Ohio-3468,

¶¶ 18-19, we find Appellant's noncompliance with the appellate rules is significant and

her brief lacks any cogent argument. “[F]airness and justice are best served when a court

disposes of a case on the merits”, however, we find this brief reflects a substantial

disregard for the court rules which cannot be cured. DeHart v. Aetna Life Ins. Co., 69

Ohio St.2d 189, 193, 431 N.E.2d 644 (1982). We “may not construct legal arguments in

support of an appellant's appeal.” Whitehall v. Ruckman, 10th Dist. No. 07AP-445, 2007-

Ohio-6780, ¶ 20, quoting State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-

943, ¶ 94 (10th Dist.), appeal not allowed, 110 Ohio St.3d 1439, 2006-Ohio-3862,

reconsideration denied, 111 Ohio St.3d 1418, 2006–Ohio–5083.

{¶10} Because we find Appellant’s brief so completely in derogation of App.R. 16,

we dismiss her appeal for want of prosecution pursuant to App.R. 18(C) and Loc.App.R.

5(B).

{¶11} Assuming, arguendo, we had found Appellant’s brief sufficient, upon review

of the trial court's December 3, 2020 Judgment Entry – Decree of Divorce, we would not

have concluded the trial court abused its discretion in its overall distribution of the parties’

marital assets and debts. Licking County, Case No. 2020 CA 00084 6

{¶12} Appellant's appeal is dismissed.

By: Hoffman, J. Baldwin, P.J. and Wise, Earle, J. concur