Nichols v. Nichols

[Cite as Nichols v. Nichols, 2026-Ohio-1445.]




                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                                PIKE COUNTY

MELISSA K. NICHOLS,            :
                               :
     Plaintiff-Appellee,       :    Case No. 25CA937
                               :
     v.                        :
                               :    DECISION AND JUDGMENT
DARRELL L. NICHOLS, JR.,       :    ENTRY
                               :
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Stephen K. Sesser, Benson & Sesser, LLC, Chillicothe, Ohio, for appellant.

Marie Hoover, Hoover Law Group, LLC, Portsmouth, Ohio, for appellee.
_____________________________________________________________

Smith, P.J.

        {¶1} Darrell L. Nichols, Jr., “Husband,” appeals the Judgment Entry

entered February 6, 2025 by the Pike County Court of Common Pleas,

Domestic Relations Division. The judgment entry resolved competing

motions between Husband and his former spouse, Melissa K. Nichols,

“Wife.” Husband raises three assignments of error challenging (1) the

court’s jurisdiction in the matter; (2) the court’s failure to grant a

continuance at the motions hearing; and (3) an alleged lack of service of

Wife’s multi-branch motion upon Husband.
Pike App. No. 25CA937                                                           2


      {¶2} Based on our review, we find no merit to the second and third

assignments of error. Accordingly, those assignments of error are hereby

overruled. However, we sustain the first assignment of error, in part, and

overrule the remaining portion. Accordingly, the judgment is reversed in

part and remanded for proceedings consistent with this opinion.

               FACTUAL AND PROCEDURAL BACKGROUND

      {¶3} The parties were married in 2005. Two children were born

during the marriage, K.N., a female, in 2009, and C.N., a male, in 2012.

Wife filed a complaint for divorce on October 25, 2021. Husband filed an

answer and counterclaim. Both parties requested equitable division of

marital property and debt, and allocation of parental rights. Of note, at the

time the complaint was filed, the parties owned two homes at 2044 and 2060

Shuster Road in Pike County, and one home in Virginia Beach, Virginia.

      {¶4} During the underlying divorce proceedings, Wife resided in

Virginia, while Husband resided in Pike County. Various issues arose

regarding the temporary orders, including shared parenting. The parties

filed various competing motions. Both parties were represented by counsel.

      {¶5} The matter proceeded to a final hearing on September 8, 2023.

On October 6, 2023, the trial court filed its decision and judgment entry,

noting that, post-hearing, neither party had presented the court with a written
Pike App. No. 25CA937                                                            3


separation agreement or read a statement of the issues into the record.

Therefore, the trial court proceeded to make its equitable division of marital

property and shared parenting determinations based on the evidence

presented at the final hearing.

      {¶6} On November 1, 2023, the trial court filed a Decision and

Judgment Entry Nunc Pro Tunc. As with the first entry, the trial court

reserved jurisdiction over the “completion, filing, qualification and/or

approval of any document necessary to transfer assets.” And, as with the

underlying proceedings, post-divorce, matters between Husband and Wife

continued to be contentious.

      {¶7} On November 7, 2024, Wife filed plaintiff’s multi-branch

motion. Generally, Branch One concerned distribution of insurance

proceeds. Branch Two concerned division of the parties’ motor vehicles,

and distribution of proceeds. Branch Three requested that the court order

Husband be solely responsible for deficiency balance on a “zero-turn”

mower and that Wife be held harmless on the debt. Branch Four requested

reimbursement of 50 percent of medical expenses. Branch Five requested

modification of parenting time.

      {¶8} On November 22, 2024, Husband filed a motion for contempt,

asserting that Wife had interfered with parenting time. The competing
Pike App. No. 25CA937                                                          4


motions came on for hearing on January 17, 2025. On that date, Husband

appeared without an attorney. Despite Husband’s indication that he would

“love to have” an attorney, the trial court proceeded to take testimony from

Husband and Wife.

      {¶9} At the conclusion of the hearing, the trial court dismissed

Husband’s contempt motion. The trial court granted the first four branches

of Wife’s motion. As to Branch Five, the trial court ordered that each party

submit a proposed parenting schedule within two weeks.

      {¶10} Counsel for Wife submitted a judgment entry for review on

January 8, 2025. On February 3, 2025, a notice of appearance on behalf of

Husband was filed. On February 6, 2025, the trial court filed the judgment

entry submitted by Wife’s counsel, subject of this appeal. Also, on February

6, 2025, Husband’s counsel filed a motion for new hearing.

      {¶11} On February 24, 2025, Husband’s counsel filed a motion to set

aside judgment entry, referencing the appealed-from entry. On March 5,

2025, Husband filed notice of appeal. On March 12, 2025, the trial court

granted a stay, pending appeal. Additional facts are set forth below.

                        ASSIGNMENTS OF ERROR

      I.     THE TRIAL COURT ERRED IN REVALUING
             AND DISTRIBUTING PROPERTY AS IT
             LACKED JURISDICTION.
Pike App. No. 25CA937                                                          5


      II.    THE TRIAL COURT ERRED IN FAILING TO
             GRANT A CONTINUANCE TO THE
             DEFENDANT IN ORDER TO OBTAIN
             COUNSEL.

      III.   THE TRIAL COURT ERRED IN ITS FEBRUARY
             6, 2025 DECISION AND JUDGMENT ENTRY
             WHEN IT CONSIDERED THE PLAINTIFF’S
             MULTIBRANCH MOTION WITHOUT PROPER
             SERVICE ON THE DEFENDANT.

                     Assignment of Error Two and Three

      {¶12} For ease of analysis and because these facts are interrelated, we

begin with joint consideration of Husband’s second and third assignments of

error. Under the third assignment of error, Husband asserts that the trial

court should not have held the motions hearing given that proper service of

Wife’s multibranch motion was not made. Under the second assignment of

error, Husband contends that the trial court erred by not granting a

continuance. For the reasons which follow, we find these arguments are

without merit.

                            Standard of Review - Service

      {¶13} We review a trial court's findings regarding proper service for

an abuse of discretion. See Sears v. Sears, 2022-Ohio-2898, ¶ 15 (4th Dist.);

Lawless v. Henderson, 2025-Ohio- (12th Dist.). An abuse of discretion

implies the trial court's attitude is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Pike App. No. 25CA937                                                             6


                                  Legal Analysis

      {¶14} Civ.R. 5 governs the service and filing of pleadings and other

papers subsequent to the original complaint. See Goodman v. Goodman,

2021-Ohio-3169, at ¶ 9 (4th Dist.). Civ.R. 5(A) provides as follows:

            Except as otherwise provided in these rules, every
      order required by its terms to be served, every pleading
      subsequent to the original complaint unless the court
      otherwise orders because of numerous defendants, every
      paper relating to discovery required to be served upon a
      party unless the court otherwise orders, every written
      motion other than one which may be heard ex parte, and
      every written notice, appearance, demand, offer of
      judgment, and similar paper shall be served upon each of
      the parties.


      {¶15} While Civ.R. 5(A) provides that “every written motion other

than one which may be heard ex parte * * * shall be served upon each of the

parties,” if a party is represented by an attorney, then the rules require that

service be made on the party's attorney of record. Civ.R. 5(B)(1). Patel v.

Lambrecht, 2014-Ohio-2953, at ¶ 20 (4th Dist.). “The rational[e] for this

rule is that a party represented by counsel usually speaks through counsel,

and counsel ‘is in a better position to understand the legal import of any

documents required to be served on his or her client and the nature of the

action to be taken.’ ” Parallel Homes, L.L.C. v. Stephens, 2014-Ohio-840,

¶ 12 (1st Dist.), quoting Swander Ditch Landowners' Assn. v. Joint Bd. of
Pike App. No. 25CA937                                                         7


Huron & Seneca Cty. Commrs., 51 Ohio St.3d 131, 134 (1990).

Furthermore, service pursuant to Civil Rule 5 may be made by “mailing it to

the person's last known address by United States mail, in which event

service is complete upon mailing.” (Emphasis added.) Civ.R. 5(B)(2)(c);

Patel at ¶ 21. A served document “shall be accompanied by a completed

proof of service which shall state the date and manner of service * * * and

be signed in accordance with Civ.R. 11. Documents filed with the court

shall not be considered until proof of service is endorsed thereon or

separately filed.” Civ.R. 5(B)(3).

      {¶16} We begin by observing that the complaint reflects Husband’s

address as 2044 Schuster Road. The record reflects that on December 30,

2021, Husband filed a motion for exclusive use of 2044 Schuster Road as his

residence address. In this motion, Husband specifically stated:

             Additionally, the aforementioned property [2044
      Schuster Road] contains a second house (commonly
      known as 2060 Schuster Road, Piketon, Ohio 45661),
      which is listed on the same parcel number of the marital
      residence, and that house is currently prepared for rental
      to a third party and for the benefit of the parties in this
      case. Defendant actively manages and maintains that
      house on the property for the rental purposes. And, the
      parties have agreed to divide rental income from the
      property to apply to marital bills. Defendant requests that
      the exclusive use order extend to both residential
      structures on the real estate.
Pike App. No. 25CA937                                                          8


Thereafter, on February 15, 2022, the trial court filed an Entry on Temporary

Orders which stated that the parties had reached an agreement that the

parties should list for sale the property known as 2044 Schuster Road. The

court did grant exclusive use as to the 2044 address but is silent as to the

2060 address. On September 26, 2022, Wife filed a Notice of Relocation

with the court.

      {¶17} On May 22, 2023, the court filed an Entry which indicated that

Husband requested an order for genetic testing of the minor children, which

the court granted. On September 8, 2023, Husband’s trial brief indicated

that the marital residence at 2044 Schuster Road “was sold in December

2022.” Absent from the record is, thereafter, any notice updating

Husband’s residence address. The brief listed 2060 and 2044 Schuster Road

as properties still owned by the parties. Husband’s brief further stated: “It is

unknown if Mother has complied with this Court’s recent Order for paternity

testing Father has complied and no results have been delivered.”

      {¶18} Wife’s trial brief reflected the same information regarding the

residential properties. However, attached to Wife’s trial brief were two

documents, official in nature and signed by an administrative officer of Pike

County CSEA, captioned “CSEA Administrative Order Establishment of

Paternity.” These documents listed Father’s address as 2060 Schuster Road.
Pike App. No. 25CA937                                                        9


It appears that even though the 2044 property was sold, that address was

carried through on all pleadings as the case continued.

      {¶19} The trial court’s Decision and Judgment Entry and Decision and

Judgment Entry Nunc Pro Tunc both set forth Husband’s address as 2044

Schuster Road. Both documents note that Husband was “physically living”

in Paducah, Kentucky, but maintained a residence in Ohio. Each order also

contained a notice in all capital letters that “EACH PARTY TO THE

SUPPORT ORDER MUST NOTIFY THE CHILD SUPPORT

ENFORCEMENT AGENCY IN WRITING OF HIS OR HER CURRENT

MAILING ADDRESS.”

      {¶20} The information about Husband’s residence is conflicting prior

to the divorce decree and thereafter. On March 28, 2024, Wife attempted to

file a motion with regards to the children’s upcoming spring break. The

motion requested service upon Husband’s attorney and upon Husband at

2044 Schuster Road. The record shows a notice of failure of service at the

2044 address. The notice stated as follows:

             You are hereby notified of the failure of service
      upon: DARRELL L. NICHOLS, JR., which was
      attempted by CERTIFIED MAIL. The reason stated on
      the return, if any, for failure of service is UNCLAIMED
      (ON BACK OF ENVELOPE, SOMEONE WROTE
      ADDITIONAL ADDRESS; 2060 SCHUSTER RD.,
      PIKETON, OH 45661.)
Pike App. No. 25CA937                                                        10


      {¶21} Wife filed the multi-branch motion on November 7, 2024. As

part of the motion, she requested modification of parenting time. Attached

in support was a Parenting Proceeding Affidavit. Thereon, Wife was

required to provide information regarding any case which might affect the

current case, including any cases relating to custody, domestic violence, etc.

Wife attached a docket sheet from McCracken County Circuit Court in

Kentucky, indicating that Husband had two criminal charges pending.

Husband’s address on the docket sheet is listed as 2060 Schuster Road,

Piketon, Ohio 45661.

      {¶22} Husband contends that 2060 Schuster Road was incorrect as his

residence. Thus, service of process was not made in a manner reasonably

calculated to apprise him of the multi-branch motion. For the reasons which

follow, we disagree.

      {¶23} We set forth the following discussion with the trial court at the

beginning of the motions hearing, which also relates to Husband’s argument

that he was denied a continuance. At the January 17, 2025 hearing, the trial

court inquired as follows:

      The Court: We are on the record. I’m going to go ahead and call the

                   case….We are here today on a couple of matters. We’ve

                   a multi-branch motion filed by Plaintiff…And the
Pike App. No. 25CA937                                                          11


                   Defendant filed a pro se motion for contempt over

                   visitation as well. And Plaintiff is present in court and

                   she’s represented by her attorney….The Defendant is

                   present in court. And do you have an attorney:

      Nichols:     No.

      Court:       Plan on getting one?

      Nichols:     I would love to.

      Court:       Okay. The only thing though is we’re set for a final

                   hearing today.

      Nichols:     Okay.

      Court:       And this has been pending for a good long time. I

                   believe both parties, I think at one point lived out of state

                   as well. So - -

      Nichols:     Um- - this - - the notice that I got, I looked at the records,

                   and it was sent to the wrong address.

      Court:       Okay.

      Nichols:     And the notice that I did get, I stopped in here when I

                   filed this - - charges. And she printed me out a copy of

                   it.

      Court:       Okay.
Pike App. No. 25CA937                                                               12


      Nichols:      And I believe I got the official notice for this hearing two

                    weeks ago in the mail.

      Court:        Okay. Did you move or something then, or?

      Nichols:      No, it was the same address that I always had. They- -

                    they just mailed it to the wrong spot.

      Hoover:       2060. Is that where he is?

      Nichols:      Hmm. Hmm.

      Court:        Okay. Where do you get mail to?

      Nichols:      2044.

      Hoover:       Your Honor, the instructions for service said 2060

                    Schuster Road.

      Court:        Okay.

      Hoover:       Is that where he lives?

      Nichols:      Hmm, hmm. That’s the notice I got two weeks ago, yes.

      Court:        Okay. Well, are the parties ready to proceed?

      Hoover:       The Plaintiff is ready, Your Honor.

      Court:        Okay. You ready?

      Nichols:      Hmm, hmm.

      {¶24} Based upon our review of the record and hearing transcript, we

find that the trial court did not abuse its discretion in implicitly finding that
Pike App. No. 25CA937                                                         13


Husband was properly served with the multi-branch motion. We find the

record is replete with evidence that service at 2060 Schuster Road was

reasonably calculated to reach Husband and give him an opportunity to

respond.

      {¶25} We think it reasonable to assume that when Husband requested

genetic testing, he was the person who provided CSEA with the address of

2060 Schuster Road. The circumstantial evidence of criminal charges

pending in Kentucky also makes it reasonable to presume that Husband is

the person who would have provided his own personal information to

Kentucky authorities and listed his residence address as 2060 Schuster Road,

Piketon, Ohio. We observe that when Husband filed his own motion for

contempt on November 22, 2024, pro se, he listed his address as 2060

Schuster Road four separate times on the pleading. Also convincing is

Husband’s own language in his request for exclusive use of the 2044

residence that the properties are listed on one parcel and that he actively

oversees and manages both 2044 and 2060. See also Akron-Canton

Regional Airport Authority v. Swinehart, 62 Ohio St.2d 403 (1980) (While

this court has found that certified mail service served at a property used

solely for investment, i.e., rental purposes did not meet requirements of due

process, as long as service is reasonably calculated to reach interested
Pike App. No. 25CA937                                                            14


parties, certified mail can comport with due process and each case must be

examined on its particular facts).

      {¶26} Wife points out that the multi-branch motion was also served

upon Jason Miller, Husband’s former attorney, on November 7, 2024. And,

as Wife correctly observes, Husband received a copy of the motion when he

filed his own motion for contempt on November 22, 2024, and he physically

attended the January 2025 hearing. See Price v. Combs, 2016-Ohio-429, at ¶

22 (2d Dist.) (because personal jurisdiction over a defendant can be obtained

not only by proper service of process, but by a defendant’s voluntary

appearance or actions, Combs waived objection to the alleged lack of service

and personal jurisdiction by participating in the proceedings). See also

Toledo v. AH & TQ, Inc., 2023-Ohio-2790, at ¶ 26 (6th Dist.).

      {¶27} We also note that credibility determinations lie with the trier of

fact. See State v. Hinton, 2025-Ohio-2291, at ¶ 18 (4th Dist.). In this case,

given his at least two-year history with these parties, the trial court was in

the best position to determine Husband’s credibility when he spoke before

the hearing about his alleged lack of awareness of the multi-branch motion.

Based on our review, we find the trial court did not abuse its discretion in

finding proper service of the multi-branch motion. It appears that every

effort was made to ensure that service of the multi-branch motion was
Pike App. No. 25CA937                                                             15


reasonably calculated to reach Husband. Accordingly, the third assignment

of error is without merit and is hereby overruled.

                         Assignment of Error Two - Continuance

                                   Standard of Review

          {¶28} The decision regarding a motion to continue is left to the

“broad, sound discretion” of the trial court. Ark Advanced Remediation,

LLC, v. Watson, 2024-Ohio-2874, at ¶ 28 (4th dist.), citing State v. Unger,

67 Ohio St.2d 65, (1981), syllabus; Snyder v. Waldron, 2013-Ohio-3416, ¶

41 (4th Dist.); State v. Dickess, 2009-Ohio-4541, ¶ 9 (4th Dist.).

Consequently, absent an abuse of discretion, a reviewing court will not

disturb a trial court's decision. Fultz v. Fultz, 2014-Ohio-3344, ¶ 17-18 (4th

Dist.).

          {¶29} However, “it is a cardinal rule of appellate procedure that ‘an

appellate court will not consider any error which could have been brought to

the trial court's attention and hence avoided or otherwise corrected.’ ”

Sprouse v Miller, 2008-Ohio-4384, at ¶ 11 (4th Dist.), quoting Schade v.

Carnegie Body Co., 70 Ohio St.2d 207, 210 (1982). A party waives and

may not raise on appeal any error that arises during the trial court

proceedings if that party fails to bring the error to the court's attention, by

objection or otherwise, at a time when the trial court could avoid or correct
Pike App. No. 25CA937                                                           16


the error. Goldfuss v. Davidson, 1997-Ohio-401. A failure to object at trial

waives all but plain error. Id. The plain error doctrine is applicable in civil

cases only where the error “seriously affects the basic fairness, integrity, or

public reputation of the judicial process.” Id. at syllabus. Thus, we are

limited to plain error review of Husband’s argument.

                                    Legal Analysis

      {¶30} Husband directs our attention to the well-established law set

forth in State v. Unger, 67 Ohio St.2d 65 (1981), syllabus, regarding a trial

court’s grant or denial of a continuance. There, the Supreme Court of Ohio

discussed a five-factor test a trial court must consider when deciding a

motion for continuance. Husband points out that (1) he had never requested

or received a prior continuance; (2) that he desired a continuance in order to

obtain legal counsel, and not for an improper purpose, i.e., delay; (3) and

that Husband was not properly served with the multi-branch motion and

even when he received a copy of the hearing notice, he only had two weeks,

a very limited time in which to obtain an attorney. Based on these factors,

Husband asserts that the trial court abused its discretion in denying

continuance, given the circumstances.

      {¶31} While it is a “basic due process right and indeed essential to a

fair trial that a defense counsel be afforded the reasonable opportunity to
Pike App. No. 25CA937                                                              17


prepare his case,” State v. Sowders, 4 Ohio St.3d 143, 144 (1983), not every

denial of a continuance violates due process. Unger, supra, 376 U.S. at 589.

See also State v. Stevers, 2023-Ohio-3050, at ¶ 21 (4th Dist.). This Court

has also held that, “nothing requires trial courts to specifically articulate an

analysis of each Unger factor.” State v. Dickens, 2009-Ohio-4541, ¶ 13 (4th

Dist.); Fultz, supra, at ¶ 20. Further, absent evidence to the contrary, we

“must presume that the trial court applied the law [in this case, the Unger

factors] correctly.” State v. Combs, 18 Ohio St.3d 123, 125 (1985); Hartt v.

Munobe, 67 Ohio St.3d 3, 7 (1993)

      {¶32} We will not revisit the facts as set forth at length above. As

previously discussed, the trial court noted that both parties were present and

asked Husband if he had an attorney and if he “plan[ned] on getting one.”

Husband replied, “I would love to.” Nothing further was discussed

regarding Husband’s desire to obtain an attorney. Husband did not request a

continuance or voice any suggestion which could be construed as an

objection.

      {¶33} To begin, we have found that proper service was made, so

Husband’s asserted lack of awareness of the multi-branch motion is without

merit. Husband next points out that he needed a continuance in order to

obtain legal counsel. However, Husband admitted that he received a copy of
Pike App. No. 25CA937                                                         18


the multi-branch motion when he filed his own motion for contempt in late

November, which was nearly two months before the January 2025 hearing.

While he may not have had a hearing date until later, nothing would have

prevented him from seeking an attorney once he had a copy of the multi-

branch motion. Finally, Husband attended the hearing and participated in it

without formal request for a continuance. See Calvalry SPV 1, L.L.C. v.

Furtado, 2005-Ohio-6884 (10th Dist.) (In final analysis, defendant never

requested a continuance, thus, trial court did not abuse its discretion or

commit plain error in failing to perceive a motion for continuance in

defendant's message to the court).

      {¶34} Again, the trial court’s credibility determination was likely a

factor in his decision to continue on with the hearing. We cannot find that

the trial court abused its discretion or committed plain error when it failed to

perceive a request for continuance of the motion hearing. Based on the

foregoing, the second assignment of error is also without merit. It is hereby

overruled.




                        Assignment of Error One -Jurisdiction
Pike App. No. 25CA937                                                                                    19


         {¶35} We next turn to Husband’s first assignment of error, wherein

Husband generally contends that the trial court erred by granting Wife’s

multi-branch motion. Husband generally asserts that in doing so, the trial

court lacked jurisdiction to re-value and distribute the property as previously

decided in the original divorce decree, i.e., the decision and judgment entry

nunc pro tunc. In particular, Husband points to Branch Two of Wife’s

multi-branch motion.1

                                    Standard of Review

         {¶36} We review a trial court's jurisdictional determination as a

matter of law. See Enyart v. Taylor, 2013-Ohio-4893, at ¶ 13 (4th dist.);

Sullivan v. Sullivan, 2010-Ohio-3064, at ¶ 14 (6th Dist.), citing Swayne v.

Newman, 131 Ohio App.3d 793, 795 (4th Dist.1998); see also Danzig v.

Biron, 2008-Ohio-209, at ¶ 13 (4th Dist.). Accordingly, we afford no

deference to a trial court's assessment of its jurisdiction, but, rather,

independently review whether a court properly determined its jurisdiction to

hear a matter.

                                                Legal Analysis


1
  App.R. 16(A)(7) provides: “The appellant shall include in its brief * * * [a]n 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.” Because the only part of the record Husband has cited is Branch Two of the multi-branch
motion, we limit our consideration of his argument accordingly. See Watson v. Highland Ridge Water and
Sewer Assn., Inc., 2013-Ohio-1640, at ¶ 17. Also, this Court is not required to make or root out arguments
on behalf of an appellant. See In re T.F., 2025-Ohio-5384, at ¶ 20 (4th Dist.).
Pike App. No. 25CA937                                                          20


      {¶37} Once a court has made an equitable property division, it has no

jurisdiction to modify its decision. See Martin v. Howard, 2009-Ohio-67, ¶

7 (4th Dist.), citing R.C. 3105.171(I); Pierron v. Pierron, 2008-Ohio-1286, ¶

6 (4th Dist.). However, a court retains jurisdiction to “ ‘clarify and construe

its original property division so as to effectuate its judgment.’ ” Knapp v.

Knapp, 2005-Ohio-7105 at ¶ 40 (4th Dist.), quoting McKinley v. McKinley,

2000 WL 897994, *4 (4th Dist.). Although a trial court has broad discretion

to clarify the terms of its previous decree, the court may not “ ‘vary from,

enlarge, or diminish the relief embodied in the final decree.’ ” Pontious v.

Pontious, 2011-Ohio-40, ¶ 11 (4th Dist.), quoting Knapp at ¶ 40.

      {¶38} Wife’s request under Branch Two of the multibranch motion is

as follows:

            Ex-Wife moves the court to order Ex-Husband to
      provide proof of the sale of the vehicles: To whom the
      vehicles were sold? What were the selling prices of each
      vehicle? Ex-Wife moves the Court to order Ex-Husband
      to pay Ex-Wife 50% of the proceeds.

             Ex-Wife requests this Court set forth time frames on
      returning or picking up the cars and any money owed to
      Ex-Wife needs to have time frame and location provided
      on how Ex-Wife can pick it up or receive it. Ex-Wife also
      requests a court order restraining the Ex-Husband from
      damaging or causing the vehicles to not run for any of the
      cars.
Pike App. No. 25CA937                                                         21


      {¶39} Regarding these vehicles, the trial court’s Decision and

Judgment Entry Nunc Pro Tunc, (original divorce decree) November 1,

2023, provided as follows:

                                 FINDINGS

             The Court finds that the parties did not present the
      Court with a written Separation Agreement or read a
      settlement of all issues into the record. Based upon the
      evidence presented by the parties, the Court makes the
      findings set forth herein upon which it makes a fair and
      equitable division of property and debts and an appropriate
      resolution of all issues of the parties.

             O. AUTOMOBILES            Value         Debt

             2007 Toyota Tacoma        $13,000.00 $0.00
             (Plaintiff)

             2005 Subaru Impreza       $7,600.00     $0.00
             (Defendant)

      {¶40} This court previously noted in Pierron: “In essence, a court

may construe an ambiguous decree, but it must enforce an unambiguous one

as it is written.” Id. at ¶ 7; see also Parsons v. Parsons, 1997 WL 473675, at

*2 (4th Dist.) The initial determination of whether an ambiguity exists

presents an abstract legal question, which we review on a de novo basis. See

Pierron, at ¶ 8; Stewart v. Stewart, 1992 WL 388546, at *2 (4th Dist.).

“Should we determine that an ambiguity exists, we would then afford the

trial court discretion to clarify the intent of the agreement. But where no
Pike App. No. 25CA937                                                         22


ambiguity exists, both the trial court and this Court are required to apply it as

written, i.e., as a matter of law.” Stewart, supra, quoting Latino v.

Woodpath Development Co., 57 Ohio St.3d 212, 214 (1991).

      {¶41} As we have previously explained, “[c]ontractual terms are

ambiguous if the meaning of the terms cannot be deciphered from reading

the entire contract or if the terms are reasonably susceptible of more than

one interpretation.” Lewis v. Mathes, 2005-Ohio-1975, at ¶ 19; (4th Dist.);

Pierron, at ¶ 8. However, mere silence on an issue or a failure to address it

does not create an ambiguity where none otherwise exists. See Pierron, at ¶

10; Thomas v. Thomas, 2001 WL 422967, at *5 (10th Dist.) (“[T]he divorce

decree is not ambiguous because the trial court failed to award the defendant

interest on her pension distribution when it could have done so.”).

      {¶42} Here, the trial court’s order is unambiguous. In the original

divorce decree (Decision and Judgment Entry Nunc Pro Tunc), the trial

court ordered:

             The following vehicles and equipment [s]hall be
      sold at auction, or by private sale upon agreement of the
      parties, and the proceeds shall be divided equally between
      the parties: 2007 Toyota Tacoma, 2005 Subaru Impreza,
      [and 11 additional vehicles and/or vehicle parts].

      {¶43} In the appealed-from entry at Paragraph Four, the trial court

ordered:
Pike App. No. 25CA937                                                        23


             Defendant Darrell L. Nichols, Jr. shall provide to
      Plaintiff proof of the sales of the marital vehicles and
      equipment, [with the exception of the 2007 Toyota
      Tacoma and the 2005 Subaru Impreza]. Proof of sales
      shall include receipts for any cash received by Defendant;
      copies of checks received by Defendant; deposits in
      Defendant’s account(s) of any monies received for the
      vehicles; and/or any other proof showing monies being
      paid to Defendant for the vehicles. Defendant shall
      provide a list to Plaintiff demonstrating to whom of the
      vehicles were sold; and 2) the selling prices of each
      vehicle as previously ordered by the Court. The
      Defendant shall pay to Plaintiff 50% of the proceeds for
      the sale of the vehicles by certified check within 30 days
      of journalization of this judgment entry…

      {¶44} The trial court’s original divorce decree specified 13 vehicles to

be sold and the proceeds split. Most of these vehicles appeared to be in

Husband’s possession. We find the trial court’s provisions for the sale of

motor vehicles and division of proceeds in the court’s original order are

unambiguous. Therefore, to the extent that the trial court ordered Husband

to provide proof of sale and division of proceeds of the vehicles (excluding

the Toyota Tacoma and Subaru Impreza), we view the court’s order to be

simple enforcement of the original divorce decree.

      {¶45} However, in our view, portions of the trial court’s appealed-

from order do involve revaluing and redistributing, which we find to be

modifications of the original divorce decree. As noted above at ¶ 42, the

trial court included the 2007 Toyota Tacoma and the 2005 Subaru Impreza
Pike App. No. 25CA937                                                        24


as vehicles which “shall be sold at auction, or by private sale upon the

agreement of parties in the divorce decree.” Yet, in the appealed-from entry,

the trial court ordered as follows at Paragraphs Six, Seven, and Eight:

            The Court finds that the 2007 Toyota Tacoma has
      not been sold pursuant to the parties’ divorce decree. The
      Court finds that the value of the 2007 Toyota Tacoma is
      $3,074.50. Plaintiff shall receive the 2007 Toyota Tacoma
      free and clear of any claims of defendant upon Plaintiff
      paying Defendant the amount of $1,537.25 which
      represents Defendant’s 50% interest in the motor vehicle.
      Plaintiff shall pay $1,537.25 to Defendant.

             The Court finds that the 2005 Subaru Impreza has
      not been sold pursuant to the parties’ divorce decree. The
      Court finds that the value of the 2005 Subaru Impreza is
      $5,958. Plaintiff shall receive the 2005 Subaru Impreza
      free and clear of any claims of Defendant upon Plaintiff
      paying Defendant the amount of $2,979 which represents
      Defendant’s 50% interest in the motor vehicle. Plaintiff
      shall pay $2,979 to Defendant.

            Plaintiff shall retrieve the 2005 Subaru Impreza
      upon her payment of the $2,979 to Defendant.

      {¶46} At the time of the divorce, the Toyota Tacoma and Subaru

Impreza were listed with values of $13,000 and $7,600, respectively. The

divorce decree included those vehicles as ones to be sold at auction or by

private sale upon agreement of parties. This did not occur.

      {¶47} In Pierron, we found that the trial court impermissibly

modified its prior division of marital property by effectively giving Ms.

Pierron a greater share of an employee savings plan account. The original
Pike App. No. 25CA937                                                         25


divorce decree unambiguously set an effective date of termination of the

marriage as July 11, 2006. Later the trial court decided that the value would

be as of February 9, 2005. It was an impermissible modification. Pierron,

at ¶ 14.

       {¶49} Herein, the divorce decree unambiguously ordered that all

vehicles be sold at auction or privately, by agreement. The parties have been

unable to agree. As in Pierron, we find that the trial court impermissibly

modified its prior order by assigning new values (accurate as they may be)

and ordering that Wife take possession of the Subaru Impreza. The trial

court could not construe the decree in an attempt to equitably modify it.

Husband’s first assignment of error is sustained in part and reversed in part.

       {¶50} Accordingly, we reverse the portion of the judgment with

regard to the disposition of the Toyota Tacoma and Subaru Impreza and

remand the cause to the trial court for further proceedings consistent with

this opinion.

           JUDGMENT REVERSED IN PART AND CAUSE REMANDED.



                           JUDGMENT ENTRY

    It is ordered that the JUDGMENT BE REVERSED IN PART AND
CAUSE REMANDED and costs be assessed to appellee.

       The Court finds there were reasonable grounds for this appeal.
Pike App. No. 25CA937                                                       26



       It is ordered that a special mandate issue out of this Court directing
the Pike County Common Pleas Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hess, J. and Wilkin, J., concur in Judgment and Opinion.



                                For the Court,


                                ________________________
                                Jason P. Smith
                                Presiding Judge

                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 22, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.