Panayirci v. Panayirci ( 2014 )

[Cite as Panayirci v. Panayirci, 2014-Ohio-1862.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
SHARON L. PANAYIRCI nka REED :
Plaintiff-Appellee : C.A. CASE NO. 25857
v. : T.C. NO. 06DR610
MEHMET V. PANAYIRCI : (Civil appeal from Common
Pleas Court, Domestic Relations)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of May , 2014.
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MARK EDWARD STONE, Atty. Reg. No. 0024486, 3836 Dayton-Xenia Road,
Beavercreek, Ohio 45432
Attorney for Plaintiff-Appellee
JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 130 W. Second Street, Suite 840, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Mehmet
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Panayirci, filed August 6, 2013. Panayirci appeals from the July 9, 2013 Decision and
Judgment of the domestic relations court that overruled his motion and amended motion to
find Sharon Reed, Panayirci’s former wife, in contempt of court for violating the terms of
the parties’ final divorce decree. We hereby affirm the judgment of the trial court.
{¶ 2} The record reflects that the parties were married on March 1, 1985, in
Fairborn, Ohio, and that Reed filed a complaint for divorce on May 25, 2006. The parties’
May 8, 2008 Final Decree and Judgment of Divorce, which incorporated their agreement and
was read into the record by counsel for Panayirci, provides in relevant part:
***
REAL ESTATE.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREE[D]
that the parties have real estate located at 9259 Artz Road, New Carlisle,
Ohio 45344, 9297 Artz Road, New Carlisle, Ohio, 9201 Artz Road, New
Carlisle, Ohio, and 4365 Lisa Drive, Tipp City, Ohio 45371. All properties
are listed for sale. Out of the net proceeds from the sale as defined herein the
Plaintiff shall receive $1,000,000.00 subject to the following terms. The
Lisa Drive property has been sold. The sum remaining is $264,000.00 in
said escrow account. Plaintiff shall receive $164,000.00 towards her
$1,000,000.00 award subject to the following terms. The remaining
$100,000.00 of the escrow account shall be available to pay the following;
mortgage, insurance, real estate taxes, any realtor ordered repairs which
would include the broken pipes and any other repairs at one of the residence
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(sic) and all closing costs prior to the sale of any of the four properties. The
$100,000.00 from the Lisa Drive property shall be available to pay these
expenses.
The one-half costs of the above defined expenses shall be a deduction
from the $1,000,000.00 award to the Plaintiff. Any monies left over from
the $100,000.00 escrow held on the Lisa Drive property, not used if all
properties are sold, shall be equally divided between the parties or applied to
the Plaintiff’s award. Should the $100,000.00 prior to the sale of all
properties being sold not cover the mortgage, insurance, real estate taxes and
any realtor required repairs and all closing costs shall (sic) be a joint expense
of the parties and would be a further reduction with 50% of that cost charged
to the Plaintiff and deducted from the $1,000,000.00 award. The parties shall
cooperate with the realtor. When any of the properties sell the Plaintiff shall
be entitled to the proceeds of said property subject to the $1,000,000.00
award less the expenses stated herein. * * *
After one year from March 25, 2008 if the properties are not sold or if
there is still a sum remaining for the $1,000,000.00 award less the expenses
as stated herein the Defendant shall endeavor to refinance his ownership of
the Technology Blvd. property to pay the difference necessary to equal the
$1,000,000.00 award less the expenses stated. Defendant shall have 90 days
after the one year in which to do the refinancing from March 25, 2008. The
Court shall keep continuing jurisdiction of this real estate property settlement
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matter subject to unforeseen circumstances dealing with the real estate
market, money markets, and any other incidents or events which would affect
the ability to sell or obtain funds which cannot be reasonably anticipated.
Plaintiff’s receipt of the $164,000.00 shall be a reduction from the
$1,000,000.00 award subject to the expenses mentioned herein.
IT IS FURTHER ORDERED AND AGREED that the Defendant
shall be the owner of the property located at 7900 Technology Blvd., Huber
Heights, Ohio. * * * Defendant shall be responsible for the mortgage, taxes,
and interest associated with the property located at 7900 Technology Blvd.,
Huber Heights, Ohio, indemnifying and saving the Plaintiff harmless
including the insurance thereon.
{¶ 3} On June 9, 2011, Panayirci filed a motion requesting payment of money for
expenses arising from the sale of 9297 Artz Road. His motion provides as follows:
1. Defendant requests that from the sale of the property located at
9297 Artz Road, New Carlisle, Ohio 45344 he receive from the Plaintiff’s
share one-half of the expenses he has paid on all of the properties per the
Final Decree and Judgment of Divorce being $45,709.68.
2. Defendant requests that there be monies held in escrow from the
sums going to the Plaintiff for her to pay one-half of the expenses which she
has not paid since 2006 which the Defendant has paid faithfully following the
realtor’s directions. Further, the Defendant has paid the expenses for all the
properties in accordance with the terms of the Final Decree and Judgment of
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Divorce.
{¶ 4} On September 26, 2011, after a hearing, an Agreed Order was issued, signed
by the parties that provides that Reed “shall be paid $203,574.84 from the sale of the real
property located at 9297 Artz Road, New Carlisle, Ohio 43544, after deduction of
$45,709.68 for her share of their expenses related to the parties’ properties through April 30,
2011 which $45,709.68 shall be paid to the defendant.”
{¶ 5} On November 1, 2011, Panayirci filed a “Motion for Contempt” in which he
asserted that he “has not received any of the monies due for the cost of the mortgages and
expenses regarding the parties’ properties per their Final Decree and Judgment of Divorce.”
On December 22, 2011, Reed filed a “Motion to Clarify Expenses Pursuant to the Final
Judgment and Decree of Divorce; Motion for Attorney Fees; Notice and Order to Appear;
Notice of Hearing.” On March 8, 2012, Panayirci filed an “Amended Motion for
Contempt,” in which he asserted that Reed “has failed to pay to the Defendant expenses for
the marital properties per the parties[’] Final Decree and Judgment of Divorce from the
period of May 1, 2011 to February 29, 2012 being her one-half sum of $27,425.20.”
{¶ 6} The Magistrate issued a decision on September 4, 2012, after a hearing.
The Magistrate determined in part that the “terms of the decree are confusing as to the
payment of the expenses on the real estate. The defendant has paid the expenses on 7900
Technology Boulevard; however, there is a question as to whether the court ordered the
expenses to be paid as they are incurred or when the properties were sold.” The Magistrate
noted that it “further appears that both parties are using two of the properties, and the decree
is silent as to these arrangements. The defendant is residing at 9259 Artz Road, and the
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plaintiff is using the property at 9201 Artz Road.” The Magistrate concluded that it
“appears to be fair and equitable that the plaintiff be responsible for any expenses related to
the property at 9201 Artz Road and that the defendant be responsible for any expenses and
repairs related to the property at 9259 Artz Road from the time of the divorce until the
property is sold.” The magistrate determined that the parties “shall equally share the
expenses and repairs on any other properties not yet sold, except 7900 Technology
Boulevard, to be paid when the properties are sold.”
{¶ 7} Panayirci filed objections on September 18, 2012. He asserted in relevant
part as follows:
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2. Defendant states that he objects to the finding on the real estate,
finding expenses on the properties are to be paid at the closing. In the Final
Decree and Judgment of Divorce under the real estate it clearly states
expenses of the properties will be paid by the party (sic). Those have to be
paid as they come. Monthly mortgage, utilities, maintenance, yard, and
trimming all have to be paid. Each party is to pay and there is nothing
stating the expenses are linked to a sale.
Panayirci further asserted that the Magistrate’s order requiring Reed to pay the expenses at
9201 Artz Road and Panayirci to pay the expenses at 9259 Artz Road “is a modification of
the agreement which is outside the bounds of the agreement. Further, the Magistrate’s
Decision discusses expenses and repairs. Does expenses include the mortgages? He just
states expenses and repairs.” On January 16, 2013, Panayirci filed supplemental objections.
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{¶ 8} On February 19, 2013, Reed filed “Plaintiff’s Memorandum in Opposition to
Defendant’s Objections.” Therein she asserted that the Final Decree “envisions Defendant
paying 100% of the expenses as they are incurred, and also envisions Plaintiff reimbursing
Defendant for Plaintiff’s 50% share of those expenses by having Plaintiff’s 50% share
‘deducted from the $1,000,000.00 award’ that the Final Decree entitles Plaintiff to receive
from the proceeds from the sale of the real estate or otherwise from Defendant.” Reed
further asserted that, since Panayirci has been residing at 9259 Artz Road, “the order
requiring Defendant to pay all of the expenses related to the property at 9259 Artz Road is
authorized by the ‘continuing jurisdiction’ language” in the Final Decree. On February 26,
2013, Panayirci filed a reply.
{¶ 9} In its Decision and Judgment, the domestic relations court noted that it
conducted an independent review, and that the “primary issue before the Court relates to the
payment of enumerated expenses incurred in the process of selling each parcel of land.”
The court determined as follows:
The Court has reviewed the language of the REAL ESTATE section
of the final decree. The plain reading of the decree reflects that plaintiff is
entitled to receive $1,000,000.00 from the sale of four (4) parcels of marital
properties. The proceeds from the sales are subject to a share of expenses
which include “mortgage, insurance, real estate taxes, any realtor ordered
repairs . . . , and any other repairs at one of the residences and all closing
costs prior to the sale of any of the four properties.” At the time of their
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divorce, one property had been sold from which plaintiff received
$164,000.00 towards the $1,000,000.00 award. An additional $100,000.00
from the sale of that property was placed in escrow to offset the above
enumerated expenses for the sale of the remaining properties.
If after one year from March 25, 2008 the properties were not sold,
defendant “shall endeavor to refinance his ownership of the Technology Blvd.
property to pay the differences necessary to equal the $1,000,000.00 award
less the expenses stated.”
The court finds no ambiguity in this language. At the time the
properties are sold, the above referenced expenses are tabulated and divided
between the parties. Any resultant profit or loss would be credited towards
plaintiff’s $1,000,000.00 award.
The evidence presented at trial supports the argument that defendant
had made reasonable efforts to refinance the Technology Blvd. property but
was unable to secure the loan. * * *
The Court finds defendant’s argument that all expenses are to be
shared as they occur is not supported by the plain language of the divorce
decree. Those expenses are to be tabulated and resolved at the time each
property is sold.
Defendant’s objections to the Magistrate’s Decision and Permanent
Order filed September 4, 2012 are without merit and are overruled.
{¶ 10} The court ordered as follows:
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1. Plaintiff’s motion to find defendant in contempt filed December
22, 2011 is overruled in its entirety.
2. Defendant’s motion filed November 1, 2011 and amended March
8, 2012, is denied in its entirety.
3. Plaintiff shall be responsible for any expenses related to the
property at 9201 Artz Road and the defendant shall be responsible for any
expenses and repairs to the property at 9259 Artz Road from the time of the
divorce until the property is sold. The parties shall equally share the
expenses and repairs on any other properties not yet sold, except for 7900
Technology Boulevard, to be paid when the properties are sold.
***
{¶ 11} Panayirci asserts three assignments of error herein. We will consider his
first and third assigned errors together. They are as follows:
“THE TRIAL COURT’S DECISION IS CONTRARY TO THE BASIC,
STRAIGHTFORWARD LANGUAGE OF THE FINAL JUDGMENT AND DECREE OF
DIVORCE FILED MAY 8, 2008.”
And,
“THE COURT FAILED TO HOLD APPELLEE LIABLE FOR EXPENSES
REGARDING ALL THE PROPERTIES NOT YET SOLD, WHICH INCLUDED THE
MOTIONS OF 11/1/11 AND 3/8/12. THE EXPENSES INCLUDED ARE FROM
5/1/11-2/12/12, FOR A TOTAL IN EXCESS OF $27,425.20.”
{¶ 12} As this Court has previously determined:
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“When interpreting a divorce decree that incorporates the parties'
separation agreement, as does the decree involved in the present case, the
normal rules of contract interpretation generally apply to ascertain the
meaning of its language. (Citation omitted). Because the construction of a
written contract is a matter of law, the same is reviewed without deference to
the trial court's determination. (Citation omitted).
“When construing contract language, the principal goal is to effectuate
the parties' intent. (Citations omitted). ‘The intent of the parties to a contract
is presumed to reside in the language they chose to employ in the agreement.’
(Citation omitted).” Wallace v. Wallace, Greene App. No.2006 CA 136,
2008-Ohio-205, ¶ 12-13. “[W]hen the parties' agreement is integrated into an
unambiguous written contract, courts should give effect to the plain meaning
of the parties' expressed intentions.” Id., ¶ 13. Meyers v. Meyers, 2d Dist.
Greene No. 2011 CA 9, 2011-Ohio-5968, ¶ 20-21.
“An ambiguity exists when a provision in an order or decree is reasonably susceptible of
more than one meaning.” McKinney v. McKinney, 142 Ohio App. 3d 604, 609, 756 N.E.2d
694 (2d Dist. 2001).
{¶ 13} We agree with the trial court’s determination that the parties’ final decree
lacks ambiguity, and that it is susceptible to one interpretation, namely that Reed’s share of
the expenses associated with the properties until they are sold is to be deducted from her
award of $1,000,000.00. The decree provides, after addressing the $100,000.00 in escrow,
that the “one-half costs of the above defined expenses shall be a deduction from the
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$1,000,000.00 award to the Plaintiff.” In other words, Reed’s $50,000.00 share of the
amount in escrow from the sale of the property was charged against her award to pay for
expenses. Since the $100,000.00 was exhausted prior to the sale of the two remaining
properties, the ongoing “mortgage, insurance, real estate taxes and any realtor required
repairs and all closing costs” are to be equally shared by the parties, and as to Reed, by
means of “a further reduction with 50% of that cost charged to the Plaintiff and deducted
from the $1,000,000.00 award.” The decree further provides that “[w]hen any of the
properties sell the Plaintiff shall be entitled to the proceeds of said property subject to the
$1,000,000.00 award less the expenses stated herein.” Accordingly, the decree is clear that
Reed is to receive the proceeds from the sales of the properties up to the amount of her
award minus her share of the enumerated expenses. This interpretation is consistent with
Panayirci’s assertion in his June 9, 2011 motion that he “has paid the expenses for all the
properties in accordance with the terms of the Final Decree and Judgment of Divorce.” To
interpret the decree as Panayirci suggests would render the repetitive language that Reed’s
share of the expenses is charged to her, and deducted from her award, meaningless.
{¶ 14} There being no merit to Panayici’s first and third assigned errors, they are
overruled.
{¶ 15} Panayirci’s second assigned error is as follows:
THE COURT VIOLATED THE PLAIN LANGUAGE OF THE
FINAL JUDGMENT AND DECREE OF DIVORCE WHEN IT ORDERED
THAT APPELLEE SHALL BE RESPONSIBLE FOR THE EXPENSES AT
9201 ARTZ ROAD AND APPELLANT SHALL BE RESPONSIBLE FOR
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EXPENSES AT 9259 ARTZ ROAD FROM THE TIME OF DIVORCE
UNTIL THE PROPERTY IS SOLD.
{¶ 16} We cannot conclude that the trial court violated the terms of the parties’
Final Decree by requiring Reed to pay the expenses at 9201 Artz Road until it is sold, and
Panayirci to continue to pay the expenses at 9259 Artz Road, until it is sold, with both
parties’ expenses to be tabulated and divided between the parties at the time each property is
sold. The decree provides: “The Court shall keep continuing jurisdiction of this real estate
property settlement matter subject to unforeseen circumstances dealing with the real estate
market, money markets, and any other incidents or events which would affect the ability to
sell or obtain funds which cannot be reasonably anticipated.” The parties have been unable
to sell the two remaining properties. Reed is using the property at 9201 Artz Road, and
Panyirci is residing at the property at 9259 Artz Road. We note that Panyirci’s obligation to
pay the expenses at 9259 Artz Road remains unchanged, pursuant to the plain language of
the final decree.
{¶ 17} Panayirci’s second assigned error is overruled, and the judgment of the trial
court is affirmed.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
Mark Edward Stone
James R. Kirkland
Hon. Denise L. Cross