Henry v. Henry , 2009 Ohio 3413 ( 2009 )

[Cite as Henry v. Henry, 2009-Ohio-3413.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
ANGELA D. HENRY,
PLAINTIFF-APPELLANT, CASE NO. 8-08-12
v.
BRIAN E. HENRY, OPINION
DEFENDANT-APPELLEE.
Appeal from Logan County Common Pleas Court
Domestic Relations Division
Trial Court No. DR06-01-0035
Judgment Reversed and Cause Remanded
Date of Decision: July 13, 2009
APPEARANCES:
Angela D. Henry, Appellant
Linda Cushman for Appellee
Case No. 8-08-12
PRESTON, P.J.
{¶1} Plaintiff-appellant, Angela D. Henry (hereinafter “Angela”), appeals
from the Logan County Common Pleas Court’s judgment entry and decree of
divorce. For the reasons that follow, we reverse.
{¶2} Angela and defendant-appellee, Brian E. Henry (hereinafter
“Brian”), were married on June 9, 1999. This was a second marriage for them
both, and while each had children from their previous marriages, no children were
born as issue of this marriage.
{¶3} On January 27, 2006, Angela filed for divorce, and on February 22,
2006, Brian counter-claimed for divorce. The parties separated in March 2006,
and temporary orders were filed on April 5, 2006. Final hearings were conducted
on June 9, 2006, October 5, 2006, and October 12, 2006. The magistrate filed his
decision on February 21, 2007. Both parties objected to parts of the magistrate’s
decision, and on December 24, 2007, the trial court overruled both parties’
objections. On May 13, 2008, the trial court issued its final decree of divorce.
{¶4} Angela now appeals and raises nine assignments of error. Because
of the nature of this appeal, we elect to address all of Angela’s assignments of
error together.
ASSIGNMENT OF ERROR NO. I
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THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION AND WENT AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN NOT CLEARLY
INDICATING WHAT WAS TO BE DISBURSED TO
PLAINTIFF AND HOW AND WHEN, (WITH TIME LIMITS),
PLAINTIFF WAS TO RECEIVE SAID DISBURSEMENTS,
PROPERTY, AND AWARDS AND IN NOT RENDERING AN
ENFORCEABLE, DEFINITIVE, ACTIONABLE JUDGMENT
THAT CAN SUPPORT CONTEMPT PROCEEDINGS AND
OR LAW SUITS WHEN DEFENDANT REFUSES TO
COMPLY WITH THE COURTS ORDERS AGAIN.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION AND WENT AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN NOT STIPULATING AN
AMOUNT TO BE DIVIDED FOR THE RENTS OF THE
LAND THAT IS FARMED AND FOR
DEFENDANT/APPELLEE PROFIT SHARING BONUS FOR
2006.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN THE CALCULATION OF VALUE FOR
THE MARITAL PROPERTY, IN NOT DIVIDING EQUALLY
THE MARITAL PROPERTY, AND IN NOT ORDERING THE
MARITAL PROPERTY SOLD.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION AND WENT AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN NOT CLEARLY
EXPLAINING THE BALANCE SHEET AND CLEARLY
INDICATING DEADLINES ON HOW APPELLANT IS TO
RECEIVE HER MARITAL PORTION AND AWARDS.
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ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN NOT ORDERING THE $20,128.90 IN THE
MARITAL ACCOUNT AT THE TIME OF THE DIVORCE
TO BE AWARDED TO PLAINTIFF FOR FINANCIAL
MISCONDUCT AND FOR NOT ORDERING A QUALIFIED
DOMESTIC RELATIONS ORDER FOR PLAINTIFF TO
RECEIVE THE $20,128.90.
ASSIGNMENT OF ERROR NO. VI
THE TRIAL COURT ERRED, ABUSED ITS DISCRETION
AND WENT AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN NOT AWARDING PLAINTIFF MORE
SPOUSAL SUPPORT FOR LONGER DURATION.
ASSIGNMENT OF ERROR NO. VII
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN NOT RENDERING ORDERS ON THE
$15,000.00 AND THE $3,500.00 THAT DEFENDANT STOLE
FROM THE MARITAL ACCOUNT.
ASSIGNMENT OF ERROR NO. VIII
THE TRIAL COURT ERRED IN NOT ORDERING THE
DEFENDANT TO CONVEY RIGHT TITLE AND INTEREST
TO PLAINTIFF ON THE INHERITED RENTAL
PROPERTIES THAT WERE ADJUDICATED SEPARATE
PROPERTY.
ASSIGNMENT OF ERROR NO. IX
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION AND WENT AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN NOT SETTING OFF THE
COSTS OF THE $467.00 AMOUNT THAT PLAINTIFF HAD
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TO PAY FOR INSURANCE WHEN DEFENDANT, AGAINST
COURTS ORDERS TO KEEP HER ON THE INSURANCE,
REMOVED PLAINTIFF’S VEHCILES’ INSURANCE.
{¶5} After reviewing the entire record, the magistrate’s decision, and the
trial court’s final divorce decree, this Court finds that several of the trial court’s
findings are either inconsistent or unsupported by the record. Because of the
inconsistencies between the magistrate’s decision, the trial court’s decision, and
the trial court’s distribution sheet, we are unable to interpret the trial court’s
judgment entry, and therefore, we cannot analyze Angela’s assignments of error
individually. Instead, we will address the issues as perceived in the judgment
entry as they relate to her assignments of error. Overall, we find issues that
include, but are not limited to the following: (1) the trial court’s distribution of the
equity of the marital home, (2) its distribution with one of the checking accounts,
(3) the division of the sale proceeds of one of the vehicles, (4) the placement of the
marital/separate debt, (5) the absence of Angela’s entitled vehicle insurance
expenses on the trial court’s distribution sheet, and (6) the trial court’s ruling as to
Angela’s temporary spousal support.
{¶6} First, with respect to the trial court’s distribution of the marital
assets, on paper the entire distribution appears to be inequitable. R.C.
3105.171(C); Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 421 N.E.2d 1293.
The total value of the marital assets was found to be $142,868.44, and out of that
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total, the trial court gave Brian $119,246.16, but only gave Angela $23,297.26.
One of the specific issues concerning the seemingly inequitable division of marital
assets concerns the marital home. The record indicates that Brian acquired from
his mother what would later be considered the couple’s marital home (256 County
Road 113 West, Bellefontaine, Ohio) in 1998, which was encumbered by a
mortgage. Later, in 2004, the parties refinanced the mortgage on the marital
home, and both parties’ names were put on the deed and mortgage. The
magistrate found that this property should be considered marital property since the
parties had refinanced the mortgage in order to renovate the home and to purchase
a mobile home for Brian’s mother. (Feb. 21, 2007 Mag. Dec.). In addition, the
magistrate found that the parties had been paying the refinanced mortgage with
marital funds, and since the property had appreciated during the marriage, Angela
was entitled to her respective portion of its appreciated value. (Id.). The trial
court agreed that the home was marital property with a marital value of
approximately $74,000.1 (May 13, 2008 JE at 2). However, in its distribution
sheet, with respect to the marital residence, the trial court gave the full amount of
the home’s appreciated value to Brian. (Id. at 5). It is unclear why, even though
the property was considered marital property, Angela was not given her portion of
the home’s appreciated value, and the trial court failed to explain its distribution.
1
We note that in its distribution sheet, the trial court listed the value for the marital residence as $75,000.
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{¶7} An additional concern regarding the marital home is the fact that the
trial court failed to order the release of Angela’s interest in the land. The deed that
was signed in 2004 was a joint survivorship deed and both parties’ names were put
on it. (Plaintiff’s Ex. 1). Because the trial court gave the property to Brian, it
should have ordered Angela to release her joint survivorship interest in the
property to Brian, like the trial court did with respect to Angela’s separate rental
property.
{¶8} Another problem that this Court finds with the marital assets portion
of the trial court’s distribution sheet is the distribution of the “Checking Account
#3595.” Brian testified that this checking account was his personal account and
that prior to the marriage the account had $1,498.97 in it. (Oct. 12, 2006 Tr. at 19,
39); (Def. Ex. N). However, Angela testified that even though the account was in
Brian’s name, they had together saved up to $20,000 in the account during the
marriage. (Oct. 5, 2006 Tr. at 41). Furthermore, there is evidence in the record
that Brian withdrew at least $15,000 in cash prior to the initiation of the divorce
action, which Angela has consistently claimed amounted to financial misconduct.
(June 9, 2006 Tr. at 113); (Oct. 5, 2006 Tr. at 40-43); (Oct. 12, 2006 Tr. at 39-41);
(Appellant’s Amended Brief at 10, 13); (Addendum to Plaintiff’s Closing
Argument, Doc. No. 72); (Plaintiff’s Obj. to Mag. Order, Doc. No. 113). Because
of Brian’s admission to the withdrawal, the magistrate ordered Brian to place the
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$15,000 in his attorney’s trust account. (June 9, 2006 Tr. at 113-14); (Oct. 12,
2006 Tr. at 40-41); (Def. Ex. R). In its decision, the magistrate held that since
there was no testimony that these funds were separate property, the amount should
be returned to the marital “pot” for distribution. (Feb. 21, 2007 Mag. Dec. at 4-5).
The trial court agreed with the magistrate’s determination that the $15,000
constituted marital property, and found that the magistrate did not err when it had
declined to address Angela’s allegations of Brian’s financial misconduct. (Dec.
24, 2007 JE at 5-6).
{¶9} With that being stated, the trial court’s subsequent final distribution
of the checking account is confusing. In its distribution sheet, the trial court listed
the “Checking Account #3595,” which contained a total of $20,128.00, as marital
property. Then, the trial court stated the distribution as follows:
Marital Dist. H Marital Dist. W Notes
$20,128.00 $0.00 Fin. Misconduct
(May 13, 2008 JE). First, this Court notes that there is nothing in the record that
shows what happened to the $15,000 that was last placed in Brian’s attorney’s
trust account. We presume, based on the above facts, that this money ended up in
checking account #3595; however, we are unable to find anything to substantiate
this claim. Second, it is unclear why the trial court listed the account as marital
property, specifically gave everything to Brian and nothing to Angela, and wrote
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“Fin. Misconduct” in the notes, since it had agreed with the magistrate’s
determination to not address the financial misconduct issue in its prior judgment
entry.
{¶10} In addition to the checking account and marital home, it is unclear
what happened with the distribution of the “1989 Chevy Van.” With other marital
assets, such as the “Go-Kart” and the “white lawn tractor,” the trial court specified
in its “Notes” column that the items were to be sold and the proceeds split evenly
between the parties. (May 13, 2008 JE). With respect to the van, the trial court
listed its marital value as $2,175.00, and split this value ($1,087.50) as between
the parties, but failed to state how this division was to occur. (Id.). At oral
argument, Angela informed this Court that Brian had sold the van, but said that
she never received any of the sale proceeds. After searching the record, this Court
is also unable to find what happened to the proceeds of this alleged sale.
{¶11} Along with finding problems with the trial court’s division of the
marital assets, this Court also has questions with the trial court’s distribution of the
marital/separate debt. For instance, the trial court in its written judgment entry
stated that the residence located at 256 County Road 113 West, Bellefontaine,
Ohio, was marital property, and that Brian was to assume and pay any and all
indebtedness on the property, which was approximately $48,658.00. (May 13,
2008 JE). However, in its distribution sheet, the trial court listed this $48,658.00
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as Brian’s separate debt, which is contrary to its finding that the residence was
marital property. (Id.). It appears that this debt should have been listed on the
spreadsheet in the column titled “Marital Dist. H,” instead of as Brian’s separate
debt.
{¶12} This Court also finds that there were items that Angela was entitled
to receive through previous orders of the court, but were unaccounted for in the
final divorce decree. On June 12, 2007, Angela filed a motion in contempt against
Brian for failing to follow the court’s temporary order restraining the parties from
modifying, terminating, or changing any insurance policies. (Motion for
Contempt, Doc. No. 87). In her motion, Angela alleged that Brian had removed
her name from his automobile insurance policy, and as a result, she had to pay the
premiums from June 1, 2007 until November 7, 2007 in order to maintain her
coverage. (Id.). On December 4, 2007, after conducting a hearing on the matter,
the trial court ordered Brian to “immediately reinstate motor vehicle insurance on
the Plaintiff’s 2003 Chevrolet Malibu,” and restrained him from further
terminating and/or cancelling the coverage until further order of the court. (Dec.
4, 2007 JE, Doc. No. 115). In addition, the trial court granted Angela a “Lump
Sum Judgment against the Defendant in the amount of $648.17, representing the
motor vehicle insurance premiums paid by Plaintiff for the period of June 1, 2007
to November 7, 2007, and the final amount due from Allstate Property &
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Casualty.” (Id.). Moreover, the trial court stated that “[s]aid Lump Sum Judgment
shall be taken into consideration in the final distribution of the parties assets and
debts.” (Id.).
{¶13} To begin with, this Court notes that there are conflicting numbers as
between Angela’s brief and the record. Angela argues that she is entitled to
$467.00, but the trial court’s judgment entry indicates that she is entitled to
$648.17. Regardless of this discrepancy, it is clear that Angela was entitled to the
amount of premiums she paid as a consequence of Brian temporarily removing her
from his policy. As such, this order should have been reflected in the trial court’s
final divorce decree in some manner. However, upon a review of the final divorce
decree and the attached final distribution sheet, this Court is unable to determine
how the trial court accounted for its previously ordered lump sum judgment.
{¶14} Furthermore, this Court also is concerned with the trial court’s ruling
on Angela’s objection to her spousal support award. Soon after filing for divorce,
Angela requested temporary spousal support in the amount of $100 per week. On
April 6, 2006, the magistrate ruled on her motion after considering the parties’
financial affidavits and hearing testimony from each party. In its order, the
magistrate found that Angela worked part time, but that she was allowing her
mother to live rent-free on a jointly owned rental property. (Apr. 6, 2006 Mag.
Dec.). The magistrate stated that Angela was entitled to temporary spousal
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support; however, because Angela could have been receiving approximately $400
per month from her mother, but decided not to charge her mother rent, the
magistrate ordered that the source of Angela’s temporary spousal support should
come from the rental proceeds of this apartment. (Id.). The magistrate stated that
it was up to Angela to determine whether she wanted to charge her mother or
another person rent for that apartment, thereby receiving her spousal support, or
whether she wanted to allow her mother to live in the apartment rent-free. (Id.).
The trial court upheld the magistrate’s order on September 21, 2006. (Sept. 21,
2006 JE).
{¶15} After the final hearings were conducted, the magistrate again
addressed the issue of spousal support in its final decision. (Feb. 21, 2007 Mag.
Dec. at 6). Because the magistrate had found that the rental property, where
Angela’s mother resided, was Angela’s separate property rather than marital
property, the magistrate considered its value ($129,000) and the rental income as
part of Angela’s holdings for purposes of her spousal support. (Id. at 3, 5). In
addition, the magistrate stated that even though Angela currently worked as a
paralegal and earned about $15,000 annually, if she was employed to her full
capacity Angela could earn $25,000 to $30,000 annually. (Id. at 5). Thus, after
considering all of the facts and applying the criteria prescribed in R.C. 3109.19,
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the magistrate recommended spousal support in the amount of $75.00 weekly for a
period of eighteen months. (Id. at 6).
{¶16} Angela objected to the magistrate’s decision arguing that the
magistrate incorrectly found that the rental income from her separate rental
property could form the basis of her spousal support. (Plaintiff’s Obj. to Mag.
Dec., Doc. No. 113). Angela pointed to the rule that spousal support cannot come
from one’s separate, non-marital property. See R.C. 3105.19; Okos v. Okos
(2000), 137 Ohio App.3d 563, 739 N.E.2d 368. As a result, Angela claimed that
the magistrate should have increased her spousal support award to compensate her
for the temporary spousal support that she should have received. (Plaintiff’s Obj.
to Mag. Dec., Doc. No. 113).
{¶17} The trial court overruled her objection on December 24, 2007. (Dec.
24, 2007 JE at 3-4). In its judgment entry, the trial court stated that R.C.
3105.18(B) allowed a court to award either party reasonable temporary spousal
support during the pendency of any divorce proceeding. (Id.). Furthermore, the
trial court found that the purpose of awarding temporary spousal support was to
preserve the status quo during the divorce proceeding, and since the award was an
equitable award pendente lite, it was not necessary to revisit the issue in the final
judgment. (Id. at 4, citing R.C. 3105.18(B); Zeefe v. Zeefe (1998), 125 Ohio
App.3d 600, 709 N.E.2d 208). The trial court stated that while the magistrate later
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found the rental property to be Angela’s separate property, it had also later
determined that Angela was voluntarily under-employed, a fact that had been
brought up by Brian at the temporary spousal support hearing. (Id.). As a result,
the trial court concluded that there was no error of law in the magistrate’s
determination with respect to this issue. (Id.).
{¶18} It is unclear why the trial court overruled Angela’s objection. It
appears that the trial court implicitly determined that Angela was never entitled to
temporary spousal support due to her under-employment, and therefore, the
magistrate was not wrong to not account for this amount in its decision. However,
if the magistrate’s original decision to award Angela temporary spousal support
was not erroneous in and of itself, she was entitled to be compensated for her
award when it was later discovered that the basis of her award (the rental property)
was her separate property and not marital property. It is not clear whether the trial
court disagreed with the magistrate’s original decision to award Angela temporary
spousal support, or if it only agreed with the magistrate’s later decision to not
account for the support, which had been properly given.
{¶19} In addition, as a final and general matter, although timetables are not
required, this Court believes that the better practice is for the trial court to provide
the parties with some kind of time guideline in which they are to accomplish the
tasks ordered for them to perform. We believe that some sort of schedule may
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help eliminate some of the uncertainty that currently exists with respect to the
parties’ court-imposed obligations.
{¶20} Therefore, based on the above, we sustain Angela’s assignments of
error to the extent that the trial court’s judgment should be vacated and the matter
remanded for further proceedings.
{¶21} Having found error prejudicial to the appellant herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
ROGERS, J., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
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