Summary
holding that the appellate court can reverse or modify an inequitable property division
Summary of this case from In re Testamentary Trust of ManningOpinion
No. 84-1095
Decided July 24, 1985.
Domestic relations — Division of marital property no abuse of discretion, when.
APPEAL from the Court of Appeals for Stark County.
Plaintiff-appellee, Darlene L. Martin (hereinafter, "wife"), and defendant-appellant, Robert L. Martin (hereinafter, "husband"), were married in July 1968. Out of this marriage three children were born: Karry, Steven and Nicole.
In March 1982, the husband left the marital home and took up residence with the wife's sister. The wife filed this divorce action on October 27, 1982 in the court of common pleas, division of domestic relations, alleging that the husband was guilty of gross neglect of duty and extreme cruelty.
Prior to trial, the parties reached an agreement whereby the husband retained custody of the two older children, and the wife retained custody of the youngest child, Nicole.
The record indicates that the husband is the sole shareholder of two privately held corporations: Premere Mold Machine Co., Inc., and Progressive Molding of Canton, Inc. The stock in these corporations constituted the primary asset that had been accumulated during the marriage. The evidence at trial established the husband's pre-tax income at approximately $60,000 per year, whereas the wife is not gainfully employed outside the home.
On November 21, 1983, the trial court granted the wife a divorce on the grounds alleged in her complaint. In its final decree, the court awarded the wife the marital home-farm subject to a $35,000 mortgage, the family jeep, the farm equipment and all of the household goods and furniture, except for an antique desk that was to be retained by the husband. The husband was awarded the remaining marital assets, including the assets and liabilities of the two corporations, his profit-sharing plan, and the property located at 1312 Greenfield S.W. in Canton. The value of the property awarded to the wife carried a stipulated net book value of $159,700, whereas the stipulated net book value of the husband's property amounted to $290,102.
The court then ordered the husband to pay the wife $200 per month for the support of Nicole, as well as providing the necessary hospital, dental, optical and prescription expenses for said child. The court determined that since Nicole is severely handicapped, the child support award would continue beyond the child's attainment of the age of majority, subject to further order of the court.
With respect to alimony, the court ordered the husband to pay the wife a lump sum of $20,000 as alimony and further division of equity within six months of the date of the decree. The court further ordered the husband to pay the wife $1,800 per month as sustenance alimony, to continue until the wife either dies, remarries, lives in a state of concubinage; or, ten years and one month from October 1, 1983, whichever occurs first. In addition, it was ordered that the husband maintain an insurance policy in an amount no less than $100,000 naming the wife as beneficiary until the alimony is paid in full.
Upon appeal pursued by the wife, the court of appeals modified the trial court's order on the grounds that the property division was not equitable. The appellate court struck the court's award of sustenance alimony and all of its contingencies and substituted a further division of property whereby the wife was awarded $217,800 outright, to be payable in equal monthly installments of $1,800 commencing October 1, 1983.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Harry W. Schmuck, for appellee.
Amer, Cunningham, Brennan Co., L.P.A., Andrew R. Duff and Richard D. Dodez, for appellant.
The appellee-wife argues that where a property division is not equitable, an appellate court is duty-bound under App. R. 12 to modify the inequitable division. The appellant-husband contends that the appellate court's modification was based solely upon the existence of a disproportionate division of property, and that such court is without jurisdiction to modify such a division, absent a showing that the trial court abused its discretion in dividing the property as it did.
Hence, the issue presented for our review is whether the trial court abused its discretion in its division of the marital property and award of sustenance alimony.
In Cherry v. Cherry (1981), 66 Ohio St.2d 348 [20 O.O.3d 318], we stated at page 355:
"* * * A trial court must have discretion to do what is equitable upon the facts and circumstances of each case.
"Of course, a trial court's discretion, though broad, is not unlimited. A reviewing court may modify or reverse a property division, if it finds that the trial court abused its discretion in dividing the property as it did. Section 3(B), Article IV of the Ohio Constitution; App. R. 12." Accord Koegel v. Koegel (1982), 69 Ohio St.2d 355 [23 O.O.3d 320].
It has also been stated by this court that a trial court in any domestic relations action has broad discretion in fashioning an equitable division of marital property, Berish v. Berish (1982), 69 Ohio St.2d 318 [23 O.O.3d 296], and, when appropriate, in awarding alimony based on need. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399 [75 O.O.2d 474].
In Cherry, supra, we held in the syllabus that:
"1. There is no presumption, rebuttable or irrebuttable, that marital property be divided equally upon divorce; rather, a potentially equal division should be the starting point of the trial court's analysis before it considers the factors listed in R.C. 3105.18 and all other relevant factors. * * *
"2. A Court of Common Pleas has broad discretion to determine what property division is equitable in a divorce proceeding. The mere fact that a property division is unequal, does not, standing alone, amount to an abuse of discretion."
In reviewing the equity of a division of property, one of the basic guidelines an appellate court is bound to follow is that the trial court's judgment cannot be disturbed on appeal absent a showing that the common pleas court abused its discretion in formulating its division of the marital assets and liabilities of the parties. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218; Koegel, supra, at 357; Berish, supra, at 319; Cherry, supra, at 355. See Dennison v. Dennison (1956), 165 Ohio St. 146, 150 [59 O.O. 210], and Zimmie v. Zimmie (1984), 11 Ohio St.3d 94, 97.
"`The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. [Citations omitted.]'" Blakemore, supra, at 219 (quoting State v. Adams, 62 Ohio St.2d 151, 157 [16 O.O.3d 169]).
In applying precedent, in particular the Cherry and Blakemore decisions, to the cause herein, we find that the court of appeals has essentially substituted its judgment for that of the trial court. While it is apparent that the property division herein is unequal, we do not find that such property division amounted to an abuse of discretion on the part of the trial court, especially in light of the significant alimony award that the court ordered the husband to pay to the wife.
R.C. 3105.18(B) provides in pertinent part:
"In determining whether alimony is necessary, and in determining the nature, amount, and manner of payment of alimony, the court shall consider all relevant factors, including:
"* * *
"(9) The relative assets and liabilities of the parties."
In view of the fact that the husband received the greater amount of the marital assets, it seems clear that the trial court awarded alimony to the wife in order to conclude a fair and equitable resolution of this divorce action. In arriving at the decision it did, we cannot find that the trial court's determination was either unreasonable, arbitrary, or unconscionable. Given the fact that the trial court awarded the wife a substantial award of alimony, any inequities inherent in the property distribution were properly rectified by the court's order of periodic sustenance alimony payments.
While a reviewing court in any domestic-relations appeal must be vigilant in ensuring that a lower court's determination is fair, equitable, and in accordance with law, an appellate court must refrain from the temptation of substituting its judgment for that of the trier-of-fact, unless the lower court's decision amounts to an abuse of discretion. Taking into account the totality of circumstances involved in this cause, we find that the court of appeals exceeded its scope of review in modifying the lower court's determination.
Accordingly, we reverse the judgment of the court of appeals, and reinstate the judgment of the trial court.
Judgment reversed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN and WRIGHT, JJ., concur.
DOUGLAS, J., dissents.
This court, in Berish v. Berish (1982), 69 Ohio St.2d 318, 319-320 [23 O.O.3d 296], emphasized that "[t]he public policy giving rise to equitable distribution [of property] is at least in part an acknowledgment that marriage is a shared enterprise or joint undertaking. While marriage is literally a partnership, it is a partnership in which the contributions and equities of the partners do differ from individual case to individual case. Assets acquired by the joint efforts of the parties should be, on termination, eligible for distribution. * * * It is the equitableness of the result reached that must stand the test of fairness on review." Correspondingly, the court emphasized in Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355 [20 O.O.3d 318], that "* * * [m]arriage is a union of equals [and] [n]either party should make a profit at the expense of the other."
It is my strong belief that the record in this case clearly demonstrated that, as a consequence of the trial court's division of property, the husband herein made a profit at the expense of his wife. Accordingly, I must dissent.
The record herein indicates that the parties were married soon after completing high school and that neither party entered the marriage with any assets. The property acquired by the joint efforts of the parties totalled $449,802. The value of the property awarded to the wife carried a stipulated net book value of $159,700, whereas the stipulated net book value of the husband's property amounted to $290,102. Thus, the husband was awarded $130,402 more than the wife.
Stated yet another way, the husband received sixty-four percent of the net book value of the assets jointly acquired whereas the wife received thirty-six percent of the net book value. Such a division, in the absence of specific reasoning and justification in support thereof, simply does not, in my opinion, "stand the test of fairness on review." Berish, supra, at 320. In so concluding, I would stress that the amounts of the assets were stipulated to by the parties and that the values assessed were the net book values.
Admittedly, the majority acknowledges that the husband received the greater amount of the marital assets. It reasons, however, that the trial court clearly "* * * awarded alimony to the wife in order to conclude a fair and equitable resolution of this divorce action."
The fairness and equitableness of the majority's logic is certainly questionable in view of the fact that the $1,800 per month sustenance alimony was made contingent; such alimony was to continue until the wife either dies, remarries, lives in a state of concubinage; or, ten years and one month from October 1, 1983. I would further stress that this court, in the recent case of Zimmie v. Zimmie (1984), 11 Ohio St.3d 94, held that the attachment of conditions as limitations on the division of marital property was not acceptable.
Based on the record before this court, it is my opinion that the trial court abused its discretion in dividing the property assets between the parties herein. I thus respectfully dissent and would affirm the equitable division of marital property as made by the court of appeals.