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11th District: Trial court failed to equally divide assets in marital estate

TRACEY BLAIR
Legal News Reporter

Published: May 6, 2013

An Ashtabula County trial court erred when it failed to equally divide assets in a marital estate, the 11th District Court of Appeals recently ruled.

In 2010, Carolyn Riley filed for divorce from Thomas K. Riley.

Thomas raised four assignments of error in his appeal.

According to case summary, Carolyn was to receive $27,500 more than Thomas from a Geneva marital estate valued at $584,709, or about 52.35 percent.

The trial court ordered the equal division of the martial residence, Thomas’ $189,000 savings plan and Thomas’ pension plan. Thomas claimed the division of property is inequitable because the trial court failed to divide Carolyn’s 401K or otherwise assign it as her separate property.

The marital home, currently occupied by Carolyn, has a stipulated value of $142,500. The court ordered the home listed for sale with a mutally agreed-upon price, with the parties to equally divide the proceeds after deducting the costs of the sale. Carolyn was ordered to pay the utilities and insurance until it is sold, and Thomas was obligated to pay the real estate taxes.

“Thomas argues the court’s order allows Carolyn to live `rent free’ in the marital residence, without any incentive for her to cooperate in effecting its sale,” 11th District Judge Diane V. Grenell wrote in a 3-0 opinion.

The appellate panel found no abuse of discretion in the trial court’s 52.3 percent-47.7 percent division of the marital estate. However, the higher court said other aspects of the court’s division of property require reconsideration.

“Initially, it cannot be presumed that the court’s silence regarding Caroyn’s 401K signifies the court’s intention to award her the entirety of this marital asset,” Grendell stated. “Such an award should be expressly made and, if necessary, the failure to divide the asset evenly should be explained.”

The panel added that the lower court should set a fixed amount of time for the parties to agree upon a price and Realtor and list the marital property for sale. If they are unable to sell the home within the time frame, the order should provide for an alternative means of affecting the sale.

The appellate court rejected Thomas’ other three assignments of error.

Thomas called the $1,500 monthly spousal support award “unreasonable” in a simple divorce case with no children and stipulated property values. Thomas claimed the award left his ex-wife with a larger income than himself.

Thomas also argued the court erred by determining the end of the marriage to be the first day of the final hearing (April 18, 2011) rather than Feb. 4, 2010 – the date of separation.

Finally, Thomas challenged the courts’ order to pay $7,500 toward the plaintiff’s more than $14,000 in legal fees.

“There was no abuse of discretion in the order for Thomas to pay what ultimately amounts to less than half of Carolyn’s attorney fees,” Grendell stated. “Thomas enjoys a substantially greater income than Carolyn and better health. There was evidence that Carolyn’s (attention deficit disorder) caused her attorney fees to be higher than usual. Also, both parties motioned for the court for an additional two months to complete discovery and conduct depositions, and Thomas bears some of the responsibility for the delay in this case.”

11th District judges Cynthia Westcott Rice and Thomas R. Wright concurred.

The case, cited Carolyn Riley, v. Thomas K. Riley, No. 2012-A-0037, was posted April 22.


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