Herndon v. Herndon, Unpublished Decision (11-20-2000)
Herndon v. Herndon, Unpublished Decision (11-20-2000)
Dissenting Opinion
I agree with the disposition of the majority as to the first assignment of error. I also agree with the decision of the majority that this case should be reversed and remanded to the trial court regarding the property division, which is the issue raised in appellant's second assignment of error, but respectfully disagree as to the purpose of the remand. I do find that there is some confusion between the trial court's entry of May 5, 2000, and the final decree of divorce regarding how the $5,000.00 credit union account was to be handled. It appears to me that the trial court was saying that the appellant already received the $5,000.00 credit union account but it was marital property and should appear on appellant's side of the ledger. However, the language used by the trial court in its May 5, 2000, entry leads me to question my assumption. Therefore, I would reverse and remand this matter solely for the purpose of having the trial court clarify what it intended to do with that $5,000.00 and making any other adjustments necessary in the property and debt division. I would also direct the trial court to prepare its own exhibit as to division of property and debt and attach it to the trial court's entry issued after remand.
JUDGE JULIE A. EDWARDS
Opinion of the Court
OPINION
On July 12, 1990, appellant, Ronald Harold Herndon, and appellee, Connie Jean Herndon, were married. Three children were born as issue of said marriage, Joshua Herndon born May 27, 1990, Jeremy Herndon born May 13, 1991 and Jordan Herndon born December 2, 1992. On August 27, 1999, appellant filed a complaint for divorce. A hearing was held on May 3, 2000. The contested issues included child support and property division. By judgment entry filed May 5, 2000 the trial court granted the parties a divorce and approved and adopted the parties' shared parenting plan. As for the division of property, the trial court incorporated one of appellant's exhibits and acknowledged that appellant received a credit union account worth approximately $5,000. The trial court held "no further credit/debit for same is required." On May 16, 2000, the final decree of divorce was filed. Within said decree, the trial court ordered appellant to pay $102.29 per month as child support, and ordered appellant to pay $7,331.25 to appellee to equalize the division of property. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:I. THE TRIAL COURT'S DECISION TO AWARD THE DEFENDANT-APPELLEE CHILD SUPPORT IN THE AMOUNT OF $306.86 PER MONTH WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT'S ORDER REQUIRING THE PLAINTIFF-APPELLANT TO PAY THE DEFENDANT-APPELLEE $7,331.25 TO EQUALIZE THE DIVISION OF PROPERTY WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
See, May 16, 2000 Judgment Entry Decree of Divorce at No. 5.
Because of the agreed 37.5% deviation, there would be no need to adjust line 24 in the worksheet. An adjustment to line 24 coupled with an agreed deviation would result in a windfall to an obligor under a shared parenting plan. Assignment of Error I is denied.
* * * It is further ORDERED that the Plaintiff shall receive the two (2) First Merit accounts, the Bank One account, and the Credit Union account, free and clear of any claim of the Defendant.
It is further ORDERED that the Plaintiff shall pay to the Defendant the sum of $7,331.25 within 180 days to equalize the division of property.
Defendant's Exhibit N as referenced by the trial court in its May 5, 2000 judgment entry should read "Defendant's Exhibit W." Defendant's Exhibit N is titled "Ronald Herndon Division of Assets" and is merely a listing of appellant's personal property. Defendant's Exhibit W is a balance sheet wherein appellant's assets include bank accounts one of which is a credit union listing in the amount of $5,000. The $5,000 is included in the amount representing appellant's assets. Appellant's total assets are then reduced by $2,785.77 of debt resulting in a net asset amount of $36,224.86. Appellee's net assets amount to $24,348.14. As a result of these amounts, appellant owes appellee $5,938.36 to equalize the division. Appellant argues he should be given credit for the $5,000 per the trial court's judgment entry of May 5, 2000 thereby reducing the amount he owes appellee to $3,438.36. We agree that appellant owes appellee less than $5,938.36 however, we disagree the amount is $3,438.36. In Defendant's Exhibit W, appellant's total assets are listed as $39,010.63. After subtracting the $5,000 credit union account, appellant's total assets are $34,010.63. This amount should be reduced by one-half of the $2,785.77 debt resulting in a net asset amount of $32,617.74. Appellee's total assets are $24,348.14. This amount reduced by one-half of the debt results in a net asset amount of $22,955.26. As a result of these amounts, appellant owes appellee $4,831.24 to equalize the division. In the May 5, 2000 judgment entry, the trial court specifically adopted Defendant's Exhibit W and gave the $5,000 credit union account to appellant noting "no further credit/debit for same is required." Given this clear language, we find the trial court erred in including the $5,000 credit union account as an asset to appellant in determining the equalization amount. Assignment of Error II is granted. The judgment of the Court of Common Pleas of Stark County, Ohio, Domestic Relations Division is hereby affirmed in part, reversed in part and remanded.
_____________________ Farmer, J.
Wise, J. concur. Edwards, J. concurs in part; dissents in part
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