Shupe v. Shupe
2017 Ohio 5864
| Ohio Ct. App. | 2017Background
- Terry and Edward Shupe were married in 1989; divorce complaint filed November 12, 2013. No minor-child custody disputes remain. Hearings on property division occurred in 2015; magistrate issued decision January 8, 2016; trial court adopted with modifications November–December 2016. Appeal followed by Edward (defendant).
- Disputed assets and items included: a 2008 Toyota Tundra (multiple appraisals), an Ameriprise annuity funded by two $13,000 checks from appellee’s grandfather, proceeds from sale of a marital boat, withdrawals from a home-equity line of credit, federal tax refunds, three parcels of real estate (home, vacant lot, shop), household items (photographs, ATVs/go-cart), and attorney-fee allocation for time appellee’s counsel billed while Edward was pro se.
- Magistrate awarded (inter alia) half of certain attorney fees to appellee, the Tundra to Edward at a $21,550 valuation (based on the parties’ agreed appraiser), the annuity as appellee’s separate property (finding the gifts were to her), charged Edward with proceeds from the boat sale, credited him for some HELOC withdrawals made by appellee after temporary orders, delayed sale of real estate until youngest child’s emancipation with appellee’s exclusive use in interim, and allocated tax refunds to the party who actually received them.
- On appeal the Fifth District affirmed in part, reversed in part, and remanded: it (1) remanded the attorney-fee award for recalculation limited to fees attributable to the discovery/motion-to-compel dispute; (2) reduced the Tundra valuation to $12,400 (adopting a February 2015 appraisal) and kept the truck award to Edward; (3) rejected the finding that the $13,000 checks were appellee’s separate property and remanded division of the annuity funds; (4) upheld allocation of the boat proceeds to Edward and the magistrate’s treatment of HELOC withdrawals; and (5) ordered immediate availability to sell the parcel containing the shop (but upheld delay as to the residence parcel until emancipation).
Issues
| Issue | Plaintiff's Argument (Terry) | Defendant's Argument (Edward) | Held |
|---|---|---|---|
| 1. Award of attorney fees for period Edward was pro se | Fees were equitable because Edward’s noncompliance and discovery failures forced motion to compel and extra work; sought fees for July 31, 2014–Mar 3, 2015 | Fees unreasonable for entire pro se period; no evidence tying billed time to motion to compel or showing necessity/reasonableness | Partial grant: court remanded to calculate fees limited to those attributable to the discovery/motion-to-compel matter; entire pro se-period award was an abuse of discretion |
| 2. Valuation and award of 2008 Toyota Tundra | Agreed appraiser (Foti) valued Tundra at $21,550; appellee accepted that valuation and urged award | Multiple later appraisals much lower; Edward objected to Foti’s cursory inspection and to accepting that valuation | Partial grant: appellate court found $21,550 adoption was an abuse of discretion and ordered trial court to use $12,400 valuation (Feb 2015 appraisal); awarding truck to Edward upheld |
| 3. Two $13,000 checks deposited to annuity: gift/separate property | Checks were gifts to appellee (grandfather’s tax-planning explanation); annuity titled solely in her name — therefore separate property | Edward asserted one check was a gift to him; funds were deposited jointly and he participated in account decisions; therefore marital | Grant for Edward: appellate court found trial court lacked clear-and-convincing proof the funds were solely appellee’s separate property and remanded for division of the $26,000 deposited and remaining balance accounting for withdrawals |
| 4. Boat sale proceeds and HELOC withdrawals/credits | Boat proceeds (marital asset) should be equitably treated; trial court properly credited appellee’s improper HELOC withdrawals after temporary orders | Edward argued it was unfair to charge him with full $21,000 when appellee also depleted HELOC before filing; sought broader credit for appellee’s pre-temporary withdrawals | Denied in part: court affirmed allocation of entire $21,000 to Edward (he sold boat and spent proceeds), but upheld trial court’s use of temporary-order date to determine credit for appellee’s improper withdrawals after that date |
| 5. Sale/delay of three real-estate parcels (residence, shop, vacant lot) | Appellee sought continued exclusive use/possession until youngest child emancipates; delay sale of residence parcel but allow listing later | Edward sought immediate sale or offered to buy parcels (esp. shop) to regain business use; argued delay harmed his livelihood | Partial grant: appellate court upheld exclusive use/delay for residence parcel until emancipation but found denying immediate sale of the parcel containing the shop an abuse of discretion — Edward (or third party) may purchase that parcel immediately |
Key Cases Cited
- Cherry v. Cherry, 66 Ohio St.2d 348 (Ohio 1981) (appellate review of equitable division is abuse-of-discretion)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1958) (definition of clear and convincing evidence)
- In re Adoption of Holcomb, 18 Ohio St.3d 361 (Ohio 1985) (review standard for clear-and-convincing proof)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse-of-discretion standard defined)
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (distinguishing sufficiency and manifest-weight standards)
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (Ohio 1984) (trial court is finder of fact and assesses witness credibility)
- Briganti v. Briganti, 9 Ohio St.3d 220 (Ohio 1984) (caution against piecemeal appeals)
- Zeefe v. Zeefe, 125 Ohio App.3d 600 (Ohio Ct. App. 1998) (burden to prove separate property by preponderance)