Foppe v. FoppeFoppe v. Foppe
Moskowitz & Moskowitz, LLC, James H. Moskowitz, 2900 Carew Tower, 441 Vine Street, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶1} Defendant-appellant, Lawrence Foppe (Husband), appeals from the decision of the Warren County Court of Common Pleas, Domestic Relations Division, dividing marital assets following his divorce from plaintiff-appellee, Lisa Foppe (Wife), as well as its decision granting Wife‘s
{¶2} Husband, an engineer, and Wife, a special education teacher, were married on November 26, 1983. The couple, who were involved in several business enterprises during their nearly 22-year marriage, separated in early 2005. On February 6, 2006, Wife filed for divorce. The marriage produced three children.
{¶3} On August 13, 2008, following a four-day trial, the trial court issued a decision dividing the parties’ marital property, which included, among other assets, their ownership interest in Foppe Technical Group, Inc., Midwest Environmental Drilling, Inc., Sonoran Hospitality Group, Inc., PCJ Properties, Inc., and East-West Properties, LLC. Husband and Wife subsequently filed motions to reconsider on September 2, 2008 and September 8, 2008, respectively. Thereafter, on September 19, 2008, Wife filed “Supplemental Memorandum and Response to Husband‘s Motion to Reconsider,” alleging she had discovered new evidence indicating, among other things, that Husband had improperly transferred money from PCJ Properties, a company she received as part of the trial court‘s property division.
{¶4} On October 2, 2008, after holding a hearing on the matter, the trial court denied both parties’ motions to reconsider, but retained jurisdiction over the issues raised by Wife in her supplemental memorandum, including, most notably, Husband‘s alleged improper transfers from PCJ Properties. The trial court then instructed Wife to file a post-decree motion since “no evidence of these matters [was] presented at the property trial.”
{¶5} On October 6, 2008, the trial court filed its judgment entry and final divorce decree. Husband subsequently filed a notice of appeal with this court on October 20,
{¶6} On October 29, 2008, in accordance with the trial court‘s prior instructions, Wife filed a post-decree “Motion for Accounting.” The motion, which, although not explicit, was apparently brought pursuant to
{¶7} On November 19, 2008, after holding another hearing on the matter, the trial court filed an entry, which stated, in pertinent part, the following:
{¶8} “The second issue for the Court to decide is Wife‘s Motion for an Accounting. [sic] The Court agrees with Husband that this is likely improperly designated. As set forth in this Court‘s Decision of October 2, 2008, there were matters occurring after trial, and prior to Decree, that may affect Wife‘s entitlement. Obviously, Wife had no opportunity to present those matters at trial. The Court agrees that this is not a Rule 59 Motion as that motion affects those matters occurring at trial. Rule 60(B) covers those matters occurring subsequent to trial. The Court assumes Wife‘s Motion for Accounting is an improperly designated request for Rule 60(B) relief. It is strongly suggested that Wife file an amended motion for the relief sought.”
{¶9} On January 6, 2009, pursuant to the trial court‘s suggestion, Wife filed a “Motion to Amend Motion for Accounting to Rule 60(B) Motion for Relief from Judgment.” Husband again objected to Wife‘s motion.
{¶10} On January 22, 2009, after holding yet another hearing on the matter, and after acknowledging that it “agreed to allow such amendment,” the trial court concluded that Wife “properly reserved her issues for subsequent consideration.” The trial court then found Husband improperly transferred a total of $10,942 from PCJ Properties “on the eve of trial * * * with the sole purpose to divert monies from Wife,” and, as a result,
{¶11} On December 30, 2009, this court issued a decision remanding this matter “to the trial court to consider the embedded tax consequences in the property valuation and subsequent division” pursuant to
{¶12} On March 31, 2010, upon remand from this court, the trial court heard testimony from Husband‘s accountant, Joseph Paulin, C.P.A., regarding the tax consequences of the property division as it relates to parties’ respective property awards. The trial court also heard evidence pertaining to Wife‘s
{¶13} On April 2, 2010, the trial court issued a decision finding, once again, that Husband had improperly transferred $10,942 from PCJ Properties. Furthermore, as it relates to embedded tax consequences in its property valuation and subsequent property division, the trial court stated, in pertinent part, the following:
{¶14} “[I]n making a division of marital property this Court has considered all the relevant factors set forth in
{¶15} On June 10, 2010, the trial court incorporated its April 2, 2010 decision, as well as its decision ordering Husband to pay Wife $2,500 in attorney fees, into a final judgment entry. Husband now appeals from the trial court‘s final judgment entry, raising four assignments of error for review. For ease of discussion, Husband‘s second and third assignments of error will be addressed together.
Assignment of Error No. 1:
{¶17} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO MAKE ANY ADJUSTMENTS IN THE VALUATION OF THE PARTIES FIVE COMPANIES OR THE ALLOCATION OF ASSETS.”
{¶18} In his first assignment of error, Husband argues that the trial court erred by failing to amend its previous property valuation and subsequent property division after examining the evidence presented upon remand regarding the impact, if any, the embedded tax consequences could have on the parties’ respective awards. We disagree.
{¶19} As this court has previously stated, pursuant to
{¶20} In this case, it is undisputed that the trial court undertook a painstakingly thorough examination of the evidence presented upon remand regarding the impact, if any, the embedded tax consequences could have on its property valuation and subsequent property division. However, after hearing such evidence, the trial court declined to make “any adjustment in valuation or allocation” since the embedded tax consequences were “highly speculative.” After a thorough review of the record, as well as an extensive review of the law of the case, we find no error in the trial court‘s decision. It is clear that the trial court heeded our instructions on remand, and yet, despite hearing evidence on the potential tax consequences, still found no justification to amend the value of the award due to its speculative nature. See Wilkerson v. Wilkerson, Butler App. Nos. CA2002-12-315, CA2002-12-318, 2004-Ohio-1191, ¶44; Poptic v. Poptic, Butler App. Nos. CA2002-09-215, CA2002-09-218, 2003-Ohio-7211, ¶44; Kelley v. Kelley, Butler App. No. CA2001-04-087, 2002-Ohio-2317, ¶12. Therefore, based on the facts and circumstances of this case, we find no abuse of discretion in the trial court‘s decision not to amend its previous property valuation, and subsequent property division, after examining the evidence presented upon remand. Accordingly, Husband‘s first assignment of error is overruled.
{¶22} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED [WIFE‘S]
Assignment of Error No. 3:
{¶24} “THE TRIAL COURT ERRED IN THE AMOUNTS IT ORDERED [HUSBAND] TO PAY [WIFE].”
{¶25} In his second and third assignments of error, Husband argues that the trial court erred by granting Wife‘s
{¶26} In order to prevail on a
{¶27} Initially, Husband argues that the trial court erred by granting Wife‘s
{¶28} Next, Husband argues that the trial court erred by granting Wife‘s
{¶29} Finally, Husband argues that the trial court erred by ordering Husband to repay $10,942 to PCJ Properties. In support of this argument, Husband alleges, among other things, that there is “nothing inherently wrong about an owner who manages his corporation from taking money as compensation.” However, while we may agree with Husband‘s broad assertion regarding an individual‘s right to receive just compensation for one‘s labor, the trial court, which is in the best position to weigh the testimony and observe the witnesses’ demeanor in order to gauge their credibility, determined that his
{¶30} In light of the foregoing, Husband‘s second and third assignments of error are overruled.
Assignment of Error No. 4:
{¶32} “THE TRIAL COURT ERRED WHEN IT ORDERED [HUSBAND] TO PAY [$2,500] IN ATTORNEY FEES RELATED TO [WIFE‘S]
{¶33} In his fourth assignment of error, Husband argues that the trial court erred by ordering him to pay Wife $2,500 in attorney fees. In support of this claim, Husband argues that “[s]ince it was inappropriate for the trial court to grant [Wife‘s]
{¶34} It is well-established that “an award of attorney fees is within the sound discretion of the trial court.” Wolf v. Wolf, Preble App. No. CA2009-01-001, 2009-Ohio-3687, ¶39, quoting Rand v. Rand (1985), 18 Ohio St.3d 356, 359. A trial court‘s decision to award attorney fees will be reversed only if it amounts to an abuse of discretion. Burkhart v. Burkhart, Clermont App. No. CA2008-04-042, 2009-Ohio-1307, ¶37.
{¶35} Pursuant to
{¶36} After a thorough review of the record, we find no abuse of discretion in the trial court‘s decision ordering Husband to pay Wife $2,500 in attorney fees. As noted above, the trial court found Husband engaged in “fraudulent” actions by “diverting money” from Wife, thereby making it necessary for her to incur additional attorney fees in order to bring both her October 29, 2008 “Motion for Accounting,” as well as her January 6, 2009
{¶37} Judgment affirmed.
POWELL, P.J., and HENDRICKSON, J., concur.