Morgan v. MorganMorgan v. Morgan
Rendered on the 16th day of April, 2010.
. . . . . . . . .
Brian A. Sommers, Atty. Reg. No. 0072821, 111 West First Street, Suite 518, Dayton, OH 45402
Attorney for Plaintiff-Appellant
Matthew D. DiCicco, Atty. Reg. No. 0072889, One Dayton Centre, 1 South Main Street, Dayton, OH 45402-2017
Attorney for Defendant-Appellant
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GRADY, J.:
{¶ 1} On October 11, 2002, the domestic relations court granted a petition dissolving the marriage of David and Connie Morgan. The decree incorporated the parties’ Amended Separation Agreement, in which they divided their joint business interests.
{¶ 2} “Business: Both of the parties are equal partners in an Ohio Partnership known as D.C. Investments. Assets of D.C. Investments include 714 and 755 Albany Street, Dayton, Ohio. The parties will dissolve D.C. Investments on December 31, 2002. The property at 714 Albany Street will go to the Wife and she will be solely responsible for the mortgage on said property at National City Bank. . . . The parties shall equally divide all remaining assets and debts of this partnership. . . .
{¶ 3} “The Wife agrees to refinance the mortgage to National City Bank on the 714 Albany Street property within two (2) years from the date of the filing of the Final Judgment and Decree of Dissolution, thereby releasing the Husband’s obligation on said property.
{¶ 4} “Wife is the owner of Miami Valley Tank and Trailer Equipment, Inc., and she shall continue to be the owner of this company, free and clear of any claim of the Husband thereto.
{¶ 5} ”Husband is the owner of 50% of DEM Technology, LLC, 100% owner of Total Effort Enterprises, LLC and 50% owner of Interactive Global Technologies, LLC. Husband shall continue to be the owner of these businesses, free and clear of any claim of the Wife thereto.”
{¶ 7} Connie contended that the Amended Separation Agreement referred to the first mortgage, and that the parties had wholly forgotten about the second mortgage. She argued that David should be responsible for that obligation because the proceeds of the loan secured by the second mortgage had been used to benefit Total Effort Enterprises, LLC, a company David was awarded. Connie pointed out that David made payments on the second mortgage obligation in the years following their dissolution.
{¶ 8} David argued that Connie was responsible for both the first and second mortgage obligations to National City Bank. He pointed out that the terms of the separation agreement that was amended provided that “the property at 714 Albany Street is awarded to the wife and she will be solely responsible for the mortgage
{¶ 9} On September 2, 2008, the magistrate found that the motions for contempt should be overruled and that the
FIRST ASSIGNMENT OF ERROR
{¶ 10} “THE TRIAL COURT ERRED IN DECIDING APPELLEE’S MOTION UNDER
SECOND ASSIGNMENT OF ERROR
{¶ 11} “THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN ITS INTERPRETATION OF THE PARTIES’ AMENDED SETTLEMENT AGREEMENT.”
{¶ 12} The standard of review of a trial court‘s decision on a
{¶ 13} “A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.” AAAA Enterprises, Inc v. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 14}
{¶ 15} The Amended Separation Agreement incorporated into the final decree of dissolution provided that D.C. Investments would be dissolved, that Connie would be responsible for the mortgage to the National City Bank on the property at 714 Albany Street, and that the parties would equally divide the remaining debts of D.C. Investments. Connie asked the court to order David to reimburse her for the $46,215.16 balance remaining on the second mortgage obligation that Connie paid when she sold the property. The second mortgage on the property at 714 Albany Street was a debt on an asset of D.C. Investments which the court found was not specifically identified in the Amended Separation Agreement. The trial court relied on
{¶ 16}
{¶ 17} “A decree of dissolution of marriage has the same effect upon the property rights of the parties, including rights of dower and inheritance, as a decree of divorce. The court has full power
{¶ 18}
{¶ 19} Second, because per
{¶ 20} There may be good faith confusion in this instance: the parties had extensive and intertwining financial interests which they made a good faith effort to divide between them. However, the Amended Separation Agreement, to the extent that it expressly dealt with any mortgage to National City Bank, imposed no obligation on David. The only obligation in that regard was imposed on Connie. Therefore, the court did not construe a term of its decree that was ambiguous. Indeed, the catch-all provision of the Amended Separation Agreement unambiguously requires the parties to equally divide debt obligations not specifically identified. Rather than following that course, the court modified the decree to impose an obligation on David that the Amended Separation Agreement did not. In doing so, the court ordered a distributive award requiring David to reimburse Connie, and thereby modified a property division order, relief which is specifically prohibited by
{¶ 21} Though a property division award may not be modified, a decree in which the award is made may be vacated pursuant to
{¶ 22} “While the General Assembly has given courts continuing jurisdiction to modify those sections of a separation agreement that pertain to parental rights and responsibilities,
{¶ 23} “Therefore, in a dissolution proceeding, if the parties have incorporated into the separation agreement a clause that allows the court to modify the agreement by court order, and the court has approved this agreement and incorporated it into the decree of dissolution, the court has continuing jurisdiction to enforce this clause. If the parties both consent to a modification of the agreement or actually incorporate a means for modification into their settlement agreement, the element of mutual consent has not been lost, and there is no reason to require vacation of the entire decree in order to grant relief under a
{¶ 24} The trial court relied on
{¶ 25} Article X of the Amended Separation Agreement is entitled “MODIFICATION BY PARTIES,” and states: “Except as herein otherwise provided, this agreement shall not be altered, or modified unless it be done in writing signed by both parties.” This provision does not allow the court to modify the terms of the Amended Separation Agreement. Rather, only through a subsequent agreement of the parties may the court modify the terms of the Amended Separation Agreement. Clearly, these parties never came to an agreement on an acceptable modification. Therefore, the
{¶ 26} The debt owed to National City Bank on the second mortgage on the property at 714 Albany Street was not specifically listed in the Amended Separation Agreement. Therefore, pursuant to the catchall provision in Article II.(b) of the Amended Separation Agreement, the parties are each responsible for one-half of the total amount of money expended to pay the debt owed on the second mortgage obligation to National City Bank since the date of the dissolution decree. It appears from the record that David made payments on that obligation following the dissolution and before the property secured by the second mortgage was sold. On remand, the trial court must determine whether David has fulfilled any or all of his obligation on the second mortgage with National City Bank, giving him proper credit for any amounts he previously paid. The first and second assignment of errors are sustained.
THIRD ASSIGNMENT OF ERROR
{¶ 27} “THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION WHEN IT OVERRULED APPELLANT’S MOTION FOR CONTEMPT OF THE DECREE.”
{¶ 28} “A person guilty of any of the following acts may be punished as for a contempt: (A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer[.]”
{¶ 29} The trial court overruled the motions for contempt “due to the confusion over the wording of the terms of the decree as to the parties’ obligations.” (Dkt. 58, p.5). Both parties were voluntarily making payments on debt obligations for a number of years after the decree of dissolution. Connie made payments on the Wells Fargo debt until 2005, at which time she told David that he should pay the remainder of the debt. David made payments to cover the amount of interest accruing on the debt, but a principal of $15,007.08 remains on the Wells Fargo debt. The trial court found that Connie was responsible for the remaining $15,007.08, but overruled David’s motion to find Connie in contempt for stopping payments in 2005.
{¶ 30} The parties were confused about their debt obligations, which ultimately led the parties to seek the guidance of the trial court in clarifying the debt obligations on the National City Bank second mortgage and the Wells Fargo loan. The Amended Separation Agreement, which was incorporated into the dissolution decree, does not specifically order Connie to pay the debt on the Wells
{¶ 31} The third assignment of error is overruled. The judgment of the trial court will be affirmed, in part, and reversed, in part, and the cause is remanded for further proceedings consistent with this Opinion.
FAIN, J. and FROELICH, J. concur.
Copies mailed to:
Brian A. Sommers,Esq.
Matthew D. DiCicco, Esq.
Hon. Judith A. King