610 N.E.2d 433 | Ohio Ct. App. | 1991
The question presented in this appeal is whether the spouse of an individual convicted under the Ohio racketeer influenced and corrupt organizations statute, R.C.
Prior to the appeal, the trial judge had ordered the forfeiture of specific real estate by authority of Ohio RICO. Shortly afterward, petitioner-appellant, Elena Economou, filed a petition seeking recognition and protection of dower rights she claimed in the property. She had been married to Albert Thrower since October 13, 1984. The land in question had been acquired thereafter.
Once the case was returned to the trial court, a hearing was conducted on the matter of Economou's dower rights. R.C.
Like its federal counterpart, Section 1963(a), Title 18, U.S. Code, Ohio RICO allows for in personam forfeiture proceedings against individuals retaining property used in or derived from a pattern of corrupt activity or collection of unlawful debt in violation of R.C.
Third parties who cannot successfully establish claims to the subject property in accordance with R.C.
In Ohio, husband and wife are placed upon terms of "absolute equality" in regard to their own property. Neither the concept of "community property" nor the rule of community of interest is recognized. 47 Ohio Jurisprudence 3d (1983) 126, Family Law, Section 651. A wife does not have any legal interests in the property of her husband except as necessary for support, dower, and occupancy of the mansion house. R.C.
Of these three exceptions, Economou raises only dower. She cites R.C.
"A spouse who has not relinquished or been barred from it shall be endowed of an estate for life in one third of the real property of which the consort was seized as an estate of inheritance at any time during the marriage. Such dower interest shall terminate upon the death of the consort except:
"(A) To the extent that any such real property was conveyed by the deceased consort during the marriage, the surviving spouse not having relinquished or been barred from dower therein;
"(B) To the extent that any such real property during the marriage was encumbered by the deceased consort by mortgage, judgment, lien, except tax lien, or otherwise or aliened by involuntary sale, the surviving spouse not having relinquished or been barred from dower therein. If such real property was encumbered or aliened prior to decease, the dower interest of the surviving spouse therein shall be computed on the basis of the amount of the encumbrance at the time of the death of such consort or at the time of such alienation, but not upon an amount exceeding the sale price of such property." *18
This statute was originally enacted in 1932 as G.C. 10502-1, Am.S.B. No. 10, 114 Ohio Laws 320, 337-338. It was amended in 1935, Am.S.B. No. 116, 116 Ohio Laws, Part I, 385, 387-388, and again in 1953 to its present form, S.B. No. 361, 125 Ohio Laws 903, 962-963.
Dower is one means of providing the surviving spouse with a source of support when the other spouse dies. Galaty, Allaway Kyle, Modern Real Estate Practice in Ohio (1990) 71. Ohio is one of the few states which still retains this antiquated mechanism, albeit in a modified form. Kalinka, Federal Taxation of Community Income: A Simpler and More Equitable Approach, 1990 Wis.L.Rev. 633, 692, fn. 291.
"The dower law of Ohio was changed drastically by statutory enactments in 1932, which virtually abolished all vested dower except in such real estate: (1) conveyed during coverture, without the spouse joining in the deed, and (2) to the extent that such property during coverture was encumbered by mortgage without the spouse joining in the mortgage, or by judgment lien or otherwise without the surviving spouse having relinquished or been barred of dower. In lieu of dower interest which terminates upon the death of the consort, a surviving spouse is entitled to the distributive share provided by R.C. Section
In Goodman v. Gerstle (1952),
Every opinion cited by Economou for the proposition that she enjoys a valuable interest in her husband's property while he is alive predates R.C.
Economou's arguments to this court turn largely upon semantics. Admittedly, she enjoyed "vested" dower rights created by R.C.
Economou further attempts to invoke R.C.
Our attention is also directed to R.C.
As a final argument, Economou invites this court, under the doctrine of in pari materia, to read the safeguards codified in R.C.
We therefore hold that R.C.
The trial court is affirmed in all respects.
Judgment affirmed.
CACIOPPO, P.J., and COOK, J., concur.
"If at a hearing held under division (E)(3) of this section, the court, by a preponderance of the evidence, determines either that the petitioner has a legal right, title, or interest in the property that, at the time of the commission of the acts giving rise to the forfeiture of the property, was vested in the petitioner and not in the defendant or the adjudicated delinquent child or was superior to the right, title, or interest of the defendant or the adjudicated delinquent child, or that the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of the purchase reasonably without cause to believe that the property was subject to forfeiture under this section, it shall amend, in accordance with its determination, the judgment of forfeiture to protect the rights of innocent persons."