Berish v. Berish

• Decision Date: 19 February 1982
• Docket Number: No. 81-800,81-800
• Citation: 23 O.O.3d 296,432 N.E.2d 183,69 Ohio St.2d 318
• Parties: , 23 O.O.3d 296 BERISH, Appellant, v. BERISH, Appellee.
• Court: Ohio Supreme Court

Page 318

69 Ohio St.2d 318

432 N.E.2d 183, 23 O.O.3d 296

BERISH, Appellant, v. BERISH, Appellee.

No. 81-800.

Supreme Court of Ohio.

Feb. 19, 1982.

Syllabus by the Court

A trial court, in determining divorce litigants' inter se property rights in a joint savings account accumulated during marriage, does not abuse its discretion when it bases its award upon the account balance in existence at the time of the parties' permanent separation.

Diane M. Berish, appellant, and David M. Berish, appellee, were married on June 25, 1976, and permanently separated in October of 1978.

At the time of the separation, the parties had a joint savings account with a balance of $7,445.57. Appellant had contributed $916.71 to this account from her pre-marital assets, and the balance was accumulated by the parties prior to their separation. After the parties separated, appellee withdrew the balance of the savings account for his own use and the account was closed.

On February 1, 1980, appellant filed a complaint for divorce, and the matter was heard on May 28, 1980. Appellant and her attorney were present at the hearing as was counsel for appellee, but the appellee was not present and offered no evidence. A divorce decree was granted on May 28, 1980.

In pertinent part, the trial court granted appellant, and ordered appellee to pay appellant, the sum of $3,900 as her share of the parties' joint savings account.

The Court of Appeals modified the judgment of the trial court to eliminate any distribution between the parties of the joint savings account. The court reasoned that "(s)ince the joint savings account of the parties was not in existence at the time of the decree, * * * the trial court erred in considering it as a marital asset and ordering * * * (appellee) to pay the equivalent of half of said account to * * * (appellant)."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Guarnieri & Secrest and Michael D. Rossi, Warren, for appellant.

David E. Boker, Warren, for appellee.

WILLIAM B. BROWN, Justice.

The sole issue presented in this case is whether a trial court, in determining divorce litigants' inter se property rights in a joint savings account accumulated during marriage, abused its discretion when it based its award upon the account balance in existence at the time of the parties' permanent separation rather than upon the balance in existence at the time of the final decree.

This court has long recognized that trial courts are vested with broad powers in determining the appropriate scope of property awards in divorce actions. As was stated in the recent case of Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 421 N.E.2d 1293, " * * * (b)oth R.C. 3105.18, which provides that the trial court may divide property as it deems equitable, and past case law require that the trial court have broad discretion in arriving at an equitable property division." This court further noted in Cherry that " * * * (a) reviewing court may modify or reverse a property division, (only) if it finds that the trial court abused its discretion in dividing the property as it did. Section 3(B), Article IV of the Ohio Constitution; App.R. 12." Id.

Applying these standards to the facts of the case at bar, this court cannot find that the trial court abused its discretion in making the award in question. The trial court identified a specific tangible marital asset (the joint savings account) existing at the time when the parties were permanently separated and awaiting the formal termination of their marriage; discovered appellee's post-separation conversion of same to his own use; equitably returned to appellant her nonmarital portion of the asset; divided the balance equally between the parties; set off one-half of the value of appellant's employee stock savings plan accumulated before the parties' separation; and then ordered appellee to pay appellant her equitable share.

The choice of a date as of which assets available for equitable distribution should be identified and valued must be dictated largely by pragmatic considerations. The public policy giving rise to equitable distribution is at least in part an acknowledgment that marriage is a shared enterprise or joint undertaking. While marriage is literally a partnership, it is a partnership in which the contributions and equities of the partners do differ from individual case to individual case. Assets acquired by the joint efforts of the parties should be, on termination, eligible for distribution. But the precise date upon which any marriage irretrievably breaks down is extremely difficult to determine, and this court will avoid promulgating any unworkable rules with regard to this determination. It is the equitableness of the result reached that must stand the test of fairness on review.

In holding that the trial court did not abuse its discretion in making an award based on assets in existence at the time of permanent separation rather than at the time of the final decree, this court is reaffirming the premise stated in Cherry, supra, 66 Ohio St.2d at page 355, 421 N.E.2d 1293:

" * * * Each divorce case is different, and the trial court must be free to consider all the relevant factors. * * *

" * * * Marriage is a union of equals. Neither party should make a profit at the expense of the other. * * * This is why it is ill-advised and...