Boggs v. Boggs, 2008 Ohio 1411 (Ohio App. 3/26/2008)

• Decision Date: 26 March 2008
• Docket Number: No. 07 CAF 02 0014.,07 CAF 02 0014.
• Citation: 2008 Ohio 1411
• Parties: Tina M. Boggs, Plaintiff-Appellee, v. Kenneth R. Boggs, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 1

2008 Ohio 1411

Tina M. Boggs, Plaintiff-Appellee, v.Kenneth R. Boggs, Defendant-Appellant.

No. 07 CAF 02 0014.

Court of Appeals of Ohio, Fifth District, Delaware County.

Date of Judgment Entry: March 26, 2008.

Civil Appeal from Delaware County Court of Common Pleas, Domestic Relations Division Case No. 04 DR-B-10-463.

Affirmed in part, Reversed and Remanded in part.

James W. Brown, Esq., 580 South High Street, Columbus, Ohio 43215, for Plaintiff-Appellee.

Kenneth R. Boggs, Esq., 1170 Old Henderson Rd., Suite 102, Columbus, Ohio 43220, for Defendant-Appellant.

Before: William B. Hoffman, P.J., Sheila G. Farmer, J., Julie A. Edwards, J.

OPINION

EDWARDS, J.

{¶1}Appellant, Kenneth R. Boggs, appeals from the trial court's distribution assets in the final divorce decree.Appellee is Tina Boggs.

STATEMENT OF THE FACTS AND CASE

{¶2} This appeal, in relevant part, pertains to the trial court's consideration and distribution of several property interests including a wrongful termination lawsuit settlement, a company stock withdrawal, retirement accounts and real estate subject to a general warranty deed.The pertinent facts are as follows:

{¶3}Defendant-Appellant, Kenneth Boggs and Plaintiff-Appellee, Tina Boggs were married on October 6, 1990, in Las Vegas, Nevada.Appellant is a duly licensed attorney in the State of Ohio, certified in 1980, with a general solo practice.Appellee has professional experience in customer service and the implementation of pharmaceutical software.

{¶4} From 1997 until October of 2003, appellee worked for Cardinal Health, Inc.In the course of her employment appellee purchased company stock options and contributed to a 401(K) retirement account.

{¶5} Shortly after the parties were married they purchased a home located at 5066 Cascade Drive in Powell, Ohio.The monthly mortgage payments on the property were approximately two thousand five hundred and fifty (2,550.00) dollars.Both parties stopped making mortgage payments in December of 2002.The mortgage on the property remained in default until the foreclosure sale in March of 2005.

{¶6} On January 17, 2003, appellee liquidated Cardinal Health, Inc. stock and received a check in the amount of seventeen thousand ($17,000.00) dollars.

{¶7} In February of 2003, the appellant and appellee separated.Appellant moved out of the marital residence.Appellant's monthly rent, at his new residence, was approximately one thousand and one hundred and fifty ($1,150.00) dollars per month.

{¶8} Thereafter, on or about, February 8, 2003, appellee endorsed the seventeen thousand ($17,000.00) dollar check to a friend for execution.The friend cashed the check and gave appellee the balance.

{¶9} In March of 2003, appellee moved out of the marital residence into a condominium paying approximately one thousand and four hundred ($1,400.00) dollars in monthly rent.Both appellee and appellant removed and retained household goods from the Cascade Drive property.

{¶10} On June 2, 2003, the parties filed a verified joint Chapter 7 Bankruptcy Petition in the United States Bankruptcy Court, Southern District of Ohio, Case Number 03-58213.The bankruptcy petition listed the household goods as having a total estimated value of seven thousand and six hundred ($7,600.00) dollars.The petition also listed appellant's net monthly income after taxes and social security as being three thousand and one hundred and forty ($3,140.00) dollars, and appellee's monthly net income after payroll taxes, social security and insurance deductions, as being two thousand and five hundred ($2,500.00) dollars.

{¶11} The bankruptcy petition additionally stated that each party had an automobile lease agreement.Appellee had a three year lease, from March 28, 2002 until March 1, 2005, for a 2002 Cadillac Seville STS. Appellant had a three year lease, from March 1, 2002 until March 1, 2005, for a GMC, DTS.

{¶12} On June 4, 2003, a foreclosure complaint was filed against the Cascade Drive property in Delaware County Court of Common Pleas, Case Number 03-CVE-063-87.On or about July 10, 2003, the foreclosure action was stayed pursuant to the federal bankruptcy action.

{¶13} In September of 2003, the couples' joint debt, of approximately four hundred and forty thousand, six hundred and seventy nine ($440,679.00) dollars, was discharged by the Bankruptcy Court.Appellee was permitted to retain her Cardinal HealthInc. 401(k).

{¶14} On October 22, 2003, appellee's employment with Cardinal Health was terminated.Appellee filed a complaint for wrongful termination against Cardinal Health Inc., in the United States District Court, Southern District of Ohio, Case Number C2-044-41.Appellant, as counsel of record, filed the initial wrongful termination complaint on behalf of the Appellee.However, appellee subsequently retained other counsel for representation.

{¶15} On January 8, 2004, the Bankruptcy Trustee filed an abandonment of the parties' real property located at 5066 Cascade Drive in Powell, Ohio.In the notice the trustee stated that "[t]he trustee believes that there is not equity in the aforementioned debtor's property and/or that this asset is of inconsequential or burdensome value to the bankruptcy estate".The trustee further stated that "the debtors are now in default upon the Promissory Note and that there is due and owing a balance of $292,535.34 plus interest at 6.75% per annum from December 1, 2002.The debtors are entitled to a personal homestead exemption in the amount of $10,000.00.The approximate value of the real estate described herein is $385,000.00."

{¶16} On March 4, 2004, the Bankruptcy Trustee recommended that the action be closed as being a "no asset" case.

{¶17} In March of 2004, appellee was unemployed and unable to pay her monthly expenses.As a result appellee moved back into the marital residence on Cascade Drive.Upon returning to the marital residence, appellee paid all the outstanding debts on the property including utilities etc., with the exception of the outstanding mortgage payments.Additionally, necessary repairs were made and financed by both appellee and appellant.However, the property remained in foreclosure.

{¶18} In August of 2004, appellee transferred the Cardinal HealthInc. 401(K) account from Cardinal Health to First investments.¹At the time of the transfer, the account balance was approximately one hundred and one thousand ($101,000.00) dollars.

{¶19} In September of 2004, appellee withdrew sixty-five thousand ($65,000.00) from the First Investment IRA account.The withdrawal resulted in a total tax liability of approximately twenty thousand ($20,000.00) dollars.An initial withholding of approximately nine thousand ($9,000.00) was made at the time of withdrawal.On or about, September 18, 2004, appellee deposited fifty five thousand two hundred and forty seven dollars and thirty three cents ($55,247.33) into her individual Telhio Credit Union account.Thereafter, approximately eleven thousand, two hundred, and ninety seven ($11,297.00) dollars in tax liability plus penalties remained due and owing.

{¶20} From March of 2003 until October of 2004, appellant provided minimal support for appellee in the following manner: the payment of six (6) months of car insurance at eighty ($80.00) dollars per payment and the purchase of new tires for her vehicle in the amount of one thousand and seven hundred ($1,700.00) dollars.Otherwise both parties maintained separate households and expenses.Furthermore, during appellee's unemployment, both parties contributed to the payment of COBRA medical insurance coverage.

{¶21} On September 13, 2004, appellee began employment as an implementation specialist with Amerisource Bergen.At her new employment appellee earned an annual salary of sixty thousand ($60,000.00) dollars plus benefits.Appellee's net monthly income was three thousand, eight hundred and nineteen ($3,819.46) dollars and forty six cents.Additionally, appellee placed appellant on her medical benefits plan with Amerisource.

{¶22} From September 18, 2004, through approximately October 12, 2004, the available IRA withdrawal of approximately forty-five thousand ($45,000.00) dollars was used solely by appellee for credit card payments, medical bills, a car lease, attorney's fees and other miscellaneous living expenses.Specifically, on or about October 6, 2004, twenty-nine thousand ($29,000.00) dollars was used to finance a four year lease of a Cadillac.Additionally, approximately seven thousand and five hundred ($7,500.00) dollars was distributed for attorney's fees including five thousand ($5,000.00) dollars for representation in the wrongful termination action and two thousand and five hundred ($2,500.00) dollars as a retainer fee for representation in the divorce action.The remaining available balance was apparently used for miscellaneous living expenses.

{¶23} On October 15, 2004, appellee, represented by retained counsel, filed a complaint for divorce and motion for sale of the marital residence.On December 16, 2004, appellant, represented by retained counsel, filed an answer, counterclaim for divorce and motion for spousal support.

{¶24} On October 18, 2004, the trial court issued a standard restraining order against the appellant.On December 16, 2004, the trial court issued the identical, standard restraining order against the appellee.Both restraining orders prohibited either party from misappropriating marital funds or property.

{¶25} In December of 2004, appellant moved into a residence located at Southwest Becks Knob Road in Lancaster, Ohio.At the time, appellant was not eligible for financing due to the bankruptcy action.As a result, he asked Keanon and Bonita Slade to purchase the property on his behalf.Appellant and the Slades then executed a lease with option to purchase agreement.In accordance with the agreement, appellant was obligated to pay monthly the first and second mortgage...