Cherry v. Cherry, s. 80-691

Decision Date10 June 1981
Docket NumberNos. 80-691,80-1107,80-1282 and 80-1435,s. 80-691
Citation421 N.E.2d 1293,66 Ohio St.2d 348
Parties, 20 O.O.3d 318 CHERRY, Appellee, v. CHERRY, Appellant. MARISAY, Appellee, v. MARISAY, Appellant. VANCE, Appellee, v. VANCE, Appellant. WOODS, Appellant, v. WOODS, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

1. There is no presumption, rebuttable or irrebuttable, that marital property be divided equally upon divorce; rather a potentially equal division should be the starting point of the trial court's analysis before it considers the factors listed in R.C. 3105.18 and all other relevant factors. (Wolfe v. Wolfe, 46 Ohio St.2d 399, explained.)

2. A Court of Common Pleas has broad discretion to determine what property division is equitable in a divorce proceeding. The mere fact that a property division is unequal, does not, standing alone, amount to an abuse of discretion.

Four cases have been consolidated herein because they raise a common issue.

In case No. 80-691, appellee, Donald I. Cherry (hereafter the husband), filed a complaint for divorce on January 23, 1978. Appellant, Marjorie A. Cherry (hereafter the wife), filed a counterclaim for divorce on April 28, 1978. On December 11, 1978, the trial court granted the wife a divorce on the grounds that the parties had lived separate and apart for over two years without cohabitation.

At the time of their divorce, the parties had been married nearly 20 years and were both 47 years old. They have two minor children. The husband is an officer of Donald I. Cherry & Associates, Inc., a corporation which acts as a regional sales representative for two furniture manufacturers. The husband owned 80 percent of the stock in the corporation. The wife owned the remaining 20 percent. The business had been started during the marriage and the wife had helped out at first, but later resigned. In 1977, the corporation paid the husband a salary of $52,000 in addition to travel, entertainment, and other business expenses. It also made contributions to the corporation's pension and profit-sharing plans, of which the husband was the sole participant. The husband is a high school graduate. The wife is a Phi Beta Kappa graduate of Tufts University and has a master's degree in education. She works part-time as a teacher and had worked as a teacher prior to having children. Both parties brought less than $8,000 each into the marriage.

The trial court awarded the wife assets valued at $91,000 and awarded the husband assets valued at $165,000. The wife was also awarded a fixed sum of $39,325 payable in 121 monthly installments of $325. The wife was to receive child support in the amount of $200 a month per child. The wife appealed, contending that the trial court abused its discretion in failing to make a substantially equal property division and in failing to order a larger alimony award. She also claimed that the trial court abused its discretion in failing to award her attorney fees. The Court of Appeals affirmed the property division and alimony awards, holding that the wife's share "of marital assets falls within the 30-38% range considered acceptable by this court." The Court of Appeals found, however, that the trial court abused its discretion in failing to determine reasonable attorney fees and awarding payment thereof to the wife. It reversed in part and affirmed in part, and ordered the cause remanded to the trial court.

In case No. 80-1107, appellee, Virginia Marisay (hereafter the wife), filed a complaint for divorce on December 5, 1978. On March 28, 1979, appellant, Robert Marisay (hereafter the husband) filed an answer and a cross-complaint for divorce. On July 31, 1979, the husband filed an amended counterclaim for divorce. The trial court rendered its decision granting the parties a divorce on October 12, 1979.

The parties were married in 1942 and had three children, all of whom were emancipated at the time of the divorce. Both parties were 57 years old when divorced. The wife had left the family home in either 1974 or 1975, and had been living in an apartment. The chief marital asset was the parties' house which had been purchased during the marriage. In 1975, the house was worth between $36,000 and $40,000. Due to appreciation, and the fact that the husband had added a room, the house was worth $60,000, with an outstanding mortgage of $11,500, at the time of the divorce. In 1978, the husband earned approximately $17,000 before taxes. The wife, who had sometimes worked outside the home during the marriage, had become totally disabled and was receiving $279.40 monthly from Social Security.

The trial court, after dividing the personalty, awarded the wife the lump sum of $25,000 as property settlement and $85 per week as support alimony until death, remarriage, or further order of the court. The husband was awarded as property settlement, the marital residence. The husband was also ordered to pay $2,000 to cover the wife's attorney fees. The husband appealed, contending that, under the partnership theory of marital property division mentioned in Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 350 N.E.2d 413, the trial court abused its discretion in awarding the wife $25,000 as property settlement and $85 per week as support alimony. The Court of Appeals affirmed the trial court's decision.

In case No. 80-1282, appellee, Marilyn J. Vance (hereafter the wife), filed a complaint for divorce on July 11, 1979. On September 4, 1979, appellant, J. Rodney Vance (hereafter the husband), filed an answer and a counterclaim for divorce. On December 7, 1979, the trial court filed a judgment entry granting the wife a divorce.

The parties were married in 1957 and divorced in 1979. They have two emancipated children. All their property was held in common. The trial court awarded the wife property worth approximately $27,000. The husband was awarded property worth approximately $41,000. The husband appealed, asserting that the trial court erred in granting the divorce to the wife instead of to him. He also alleged that the trial court abused its discretion in dividing the real property. The wife cross-appealed, claiming that the trial court committed prejudicial error in awarding the husband more than 50 percent of the property.

The Court of Appeals held that the trial court erred in not granting the divorce to the husband instead of the wife. The Court of Appeals, however, held in favor of the wife on her cross-claim. The court, citing Wolfe, supra, held that the trial court abused its discretion in failing to make a substantially equal division of property. It therefore modified the property award. Because the husband initially was awarded property worth $14,000 more than the wife, the court entered a judgment against the husband and in favor of the wife in the amount of $7,000.

In case No. 80-1435, appellant, Joy D. Woods (hereafter the wife), filed a complaint for alimony against appellee, Donald P. Woods (hereafter the husband), on January 12, 1978. On April 13, 1978, the husband filed an answer and a cross-complaint for divorce. At the close of the wife's case at trial, her complaint was amended to be one for divorce. On November 8, 1978, the wife was granted a divorce.

The parties were married in 1967 and have one minor child, born in 1969. They were both in their early forties at the time of the divorce. It was the second marriage for both, and the husband had two children by his previous marriage. The husband is a real estate broker and developer. The wife devoted full time to her duties as a homemaker. She is a college graduate and has had training as a secretary and as a fashion illustrator. The husband brought approximately $115,000 into the marriage. His present worth is between $500,000 and $700,000, and is attributable in large measure to property he brought into the marriage, the subsequent borrowing power derived from that property, and money inherited from relatives. The wife brought an insubstantial amount of money and property into the marriage. She is an only child of parents with a net worth of over $1,000,000.

The trial court awarded the wife the marital residence, having a value of at least $60,000, free of the mortgage, most of the personalty therein, $50,000, a new Cadillac, $10,000 toward her attorney fees, and $800 in monthly support alimony to be paid until remarriage, cohabitation, majority of the child or her gainful employment at $10,000 per year. The husband was also ordered to pay $200 a month child support, to purchase medical insurance for the child, and to purchase life insurance on his own life for the benefit of the child. The wife appealed, contending, inter alia, that the trial court failed to follow Wolfe, supra, and therefore abused its discretion by not making a substantially equal property division. The Court of Appeals modified the award so that the $800 monthly alimony would not terminate unless the wife remarried or was gainfully employed at an annual salary of $20,000. The court, correcting the trial court's failure to set an amount, also ordered the husband to insure his life in the amount of $50,000. The Court of Appeals refused to find that the property division amounted to an abuse of discretion and affirmed the trial court in that regard.

These causes are now before this court pursuant to the allowance of motions to certify the records.

Joyce Emma Barrett, Cleveland, for appellee in case No. 80-691.

Hahn, Loeser, Freedheim, Dean & Wellman, James B. Davis, Stephen J. Knerly, Jr., and James H. Hewitt, III, Cleveland, for appellant in case No. 80-691.

Max Britz Co., L.P.A., and Gene W. Krick, Toledo, for appellee in case No. 80-1107.

Lydy, Moan & Douglas and R. Jeffrey Lydy, Toledo, for appellant in case No. 80-1107.

Frase & Weir Co., L.P.A., Coshocton, and Eugene R. Weir, Coshocton, for appellee in case No. 80-1282.

Michael J. Finney, Coshocton, for appellant in case No. 80-1282.

Frederick J. Buckley,...

To continue reading

Request your trial
2411 cases
  • Alston v. Alston
    • United States
    • Maryland Court of Appeals
    • 1 septembre 1991
    ...v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986); Wanberg v. Wanberg, 664 P.2d 568, 575 (Alaska 1983); Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293, 1298-1299 (1981).11 See, e.g., Hairston v. Hairston, 454 A.2d 1369 (D.C.1983); Miller v. Miller, 84 Ill.App.3d 931, 40 Ill.Dec. ......
  • In re Debolt
    • United States
    • U.S. Bankruptcy Court — Western District of Pennsylvania
    • 23 décembre 1994
    ...division be equal, only equitable. Green v. Green, 1990 WL 131888 at *3 (Ohio App., August 23, 1990), citing Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293, 1298 (1981).11 The Supreme Court of Ohio, in Hoyt v. Hoyt, 53 Ohio St.3d 177, 559 N.E.2d 1292 (Ohio 1990), pointed out that in m......
  • Cline v. Rogers Farm Enters., LLC
    • United States
    • Ohio Court of Appeals
    • 30 mars 2017
    ...N.E.2d 424 (1982). Thus, a party may file a Civ.R. 52 request in order "to ensure the fullest possible review." Cherry v. Cherry, 66 Ohio St.2d 348, 356, 421 N.E.2d 1293 (1981).{¶ 26} In the absence of findings of fact and conclusions of law, an appellate court will presume that the trial c......
  • Goddard v. Goddard
    • United States
    • Ohio Court of Appeals
    • 7 février 2011
    ...See, e.g., Bunten v. Bunten (1998), 126 Ohio App.3d 443, 447, 710 N.E.2d 757; see also [Ohio App.3d 727] Cherry v. Cherry (1981), 66 Ohio St.2d 348, 356, 20 O.O.3d 318, 421 N.E.2d 1293; Security Natl. Bank & Trust Co. v. Springfield City School Dist. Bd. of Edn. (Sept. 17, 1999), Clark App.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT