Dancer v. Dancer
| Decision Date | 26 April 2022 |
| Docket Number | Case No. 119,559 |
| Citation | 513 P.3d 569 |
| Parties | In re the Marriage of: Alison Faith DANCER, Petitioner/Appellant/Counter-Appellee, v. Jack Tom DANCER, Respondent/Appellee/Counter-Appellant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Melissa DeLacerda, Jimmy Oliver, DELACERDA & OLIVER, ATTORNEYS AT LAW, Stillwater, Oklahoma, and Keith A. Jones, KA JONES LAW, PLLC, Tulsa, Oklahoma, For Petitioner/Appellant/Counter-Appellee,
Laura McConnell-Corbyn, HARTZOG CONGER CASON, Oklahoma City, Oklahoma, For Respondent/Appellee/Counter-Appellant.
OPINION BY ROBERT D. BELL, PRESIDING JUDGE:
¶1 In this dissolution of marriage proceeding, Petitioner/Appellant/Counter-Appellee, Alison Faith Dancer (Wife), and Respondent/Appellee/Counter-Appellant, Jack Tom Dancer (Husband), both appeal from portions of the trial court's decree valuing and dividing marital assets and determining separate property. We hold the trial court abused its discretion when it determined the home occupied by the parties during the marriage (marital home) was marital property and when it awarded Husband 75% of the marital home's value. The marital home is Husband's separate property, but there is a marital component in the increase in value of the home due to the parties’ efforts, skills or funds during the parties’ twenty-five (25) year marriage. The trial court's characterization of the marital home as marital property is reversed and remanded. On remand, the trial court shall hold a hearing to determine the increase in value of the marital home in accordance with Thielenhaus v. Thielenhaus , 1995 OK 5, 890 P.2d 925, and shall award Wife an equitable share of such increase in value. We further hold the trial court abused its discretion when it failed to award Wife an equitable share post-petition passive increase in value of the Well Fargo Account ending #4203. The trial court's award of this increase to Husband is reversed and remanded. On remand the trial court is ordered to ascertain and award Wife an equitable share of such passive increase in value. We cannot find the trial court abused its discretion when it denied Husband's dissipation of marital assets claim. Wife did not dissipate marital assets when she expended marital assets - two (2) years prior to file date of the petition - for mental health care. This portion of the decree is affirmed. We hold the trial court abused its discretion when it awarded Husband an offset of $82,470.00 for Husband's investment of separate funds in Wife's marital business. This portion of the trial court's decree is reversed. The remainder of the decree is affirmed. The trial court's decree is affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.
¶2 The parties married on November 4, 1995. The parties’ marriage was dissolved January 12, 2021, and a decree of dissolution of marriage was filed April 14, 2021. Wife is a psychiatrist and Husband is a retired general surgeon. This was Husband's second marriage and Wife's first marriage. There are no children of this marriage. The parties met while Wife was completing her medical education. Husband was in his mid-50s and Wife was in her mid-20s when they married. Husband brought substantial assets to the marriage. Wife brought no assets to the marriage.
¶3 In 1994, while the parties were dating, Husband purchased a parcel of real property with separate cash and he contracted with an architect and builder to construct a home. The home eventually became the marital home and the parties occupied the marital home for over twenty (20) years. Both parties were actively involved in the planning stages and the construction of the home. On April 26, 1994, Husband obtained a one-year loan in the amount of $270,000.00 from Stillwater National Bank (Bank). Husband also borrowed approximately $50,000.00 from Bank to build specialized craftsman furniture for the marital home. These loans were secured by mortgages filed against the marital home. At trial, Husband denied the one-year "construction" loan was ever funded and claimed he used his separate property, i.e. certificates of deposits and monies at Bank, to pay the construction draws.
¶4 When the parties married in November 1995, the house was not complete. The parties moved into the marital home January 1996. In October 1996, Husband obtained two loans from Bank and mortgaged the marital home to secure the two loans. The first loan was for $207,000.00 and the second loan was for $109,900.00 (total $316,900.00). The loans’ settlement statement listed the "PAYOFF" amount for two prior secured loans from Stillwater Bank in the amount of $272,130.12 and $54,130.47. Notwithstanding the settlement statement, filed mortgages and other documentation, Husband disputed that the marital home "was the agent that received" the borrowed funds. Husband testified he borrowed funds in 1996, and mortgaged the marital home as collateral, to acquire, repair and remodel other separate and marital real property. All mortgage payments, homeowner's insurance, landscaping costs, and home repairs were paid with marital funds. The parties claimed the mortgage interest deduction of $151,700.00 on their joint income tax returns for years 2001-2011.
¶5 Husband testified he expended his personal funds to assist Wife in "starting up" her medical practice. These costs included office space, malpractice insurance and an answering service. Husband did not testify as to the amount of such funds, nor did he produce any documentation reflecting this expenditure. Wife testified her start-up costs were limited and that marital funds were used to purchase artwork, decorations, equipment, and furniture. Husband's attorney offered a depreciation schedule on the parties’ 2015 tax return showing depreciation of $164,940.00 related to Wife's practice. On cross, Wife acknowledged that amount was listed on the depreciation schedule, but denied the depreciated assets were start-up assets. Wife testified she opened her practice in January 1996, and that the depreciated assets were purchased in 1998, 1999, 2001-03, 2012 and 2015.
¶6 In 2013, Wife sought mental health counseling with the reverend at the parties’ church. Wife developed "inappropriate feelings" for the reverend. In February 2015, Wife entered in-patient treatment at The Menninger Clinic in Houston. The parties expended marital funds of $160,400.00 to pay for the medical treatment and Wife's office expenses. When Wife returned to Oklahoma, she lived apart from Husband for less than a year. Thereafter, Wife lived with Husband in the marital home until the trial court entered its temporary order on May 16, 2018, and awarded Husband temporary use and possession of the marital home.
¶7 Wife filed a petition for dissolution of marriage January 19, 2018. The merits trial was held over five (5) days. Both parties submitted proposed findings of facts and conclusions of law. On January 12, 2021, the court issued an order and findings of the court. The trial court determined the marital residence was marital property because several mortgages against the property were repaid with marital funds; the parties claimed the home mortgage interest deduction on 10 federal income tax returns; Wife resided in the home for over twenty years; and Wife was regularly involved with the construction of the home. The court awarded Husband possession of the home and 75% of its value. The court valued the vehicle driven by Wife at $5,000.00 and valued and divided other marital assets and set aside separate property to the parties. The trial court determined a Wells Fargo Account ending #4203 was a marital asset, and valued the account, as of the date of the petition, at $773,773.00, and awarded each party one half of this value.
¶8 Before the decree was filed, Wife filed a motion to clarify only addressing Account #4203. Wife contended Account #4203 passively accumulated an additional $200,000.00 by the end of 2019, and that the court failed to equitably divide this accumulation. After a hearing, the court awarded all post-separation passive income on Wells Fargo Account #4203 - a marital asset - to Husband.
¶9 The court denied Husband's claim that Wife should be charged the $160,400.00 in marital assets that she dissipated from the marital estate due to Wife's inappropriate relationship with the reverend. The court found Wife acknowledged $164,940.00 [of Husband's separate property] was invested by Husband to assist Wife in developing her medical practice and the court ordered Wife to pay Husband an offset of $82,470.00.
¶10 Wife now appeals from the trial court's uneven division of the marital home, the court's valuation of the vehicle, the court's failure to divide the passive growth of the Wells Fargo Account #4203, and the court's offset award of $82,470.00 to Husband. Husband counter appeals from the trial court's denial of his dissipation of marital assets claim. Husband also counter-appeals the trial court's determination that the marital home is marital property, but concedes if the marital home is marital property, then the trial court's 75/25 division is equitable. Alternatively, Husband contends Wife failed to meet her burden of proving that marital efforts, skills and funds increased the value of Husband's premarital home; therefore, Wife has no claim to the in-marriage enhancement in value of the marital home.
¶11 Dissolution of marriage proceedings are of equitable cognizance. Metcalf v. Metcalf , 2020 OK 20, ¶9, 465 P.3d 1187. The trial court has discretionary power to divide the marital estate and there is a presumption in favor of the trial court's findings. Id. This Court will not set aside the trial court's findings unless the trial court abused its discretion or the findings are against the clear weight of the evidence. Id.
¶12 We first address Husband's claim that Wife is precluded from seeking appellate relief for all issues - except the...
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