Dorsey v. Dorsey
| Decision Date | 14 July 2017 |
| Docket Number | Appellate Case No. 27338 |
| Citation | 2017 Ohio 5826 |
| Parties | VICKI S. DORSEY Plaintiff-Appellee/Cross-Appellant v. WILLIAM R. DORSEY, D.O. Defendant-Appellant/Cross-Appellee |
| Court | Ohio Court of Appeals |
(Appeal from Domestic Relations Court)
OPINIONCHARLES D. LOWE, Atty. Reg. No. 0033209, 8087 Washington Village Drive, Suite 102, Dayton, Ohio 45458 Attorney for Plaintiff-Appellee/Cross-Appellant
JOHN D. SMITH, Atty. Reg. No. 0018138, ANDREW P. MEIER, Atty. Reg. No. 0083343, 140 North Main Street, Suite B, Springboro, Ohio 45066 Attorneys for Defendant-Appellant/Cross-Appellee
{¶ 1} In this case, Defendant-Appellant/Cross-Appellee, William Dorsey, appeals from a judgment dividing the parties' property and assessing five percent interest on the unpaid amount of a property settlement awarded to Plaintiff-Appellee/Cross-Appellant, Vicki Dorsey.1 Vicki argues in her cross-appeal that the trial court erred in deciding the accrual date of the interest on the property settlement.
{¶ 2} We conclude that the trial court erred in calculating how a Mercedes automobile was credited in equalizing the property division. The court did not err in any other respects. Accordingly, the judgment of the trial court will be reversed in part, only as to said allocation. On remand, the court will order that the total amount required to equalize the property division, as of September 24, 2015, is $275,804.50. In all other respects, the judgment of the trial court is affirmed.
{¶ 3} This is the third time William and Vicki have been before our court in connection with their divorce decree, which was filed in October 2012. See Dorsey v. Dorsey, 2d Dist. Montgomery No. 25436, 2013-Ohio-4237.
{¶ 4} The record indicates that the parties were married in 1982. In July 2009, Vicki filed a complaint for legal separation, and William subsequently filed an amended answer and counterclaim for divorce in October 2009. The case progressed slowly, and the divorce trial did not take place until late September 2011.
{¶ 5} William was a doctor, and the parties had considerable assets, including hismedical practice, a marital home, a vacation home, several rental properties, retirement accounts, and a life insurance policy with a cash surrender value of several hundred thousand dollars. William also made a substantial income from his medical practice. Vicki was not employed, and the parties' two children were emancipated before the divorce. At trial, the parties stipulated that the de facto termination of their marriage was on July 1, 2010.
{¶ 6} In February 2012, William filed a motion to supplement the evidence because certain litigation involving Caresource had been resolved. At that point, the trial court had not yet issued a decision regarding the divorce decree, and scheduled a hearing on William's motion for May 8, 2012. Subsequently, in late June 2012, Vicki filed a motion asking the court to divide the parties' 2011 federal and state tax refunds, which had been received in 2012, and which William apparently had cashed without giving Vicki any of the money. The court set a hearing on this motion for August 15, 2012, but the hearing was continued.
{¶ 7} In September 2012, the trial court filed a decision regarding the contested divorce, and a final judgment and decree of divorce was then issued on October 15, 2012. The parties had stipulated to the division of some assets, like ownership of real estate and personal property, and the court resolved the remaining issues. Among other things, the trial court awarded Vicki one-half the value of the medical practice, which included a Mercedes automobile, one-half the cash surrender value of two life insurance policies the parties held, and the remaining amount of money in a Fifth Third Bank securities account. In addition, William was to pay Vicki $50,000 for assets he had improperly withdrawn from the Fifth Third account. Dorsey, 2d Dist. Montgomery No. 25436, 2013-Ohio-4237, at ¶ 4-6.
{¶ 8} William appealed to our court, asserting error about the following matters: (1) the value assigned to the Mercedes awarded to Vicki and the credit he was given in connection with the Mercedes; (2) the value assigned to his life insurance policy; and (3) the way in which the trial court had divided the Fifth Third account. Id.at ¶ 10.
{¶ 9} Concerning the Mercedes, we rejected William's argument that the trial court had undervalued the Mercedes by using a fair market value of $50,000. Id. at ¶ 12-14. However, we also concluded that we could not determine the reasonableness of the court's decision about disposition of the Mercedes. Id. at ¶ 19.
{¶ 10} Specifically, the court instructed that William should cause the practice to transfer the Mercedes to Vicki free of debt. The court also credited William with $27,000 toward the property settlement based on the income tax liability resulting from the transfer of the Mercedes. Id. at ¶ 19. We stated that we could not find evidence that the transfer would require William or the corporation to pay $27,000 in taxes, nor had either expert testified how much William would be required to pay in taxes on any gain. Id. We also expressed concern over whether the "court may have double-counted some or all of the value of the Mercedes by awarding Ms. Dorsey the car and half of the value of the medical practice, without seeming to account for the fact that the Mercedes was included in the value of the medical practice." Id. at ¶ 21.
{¶ 11} Regarding the life-insurance policy, we concluded that the trial court had erred in using a cash surrender value of $728,106, which appeared to have been based on the value of the policy on July 25, 2011, rather than July 1, 2010 (the de facto termination of the marriage). Dorsey, 2d Dist. Montgomery No. 25436, 2013-Ohio-4237, at ¶ 26-27. We noted that the trial court could have used a date other than the de facto termination date, but the court did not state that it intended to do so. Id. at ¶ 28.
{¶ 12} We further held that the trial court erred in awarding the entire balance in the Fifth Third account and an additional $50,000 to Vicki. The original amount in the account was $250,000, and each party would have been entitled to $125,000 under an equal distribution of assets. Id. at ¶ 32. The court did not find financial misconduct, nor did it use the unequal division to reduce William's payment of marital property to Vicki. Id. at ¶ 31-32.
{¶ 13} Finally, we rejected William's argument that the trial court abused its discretion in reserving jurisdiction over the issue of the 2011 tax return. We noted that the divorce hearing took place in 2011, before the tax return could have been filed, and that the parties were still married, under the law, throughout 2011. Id. at ¶ 35-39.
{¶ 14} As a result of our findings, we reversed the judgment in part, affirmed it in part, and remanded the case "for clarification of the court's orders with respect to the distribution of the Mercedes and the valuation of Dr. Dorsey's life insurance policy, and for redistribution of the Fifth Third account." Id. at ¶ 41. Our decision was issued on September 27, 2013.
{¶ 15} On remand, the court set a trial date for May 22, 2014; ultimately, the trial took place on June 26, 2014. In the meantime, Vicki filed a motion in May 2014, asking the court to award her interest at the statutory rate from October 15, 2012 (the original judgment date) on the amount required to equalize the property settlement.
{¶ 16} After the hearing, the parties filed joint stipulations on September 9, 2014, to assist the court in deciding the issues pertaining to the life insurance policies. The court then filed a decision on March 16, 2015, resolving the issues other than the interest, and ordered Vicki's attorney to prepare an amendment to the final decree of divorce. However on May 4, 2015, the court vacated this decision and set the matter for a pretrial. On August 8, 2015, the court filed another decision concluding that the cash value of William's life insurance policy was $686,731.27, that the $75,356.99 premium was paid with marital funds, and that the premium should not be subtracted. Vicki's share of the cash value of the life insurance policy, therefore, was $343,365.63. The court also concluded that the Fifth Third account would be divided equally, with $126,182.50 being given to each party.
{¶ 17} In addition, the court divided the 2011 tax returns equally, which gave Vicki an additional $31,512.50. The court held that the assets retained by the parties (not including the cash surrender of the life insurance) were as follows: William - $1,351,110; Vicki - $390,000. After offsetting certain amounts, the court concluded that William should pay Vicki $442,067.50 within 60 days of the filing of the amendment to the divorce decree.
{¶ 18} The court concluded that further testimony was needed on the matter of the increase in value of the insurance policy and interest on the unpaid property settlement. As a result, the court set another hearing for October 28, 2015.
{¶ 19} On September 24, 2015, the court filed an amendment to the final divorce decree, and William filed a notice of appeal from that decision on October 1, 2015. We dismissed the appeal in January 2016, based on the lack of a final appealable order. See Dorsey v. Dorsey, 2d Dist. Montgomery No. 26850 (Jan. 27, 2016).
{¶ 20} In April 2016, the parties agreed that the increase in the value of William's life insurance policy would be determined by applying a five percent interest rate, compounded annually. As was noted, according to the cash surrender value assigned by the court, Vicki's share on July 1, 2010 would have been $343,365.63. As of March 31, 2016, the increase in the value of her share would have been $111,254, with a per diem additional amount due of $60.03 from that point on.
{¶ 21} At that time, Vicki...
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