Groza-Vance v. Vance

Decision Date28 July 2005
Docket NumberNo. 04AP-1216.,04AP-1216.
Citation834 N.E.2d 15,162 Ohio App.3d 510,2005 Ohio 3815
PartiesGROZA-VANCE, Appellee, v. VANCE et al., Appellees; Hay et al., Appellants.
CourtOhio Supreme Court

Kemp, Schaeffer, Rowe & Lardiere Co., L.P.A., Harold R. Kemp, and Jacqueline L. Kemp, Columbus, for appellee Rosemary Groza-Vance.

Gary J. Gottfried Co., L.P.A., and Gary J. Gottfried, Columbus, for appellants.

FRENCH, Judge.

{¶ 1} Defendants-appellants, Martha Hay and Elmer Hay, appeal from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, granting the motion of plaintiff-appellee, Rosemary Groza-Vance ("appellee"), for the imposition of a constructive trust, denying appellants' motion for relief from judgment pursuant to Civ.R. 60(B), and granting in part appellee's request for attorney fees.

{¶ 2} Appellee and defendant-appellee, Lois S. Vance ("Vance"), were married on July 11, 1981, and divorced on May 8, 1984. Appellee was Vance's third wife. No children were born as issue of the marriage.

{¶ 3} At the time of his divorce from appellee, Vance was the president and sole shareholder of Jimmy's, Inc., a named defendant in the divorce proceedings. At the time of the divorce, Jimmy's, Inc., was the owner of real property located in Port St. Lucie, Florida. In an agreed judgment entry/decree of divorce filed May 8, 1984, the trial court ordered Vance to execute a will bequeathing the Florida property, free and clear of all encumbrances, to appellee. The divorce decree further provided that Vance "shall take no action during his lifetime to alter or change this provision of his Will." On or about May 9, 1984, Vance executed a will in compliance with the divorce decree. Appellee recorded the divorce decree in the office of the St. Lucie County, Florida, clerk of court.

{¶ 4} Vance lived with appellants from October 1999 until the summer of 2000, when he was hospitalized and eventually moved into a nursing home. Martha is Vance's daughter from his second marriage, and Elmer is Martha's husband.

{¶ 5} On February 28, 2000, Vance executed a trust agreement and transferred numerous parcels of real estate to the trust created thereby. Vance designated himself and Elmer as cotrustees. On or about April 11, 2000, Vance, as president of Jimmy's, Inc., executed a general warranty deed conveying the Florida property to Martha. Vance died on or about November 28, 2000. As a result of the trust agreement and Vance's transfer of the Florida property to Martha, Vance had no assets at the time of his death. Thus there was no probate estate, and title to the Florida property did not pass to appellee pursuant to Vance's will.

{¶ 6} On May 25, 2001, appellee filed a motion for the imposition of a constructive trust. Appellee argued that, through execution of the trust agreement and conveyance of the Florida property to Martha, Vance intentionally violated the divorce decree. The trial court joined Martha, Elmer, Jimmy's, Inc., and the Lou S. Vance Revocable Trust as defendants on June 4, 2001. Also on June 4, 2001, the trial court issued restraining orders against Martha, Elmer, Jimmy's, Inc., and the Lou S. Vance Revocable Trust, ordering that they were "restrained and enjoined from disposing, transferring, conveying, or reducing the existence or value of any assets or income relating in any manner to Lois S. Vance, directly or indirectly." On July 16, 2003, appellee filed a motion for an order finding appellants in contempt of court for violating the restraining orders by executing five individual mortgages on the Florida property in the aggregate amount of $87,500. Appellee requested an award of attorney fees with respect to her motion for the imposition of a constructive trust and her motion for contempt.

{¶ 7} On July 25, 28, 29, and 30, 2003, the court conducted a trial on appellee's motion for the imposition of a constructive trust and appellee's contempt motion. Prior to trial in July 2003, Martha filed a motion to dismiss appellee's motion for imposition of a constructive trust, arguing that the trial court lacked subject-matter jurisdiction to impose a constructive trust over the Florida property. The court overruled Martha's motion to dismiss from the bench on July 25, 2003. On July 28, 2003, Martha filed a motion for reconsideration of her motion to dismiss, which the court overruled from the bench on July 29, 2003.

{¶ 8} On October 31, 2003, the trial court issued a decision and judgment entry, granting in part appellee's motion for imposition of a constructive trust and granting in part appellee's motion for an order finding appellants in contempt of court. The trial court imposed a constructive trust over the Florida property, ordered Martha to execute a general warranty deed conveying the Florida property to appellee, and made orders regarding rental income received from the Florida property. The trial court also found appellants in contempt of court and ordered appellants to serve ten days in the Franklin County jail, with said sentence suspended upon appellants' obtaining releases from each of the five mortgages secured against the Florida property within ten days from the filing of the decision and judgment entry. The trial court did not address or dispose of appellee's requests for an award of attorney fees relating to either motion. Appellants filed a notice of appeal from the trial court's October 31, 2003 decision and judgment entry on November 24, 2003, which we dismissed for lack of a final, appealable order on December 26, 2003.

{¶ 9} On January 16, 2004, appellants filed a motion for relief from judgment, pursuant to Civ.R. 60(A), requesting the trial court to correct an error in its October 31, 2003 decision and judgment entry regarding the amount of rental income appellants received in 2002. On January 30, 2004, the trial court issued an amended decision and judgment entry correcting the clerical error noted in appellants' motion. Based on the revised rental income for 2002, the court ordered appellee to pay appellants $1,698.73 as the difference between appellants' expenses incurred in excess of the rental income they received from the Florida property.

{¶ 10} Appellants filed a second motion for relief from judgment on May 4, 2004 pursuant to Civ.R. 60(B), arguing that newly discovered evidence regarding their 2003 earnings from rental income justified relief. The trial court denied appellants' Civ.R. 60(B) motion on July 12, 2004.

{¶ 11} On June 16, 2004, the trial court conducted an evidentiary hearing on appellee's requests for attorney fees. On October 19, 2004, the trial court issued a decision and entry denying appellee's request for attorney fees related to her motion for a constructive trust and granting appellee's request for attorney fees related to her motion for contempt. The trial court concluded that appellee was entitled to recover attorney fees of $4,131.53 related to her motion for contempt.

{¶ 12} Appellants set forth the following assignments of error:

1. The trial court erred and abused its discretion, in its decision and entry of January 30, 2004, when it found that the court had jurisdiction to impose a constructive trust over property that is located outside the state of Ohio, in this case the property located at 1885 [Westmoreland] Blvd., Port St. Lucie, Florida.

2. the trial court erred, abused its discretion, and ruled against the manifest weight of the evidence in its decision of January 30, 2004, when it imposed a constructive trust over the [Westmoreland] property.

3. The trial court erred and abused its [discretion], in its decision of October 19, 2004, when it awarded attorney fees in the amount of $4,131.53 to plaintiff.

4. The trial court erred and abused its discretion when it denied defendant-appellants motion for relief pursuant to Civ.R 60(B) in its decision and entry of July 12, 2004.

{¶ 13} In their first assignment of error, appellants assert that the trial court erred and abused its discretion when it determined that it had subject-matter jurisdiction to impose a constructive trust over the Florida property. Appellants argue that a court must have in rem jurisdiction over property before it can declare a constructive trust over it. The trial court orally overruled Martha's motion to dismiss and motion for reconsideration, both of which Martha premised on lack of subject-matter jurisdiction, and reiterated those rulings in its October 31, 2003 and January 30, 2004 judgment entries. The standard of review for a motion to dismiss for lack of subject-matter jurisdiction is whether the complaint raises any cause of action cognizable by the forum. State ex rel. Bush v. Spurlock (1989), 42 Ohio St.3d 77, 80, 537 N.E.2d 641. In reviewing a motion to dismiss for lack of subject-matter jurisdiction, this court's standard of review is de novo. Robinson v. AT & T Network Systems (Mar. 29, 2002), Franklin App. No. 01AP-817, 2002 WL 479762; Campbell v. Johnson (Dec. 30, 1999), Franklin App. No. 99AP-483, 1999 WL 1267348.

{¶ 14} In determining that it had jurisdiction to impose a constructive trust over the Florida property, the trial court relied on Bolinger v. Bolinger (1990), 49 Ohio St.3d 120, 551 N.E.2d 157. In Bolinger, the Ohio Supreme Court held that "the subject-matter jurisdiction of a trial court * * * to formulate an equitable division of the marital assets commences when either party files a complaint for divorce and a division of the marital property." Id. at 123, 551 N.E.2d 157. The trial court determined that in 1984, at the time of appellee and Vance's divorce, it had subject-matter jurisdiction over the parties' marital assets to formulate an equitable division thereof and that such jurisdiction continued as to this postdecree matter. Under Civ.R. 75(J), formerly ...

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