Hawkins v. Hawkins

• Decision Date: 12 January 1984
• Citation: 464 N.E.2d 199,11 Ohio Misc.2d 18
• Parties: , 11 O.B.R. 303 HAWKINS v. HAWKINS. *
• Court: Ohio Court of Common Pleas

Page 18

11 Ohio Misc.2d 18

464 N.E.2d 199, 11 O.B.R. 303

HAWKINS v. HAWKINS. ^*

Court of Common Pleas of Ohio, Clermont County.

Jan. 12, 1984.

Syllabus by the Court

1. Joint tenancy in Ohio is no longer recognized, and whenever "joint tenancy" may be expressed without words of survivorship, it is to be considered as tenancy in common.

2. Any testimony of a non-expert homeowner concerning the value of real estate based upon hearsay or third-party sources cannot be admitted as evidence.

3. In an action for partition of real property, no counsel fee, whether to the plaintiff's counsel or otherwise, can be allowed by the court and taxed as costs in the case, under R.C. 5307.25, unless the services were rendered for the common benefit of all the parties. (Young v. Stone, 55 Ohio St. 125, followed.)

4. The time expended by plaintiff's attorney in having property partitioned is clearly for the common benefit of both parties and is reimbursable; however, time spent in controversy over the amount of equities, rents and setoffs is for the benefit of a particular client and therefore is not reimbursable. (R.C. 5307.25, construed.)

5. When the court orders property sold in a partition action, the same terms of sale, especially as to the local, customary deposit, are required for all parties involved in the bidding process.

C.D. Mullenix, Cincinnati, for plaintiff.

James G. Nichols, Batavia, for defendant.

RINGLAND, Judge.

This matter came for hearing on the complaint of plaintiff, Jack A. Hawkins, and the answer of defendant, Joanne J. Hawkins, on March 21, 1983. Both plaintiff and defendant were present and represented by counsel and both parties submitted evidence by way of testimony. The court finds that on November 18, 1968, the parties had a hearing in a separate case No. 36499 in this court concerning divorce between the parties. This divorce was journalized on February 7, 1969 and the decree provided that the real estate located at 4229 Tobasco Road "remain in the joint names * * * [of both parties] for a period of five years but during that time * * * [Joanne Hawkins and the children] shall have the exclusive use of the real estate and * * * [Jack Hawkins] shall not be permitted on the premises. * * * At the end of the five-year period the property shall then be the joint property of * * * [both parties], * * * [Joanne Hawkins] however to have in addition to her one-half interest the amount of the net reduction in principal amount due on the mortgage note held on the real estate."

After the five-year period no mention was made between the parties concerning termination of this one-half interest and no mention was made about payments of rent by defendant to plaintiff. On June 2, 1982 plaintiff filed this action being a complaint for partition. On September 9, 1982 the court issued a decree for partition appointing three appraisers who submitted their appraisal of the real estate at $55,000. Plaintiff then elected not to take at the appraised value and filed a motion to require defendant to elect to take. The first issue therefore before this court is what is the amount of each party's equity? Plaintiff claims that he is entitled to rental for the period from 1976 to present and defendant claims that she is entitled to a "set off" of repairs to the real estate, taxes, insurance while she occupied the residence, and the reduction of the mortgage principal as previously ordered in the divorce decree in case No. 36499.

The prior court in its decree specifically kept title in both parties to be determined at another time and not necessarily by the same forum. Counsel for the defendant has argued that this decree creates joint tenancy rather than tenancy in common and is not therefore specifically provided in R.C. 5307.25. The court disagrees. The Statute of Anne (1705), 11 Eng.Stat. 161, Ch. 16, Section 27, provides for partition by a joint tenant or tenant in common. Where a joint tenancy may be expressed without words of survivorship it will be considered as tenancy in common, Foraker v. Kocks (1931), 41 Ohio App. 210, 180 N.E. 743. The decree of divorce by judicial order has maintained the real estate in joint ownership. Joint tenancy in Ohio is no longer recognized and whenever the expression "joint tenancy" may be found without any effort to provide expressly for survivorship, it is uniformly construed as tenancy in common. In re Estate of Hutchison (1929), 120 Ohio St. 542, 166 N.E. 687. Therefore it is the holding of this court based upon failure to show any expressed rights of survivorship as well as the wording of the decree that this real estate is clearly held by both parties as tenants in common.

Defendant further argues that plaintiff is not entitled to rent because he made no demand upon his ex-wife for rent. The court finds that based upon West v. Weyer (1888), 46 Ohio St. 66, 18 N.E. 537, and followed in Cohen v. Cohen (1952), 157 Ohio St. 503, 106 N.E.2d 77 , that no adverse demand is required by plaintiff. In the case at hand rents therefore go back to the statute of limitations which here is six years (June 2, 1976). As to the amount of rent, the plaintiff based his opinion of the rent of the house on the apartment which he occupied as well as his review of listings in the newspapers for the past six years. For each year the figure of $350 was reasonable and while he indicated it may be more, no specific figure was given. Defendant, on the other hand, while initially having no idea of the amount, stated that based upon her experience with the expense of maintaining the household as well as her experience of living in the household and outside sources consisting of newspapers, etc., the figures were somewhat less (as testified to and as mentioned both in evidence and reiterated in defendant's trial brief). The court finds that any testimony of a non-expert homeowner concerning the value of the real estate based upon hearsay or third-party sources cannot be considered. Weir v. Miller (Apr. 13, 1983), Butler App. No. 82-04-0044, unreported. Therefore taking away both parties' sources the court must therefore base its decision on the parties' own personal knowledge. On one hand the plaintiff has based his knowledge on his occupancy of an apartment and on the other defendant has based her testimony of personal knowledge of occupancy of her home for over ten years. These facts, the plaintiff's testimony that the rental figure was the same in 1976 as is at present, as well as the demeanor of both parties, convince the court that defendant's testimony concerning the amount of rents is the more logical and credible; therefore, the court so holds that for 1977 the rentals were $200 per month for a total of $2400, for 1978--$225 per month for a total of $2700, for 1979--$225 per month for a total of $2700, for 1980--$250 per month for a total of $3000, for 1981--$300 per month for a total of $3600, for 1982--$325 per month for a total of $3900, for 1983--$350 per month making a total of $4200, making a grand total of $19,700. Therefore plaintiff is entitled to one-half of these rents based on Cohen v. Cohen, supra.

However, the court finds that defendant is entitled to a setoff. The evidence has shown by testimony of defendant's accountant as well as by a defense exhibit, that the mortgage principal was reduced from a sum of $9395.71, as of the day of the decree of divorce, to the amount of zero in 1979; and that because the court speaks through its journal entry, the day of the decree is controlling since the divorce decree does not specify any other time. See Civ.R. 54 and 58. The defendant is therefore entitled, per the decree, to the setoff of $9395.71. The court further finds that defendant is entitled to a setoff of one-half of her out-of-pocket expenses pursuant to Markland v. Harley (1958), 107 Ohio App. 245, 158 N.E.2d 209 , for repairs made of $1825. ¹ The court rejects any claim for services or labor, since labor was provided by the party and she was not accustomed to charging for her labor or by her son who testified that he provided this labor as an act of love and gift for his mother. The court also awards a setoff in the amount of one-half of $3814.44 for taxes paid from 1976 to present by defendant to which plaintiff apparently does not disagree and in concurrence with Markland, supra.

The next issue is whether or not plaintiff is entitled to attorney fees, how this must be proved, and the amount to be determined. He cites Rule 11 of the Rules of Practice of the Court of Common Pleas of Clermont County, which provides that in partition cases where the land is sold, counsel fees shall be allowed by the court and taxed as part of the costs as follows:

"A. On all sums where the amount of sale price is Ten Thousand ($10,000.00) Dollars or under, six percent (6%), and in addition thereto on all sums where the amount of sale price is more than Ten Thousand ($10,000.00) Dollars, but Twenty Thousand ($20,000.00) Dollars or less, four percent (4%), and on all additional sums where the sale price is in addition to or more than Twenty Thousand ($20,000.00) Dollars, two percent (2%). A minimum fee of One Hundred Fifty ($150.00) Dollars will be allowed in all cases, and an additional amount if the Court deems it just and proper;

"B. Where the land is divided among the parties, counsel fees according to the foregoing schedule, based on the value of the land, as it may be fixed by the Court, shall be allowed and taxed as part of the costs; * * * "

This court has ruled that Rule of Practice 11 of the court of common pleas was not applicable for fixing of plaintiff's attorney fees in a past divorce partition suit, citing Young v. Stone (1896), 55 Ohio St. 125, 45 N.E. 57. The court therefore has permitted counsel for plaintiff to present evidence and testimony concerning the amount of attorney fees that were reasonable pursuant to R.C. 5307.25. Counsel for defendant made no request...