Stephenson
P.J.:
This
is an appeal from a judgment entered by the Adams County
Common Pleas Court granting Patricia A. Sutterfield
plaintiff below and appellant herein, a divorce from Robert
E. Sutterfield, defendant below and appellee herein.
Appellant appeals from that judgment and assigns the
following errors:
"I.
The trial court failed to provide for the medical care of the
parties' minor child.
II.
The trial court abused its discretion in dividing the
parties' real estate interests, and failed to disentangle
their economic partnership so as to create a conclusion and
finality to their marriage.
III.
The trial court's disposition of a Corvette automobile
was contrary to the evidence and was an abuse of discretion.
IV.
The trial court failed to place a value on the parties'
personal property and abused its discretion in the award of
that property.
V.
The trial court's disposition of the marital home was
inequitable and contrary to law."
The
following facts are pertinent to this appeal. The parties
were originally married in Clintwood, Virginia on March 8,
1971. One child, Crystal Sutterfield, was born as issue of
the marriage on July 25, 1975. The parties separated, and
their marriage was dissolved on November 2, 1979, by the
Adams County Common Pleas Court. The parties subsequently
remarried on August 25, 1981. The parties separated-again in
1988, and appellant filed for divorce on November 22, 1988 in
the Adams County Common Pleas Court.
Hearings were held on August 5, 12 & 18, 1989 wherein the
following pertinent evidence was adduced. Appellant was a
real estate broker, and appellee had a bulldozing business.
Together, the parties also owned a large amount of property,
most of which consisted of farms which were purchased and
subdivided. The court made the following findings with
respect to the real property:
"The Plaintiff and Defendant own the following property
as joint tenants with the right of survivorship and as such
is marital property:
a) 106 North Manchester Street, West Union, Ohio (This
property is known as the R.P.M. Auto Lot Valued per
stipulation at $29,000).
b) A lot on State Route 41, West Union, Ohio (This property
is known as Car Lot No. 2 Valued per stipulation at
$30,000.).
c) 5.36 acres, Tiffin Township, Adams County, Ohio (Dillon
property Valued per stipulation at $8000.).
d) 24,88 acres, Tiffin Township, Adams County, Ohio (Hays
Farm Valued per stipulation at $25,000.).
e) 25.30 acres, Tiffin Township, Adams County, Ohio (Winniger
Farm Valued per stipulation at $29,500.).
f) 10.71 acres, Green Township, Adams County, Ohio (Lockart
[sic] Farm #1 Valued per stipulation at 30,000).
g) 73.75 acres, Green Township, Adams County, Ohio (Lockart
[sic] Farm #2 valued per stipulation at $150,000.).
h) Lot #36 at Lake Waynoka, Brown County, Ohio (Valued per
stipulation at 500.) Lots above total $302,500.
* * *
The Plaintiff and Defendant are the vendors and owners of a
substantial number of Land Installment Contracts and there is
owed to Plaintiff and Defendant pursuant to these contracts
approximately Nine Hundred and Fifteen thousand Dollars and
00/100 ($915,000.00). Both parties agree that this is marital
property with exception of the Nixon Farm Land Contracts
which Defendant alleges is non marital."
The
parties also presented evidence with respect to their
personal property and various bank accounts. After hearing
all of the evidence, by entry filed on March 5, 1990, the
court awarded appellant a divorce and custody of the
parties' child. With respect to the personal property,
the court awarded each party what they had in their
possession at the time of the hearing. In its entry, the
court also awarded appellee the marital residence and
appellant a farm as non marital property. With respect to the
remainder of the real estate, the court made the following
order:
"IT IS ORDERED that the Defendant shall have the first
right and option to purchase all of the marital real estate
jointly owned by the Plaintiff and Defendant * * * IT IS
ORDERED, pursuant to the rational of this Court as set forth
in the November 6, 1989 Decision, that the Defendant shall be
given the right to purchase this real estate for a total
purchase price of One Hundred and Six Thousand Dollars and
00/100 ($106,000.00).
In the event that the Defendant elects to purchase said real
estate, he must notify the Plaintiff within one hundred and
twenty (120) days of the journalization of this Divorce
Decree and Judgment Entry of his intention to exercise said
option.
In the event the Defendant does not exercise the option to
purchase the Plaintiff's interest in said real estate
within one hundred and twenty (120) days, IT IS HEREBY
ORDERED that the Plaintiff shall have the option to purchase
the Defendant's interest in said real estate for the
total amount of One Hundred and Ninety-Six Thousand Two
Hundred and Thirty-Six Dollars and 00/100 ($196,236.00).
[2]
The Plaintiff must exercise her option within one hundred and
twenty (120) days after the Defendant's option period has
elapsed.
In the event either the Plaintiff or the Defendant exercise
the options as set forth above, the party exercising said
option shall assume and pay the Lockhart Farm mortgage in the
approximate amount of Ninety-Eight Thousand Nine Hundred and
Ninety Dollars and 00/100 ($98,990.00), the Winniger mortgage
in the approximate amount of Forty-Seven Thousand Six Hundred
and Thirty-Nine Dollars and 00/100 ($47,639.00), the
Holsinger/ Popular Ridge mortgage in the approximate amount
of Ten Thousand Dollars and 00/100 ($10,000.00) and the
Robinson Farm mortgage in the approximate amount of
Twenty-Two Thousand One Hundred and Eighty Dollars and 00/100
($22,180.00).
Furthermore, in the event that either party exercise this
option, the party exercising the option shall receive all of
the Land Contracts, excluding the Nixon Farm Land Contracts
which are hereby awarded to the Defendant. IT IS ORDERED that
the party exercising the option to purchase the aforesaid
real estate and receiving the Land Contracts shall b entitled
to pay from the income of those Land Contracts the monthly
mortgage payment on each tract of land encumbered by a
mortgage. It is the intention of the Court in making this
order that the real estate mortgages shall be continued to be
paid from the proceeds from the Land Contracts as the
Plaintiff and Defendant did prior to the divorce action and
as the Plaintiff has done during this divorce action.
IT IS FURTHER ORDERED that the party exercising the option to
purchase shall pay one-half of all of the net proceeds
received from the Land Installment Contracts to the other
party. IT IS ORDERED that for purposes of this judgment
"Net Income" shall mean: all monthly income from
the Land Contracts minus the monthly promissory note and
mortgage payments on the real estate purchased by the party
exercising the option.
Furthermore, as previously set forth in this order, IT IS
ORDERED that the Defendant shall pay the Plaintiff one-half
(1/2) of all of the gross proceeds that he receives from the
Nixon Farm Land Installment Contracts. These payments shall
be alimony payments and shall terminate when Defendant no
longer receives income from these Land Contracts.
In the event neither party exercises their respective options
to purchase the real estate within the option period
specified herein, IT IS HEREBY ORDERED AND ADJUDGED that all
of the real estate owned jointly by the Plaintiff and
Defendant shall be sold at public action and IT IS ORDERED
that all of the Land Installment Contracts, with exception of
the Nixon Farm Land Installment Contracts, shall be sold and
the proceeds shall be applied as follows:
1. Satisfaction of all of the indebtedness on the real estate
which has been specified above.
2. The expense of sale of real estate and Land Contracts.
3. Forty-Four Thousand Nine Hundred and Eighty-Six Dollars
and 00/100 ($44,986.00) to the Defendant.
4. Balance of the proceeds to be divided equally between
Plaintiff and Defendant."
In her first assignment of error, appellant asserts that the
lower court erred in failing to provide for medical care for
the parties' minor child. In its journal entry which
granted appellant a divorce, the trial court awarded custody
of the parties' daughter to appellant and required
appellee to pay child support. However, there was nothing in
the entry on the issue of medical care.
R.C.
3109.05(A), in pertinent part, states that the trial
"court shall include in the support order the
requirement that one or both of the parents provide for the
health care needs of the child ..." The word
"shall" when used as a statute is to "be
construed as mandatory unless there appears a clear and
unequivocal legislative intent that it receive a construction
other than its ordinary usage." Dorrian v. Scioto
Conserv. Dist. (1971), 27 Ohio St. 2d 102, paragraph one
of the syllabus; Edwards v. Sadusky (1982), 4 Ohio
App. 3d 297, 301. See also Stephan v. State Veterinary
Medical Board (1960), 113 Ohio App. 538, 543. There is
nothing in R.C. 3109.05(A) which would indicate that the
language used in that section is to be given anything other
than its ordinary meaning. Accordingly, the court had a duty
to specifically order one or both of the parties to provide
for the medical needs of the child and, therefore, erred in
failing to do so.
Appellee concedes that the trial court should have included
such an order in its entry;...
