Philip E. Fisher v. Carolyn C. Fisher
| Decision Date | 09 July 1997 |
| Docket Number | 97-LW-2002,12-96-13 |
| Parties | PHILIP E. FISHER, PLAINTIFF-APPELLEE, CROSS-APPELLANT v. CAROLYN C. FISHER, DEFENDANT-APPELLANT, CROSS-APPELLEE v. PAUL E. FISHER, THIRD-PARTY DEFENDANT-APPELLEE, CROSS-APPELLANT CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court
MR. PAUL D. RIZOR, Reg. No. 0021102, Attorney at Law, MS. SHELBY D. GOLDEN, Reg. No. 0039787, 1045 Mackenzie Drive, Lima, Ohio 45805, For Defendant-Appellant Cross-Appellee Carolyn Fisher
MR. RICHARD A. FISHER, Reg. No. 0005917, Attorney at Law, P.O. Box 605, Napoleon, Ohio 43545, For Plaintiff-Appellee Cross-Appellant, Philip Fisher
MR. CHARLES F. KOCH, Reg. No. 0004783, Attorney at Law, 106 West Main Street, Van Wert, Ohio 45891, For Third-Party, Defendant-Appellee, Cross-Appellant Paul Fisher
Defendant-Appellant, Carolyn C. Fisher ("appellant") is appealing a divorce decree from the Putnam County Court of Common Pleas, Domestic Relations Division, terminating her marriage, apportioning the separate and marital property between appellant and her husband, Philip Fisher ("appellee"), and awarding appellant a judgment against Paul Fisher ("third party defendant"). The court further ordered appellee to pay seventy-five percent (75%) of appellant's legal fees, one half of all appraisal costs and all court costs. Both appellee and third party defendant have filed cross appeals respectively, regarding this judgment.
Appellant and appellee were married on June 4, 1976 and no children were born as issue of the marriage. Prior to, and during his marriage to appellant, appellee has been involved in the family business of grain and dairy farming known as Diamond Oak Farm. Additionally, appellee has participated in a dairy cow breeding operation known as Fisher Brothers. As part of that breeding operation, a bull named Fisher-Place Mandingo-Twin ("Mandingo")[1] was acquired and subsequently garnered over $1.6 million dollars in semen sales for Diamond Oak Farm.[2]
On September 4, 1993, appellee and appellant separated[3] and on January 4, 1994, appellee filed for divorce.[4] Appellant subsequently filed an answer, counterclaim and third party complaint. The third party complaint alleged that third party defendant, appellee's father, had fraudulently taken possession and control of marital assets. Third party defendant filed a cross claim seeking enforcement of a $75,000.00 promissory note against appellant.
After a seven day trial, the trial court filed a judgment entry on September 27, 1995 granting appellee a divorce and dividing certain pieces of personal property. On October 13, 1995, the court filed a Judgment Entry with Findings of Fact and Conclusions of Law, distributing the marital and separate property of appellee and appellant. The trial court further found that third party defendant had fraudulently diverted assets away from the marital estate and consequently, awarded appellant damages in the amount of $79,826.00 against third party defendant.
On January 16, 1996, appellant filed an appeal from the trial court's October 13, 1995 judgment entry and appellee and third party defendant subsequently filed cross-appeals. On August 14, 1996, we dismissed all of the appeals in Fisher v. Fisher (Aug. 14, 1996), Putnam App. No. 12-96-1, unreported, for want of jurisdiction and remanded the case back to the Putnam County Court of Common Pleas for determination and disposition of outstanding property division issues.
On September 25, 1996, the trial court filed a judgment entry setting forth supplemental conclusions of law pursuant to our remand. It is from this judgment entry that appellant filed her Notice of Appeal on October 23, 1996. On October 31, 1996, appellee filed his Notice of Cross Appeal and on November 1, 1996, third party defendant filed his Notice of Cross Appeal.
In the interests of orderliness, we will address appellant's assignments of error first, followed by appellee's cross assignments of error, and finally, the third party defendant's assignments of error.
In her appeal, appellant raises the following five assignments of error.
R.C. 1775.05 defines a partnership as "an association of two or more persons to carry on as co-owners a business for profit." In Fisher v. Fisher (Aug. 14, 1996), Putnam App. No. 12-96-1, unreported, we previously determined that a partnership had been created due to the fact that appellee, third party defendant, and appellee's brother, John Fisher, had participated in a continuous family farming operation concerning multiple business ventures.[5] Therefore, the trial court correctly determined that Diamond Oak Farm and Fisher Brothers was a partnership.
Moreover, despite appellant's contention to the contrary, we find that the record supports the trial court's inclusion of Paul Fisher as a partner in Diamond Oak Farms. Our review of the record reveals that Paul Fisher participated in the partnership as a silent partner as he contributed cattle, farm equipment, and property to appellee and John Fisher in 1983. See 59A American Jurisprudence 2d (1987) 256, Partnership, section 40.[6] Moreover, when the farming operation officially ended in December of 1993, the partnership property and assets were divided up among Paul Fisher, John Fisher, and appellee. Therefore, we hold that there was competent, credible evidence to warrant the trial court's finding that Paul Fisher was a partner and consequently, was entitled to a share of the partnership proceeds.
Appellant further maintains in her first assignment of error that the trial court should have included certain additional partnership assets in the distribution of marital property. In particular, appellant argues that the following partnership assets should have been included in the division of marital property: a herd of cows, certificates of deposit totalling $105,000.00, one hundred and sixty acres of land known as the "home place", property consisting of a farm[7] and ten acres of woods,[8] genetic materials consisting of semen and ovum, grain crops, and farm equipment and machinery. We will address each claimed asset individually.
1. Appellant is entitled to cows, bulls, and cattle registered in the name of Fisher Brothers, including proceeds of a sale of a portion of this herd conducted by third party defendant and plaintiff after the institution of this action, in the total amount of $317,683.00.
Testimony was introduced at trial that the value of the herd was approximately $200,000.00 in 1983 when Paul Fisher contributed his herd to the partnership for use in the operation of Diamond Oak Farms.[9]Moreover, the record reveals that after the partnership dissolved in 1993, a sale of cattle from that herd was held in 1994 generating $205,900.00. The remaining herd was subsequently appraised in 1995 as being worth $73,490.00. Therefore, the value of the partnership's herd as of the divorce hearing was $279,390.00.
The evidence further demonstrates that the partnership was officially dissolved in December of 1993 when Paul, John, and appellee signed a written agreement dissolving their farming operation and dividing up the assets. R.C. 1775.39 provides rules for settling accounts between partners after dissolution, subject to any agreement of the partners to the contrary. R.C. 1775.39 states in pertinent part as follows:
In settling accounts between the partners after dissolution, the following rules shall be observed, subject to any agreement to the contrary:
(A) The Assets of the partnership are:
(1) The partnership property;
(1) Those owing to creditors other than partners;
(2) Those owing to partners other than for capital and profits;
(3) Those owing to partners in respect of capital;
(4) Those owing to partners in respect of profits.
Therefore, in accordance with R.C. 1775.39, Paul Fisher would be entitled to the value of his capital contribution of the herd to the partnership in 1983, or $200,000.00, prior to the division of any profits earned from the sale of said herd. The remaining value of $79,390.00 is to be split equally between Paul, John, and appellee pursuant to R.C. 1775.39 and 1775.17(A).[10]
The trial court properly awarded one third of the herd value to be included in appellee's marital estate. However, it awarded appellee one third of $81,561.00. The proper amount that appellee is entitled to is one third of $79,390.00 or $26,463.33. Accordingly, appellant is entitled to a portion of appellee's share of the herd value pursuant to R.C. 3105.17.1 as said interest is marital property that was earned during the marriage of appellee and appellant.
2. Certificates of Deposit totaling $105,000.00.
Appellant argues that the trial court erred in not including $105,000.00 worth of Certificates of Deposit (CD's) purchased by Paul Fisher[11] in the division of partnership assets. Consequently, appellant maintains that she is entitled to a portion of those CD's as her share of the marital estate.
Appellant is correct in her assertion that the trial court determined, and the record supports, that numerous certificates of deposit were purchased with Diamond Oak proceeds, including...
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