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Lara Lynn Lipp v. Carl Lee Lipp

November 2, 2011

LARA LYNN LIPP, PLAINTIFF-APPELLEE,
v.
CARL LEE LIPP, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: JUDGMENT: Civil Appeal from Common Pleas Court, Domestic Relations Division, Case No. 08DR248.

The opinion of the court was delivered by: Vukovich, J.

Cite as Lipp v. Lipp,

OPINION

Reversed and Modified in part; Affirmed in part.

JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro

¶{1} Defendant-appellant Carl Lee Lipp appeals from certain aspects of the divorce decree entered by the Columbiana County Common Pleas Court. Appellant contends that the division of marital assets and debts was inequitable as it essentially credited plaintiff-appellee Lara Lynn Lipp twice for the same funds. As explained in detail infra, we agree that the portion of the asset division dealing with the house is unreasonable and thus constitutes an abuse of discretion. Accordingly, we hereby modify the division of marital property and amend the judgment so that the husband is only obligated to pay the wife $23,134.50 for her share of the residence, which represents her separate property contribution plus half of the marital equity in the residence minus the loan for her vehicle which the husband incurred.

¶{2} Appellant also argues that the magistrate abused its discretion in refusing to consider his appraisal and that it was an abuse of discretion to find it in the child's best interests for the wife to be named the residential parent. We conclude that the trial court's decision on these matters was reasonable and thus not an abuse of discretion.

¶{3} For the reasons expressed below, the judgment of the trial court is hereby reversed and modified in part, and affirmed in part.

STATEMENT OF THE CASE

¶{4} The parties were married in 2001, had a child in 2007, and filed for divorce in 2008. The case was tried before a magistrate. Both parties asked to be named residential parent. The parties also disputed the allocation of monetary rights arising from real estate and the distribution of debts. Prior to marriage, the wife owned a residence on Detwiler Road in Beaver Township and the husband owned a residence on Waterford Road in East Palestine. At trial, the parties contested the marital versus separate portions of these properties.

¶{5} On May 21, 2010, the magistrate issued a decision allocating the parties' assets and debts. The magistrate also named the wife the residential parent and granted the husband expanded companionship. The husband filed timely objections.

¶{6} On October 15, 2010, the trial court overruled most of the objections. The court did however amend a portion of the property division by reducing the husband's obligation to the wife by $6,242.50 due to the magistrate's failure to consider the marital reduction of debt on the wife's Detwiler Road property. The husband filed timely notice of appeal.

ASSIGNMENT OF ERROR NUMBER ONE ¶{7} Appellant's first assignment of error provides:

¶{8} "THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT-DEFENDANT IN DIVIDING THE MARITAL ASSETS AND DEBTS UNEQUALLY."

¶{9} A trial court must determine what property is separate and what property is marital. R.C. 3105.171(B). The court must then divide that property equitably. Id. In dividing marital property, the court must divide the property equally unless such a division would be inequitable. R.C. 3105.171(C)(1). See, also, Cherry v. Cherry (1981), 66 Ohio St.2d 348 (a potentially equal division of the marital property is the starting point of the trial court's analysis). In determining the equitable division of the marital property, the court must consider "all relevant factors," including the following statutory factors: the duration of the marriage; the assets and liabilities of the spouses; the desirability of awarding the family home to the spouse with custody; the liquidity of the property to be distributed; the economic desirability of retaining an asset intact or in retaining the interest in an asset; the tax consequences of the property division as regards the respective awards to be made to each spouse; the costs of sale and whether it is necessary that an asset be sold to effectuate an equitable distribution of property; any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; and any other factor the court expressly finds to be relevant and equitable. R.C. 3105.171(F).

¶{10} The husband complains that the wife received a vehicle free and clear of any debt even though the husband incurred approximately $29,491 in debt on the vehicle. (Apt. Br. at 17). However, this statement is not correct. The $29,491 figure was subtracted from the amount the wife was awarded in the property division.

¶{11} Next, the husband points to an error in the arithmetic in the portion of the trial court's judgment that amended the magistrate's decision to give him credit for

marital funds used to reduce debt on the wife's Detwiler property. The trial court noted that a 2004 mortgage in the amount of $103,444*fn1 was reduced to $101,210 by the time of sale and thus attributed the $2,234 reduction to marital funds. The court also found that an $85,000 equity line of credit was reduced during the marriage to $74,385 and thus attributed $10,615 to marital funds. The trial court thus concluded that the marital portion of the $60,000 profit on the sale of the wife's Detwiler property was $12,849 ($2,234 plus $10,615). In dividing this marital portion equally, the court stated that half of $12,849 is $6,242.50. As the ...


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