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Sokolowski v. Sokolowski

Court of Appeals of Ohio, Seventh District, Jefferson

December 18, 2017


         Civil Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 16-DR-0007

         For Plaintiff-Appellee: Atty. Mary F. Corabi Corabi Law

         For Defendant-Appellant: Atty. Marian D. Davidson

          Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite


          ROBB, P.J.

         {¶1} Appellant Tina Marie Sokolowski appeals the decision of the Jefferson County Common Pleas Court. She contends the division of marital assets and debts was an abuse of discretion. She also claims the court abused its discretion in not finding Appellee Joseph Arthur Sokolowski engaged in financial misconduct when he cashed an IRA and expended the funds on debts and marital expenses. For the following reasons, the trial court's decision is affirmed.


         {¶2} The parties were married in October 1984. The husband filed a complaint for divorce (without minor children) on March 23, 2015. After a hearing on temporary matters, the court issued temporary orders in a May 13, 2015 entry. The court granted both parties cross-motions to prohibit the other from selling, transferring, liquidating, or otherwise disposing of any assets during the pendency of the matter. At the same time, the husband received the temporary and exclusive use of the marital residence as requested and was ordered to be responsible for the two mortgages, utilities, real estate taxes, and home owner's insurance. The court also ordered him to be responsible for paying all monthly marital expenses during the pendency of the action. The husband was ordered to pay $576 per month in temporary spousal support with credit for making the monthly payment on the Honda CRV driven by the wife ($326) and the monthly automobile insurance ($150). In addition, he was ordered to pay for the wife's health insurance, uninsured medical expenses, and prescription expenses. The divorce trial was held on December 30, 2015. Besides the 2013 Honda CRV, the parties owned two 2009 Honda Civics; the husband drove one and the parties' adult son drove the other. The husband asked for one Civic and wished to sell the other. The parties acknowledged the household goods were previously divided equally and agreed to divide Appellant's Steelworkers' pension equally. They also agreed not to discharge via bankruptcy any of the debts at issue in the action. The parties stipulated to the value of all marital assets and liabilities, with the exception of whether the husband's father loaned them money.

         {¶3} On this topic, the husband's father testified and presented a ledger he kept showing various loans granted to his children and any payments received from them. He explained he loaned money to his children interest-free because he was not receiving interest from the bank and he wished to assist his children in avoiding interest on their loans. (Tr. 12-13, 19). His monthly income in retirement was $1, 600, and he expected his children to pay him back. (Tr. 13, 19, 29, 31). The husband's father testified to loaning the parties $38, 580 during the course of the marriage, for the following items and amounts: $8, 000 for a red car when the wife's car was too old to drive; $6, 000 for a van; $1, 100 for a barn; $3, 000 for a pool; $18, 000 to pay off a house; and other smaller itemized amounts. (Tr. 16-17, 30-31). He pointed to payments he received from them, bringing the loan down to $19, 085 before the recent payment of $10, 000, which left the balance at $9, 085. (Tr. 18).

         {¶4} The husband, who was 55 years old, testified their financial condition was poor due to their spending. (Tr. 48, 54). As to a disputed IRA, the husband explained it was a roll-over account from a retirement settlement after the bankruptcy of a steel mill where he worked from 1979 to 1994, making five years of the time earned in the plan pre-marital. (Tr. 49-51). In order to pay bills, the parties withdrew approximately $10, 000 (after tax and penalty) from the IRA in 2013. (Tr. 52-53). The husband stated this was after he and his wife went to an adviser's office intending to cash in the entire IRA, but the adviser talked them out of it. (Tr. 53). This testimony was not contradicted.

         {¶5} The husband testified his wife moved into her father's house and quit her job in February 2015. Her physician had advised she would be off work for some months as she needed knee surgery. The husband expressed concern to his wife they would go bankrupt, and she responded that she did not want to go bankrupt. (Tr. 55-56). He testified, "We said Well, we'll cash in the IRA and we'll pay up the bills'." (Tr. 55). A March 10, 2015 check statement showed a full withdrawal of the IRA occurred on that date. The gross balance was $58, 866.89; with taxes and fees subtracted, the net amount of the check sent to the husband was $42, 996.28. The husband testified he stopped to visit the wife at her father's house to tell her about the check and she asked, "How much of a beating did we take?" and said, "Aww" when he told her the amount. (Tr. 57, 109).

          {¶6} The husband opened an individual checking account. He said the joint checking account was a disaster due to various overdrafts (as evidenced on bank statements submitted by the wife as an exhibit); he believed the wife caused these issues. He transferred $3, 641 from the joint checking account to his new checking account on March 2, 2015 and $1, 325.98 on March 12, 2015. (It should be noted his paychecks were still being directly deposited into the joint account at this time, e.g., $1, 261.99 on February 26 and $1, 251.53 on March 12, 2015, plus a bonus check.)

         {¶7} The parties' 2014 income tax refund of $7, 020 ($6, 915 federal plus $105 state) was deposited into the joint checking account on March 12, 2015 and transferred into the husband's individual account on March 13, 2015. The husband wrote a check to the wife for half of the amount of the tax refund (and then discovered they had to repay $742 due to their son's individual tax filing).

         {¶8} On March 16, 2015, the husband deposited the IRA check into his individual checking account. He submitted a list of marital debts (totaling $35, 819.43) toward which he applied the IRA proceeds: credit union loan (from when they bought a new air conditioner), $1, 693.87; car loan on one Honda Civic, $7, 808.59; car loan on the other Honda Civic, $8, 274.97; Discover card, $2, 500; Visa card, $1, 800; Sam's Club credit card, $700; PNC card, $900 (a result of the automatic overdraft protection for the joint checking account); balance of hardwood flooring contract, $900; repaid tax for claiming their son on their taxes when he claimed himself, $742; payment on loan to father, $10, 000; and payment for bowls they purchased from his brother, $500[1].

         {¶9} The husband also testified he could not cover all of the marital expenses (and spousal support) with solely his income and used the remainder of the money to assist in paying regular monthly bills (including recurring monthly payments on marital debts) during the ten months between the filing of the complaint and the divorce hearing. (Tr. 63). For instance, he said he paid: $6, 820 for ten months of house payments on the two mortgages; $3, 260 for ten months of car payments on the Honda CRV driven by the wife; $3, 100 for ten months of car insurance on three vehicles; $900 for house insurance; $500 for prescriptions and co-payments; $830 for moving a fence due to a property line dispute; $1, 600 for real estate taxes; $1, 000 for dog food and vaccines; $600 for life insurance; and $800 for car repairs. For court-ordered spousal support, in addition to the wife's car payment and insurance, he paid $100 per month. He also said he gave the wife cash prior to the temporary order. He provided amounts he spent on utilities, pool care, and his own activities over the ten-month period since filing the divorce complaint.

         {¶10} When asked why he did not use the IRA money to pay off the high-interest credit cards, he explained he was hesitant to put more money on the credit cards as he feared the wife would charge more and he believed the wife recently reactivated the Discover card. (Tr. 109-110). He also explained he was going to pay more on the credit cards after the temporary hearing where he sought to prohibit new joint debt, but his wife wanted to be paid for half the tax return (i.e., if she was not using her half to pay the debts, then he was not going to use his half to pay the debts). (Tr. 110).

         {¶11} The wife, who was 54 years old, testified she had two associate's degrees. She also took a course to become a certified nursing assistant and worked in that field for 14 years. Most recently, she worked two days a week, netting $1, 000 per month. (Tr. 54). She stopped working as a result of her need to have knee surgery; her surgery was on March 18, 2015. (Tr. 156). She applied for disability prior to surgery. (Tr. 156). She thereafter began receiving $896 per month in Social Security Disability benefits. (Tr. 163). She needed surgery on her other knee but was waiting until she finished her bachelor's degree in social work. She anticipated being graduated after three more semesters. She received free tuition, books, and gas money after applying for assistance from the Belmont County Department of Jobs and Family Services. (Tr. 158-159). She lived with her father so he would not be placed in a nursing home. (Tr. 159). She consented to the husband refinancing the mortgages and keeping the marital residence. She asked for half of the equity in the house, which they agreed was $46, 500.

         {¶12} Contrary to the husband's testimony, the wife testified she was unaware the husband cashed the IRA when he did. She said he came to see her six days after her surgery and told her he cashed the IRA. She also said she thought he was going to use the money to pay off the credit cards. (Tr. 173). She said, "I did not agree to cashing out all that money. There was going to be too much of a penalty for that and there would be other ways to try to make the bills of the expenses." (Tr. 174). She asked the court to attribute the gross amount of the IRA on the day the husband cashed it as marital property that he already received. (Tr. 174; Def. Ex. H). She then stated she had no issue with the money he paid on the two Honda Civics. (Tr. 185-186). She also opined he should have paid off the high-interest credit cards. (Tr. 182). She complained about various expenses itemized by the husband. It appears she did not realize these were not monthly figures ...

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