Background

When hearing a domestic relations case involving a division of property, the trial court must determine what constitutes marital property, that is to be divided, and separate property, that remains with the owner of that property. Unfortunately, in some situations, one party may attempt to hide or misrepresent assets that constitute marital property, so as to minimize its obligations to the soon-to-be ex spouse.

When a court finds that one party has indeed committed some sort of financial misconduct, which could, among other things, be dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets, the court has options, like awarding the wronged party a greater portion of marital assets.[3] The court is also empowered to correct the situation by making an offsetting distributive award to the wronged party, and/or an award of attorney’s fees.[4]

Examples of financial misconduct: Smith v. Smith

In one 2012 Summit County case, the trial court found that the husband had “engaged in a course of conduct cold-bloodily calculated to strip [the wife] of financial assets.” [5] The trial court 1) awarded the wife half of the assets, almost $200,000, that the husband had dissipated in anticipation of the divorce; 2) required the husband to maintain a life insurance policy until he had satisfied this obligation, and also simply because it deemed that insurance investment is important; and 3) required the husband to pay the wife $3,500 monthly until the wife’s death or remarriage. [6]

Here are some underlying facts. The parties were married in 1968, but in 2008, the wife returned home from vacation and found a note from her husband informing her that he had moved to a different state, Oregon, and that he wanted a divorce.[7]

During the seven months prior to his filing for the divorce, the husband liquidated nearly $500,000 in marital assets, including the couples’ interest in an apartment building. Also during this seven month period, the husband:

• Used the funds to pay parts of their children’s’ college loans and upcoming tuition expenses;
• Paid off his car;
• Paid taxes on the property that he had sold;
• Gave money to his divorce attorney; and
• Used $1,000 to move to Oregon.[8]

Ultimately, the trial court determined that the husband had committed financial misconduct, finding that he intentionally deprived the wife of the parties’ marital assets,[9] thus justifying the above-described remedy.

Leathem v. Leathem

Another case, out of Hancock County[10], shows that courts can even go so far as to void one spouse’s transfer of property to a third party under certain circumstances. The court set out the following facts:[11] the parties married in 1941 and had four children. In 1989, the husband conveyed the marital residence to the parties’ son to hold in trust, as trustee, and named himself and his wife as income beneficiaries. Later that year, the wife filed her complaint and sought alimony only.

In 1993, the trial court granted the parties’ legal separation and divided the assets. In so doing, it also determined that the conveyance of the residence was fraudulent, as an attempt to defeat the wife’s rights to an interest in it, because the residence was marital property before it was conveyed into the trust. [12] For this reason, the wife had an interest in it that the husband had undercut.

The court cited the following evidence for its conclusion voiding the conveyance of the home to the son:

• The marital residence was the parties’ only valuable asset;
• [The husband] conveyed the marital residence to their son, to hold as trustee, approximately two months after [the wife] had had a fifth stroke, and after it became necessary for her to reside outside the marital residence;
• The conveyance was at a time when [the wife] needed monies for medical and/or health care;
• [The wife] was not a signatory to the trust agreement;
• [The wife] did not release her inchoate dower rights in the conveyance to the trustee; and
• Even though [the wife] was an income beneficiary of the trust agreement, the trust produced little or no income. [13]

In light of the voided transfer to the son, the trial court ordered the marital property to be sold, and the proceeds, minus the outstanding mortgage, to be divided equally between the parties.[14]

On appeal, the appellate court agreed with the trial court’s conclusion, including the determination that the trial court did not need jurisdiction over the third party/son to effectuate the judgment. [15]

Willoughby v. Willoughby

A 2014 case out of Trumbell County,[16] also involving a transfer of property to avoid the sharing of marital assets, had a different outcome. In short, the husband had sold his dental practice, by way of a contract that the court determined to be valid, to another dentist. [17] Two days later, the wife filed for divorce, pursuant to which the trial court issued an order restraining both parties from disposing of any marital assets. [18]

The trial court found that the selling dentist had engaged in financial misconduct and ordered the purchasing dentist to pay money to the marital estate on the theory that he was unjustly enriched. [19]

But the appellate court reversed, in part because the two dentists had a legitimate contract, executed prior to the trial court’s order prohibiting the sale of any marital assets: “[f]inding that [the seller] engaged in financial misconduct by dissipating a marital asset does not, in any way, invalidate or rescind the contract…The trial court abused its discretion by placing the burden of [the seller’s] financial misconduct on [the buyer].”[20]

Even so, the appellate court “[found] it appropriate to remand [the] matter for consideration of a financial misconduct remedy …as the trial court deems appropriate.” It reasoned that “when unforeseen circumstances defeat a trial court’s equitable division of marital assets, the trial court may make a distributive award in order to achiev

[1] Willoughby v. Willoughby, 11^th Dist. No. 2012-T-0095, 2014-Ohio-743 (March 3, 2014), ¶ 24 (emphasis added)

[2] Id.

[3] Smith v. Smith, 9^th Dist. No. 26013, 2012-Ohio-1716 (April 18, 2012), ¶ 14

[4] Id. at ¶ 36.

[5] Smith v. Smith, 9^th Dist. No. 26013, 2012-Ohio-1716 (April 18, 2012), ¶ 16

[6] Id. at ¶ 4

[7] Id. at ¶ 2

[8] Id. at ¶ 3

[9] Id. at ¶ 4

[10] Leathem v. Leathem, 94 Ohio App. 3d 470, 640 N.E.2d 1210 (3^rd Dist. 1994)

[11] Id. at 471, 472

[12] Id. at 472

[13] Id. at 473

[14] Id.

[15] Id.

[16] Willoughby v. Willoughby, 11^th Dist. No. 2012-T-0095, 2014-Ohio-743 (March 3, 2014)

[17] Id. at ¶ 5, 29

[18] Id. at ¶ 6

[19] Id. at ¶ 1, 41

[20] Id. at ¶ 29, 35

Using social media to air grievances can be an expensive proposition, ultimately not worth trouble. The case Forinash v. Weber , which originated in the Sandusky County Court of Common Pleas, illustrates how litigation in the social media context can play out, not to mention how unpredictable an assessment of damages can be.

Background facts and outcome in the trial court

The plaintiff, who was also the appealing party, Brian Forinash, sued Angela Weber, the mother of his minor child, for damages stemming from her Facebook post in which she asserted that he is “hooked on porn [and] watches dirty movies with teenage girls.” He further alleged that additional Facebook posts, primarily related to an ongoing court battle involving their child, placed him before the public in a false light. Characterizing these posts as defamatory in nature, Mr. Forinash sought an award in excess of $25,000.

After some legal maneuvering, Mr. Forinash asked the court grant him summary judgment. Ms. Weber did not respond, the trial court granted his motion, and set a separate hearing to determine the amount of damages.

The trial court concluded that Mr. Forinash was “clearly defamed by the postings [Ms. Weber] made to her Facebook pages…[and] damaged in his relationship with his daughter with [Ms. Weber], as well as his relationship with his daughter with his ex-wife.” Combined with the finding that Ms. Weber acted with malice, or the intention to cause harm, the court awarded Mr. Forinash $100 in nominal damages, and $500 in punitive damages. The court also ordered Ms. Weber to pay Mr. Forinash’s court costs, along with $2,000 in “reasonable attorney fees incurred by [appellant] in prosecuting this action.”

It is not uncommon for a court to award nominal damages when there is no actual financial loss. Here, the court reasoned that the meager amount was appropriate because Mr. Forinash’s standing in the community had not been tarnished by the Facebook posts; he lives in the Youngstown area, whereas she lives in Sandusky County, “where the Facebook posts would primarily have been read.” Nor, according to the court, did he lose his job, or suffer any reduction in wages due to Ms. Weber’s defamatory statements.

The appeal

Among other things, Mr. Forinash appealed the trial court’s award of nominal damages. He argued that by virtue of the publication of the defamatory statements on the Internet, they were not confined to a certain geographic region. He supported his position with unrefuted testimony revealing that friends from North Carolina questioned him about the on-line statements.

The appellate court agreed with Mr. Forinash’s rationale, declaring that the “record contains no competent and credible evidence to support the court’s finding that [Ms. Weber’s] defamatory statements were only viewed by residents of Sandusky County. Further, it would defy reality to conclude that a post on a social networking Internet site such as Facebook is in any way limited in its geographic reach.”

Thus, the appellate court sent the case back to the trial court to reexamine the issue of damages.

Many people going into a divorce decide ahead of the time that they want to do it the “nice” way. However, often you hear about this and then a few months later it is an entirely different story. In a recent survey done by Herbert & Lux divorce lawyers in Nashville one of the reasons this comes about is because divorce lawyers make more money the more problems there are between couples. They are incentivized to create problems in the divorce. It is important to consider this when choosing your divorce attorney. It is better to address a reputable law firm like Law Office of Seth C. Weston, for instance. The more aggressive your attorney is the more likely you will not reach an amicable settlement with your spouse if that is your goal. You and your spouse will want to make sure whomever you hire will not be this type of attorney. Find best family law attorneys at TiffanyFinaLaw.com.

One option to consider is mediating the divorce if you and your spouse believe this could work for you. If you are able to make many of the decisions on your own, between the two of you, this will save you money in the long run and make the entire process go smoother. It is important to not waste time with an attorney arguing about personal items. Many people become emotional over personal objects and waste their time and money arguing about these items while their lawyers are charging them high fees. Often it is these arguments that make divorces turn ugly.

It can be a challenge to keep everything friendly between you and your soon to be ex-spouse, with risks of deleting facebook and loss of possessions, but there are ways to make this more likely. The attorneys at our firm can help to make this possible.