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Texas Case Law

BEST BUMPER SUP. v. COTERILL, 08-02-00021-CV (Tex.App. 2004)

No. 08-02-00021-CV

September 15, 2004.

This is an appeal filed by Appellant, intervenor below in a divorce action filed between Glenn Alan Coterill as Petitioner, and Appellee, Lorrie Lou Coterill as Respondent below. Appellant is a corporation solely owned by Glenn Alan Coterill. Appellant participated in the trial of the case below as an intervenor pursuing a claim against Appellee.

Mississippi Reports

JOHNSON v. JOHNSON, 877 So.2d 485 (Miss.App. 2003)

No. 2002-CA-01552-COA.

December 16, 2003. Rehearing Denied April 6, 2004. Certiorari Denied July 9, 2004.

1. Paula L. Johnson appeals a chancellor's division of marital assets, award of alimony and attorney's fees, pursuant to a consent for divorce under Mississippi Code Annotated Section 93-5-2. We reverse and remand for an equitable division of the parties' marital property and/or for a proper and sufficient award of lump sum and/or periodic alimony.

Missouri Case Law

TAYLOR v. CLARK, 25471 (Mo.App.S.D. 2004)

No. 25471

June 30, 2004

Wilda J. Taylor ("Wilda") brought an action against Robert L. Clark ("Robert"), Janette K. Clark ("Janette"), and Clark Drilling, Inc. ("Clark Drilling") under Missouri's Fraudulent Transfers Act (§§ 428.005 - 428.059, RSMo 2000) and common law in which she alleged that transfers occurred among the defendants through which Robert and Janette attempted to evade a debt Robert owed Wilda for maintenance pursuant to a dissolution decree. Wilda appeals from the February 26, 2003 amended judgment in which the trial court ruled in her favor on one of three counts from her petition, finding that certain stock transfers were fraudulent, in violation of § 428.024, RSMo 2000, and awarding her damages in the amount of $23,773. Wilda raises eight points on appeal, which will be discussed following a more complete recitation of the pertinent facts.[fn1]

New York Court of Appeals Reports



Decided June 10, 2004.

We are being asked in this matrimonial case to determine whether Supreme Court erred by declining to adjust defendant's child support obligation to account for the distributive award payments he was obligated to pay plaintiff for her share of the future enhanced earnings attributable to his medical license. We conclude that Supreme Court did not err as a matter of law and in particular, under the circumstances of this case, did not abuse its discretion in determining the distributive award or in its application of the Child Support Standards Act (CSSA).

Iowa Reports

IN RE MARRIAGE OF FRETT, 4-083/03-1305 (Iowa App. 5-14-2004)

No. 4-083/03-1305

Filed May 14, 2004

Lisa and Robert Frett were married in 1978. They have two children: Macy, born in 1986, and Raelyn, born in 1989. Lisa filed a petition for dissolution of the parties' marriage on June 21, 2002.

Nebraska Reports

GANGWISH v. GANGWISH, 267 Neb. 901 (2004)

No. S-02-274.

Filed April 29, 2004.

Kimberley Faye Gangwish appeals from the decree dissolving her marriage to Paul Allan Gangwish, and Paul cross-appeals. At issue in this appeal are the trial court's decisions with respect to the property division, the child support determination, and an attorney fees award.

Connecticut Appellate Decisions

PAGETT v. WESTPORT PRECISION, INC., 82 Conn. App. 526 (2004)

(AC 23304)

Officially released April 20, 2004

The defendant, Westport Precision, Inc., appeals from the judgment of the trial court ordering the issuance of a writ of mandamus to the plaintiff, Michael G. Pagett, pursuant to General Statutes § 33-946 (b) and (c). The order required the defendant to allow the plaintiff, a minority shareholder who was a former employee currently engaged in litigation against the defendant, to inspect and to copy certain corporate financial records and tax returns. On appeal, the defendant argues that the court improperly granted the writ of mandamus after incorrectly finding that the plaintiff (1) had established that his demand was made in good faith and for a proper purpose, (2) had stated his purpose with reasonable particularity and (3) had proven that the records requested were directly connected with his purpose.

Ohio Unpublished Opinions

GREEN v. SHALL, Unpublished Decision (3-31-2004)

C.A. No. L-03-1123, Trial Court No. DR2001-0917.

Decided: March 31, 2004.

{1} This is an appeal from the April 7, 2003 judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, which granted the parties, appellant/cross-appellee, Rita Green, and appellee/cross-appellant, Robert Shall, a divorce and divided the parties' marital property. For the following reasons, we reverse, in part, and affirm, in part, the decision of the trial court.

New Jersey Superior Court Reports

STENEKEN v. STENEKEN, 367 N.J. Super. 427 (2004)

No. A-4435-02T2


In this matrimonial action, defendant Gary Steneken appeals from a February 24, 2003 order of the Family Part, after our remand, increasing alimony to $5,500 per month, $1,500 more than the amount originally set by the trial judge in the February 14, 2000 final judgment of divorce, and awarding plaintiff Marilyn Steneken counsel fees. The novel issue raised in this appeal is whether it is impermissible "double counting" to value defendant's business based on his reasonable, rather than actual, compensation and then to calculate alimony based on the same excess salary that was added back to business income, thus increasing the value of the corporate asset for which plaintiff already received her share in equitable distribution.

Virginia Court of Appeals Unpublished Opinions

SAMUEL v. SAMUEL, Va. App. Unpublished (2004)

Record No. Nos. 2501-01-2, 1417-01-2.

January 28, 2004.

Brenda Kislek Samuel (wife) appeals the judgment of the trial court in two separate cases. In Record No. 2501-01-2 (Samuel II), wife appeals the trial court's dismissal of her motion for judgment alleging a breach of the parties' "Agreement Regarding Separation, Support and Division of Property" (Agreement) by Thomas Franklin Samuel, Jr. (husband). In Record No. 1417-01-2 (Samuel I), wife appeals the trial court's dismissal of a rule to show cause issued against husband for his alleged violation of the terms of the final decree of divorce by failing to pay wife certain sums in accordance with the Agreement. Husband argues (1) that wife's appeal in Samuel II is barred because wife failed to appeal the trial court's order dismissing her motion for judgment and (2) that the trial court's judgment in Samuel I should be affirmed because wife agreed that the trial court's letter opinion in Samuel II, which was incorporated into the trial court's order dismissing the rule to show cause, resolved the matters at issue in Samuel I. Husband also requests an award of attorney's fees and costs associated with these appeals. For the reasons that follow, we dismiss wife's appeal in Samuel II, affirm the judgment of the trial court in Samuel I, award husband reasonable appellate attorney's fees and costs, and remand these cases to the trial court for determination of those fees and costs.

Kentucky Reports

SEXTON v. SEXTON, 125 S.W.3d 258 (Ky. 2004)

No. 2001-SC-0204-DG.

January 22, 2004.

This dissolution-of-marriage action presents one primary issue for our consideration. Appellee owned an apartment building before his marriage to Appellant. During the marriage, in exchange for the apartment building, the parties acquired in their joint names an undivided one-sixth (1/6) partnership interest in Autumn Park Partnership (Autumn Park), a real estate partnership. At the time of the exchange, Appellee had a 94% nonmarital interest in the apartment building. Both the trial court and the Court of Appeals held that Appellee's nonmarital interest in the apartment building did not become marital property because the partnership interest was placed in the parties' joint names. Therefore, Appellee was awarded a 94% nonmarital interest in the parties' partnership interest in Autumn Park. Did Appellee's nonmarital interest in the apartment building transmute into marital property when the partnership interest was placed in the parties' joint names? Because, one, title is not controlling in determining property's character, and, two, Appellee and his parents did not intend for Appellant to receive any interest in the partnership as a result of placing the partnership interest in the parties' joint names, we hold that Appellee's nonmarital interest in the apartment building did not become marital property simply because it was used to acquire property that was placed in the parties' joint names. Accordingly, we affirm the Court of Appeals's decision upholding the trial court's judgment awarding Appellee a 94% nonmarital interest in the parties' partnership interest.

Massachusetts Superior Court

ELLIS v. VARNEY, No. 9801397 (January 9, 2004)

No. 9801397.

Memorandum Dated January 9, 2004.

This is an action by the plaintiff, Jane Ellis ("Ellis"), a minority shareholder of Varney Bros. Sand & Gravel, Inc. ("Varney Bros."), a closely-held corporation, against the corporation and its directors and officers. The defendant Linda Varney ("Linda") is president of the corporation and is the stepmother of the plaintiff, having been married to the plaintiff's late father, Richard E. Varney ("Richard"). The defendant Jon Varney ("Jon"), stepbrother of the plaintiff, is vice president and a director and shareholder; the defendant Barbara Jerrier ("Jerrier") is a vice president, director and employee; and the defendant Bartholomew Molloy ("Molloy") is clerk and a director.

Indiana Case Law

ESTATE OF PENZENIK v. PENZ PRODUCTS, 800 N.E.2d 1007 (Ind.App. 2003)

No. 71A05-0304-CV-192.

December 31, 2003.

The Estate of Gregory Penzenik ("the Estate") and the Gregory Penzenik Trust ("the Trust") (collectively "the Appellants") appeal the trial court's judgment requiring the Trust to sell its shares of Penz Products, Inc. ("Penz") pursuant to a 1991 Stock Sale and Purchase Agreement ("the Agreement"). The Appellants present several issues for our review, but we address a single dispositive issue, namely, whether the trial court erred when it found that the Trust is required to sell its shares to Penz under the Agreement.

Virginia Court of Appeals Reports

OWENS v. OWENS, 41 Va. App. 844 (2003)

Record No. 3140-02-3.

December 16, 2003.

Ewell James Owens appeals four aspects of the trial court's equitable distribution award in this divorce case. He claims the trial court erred by failing to (a) apply a minority discount to his stock in a closely held company, (b) reduce the award to account for tax consequences that would arise upon a future sale of the stock, (c) adjust the award to back out his personal wages from the company that had been previously incorporated into the cash-flow valuation model, and (d) allow him more than four months to pay the cash award before docketing the monetary judgment against him. Finding that the chancellor did not abuse his discretion, we affirm.

West Virginia Supreme Court Reports

MAY v. MAY, 214 W. Va. 394 (2003)

No. 31123

Filed: November 10, 2003 Concurring Opinion Added December 4, 2003

This matter arises from a final order of the Family Court of Hancock County resolving the equitable distribution of marital property between Hillman H. May (hereinafter referred to as "Dr. May"), appellant/defendant below, and Carol S. May (hereinafter referred to as "Mrs. May"), appellee/plaintiff below. In this appeal, Dr. May contends that the family court judge erred in adopting a report by Mrs. May's expert that assigned a value for goodwill to his dental practice, and erred in the distribution of real property. After considering the briefs and oral arguments of the parties, we affirm in part, reverse in part, and remand.

North Carolina Reports

ALLEY v. ALLEY, 161 N.C. App. 181 (2003)

No. COA02-594

Filed 4 November 2003 This case not for publication

Plaintiff appeals an interim allocation order entered 19 November 1999 and an equitable distribution judgment entered 28 November 2000. Plaintiff contends that the trial court erred in: (1) its valuation of the parties' closely held business; (2) its classification, valuation, and distribution of certain debts; (3) failing to classify, value, and distribute Defendant's individual retirement account (IRA); (4) failing to classify, value and distribute a debt owed to Plaintiff; and (5) entering an equitable distribution judgment based on incomplete and invalid findings of fact and conclusions of law. For the following reasons, we agree in part, and remand for further proceedings.

Illinois Appellate Court Reports

IN RE MARRIAGE OF SCHNEIDER, 343 Ill. App.3d 628 (2003)

No. 2-02-0894

October 24, 2003.

The respondent, Jodi Ann Schneider, appeals from the March 4, 2002, order of the circuit court of Lake County dissolving her marriage to the petitioner, Earl M. Schneider. On appeal, Jodi argues that the trial court erred in (1) failing to require Earl to maintain a life insurance policy naming his children as the irrevocable beneficiaries; (2) valuing Earl's dental practice; and (3) failing to award her attorney fees. We affirm in part and reverse in part.

New York Appellate Division Reports

PELLINO v. PELLINO, 308 A.D.2d 522 [2d Dept 2003]


September 22, 2003.

An oral stipulation of settlement that is made in open court and stenographically recorded is enforceable as a contract, and is governed by general contract principles for its interpretation and effect (see Argento v. Argento, 304 A.D.2d 684; Carnicelli v. Carnicelli, 205 A.D.2d 726, 727-728). The role of the court is to determine the intent and purpose of the stipulation based on an examination of the record as a whole ( see Argento v. Argento, supra; Carnicelli v. Carnicelli, supra). In addition, " `[w]hen a court analyzes a stipulation which has more than one possible meaning, and where one or more of the possible interpretations will result in a consequence which the proof might not sustain and which seems unusual in the circumstances of the case, the court should be careful not to apply the broader interpretation absent a clear manifestation of intent' " ( Matter of Weiss v. Weiss, 289 A.D.2d 498, quoting Kraker v. Roll, 100 A.D.2d 424, 438). Moreover, a court should not, under the guise of interpretation, make a new contract for the parties ( see McWade v. McWade, 253 A.D.2d 798, 799; Sklerov v. Sklerov, 231 A.D.2d 622).

North Carolina Reports

BASS v. BASS, 160 N.C. App. 251 (2003)

No. COA02-1068

Filed 2 September 2003 This case not for publication

Martin Lee Bass ("plaintiff") and Vickie Lynn Bass ("defendant") were married on 16 June 1990, separated on or about 22 October 1997, and divorced on 14 December 1998. The parties' cross-claims for equitable distribution were heard on 7 September 2001, and on 16 January 2002, the trial court entered a Judgment of Distribution of Marital Property (the "equitable distribution order") in which the trial court identified, and assigned a monetary value to, each item of marital property pursuant to N.C. Gen. Stat. § 50-20 (2001). One item determined by the trial court to be marital property was Bass Bonding Company, Inc. ("Bass Bonding"), a bail-bonding business established together by the parties during their marriage. With respect to the valuation of Bass Bonding, the trial court made extensive findings of fact as follows:

Tennessee Unpublished Opinions

KERCE v. KERCE, M2002-01744-COA-R3-CV (Tenn.App. 8-29-2003)

No. M2002-01744-COA-R3-CV.

Filed August 29, 2003.

The appellant Stephen Paul Kerce challenges the divorce decree entered in Moore County Circuit Court, alleging that the court erred in its valuation and distribution of the marital estate. We affirm.

Missouri Case Law

MOORE v. MOORE, 111 S.W.3d 530 (Mo.App.S.D. 2003)

No. 24650

June 30, 2003 Motion for Rehearing or Transfer to Supreme Court Denied July 22, 2003 Application for Transfer Denied August 26, 2003

Melanie D. Moore (wife) appeals the determination in a dissolution action that certain trust assets were separate property of Charles M. Moore (husband). This court affirms the dissolution judgment in part, reverses it in part, and remands.

Minnesota Reports

IN RE MARRIAGE OF GOTTSACKER, 664 N.W.2d 848 (Minn. 2003)

No. C1-02-615.

Filed: July 17, 2003.

In this appeal of a marriage dissolution decree, appellant-husband, Gregory Alan Gottsacker (Gottsacker), seeks review of the lower courts' determinations that (1) respondent-wife Janis Edwards Gottsacker's (Edwards)[fn1] Accumulated Adjustment Account (AAA) in a subchapter S corporation is nonmarital property, and (2) Gottsacker is not entitled to any reimbursement for taxes Edwards paid on the subchapter S corporation's interest during the marriage. Edwards seeks review of the lower courts' determination that her ownership interest in another closely held corporation, which interest she purchased with distributions from the subchapter S corporation, is marital property. We affirm.

Michigan Court of Appeals Reports

OLSON v. OLSON, 256 Mich. App. 619 (2003)

Nos. 230588, 237244, 237288.

Decided May 27, 2003, at 9:05 a.m. Updated July 7, 2003.

In Docket No. 230588, defendant John M. Olson, III, appeals as of right and contests the manner in which the trial court divided certain property and the award of spousal support in this acrimonious and litigious divorce action. In Docket No. 237244, defendant appeals by leave granted the order entered by Wayne Circuit Judge Cynthia Stephens, acting as chief judge pro tem, denying his motion to disqualify Wayne Circuit Judge Richard B. Halloran, Jr., from entertaining postjudgment motions filed by attorney Henry Baskin on behalf of plaintiff Linda Olson. In Docket No. 237288, defendant appeals as of right the August 14, 2001, "Judgment and Award of Costs and Attorney Fees" by which Judge Halloran awarded plaintiff additional attorney fees and costs in the amount of $573,729.[fn1]

New Jersey Superior Court Reports

FIREMAN'S FUND v. IMBESI, 361 N.J. Super. 539 (2003)

No. A-3443-01T3

Decided July 1, 2003 [fn1] The name used in this opinion is fictitious in order to protect the privacy of the party. Page 540

This is an insurance coverage dispute involving the employers' liability aspect of workers' compensation and employers' liability policies. In the underlying litigation, Sally James sued her former employers, Click Corporation of America, Inc. (Click) and North American Beverage Company (North American), and their principal and her former supervisor, John C. Imbesi (Imbesi). (None of the parties have sought to pursue this litigation anonymously. In view of the subject matter, we use a pseudonym, Sally James, for the claimant-appellant only.) She alleged, among other things, sexual harassment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-12. She claimed both compensatory and punitive damages. The case settled before trial.

Nebraska Reports

COFFEY v. COFFEY, 11 Neb. App. 788 (2003)

No. A-02-051.

Filed May 13, 2003.

Stacy A. Coffey, now known as Stacy A. Ryan, appeals from an order by the district court for Douglas County, which terminated the joint custody arrangement in the decree of dissolution and awarded custody of the parties' minor children to J. Michael Coffey, subject to Stacy's specific visitation. Stacy asserts error to the award of custody, visitation, and child support; the assignment of bank accounts held for the benefit of the children; and orders sealing the court file. In Michael's cross-appeal, he assigns error with regard to fees for his own attorneys and fees for the guardian ad litem (GAL) and the GAL's attorney

Arkansas Cases

COLE v. COLE, 82 Ark. App. 47 (2003)

CA 02-232

Opinion Delivered April 30, 2003

This appeal involves the financial aspects of the dissolution of a twenty-five-year marriage. The trial court divided the marital estate, including the husband's interest in a medical practice and associated entities, and also awarded spousal and child support. Appellant Cindy Cole (wife) has appealed, taking issue principally with the division of the marital estate, the award of spousal support, and the award of child support. Appellee Randall Cole (husband) has cross-appealed on the issue of calculation of his income for child-support purposes. We have determined that the trial court's judgment should be reversed and remanded.

New Hampshire Case Law


No. 2002-240

Opinion Issued April 30, 2003

The respondent, Julie Watterworth (Wife), appeals the orders of the Portsmouth Family Division (DeVries, J.) approving the final divorce decree recommended by the Marital Master (Stephanie T. Nute, Esq.). She objects to the trial court's calculation of child support and division of marital assets. We affirm in part, vacate in part and remand.

Missouri Case Law

SUMNERS v. SERVICE VENDING COMPANY, INC., 102 S.W.3d 37 (Mo.App.S.D. 2003)

Nos. 24932, 24949

February 24, 2003 Motion for Rehearing and Transfer Denied March 18, 2003

The plaintiffs' declaratory judgment petitions asked that a "Buy-Sell Agreement" between Jerry Sumners, Jr. ("Jerry, Jr.") and Service Vending Company, Inc. ("Defendant") be interpreted as not requiring Jerry, Jr. to sell his stock in the company to Defendant. Defendant's responsive pleadings included a counterclaim for specific performance of the Buy-Sell Agreement. Via summary judgment, the trial court ruled adversely to the plaintiffs and ordered Jerry, Jr. to assign his stock to Defendant.

Nebraska Reports

SCHUMAN v. SCHUMAN, 265 Neb. 459 (2003)

No. S-01-904.

Filed March 14, 2003.

Natalie K. Schuman appeals from a decree entered by the district court for Lancaster County which dissolved her marriage to Bradley W. Schuman and divided the marital estate. Bradley cross-appeals. Both parties assert that the court erred in its valuation and division of the marital estate.

Tennessee Unpublished Opinions

NICELEY v. NICELEY, M2001-02182-COA-R3-CV (Tenn.App. 3-14-2003)

No. M2001-02182-COA-R3-CV.

Filed March 14, 2003.

After a sixteen-year marriage and one child, Husband and Wife both filed for divorce. After hearing the evidence, the trial court fashioned a parenting plan which named Husband the primary residential parent during the school year and named Wife the primary residential parent during the summer and most holidays and school breaks; valued and divided the marital property; and awarded Wife attorney's fees as alimony in solido. We affirm the parenting plan and the distribution of marital property but reverse the award of attorney's fees because the trial court found Wife was not economically disadvantaged.

New York Appellate Division Reports

PECHMAN v. PECHMAN, 303 A.D.2d 479 [2d Dept 2003]


March 10, 2003.

Contrary to the husband's contention, the Supreme Court properly exercised its discretion in appointing an independent accountant to audit the financial records of nonparty Lexington Glass Company, Inc. (hereinafter Lexington), the closely-held corporation owned and managed by his family. The husband is the president of Lexington. The record indicates that the husband has been less than forthright regarding his income and finances, despite his statutorily-mandated duty to disclose such information (see Domestic Relations Law § 236 Dom. Rel.[B][4]). Furthermore, the corporate tax returns for the three years preceding the commencement of the action indicated that the husband was an equal owner in the company until one month after the commencement of the action when, for reasons unclear in the record, the corporate accountant was instructed to amend the tax returns to reflect that the husband's father was the sole owner of the corporation. The record also indicates that the personal finances of the husband and other corporate officers were so completely commingled with the finances of the corporation that the value of their income and benefits and their purported shares in the corporation could not be delineated without a complete audit of the corporate records. Information pertaining to the husband's finances is crucial to the ability of the Supreme Court to equitably distribute the assets of the marriage and to determine any awards for maintenance and child support (see Domestic Relations Law § 236 Dom. Rel.[B]; Gellman v. Gellman, 160 A.D.2d 265, 267; De La Roche v. De La Roche, 209 A.D.2d 157, 158; Kaye v. Kaye, 102 A.D.2d 682, 686). Since such information can only be found in the intricate corporate records, it was well within the discretion of the Supreme Court to order the audit (see Burns v. Burns, 84 N.Y.2d 369, 375; Litman v. Litman, 61 N.Y.2d 918, 920; French v. French, 288 A.D.2d 256).

Iowa Reports

IN RE THE MARRIAGE OF CRAWFORD, 2-925/02-0551 (Iowa App. 1-29-2003)

No. 2-925/02-0551

Filed January 29, 2003

Appellant, Terence Edward Crawford, appeals, and appellee, Patricia Joan Crawford, cross appeals challenging the economic provisions of the decree dissolving their nineteen-year marriage. We affirm.

Wisconsin Case Law (Unpublished)

IN RE MARRIAGE FRANZEN v. FRANZEN, 2003 WI App 42, 260 Wis.2d 601


Opinion Released: January 29, 2003. Opinion Filed: January 29, 2003.

Richard Leroy Franzen appeals from a judgment of divorce and order denying his motion for reconsideration regarding the valuation of his interest in a closely-held corporation, Rick & Vic's Foods, Inc. (Rick & Vic's). Richard argues that the trial court's valuation of Rick & Vic's was contrary to the great weight and clear preponderance of the evidence; specifically, Richard argues that his expert established the actual fair market value of Rick & Vic's and the valuation method relied upon by the trial court, the earnings before interest, taxes, depreciation and amoritization method (EBITDA), was not a reliable valuation method because it failed to account for Rick & Vic's non-operational debt. We disagree and affirm the judgment and order.

Ohio Unpublished Opinions

OFFENBERG v. OFFENBERG, Unpublished Decision (1-23-2003)

Nos. 78885, 78886, 79425, 79426.

Decided January 23, 2003.

{1} This is an appeal and cross appeal from a judgment by Domestic Relations Judge Anthony J. Russo that adopted and modified, in part, the recommendations of Magistrate John R. Homolak on issues of child support, attorney fees, sanctions, and contempt. Plaintiff-appellant Pnina Glassman, fka Offenberg, asserts that appellee/cross appellant Nathan Offenberg's self-generated income for purposes of child support computation was improperly and arbitrarily determined, awards for attorney fees were arbitrarily low, her motions for Civ.R. 37 sanctions were wrongfully denied, her motions for contempt and judgment against Offenberg's new wife, Esther, should have been granted, and Offenberg should not have been given a credit for asserted child support overpayments and travel expenses.

Washington Court of Appeals Reports

MARRIAGE OF SIMS, 20283-6-III (Wash.App. 1-23-2003)

No. 20283-6-III

Filed: January 23, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

After 12 years of marriage, Jane and Louis Sims separated and Jane petitioned for dissolution. Five years and numerous hearings later, the couple's marriage was dissolved. The trial court awarded Jane assets and liabilities worth approximately $1,009,400 and awarded Louis assets and liabilities worth approximately $923,600. On appeal, Louis challenges the trial court's classification, valuation, and distribution of several assets, including the family home, an apartment building, and stock in Output Technology Corporation (OTC). He contends the trial court erroneously assumed he and Jane had a meretricious relationship before he was divorced from his first wife. He also contends the trial court refused to adjust the distribution when Louis became unemployed after trial but before final entry of the decree. Because we find that the trial court did not abuse its discretion in characterizing, valuing, or distributing the property, we affirm.

New Hampshire Case Law


No. 2001-536

Opinion Issued December 31, 2002

The petitioner, Peter Letendre, appeals the divorce decree issued by the Salem Family Division (Reardon, J.) awarding the respondent, Linda Letendre, alimony, health insurance coverage and an unequal interest in the marital estate. We affirm.

Montana Case Law

STATE v. DEBUS, 2002 MT 307

No. 01-847

Decided: December 12, 2002 Page 58

1 The Appellant, Keith Debus, was charged by information filed in the District Court for the Eighteenth Judicial District in Gallatin County with felony theft. Following a two-day nonjury trial, the District Court issued its Verdict in which it found Debus guilty of the offense charged. The District Court sentenced Debus to eight years in the Montana State Prison, all suspended except ninety days to be served in the Gallatin County Detention Center, and ordered Debus to pay restitution to the victims. Debus appeals his conviction. We reverse the judgment of the District Court.

Kansas Case Law

MYNATT v. COLLIS, 274 Kan. 850 (2002)

No. 87,418

Opinion filed: November 1, 2002.

This is a lawsuit brought by William S. Mynatt, Mynatt Truck & Equipment, Inc. (Mynatt Truck), a Kansas corporation, against David W. Collis and Ann M. Hughes, husband and wife. Highly summarized, the lawsuit was to recover money used by the two individuals for their own personal use and for punitive damages in favor of Mynatt and Mynatt Truck.

Massachusetts Superior Court

CONKLIN, v. PERDUE, No. 990335BLS (Sep. 17, 2002)

No. 990335BLS

September 17, 2002

The plaintiff, Jeffrey M. Conklin ("Conklin"), at the time of the start of the trial on June 18, 2002, was unemployed. He is a graduate of Boston College and holds a J.D. degree from Villanova University and an M.B.A. degree from Duke University.

Washington Court of Appeals Reports

MARRIAGE OF BALTRUSIS, 48558-0-I (Wash.App. 9-16-2002)

No. 48558-0-I.

Filed: September 16, 2002. UNPUBLISHED OPINION.

In this dissolution case, we must decide whether the trial court correctly valued the marital property or erred in calculating child support. We affirm the property distribution, but reverse the order of child support and remand for further proceedings.

Alaska Case Law

MARTIN v. MARTIN, 52 P.3d 724 (Alaska 2002)

No. S-9837.

July 19, 2002. Rehearing Denied Sept 5, 2002.

A husband appealing the property division in a divorce contends that the trial court erred in finding that the parties intended to treat the husband's premarital business as marital property. We affirm, because the husband used marital funds to finance the business and because, at the husband's request, the wife made substantial uncompensated contributions to the business during the fifteen-year marriage. We also affirm the contested property valuations, but reverse the award of the husband's premarital camera to the wife.

Ohio Unpublished Opinions

ABERNETHY v. ABERNETHY, Unpublished Decision (8-15-2002)

No. 80406.

Decided August 15, 2002.

Robert H. Abernethy appeals from a judgment of the domestic relations division of the common pleas court granting Eve Abernethy's complaint for divorce, setting the duration of marriage from 1977 to January 2000 and dividing the marital property accordingly, ordering him to pay $1530/month in spousal support, and ordering him to contribute $10,000 toward Eve's attorney fees.

South Dakota Supreme Court Reports

LAIRD v. LAIRD, 2002 SD 99

No. 21998

Opinion Filed August 7, 2002.

[1.] Circuit Judge James W. Anderson sitting for Justice Richard W. Sabers, disqualified, delivers the majority opinion of the Court on Issues One, Two and Four.

Pennsylvania Superior Court Reports

FISHMAN v. FISHMAN, 2002 PA Super 250

No. 3390 EDA 2001.

Filed: August 1, 2002.

2 Steven Fishman ("husband") and wife were married on June 19, 1977. Trial Court Opinion, 2/11/02, at 1. The parties separated in June 1994, and have not lived together since that date. Id. Wife continues to inhabit the marital residence.

Indiana Case Law

TROST-STEFFEN v. STEFFEN, 772 N.E.2d 500 (Ind.App. 2002)

No. 61A05-0110-CV-441

July 30, 2002

Catherine Trost-Steffen (Mother) appeals the trial court's order that dissolved her marriage to Kenneth L. Steffen (Father). She raises the following four restated issues: I.Whether the trial court's property distribution, which awarded 85% of the net estate to Mother and 15% to Father, was erroneous because such distribution awarded only 24% of the jointly held property to Mother.

Pennsylvania Superior Court Reports

FITZGERALD v. KEMPF, 2002 PA Super 23

No. 1075 EDA 2001.

Filed: July 16, 2002. Petition for Reargument Filed July 29, 2002.

1 Steven Kempf appeals from the March 26, 2001, order awarding child support in the amount of $11,733 per month. Due to numerous trial court errors, we reverse and remand.

New Jersey Superior Court Reports

LORO v. DEL COLLIANO, 354 N.J. Super. 212 (2002)


Decided June 6, 2002

This appeal again raises issues that we recently addressed in Issacson v. Issacson, 348 N.J. Super. 560, 581-82 (App. Div. 2002), certif. denied, 174 N.J. 364, 807 A.2d 195 (2002), and requires us to consider the modification of a child support award where the supporting parent is a "high-income earner" and the income of the parties exceeds the child support guidelines. We focus on the "incidental benefits" that may accrue to the custodial parent of a child who benefits from a supporting parents "good fortune." We conclude that the judge properly increased child support to $700 per week but failed to adequately address the custodial parent's entitlement to nonessential items of support, specifically, improvements to the custodial home and furniture for the child. He also erred in his methodology for the award of counsel fees. Accordingly, we affirm that portion of the order of July 14, 2000, increasing child support from $500 per week to $700 per week and reverse and remand for further proceedings as to: (a) the denial of nonessential benefits to the child and custodial parent; and (b) the award of counsel fees to plaintiff. In all other respects, the orders under appeal are affirmed.[fn1]

Ohio Unpublished Opinions

KELLEY v. KELLEY, Unpublished Decision (5-13-2002)

Case No. CA2001-04-087.

May 13, 2002.

Defendant-appellant, Joseph Kelley ("Kelley"), appeals the decision of the Butler County Court of Common Pleas, Domestic Relations Division, valuing and dividing assets and awarding spousal support in a divorce proceeding against plaintiff-appellee, Beverly Kelley nka Hingsbergen ("Hingsbergen"). We affirm the trial court's decision in part and reverse the order in part.

Alaska Case Law

FAULKNER v. GOLDFUSS, 46 P.3d 993 (Alaska 2002)

No. S-9658.

May 10, 2002.

Kimberly (Kim) Faulkner raises numerous issues concerning child support, child custody, and property division in her divorce from Steven Goldfuss. We affirm as to most of these issues, including child custody. But because it was error to disallow Kim a deduction for the depreciation of several rental properties, to include as gross income child support Kim received for a child from a previous relationship, and to subtract the amount of that child support from her proposed deduction under Alaska Civil Rule 90.3(a)(1)(C), we vacate the child support award and remand for a recalculation of child support. And because the superior court valued the marital share of Kim's military retirement based on the number of months she was employed during coverture, rather than the number of points she earned during coverture, we remand for additional findings.

Ohio Unpublished Opinions

MURPHY-GREEN v. GREEN, Unpublished Decision (5-6-2002)

Case No. CA2001-07-171.

May 6, 2002.

Defendant-appellant, James Green, appeals a decision of the Butler County Court of Common Pleas, Domestic Relations Division, denying his motion to modify child support.[fn1]

Nebraska Reports

MEDLOCK v. MEDLOCK, 263 Neb. 666 (2002)

No. S-00-1083.

Filed April 12, 2002.

This is an appeal from the decree dissolving the marriage of Linda Marie Medlock and Melvin "Buddy" Eugene Medlock. The issue presented in this appeal is whether Linda was entitled to a share of the assets of Union Oaks, Inc., a nonprofit religious corporation operated by Buddy.

Massachusetts Supreme Judicial / Appeals Courts

CHAMPION v. CHAMPION, 54 Mass. App. Ct. 215 (2002)

No. 98-P-808.

March 19, 2002.

This matter comes to us on cross appeals from an amended judgment of divorce nisi and an amended judgment on a complaint for modification. Both parties assert that the trial judge erred in his valuation of the sole proprietorship of the former husband (Gary), and in determining the amount of support awarded the former wife (Joyce). We affirm the judgments.

Ohio Unpublished Opinions

TUCKOSH v. TUCKOSH, Unpublished Decision (3-15-2002)

Case No. 00 526 CA.

Dated March 15, 2002.

Lawrence and Carol Tuckosh filed cross-appeals from the decision of the Harrison County Common Pleas Court entered in their divorce action. Both parties assign multiple issues for our review including income levels, the amount, length and nonmodifiability of spousal support, the amount of child support, the valuation of the family business, the manner of property distribution, an award of attorney fees, the transportation of the children for visitation purposes, health care expenses, and the amount of the temporary support orders. For the following reasons, some issues are affirmed, some are remanded, and some must be reserved due to the remand.

New Jersey Superior Court Reports

ISAACSON v. ISAACSON, 348 N.J. Super. 560 (2002)

A-3519-99T2 A-1861-00T2

Decided March 8, 2002

Two issues dominate in these consolidated appeals from post-judgment orders in the Family Part. The first is whether an attorney appointed as a mediator to resolve ongoing economic disputes between the parties may also serve as a guardian ad litem to represent the interests of the children. While we recognize that the attorney appointed in this litigation provided outstanding service to the litigants, the court and, most important, to the children, we hold that the roles of a court-appointed mediator and guardian ad litem are so inherently incompatible that one individual cannot serve in this dual capacity in the same ongoing litigation.

New Jersey Superior Court Reports

BROWN v. BROWN, 348 N.J. Super. 466 (2002)


Decided February 28, 2002

Defendant James Brown ("James") appeals from the financial terms of a divorce judgment, challenging the amounts awarded to plaintiff Ellen Brown ("Ellen") as permanent alimony, child support, equitable distribution, counsel fees, and expert witness fees. In this appeal, we hold that under the rationale of Balsamides v. Protameen Chemicals, Inc., 160 N.J. 352, 368 (1999), and Lawson Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 397 (1999), which adopt the position of the American Law Institute as set forth at 2 ALI Principles of Corporate Governance § 7.22(a) and comment e thereto, neither marketability nor minority discounts apply to the valuation of defendant's 47½% interest in a closely-held corporation for purposes of equitable distribution. For this and other reasons, we remand for reconsideration and further findings with respect to the equitable distribution of James's interest in his family's business, as well as the counsel fee and experts' fee awards to Ellen.

Massachusetts Superior Court

MEYER v. KANE, No. 932545, 981097 (Feb. 13, 2002)

No. 932545, 981097

February 13, 2002

These are consolidated actions by the plaintiff, Sigfried E. Meyer ("Meyer"), a minority shareholder of Toomey Associates, Inc. ("TA"), a closely-held corporation, against the corporation and the other shareholders. All of the other shareholders, with the exception of Michael Hatch,[fn3] are members of the Toomey family. The defendants, Maureen T. Kane ("Kane"), William C. Toomey, Jerome W. Toomey and Patrick C. Toomey, Jr., are children of Patrick C. Toomey.

North Carolina Reports

FOUNTAIN v. FOUNTAIN, 148 N.C. App. 329 (2002)

No. COA01-14

Filed 5 February 2002

Reginald Morton Fountain, Jr. (Plaintiff) and Defendant were married on 21 April 1993 and separated on 2 September 1998 (the period between 21 April 1993 and 2 September 1998 will be referred to as "the marriage"). No children were born during the marriage. The parties lived together continuously in North Carolina from 21 April 1993 until early 1994, when Defendant moved back to the home of her parents on Kent Island, Maryland. From 1994 through 1998, Defendant spent very little time in the marital home, but Plaintiff made several trips to Maryland for the purpose of visiting Defendant during this time. On 3 September 1998, Plaintiff filed a complaint seeking a divorce from bed and board and equitable distribution. Defendant, however, did not file an answer to Plaintiff's complaint and default was entered against Defendant on 21 October 1998. Subsequently, Plaintiff was granted a divorce from bed and board on 26 October 1998. On 30 September 1999, Defendant filed a complaint praying for equitable distribution, along with other relief. On 23 November 1999, the trial court dismissed most of Defendant's claims but preserved and consolidated her claim for equitable distribution.

Pennsylvania Superior Court Reports

COLONNA v. COLONNA, 2001 PA Super 376

Nos. 1282, 1316 WDA 2000.

Filed: December 28, 2001.

1 Mary M. Colonna (Wife) appeals the order of June 30, 2000, distributing the parties' property pursuant to her antenuptial agreement with Robert J. Colonna (Husband). Husband's cross appeal challenges various credits issued to Wife.

New York Appellate Division Reports

FRENCH v. FRENCH, 288 A.D.2d 256 [2d Dept 2001]

November 13, 2001.

The plaintiff claims that the defendant's ownership interest in a closely-held corporation is subject to equitable distribution and that the defendant transferred this marital asset in contemplation of the divorce action without fair consideration. Contrary to the defendant's contention, he failed to establish that he was entitled to summary judgment on this issue. It is well established that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853). The defendant failed to establish as a matter of law that he did not have an ownership interest in the closely-held corporation. The mere fact that the corporation did not issue any stock certificates does not preclude a finding that he has the rights of a shareholder (see, Serdaroglu v. Serdaroglu, 209 A.D.2d 600, 602; Matter of C & M Plastics, 194 A.D.2d 1020, 1022; Matter of Benincasa v. Garrubbo, 141 A.D.2d 636, 638). Moreover, the conflicting deposition testimony and substantial discrepancies in the corporate records create questions of fact on the issue of stock ownership (see, Matter of Steward, 229 A.D.2d 500; Kyle v. Kyle, 111 A.D.2d 537).

Ohio Unpublished Opinions

BOYLES v. BOYLES, Unpublished Decision (10-5-2001)

Accelerated Case No. 2000-P-0072.

October 5, 2001.

This is an accelerated calendar appeal submitted on the briefs of the parties from the judgment entry issued by the Portage County Court of Common Pleas, Domestic Relations Division, granting appellant, Viola E. Boyles, and appellee, Stephen R. Boyles, a divorce.

Pennsylvania Superior Court Reports

GREEN v. GREEN, 2001 PA Super 256

Nos. 3259 EDA 2000, 3263 EDA 2000, 3269 EDA 2000.

Filed: August 31, 2001. Petition for Reargument Filed September 14, 2001.

1 These appeals stem from the October 30, 2000, order of the Court of Common Pleas, Montgomery County, which ordered Arlin Green (Father) to pay Betsy Green (Mother) spousal support in the amount of $3,082.00 per week and child support in the amount of $5,072.00 per week, plus $842.00 per week in arrears. Father, Delverde Corporation (Delverde) and the Trustees of the Arlin S. Green Family Trust of 1987 (Trustees) filed appeals alleging that the trial court lacked the jurisdiction over the 1987 Trust, erred by refusing to adopt a prior order from Delaware County and erred in determining that Father created the 1987 Trust. Upon review, we vacate the trial court's order and remand for proceedings consistent with this opinion.

Pennsylvania Superior Court Reports


Nos. 1768 EDA 2000, 1926 EDA 2000

Filed: June 25, 2001 Petition for Reargument Filed July 09, 2001. Petition for Reargument Denied August 30, 2001.

1 Betsy Green appeals from two separate orders of the Delaware County Court of Common Pleas, Orphans' Court Division. The appeals rest upon on the following facts which are gleaned from the record.

Louisiana Case Law

COLLIER v. COLLIER, 00 1263 (La.App. 3 Cir. 7/18/01); 790 So.2d 759

No. 00 1263-CA.

July 18, 2001.

James D. Collier appeals certain aspects of a judgment partitioning the community property existing between himself and his former wife, Dianne Ranier Collier. Finding merit in some of Mr. Collier's arguments, we grant part of the relief requested on appeal and amend the trial court's judgment.

West Virginia Supreme Court Reports

STEWART v. STEWART, 209 W. Va. 550 (2001)

No. 28741

Filed: June 27, 2001 Concurring Opinion Filed: July 11, 2001

The appellant in this proceeding, Richard M. Stewart, claims that the Circuit Court of Cabell County erred in ordering him to pay his former wife permanent alimony of $3,837 per month. Specifically, he argues that the circuit court improperly found him guilty of mental cruelty, that the court erred in awarding his former wife permanent, rather than rehabilitative alimony, and that the court erred in setting the permanent alimony at $3,837 per month, when his actual monthly income was only $6,000 per month. Lastly, the appellant claims that he should not have been ordered to pay his former wife's attorney and expert witness fees.

Arkansas Cases

DALRYMPLE v. DALRYMPLE, 74 Ark. App. 372 (2001)

No. CA 00-886

July 5, 2001

In this appeal, we are asked to review the chancellor's findings regarding the division of property and the allocation of debts in a divorce case. Appellant makes three arguments: 1) that the chancellor erred in ruling that appellee's corporation, Dalrymple Insurance Agency, Inc., was nonmarital property; 2) that the chancellor erred in ruling that the agency's renewal commissions were nonmarital property; and 3) that the chancellor erred in ruling that two bank notes representing approximately $41,000 in debt were marital debts rather than corporate debts. We affirm on the first two points and reverse on the last.

Vermont Supreme Court Reports

CLARK v. CLARK, 172 Vt. 351 (2001)

No. 99-028, June Term, 2000.

June 22, 2001.

Father appeals from an order of the Chittenden Family Court granting mother's motion to modify child support. He argues that the court had no jurisdiction to modify the award because mother failed to meet her burden of showing a real, substantial and unanticipated change of circumstances, see 15 V.S.A. § 660(a) & (b); and, even if the court had jurisdiction, it incorrectly determined the amount of the modified award. We affirm.

Kentucky Reports

GREENE v. McFARLAND, 43 S.W.3d 258 (Ky. 2001)


April 26, 2001.

This is a case involving the application of KRS 382.440 (memorandum of actions affecting real property. . . .). The Court of Appeals determined that Appellees were subsequent purchasers under KRS 382.440 (1), and thus the trial court erred in refusing to discharge a lis pendens notice filed by Appellants on Appellees' real property. However, we hold that the trial court erred in finding that Appellants, as general creditors, were entitled to file a lis pendens affecting the title of the property in question. As such, we affirm the decision reached by the Court of Appeals, but on different grounds.

Iowa Reports

IN RE GREENE, 0-738/00-0248 (Iowa App. 2-28-2001)

No. 0-738/00-0248.

Filed February 28, 2001.

Respondent John Robert Greene appeals the child custody and property distribution provisions of the parties' dissolution decree. John argues the district court erred in awarding physical care of the parties' two minor children to the Petitioner, Pamelia Kay Greene, and that the property division was inequitable. We affirm as modified.

Nevada Supreme Court Reports

PRO-MAX CORP. v. FEENSTRA, 117 Nev. Adv. Op. No. 7, 30774 (2001)

Nos. 30774, 30859.

January 31, 2001.

On September 15, 2000, this court issued an opinion in this appeal. Respondents Jack A. Ferguson, Peter Feenstra and Shirley Feenstra timely petitioned for rehearing. In light of the rehearing petition, we withdrew our September 15, 2000, opinion. We now conclude that rehearing is warranted and therefore grant the petition and issue this opinion in place of our previously withdrawn opinion.

North Carolina Reports

KHAJANCHI v. KHAJANCHI, 140 N.C. App. 552 (2000)

No. COA99-1056

Filed 21 November 2000

The division of property between married persons following separation or divorce was relatively simple in North Carolina before the enactment of the Equitable Distribution Act in 1981. Prior to that time, this State was one of a dwindling group of common law "title" jurisdictions, in which property was assigned to the spouse holding its "title." In most cases, that spouse was the husband. Typically, only real property was jointly titled to the spouses. Although the number of women in the work force increased after the end of World War II, the husband's employment was still likely to be the primary source of income for the parties, and any deferred compensation or retirement benefits were "owned" by him. The title system of allocation "tended to reward the spouse directly responsible for its acquisition, while overlooking the contribution of the homemaking spouse." White v. White, 312 N.C. 770, 774, 324 S.E.2d 829, 831 (1985). See also 3 Suzanne Reynolds, Lee's North Carolina Family Law § 12.5, at ___ (forthcoming publication, 5th ed. December 2000); Sally B. Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C.L. Rev. 247 (1983).

Kansas Case Law

IN RE GEEDING, 270 Kan. 139 (2000)

No. 84,993

Opinion filed October 27, 2000.

This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Martin D. Geeding, alleging violations of Kansas Rules of Professional Conduct (KRPC) 1.7 (representing a client when the representation would be in conflict with another client) (1999 Kan. Ct. R. Annot. 321), and 1.8 (conflict of interest involving compensation from one other than the client) (1999 Kan. Ct. R. Annot. 325). We adopt and impose the panel recommendation of published censure.

Missouri Case Law

SHELTON v. SHELTON, 29 S.W.3d 400 (Mo.App.E.D. 2000)

No. ED76914

Filed: October 24, 2000

Donald Shelton ("Husband") appeals from a trial court Judgment/Decree of Dissolution alleging trial court error in the classification of certain property as marital, in the award of maintenance, and in ordering Husband to pay Melissa Shelton ("Wife") retroactive child support. We affirm in part and reverse and remand in part with directions.

South Dakota Supreme Court Reports


No. 21083

Opinion Filed October 11, 2000.

[1] Paul Wojewski appeals a circuit court order which increased his child support obligation and imposed other obligations not expressly mandated by the South Dakota child support statutes. Paul also contends that in setting child support, the circuit court erroneously excluded the potential value of his ex-wife's liquid assets from her gross income. We reverse and remand for further findings.

Wisconsin Case Law (Unpublished)

IN RE MARRIAGE OF NORMINGTON, Unpublished Decision (Ct.App. 2000)

Case No. 99-3004.

Opinion Released: September 21, 2000. Opinion Filed: September 21, 2000. Not recommended for publication in the official reports.

Peter Normington appeals the judgment of divorce from Jeanette Normington, contending that the trial court erroneously exercised its discretion in (1) imputing $11,400 annual income to him based on the residence and related services he was provided by the corporation of which he was part owner; (2) imputing $5,000 annual income to him and to Jeanette each from interest and dividends; and (3) awarding Jeanette maintenance of $1,000 per month for three and one-half years, and $750 per month for the next two and one-half years. We conclude the trial court did not make any errors of law and properly exercised its discretion in making each of these decisions. We therefore affirm.

Nevada Supreme Court Reports

PRO-MAX CORP. v. FEENSTRA, 116 Nev. Adv. Op. No. 93, 30774 (2000)

Nos. 30774, 30859.

September 15, 2000.

The primary issue presented in these appeals requires us to consider the scope of NRS 106.240, which extinguishes certain real property debts ten years after they become due absent recorded extensions, an issue of first impression. We conclude that the district court erred when it determined that the statute is applicable only to bona fide purchasers. For this reason, we reverse the district court's judgment that certain notes and deeds of trust are valid and enforceable. We affirm the district court's order denying Jack A. Ferguson's request for attorney's fees.

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