Polk v. Polk

937 N.E.2d 124, 188 Ohio App. 3d 809
CourtOhio Court of Appeals
DecidedJuly 16, 2010
DocketNo. 23584
StatusPublished
Cited by5 cases

This text of 937 N.E.2d 124 (Polk v. Polk) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Polk v. Polk, 937 N.E.2d 124, 188 Ohio App. 3d 809 (Ohio Ct. App. 2010).

Opinion

Gene Donofrio, Judge.

{¶ 1} Plaintiff-appellant, Dean Polk, appeals from a Montgomery County Common Pleas Court Domestic Relations decision finding him to be in contempt of court for faffing to pay the property division pursuant to the divorce decree between him and defendant-appellee, Mary Beth Polk (n.k.a. Mary Beth McIntosh), and also finding him to have committed fraudulent concealment and/or fraudulent misrepresentation.

{¶ 2} The parties executed a final judgment and decree of divorce on September 12, 2003.

{¶ 3} Appellant owned a company called Buckeye Express Services, Inc. (“Buckeye”). At the time of the divorce, Buckeye was involved in litigation with Airborne Express, Inc. in federal court.

{¶ 4} Relevant to this case, the divorce decree contained the following provision:

{¶ 5} “At the present time the Plaintiffs corporation Buckeye Express Services, Inc. has pending litigation against Airborne Express, Inc. * * *. The parties have agreed that the Defendant shall receive from any settlement, judgment or other compromise of claims arising out of the business dealings between Buckeye and Airborne Express of any nature whatsoever, including, but not limited to this lawsuit, any successor lawsuit or action, the first Forty Thousand Dollars ($40,000.00) of the proceeds/recovery after expenses of suit including legal fees, accounting fees, expert fees, consultant fees and court costs [814]*814have been paid and then thirty percent (30%) of any amount recovered after the expenses of suit and the first Forty Thousand Dollars ($40,000.00) have been paid to the Defendant.
{¶ 6} “It is the intent of the parties that the Plaintiff will take no action which would hinder or impede the Defendant’s ability to receive monies as ordered herein. * * * Still further, this Court shall retain jurisdiction over this matter to enforce the provision as may be necessary.”

{¶ 7} Appellee filed a motion to show cause on October 29, 2007, alleging contempt, breach of contract, unjust enrichment, conversion, and fraudulent misrepresentation. Appellee claimed that she had asked appellant on numerous occasions about the status of the Buckeye/Airborne Express litigation, and he told her repeatedly that the case had been dismissed and he was no longer pursuing it. However, appellee learned that appellant had reached a settlement with Airborne Express in the amount of $375,000, which he did not disclose to her.

{¶ 8} A magistrate held a hearing on her motion and took evidence from both parties. In his defense, appellant relied on a confidentiality agreement that he signed with Airborne Express, which provided:

{¶ 9} “If requested by any person to comment on the Suit or its settlement, the Parties and their counsel will say nothing other than that ‘The Suit was resolved to the mutual satisfaction of the parties.’ However, the terms of the Agreement may be disclosed without consent: a) to the extent required by applicable law or regulation; or b) on an as needed basis to the Parties’ accountants or lawyers, provided that the party so disclosing pursuant to subsection ‘b’ herein shall require that any such person to whom such disclosure is made shall keep the information confidential and place such person under a written obligation of confidentiality.”

{¶ 10} Thus, appellant argued that he could not disclose the settlement to appellee without resulting in a breach of the confidentiality agreement.

{¶ 11} The magistrate subsequently issued a decision finding appellant to be in contempt for failure to comply with the terms of the divorce decree and also found that appellant committed fraudulent concealment/misrepresentation. Appellant filed objections to the magistrate’s decision.

{¶ 12} On April 23, 2009, the trial court overruled appellant’s objections and made the following orders. It found appellant to be in contempt for failure to pay the property division pursuant to the divorce decree. Consequently, the court sentenced appellant to 30 days in jail and gave him the opportunity to purge the jail sentence by paying appellee her share of the settlement proceeds within 30 days. The court dismissed appellee’s claim for breach of contract. The [815]*815court found that appellant committed fraudulent concealment and/or fraudulent misrepresentation. It awarded appellee $140,500 as her share of the settlement. The court further found that appellant failed to demonstrate any legitimate expenses to be offset against the settlement award.

{¶ 13} In a subsequent agreed entry, the parties stipulated that appellee’s attorney fees of $40,000 were reasonable and necessary and stipulated to such a finding by the court.

{¶ 14} Appellant filed his notice of appeal on August 13, 2009.

{¶ 15} Appellant raises two assignments of error. However, each assignment of error contains numerous subparts, mirroring his objections to the magistrate’s decision, each attacking a particular finding of fact or conclusion of law and requiring its own analysis. Thus, we will address each one in turn, resulting in 15 subassignments of error.

{¶ 16} Appellant’s first seven subassignments of error each assert that one of the magistrate’s/trial court’s factual findings was not supported by the evidence. Thus, the same standard of review applies to each of them. An appellate court must give substantial deference to the trial court’s findings of fact and will not reverse those findings if they are supported by competent, credible evidence. Baker v. Chrysler, 179 Ohio App.3d 351, 2008-Ohio-6032, 901 N.E.2d 875, at ¶ 46.

{¶ 17} Appellant’s first-subassignment of error states:

{¶ 18} “The trial court erred in A) failing to make a finding of fact that Polk never actually received $375,000 in cash available for distribution pursuant to the divorce decree.”

{¶ 19} The trial court found that the undisputed settlement amount was $375,000. It stated that the critical issue was the amount of the settlement and not the amount that appellant alleges that he received.

{¶ 20} Appellant contends that of the $375,000 paid by Airborne Express to Buckeye, he actually received only $288,050.79 because his attorney retained the remaining $86,949.21 as partial payment for his legal fees. Appellant claims that he was never in possession of the entire $375,000 and asserts that appellee even acknowledged this.

{¶ 21} The undisputed evidence was that the total settlement amount was $375,000. Both parties testified that this amount was accurate. Thus, this was the proper starting point, pursuant to the divorce decree, from which to compute appellee’s share of the settlement. Appellant’s assertion that attorney fees should have been deducted from this amount is addressed in his next subassignment of error.

[816]*816{¶ 22} Accordingly, appellant’s first subassignment of error is without merit.

{¶ 23} Appellant’s second subassignment of error states:

{¶ 24} “The trial court erred in B) making a finding that Polk incurred no ‘expenses of suit’ as a result of his litigation against Airborne Express.”

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Cite This Page — Counsel Stack

Bluebook (online)
937 N.E.2d 124, 188 Ohio App. 3d 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polk-v-polk-ohioctapp-2010.