Spousal Support Payors Have to Watch Their Expenses

The Eighth District Court of Appeals has essentially ruled that a domestic relations court can rely on the monthly expenses voluntarily paid by an ex-husband as method of determining the actual functional income of the ex-husband for spousal support purposes. In Feldman v. Feldman, the Court held that it was proper for a magistrate to rely on the monthly expenses of the ex-husband - as opposed to the stated income of the ex-husband - to determine the amount of spousal support the ex-husband must continue to pay to the ex-wife. Thought: If in your divorce your actual monthly expenses exceed what you claim is your monthly income, you have some explaining to do.

More on Arbitration Agreements and Awards

On Ohio Court of Appeals has just held that if you sign a contract that has an arbitration provision (i.e. where the parties agree that all disputes under the contract must be arbitrated rather than litigated in a courtroom by a judge or jury), and, further, if the arbitrator issues a arbitration judgment against you, a court must ratify/confirm that judgment if the winning party applies to have the court do so. In NCO v. Reese, the court held that a trial court had erred when it failed to ratify/confirm an arbitration ruling, and that the trial court in fact HAS to ratify/confirm the arbitration ruling UNLESS the losing party can prove one of VERY limited number of factors. Thought: Be very careful about signing any contract containing an arbitration clause - you may be waving many of the rights you would otherwise have in a courtroom.

Cognovit Note Can Backfire

The Eighth District Court of Appeals has recently held that cognovit notes can, if improperly drafted, can backfire on the drafter. (Cognovit notes are special promissory notes - controlled by statute- which give the holder of the note the ability to get an immediate and automatic judgment if the debtor defaults - without the normal delay associated with normal litigation). If the language in the cognovit note is defective (that is, not drafted according to the statutory mandate), any judgment rendered on the note is void - and unless the complaint is properly served upon the defendant, any other normal judgment rendered against the defendant in a normal litigation process is void as well. In Adams v. Bennett, the Court made it clear that anyone (be it a pro se litigant or a lawyer) who incorrectly drafts a cognovit note may essentially have a worthless document. Thought: Forget the store bought or non-lawyer drafted cognovit notes if the loan in question is important to you.

Our recent success in real estate litigation.

In a recent success for clients of ours, we were able to prevent their eviction when we filed documents which alleged that the real property they were living in was actually their property that they were buying indirectly from their business partner who was trying to evict them. Given the fact that the clients had worked out a business arrangement with the landlord/business partner wherein the clients lived in the condominium under a land contract business in partial return for their contribution to the business, the landlord was prevented from proceeding on his expedited eviction. A very big day for those clients.

Another arbitration clause ruling

In another ruling from the Supreme Court of Ohio on the issue of the enforceability of arbitration clauses, the Court has once again ruled that clauses requiring arbitration will be broadly enforced, and that almost any aspect any issue arising from the contractual arrangement will have to be arbitrated if the contract contains an arbitration clause. In Alexander v. Wells Fargo Financial Ohio 1, Inc., the Supreme Court of Ohio ruled that even if the breach of a contact would trigger statutory penalties, the penalties still have to be arbitrated. Generally speaking, arbitration is preferred by businesses because arbitrators are often business insiders (who are presumed to have pro-business leanings) and because the requirement to arbitrate a claim essentially eliminates the ability to prosecute a class action against a business. Thought: If your business is entering into a contact with a bigger business, be careful to read the contract to see whether you want to waive your right to have a trial court resolve your dispute rather than an industry insider.

Ex-Wife Can Use Fraudulent Transfer Act to Go After Ex-Husband’s Assets

In a recent decision by the Cuyahoga County Court of Appeals, the Court held that an ex-wife could successfully void a transfer/sale of a business asset by the ex-husband if the ex-wife could prove that the transfer/sale was done to put the assets out of reach of the ex-wife. In the case of Dinu v. Dinu, the Court held that if the wife had obtained a Domestic Relations Court support arrearage amount (in this case approximately $20,000), and the ex-husband had transferred/sold some business assets to prevent the ex-wife from seizing the assets to pay the judgment, she could sue the ex-husband and the purchasers of the assets in the General Division Common Pleas Court to void the transfer (i.e. she did not have to utilize the Domestic Relations Court to try to void the transfer). Thought: This woman may have had the ability to try to undue the transfer by adding defendants to the Domestic Relations Court divorce action (something the law certainly allows while the divorce is pending), but she chose another venue. Looks like this gives ex-spouses options when faced with this type of asset transfer activity.

27-year Wait is Too Long to Find Assets

In a recent decision by the Cuyahoga County Court of Appeals, the Court held that a woman waited too long to try to reopen her divorce case on the allegation that a pension asset was hidden from her by her ex-husband. In the case of Rodgers v. Rodgers, the Court held that the ex-wife’s wait of 27 years was simply too long – even though it was somewhat clear that the large pension asset had been hidden from her at the time of her divorce. Thought: Do you homework before you sign a divorce papers or divorce decree and don’t dilly dally if you learn or believe that your ex-spouse his some assets from you during your divorce).