No. 13-08-16.
<>Defendant-appellant, Jay J. Jones, appeals from the judgment of the Seneca County Court of Common Pleas, Domestic Relations Division, ordering him to pay plaintiff-appellee, Evelyn Jones, $8,, plus statutory interest from , court costs incurred, and $2,000 of Evelyn’s reasonable attorney fees. On appeal, Jay argues that the trial court erred by denying his motion to dismiss for lack of subject-matter jurisdiction, that the trial court erred by denying his motion to dismiss for failure to state a claim, that the trial court erred in finding for Evelyn as she failed to present sufficient evidence of unjust enrichment to meet her burden of proof, that the trial court erred by denying his motion to dismiss for failure to join an indispensable party, and that the trial court erred in awarding attorney fees and costs to Evelyn without a presentation of evidence on the issue. Based on the following, we affirm in part and reverse in part the judgment of the trial court.
JONES v. JONES
<>In December 1999, Evelyn filed a petition for dissolution of her marriage to Jay in the Seneca County Court of Common Pleas, a petition that incorporated a separation agreement. During the course of the marriage, the parties had purchased a business called the Whippy Dip, for which they took out a line of credit (home equity loan) on their residence at 628 Northview Dr., Fostoria, Ohio (the residence), to help pay expenses of the business.
The fresh new activities agree that Wife should stay-in the home and you can will likely be responsible for most of the mortgage repayments, utilities, fees, insurance, and you can repair on said quarters * * * and you may shall hold Partner innocuous thereof. * * *
Because this a home is even mortgaged inside 1999 to the an excellent loan off Partner’s to possess their Whippy Dip providers, the new functions further concur as follows:
B. Spouse will generate timely money so you’re able to Secret Bank otherwise the replacement, toward Whippy Dip mortgage, on what the niche property above is even bound because the collateral.
The fresh new activities are also the owners of the a residential property and you will team found at 400 S. Head St., Fostoria, Seneca County, Ohio, known as the Whippy Dip. * * *
The fresh activities agree that Partner should retain the told you a property and Whippy Dip business and should be responsible for all the financial money, utilities, fees, insurance, and fix on the told you real estate and you can providers instantly through to signing associated http://elitecashadvance.com/installment-loans-in/hammond/ with agreement, and will keep Girlfriend simple thereof.
<>In , Evelyn filed a motion for contempt, or, in the alternative, a complaint for unjust enrichment, alleging that when she sold the residence, she was forced to pay off the remainder of the home equity loan for the Whippy Dip, which was Jay’s sole responsibility under the separation agreement, and that Jay refused to reimburse her for this payment.
<>In , Jay filed a motion to dismiss Evelyn’s complaint for unjust enrichment and motion for contempt on the grounds that Evelyn failed to state a claim on which relief could be granted, that the court lacked subject-matter jurisdiction over the action, and that Evelyn failed to join an indispensable third party, Key Bank.
<>In , the magistrate dismissed Evelyn’s motion for contempt, but found that her complaint for unjust enrichment properly stated a claim, that the trial court had subject-matter jurisdiction to enforce the separation agreement, and that Key Bank was not an indispensable party to the action.
<>Lou Ann Fleming, a relationship manager with Key Bank, testified that Jay had three loans that involved the Whippy Dip business. One loan was taken out on March 2, 1999, for $28,, secured by the real estate on which the Whippy Dip was located, another on March 2, 1999, for $55,, secured by 699 shares of Quest Communications Stock, and a third loan on February 8, 1999, that was a home equity line of credit for $44,000, secured by the residence; that two loans were dispersed from the home equity line of credit in e was not on the , Key Bank subordinated the home equity loan to a loan from Old Fort Bank. She continued that a title company contacted her to find out what amount was owed on the home equity line of credit because Evelyn wanted to the sell the residence and was required to pay off this loan before selling, but that she told the title company she was required to get Jay’s permission before releasing the payoff figures because Evelyn was not on the loan.
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