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In re Marriage of Crawford

Court of Appeals of Oklahoma, Division IV

June 21, 2017

IN RE THE MARRIAGE OF: GAYLENE R. CRAWFORD, Petitioner/Appellee,
v.
DONALD W. CRAWFORD, Respondent/Appellant.

          Mandate Issued: 11/28/2017

         APPEAL FROM THE DISTRICT COURT OF OKMULGEE COUNTY, OKLAHOMA HONORABLE KEN ADAIR, TRIAL JUDGE

          Rod W. Wiemer, Okmulgee, Oklahoma, for Petitioner/Appellee

          Ron W. Little, DOERNER SAUNDERS DANIEL & ANDERSON, LLP, Tulsa, Oklahoma, for Respondent/Appellant

          DEBORAH B. BARNES, PRESIDING JUDGE.

         ¶1 This appeal arises from the divorce proceedings of Donald W. Crawford (Husband) and Gaylene R. Crawford (Wife). [1] Husband appeals from the parties' divorce decree, as well as from the trial court's order granting, in part, Wife's request for attorney fees and costs, and from the trial court's order denying Husband's "Motion to Reconsider and Modify" the decree. Based on our review, we affirm.

         BACKGROUND

         The Divorce Decree

         ¶2 The parties were married in Oklahoma in 1984. They had three children during the marriage. In 2009, Wife filed a petition for divorce.

         ¶3 In the divorce decree, filed in October 2013, the trial court granted the parties a divorce on the ground of incompatibility. Two of the parties' three children had reached the age of majority prior to trial. As to the parties' one minor child, joint legal custody was awarded to the parties, and child support was awarded based on Husband having a gross monthly income of $6, 200, and Wife having a gross monthly income of $2, 000. [2]

         ¶4 The trial court also divided the marital property and awarded Wife support alimony. The parties owned a 35-acre tract of property where the marital home, as well as a cell phone tower, are located. The cell phone tower was constructed by a lessee as part of a lease agreement executed in 1999. That lease agreement provides that the lessee is leasing the premises "for the purpose of constructing, operating, maintaining, and repairing a facility to provide commercial mobile radio services[.]"

         ¶5 Husband, who requested that all 35 acres and the lease be awarded to him, testified at trial that the cell phone tower lease had a low value -- lower than Wife's proposed value of $19, 837.80 -- because, although the lease was a source of revenue, the lease could be cancelled by the lessee at any time (with prior written notice), [3] and he testified: "They're testing low-level satellites to replace cell phone towers, so the plans are underway to obsolete them and technology moves on like it always does." Nevertheless, Husband requested that the lease be awarded to him, and he agreed that the lease paid $3, 967.50 per year and that five years remained on the lease. [4]

         ¶6 As to the value of the real property, Wife asserted the 35 acres (i.e., the marital home and acreage) was worth $250, 000. Regarding the marital home, Wife testified it is a "very nice, " custom-built, four-bedroom, two-bath home. She also testified there is a barn on the property. Husband, although requesting an award of the property, asserted it had a lower value, plus mortgage debt. He further testified the presence of the cell phone tower made the real property less attractive to potential buyers. He asserted the real property had a market value of $219, 000, and an equity value of $129, 936.

         ¶7 Ultimately, the trial court awarded Husband "[a]ll right, title and interest in the proceeds from the cellular phone tower lease" from August 14, 2009 -- the date Wife filed her petition for divorce -- until April 25, 2013, totaling $14, 878. "[A]s of April 25, 2013, " however, all right, title and interest in the proceeds from the cell phone tower lease were awarded to Wife.

         ¶8 Moreover, Husband was awarded the 35 acres, including the marital residence, but subject to Wife being awarded "[a] 2-acre plat of land from the [35-acre tract] on which the marital residence is located, to include the area covered by the cellular phone tower lease." Husband was also granted the marital residence and acreage "subject to the outstanding mortgage indebtedness thereon[.]" Husband was ordered to pay marital debt totaling $94, 912.94. The trial court explained from the bench that it did not adopt Wife's valuation of the property at $250, 000, nor did it adopt Husband's $219, 000 valuation; instead, it adopted a value between these two values -- i.e., about $15, 000 to $20, 000 less than Wife's valuation.

         ¶9 Husband was also awarded the IRA account with an agreed-upon value of $73, 175, as well as the parties' 25% ownership interest in the business for which Husband was working, an interest which he valued at $25, 000, but which Wife valued at $36, 000. The trial court explained from the bench that it was accepting the value of $36, 000.

         ¶10 In turn, Wife was awarded a "money judgment against Husband in the amount of $150, 000 representing alimony in lieu of property division[.]" Husband was also ordered to pay Wife $13, 941

for Wife's share of the parties' 2008 joint income tax refund in the amount of $8, 941 and for reimbursement of the value of Wife's vehicle Husband traded in for a vehicle owned by [the business for which he works] in the amount of $5, 000, which the Court finds Husband improperly converted to his own use.

         ¶11 The trial court also divided the personal property items of the parties, such as boats, tools and furniture, the total value of which is not insubstantial. According to Wife, the total value of the parties' marital personal property of this kind equals $136, 707. As to items ultimately awarded to Husband, Wife presented evidence that, for example, a certain "M8200 Kubota" tractor had a value of $26, 172 (though Husband valued it at $11, 708), and that two Harley Davidson motorcycles had values of $18, 725 and $8, 955 (though Husband valued them at $15, 605 and $3, 940). Husband was also awarded personal property items such as two trailers, two boats (one a mere "aluminum boat" which she and Husband valued at $300, and the other a "Pro Craft" boat which she and Husband valued at $8, 790), a dirt bike, and miscellaneous farm and hand tools (which Wife valued at $13, 380) such as an air compressor, saws and a chain saw, ladders, a "Craftsman roll around tool box w/tools, " and various rifles.

         ¶12 Wife arrived at her valuations using, among other things, various online valuation guides such as "NADA Guides, " according to which the total value of the marital personal property which was both in Husband's possession and awarded to Husband by the trial court equals approximately $125, 000. However, the trial court stated at the end of trial that "a lot of [Wife's] valuations were a little bit high." On the other hand, the trial court also stated "that a lot of [Husband's] values on the property that he wants to keep are extremely low." Consequently, the trial court "approximated about a $30, 000 discount [to Wife's total valuation] of the personal property." The value of the personal property items of this kind (i.e., vehicles, tools, guns, etc.) awarded to Wife was, in comparison to the items awarded to Husband, minimal. [5] The parties were also awarded equal portions (50% each) of a certain mineral interest with an agreed-upon value of less than $12, 000. [6]

         ¶13 The trial court explained from the bench that the total "share of the marital estate [awarded to Husband] is $375, 000." The court explained that this amount constitutes his net award after payment of the marital debt he was ordered to pay. After further deducting the amount of $150, 000, which Husband was ordered to pay to Wife as property division alimony, Husband was awarded the equivalent of $225, 000. Indeed, Husband admits on appeal that "[t]he marital assets awarded to [me] had a net value of $225, 000[.]"

         ¶14 On the other hand, the only significant items awarded to Wife were the cell phone tower lease, valued by Wife at $19, 837.80; the two acres, which Wife valued at $4, 000; and the 50% share of the mineral interest, valued at $5, 978. Using the highest estimates possible based on the evidence presented at trial, Wife was awarded the equivalent of less than $40, 000 total in marital property. Even when adopting this sum, and after adding the $150, 000 and $13, 941 payments to Wife from Husband, Wife was awarded the equivalent of approximately $204, 000 of the marital estate's net value.

         ¶15 Husband was further ordered to pay support alimony to Wife in the total amount of $45, 000, to be paid to Wife over the course of sixty months at the rate of $750 per month. However, the alimony award is not contested on appeal.

         Post-Decree Proceedings

         ¶16 In November 2013, within thirty days of the divorce decree, Husband filed an appeal. Also in November 2013, Wife filed a motion for attorney fees and costs and Husband filed a motion to reconsider/modify the decree. [7] Husband's motion was filed within thirty days of, but more than ten days after, the date of filing of the divorce decree.

         ¶17 In Wife's motion, she sought an award of attorney fees and costs under 43 O.S. 2011 § 110 (D), which provides that "[u]pon granting a decree of dissolution of marriage... the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances." Wife asserted, among other things, that,

[t]hroughout the litigation, [Husband] engaged in a pattern of dilatory conduct that included multiple instances of refusals to cooperate in discovery, appraisals and evaluations in an attempt to bully and intimidate [Wife], to wear her down emotionally and financially, and to deprive [her] of her rightful share of the marital estate.

         ¶18 She further asserted that Husband's "bad conduct" in these proceedings required Wife to file "protective orders, motions to compel, contempt citations and motions for sanctions." Wife also stated that the trial court "found that [Husband's] income was more than three times that of [Wife]." For these reasons, Wife asserted it was just and proper that Husband pay all of her attorney fees ($25, 535), costs ($365.10) and expert fees ($7, 873.45), for a total of $33, 733.55. [8]

         ¶19 On July 24, 2015, a hearing was held on Wife's motion for attorney fees, and, in an order filed in August 2015, the trial court granted Wife's motion in part, awarding Wife attorney fees and costs in the amount of $7, 500.

         ¶20 In the motion to reconsider/modify, Husband requested that the trial court reconsider its valuation of Husband's 25% interest in the business for which he works. Husband asserted that the trial court "relied upon, in part, " a business valuation which utilized the "capitalized excess earnings method" of determining value. Husband asserted this method "has been specifically rejected by the Oklahoma Supreme Court" for business valuations in divorce actions. Husband also sought reconsideration of the trial court's decision to award Wife a 2-acre tract of the 35-acre tract of marital property. Although a hearing was held on Husband's motion in April 2014, at which time the trial court entered a Minute Order partially resolving Husband's motion, the trial court did not finally determine Husband's motion until its order denying Husband's motion, filed in June of 2016. Prior to his motion finally being determined, Husband forwarded additional bases for modification, including evidence indicating that the value of the cell phone tower lease rose sharply less than two years after the entry of the divorce decree.

         ¶21 From the order awarding attorney fees and costs to Wife, from the order denying Husband's motion to reconsider/modify, and from the underlying divorce decree, Husband appeals.

         STANDARD OF REVIEW

         ¶22 As stated by the Oklahoma Supreme Court:

A divorce suit is one of equitable cognizance in which the trial court has discretionary power to divide the marital estate. The trial court must follow the provisions of 43 O.S. [Supp. 2012] § 121 which require a fair and equitable division of property acquired during the marriage by the joint industry of the husband and wife. The trial court has wide latitude in determining what part of jointly-acquired property shall be awarded to each party. However, a marital estate need not necessarily be equally divided to be an equitable division because the words just and reasonable in § 121 are not synonymous with equal. An appellate court will not disturb the trial court's property division absent a finding of abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence.

Colclasure v. Colclasure, 2012 OK 97, ΒΆ 16, 295 P.3d 1123 (footnotes omitted). Even more recently, the Supreme Court has stated: "A trial court has wide latitude in determining the division of jointly-acquired property in a divorce proceeding, and its distribution of a marital estate will not be disturbed absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of evidence." ...


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