COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73418 ACCELERATED DOCKET WILLIAM C. MUNROE : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION JENNIFER B. MUNROE : : PER CURIAM Defendant-appellee : : : DATE OF ANNOUNCEMENT : MAY 14, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. D-231763 : JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: JOHN F. SEELIE, ESQ. JENNIFER B. MUNROE, ESQ. 800 Bank One Center 275 Yacht Club Drive 600 Superior Avenue, East Rocky River, OH 44116 Cleveland, OH 44114 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs. Plaintiff-appellant William Munroe appeals the judgment entry issued by the domestic relations court subsequent to remand from this court. The instant appeal arises out of a domestic relations action filed by plaintiff against defendant-appellee Jennifer Munroe. In May, 1974, prior to the marriage, the husband purchased a home in Rocky River, Ohio for $22,000.00. He paid a $4,400.00 deposit plus approximately $1,100.00 in closing costs for a total of $5,500.00. He mortgaged the $17,600.00 balance on his individual credit. Plaintiff and his wife were married on October 12, 1974 and she and her eight-year-old child moved into the house with plaintiff. The parties stopped living together in 1992 and officially separated in March 1993. Plaintiff filed for divorce on February 25, 1994. The court's decision and judgment entry were issued on December 11, 1995. Plaintiff filed a timely notice of appeal from the domestic relations court's final divorce judgment. He asserted ten assignments of error and we sustained four of them. Munroe v. Munroe (April 10, 1997), Cuyahoga App. No. 70080 and 70273, unreported. On remand the domestic relations court issued a second judgment entry, incorporating the decision from this court. In the -3- second judgment entry the domestic relations court found and ordered as follows: The Court finds that the Plaintiff's premarital/separate interest in the marital residence is $39,472.00, according to the Court of Appeals decision previously referred to, not $4,400.00 as indicated by this Court in the Judgment Entry of Divorce * * * IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the marital home located at 275 Yacht Club Drive, Rocky River, Ohio shall remain in the joint names of the Plaintiff and Defendant, however the Defendant shall have exclusive use, occupancy, and possession of same from the date hereof until the youngest child attains the age of 18 years or graduates from high school, whichever event shall last occur, at which time the Defendant shall have 60 days to buy out the Plaintiff's one-half interest therein, for the fair market value thereof, and if she fails to do so then the Plaintiff shall have 60 days to buy out the Defendant's one-half interest therein for the fair market value thereof, and if he fails to do so then the house shall be sold and the net proceeds divided as follows: 1. The first $39,472.00 to the Plaintiff as and for reimbursement for his separate premarital property contribution. 2. The Defendant shall then be entitled to receive an amount of money equal to the amount, if any, that she has reduced the first mortgage (from its present balance of $30,651.00) and the second mortgage (from its present balance of $26,578.00); and 3. The remaining net proceeds shall be divided equally between Plaintiff and Defendant, however out of the Plaintiff's one-half share the Defendant shall be paid the sum of $5,000.00, plus 5% interest per annum from the date hereof until paid in full, as and for additional spousal support toward her attorney fees. Plaintiff filed a timely notice of appeal from this judgment entry and submits a single assignment of error, which states as -4- follows: THE TRIAL COURT'S JUDGMENT ENTRY ON REMAND FROM THIS COURT OF APPEALS IN CASE NO. 70080/70273 IS NOT CONSISTENT WITH THIS COURT OF APPEALS' JOURNAL ENTRY AND OPINION DATED APRIL 10, 1997. Plaintiff complains the domestic relations court erred in its second judgment entry by not properly incorporating this Court's decision. First, he complains the domestic relations court did not enter the correct amount of equity and portion of his down payment he is to receive upon the sale of the marital residence. Second, plaintiff claims both parties are to share in the cost of preparing the transcript, yet the domestic relations court failed to incorporate this order in its judgment entry. This assignment of error is unopposed because defendant did not file a brief in response. See App.R. 18(C). In Munroe, we sustained plaintiff's first and ninth assignments of error regarding the amount of plaintiff's down payment and the amount of equity he is to receive upon sale of the marital residence. We held * * *the husband should be entitled to 25.6% of the equity in the home, plus his original investment of $4,400.00. However, on remand the domestic relations court failed to fully appreciate the extent of this holding. Instead, of giving plaintiff the first 25.6% of equity it gave [t]he first $39,472.00 to the Plaintiff as and for reimbursement for his separate premarital contribution. These two amounts are not the same. The first 25.6% of equity includes any appreciation in the value of the -5- house between the time of the judgment and the time of sale of the marital residence. In contrast, the first $39,472.00 is a set amount which does not include appreciation in the residence and thus plaintiff would be receiving a lesser amount than this Court ordered in its journal entry. Likewise, the lower court's judgment entry does not include the $4,400 we awarded plaintiff as part of his original investment in the marital residence. In addition, a review of the second judgment entry does not include an order granting plaintiff compensation for one-half the cost of preparing the transcript for appeal. This contravenes the tenth assignment of error in our original decision. See Munroe, at 21-22. Thus, we sustain plaintiff's single assignment of error and hold the domestic relations court must modify its judgment and give plaintiff 25.6% of the equity in the marital residence upon sale plus $4,400 as compensation for his original investment. We further order defendant to pay one-half the cost of preparing the transcript for appeal. All other orders in the domestic relations court's judgment entry are to be followed as mandated. Judgment reversed and remanded. -6- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, ADMINISTRATIVE JUDGE DIANE KARPINSKI, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .