COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75404 WILLIAM C. MUNROE : ACCELERATED : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION JENNIFER B. MUNROE : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 17, 1999 CHARACTER OF PROCEEDING : Civil appeal from Cuyahoga : County Common Pleas Court : Domestic Relations Division : Case No. D-231,763 JUDGMENT : AFFIRMED AS MODIFIED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: JOHN F. SEELIE Attorney at Law 55 Public Square, Suite 1313 Cleveland, Ohio 44113 For defendant-appellee: JENNIFER B. MUNROE, pro se 275 Yacht Club Drive Rocky River, Ohio 44116 KENNETH A. ROCCO, J.: Appellant-former husband appeals from the second judgment entry of the Cuyahoga County Common Pleas Court, Domestic Relations -2- Division, following an order of remand from this court. In his sole assignment of error, appellant asserts: THE TRIAL COURT'S SECOND JUDGMENT ENTRY ON REMAND FROM THIS COURT OF APPEALS IN CASE NO. 70080/70273 AND SUBSEQUENT CASE NO. 73418 IS STILL NOT CONSISTENT WITH THIS COURT OF APPEALS' JOURNAL ENTRY AND OPINION DATED APRIL 10, 1997. Appellee has not filed a brief. Therefore, in determining the appeal, the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action. App.R. 18(C). For the following reasons, the court modifies the order of the common pleas court and affirms its decision as modified. PROCEDURAL HISTORY This court's previous opinions detail the factual and procedural history of this case. For purposes of this appeal, the following facts are relevant. The common pleas court entered a final judgment of divorce in this matter on December 11, 1995. In a subsequent appeal, this court sustained four of appellant's ten assignments of error, reversing the judgment in part and remanding the case for further proceedings. Munroe v. Munroe (1997), 119 Ohio App.3d 530. On remand, the common pleas court modified its judgment by, e.g., finding that appellant's separate premarital interest in the marital residence was $39,472, not the $4,400 indicated in the prior judgment. The court ordered that on sale of the marital residence, appellant should be reimbursed for this amount. -3- Appellant appealed again, asserting that the court did not correctly determine the amount he was to receive on the sale of the marital residence. This court sustained the appeal and again reversed and remanded the common pleas court's decision. Our opinion stated, in relevant part: 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 invest- ment of $4,400.00. However, on remand, the domestic rela- tions 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 premar- ital contribution. These two amounts are not the same. The first 25.6% of equity includes any appreciation in the value of the house between the time of the judgment and the time of sale of the marital residence. In con- trast, the first $39,472.00 is a set amount which does not include appreciation in the residence and thus plaintiff would be receiv- ing a lesser amount than this court ordered in its journal entry. Likewise, the lower court's judgment entry did not include the $4,400 we awarded plaintiff as part of his original investment in the marital residence. * * * 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. * * * Munroe v. Munroe (May 26, 1998), Cuyahoga App. 73418, unreported. -4- On remand, the common pleas court modified its judgment entry to read as follows: 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 $4,400.00, plus an amount equal to 25.6% of the equity, 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 di- vided equally between Plaintiff and De- fendant, however out of the Plaintiff's one-half share the Defendant shall be paid the sum of $5,000.00, plus 5% inter- est per annum from the date hereof until paid in full, as and for additional spousal support toward her attorney fees. Appellant has timely appealed this ruling. LAW AND ANALYSIS Appellant's single assignment of error raises two separate issues concerning the allocation of sale proceeds if and when the -5- marital residence is sold. First, appellant complains that the order of the common pleas court reverses the mathematical computa- tion that this court required by taking the $4,400 down payment off the top of the sale proceeds before applying the percentage allocation. We disagree. The deduction of the $4,400 down payment from sale proceeds would not affect the amount of appreciation to which the percentage allocation is applied since appreciation would exclude the total investment in the property (including the $4,400 down payment) in any case. Second, appellant argues the common pleas court erroneously applied the percentage allocation to equity rather than appreci- ation. Appellant argues that this court's order found that his share of the sale proceeds should be as follows: (Sale proceeds - base fair market value)x 25.6%)+ $4,400 but the trial court ordered the following: (Sale proceeds - mortgage debt)x 25.6%)+ $4,400 This court's opinion in Munroe v. Munroe (1997), 119 Ohio App.3d 530, makes clear that appellant's separate property consisted of his $4,400 down payment plus his allocable share of the property's total appreciation. Appellant's allocable share equaled the proportion of his original investment to the parties' total investment, which this court found to be 25.6%. This share should be applied to appreciation, that is, the increase in the property's value. This increase is measured by subtracting the -6- original purchase price and any subsequent improvements from the sale proceeds. In part of the original opinion, 119 Ohio App.3d at 538, and in the later opinion following remand, this court did state that the percentage allocation should be applied to equity. The use of this term was inaccurate. Equity normally means sale proceeds minus any debt attributable to the property. Because the purpose of the allocation is to compensate appellant for the increase in the total value of the property attributable to his original investment, the percentage allocation should be applied to appreciation, not equity. This court has the power to modify the common pleas court's judgment when it determines that the judgment should be modified as matter of law. App.R. 12(B); Art. IV, section 3(B)(2), Ohio Con- stitution; also see Coleman v. Jagniszcak (1995), 104 Ohio App.3d 413 (modifying trial court's award of costs); Simon v. Durham (1994), 98 Ohio App.3d 828 (modifying double damages award). Here, there is no factual question to be determined by the common pleas court. The judgment must be modified as a matter of law to award appellant the percentage of the sale price to which he is entitled. Accordingly, the trial court's order is modified so that item 1 of the provision concerning the allocation of the sale proceeds reads as follows: 1. Plaintiff's original separate investment of $4,400 plus 25.6% of the appreciation in the value of the marital home (sale price less base fair market value of $47,000), as and for reimbursement for -7- his separate premarital property contri- bution; As modified, the judgment of the common pleas court is affirmed. -8- It is ordered that appellee and appellant share equally in the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas, Domestic Relations Division, 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. MICHAEL J. CORRIGAN, J. CONCURS DIANE KARPINSKI, P.J. CONCURS IN PART AND DISSENTS IN PART (See separate Opinion) JUDGE KENNETH A. ROCCO 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II. Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 75404 WILLIAM C. MUNROE : : CONCURRING : Plaintiff-Appellant : AND : : DISSENTING v. : : OPINION JENNIFER B. MUNROE : : : Defendant-Appellee : DATE: JUNE 17, 1999 KARPINSKI, J., CONCURRING AND DISSENTING: I respectfully concur in part and dissent in part. Unfortu- nately, this is the third time this matter has come before this court. Today, the majority decides to modify part of the judgment of the trial court despite the fact that the entire judgment complied precisely with the mandate of this court in the second appeal.1 The litigation in this case stands as an enduring testament to the Ohio Supreme Court's pronouncement that it is ill-advised and impossible for any court to set down a flat rule concerning property division upon divorce. Worthington v. Worthington(1986), 21 Ohio St.3d 73, 75, quoting Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355. First Appeal The trial court originally awarded husband his original down payment of $4,400 as his separate interest in the residence he 1 I concur with the majority that husband's argument concerning the return of his $4,400 down payment lacks merit. I dissent from its opinion modifying the remaining award from 25.6% of the equity in the marital residence to 25.6% of the appreciation. -2- purchased five months before the marriage. The trial court found that he did not prove any passive appreciation to his separate property because the husband and wife jointly remodeled and refinanced the residence during their marriage. A split opinion of this court reversed and ordered the trial court to make an additional award to the husband. Munroe v. Munroe (1997), 119 Ohio App.3d 530 (Munroe I). Unfortunately the majority opinion in Munroe I was ambiguous and subject to (at least) three different interpretations. In addition to ordering return of the down payment, it alternately suggested awarding husband (1) 25.6% of the appreciation or (2) 25.6% of the equity in the residence. It also provided (3) a specific numerical example, which yielded a total award of $39,472.2 Because it could not simultaneously award 25.6% of the equity and appreciation, the trial court resolved the dilemma 2 For example, the I majority opinion stated at p. 538: MunroeThe husband would therefore be entitled to 25.6 percent of the appreciated value, or $35,072. This value is then added to his separate investment of $4,400 for a total of $39,472. Thus, if the property was sold today, of the $126,771 equity in the home ($184,000 minus the refinanced mortgage balance of $30,651 and second mortgage of $26,578), $39,472 would be the husband's separate property and $87,299 would be separate property. According to the decree, however, the wife was granted possession of the residence until the youngest child reaches eighteen years old (May 1998), at which time the parties have several options including buying the other out or selling the property. Whatever option the parties exercise, the husband should be entitled to 25.6 percent of the equity in the home, plus his original investment of $4,400. -3- by using the specific $39,472 numerical example. Its journal entry established the following priority schedule if neither party bought out the other's interest upon sale: 1. The first $39,472.00 to the plaintiff [Husband] as and for reimbursement for his separate premarital property contribution. (Id., emphasis added.) Second Appeal In the second appeal, this court again reversed the trial court and clarified the holding in Munroe I. This time, this court specifically instructed the trial court on remand not to use the numerical example of $39,472 from Munroe I and to use 25.6% of the equity.Munroe v. Munroe (May 26, 1998), Cuyahoga App. No. 73418, unreported (Munroe II). Accord e.g., Henderson v. Henderson (Nov. 1, 1995), Hamilton App. No. C-940833, unreported (citing Worthing- ton v. Worthington, supra.) In Munroe II, this court specifically held as follows: In Munroe[I], we sustained plaintiff[-husband]'s first and ninth assignments of error regarding the amount of plaintiff[-husband]'s down payment and the amount of equity he is to receive upon sale of the marital resi- dence. We held ***the husband should be entitled to 25.6% of the equity in the home, plus his original investment of $4,400.00. (Emphasis added.) Id. at p. 4, referring to the passage of Munroe I, quoted in n.1 above, at p. 538. In its concluding paragraph, the Munroe II court continued: 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 compensa- tion for his original investment. -4- (Id. at 5, emphasis added.) Husband did not seek reconsideration of Munroe II or appeal to the Supreme Court and, therefore, Munroe II became the law of the case. E.g., Hawley v. Ritley (1988), 35 Ohio St.3d 157; Nolan v. Nolan (1984), 11 Ohio St.3d 1. Third Appeal Following this second remand, the trial court did exactly what this court instructed it to do. Namely, the trial court awarded husband 25.6% of the equity plus his original $4,400 down payment instead of the prior specific numerical figure of $39,472. The trial court's journal entry made the following award: 1. The first $4,400.00, plus an amount equal to 25.6% of the equity, to the Plaintiff [Husband] as and for reimbursement for his separate premarital contribution. (Id., emphasis added.) The trial court's order complied precisely with our mandate in Munroe II to give plaintiff 25.6% of the equity in the marital residence upon sale plus $4,400. Munroe II, supraat 5. This should have ended the matter. I would affirm the trial court for following the mandate of this court to the letter. In his third appeal, husband now seeks, however, to relitigate whether the trial court should have used 25.6% of the equity or 25.6% of the appreciation. This precise issue was specifically resolved contrary to his argument in Munroe II, his last appeal.3 The law of the case doctrine was designed to prevent this sort of 3 [T]he doctrine of law of the case precludes a litigant from attempting to rely on arguments at a retrial which were fully pursued, or available to be pursued, in a first appeal. New arguments are subject to issue preclusion and are barred. Hubbard ex rel. Creed v. Sauline (1996), 74 Ohio St.3d 402, 404-405 (citations omitted.) -5- endless relitigation and inconsistency of results sought in the case at bar. If he wished to challenge the result, he should have appealed to the Supreme Court. Contrary to the majority's argument, courts in subsequent proceedings cannot simply modify settled law of the case, even if they believe the prior decision was incorrect. State ex rel. Potain v. Mathews (1979), 59 Ohio St.2d 29, 32. The Supreme Court has specifically admonished Ohio courts to follow the law of the case doctrine in the precise context of a divorce action property division, stating as follows: Briefly, the doctrine provides that the decision of a reviewing court in a case remains the law of the case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels. Nolan v. Nolan, supra at 3 (emphasis added). The Nolan Court held that neither the trial court nor the appellate court could deviate from the law of the case. As in Nolan, the majority in the case at bar has cited no reason to ignore the law of the case. Husband, moreover, did not argue, let alone establish, that injustice would result from following Munroe II. It would be difficult to make such an argument because, under Munroe II, husband obtained 25.6% of the equity in the marital residence despite making only a 20% down payment five months before the marriage. The proper remedy for a litigant dissatisfied with an opinion of the court of appeals is to timely appeal to the Supreme Court rather than to make a belated request to another appellate panel to -6- second guess a prior opinion. Under such circumstances, the Supreme Court has held, contrary to the majority opinion, that Since appellant chose not to appeal *** such a disposition ipso facto became the `law of the case,' and the appellant must endure the consequences of not appealing that decision. Hawley v. Ritley, supra at 160. The majority opinion is literally unprecedented and unwisely places property divisions up for grabs through repeated relitiga- tion in divorce actions. Neither Coleman v. Jagniszcak (1995), 104 Ohio App.3d 413, nor Simon v. Durham (1994), 98 Ohio App.3d 828, involved compliance with a mandate from a prior appeal, authorizes ignoring the law of the case, or supports the majority's argument to the contrary.4 For these reasons, the judgment of the trial court should be affirmed in its entirety as written without modification. 4 Each case involved the appellate court, on an initial direct appeal, modifying a trial court judgment by reducing the amount of its monetary judgment in excess of that provided for by the Civil Rules. Unlike these two cases, the case at bar involves .