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Gupta v. Gupta7/28/2000
pp.3d 322, 324. R. C. 3105.171(E)(3) provides:
If a spouse has engaged in financial misconduct, including, but not limited to, the dissipation, destruction, concealment or fraudulent disposition of assets, the court may compensate the offended spouse with a distributive award or with a greater award of marital property.
In this case, the trial court ruled that the appellant set in motion a series of events that eventually led to him being required to expend over $60,000. The court relied on a decision rendered by the Twelfth Appellate District in Leadingham v. Leadingham (1997), 120 Ohio App.3d 496, as support for this contention. In Leadingham, the court found that the husband had committed financial misconduct by losing his job due to a charge of drug possession. The court held that while the husband may not have intended to lose his job, his conduct was intentional, voluntary and foreseeably led to that result.
In Hammond v. Brown (Sept. 14, 1995), Cuyahoga App. No. 67268, unreported, the Eighth District Court of Appeals stated the following concerning financial misconduct.
An implicit element of financial misconduct is wrongdoing. Thus, while R.C. 3105.171(E)(3) does not set forth an extensive listing of acts constituting financial misconduct, those acts that are listed (dissipation, destruction, concealment or fraudulent disposition) all contain some element of wrongful scienter. Typically, the offending spouse will either profit from the misconduct or intentionally defeat the other spouse's distribution of marital assets.
The court further held that because financial misconduct involves some element of profit or interference with another's property rights, the time frame in which the alleged misconduct occurs may often demonstrate wrongful scienter. Id. For example, diminution of the marital estate during pendency of the divorce action might create an inference of misconduct. Id., see e.g., Spychalski v. Spychalski (1992), 80 Ohio App.3d 10 (dissipation of wrongful death settlement obtained while the parties divorce complaint was pending); Hamblin v. Hamblin (Oct. 18, 1993), Butler App. Nos. CA93-03-044 and CA93-03-048, unreported (buying a new truck and redeeming life insurance policy contrary to restraining order). Also, the dissipation of marital assets during a period of permanent separation could be considered financial misconduct. See e.g., Babka v. Babka (1992), 83 Ohio App.3d 428 (account liquidated just prior to the parties' divorce); Gray v. Gray (Dec. 8, 1994), Cuyahoga App. No. 66565, unreported (transferring or withdrawing funds during separation period in order to conceal them from the other spouse); Lott v. Lott (Sept. 30, 1993), Cuyahoga App. No. 63854, unreported (selling rental property in direct contravention of pending restraining order).
In this case there are no allegations that the appellant personally profited from his actions or engaged in misconduct solely to defeat the wife's interest. While there is no doubt that the appellant's actions toward the nurses were inappropriate, he did not partake in those actions with the intent to deprive his wife of marital assets. Rather, the appellant's intent when spending the money was to seek help in redressing the problems he was experiencing. He sought the services of an attorney in an attempt to save his job and sought treatment in order to prevent a similar situation from occurring in the future and in an attempt to have his hospital privileges reinstated. These expenditures were made during the course of the parties' marriage, with full knowledge and consent of the appellee. In fact, the appellee participated in the portion of the appellant's treatment that involved f
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