The Lawletter Vol 35 No 8, May 27, 2011
Brett Turner, Senior Attorney, National Legal Research Group
In Burriss v. Burriss, 2010‑Ohio‑6116, 2010 WL 5140442 (Ct. App.), the trial court awarded $31,673 in personal property to the husband and $7,500 in personal property to the wife. It then found that an equitable division of marital property was appropriate, so that the husband would have to pay a monetary award to the wife to equalize the division. The court computed the amount of the equalizing award as $31,673 minus $7,500, or $24,173.
Not surprisingly, the trial court was reversed on appeal. The proper amount of an equalizing award is not the difference between the parties' respective shares of the marital estate but, rather, half of the difference. When the full difference is awarded, the division simply reverses the existing imbalance. In Burriss, for example, the trial court's order left the husband with a net award of $7,500 ($31,673 minus $24,173), while the wife received a net award of $31,673 ($7,500 plus $24,173). This is the exact reverse of the division which the trial court expressly held to be inequitable. To equalize the division, the husband should have been ordered to pay half of the difference, or $12,086.50.
Failing to divide by two when making an equalizing monetary award is a surprisingly common error. For additional cases reversing such an award, see Austin v. Austin, 12 So. 3d 314, 317 (Fla. Dist. Ct. App. 2009); Finch v. Finch, 576 N.Y.S.2d 450 (App. Div. 1991); and Hoverson v. Hoverson, 2001 ND 124, 629 N.W.2d 573. See also Stalb v. Stalb, 719 A.2d 421 (Vt. 1998) (trial court could properly correct this mistake after decree became final, as it resulted from a clerical error).
