Courtroom away from Appeals away from Kansas,3rd Section, Seneca State

Zero. 13-08-16.

<>Defendant-appellant, Jay J. Jones, appeals from the judgment of the Seneca County Court of Common Pleas, Domestic Relations Division, ordering him to pay plaintiff-appellee, Evelyn Jones, $8,, plus statutory interest from , court costs incurred, and $2,000 of Evelyn’s reasonable attorney fees. On appeal, Jay argues that the trial court erred by denying his motion to dismiss for lack of subject-matter jurisdiction, that the trial court erred by denying his motion to dismiss for failure to state a claim, that the trial court erred in finding for Evelyn as she failed to present sufficient evidence of unjust enrichment to meet her burden of proof, that the trial court erred by denying his motion to dismiss for failure to join an indispensable party, and that the trial court erred in awarding attorney fees and costs to Evelyn without a presentation of evidence on the issue. Based on the following, we affirm in part and reverse in part the judgment of the trial court.

JONES v. JONES

<>In December 1999, Evelyn filed a petition for dissolution of her marriage to Jay in the Seneca County Court of Common Pleas, a petition that incorporated a separation agreement. During the course of the marriage, the parties had purchased a business called the Whippy Dip, for which they took out a line of credit (home equity loan) on their residence at 628 installment loans pre approval Northview Dr., Fostoria, Ohio (the residence), to help pay expenses of the business.

This new people concur that Spouse will remain in the house and might be guilty of all home loan repayments, utilities, fees, insurance rates, and you will restoration into told you house * * * and you may shall keep Partner harmless thereof. * * *

Since this a property is even mortgaged from inside the 1999 towards a mortgage away from Husband’s getting their Whippy Dip team, the new events next agree as follows:

B. Husband shall make prompt costs to Key Lender or its replacement, into the Whippy Dip financial, on which the niche possessions over is even sworn given that equity.

The newest events also are proprietors of one’s a home and you can team found at 400 S. Head St., Fostoria, Seneca State, Ohio, referred to as Whippy Dip. * * *

The fresh new people agree totally that Spouse shall keep up with the told you a house and Whippy Drop team and would be guilty of all of the financial payments, utilities, fees, insurance rates, and repair to your said a residential property and you will organization immediately up on finalizing associated with the contract, and you may should hold Girlfriend innocuous thereof.

<>In , Evelyn filed a motion for contempt, or, in the alternative, a complaint for unjust enrichment, alleging that when she sold the residence, she was forced to pay off the remainder of the home equity loan for the Whippy Dip, which was Jay’s sole responsibility under the separation agreement, and that Jay refused to reimburse her for this payment.

<>In , Jay filed a motion to dismiss Evelyn’s complaint for unjust enrichment and motion for contempt on the grounds that Evelyn failed to state a claim on which relief could be granted, that the court lacked subject-matter jurisdiction over the action, and that Evelyn failed to join an indispensable third party, Key Bank.

<>In , the magistrate dismissed Evelyn’s motion for contempt, but found that her complaint for unjust enrichment properly stated a claim, that the trial court had subject-matter jurisdiction to enforce the separation agreement, and that Key Bank was not an indispensable party to the action.

<>Lou Ann Fleming, a relationship manager with Key Bank, testified that Jay had three loans that involved the Whippy Dip business. One loan was taken out on March 2, 1999, for $28,, secured by the real estate on which the Whippy Dip was located, another on March 2, 1999, for $55,, secured by 699 shares of Quest Communications Stock, and a third loan on February 8, 1999, that was a home equity line of credit for $44,000, secured by the residence; that two loans were dispersed from the home equity line of credit in e was not on the , Key Bank subordinated the home equity loan to a loan from Old Fort Bank. She continued that a title company contacted her to find out what amount was owed on the home equity line of credit because Evelyn wanted to the sell the residence and was required to pay off this loan before selling, but that she told the title company she was required to get Jay’s permission before releasing the payoff figures because Evelyn was not on the loan.