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					                                                  COPhi
                      IN THE DISTRICT COURT OF TULSA COUNTY
                                STATE OF OKLAHOMA         gq gy-? ;;; :,; 3 & I’;:: a, -;;
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LEXANNE LEAH BOHANNON,                                1                                         F!3 (-j 6 2gf-J
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       Plaintiff,                                     1                              I’t’,‘r. ; ; ;!;‘e,-
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                                                      1
-vs-                                                  )      Case No. FD 99-0506
                                                      )      Judge Terry H. Bitting
GARY DEAN BOHANNON,                                   1
                                                      1
       Defendant.                                     )


                                TRIAL BRIEF FOR DEFENDANT


                                           INTRODUCTION

       The parties were married in 1994 and purchased a marital residence in January, 1995. In

December, 1995, Gary Bohannon suffered a motorcycle accident that left him permanently

paralyzed from the neck down. The parties have one child together.

              DEFENDANT NEEDS TO RETAIN THE MARITAL RESIDENCE
                     BECAUSE OF HIS PHYSICAL DISABILITY

       The evidence will show that the Defendant is a quadriplegic as a result of his motorcycle

accident. He is in a wheelchair and has a specially trained mobility service dog. The marital

residence has been modified to accommodate his wheelchair with widened doorways, wheelchair

ramps, and reconfiguration of the bathroom. It would be very difficult and expensive for the

Defendant to move from the marital residence and replace it with other housing appropriate for

his physical limitations.

       The Defendant’s service dog has been trained especially to assist his master within this

particular residence. It would be difficult and expensive to train this professional animal to assist

in a new location.
        The Defendant has retained the same home health aide for approximately two years. An

aide’s reliability can be contingent upon the location and travel distance required for the job. The

proximity of neighbors willing to assist the Defendant in his daily living is also vital for his

independence; these relationships in the neighborhood have been extensively developed. For

these reasons, the Defendant seeks award of the marital residence in the divorce.

             A PORTION OF THE DEBT SECURED BY THE SECOND MORTGAGE
                         IS THE PLAINTIFF’S SEPARATE DEBT

        The evidence in this case will show two debts which are secured by mortgages on the

marital residence. The first mortgage with Mortgage Clearing Corporation financed the

purchase of the marital residence. The balance due on the first mortgage is $55,088.00. Monthly

payments on this mortgage are $554.00.

       The second mortgage is to the Plaintiffs parents, Robert and Linda Kuhn. It was filed on

January 13, 1999, five days prior to the parties’ separation. The second mortgage states that it

secures payment of a promissory note dated January 10, 1996 “in the principal sum of

$21,985.00, payable in sixty regular monthly installments.” The second mortgage was signed

by the Plaintiff both on her own behalf and on behalf of the Defendant under a power of attorney

obtained while the Defendant was hospitalized from his accident. The evidence will show that

no payments have been made on the note, but the note has not been declared in default.

       A marital debt is one that which is jointly acquired in furtherance of a marital goal.

Sien v. Sien, 1994 OK CIV APP 159, 889 P.2d 1268, 1272. The evidence will show that the

$13,000.00 portion of the debt secured by the second mortgage was not jointly acquired by the

parties and was not used to further a marital goal. The promissory note referred to by the

mortgage is for the sum of $8,985.00, representing loans made by the Kuhns to the Plaintiff and

Defendant.    Defendant agrees that the $8,985.00 is a marital debt. However, the evidence will
show that the Plaintiff purported to add an additional $13,000.00 to the promissory note at some

later date, and then signed the second mortgage securing the alleged new total debt of

$21,985.00. The Defendant contends that the additional $13,000.00 secured by the second

mortgage was not included in the promissory note of January 10, 1996, and was debt incurred

without the Defendant’s knowledge or agreement. If the Plaintiff indeed did borrow an

additional $13,000.00 from her parents, the evidence will show that the Plaintiff did not use the

$13,000.00 for “furtherance of a marital goal.” Thus, the $13,000.00 debt, and that portion of

the second mortgage securing the $13,000.00 is a separate debt of the Plaintiff.

       Even if this Court determines that the entire $21,989.00 debt is a marital debt, the

division of that debt as part of the property division must be “just and reasonable” Okla. Stat.

tit. 43 4 121, and should be an “equitable” division. Okla. Stat. tit. 43 0 108.   “Equitable”

division of property and debts does not necessarily mean “equal” division. In Strock v. Strock,

1993 OK CIV APP 173,865 P.2d 1272,1274, the court of appeals affirmed an award to the wife

of over one-half of the marital property and none of the marital debts, noting that the evidence

showed that “much of the marital debt, exclusive of the mortgage on the real property, was

incurred solely by the Husband.”

       Also relevant to an “equitable” division of property - and debt - is misconduct of one

party relating to dissipation of assets. Smith v. Smith, 1993 OK CIV APP 17, 847 P.2d 827, 829.

In this case, the $13,000.00 allegedly loaned to the Plaintiff cannot be shown to have been spent

on marital purposes, and yet the Plaintiff encumbered a marital asset with a mortgage for that

additional $13,000.00 debt. Equity requires that the $13,000.00 debt and liability for that portion

of the second mortgage should be assigned to the Plaintiff.
                   THE DEFENDANT IS IN NEED OF SUPPORT ALIMONY

        As discussed above, the Defendant needs the marital residence with its accommodations

to his physical disability and the ancillary benefits to his independent living. However, the

marital residence is encumbered with two mortgages and two mortgage payments. The

Defendant’s Social Security disability income of $1,074.00 per month is sufficient for him to

assume liability for the first mortgage.

        Defendant will show that he has a demonstrated need for the Plaintiff to assume liability

for the second mortgage (held by her parents). As discussed above, this liability could be

assigned to the Plaintiff as debt division. In the alternative, the Defendant should be granted

support alimony from the Plaintiff in the form of assumption of liability on the second mortgage.

Support alimony is appropriate when the applicant has a demonstrated need. Among the factors

to be considered in awarding support alimony are the applicant’s health and ability to earn

income. Agent v. Agent, 1979 OK CIV APP 62,604 P.2d 862. See, e.g., Stansberry v.

Stansberry, 580 P.2d 147 149 (Okla. 1978) (wife’s deteriorating physical condition which would

eventually prevent her from earning income was a factor in the award of support alimony). The

ability of the other spouse to pay support is also a factor. In the instant case, however, the fact

that the Kuhns have not yet required payment on the note and mortgage indicates that the

financial burden of assigning this debt to the Plaintiff will not be too onerous.

                                THE ISSUE OF CHILD SUPPORT

       The evidence will show that Defendant Gary Bohannon is permanently physically

disabled due to a motorcycle accident in 1995. He has been found to be permanently disabled by

the Social Security Administration and receives $1,074.00 per month in social security disability
1




    benefits (S.S.D.I.). He has no other income. The evidence will show that Plaintiff Lexanne

    Bohannon, earns $1,682.00 per month from employment.

           The minor child of the marriage is receiving, and will continue to receive until age 18 or

    graduation from high school, Social Security children’s insurance benefits as a result of Mr.

    Bohannon’s disability. The amount the child currently receives from the Social Security

    Administration is $280.00 per month.

           How the children’s Social Security benefits are applied in determining the child support

    obligation has been addressed by Oklahoma Court of Civil Appeals in Nazworth v. Nazworth,

    1996 OK CIV APP 134,931 P.2d 86. In Nazworth, the Court held that when the disabled parent

    receiving SSDI is the obligor parent, the child support is computed as follows:

                   First, the children’s benefit is added to the obligor parent’s SSDI benefit for his

           total “gross income.”

                   Second, the child support owed by the obligor is computed using the Child

           Support Guidelines.

                   Third, the child’s Social Security benefit should be credited against the obligor

           parent’s child support obligation. If the Social Security benefit paid to the child is less

           than the child support obligation calculated using the Guidelines, then the obligor is

           required to pay the difference to the obligee parent.

    See also Baker v. Baker, 1996 OK CIV APP 97, 923 P.2d 1198 (child’s Social Security benefits

    paid due to obligor’s retirement substituted as child support payment when the amount of the

    payment equaled his obligation under the Child Support Guidelines).

           Using the Nazworth formula, Mr. Bohannon’s gross income for child support purposes is

    his SSDI ($1,074.00) plus the child’s benefit ($280.00) for a total of $1,354.00. The child
support for the one child of the marriage would be $180.26 per month, under the pre-

November 1, 1999 child support guidelines. The parties agree that the child care expenses are

currently $279.50 per month, of which Mr. Bohannon’s share is $125.78. Thus, his total

obligation is $306.94. From this figure he should be given credit for the $280.00 per month paid

to the child in Social Security benefits. This credit leaves Mr. Bohamron with a child support

payment of $26.94. (Child support computation utilizing pre-November 1, 1999,

guidelines,attached.)

        The court may deviate from child support guidelines if the application will result in an

amount that is unjust, inequitable, unreasonable or inappropriate under the circustances.

43 Okl.St.Ann. 5 118A. The evidence in this case will show that any amount of support ordered

to be paid by the Defendant out of his S.S.D.I. income would create a hardship. His disability

prevents him from supplementing his income in order to assume additional expenses.

        Additionally, the Plaintiff is eligible to receive income tax credits in the form of Earned

Income Credits and Child Care Credits. An Earned Income Credit was taken on the parties’ 1997

and 1998 Federal Income Tax returns in the amounts of $2,115 and $7 19. Either of these 12-

month amounts is more than the difference in child support computation and dependent social

security income for 12 months. In order to compensate for these tax benefits to the Plaintiff, and

in order to avoid a result that is unjust and inequitable, this Court should deviate from the child

support guidelines and order that no additional support obligation be paid from the Defendant’s

S.S.D.I. benefits.
                                              CONCLUSION

       Because the Defendant has special needs and the absence of reasonable options in

substitute housing, he should be awarded the marital residence. He should also assume the first

mortgage on the residence.

       Equity requires that division of the marital estate be equitable, not equal. In order to

make an equitable division in this case, the trial court should determine that a portion of the

second mortgage on the parties’ marital residence is separate debt incurred by the Plaintiff. In

the alternative, the Defendant should be awarded support alimony in the form of the assumption

of the second mortgage by the Plaintiff.

       Oklahoma case law allows that a child support obligor be credited for Social Security

Disability Income paid to a minor child as against the child support obligation. For that reason,

S.S.D.I. moneys paid to the minor child of the parties should be credited against any child

support obligation, and the Court should deviate from the Child Support Guidelines to avoid a

result which is unjust and unreasonable under the circumstances.




                                                              Respectfully submitted,




                                                             Carole Liebendorfer, OBA #lo884
                                                             Laura Emily Frossard, OBA #3 15 1
                                                             Legal Services of Eastern
                                                                     Oklahoma, Inc.
                                                             115 West 3rd St., Suite 700
                                                             Tulsa, Oklahoma 74 103
                                                             Telephone: (918) 584-3338
                                                             Fax: (918) 584-3060
                                                             Attorneys for the Defendant

				
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