[Cite as Katz v. Katz, 2014-Ohio-1255.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Dolly E. Katz,                                   :

                 Plaintiff-Appellee/             :
                 [Cross-Appellant],
                                                 :                 Nos. 13AP-409
v.                                                                 and 13AP-417
                                                 :            (C.P.C. No. 09DR-12-4873)
Larry Katz et al.,
                                                 :            (REGULAR CALENDAR)
                 Defendant-Appellant/
                 [Cross-Appellee].               :

                                          D E C I S I ON

                                      Rendered on March 27, 2014


                 Briscoe Law Offices Co., L.P.A., and Colleen H. Briscoe, for
                 appellee/cross-appellant.

                 Grossman Law Offices,           and   Andrew S. Grossman;
                 Giorgianni Law LLC,             and   Paul Giorgianni, for
                 appellant/cross-appellee.

                 Dinsmore & Shohl LLP, Michael D. Bonasera and Greg P.
                 Mathews, for Larry Katz, Trustee.

                  APPEALS from the Franklin County Court of Common Pleas,
                              Division of Domestic Relations

TYACK, J.
        {¶ 1}    This is an appeal and cross-appeal from the Franklin County Court of
Common Pleas, Division of Domestic Relations decision and judgment entry/decree of
divorce filed April 17, 2013. The primary issues for trial were the division of property
regarding real estate and the business interests of the parties. A related issue was spousal
support. For the reasons that follow, we affirm in part and reverse in part the judgment
of the trial court.
Nos. 13AP-409 and 13AP-417                                                               2


       {¶ 2} Larry and Dolly Katz were married on December 31, 1986. They had two
sons who are both adults.       The parties entered into a prenuptial agreement that
memorialized the distribution of various assets and the values of some assets. Larry Katz
owned, prior to the marriage, an IRA, 13 pieces of property, and a business known as
Columbus Recycling Co., Inc.
       {¶ 3} In February 1993, six years after the marriage, Larry Katz created the
"Irrevocable Trust Agreement of Larry Katz for the benefit of Steven Mark Katz & Joshua
Brian Katz." ("the Trust"). Larry Katz claimed that the Trust was for estate planning
purposes, but it was pointed out at trial that he sought a divorce in 1994 that was
subsequently dismissed. Dolly Katz was excluded from any ownership or inheritance
from the Trust.    The original corpus of the trust was $33,589 and came from an
inheritance from Larry Katz's father. Dolly Katz denied knowing of the Trust until early
2010, approximately 17 years after its creation.
       {¶ 4} As set forth in the trust documents, Larry Katz reserved to himself the
following powers: the right to control and manage the trust assets; the right to hold and
retain those assets without liability for loss or depreciation; complete authority to invest
trust property in any form; complete authority to buy or sell real estate on whatever terms
he deemed appropriate; authority to operate any business enterprise; authority to handle
all litigation; authority to manage, lease, and develop any and all real estate; authority to
pay debts and expenses; authority to take care of environmental hazards using trust
assets; and further specifically authorized payment not only of ordinary compensation,
but additional compensation for extraordinary services in amounts that would be solely
determined by him.
       {¶ 5} In 2008, Larry Katz formed KFT Holding Company, LLC ("KFT"). The
holding company purported to assign interests and rights in 51 limited liability
companies, each associated with a real estate/rental property address. Membership
interests were assigned as follows: 25 percent to Larry Katz; 25 percent to Dolly Katz; and
50 percent to Larry Katz, trustee of the Trust.
       {¶ 6} Larry Katz was named manager for KFT and had complete control to
operate KFT as he saw fit. Thirteen of the properties were Larry Katz's separate property.
Larry Katz testified that he had gifted his 13 premarital rental properties to Dolly Katz
Nos. 13AP-409 and 13AP-417                                                               3


assigning a membership interest of 25 percent at the same time he allegedly transferred
36 marital rental properties into LLCs. The lack of evidence to demonstrate the actual
existence of the original LLCs, and the inability to establish tracing documentation led to
the trial court finding 37 of the properties to be marital property and 13 of the properties
to be Larry Katz's separate properties. The trial court found that due to Larry Katz's lack
of credibility and convenient lack of knowledge, he did not have any donative intent to gift
an interest in the properties to Dolly Katz. Rather, Larry Katz used his business dealings
in an attempt to preserve all his assets and any income for himself.
       {¶ 7} In 2010, distributions in the amount of $36,146 were allegedly made to
Dolly Katz for her purported 25 percent interest. Dolly Katz testified that she did not
receive that income and therefore did not report it on her 2010 tax return. A CPA hired by
Dolly Katz testified that he could not find any consistency in the timing or amount that
the parties' sons had been given in distributions of the Trust. The court concluded that
KFT was created to solidify Larry Katz's sole control of the properties, while at the same
time diminishing the parties' marital estate to Dolly Katz's detriment.
       {¶ 8} On December 14, 2009, and before the alleged distributions mentioned
above, Dolly Katz filed for divorce. A magistrate granted a temporary order requiring
Larry Katz to provide health insurance for Dolly Katz, to pay spousal support of $2,500
per month, to pay $4,000 in attorney fees to Dolly Katz, to pay the expenses of the marital
residence, to pay Dolly Katz's car payment, and to pay his own debts. Dolly Katz was to
pay her debts. Larry Katz sought to vacate or modify the temporary order. Motions for
contempt, oral argument, and further orders followed. He was unsuccessful in getting the
temporary orders modified.
       {¶ 9} Discovery was complicated by the manner in which Larry Katz handled his
business, real estate, and financial dealings. Dolly Katz had little-to-no role in the family
and business finances, and found it necessary to engage a forensic accountant to attempt
to trace assets and unravel the labyrinth of Larry Katz's business and personal financial
dealings. Dolly Katz testified that her husband kept her in the dark about financial
matters considering that to be his business and none of hers.
       {¶ 10} A trial of the contested issues was heard over several days in March 2012.
The trial court found that Larry Katz's testimony was evasive and lacking credibility. On
Nos. 13AP-409 and 13AP-417                                                            4


April 17, 2013, the trial court filed its 59-page decision and judgment entry/decree of
divorce.
      {¶ 11} Larry Katz appealed, and Larry Katz as Trustee appealed. The arguments
made on behalf of the trust mirror those by Larry Katz individually and those issues will
be discussed together. Larry Katz assigned the following errors:
             1. The Divorce Decree orders Larry to pay Dolly, as property
             equalization, the fixed amount of $1,500,694 in cash.

             The Divorce Decree classifies as marital assets seven
             properties that are Trust assets. (Larry Katz as trustee also
             asserts that the trial court erred by finding that assets owned
             by the trust are marital property subject to division).

             3. The Divorce Decree finds that the single-asset LLCs do not
             exist.

             4. The Divorce Decree orders Larry to pay Dolly $140,000,
             representing half of the appreciation in the value of Columbus
             Recycling Company.

             5. The Divorce Decree orders Larry to pay Dolly cash equal to
             half of the $280,000 capital gain from the sale of Columbus
             Recycling Company plus half of the 2009 and 2010 federal
             income tax refunds.

             6. The Divorce Decree allocates to Larry 100 percent of five
             marital liabilities.

             7. The Divorce Decree allocates to Larry 100 percent of the
             Katz's' undetermined tax liabilities for 2010 and earlier, while
             giving Dolly 50 percent of the Katz's undetermined refunds.

             8. The Divorce Decree calculates spousal support based upon
             the income produced by assets the Decree orders Larry to sell.

             9. The Divorce Decree imputes zero income to Dolly.

             10. The Divorce Decree orders spousal support for an
             indefinite term without retaining jurisdiction to modify the
             term.

             11. The Divorce Decree orders Larry to pay Dolly's attorney
             fees.
Nos. 13AP-409 and 13AP-417                                                                  5



       {¶ 12} Cross-appellant, Dolly E. Katz, assigns as error the following:
              1. THE COURT MADE A RULING THAT WAS CONTRARY
              TO THE EVIDENCE AND ABUSED ITS DISCRETION IN
              AWARDING FIVE (5) RENTAL PROPERTIES AS NON-
              MARITAL WHEN DEFENDANT ONLY TRACED A SMALL
              PORTION OF THE ASSETS TO A NON-MARITAL SOURCE.

              2. THE COURT ERRED AND ABUSED ITS DISCRETION IN
              FAILING TO MAKE A DISTRIBUTIVE AWARD.

                       Property equalization of $1,500,694 in cash
       {¶ 13} Assignments of error one, two, and three concern the property equalization
cash award to Dolly Katz, the classification of alleged Trust assets as marital, and the
finding by the trial court that there was a lack of evidence that the single asset LLCs exist.
       {¶ 14} In a divorce, a trial court must divide the marital property of the parties
equitably.   R.C. 3105.171(C); Cherry v. Cherry, 66 Ohio St.2d 348 (1981).             Marital
property includes all real and personal property and interest in real and personal property
that is currently owned by either or both of the spouses and that was acquired by either or
both of the spouses during the marriage. Separate property includes property acquired
prior to the date of marriage, or through inheritance or gift, or acquired with non-marital
funds after separation.     Equality of distribution, while an admirable goal in many
situations, must yield to concerns for equity. Longo v. Longo, 11th Dist. No. 2004-G-
2556, 2005-Ohio-2069, ¶ 111.
       {¶ 15} The party seeking to have an asset classified as separate property must
prove by a preponderance of the evidence that the asset can be traced to separate
property. Taub v. Taub, 10th Dist. No. 08AP-750, 2009-Ohio-2762, ¶ 28; Peck v. Peck,
96 Ohio App.3d 731, 734 (12th Dist.1994).             We review the trial court's factual
determination of property as separate or marital under a manifest weight of the evidence
standard. Taub at ¶ 15.
       {¶ 16} A reviewing court may modify or reverse a property division if it finds that
the trial court abused its discretion in dividing the property as it did. Cherry at 355.
       {¶ 17} In this case, the trial court allocated to Larry Katz 47 marital properties
consisting of the marital residence, business properties, and residential rental properties.
Nos. 13AP-409 and 13AP-417                                                               6


The court used the best evidence it had, namely, the auditor's assessed value. The trial
court then calculated the marital total of assets and liabilities to be $3,607,140. The net
value of Larry Katz's marital assets and liabilities came to $3,304,264, and the net value
of Dolly Katz's marital assets and liabilities came to $302,876, the difference being a
property equalization award of $1,500,694 to Dolly Katz.
       {¶ 18} Larry Katz argues this allocation is unfair because it forces him to liquidate
some of his properties to pay Dolly Katz, and forces him to undergo all the costs and risks
associated with selling the properties. We disagree. The trial court did indicate that it
believed its order would require Larry Katz to select and liquidate some real properties
awarded to him.      However, it was abundantly clear from the trial that Larry Katz
maintains complete control over his business interests. He has three years to pay the
award. Nothing in the decree requires him to liquidate property. He can mortgage
properties in lieu of selling them, he can pay the award out of other funds that he controls,
or he can liquidate some of his properties, but he has complete control over that process.
Any information regarding repairs, costs, tax ramifications, and risks associated with
liquidation of these marital assets remained and remains at all times with Larry Katz.
However, there was no evidence in the record of what any of those costs or risks might be.
Larry Katz may be correct in his presumption that he will undergo certain risks associated
with selling properties, but his evasiveness and lack of credible testimony provided no
information that the trial court could use in making those evaluations. With no evidence
of potential tax consequences in the trial court, such consequences would be speculative.
It is also speculative as to whether Larry Katz would have to liquidate his real property,
and therefore the trial court need not consider the tax consequences. See Syslo v. Syslo,
6th Dist. No. L-01-1273, 2002-Ohio-5205, ¶ 72.
       {¶ 19} The trial court had another reason for keeping the real properties in Larry
Katz's possession.   There was evidence in the record that Larry Katz concealed his
intentions and attempted to deprive his spouse of her share of certain proceeds. If, as his
counsel suggests, the court should have ordered liquidation and division of the cash
proceeds, Dolly Katz would be unable to protect her interest in the net proceeds. Larry
Katz could claim large expenses, costs of sale, or choose properties that would give him
the greater return and cause Dolly Katz to be deprived of her fair share. Further, since
Nos. 13AP-409 and 13AP-417                                                               7


Larry Katz is a real estate broker, the costs of sale and process of selling the property
could be problematic to ascertain.
       {¶ 20} The record shows that Dolly Katz has a high school education and little to
no understanding of the family and business finances. She did not have the financial
acumen or ability to handle the practical aspects of a transfer of real estate to her. She
was presented with papers to sign and did as her husband directed.             Larry Katz's
accountant refused to provide her with copies of the couple's joint tax returns without
getting permission from Larry Katz. The trial court found the accountant, Mr. Slutsky,
lacked credibility also. Had Larry Katz been more forthcoming in his testimony and had
he produced documentation for some of his claims, the trial court might have come to a
different conclusion for property allocation.
       {¶ 21} Larry Katz arranged and ran his financial affairs with the intention to profit
from his conduct and/or to defeat Dolly Katz's distribution of marital assets. He was not
forthcoming with his financial affairs with his spouse during the marriage, and there was
no indication he would be any more forthcoming after the divorce. His testimony lacked
credibility, and coupled with the lack of relevant records, his claimed lack of memory, and
his unwillingness to share financial information with his spouse, the trial court necessarily
found that a cash award was necessary to protect Dolly Katz's share of the marital estate.
       {¶ 22} We find that there was competent, credible evidence to support the trial
court's decision regarding the character of the property and the decision to make a cash
award to Dolly Katz. The trial court took into consideration Larry Katz's pattern of
behavior and balanced the equities to obtain a just and equitable result.
       {¶ 23} We overrule the first assignment of error.
                             Classification of assets as marital
       {¶ 24} In the second assignment of error, Larry Katz claims that the trial court
erred by classifying Trust assets as marital assets. He contends that Dolly Katz had the
burden of proof to show that the properties which ostensibly belonged to a third party
were marital.   However, there was no competent credible evidence that Larry Katz
purchased the assets with non-marital funds. There was, however, evidence that Larry
Katz purchased the properties during the marriage and entered "Larry Katz Trustee" on
the deeds. Entering the word "trustee" on the deeds does not transform the character of
Nos. 13AP-409 and 13AP-417                                                              8


the property. Title does not determine whether property is marital, and a trial court is not
bound by the form of the title in distributing property. DiNunzio v. DiNunzio, 11th Dist.
No. 2005-L-124, 2006-Ohio-3888, ¶ 62.
       {¶ 25} Because Larry Katz, either in his role as trustee or individually, exercised
complete control over the financial affairs of the marriage, the Trust, and his separate
property, he was the only person who could demonstrate that the assets were not
purchased with marital funds. He either was unable or unwilling to do so. The trial court
had to make a decision based on the information, or lack thereof, before it. The trial
court's findings were neither an abuse of discretion nor against the manifest weight of the
evidence. The second assignment of error is overruled.
                                      Single-asset LLCs
       {¶ 26} The third assignment of error concerns single-asset LLCs that were
transferred to KFT, which ostensibly stood for the Katz Family Trust. Larry claimed that
he formed the LLCs and KFT to simplify the number of tax returns he needed to file. The
trial court ruled that the assets were marital property with the exception of 13 properties
that were found to be Larry Katz's separate property. The evidence showed that the
remaining properties other than the 13, were purchased during the marriage, and that
Dolly Katz never assigned her interest to a trust. In contrast, Larry Katz continued to use
and control the income from the properties. There was no evidence that the LLCs were
properly formed, and Larry Katz provided no evidence to show that they were. Larry Katz
testified that he had lawyers and accountants to prepare forms, and that if they were
supposed to have done so, he assumed they had. Larry Katz argues now that the court
could have taken judicial notice of the secretary of state's website to confirm the evidence
of the LLCs. The trial court did not have to accept Larry Katz's speculation about the
assets. Instead, the greater weight of the evidence showed that Larry Katz treated all the
funds as his own. The third assignment of error is overruled.
                     Appreciation in Columbus Recycling Company
       {¶ 27} In the fourth assignment of error, Larry Katz claims the trial court erred in
ordering him to pay Dolly Katz $140,000, representing half of the appreciation in the
value of Columbus Recycling Company. This was not an award of half of the value of the
business, nor did Larry Katz claim that it was passive growth.     The trial court awarded
Nos. 13AP-409 and 13AP-417                                                                   9


one-half of the growth in value of the company due to Larry Katz's management. See R.C.
3105.171(A)(3)(a)(iii) (" 'Marital property' means * * *: all income and appreciation on
separate property, due to the labor, monetary, or in-kind contribution of either or both of
the spouses that occurred during the marriage."). The prenuptial agreement did not
indicate that Dolly Katz was giving up the value the business increased during the
marriage. The fourth assignment of error is overruled.
                                            Tax refunds
       {¶ 28} In the fifth assignment of error, Larry Katz contends the trial court erred in
ordering him to pay Dolly Katz cash equal to half of the $280,000 capital gain from the
sale of Columbus Recycling Company plus half of the 2009 and 2010 federal income tax
refunds. The $280,000 from the sale of Columbus Recycling Company was marital as
discussed above. The 2009 and 2010 tax refunds were in the possession of Larry Katz
who did not explain what he had done with the funds. Therefore, there was no abuse of
discretion in the decision of the trial court to divide proceeds equally.             The fifth
assignment of error is overruled.
                                Allocation of marital liabilities
       {¶ 29} In his sixth assignment of error, Larry Katz asserts that the trial court erred
in allocating to him 100 percent of five marital liabilities. These liabilities were as follows:
              Huntington National Bank Commercial Line of Credit
              $99,999.20 (minus husband's separate liability of $27,027
              =($72,972);

              Huntington National Bank Personal Line of Credit ($99,793);

              Chase credit card ($4,243);

              GE credit card ($674.45);

              Unpaid medical bills for Dolly Katz ($10,377).

       {¶ 30} Larry Katz argues that the divorce decree allocates all of these liabilities to
him without any explanation as to why a 50-50 division would be inequitable. These
debts were accounted for in the balance sheet prepared by the court, and Larry Katz's cash
obligation to Dolly Katz was reduced accordingly. Moreover, Larry Katz ran the balance
Nos. 13AP-409 and 13AP-417                                                            10


up on the line of credit while the parties were separated. The sixth assignment of error is
overruled.
       {¶ 31} In the seventh assignment of error, Larry Katz takes issue with the trial
court's allocation of tax liabilities and tax refunds for 2009 and 2010. As discussed in
connection with assignment of error No. 5, Larry Katz controlled the funds and could not
account for what he did with them. Tax refunds are marital property. Logan v. Logan
10th Dist. No. 03AP-225, 2003-Ohio-6559, ¶ 23. Furthermore, Dolly Katz did not receive
a distribution of $367,000 of K-1 income in 2010, funds Larry Katz claimed he
distributed. The seventh assignment of error is overruled.
                                       Spousal Support
       {¶ 32} Assignments of error No. 8, 9, and 10 concern spousal support. The trial
court awarded spousal support in the amount of $5,300 per month for an indefinite
duration. The trial court retained jurisdiction to modify the amount of spousal support.
The trial court ordered that Larry Katz's completion or failure to complete the property
equalization may be considered a change in circumstances to modify spousal support.
This court reviews spousal support orders under an abuse of discretion standard, and the
trial court is afforded wide latitude in deciding spousal support issues. Wilkinson v.
Wilkinson, 10th Dist. No. 13AP-73, 2013-Ohio-3627, ¶ 4.
       {¶ 33} Larry Katz asserts the trial court erred in calculating support based on the
income produced by assets the decree orders Larry Katz to sell.           As discussed in
connection with assignment of error No. 1, nothing in the decree requires him to liquidate
property. Larry Katz also disagrees with the trial court's finding that imputes zero income
to Dolly Katz.
       {¶ 34} There was ample evidence from which the trial court determined Dolly
Katz's earning potential. At the time of trial, Dolly Katz had not been employed outside
the home for 26 years. She was 63 years old, and had only a high school education. She
had a number of health problems. Even Larry Katz's expert had to acknowledge that her
earning potential would be significantly reduced due to these factors. We find no abuse of
discretion in the trial court's determination. The eighth, ninth, and tenth assignments of
error are overruled.
                                         Attorney fees
Nos. 13AP-409 and 13AP-417                                                               11


{¶ 35} Assignment of error eleven concerns the trial court's order for Larry Katz to pay a
part of Dolly Katz's attorney fees in the amount of $30,000. "In an action for divorce * * *
a court may award all or part of reasonable attorney's fees and litigation expenses to either
party if the court finds the award equitable." R.C. 3105.73(A). In Wilkinson at ¶ 14, this
court stated as follows:
                " 'In determining whether an award is equitable, the court
                may consider the parties' marital assets and income, any
                award of temporary spousal support, the conduct of the
                parties, and any other relevant factors the court deems
                appropriate.' " R.C. 3105.73(A). "An award of attorney fees is
                generally within the sound discretion of the trial court and not
                to be overturned absent an abuse of discretion."
                Wagenbrenner v. Wagenbrenner, 10th Dist. No. 10AP–933,
                2011–Ohio–2811, ¶ 19, citing Shirvani v. Momeni, 10th Dist.
                No. 09AP–791, 2010-Ohio-2975, ¶ 22.

          {¶ 36} Larry Katz paid all of his attorney fees using marital funds. Larry Katz's
own actions were the cause of a significant increase in the amount of time Dolly Katz's
attorney had to bill. The trial court was dealing with a complicated financial situation
exacerbated by Larry Katz's convoluted pattern of transferring money between bank
accounts that only he had access to. The trial court was well within its discretion in its
resolution of attorney fees. The eleventh assignment of error is overruled.
                                           Cross Appeal
          {¶ 37} Turning to the cross appeal, Dolly Katz disagrees with the trial court
awarding five rental properties as non-marital assets because she asserts that Larry Katz
only traced a small portion of the assets to a non-marital source. She asserts that there is
insufficient evidence to support the finding that these five properties are not marital
assets.
          {¶ 38} Larry Katz concedes that one of the properties, 7536 Tillman should have
been classified as marital property.
          {¶ 39} There was sufficient evidence to show that the other four properties were
not marital. When Larry Katz sold Columbus Recycling Company for $1.03 million, he
created Assured Holdings LLC to hold the money from the sale of the company. Larry
Katz, Stephen Katz, and Joshua Katz were the members of the LLC. Larry Katz testified
Nos. 13AP-409 and 13AP-417                                                                 12


that Assured Holdings purchased the assets, and there was documentary evidence in the
form of sheriff's office receipts and bank receipts.
          {¶ 40} The first cross-assignment of error is sustained in part and overruled in
part.
          {¶ 41} In the second cross-assignment of error, Dolly Katz asserts that the trial
court erred in failing to make a distributive award because of Larry Katz's efforts to
manipulate assets, conceal income, withhold information and otherwise prevent Dolly
Katz from receiving her share of the marital assets.
          {¶ 42} Counsel for Dolly Katz acknowledges that the trial court did not "for the
most part" allow Larry Katz to avoid an equitable division of property by his misconduct.
Cross-appellant Dolly Katz brief, at 28. Should the share of the property allocated to
Dolly Katz not be disturbed on appeal, she requests that she should only be compensated
for the difficulty and expense of ascertaining the assets and debts due to Larry Katz's
misconduct.
          {¶ 43} A distributive award is authorized by R.C. 3105.17(E). R.C. 3105.171(E)(4)
states:
                 If a spouse has engaged in financial misconduct, including,
                 but not limited to, the dissipation, destruction, concealment,
                 nondisclosure, or fraudulent disposition of assets, the court
                 may compensate the offended spouse with a distributive
                 award or with a greater award of marital property.

          {¶ 44} In the usual case, the offending spouse will either profit from the
misconduct or intentionally defeat the other spouse's distribution of marital assets. Taub
at ¶ 33, citing Mantle v. Sterry, 10th Dist. No. 02AP-286, 2003-Ohio-6058, ¶ 32.
          {¶ 45} Here, the trial court did not abuse its discretion in not making a distributive
award. The property division was equitable, and we are not disturbing that award on
appeal. Even though Larry Katz caused additional difficulty and expense in ascertaining
assets and debts, he was ordered to pay Dolly Katz's attorney fees. The second cross-
assignment of error is overruled.
          {¶ 46} Based on the foregoing, Larry Katz's eleven assignments of error are
overruled, Dolly Katz's first cross-assignment of error is sustained in part and overruled in
part, her second cross-assignment of error is overruled, and Larry Katz as Trustee's sole
Nos. 13AP-409 and 13AP-417                                                           13


assignment of error is overruled. The trial court's decision and judgment entry/decree of
divorce is affirmed in part and reversed in part. The case is remanded for further
proceedings to modify the property division as a result of 7536 Tillman being marital
property. The trial court shall make such other changes in property division and spousal
support as are consistent with that modification.
                                                         Judgment affirmed in part and
                                                        reversed in part; case remanded
                                                                       with instructions.

                        SADLER, P.J., and CONNOR, J., concur.
