In Equitable Distribution, Even Bengals Tickets Have Value

[Pages:3]Pennsylvania Law Weekly

In Equitable Distribution, Even Bengals Tickets Have Value Pennsylvania Law Weekly Monday, June 01, 2009 Copyright 2009, ALM Properties, Inc.

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FAMILY LAW

In Equitable Distribution, Even Bengals Tickets Have Value

Ohio court teaches what to consider when sports tickets are part of marital estate By Robert D. Feder Special to the Law Weekly rfeder@

A subscription for sports season tickets acquired during marriage is a marital asset subject to equitable distribution, just like a house, stocks and bonds, and bank accounts.

Recently, the Court of Appeals of the 12th Appellate District of Ohio, Butler County, addressed the division of six season tickets to Cincinnati Bengals football games.

In his opinion in Brickner v. Brickner, 2009-Ohio-1164 (Ohio App. March 16, 2009), President Judge William W. Young thoroughly analyzed the issue. The husband in the case, Bernard Brickner, appealed the decision of the Butler County Court of Common Pleas, Domestic Relations Division, over the division of property.

In Ohio, the trial judge is given "wide latitude in dividing property between the parties," according to Koegel v. Koegel, 69 Ohio St.2d 355 (1982). The Ohio Court of Appeals reviews trial court decisions concerning marital property division based on an abuse of discretion standard.

The six Bengals season tickets were acquired in 1996 during the marriage, the Brickner court said. The seats were licensed in Bernard Brickner's name. He testified that he went to all of the games, but the attendance of his wife, Rachelle "Shelly" Brickner, was sporadic, as she was not so interested in football.

With his own assets, Bernard Brickner acquired a parking pass for a space situated near a gate that allowed easy access to the seats, including wheelchair access, the court said. (This was a factor because he claimed to have a disability. But the trial court, ruling on another issue in the case, found that he did not.) Bernard Brickner testified he wanted the tickets because it is one of the only activities that he can do and because his ability to get to the seats is made easier by the parking space.

According to the opinion, Shelly Brickner admitted that she went to only some of the games and that her husband attended most of the games. She wanted the tickets to take mentally retarded or disabled people to the games and so her two sons could use the tickets. She testified that the sons "loved to go" to the games.

Shelly Brickner and the couple's sons live in Butler County -- which is next to Hamilton County, where the Bengals' football stadium is located. Bernard Brickner, the opinon said, does not live in Butler County. This turned out to be a very important factor in the court's decision.

Bernard Brickner's home was in Tiffin, Ohio, and the trial court pointed out that he has difficulty doing physical things, including driving the distance required to get to the stadium in Cincinnati. For that reason, the trial court was uncertain why he wanted to keep the tickets.

Losing Their License?

Shelly Brickner made the argument that if her husband was unable to work, then he would not be able to afford to pay for the tickets. If that happened, the family would lose the seat license and no one would be able to use the tickets. The trial court awarded the tickets to Shelly Brickner and half their $18,000 value to Bernard Brickner.

On appeal, Young held that the fact that the tickets were used more by the husband during the marriage than by the wife did not mean that the trial court had abused its discretion in awarding them to her.

Although Young was sympathetic to Bernard Brickner's argument that attending football games was one of the few activities he could still engage in because of his disability, he said that was not grounds for reversal.



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Young pointed out that Bernard Brickner received half the value of the tickets and a variety of other personal property items in the property division. He could still attend Bengals football games because he "had sufficient resources in order to purchase tickets to a game." That was another important factor in the panel's decision.

Young also relied on a 1985 Ohio decision, Heer v. Heer, Franklin App. No. 84AP-1144 (1985). In that case, Young wrote, the Ohio appellate court reversed the trial court's decision ordering a husband to provide to his wife, upon her request, two tickets for a minimum of three games per season to the Ohio State University home football games. It was a key factor in that case also that the wife had substantial assets which she could use to purchase her own tickets.

Keep Divorced Spouses Separate

A third important factor that courts consider is the need to keep the divorced spouses separate and apart and not sit them next to each other at sporting events. If the parties could not get along during their marriage, courts do not want them sitting next to each other at ball games after they are divorced.

In Papadeas-Minnigh v. Minnigh, C.P. Blair, No. 2062 GN 2359 (2006), Judge Timothy N. Sullivan of the Court of Common Pleas of Blair County, upheld the equitable distribution Master's recommendation that two Pittsburgh Steelers football tickets be awarded to the husband, Steven W. Minnigh. The wife, Cheryl P. Papadeas-Minnigh, claimed that she was the one who was the bigger fan and should be awarded the tickets or each party should receive one ticket. Sullivan held that it was a reasonable decision to keep the tickets together "as they are easier to use as a pair than separately." The fact that Steven Minnigh purchased the tickets did not appear to be a key factor. Sullivan was not willing to divide the tickets so that each spouse would receive one. However, his decision was based on the fact that "the Master considered the Steeler tickets in her overall distribution of the marital assets. We find no abuse of discretion in the Master's award of both tickets to husband." Sullivan's decision was affirmed by the Superior Court without a published opinion, 935 A.2d 33 (Pa. Super. 2007).

In Dobbs v. Dobbs, N.Y. Law Journal, Vol. 219, No. 25 (Feb. 6, 1998), a Manhattan court addressed this issue. In Dobbs, a husband acquired a subscription for four season tickets for New York Knicks basketball games and New York Rangers hockey games during the parties' marriage.

The parties executed a post-nuptial agreement and there was a dispute about the division of the tickets under the agreement. The court held that although the tickets were not specifically referred to in the agreement, the division of the tickets was controlled by its terms. The parties' agreement provided for an equal division of all of the marital assets. A business, Gloran Associates, used its funds to pay for the tickets during the marriage. Therefore, the court held that the tickets should be treated in the same way as the parties treated the business and should be divided equally. However, "[G]iven the contentious, never-ending nature of these proceedings, it would be better for all concerned if the parties were not required to sit side-by-side at these games. Having gone their separate ways after 43 years, this court will not compel them to team up once again at courtside. Wife is entitled to tickets for all future even numbered games for the remainder of the basketball and hockey season. Commencing next season and thereafter, the husband shall be entitled to tickets for all even numbered New York Knickerbocker basketball tickets and all odd numbered New York Rangers hockey tickets. The wife shall be entitled to all odd numbered New York Knickerbocker basketball tickets and all even numbered New York Rangers hockey tickets. All playoff tickets shall be similarly divided."

The Dobbs court ruled that it did not matter who had originally purchased the tickets or in whose name the tickets were listed. The tickets were marital property under New York law.

The South Carolina Court of Appeals in McClerin v. McClerin, 425 S.E.2d 476 (1992) ruled the same way. The dispute concerned four Charlotte Hornets season basketball tickets. The trial judge awarded each party alternating use of the tickets and the husband appealed. He contended the trial judge erred in alternating the use of the tickets instead of awarding both parties two tickets for each game. The South Carolina Court of Appeals disagreed. "The trial judge found, and the record supports, it is 'quite obvious' the parties should not be seated next to each other at the games. The court may use any reasonable means to divide the marital assets ... We therefore find no error in this award."

Lessons to be Learned

There are many lessons to be learned from these court decisions concerning the division of season tickets to sports events in equitable distribution. Counsel should present evidence concerning the key factors that support their position that their client should receive the tickets and not the other spouse. These factors include:

? The ability of the parties to use the tickets based on where they live and their accessibility to the stadium.

? The ability of each party to purchase tickets for himself or herself.

? The availability of additional tickets to be purchased by the spouse not awarded the tickets acquired during the marriage.

? A reasonable proposal about how the tickets should be divided.

The parties should not be sitting next to each other at the games. The tickets could be alternated so that one spouse goes to odd-



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numbered games and the other spouse goes to even-numbered games. There can be problems with that system. Sometimes, playoff series go to five or seven games. The number of home playoff games may not be an even number. With respect to NFL football, there are very few playoff games. Sometimes, there is only one playoff game at home. One solution is to let the parties' children attend the game instead of either parent, so long as the children are old enough to go on their own.

? If counsel is drafting a property settlement agreement with a provision dividing season tickets, specify who initially pays for the tickets; a deadline for reimbursement of one-half of the cost by the other spouse; and address the parking and other fees associated with the season subscription. Address the contingency if a spouse can no-longer afford the tickets or if one of the spouses dies.

Although the cost of season tickets may be $18,000 in the case of the Cincinnati Bengals season tickets, the intrinsic value of the tickets to a devoted fan is far greater than the purchase price. Season tickets can be a special kind of asset in a divorce case with particular importance to your client. The Brickner decision gives much more guidance on the relevant factors and issues to consider in dividing season tickets in a divorce case. ?

Robert D. Feder focuses his family law practice on the financial aspects of divorce. As the editor and co-author of three national textbooks on the topic, he is particularly knowledgeable about the valuation of closely held businesses; professional practices; pensions; real estate; and complex, unusual assets such as stock options and goodwill.



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