In re C. Jane Gonzalez
2000.OH.0047936 (Ohio App. Dist.11 12/29/2000)
COURT OF APPEALS ELEVENTH DISTRICT LAKE COUNTY, OHIO
CASE NO. 99-L-038
December 29, 2000
IN THE MATTER OF: C. JANE GONZALEZ,
Civil Appeal from the Court of Common Pleas Domestic Relations Division Case No. 90 DR 001136
Atty. Lawrence W. Corman 55 Public Square, #2240 Cleveland, OH 44113 (For Petitioner-Appellant)
Atty. Joseph R. Ulrich 1959 Mentor Avenue, #2 Painesville, OH 44077 (For Petitioner-Appellee)
Judges Hon. Donald R. Ford, P.J., Hon. Judith A. Christley, J., Hon. Robert A. Nader, J.
The opinion of the court was delivered by: Judge Robert A. Nader
JUDGMENT: Affirmed in part; reversed and remanded in part.
Appellant, C. Jane Gonzales, appeals from the judgment of the Lake County Court of Common Pleas,
Domestic Relations Division.
On November 29, 1990, appellant and appellee, John Gonzales, filed a petition for dissolution of
marriage requesting the court to approve the separation agreement attached to their petition. The
parties' separation agreement, which was incorporated into the dissolution decree granted by the
trial court on February 8, 1991, included the following provisions for spousal support:
"A. Husband agrees to pay to the Wife sustenance alimony *** in the amount of $100,000.00 per
year, guaranteed ($500,000.00) for a period of 5 years effective September 1, 1990. Said alimony
shall be paid in equal monthly installments of $4,531.80, and Husband shall pay the remainder of
the alimony at such time as he receives his yearly Lincoln Electric bonus.
"Husband further agrees that he shall continue to pay alimony in the sum of $100,000 per year for
as long a period after 5 years as he continues to work in the same or similar capacity with
approximately the same income or more than he is presently earning. Any retirement benefits
received by the Wife under her Qualified Domestic Relations Order from Husband's Retirement Plan
during the first five years shall be counted towards Husband's $100,000.00 alimony obligation.
"B. If the Husband is retired at any time after September 1, 1995 through August 31, 2000, he
agrees to pay to the wife as and for alimony the sum of one-half of his gross income and deferred
income, and retirement income, from all sources, not to exceed $100,000.00 per year. It is agreed
that any obligation of Husband payable to Wife shall include any Q.D.R.O. payments made to the
Wife. This paragraph, section IV(B) is intended to apply only to the period of years 6 through 10
from the date of execution.
"Husband's obligation to pay Wife one-half of his income from all sources under this Section (B)
shall include the gross benefits received under the Lincoln Electric Company Retirement Annuity
Program. However, Husband's obligation to pay Wife 50% yearly of the gross Lincoln Electric
Retirement Annuity shall be reduced by any amount received by Wife under any Q.D.R.O. yearly."
In the dissolution decree, the trial court did not reserve jurisdiction to modify spousal support.
On August 28, 1995, appellee filed a motion to modify spousal support, arguing that he was unable
to pay spousal support as outlined in the parties' separation agreement due to a change in
circumstances. On December 29, 1995, appellee filed a motion for relief from judgment, or in the
alternative, a motion to clarify the February 8, 1991 dissolution decree. In his motion, appellee
argued that because he was forced to retire from Lincoln Electric on November 15, 1994 and
suffered a heart attack in the spring of 1995, it was now impossible and inequitable for him to
continue to pay spousal support to appellant. On March 1, 1996, appellee filed a motion to dismiss
his motion for relief from judgment and asked the trial court to consolidate his motion to modify
spousal support with his motion to clarify the dissolution decree.
On May 20, 21, 22, and 23, 1996, the trial court held hearings on various motions pending before
it, including appellee's motion to modify spousal support and motion to clarify the dissolution
decree. At the hearings, appellee argued that he did not know what was included within the
definition of "gross income" as set forth in Section IV(B) of the parties' separation agreement.
On May 24, 1996, the trial court denied appellee's motion to modify spousal support; however, on
August 20, 1996, the trial court granted his motion to clarify the dissolution decree with respect
to its provisions for spousal support. In its judgment, the trial court made the following
conclusions of law with regard to appellee's spousal support obligation:
"H. The Court concludes neither party considered including any social security benefits the
husband received subsequent to the dissolution of marriage to be included as income for spousal
support purposes and that was the intent of the parties at the time they signed the separation
"I. The Court concludes the parties intended under section B of the separation agreement using the
ordinary meaning of the words contained in their separation agreement to include for spousal
support purposes all gross income declared by the husband on his tax returns from any and all
sources. *** To resolve the confusion and ambiguity outstanding in at least one of the litigants'
minds, the Court concludes it was the parties' intention to use as a definition of income for
spousal support purposes the IRS code. Thus, whatever income must be declared on husband's tax
returns for IRS purposes will be considered for spousal support purposes in the case at bar, and
further any exclusions which IRS allows the husband to deduct on his income tax returns from
income for tax purposes shall equally apply."
Based upon the above conclusions of law, the trial court made the following order:
"For alimony, (now known as spousal support), purposes the husband's gross income from all sources
shall include all income he declares on his tax returns for IRS purposes, and shall exclude those
sums which IRS allows him to exclude from his tax returns for tax purposes, provided however,
Social Security benefits received by the husband subsequent to the dissolution will not be
included for income purposes in determining husband's obligation to the wife for spousal support
since this benefit was not contemplated by the parties as an income source when they signed their
Approximately two weeks after receiving the August 20, 1996 judgment from the trial court,
appellee transferred assets held in certificates of deposit to his current wife, Charlotte
Gonzales. The sum total of the certificates of deposit was approximately $300,000 and came from a
settlement that appellee had entered into with Lincoln Electric after his forced retirement.
On March 26, 1997, appellant filed a motion to add Charlotte Gonzales as a new party defendant
pursuant to Civ.R. 75(B)(1). On March 27, 1997, appellant filed a motion to show cause why
appellee should not be held in contempt of the court's orders of February 8, 1991 and August 20,
1996 for failing to pay the correct amount of spousal support and fraudulently transferring assets
to avoid paying spousal support; a motion to modify and/or clarify the judgment of August 20, 1996
to define "gross income" as it is defined in R.C. 3112.215(a); and a motion for attorney's fees.
On September 15, 1997, appellant filed a motion to find that appellee had fraudulently transferred
assets to avoid his spousal support obligation. On March 9, 1998, appellant filed a motion to
vacate the trial court's judgment filed on August 20, 1996, arguing that it was void ab initio
because the trial court had no subject matter jurisdiction to modify the parties' separation
The trial court denied appellant's motion to add a new party defendant on December 31, 1997. On
December 14, 15, and 16, 1998, the trial court held hearings on all of the motions pending before
it. The trial court entered the following order with respect to the motions filed by appellant:
"A. Wife's Motion to Show Cause filed 3/26/97, is well taken. Husband is in contempt of the
court's prior orders to pay spousal support for the fiscal year 9/1/95 - 8/31/96, pursuant to the
court's orders. ***
"C. Wife's Motions to Clarify and Modify filed 3/26/98, her Motions filed 9/15/97, for Restraining
Order and Transfer, and her Motions filed 3/9/98 to Vacate, are overruled."
From this judgment, appellant assigns the following errors:
"[1.] The trial court erred in modifying the non-modifiable terms and intent of the parties'
spousal support agreement by characterizing its order as a `clarification.'
"[2.] The trial court erred in denying appellant's motion to vacate its August 20, 1996 journal
entry as the court lacked subject matter jurisdiction.
"[3.] The trial court erred by failing to find appellee in contempt of the court's order by
fraudulently transferring assets to his current wife to avoid paying his spousal support debt.
"[4.] The trial court abused its discretion in denying appellant's motion to add new party
defendant under Civil Rule 75(B)(1).
"[5.] The trial court erred in denying appellant full attorney fees and granting appellee attorney
Appellant's first and second assignments of error will be addressed together because they are
interrelated. In her first two assignments of error, appellant alleges that the trial court
modified appellee's spousal support obligation in the August 20, 1996 judgment entry and that
judgment is void because the court had no jurisdiction to modify spousal support. Appellant
contends that the trial court improperly modified the provisions of appellee's spousal support
obligation by "clarifying" the unambiguous term "gross income."
R.C. 3105.18 governs a trial court's jurisdiction over spousal support and provides in part:
"(E) *** The Court that enters the decree of divorce or dissolution of marriage does not have
jurisdiction to modify the amount or terms of the alimony or spousal support unless the Court
determines that the circumstances of either party have changed and unless one of the following
"(2) In the case of a dissolution of marriage, the separation agreement that is approved by the
court and incorporated into the decree contains a provision specifically authorizing the court to
modify the amount or terms of alimony or spousal support."
The trial court had no jurisdiction to modify the terms of the parties' separation agreement
because the decree of dissolution does not contain a provision specifically authorizing the trial
court to modify the terms of appellee's spousal support obligation. While a trial court may not
modify the terms of the spousal support arrangement unless it reserves jurisdiction in the
dissolution decree, a trial court may interpret an ambiguous clause by considering the intent of
the parties and the equities involved. In re Dissolution of Marriage of Seders (1987), 42 Ohio
App.3d 155, 156, 536 N.E.2d 1190. A separation agreement is a contract and is subject to the same
rules of construction governing the interpretation of other contracts. Uram v. Uram (1989), 65
Ohio App.3d 96, 99, 582 N.E.2d 1060. "***[I]t has been held that when a term in an agreement is
unambiguous, then the words must be given their plain, ordinary and common meaning; however, when
the term is not clear, parole evidence is admissible to explain the meaning of the words."
Forstner v. Forstner (1990), 68 Ohio App.3d 367, 372, 588 N.E.2d 285.
In the instant case, the trial court considered the intent of the parties at the time they entered
into the separation agreement to interpret the term "gross income." In its judgment, the trial
court states that it looked to the intent of the parties in order to clarify the confusion in "at
least one of the litigants' minds"; however, the trial court did not specifically determine that
the term "gross income" was ambiguous before it considered the parties' intent. The clause in the
parties' separation agreement at issue provides: "*** [Husband] agrees to pay to the wife as and
for alimony the sum of one-half of his gross income and deferred income, and retirement income,
from all sources, not to exceed $100,000.00 per year." Giving the words in this provision their
plain, ordinary, and common meaning, we cannot conclude that this clause is ambiguous. This clause
unambiguously states that appellee will pay as spousal support one-half of his gross income from
all sources; it does not limit "gross income" to income reported on appellee's tax return or
exclude income derived from appellee's social security benefits. The trial court improperly
modified the term "gross income" from its initial definition of income "from all sources" to
income "[appellee] declares on his tax returns for IRS purposes," except for his social security
Because the trial court had no jurisdiction to modify the terms of appellee's spousal support
obligation, the portion of the August 20, 1996 judgment that constitutes a modification is void
and must be considered a nullity. See Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941,
at paragraph three of the syllabus. Appellant's first and second assignments of error have merit.
In her third assignment of error, appellant alleges that the trial court erred by refusing to hold
appellee in contempt for fraudulently transferring assets to his current wife. Appellant contends
that appellee's transfer of assets to Charlotte Gonzales constitutes a fraudulent transfer under
Chapter 1336 of the Revised Code. Appellant asserts that appellee, by transferring the
certificates of deposit to Charlotte, purposely defeated her claim to half of the interest income
that the transferred assets were earning.
As an initial matter, we cannot conclude that appellee, who has an obligation to pay spousal
support to appellant, can be classified as a debtor within the scope of R.C. Chapter 1336. R.C.
1336.04(A) defines fraudulent transfer as:
"A transfer made or an obligation incurred by a debtor is fraudulent as to a creditor, whether the
claim of the creditor arose before or after the transfer was made or the obligation was incurred,
if the debtor made the transfer or incurred the obligation in either of the following ways:
"(1) With actual intent to hinder, delay, or defraud any creditor of the debtor; ***"
In Cramer v. Petrie (1994), 70 Ohio St.3d 131, 637 N.E.2d 882, the Supreme Court of Ohio noted
that "the obligation to pay alimony `arises from a duty which the husband owes as well to the
public as to the wife,' and, as such, `it is not a debt in the sense of a pecuniary obligation
***.'" Id. at 136, quoting State ex rel. Cook v. Cook (1902), 66 Ohio St. 566, 64 N.E.2d 567. In
Cramer, the Court held that because an obligation to pay child support is not a "debt" within the
meaning of Section 15, Article 1 of the Ohio Constitution, which prohibits imprisonment for debt,
an order to pay child support may be enforced by means of imprisonment through contempt
proceedings. Id. at syllabus. An obligation to pay spousal support is different from a debt
arising from a business transaction; therefore, in the absence of case law supporting appellant's
contention that appellee is a debtor under R.C. Chapter 1336, we will not apply Ohio's fraudulent
transfer statute to this case.
Although we do not believe Ohio's fraudulent transfer statute applies to this case, we will
determine whether the trial court erred by refusing to hold appellee in contempt for transferring
the certificates of deposit at issue to his current wife. A reviewing court cannot reverse a lower
court's determination in a contempt proceeding in the absence of a showing of an abuse of
discretion. State ex rel Celebrezze v. Gibbs (1991), 60 Ohio St.3d 69, 573 N.E.2d 62; Burke v.
Burke (May 14, 1999), Geauga App. No. 98-G-2163, unreported. We will not reverse the judgment
unless we determine that the trial court abused its discretion by refusing to hold appellee in
contempt. An abuse of discretion is more than a mere error of law; "it implies that the court's
attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140.
Under of the terms of Section IV of the parties' separation agreement, appellee agreed to pay
spousal support to appellant in the amount of $100,000 per year for five years after the
dissolution of marriage and one-half of his gross income from all sources for the second five
years. Appellant claims that she is entitled to half of the interest income generated by the
certificates of deposit during the second five-year period, which commenced September 1, 1995, and
that appellee may not transfer the assets out of his name to avoid paying her half of the interest
income. We disagree.
Pursuant to the terms of the separation agreement, appellant had an entitlement to half of the
interest earned on the certificates of deposit while they were in appellee's name; however, no
provision of the separation agreement precluded appellee from transferring his interest-bearing
assets to his current wife to avoid appellant's claim to the interest income. On July 1, 1995,
appellee received the $300,000 that he placed into certificates of deposit from his settlement
with Lincoln Electric, which was before the commencement of the second five-year period of
appellee's spousal support obligation set forth in the separation agreement. Because appellee
received the $300,000 during the first five-year period of the spousal support obligation and he
satisfied his support obligation for the year prior to September 1, 1995, he was free to spend
that income in whatever way he pleased and appellant had no claim to it.
We cannot conclude that the trial court abused its discretion by refusing to hold appellee in
contempt for transferring assets to which appellant had no entitlement, even though that transfer
had the effect of decreasing the amount of spousal support that appellant was able to collect.
Appellant's third assignment of error has no merit.
In her fourth assignment of error, appellant alleges that the trial court abused its discretion by
denying her motion to add a new party defendant pursuant to Civ.R. 75(B)(1). Appellant contends
that Charlotte Gonzales should be joined as a party defendant because she has possession of assets
from which appellant seeks an award of spousal support.
Civ.R. 75(B)(1) provides:
"Civ.R. 14, 19, 19.1, and 24 shall not apply in divorce, annulment, or legal separation actions.
"(1) A person or corporation having possession of, control of, or claiming an interest in
property, whether real, personal, or mixed, out of which another seeks an award of spousal support
or other support, may be made a party defendant."
Having determined that appellant has no entitlement to the assets transferred to Charlotte or the
interest income generated from those assets, we cannot conclude that the trial court erred by
refusing to join Charlotte as a new party defendant. Appellant's fourth assignment of error has no
In her fifth assignment of error, appellant alleges that the trial court erred by denying
appellant full attorney's fees and granting appellee attorney's fees. Appellant contends that she
is entitled to attorney's fees associated with appellee's failure to pay spousal support and for
the following motions: (1) to add a new party defendant; (2) to show cause; (3) to find that
appellee's fraudulently transferred assets; and to vacate the August 20, 1996 judgment. Appellant
also contends that the trial court abused its discretion by awarding appellee attorney's fees of
R.C. 3105.18(G) and (H) apply to the award of attorney's fees in domestic relations cases and
provide in part:
"(G) *** [If] any person required to pay spousal support under an order made or modified by a
court on or after January 1, 1991, is found in contempt of court for failure to make alimony or
spousal support payments under the order, the court that makes the finding, in addition to any
other penalty or remedy imposed, shall assess all court costs arising out of the contempt
proceeding against the person and shall require the person to pay any reasonable attorney's fees
of any adverse party, as determined by the court, that arose in relation to the act of contempt.
"(H) In divorce or legal separation proceedings, the court may award reasonable attorney's fees to
either party at any stage of the proceedings, including, but not limited to, any appeal, any
proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce
a prior order or decree, if it determines that the other party has the ability to pay the
attorney's fees that the court awards. When the court determines whether to award reasonable
attorney's fees to any party pursuant to this division, it shall determine whether either party
will be prevented from fully litigating that party's rights and adequately protecting that party's
interests if it does not award reasonable attorney's fees."
Upon reviewing the trial court's award of attorney's fees to appellant, we cannot conclude that
the court abused its discretion by awarding fees in the amount of $3,397.75. Pursuant to R.C.
3105.18(G), the trial court awarded appellant all fees associated with "discovery issues and/or
the show cause for failure to pay spousal support."
We will now address whether the trial court abused its discretion by awarding attorney's fees in
the amount of $6,017.50 to appellee. An award of fees is not an abuse of discretion when the court
determines that the other party has the ability to pay the fees awarded by the court and the party
seeking fees demonstrates the reasonableness of those fees. Shaffer v. Shaffer (1996), 109 Ohio
App.3d 205, 214, 671 N.E.2d 1317. In the instant case, the record demonstrates that the trial
court determined that appellant had the ability to pay the fees awarded by the court and those
fees were reasonable; therefore we cannot conclude that the trial court abused its discretion in
awarding attorney's fees to appellee.
Based upon the trial court's disposition of the motions pending before it, the trial court did not
abuse its discretion in its award of attorney's fees to the parties; however, we remand this case
to the trial court so that it can redetermine its award of attorney's fees to both parties in
accordance with the conclusion reached in this opinion that the trial court erred by denying
appellant's motion to vacate the August 20, 1996 judgment. Appellant's fifth assignment of error
For the foregoing reasons, the judgment of the Lake County Court of Common Pleas, Domestic
Relations Division, is reversed as to appellant's first and second assignment of error; affirmed
as to appellant's third and fourth assignments of error; and reversed and remanded as to
appellant's fifth assignment of error.
FORD, P.J., concurs,
CHRISTLEY, J., dissents with Dissenting Opinion.
I respectfully dissent from the opinion and judgment of the majority for the reason that I
disagree with the majority's conclusion that appellee cannot be classified as a debtor within the
scope of R.C. Chapter 1336, Ohio's Fraudulent Transfer Act ("Act").
The issue presented before this court as to the third assignment of error is whether a spouse's
obligation to pay alimony in the amount provided in a separation agreement, which was incorporated
into and made part of the dissolution decree, constitutes a debt as defined by the Act.
According to the majority, the Act is not applicable because appellee is not a debtor under the
statute as the obligation to pay spousal support pursuant to a separation agreement does not
constitute a debt. The majority cites to Cramer v. Petrie (1994), 70 Ohio St.3d 131, 136 for the
proposition that an obligation to pay spousal or child support is not a debt within the meaning of
Section 15, Article 1 of the Ohio Constitution; thus, an order to pay support may be enforced by
imprisonment through contempt proceedings. *fn1
Furthermore, in Holloway v. Holloway (1935), 130 Ohio St. 214, syllabus, the Supreme Court of Ohio
held that contempt proceedings may be brought against a spouse for failure to pay alimony as
provided in a separation agreement, which is incorporated into a divorce decree, without violating
the prohibition of imprisonment for debt. See, also, Harris v. Harris (1979), 58 Ohio St.2d 303,
This court, however, is not concerned with whether appellee's obligation can be characterized as a
debt within the meaning of Section 15, Article 1 of the Ohio Constitution. Rather, this court is
confronted with the issue of whether appellee's spousal support obligation pursuant to a
separation agreement constitutes a debt under the Act.
As defined in the Act at R.C. 1336.01(E), a "debt" means "liability on a claim." A "claim" is "a
right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured." R.C. 1336.01(C). The Act further defines "creditor" to be "a person who has a
claim[,]" while a "debtor" is "a person who is liable on a claim." R.C. 1336.01(D) and (F).
Under the plain language of R.C. 1336.01(C), appellant has a contractual claim against appellee in
that she alleges a right to payment in the form of spousal support under the separation agreement.
A separation agreement is considered to be a binding contract between the parties. In re Whitman
(1998), 81 Ohio St.3d 239, 241; In re Adams (1989), 45 Ohio St.3d 219, 220. As such, a separation
agreement is subject to the same rules of construction. Lelux v. Chernick (1997), 119 Ohio App.3d
Further, I emphasize that appellant's claim of a right to payment under the separation agreement
is viable regardless of whether "the right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured." R.C. 1336.01(C). Specifically, appellant's claim against appellee is for half of the
interest income generated by the funds within the certificates of deposit during the second five
year period, and that appellee may not transfer the assets out of his name to avoid paying her
half of the interest income.
Since appellant has a claim against appellee within the meaning of the Act, appellant can be
labeled a creditor, to wit: a person who has a claim. Further, appellee can be classified as a
debtor under the Act because he is the person who is allegedly liable on the claim for spousal
support pursuant to the separation agreement.
Even if the Act were applied to the instant matter, the ultimate outcome would have been the same
as that reached by the majority. Under the Act, fraud is imputed to the debtor when the statutory
elements have been met. Accordingly, the creditor does not need to prove the elements of common
The Act imposes liability on the debtor if the creditor proves that the debtor had the actual
intent to hinder, delay or defraud the creditor by transferring assets. R.C. 1336.04(A)(1). The
factors used to determine whether appellee had actual intent to defraud are set forth in R.C.
1336.04(B), and are also referred to as "badges of fraud." *fn3
Some of these "badges" apply to the transaction in question. For instance, the transfer of
$300,000 occurred between appellee and his current wife, Charlotte Gonzalez, within two weeks
after receiving the August 20, 1996 judgment from the trial court, and was transferred without
consideration. Despite the fact that a number of factors under R.C. 1336.04(B) are present, I
agree with the conclusion reached by the majority that appellee did not obtain the $300,000 during
the commencement of the second five year period of his spousal support obligation, and that since
he satisfied his support obligations for the year, he was free to spend the $300,000 as he
pleased. Thus, there was no intent to hinder, delay or defraud appellant as the money was
appellee's to spend as he wished because his spousal support obligations were satisfied for the year.
Nevertheless, I strongly disagree with the conclusion and opinion of the majority when it refused
to recognize appellee as a debtor and apply the Act. Therefore, I dissent from that portion of the
opinion and would hold that appellee is, indeed, a debtor as defined by the Act, and that such Act
is applicable to the instant matter.
JUDGE JUDITH A. CHRISTLEY
*fn1 . Section 15, Article 1 of the Ohio Constitution provides: "No person shall be imprisoned
for debt in any civil action, on mesne or final process, unless in cases of fraud."
*fn2 . Holloway remains good law today and has been reaffirmed by the Supreme Court in Harris
at 308- 310.
*fn3 . R.C. 1336.04(B) enumerates the following factors to be given consideration: "(1)
Whether the transfer or obligation was to an insider; "(2) Whether the debtor retained possession
or control of the property transferred after the transfer; "(3) Whether the transfer or obligation
was disclosed or concealed; "(4) Whether before the transfer was made or the obligation was
incurred, the debtor had been sued or threatened with suit; "(5) Whether the transfer was of
substantially all of the assets of the debtor; "(6) Whether the debtor absconded; "(7) Whether the
debtor removed or concealed assets; "(8) Whether the value of the consideration received by the
debtor was reasonably equivalent to the value of the asset transferred or the amount of the
obligation incurred; "(9) Whether the debtor was insolvent or became insolvent shortly after the
transfer was made or the obligation was incurred; "(10) Whether the transfer occurred shortly
before or shortly after a substantial debt was incurred; "(11) Whether the debtor transferred the
essential assets of the business to a lienholder who transferred the assets to an insider of the