Drummer v. Drummer

[Cite as Drummer v. Drummer, 2012-Ohio-3064.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY

WILLIAM DRUMMER,

PLAINTIFF-APPELLANT/
CROSS-APPELLEE, CASE NO. 12-11-10

v.

SHIRLEY DRUMMER, OPINION

DEFENDANT-APPELLEE/
CROSS-APPELLANT.

Appeal from Putnam County Common Pleas Court
Domestic Relations Division
Trial Court No. 2010 DIV 00146

Judgment Affirmed

Date of Decision: July 2, 2012

APPEARANCES:

Joseph R. Burkard for Appellant/Cross-Appellee

Matthew A. Cunningham for Appellee/Cross-Appellant
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ROGERS, J.

{¶1} Plaintiff-Appellant/Cross-Appellee, William Drummer, appeals the

judgment of the Court of Common Pleas of Putnam County, Domestic Relations

Division, granting his complaint for divorce and Defendant-Appellee/Cross-

Appellant’s, Shirley Drummer, counterclaim for divorce. On appeal, William

contends that the trial court erred in finding that the equity in their residence,

located at 21023 State Route 15, Continental, Ohio, (“marital residence”) is

marital property; that the trial court erred in determining that the 955 John Deere

tractor, including accessories, (“tractor”) is marital property; and, that the trial

court abused its discretion by imputing minimum wage to him for purposes of

calculating child support. In her cross-appeal, Shirley contends that the trial court

erred when it did not find the existence of a common law marriage between her

and William; that the trial court erred by not analyzing R.C. 3105.171(A)(2)(b) for

purposes of property division; and, that the trial court erred in determining that the

marital portion of William’s pension was 144 months and not 214 months. Based

on the following, we affirm the judgment of the trial court.

{¶2} William and Shirley married on July 28, 1994, and have one minor

child born as issue of the marriage. In June 2010, William filed a complaint for

divorce. In September 2010, Shirley filed a counterclaim for divorce.

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{¶3} In May 2011, the matter proceeded to a hearing. During the hearing,

William and Shirley, each represented by counsel, informed the trial court that

they had reached an agreement as to the division of some, but not all, property,

and that Shirley will be the residential parent of their minor child. During the

remainder of the hearing, William and Shirley presented evidence on the following

disputed issues: whether the equity in the marital residence is marital property;

whether the tractor is marital property; the portion of William’s pension that is

marital property; and, the existence of a common law marriage prior to the date of

their marriage.

{¶4} In June 2011, the trial court determined, in relevant part, that the

equity in the residence was marital property, that the tractor was marital property,

that Shirley did not present clear and convincing evidence that a common law

marriage existed, and that child support would “be calculated based upon imputed

minimum wage income to each of the parties in addition to those amounts

previously ordered as pension distributions.” June 21, 2011 Decision, p. 7.

Thereafter, in August 2011, the trial court entered the divorce decree.

{¶5} It is from this judgment William and Shirley appeal, presenting the

following assignments of error for our review.

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William’s Assignments of Error

Assignment of Error No. I

THE TRIAL COURT AWARDING APPELLEE EQUITY IN
THE PRE-MARITAL HOME LOCATED AT 21023 ST. RT. 15,
CONTINENTAL, OHIO IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.

Assignment of Error No. II

THE TRIAL COURT AWARDING APPELLEE EQUITY IN
THE PRE-MARITAL 955 JOHN DEERE TRACTOR AND
ACCESSORIES IS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.

Assignment of Error No. III

THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPUTING MINIMUM WAGE ON THE APPELLANT IN
ADDITION TO USING HIS RETIREMENT INCOME
CALCULATING CHILD SUPPORT.

Shirley’s Assignments of Error1

Assignment of Error No. I

THE TRIAL COURT COMMITTED ERROR BY NOT
RECOGNIZING THE VALIDITY OF A COMMON LAW
MARRIAGE ESTABLISHED BEFORE OCTOBER 1991.

Assignment of Error No. II

1
Upon review, we note that the text in Shirley’s brief does not comply with the spacing requirement set
forth in App.R. 19(A), which requires “double spacing between each line of text except quoted matter
which shall be single spaced.”
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THE TRIAL COURT COMMITTED ERROR BY NOT
ANALYZING R.C. 3105.171(A)(2)(b) FOR PURPOSES OF
PROPERTY DIVISION.
Assignment of Error No. III

THE TRIAL COURT ERRED BY DETERMINING THAT
THE MARITAL PORTION OF HUSBAND’S PENSION WAS
144 MONTHS AND NOT 214 MONTHS.

William’s Assignments of Error Nos. I & II

{¶6} In his first assignment of error, William contends that the trial court

erred in finding that the equity in the marital residence is marital property. In his

second assignment of error, William contends that the trial court erred in finding

that the tractor is marital property. Additionally, William contends that the trial

court erred by not supporting its classification of the marital residence and tractor

with written findings of fact. Based on the following, we disagree.

{¶7} “In determining whether the trial court has appropriately categorized

property as separate or marital, the standard of review is whether the classification

is against the manifest weight of the evidence.” Eggeman v. Eggeman, 3d Dist.

No. 2-04-06, 2004-Ohio-6050, ¶ 14, citing Henderson v. Henderson, 3d Dist. No.

10-01-17, 2002-Ohio-2720, ¶ 28. “Judgments supported by some competent,

credible evidence going to all the essential elements of the case will not be

reversed by a reviewing court as being against the manifest weight of the

evidence.” C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279 (1978),

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syllabus. When reviewing a judgment under a manifest-weight-of-the-evidence

standard, a court has an obligation to presume that the findings of the trier of fact

are correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 79-80 (1984).

Mere disagreement over the credibility of witnesses or evidence is not sufficient

reason to reverse a judgment. State v. Wilson, 113 Ohio St.3d 382, 387, 2007-

Ohio-2202, ¶ 40.

{¶8} “In a divorce proceeding, the trial court must determine whether

property is marital or separate property.” Reed v. Reed, 3d Dist. No. 1-09-63,

2010-Ohio-4550, ¶ 8, citing Gibson v. Gibson, 3d Dist. No. 9-07-06, 2007-Ohio-

6965, ¶ 29.

{¶9} Marital property includes, in relevant part:

(i) All real and personal property that currently is owned by either
or both of the spouses, including, but not limited to, the retirement
benefits of the spouses, and that was acquired by either or both of
the spouses during the marriage;

(ii) All interest that either or both of the spouses currently has in
any real or personal property, including, but not limited to, the
retirement benefits of the spouses, and that was acquired by either or
both of the spouses during the marriage;

(iii) Except as otherwise provided in this section, 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; R.C. 3105.171(A)(3)(a).

Separate property includes, in relevant part:

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(ii) Any real or personal property or interest in real or personal
property that was acquired by one spouse prior to the date of the
marriage;

(iii) Passive income and appreciation acquired from separate
property by one spouse during the marriage; R.C.
3105.171(A)(6)(a).

Furthermore, “[t]he commingling of separate property with other property of any

type does not destroy the identity of the separate property as separate property,

except when the separate property is not traceable.” R.C. 3105.171(A)(6)(b).

Accordingly, traceability is the key to determining whether separate property has

lost its separate character after being commingled with marital property. Ward v.

Ward, 3d Dist. No. 1-03-63, 2004-Ohio-1390, ¶ 4, citing Peck v. Peck, 96 Ohio

App.3d 731, 734 (12th Dist. 1994). The party seeking to have a particular asset

classified as separate property has the burden of proof, by a preponderance of the

evidence, to trace the asset to separate property. Id.

Marital Residence

{¶10} William contends that that the trial court erred in finding that the

equity in the marital residence is marital property. Specifically, William contends

that the equity in the marital residence is separate property because it was

purchased prior to the marriage, and because its increased value is the result of

passive appreciation. We disagree.

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{¶11} In 1988, William purchased the marital residence for the sum of

$60,000.00. William financed the purchase by making a $6,000.00 down payment

and securing a $54,000.00 mortgage in his name. The parties stipulated that the

$6,000.00 down payment was William’s separate property. Shirley testified that

she moved into the residence in August 1988 and resided there on a permanent

basis until April 2010. William, on the other hand, testified that Shirley began

residing at the marital residence on a permanent basis beginning in 1990, and that

prior to that time she resided at the marital residence on an intermittent basis.

Shirley testified that in 1988 William added her as a joint holder to his pre-existing

checking account. Shirley explained that she and William deposited their

respective income into that checking account and that the funds in the account

were used to pay household expenses. William did not contest the existence of the

checking account, but testified that Shirley’s income primarily financed groceries.

William further testified that the only improvements made on the marital residence

were the addition of a paved driveway and a new roof. Though William could not

recall the exact dates those improvements were made, he did testify that the paved

driveway was likely added in 1995. Also in 1995, the original mortgage on the

marital residence was paid off via the joint contributions of William and Shirley.

That same year, William and Shirley took a second mortgage out on the marital

residence. Both William and Shirley’s names appeared on the mortgage
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instrument. In 2008, William and Shirley took a third mortgage out on the marital

residence. Again, Both William and Shirley’s names appeared on the mortgage

instrument. During the hearing, the parties stipulated that the marital residence

was valued at $111,000.00, and that the mortgage payoff amount was $42,000.00.

{¶12} Though the marital residence was purchased several years prior to

the marriage, and thus was acquired as separate property, See R.C.

3105.171(A)(6)(a)(ii), there was sufficient competent, credible evidence that

payment of, maintenance on, and improvements to the marital residence were

accomplished through William and Shirley’s efforts. In particular, there was

evidence that household expenses were paid out of a joint checking account in

which Shirley and William deposited funds, that Shirley helped William pay off

the original mortgage, and that Shirley was jointly liable for mortgages taken out

on the marital residence in 1995 and 2008. Given the foregoing, it was reasonable

for the trial court to conclude that what began as separate property transformed

into marital property as a result of William and Shirley’s joint contributions prior

to and during the marriage. Furthermore, with the exception of the $6,000.00

down payment, William presented no evidence tracing the funds used to pay off,

maintain, and improve the marital residence to his separate property. Accordingly,

William failed to establish that the equity in the marital residence, with exception

of $6,000.00, is his separate property.
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{¶13} William also contends that the increased value of the marital

residence is the result of passive appreciation, and thus constitutes separate

property. We disagree.

{¶14} Passive appreciation will only be separate property if the property at

issue is separate. See R.C. 3105.171(A)(6)(a)(iii). Here, we have already

determined that the marital residence, which began as separate property, was

transformed into marital property as a result of the Shirley’s contributions in

paying off, maintaining, and improving the residence prior to and during the

marriage. Consequently, even if the increased value of the marital residence was

the result of passive appreciation it would be marital property.2

{¶15} Given the foregoing, we find that the trial court’s classification of the

equity in the marital residence as marital property was not against the manifest

weight of the evidence.

Tractor

{¶16} Next, William contends that the tractor is separate property, as it was

acquired by him prior to the date of the marriage. We disagree.

{¶17} Considering the evidence presented during the hearing, there were

two dates on which the tractor could have been purchased. William testified, and
2
Contrary to William’s contention, the record contains no evidence that the increased value of the marital
residence resulted from passive appreciation. Instead, the record, particularly William’s testimony
concerning the addition of a paved driveway and new roof, supports the conclusion that the increased value
of the marital residence resulted from active appreciation.
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consequently argued, that he purchased the tractor in October 1993 and financed it

via an eleven-month installment contract. Though William was unable to produce

a bill of sale for the tractor, he did introduce a facsimile, purportedly sent by the

retailer from whom William purchased the tractor, stating that William purchased

the tractor in October 1993. Shirley, on the other hand, argued that William

purchased the tractor sometime after November 1994, i.e., after their marriage. In

support, Shirley cites William’s testimony that he hauled the tractor home with a

1994 K1500 Chevrolet truck (“truck”). Shirley then introduced a retail installment

contract for the same truck, which stated that the truck was purchased in

November 1994.

{¶18} Given the foregoing, there was competent, credible evidence

supporting the purchase date asserted by each party. William’s testimony that he

purchased the tractor in October 1993 was corroborated by a facsimile purportedly

sent by the retailer from whom William purchased the tractor. However, the fact

that William could only corroborate his testimony with a facsimile may cause a

reasonable trier of fact to question William’s asserted purchase date. On the other

hand, the evidence supporting Shirley’s asserted purchase date of the tractor is

arguably less dubious. Unlike William, Shirley was able to produce a retail

installment contract, dated after the marriage, for the truck William admittedly

used to haul the tractor home. Faced with this evidence, it was reasonable for the
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trial court to conclude that the tractor was purchased after the marriage.

Accordingly, we find that the trial court’s classification of the tractor as marital

property was not against the manifest weight of the evidence.

Written Findings of Fact

{¶19} Last, William contends that the trial court erred by not supporting its

categorization of the marital residence and tractor with written findings of fact.

We disagree.

{¶20} Though written findings of fact would undoubtedly be helpful in

determining whether the trial court erred in classifying property as separate or

marital, such findings are not required by statute. Oliver v. Oliver, 12th Dist. No.

CA2011-01-004, 2011-Ohio-6345, ¶ 10. R.C. 3105.171 only requires written

findings of fact in two situations, both of which deal with the distribution of

property that has already been classified as marital or separate. See R.C.

3105.171(D), (G). Because William’s contentions on appeal are limited to the

classification of the marital residence and tractor as marital property and not the

distribution thereof, none of R.C. 3105.171’s provisions requiring written findings

of fact apply in the instant case. Therefore, the absence of written findings of fact

supporting the trial court’s classification of the marital residence and tractor as

marital property does not constitute error.

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{¶21} Accordingly, we overrule William’s first and second assignments of

error.

William’s Assignment of Error No. III

{¶22} In his third assignment of error, William contends that the trial court

erred when it imputed minimum wage income to him for purposes of calculating

child support. William’s contention is two-fold. First, William contends that the

trial court erred when it failed to expressly find that he was voluntarily

unemployed or underemployed. Second, William contends that his retirement

precludes a finding that he was voluntarily unemployed. Based on the following,

we disagree.

{¶23} It is well established that a trial court’s decision regarding child

support obligations will not be disturbed on appeal absent an abuse of discretion.

Dreher v. Stevens, 3d Dist. No. 4-05-20, 2006-Ohio-351, ¶ 19, citing Booth v.

Booth, 44 Ohio St.3d 142, 144 (1989). A trial court will be found to have abused

its discretion when its decision is contrary to law, unreasonable, not supported by

the evidence, or grossly unsound. See State v. Boles, 187 Ohio App.3d 345, 2010-

Ohio-278, ¶ 17-18, citing Black’s Law Dictionary 11 (8th Ed.Rev.2004). When

applying the abuse of discretion standard, a reviewing court may not simply

substitute its judgment for that of the trial court. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).
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{¶24} Before computing child support, the trial court must determine each

parent’s income. See Thacker v. Thacker, 3d Dist. No. 9-10-26, 2010-Ohio-5675,

¶ 55. Where the calculation of child support involves a parent who is unemployed

or underemployed, the trial court must consider the parent’s gross income and,

relevant to the instant case, the parent’s potential income, R.C. 3119.01(C)(5)(b),

which is income the parent would have earned if he or she had been fully

employed. R.C. 3119.01(C)(11)(a). In determining the parent’s potential income

and whether it may impute that income, the trial court must engage in a two-part

analysis. Theurer v. Foster-Theurer, 12th Dist. Nos. CA2008-06-074, CA2008-

06-083, 2009-Ohio-1457, ¶ 83, citing Badovick v. Badovick, 128 Ohio App.3d 18,

23 (8th Dist. 1998). First, the trial court must determine whether the parent is

voluntarily unemployed or underemployed. Id.; see also Smart v. Smart, 3d Dist.

No. 17-07-10, 2008-Ohio-1996, ¶ 21. If the trial court determines that the parent

is voluntarily unemployed or underemployed, then the potential income to be

imputed to the parent must be determined in accordance with the factors

enumerated under R.C. 3119.01(C)(11)(a). Theurer at ¶ 83.

{¶25} As an initial matter, we note that William’s contention is limited to

the finding that he was voluntarily unemployed or underemployed. William

advances no arguments challenging the amount of imputed income. Accordingly,

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our review is limited to determining whether the trial court abused its discretion in

finding that William was voluntarily unemployed or underemployed.

{¶26} Bearing this in mind, we begin with the trial court’s order addressing

William’s child support obligation, which reads, in relevant part:

[c]hild support shall be calculated based upon imputed minimum
wage income to each of the parties in addition to those amounts
previously ordered as pension distributions. June 21, 2011 Decision,
p. 7.

{¶27} First, William contends that the trial court committed reversible error

when it did not expressly find that he was either voluntarily unemployed or

underemployed. Though the better practice would be to expressly find that the

parent is voluntarily unemployed or underemployed, we disagree with William’s

contention in light of this court’s precedent in O’Connor v. O’Connor, 184 Ohio

App.3d 538, 2009-Ohio-5436 (3d Dist.). In O’Connor, the trial court did not

expressly find that the parent was voluntarily unemployed or underemployed for

purposes of imputing potential income to the parent. Nevertheless, this court

explained that the absence of an express finding of voluntary unemployment or

underemployment is not reversible error where a reviewing court is capable of

inferring such a finding from the record. O’Connor at ¶ 11; see also Wheeler v.

Wheeler, 6th Dist. No. OT-04-025, 2005-Ohio-1025, ¶ 26 (no statutory

requirement that the trial court’s finding concerning voluntary unemployment or

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underemployment be express); but see Collins v. Collins, 9th Dist. No. 10CA0004,

2011-Ohio-2087, ¶ 36 (trial court’s finding concerning voluntary unemployment

or underemployment must be express).

{¶28} Here, the record contains evidence that is relevant in determining

whether William was voluntarily unemployed or underemployed. William began

working at GM in 1978. Shortly thereafter, in 1979, William suffered serious

injury to one of his ankles while riding a snowmobile. William explained that his

ankle continues to bother him, especially when he stands for a long period of time.

Because his position at GM required him to stand for a long period of time,

William testified that his ankle often hurt during work. William testified that he

accepted early retirement due to the pain in his ankle. William, however,

explained that had he not been offered early retirement he would have continued

working for GM. Since retiring, William has, on a periodic basis, worked as an

independent contractor installing television satellite dishes. In 2010, William

earned $220.00 installing satellite dishes. Given the foregoing, we find that there

is sufficient evidence for us to infer that the trial court determined that William

was voluntarily unemployed.3

3
Though the trial court did not expressly find that William was voluntarily unemployed or underemployed,
we will, for purposes of discussion, say that William is voluntarily unemployed. Ultimately, though, the
terminology is inconsequential.
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{¶29} Next, we consider William’s contention that his retirement precludes

a finding that he is voluntarily unemployed.

{¶30} First, William’s contention is lacking in both argument and

supportive authority. See App.R. 12(A)(2), App.R. 16(A)(7). Due to the lack of

argument and authority, William has failed to convince us that his retirement

precludes a finding that he is voluntarily unemployed.

{¶31} Notwithstanding the lack of argument and authority, we find that

retirement does not per se preclude a finding that a parent is voluntarily

unemployed or underemployed. First, we are unaware of any provision in R.C.

Chapter 3119 that precludes a finding that a parent is voluntarily unemployed or

underemployed simply because he or she is retired. Second, we are unaware of

any case that has held that retirement alone precludes a finding that a parent is

voluntarily unemployed or underemployed. Rather, determining whether a parent

is voluntarily unemployed or underemployed is a matter to be determined by the

trial court based upon the facts and circumstances of each case. Rock v. Cabral,

67 Ohio St.3d 108, 112 (1993); see also Combs v. Combs, 12th Dist. No. CA2001-

11-102, 2003-Ohio-198, Justinger v. Schlegel, 3d Dist. No. 11-97-03 (July 15,

1997).

{¶32} In Combs, the parent, who had worked for his employer for thirty-

four years and earned a yearly salary of $97,000.00, retired to avoid disciplinary
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charges and possible termination. After retirement, the parent obtained part-time

employment earning $10.00 per hour. The parent filed a motion to modify his

child support obligation as a result of his reduced income. The trial court denied

the parent’s motion to modify finding that the parent’s retirement constituted

voluntary underemployment. On appeal, the court of appeals found that despite

the anticipated disciplinary charges and possible termination, the parent’s decision

to retire was ultimately a voluntary decision. Accordingly, the court of appeals

concluded that the trial court did not abuse its discretion in finding that the parent

was voluntarily underemployed.

{¶33} In Justinger,4 the parent retired at the age of forty-seven having

earned an average income of $65,000.00 during the last three years of his

employment.5 Though the exact reason for the parent’s retirement was unclear,

the facts established that the parent did not retire due to his age or disability. After

retirement, the parent did not obtain any employment and thus his yearly income

was limited to retirement income, which amounted to $25,320.00. The parent

filed a motion to modify his child support obligation as a result of his reduced

income. The trial court denied the parent’s motion to modify finding that he was

voluntarily unemployed and imputed a potential income to him of $40,505.00,
4
At the time Justinger was decided, R.C. 3113.215 governed child support. R.C. 3113.215 was repealed
on March 22, 2001, and was replaced by R.C. 3119.01, which is comparable to the provisions of R.C.
3113.215 and does not vary in any way that affects our current analysis.
5
This figure represented the parent’s base salary, overtime, and bonuses.
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which represented his pre-retirement base salary. On appeal, this court found that

the parent was voluntarily unemployed because he “reduced his income when he

was not forced to do so by circumstances beyond his control.” Justinger at *1.

Accordingly, this court concluded that the trial court did not abuse its discretion in

finding that the parent was voluntarily unemployed.

{¶34} Here, we find that there is sufficient evidence supporting the trial

court’s finding that William is voluntarily unemployed. William testified that his

primary reason for accepting early retirement was that prolonged standing at work

“really bothered” the ankle he injured in 1979. Though William testified that he

decided to accept early retirement because of his ankle, the fact remains that

William worked at GM for nearly 27 years after injuring his ankle. Considering

the length of time William worked on his bothersome ankle, it is reasonable to

conclude that William’s ankle was merely a factor in his otherwise voluntary

decision to retire. This conclusion is supported by William’s testimony that he

would have continued working at GM had he not been offered early retirement.

Bearing this in mind, and the fact that there was no evidence that William was

incapable of securing gainful employment after retirement, we find that the trial

court did not abuse its discretion in finding that William was voluntarily

unemployed.

{¶35} Accordingly, we overrule William’s third assignment of error.
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Shirley’s Assignment of Error No. I

{¶36} In her first assignment of error, Shirley contends that the trial court

erred in determining that she failed to establish the existence of a common law

marriage. Specifically, Shirley contends that she offered evidence that clearly and

convincingly established that she and William had been in a common law

marriage since October 1988. Based on the following, we disagree.

{¶37} In reviewing the trial court’s decision concerning the existence of a

common law marriage, the standard of review is whether the decision was against

the manifest weight of the evidence. In re Estate of Shepherd, 97 Ohio App.3d

280, 283 (3d Dist. 1994). As previously mentioned, judgments supported by some

competent, credible evidence going to all the essential elements of the case will

not be reversed by a reviewing court as being against the manifest weight of the

evidence. C.E. Morris Co., 54 Ohio St.2d at syllabus. When reviewing a

judgment under a manifest-weight-of-the-evidence standard, a court has an

obligation to presume that the findings of the trier of fact are correct. Seasons

Coal Co., Inc., 10 Ohio St.3d at 79-80. Mere disagreement over the credibility of

witnesses or evidence is not sufficient reason to reverse a judgment. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, at ¶ 40.

{¶38} We begin by noting that common law marriages have never been

favored in Ohio. Nestor v. Nestor, 15 Ohio St.3d 143, 145 (1984). In fact,
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common law marriages occurring after October 10, 1991, are not recognized in

Ohio. R.C 3105.12(B)(1). However, relationships between a man and woman

that attained common law marriage status prior to October 10, 1991 are

recognized as valid and remain valid until terminated by death, dissolution,

divorce, or annulment. R.C. 3105.12(B)(2).

{¶39} In order to establish the existence of a common law marriage, the

party alleging a common law marriage must establish each of the following

elements by clear and convincing evidence: (1) an agreement to marry in praesenti

by parties competent to contract; (2) cohabitation as husband and wife; (3) the

parties must hold themselves out as husband and wife; and, (4) the parties are

treated and reputed as husband and wife by the community. See Nestor at 145.

{¶40} The first element of the test, a meeting of the minds to marry in

praesenti, is the essential element of a common law marriage. Id. at 146. “Its

absence precludes the establishment of such a relationship even though the parties

live together and openly engage in cohabitation.” Id. An agreement to marry in

praesenti may be proven either by direct evidence which establishes agreement, or

by proof of cohabitation, acts, declarations, and conduct of the parties and their

recognized status in the community in which they reside. Id. “Where there is no

direct proof in reference to the formation of the contract of marriage in praesenti,

testimony regarding cohabitation and community reputation tends to raise an
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inference of the marriage. This inference is given more or less strength according

to the circumstances of the particular case. The inference is generally

strengthened with the lapse of time during which the parties are living together

and cohabitating as man and wife.” Id.

{¶41} As for the final two elements,6 the Supreme Court of Ohio explained

that, “in order to establish a common law marriage it is not necessary that [the man

and woman] disseminate information to all society generally, or to all of the

community in which they reside. Rather, there must be a holding out to those with

whom they normally come in contact. A common law marriage will not

necessarily be defeated by the fact that all persons in the community within which

the parties reside are not aware of the marital arrangement, nor by the fact that all

persons with whom they normally come in contact are also unaware of the

arrangement.” Id.

{¶42} Although there was no written agreement to marry in praesenti,

Shirley cites three excerpts from the hearing contending that they represent direct

evidence that William considered Shirley as his wife prior to their marriage. The

first excerpt Shirley cites reads:

6
On appeal, William does not challenge the existence of the second element, i.e., cohabitation.
Accordingly, there is no need to discuss that element in this opinion.
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Q: And during, * * * this time between 1988 and 1994, you and
Shirley went ahead and bought personal property and other items
together; is that correct?

A: Yes.

Q: Okay. So every decision that was made whether to buy
something was you did it jointly between you and her?

A: Most of the time, not always. Hearing Tr., p. 18-19.

The second excerpt Shirley cites reads:

Q: All right. And from * * * October of 1988 until ’94, you and
Shirley were a couple and you were making marital decisions
together; is that right?

A: In our eyes probably would have been maybe considered a
couple; but, however, with the community, they, nobody knowed
(sic) we was married or everybody knowed (sic) we wasn’t married.
Hearing Tr., p. 20.

The last excerpt Shirley cites reads:

Q: We’ve heard some testimony here today and I think Mr.
Cunningham has asked you some questions about the time frame
between 1989 and ’94 and about holding yourself out [as] being
married. Did you consider yourself married to Shirley Drummer
during that period of time?

A: We was very close, yes. Hearing Tr., p. 120.

Upon consideration of the foregoing testimony, we are not convinced that

William’s responses constitute direct evidence of an agreement to marry in

praesenti. At best, the testimony demonstrates that William and Shirley were a

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close couple, but not husband and wife. Moreover, William testified that there

was no agreement to be or get married.

Q: All right. Now, when you and Shirley moved in together at the
State Route 15 house in 1988, you two were in agreement to getting
married; is that correct?

A: I would say that was definitely not true, no.

Q: And at that time * * * for those years of 1989, 1990, 1991, 1992,
1993, your attitude toward marriage was that you two were already
married. Is that right?

A: No. Hearing Tr., p. 17.

Based on William’s testimony and the fact that there was no written agreement to

be married in praesenti, we, like the trial court, find that Shirley did not establish

the existence of an agreement to marry in praesenti via direct evidence.

{¶43} Notwithstanding the absence of direct evidence of an agreement to

marry in praesenti, Shirley contends that the first common law marriage element is

met via the parties’ cohabitation, acts, declarations, conduct, and their recognized

status in the community in which they resided. See Nestor, 15 Ohio St.3d at 146.

In particular, Shirley highlights the following evidence: the establishment of joint

checking account in October 1988; joint contribution to household expenses; filing

joint tax returns with William from 1988 through 1994; her designation as

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beneficiary of William’s life insurance policy in 1988; and, their many years of

cohabitation prior to the marriage.

{¶44} While the things highlighted by Shirley may arguably be indicative

of an agreement to marry in praesenti, many of these things are also common

among unmarried couples. For instance, it is not uncommon for unmarried

couples to cohabitate, have a joint checking account, and jointly contribute to

household expenses. However, one thing that a married couple can do that an

unmarried coupled cannot is file a joint federal tax return. Consequently, an

unmarried couple filing joint tax returns, while not legally appropriate, may be

more indicative of a shared intent to be married than other activities. Here, Shirley

testified that she and William have filed joint federal tax returns since 1988.

William, however, denied filing joint tax returns prior to their marriage, and

Shirley was unable to produce tax returns for the years 1988, 1989, 1990, 1991,

1992, and 1993. Without these tax returns it is reasonable to find that Shirley did

not provide clear and convincing evidence that she and William filed jointly prior

to their marriage. Given the foregoing, we find that the trial court did not err in

finding that the first common law marriage element was not established by clear

and convincing evidence.

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{¶45} Assuming, arguendo, Shirley established the first common law

marriage element, we find that she failed to establish the final two elements by

clear and convincing evidence.

{¶46} The trial court heard little testimony relevant to the final two

common law marriage elements. Shirley testified that she introduced William as

her husband and that he introduced her as his wife prior to their marriage. Shirley

also testified that their families and friends viewed them as a married couple prior

to their marriage. In support, Shirley called her cousin, Jackie Killion (“Killion”),

to testify. Killion testified that she thought William and Shirley were married

prior to moving into the marital residence. Killion explained that she assumed

William and Shirley were married because she always saw them together and they

lived together. William, on the other hand, testified that he never told anyone that

he was married to Shirley prior to their marriage. Coincidently, Killion testified

that William and Shirley never told her that they were married. Finally, William

testified that neighbors, friends, and family did not view him and Shirley as

husband and wife prior to their marriage.

{¶47} Clearly, the trial court was presented with conflicting testimony. It is

evident that the trial court determined that Shirley did not present clear and

convincing evidence establishing the final two common law marriage elements.

There was competent, credible testimony that William and Shirley did not hold
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themselves out as husband and wife and the community did not view William and

Shirley as husband and wife. Because the trial court was in the best position to

weigh the credibility of the testimony, we find that the trial court’s decision was

not against the manifest weight of the evidence.

{¶48} Accordingly, we overrule Shirley’s first assignment of error.

Shirley’s Assignment of Error No. II

{¶49} In her second assignment of error, Shirley contends that the trial

court erred when it did not find, for purposes of property division, that the

equitable beginning date of the marriage was October 1988. Based on the

following, we disagree.

{¶50} A trial court’s decision to select beginning and termination dates of a

marriage other than those provided for in R.C. 3105.171(A)(2)(a) is a question of

fact and will not be disturbed on appeal absent an abuse of discretion. Renz v.

Renz, 12th Dist. No. CA2010-05-034, 2011-Ohio-1634, ¶ 7. As previously

mentioned, a trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. See Boles, 2d Dist. No. 23037, 2010-Ohio-278, at ¶ 17-18, citing

Black’s Law Dictionary 11 (8th Ed.Rev.2004). When applying the abuse of

discretion standard, a reviewing court may not simply substitute its judgment for

that of the trial court. Blakemore, 5 Ohio St.3d at 219.
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{¶51} There is a statutory presumption that the duration of a marriage runs

from the date of the marriage through the date of the final divorce hearing. R.C.

3105.171(A)(2)(a). However, if the trial court determines that “the use of either or

both of the dates * * * would be inequitable, the court may select dates that it

considers equitable in determining marital property.” R.C. 3105.171(A)(2)(b).

{¶52} Shirley contends that this court should follow the holding in Bradley

v. Bradley, 8th Dist. No. 78400 (July 5, 2001). In Bradley, the parties became

romantically involved in 1979, which resulted in the birth of their son in 1980.

After the birth of their son, Mrs. Bradley remained at home to raise the parties’

son instead of pursuing gainful employment. On June 22, 1991, the parties had a

ceremonial marriage, but never obtained a marriage license. In 1995, Mrs.

Bradley filed for divorce. Based on the evidence adduced during trial, the trial

court determined that the parties were married at common law on June 22, 1991,

and that the duration of the marriage spanned from 1979 to 1995. Mr. Bradley

appealed the trial court’s decision. On appeal, the court of appeals, noting the trial

court’s broad discretion on the matter, focused on length of time the parties had

been together and the fact that Mrs. Bradley was financially dependent on Mr.

Bradley. Based on these facts, the court of appeals determined that the trial court

did not abuse its discretion.

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{¶53} Having considered Bradley, we find that it is distinguishable from

the present case. In Bradley, the parties cohabitated for approximately thirteen

years before their common law marriage. Here, William and Shirley cohabitated

for approximately six years. In Bradley, the parties had a son shortly after they

began a relationship and well before their common law marriage. Here, William

and Shirley had their first and only child in 1998, nearly four years after their

marriage. Last, Mrs. Bradley was financially dependent on Mr. Bradley because

she stayed home to raise their son. Here, Shirley was gainfully employed at Taco

Bell between 1988 and 1995, and there was no evidence that she was financially

dependent on William to the degree Mrs. Bradley was financially dependent on

Mr. Bradley. Given these differences, we decline to follow Bradley.

{¶54} Certainly, the record in the instant case contains evidence that could

persuade a trial court that, for purposes of property division, the beginning date of

the marriage was prior to July 1994. However, the trial court did not reach that

conclusion, finding that William and Shirley married on July 28, 1994. Having

considered the record and being mindful of the trial court’s broad discretion in

determining whether the beginning and ending dates of the marriage are

inequitable, we find that the trial court did not abuse its discretion when it did not

select October 1988 as the equitable beginning date of the marriage.

{¶55} Accordingly, we overrule Shirley’s second assignment of error.
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Shirley’s Assignment of Error No. III

{¶56} In her third assignment of error, Shirley contends that the trial court

erred in finding that the marital portion of William’s pension was 144 months and

not 214 months. Based on the following, we disagree.

{¶57} In light of our disposition of Shirley’s first and second assignments

of error, we find that the trial court did not err in classifying only 144 months of

William’s pension as marital property. Shirley’s figure of 214 months represents

the number of months between the date Shirley contends is the first month of their

marriage, October 1988, and the final month of William’s employment at GM,

July 2006. Consequently, the success of Shirley’s third assignment of error

depends on whether we sustained either her first or second assignments of error, in

which she argued that October 1988 should be considered the first month of the

marriage. Since we overruled Shirley’s first and second assignments of error, it

follows that the trial court did not err in classifying only 144 months of William’s

pension as marital property.

{¶58} Accordingly, we overrule Shirley’s third assignment of error.

{¶59} Having found no error prejudicial to William or Shirley herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.
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