[Cite as Mendiola v. Mendiola, 2011-Ohio-1326.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MARGARET A. MENDIOLA JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case Nos. 2010 CA 00135 and
JAMES M. MENDIOLA 2010 CA 00203
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 2009 DR 00156
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 21, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN H. SIMPSON STEVEN L. CRAIG
46 Federal Avenue, NW 437 Market Avenue North
Massillon, Ohio 44646 Canton, Ohio 44702
Stark County, Case Nos. 2010 CA 00135 and 2010 CA 00203 2
Wise, J.
{¶1} Appellant James M. Mendiola appeals from the decision of the Stark
County Court of Common Pleas, Domestic Relations Division, granting a divorce
between Appellee Margaret A. Mendiola and Appellant. The relevant facts leading to
this appeal are as follows.
{¶2} Appellant and appellee were married on April 22, 1977. Three children
were born of the marriage, all of whom are now adults. One of these adult children has
special needs and resides with appellee, who is also the legal guardian.
{¶3} On February 11, 2009, appellee filed a complaint for divorce in the trial
court. The parties reached partial agreement on the issues related to the divorce. After
the final pretrial, the trial court found that spousal support and property valuations were
not resolved, and the matter was set for trial on those issues on October 28, 2009. The
matter was ultimately heard by a magistrate over the course of four separate days.
{¶4} On December 23, 2009, the magistrate issued an 11-page decision with
findings of fact and conclusions of law. Among other things, the magistrate found the
date of termination of the marriage to be December 1, 2009 and set forth a detailed
division of marital property. Each side thereafter filed objections to the magistrate’s
decision. The trial court heard the objections on February 8, 2010.
{¶5} On April 28, 2010, the trial court issued a judgment entry overruling all
objections and adopting the decision of the magistrate. A final decree was issued on
July 2, 2010.
{¶6} On May 25, 2010 and August 2, 2010, appellant filed notices of appeal.
He herein raises the following four Assignments of Error:
Stark County, Case Nos. 2010 CA 00135 and 2010 CA 00203 3
{¶7} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN FAILING TO
DETERMINE THAT THE CHARTER ONE BANK SAVINGS ACCOUNT AND ITS
$88,000.00 BALANCE THAT EXISTED IN THIS ACCOUNT IMMEDIATELY BEFORE
THESE PROCEEDINGS BEGAN WAS ‘MARITAL PROPERTY’ SUBJECT TO
EQUAL/EQUITABLE DIVISION BETWEEN THE PARTIES.
{¶8} “II. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN
DETERMINING THAT THE HUNTINGTON NATIONAL BANK SAVINGS AND
CHECKING ACCOUNTS OWNED BY APPELLANT WAS (SIC) ‘MARITAL PROPERTY’
AND COMPOUNDED ITS ERROR BY FURTHER DIVIDING THE FUNDS ON
DEPOSIT AS PART OF ITS EQUAL AND EQUITABLE DIVISION OF MARITAL
PROPERTY.
{¶9} “III. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN FAILING
TO DIVIDE ALL MARITAL PROPERTY EQUALLY AFTER SPECIFICALLY
CONCLUDING THAT AN EQUAL DIVISION OF ALL MARITAL PROPERTY IS
EQUITABLE.
{¶10} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT’S OBJECTIONS TO THE MAGISTRATE’S DECISION.”
I., II., III., IV.
{¶11} All of appellant’s assigned errors focus on a core group of assets, namely,
a Charter One Bank account, a Huntington Bank account, and the marital residence on
Third Street NE in Massillon, Ohio. Appellant essentially challenges certain facets of the
magistrate’s decision, and ultimate approval by the trial court, in assessing these assets
as marital property and making the aggregate property division. Both parties have
Stark County, Case Nos. 2010 CA 00135 and 2010 CA 00203 4
provided thorough briefs on the issues, and we find it feasible under the circumstances
presented to address the assigned errors together.
Standard of Review
{¶12} An appellate court generally reviews the overall appropriateness of the
trial court's property division in divorce proceedings under an abuse of discretion
standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. In order to find
an abuse of discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Furthermore, as an appellate
court, we are not the trier of fact. Our role is to determine whether there is relevant,
competent, and credible evidence upon which the factfinder could base his or her
judgment. Tennant v. Martin-Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010-Ohio-
3489, ¶ 16, citing Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, 1982
WL 2911. The trier of fact is in a far better position to observe the witnesses' demeanor
and weigh their credibility. See, e.g., Taralla v. Taralla, Tuscarawas App.No. 2005 AP
02 0018, 2005-Ohio-6767, ¶ 31, citing State v. DeHass (1967), 10 Ohio St.2d 230, 227
N.E.2d 212.
{¶13} Pursuant to R.C. 3105.171(B), “[i]n divorce proceedings, the court shall ...
determine what constitutes marital property and what constitutes separate property. In
either case, upon making such a determination, the court shall divide the marital and
separate property equitably between the spouses, in accordance with this section.” R.C.
3105.171(C)(1) further states: “Except as provided in this division or division (E)(1) of
this section, the division of marital property shall be equal. If an equal division of marital
Stark County, Case Nos. 2010 CA 00135 and 2010 CA 00203 5
property would be inequitable, the court shall not divide the marital property equally but
instead shall divide it between the spouses in the manner the court determines
equitable. In making a division of marital property, the court shall consider all relevant
factors, including those set forth in division (F) of this section.”
{¶14} “The concept of marital property is derived from the premise that marriage
is a voluntary partnership of co-equal partners with a division of duties and labor that
entitles each partner to a one-half interest in the assets accumulated from the fruits of
the partnership activity while the marriage is functioning.” Tomlin v. Tomlin (March 16,
1987), Montgomery App. No. 10094, citing Wolfe v. Wolfe (1976), 46 Ohio St.2d 399,
350 N.E.2d 413. The party to a divorce action seeking to establish that an asset or
portion of an asset is separate property, rather than marital property, has the burden of
proof by a preponderance of evidence. Zeefe v. Zeefe (1998), 125 Ohio App.3d 600,
614, 709 N.E.2d 208. The characterization of property as separate or marital is a mixed
question of law and fact, and the characterization must be supported by sufficient,
credible evidence. Chase-Carey v. Carey (Aug. 26, 1999), Coshocton App. No. 99CA1,
1999 WL 770172. Once the characterization has been made, the actual distribution of
the asset may be properly reviewed under the more deferential abuse-of-discretion
standard. See R.C. 3105.171(D).
Analysis
{¶15} As a background, in the case sub judice, several items of marital property
which the trial court ordered to be sold, with the proceeds to be divided equally, are not
herein specifically in dispute. These include a .35 acre vacant lot on Hess Avenue NW
in Massillon and a small farm (not the marital residence) on Swamp Street SE in
Stark County, Case Nos. 2010 CA 00135 and 2010 CA 00203 6
Hartville, with an additional 19.6 acre lot in Hartville. Most of the farm equipment from
the Hartville properties and several older trucks were treated likewise by the court. We
also note that appellant’s Conway Pension Plan and Conway Retirement Savings Plan
were divided 50%/50%. The trial court also apportioned between appellant and appellee
a number of items such as the Saturn and Subaru automobiles and furniture/appliances.
{¶16} We thus proceed to appellant’s challenge to the trial court’s redress of the
bank accounts and marital residence. It is apparently undisputed that as of mid-July
2008 there was $88,000.00 in the parties’ joint savings account at Charter One Bank.
Evidence was adduced at trial that appellee withdrew one-half of that amount, i.e.,
$44,000.00, on July 15, 2008. Appellee further withdrew approximately $10,000.00 on
July 17, 2008, for a total withdrawal of $54,000.00. In turn, appellant thereupon
withdrew the remainder, approximately $34,000.00, from the Charter One account.
Appellant then deposited this amount in a new Huntington Bank savings account, to
which he subsequently added funds, resulting in a balance of $67,000.00 as of
November 2009. The trial court, inter alia, awarded $62,698.00 of the Huntington
account to appellant and $4,302.00 of said account to appellee. The trial court further
awarded the Massillon marital residence, appraised at $62,500.00, to appellee.
{¶17} Appellant contends that appellee effectively dissipated the sum of
$54,000.00 from the Charter One account by using the proceeds to pay living expenses
and to purchase improvements for the house, as well as furniture and appliances. He
challenges the trial court’s decision to disregard this $54,000.00 in its marital property
calculation when it simultaneously included the leftover $34,000.00 in the basket of
marital property by including therein the Huntington account, into which appellant had
Stark County, Case Nos. 2010 CA 00135 and 2010 CA 00203 7
placed the $34,000.00. Appellant additionally claims the trial court exacerbated an
inequitable result by awarding appellee the marital residence ($62,500.00 in appraised
value) and $4,302.00 from the Huntington account, which, when added to the aforesaid
$54,000.00 in “dissipated” funds from the Charter One account, allegedly resulted in an
unequal distribution of more than $120,000.00 in appellee’s favor.
{¶18} Upon review, we are unpersuaded by appellant’s portrayal of the trial
court’s accounting of these issues. The record does not support appellant’s implicit
proposition that appellee engaged in financial misconduct by accessing monies from the
joint Charter One account more than six months prior to the filing of her divorce
complaint. Thus, the trial court did not abuse its discretion in leaving this $54,000.00
sum out of the marital property equation. Likewise, we find nothing in the record to
make us conclude that the trial court abused its discretion in utilizing the date of
December 1, 2009 as the termination date of the marriage, and thereby including as
marital property the bank accounts, particularly the Huntington account, which were
extant on that date.1 Our reading of the trial court’s ruling on marital property (not
reiterating the evenly divided Conway Pension Plan and Conway Retirement Savings
Plan and the items which were ordered sold with proceeds divided) is one of equal
division, as set forth in the following chart:
1
The magistrate, in his findings of fact, chose the wording “the parties divided the
funds” in describing the parties’ actions regarding the Charter One account in July 2008.
See Magistrate’s Decision at para. 98. However, we find this wording does not
necessarily bind the trial court from legally recognizing the leftover $34,000.00 placed in
the Huntington account as marital property.
Stark County, Case Nos. 2010 CA 00135 and 2010 CA 00203 8
Appellant-Husband Appellee-Wife
1. Huntington Savings $62,698.00 1. Huntington Savings $ 4,302.00
2. Invesco IRA 4,019.80 2. Marital Residence 62,500.00
3. Saws/Tools 2,000.00 3. Checking Account 916.05
4. Huntington Checking 1,000.00 4. 2001 Saturn 3,000.00
5. 1999 Subaru 1,000.00
$70,717.80 $70,718.05
Conclusion
{¶19} Accordingly, we find no reversible error in the trial court’s equal division of
marital property between the parties. Appellant's First, Second, Third, and Fourth
Assignments of Error are therefore overruled.
{¶20} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Domestic Relations Division, Stark County, Ohio, is affirmed.
By: Wise, J.
Edwards, J., concurs.
Hoffman, P. J., dissents.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 0228
Stark County, Case Nos. 2010 CA 00135 and 2010 CA 00203 9
Hoffman, P.J., dissenting
{¶21} I respectfully dissent from the majority opinion. I find the trial court’s
failure to recognize the $54,000 Appellee withdrew from the Charter One Bank joint
savings account, as part of the marital assets, and failure to consider such in the
distribution of said assets to be inequitable.
{¶22} The parties separated sometime in July, 2008. On July 15, 2008,
Appellee withdrew $44,000.00 from the joint savings account. Appellee met with the
attorney, who would ultimately represent her in the divorce action, on July 16, 2008.
The following day, July 17, 2008, Appellee withdrew an additional $10,000.00 from the
joint savings account. Commencing in August, 2008, Appellant voluntarily paid
Appellee $2,000.00/month.
{¶23} It was apparent when Appellee made the withdrawals from the joint
savings account the parties were contemplating divorce. Given the timing of the
withdrawals, the timing of Appellee’s initial consultation with an attorney, and the fact
Appellant was paying Appellee $2,000.00/month, I find the trial court should have
credited the withdrawals as part of Appellee’s marital distribution. Accordingly, I would
reverse the trial court’s property division award.
_____________________________________
HON. WILLIAM B. HOFFMAN
Stark County, Case Nos. 2010 CA 00135 and 2010 CA 00203 10
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MARGARET A. MENDIOLA :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JAMES M. MENDIOLA :
:
Defendant-Appellant : Case Nos. 2010 CA 00135 and
: 2010 CA 00203
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Domestic Relations Division, Stark County,
Ohio, is affirmed.
Costs assessed to appellant.
___________________________________
___________________________________
___________________________________
JUDGES
Mendiola v. Mendiola
Combined Opinion