[Cite as Forcier v. Forcier, 2019-Ohio-5052.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
BEVERLY FORCIER, : OPINION
Plaintiff-Appellant, :
CASE NO. 2019-G-0192
- vs - :
PAUL GERARD FORCIER, et al., :
Defendant-Appellee. :
Appeal from the Geauga County Court of Common Pleas, Case No. 2015 D 000574.
Judgment: Modified and affirmed as modified.
Amy M. Keating, Christopher R. Reynolds and Kyleigh A. Weinfurtner, Zashin & Rich
Co., LPA, 950 Main Avenue, Fourth Floor, Cleveland, OH 44113 (For Plaintiff-
Appellant).
Dominic M. Antonelli and Kristen A. Crane, Kvale Antonelli & RAJ, 1406 West Sixth
Street, Second Floor, Cleveland, OH 44113 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Dr. Beverly Forcier, appeals from the final judgment granting a
divorce to appellee, Dr. Paul Gerard Forcier. The issues on appeal are threefold.
Appellant challenges: (1) the trial court’s modification of the magistrate’s decision
regarding whether appellant is entitled to interest on her separate property; (2) the trial
court’s adoption of the magistrate’s decision that appellee did not engage in financial
misconduct; and (3) the trial court’s adoption of the magistrate’s decision that certain
real property, gifted to appellee by appellant’s parents, is his separate property. We
modify the judgment and affirm as modified.
{¶2} The parties, each medical doctors, were married in December 1979. Four
children, all emancipated, were born of the marriage. Early in the marriage, appellant
worked full time as an ophthalmologist, but as the parties’ children were born, she
reduced her hours, eventually retiring in 1997. Appellee, an orthopedic surgeon, has
been the parties’ primary wage earner. Throughout their marriage, the parties invested
in real estate and had multiple investment accounts, some were held jointly and others
individually. Appellee managed the parties’ finances and controlled the various
accounts. Although the parties had a relatively high income due to appellee’s salary and
their investments, they lived frugally. Ultimately, between their incomes, savings, funds
received as gifts, and investments, the marital estate grew in excess of $15 million. The
parties separated in 2015 and appellant subsequently filed for divorce. During litigation,
multiple stipulations were filed. After many of the issues were settled, four matters
remained for the trial court to decide: (1) the disposition of marital property in Haywood
County, Tennessee; (2) the disposition of property in Carroll County, Ohio; (3) the
disposition of appellee’s separate property; and (4) whether appellee committed
financial misconduct and violated his duty to support appellant.
{¶3} At the final hearing, evidence demonstrated the parties owned some
561.01 acres of real property located in Haywood County, Tennessee. Between 1998
and 2003, the parties paid approximately $660,000 for the property. Both parties sought
to retain the property free and clear of any claim by the other. Appellant argued she
should be entitled to retrain the property due to its personal value and the ancestral
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connections to her family; appellee asserted he should be entitled to the property due to
its past, present, and future investment value.
{¶4} Appellant, who was interested in genealogy, traced her family’s ownership
of land in Haywood County from the 1820s. She had fond childhood memories of trips
to Haywood County to visit relatives. In 2004, the parties learned of a potential large
industrial “megasite” that the Tennessee Valley Authority was developing on property
adjoining the Haywood County property. At the time of trial, however, there was no
indication that any development of the “megasite” had or would commence. Still,
appellee testified the parties investigated other properties, one in Iowa, prior to
purchasing the Tennessee land and selected the Haywood County property due to the
greater rate of return on potential rental income. He further asserted the proximity to
the potential “megasite” would cause the property to significantly increase the land’s
value.
{¶5} Appellant enlisted John Powell Jenkins, a certified appraiser in the state of
Tennessee, to assign a value to the Haywood County property. After visiting the
property, taking photos, and reviewing comparable sales, Mr. Jenkins concluded the
property had a market value, at the time of the final hearing, of $1,856,943. Mr. Jenkins
noted he was aware of the potential “megasite,” and inquired locally about its
development. When he visited the property, Mr. Jenkins did not observe any indication
that the adjacent land was being developed.
{¶6} In lieu of completely divesting one of the party’s entire possessory interest
in the property, appellee proposed dividing Haywood County property. Mr. Jenkins,
however, testified partitioning the property, such that each party would receive equal
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value, would be difficult. The property includes agricultural fields, wooded areas, and,
due to its size, aspects of the land do not have enough road frontage to effectively
divide the land. In light of these points, not every acre or region of the land is of equal
or similar value. He opined the property’s best and most lucrative use was farming and
nothing would indicate this would change in the future.
{¶7} Appellant’s parents owned substantial real estate and assets and, during
the parties’ marriage, her parents transferred interest in numerous properties to
appellant, appellee, and their children. In 1991, appellee received an undivided one-
sixth interest in the property in Carroll County, Ohio. The other deeded owners were
appellant’s niece, her two nephews, and the parties’ two sons. Since obtaining an
ownership interest in the property, appellee has received one-sixth of the rents and
other income associated with the same.
{¶8} Appellant sought to impose a constructive trust upon appellee’s interest in
the Carroll County Property for the benefit of the parties’ two daughters and nephew
and designate appellant as the trustee. According to appellant, when the one-sixth
interest was transferred to appellee, her parents intended him to be merely a
placeholder. Specifically, she asserted her parents, in transferring the interest, were
maximizing their annual exclusion for purposes of estate and gift taxes; their ultimate
goal was to have appellee transfer the one-sixth interest to their living grandchildren and
not give appellee an indefinite ownership interest. Appellee maintained he was not
aware he was a mere placeholder until the divorce was filed.
{¶9} Appellant testified she and appellee discussed transferring his interest in
the Carroll County property in 2011, pursuant to the alleged intention of her parents.
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Appellee, however, was unwilling to transfer, but, according to appellant, he did not
dispute the plan to eventually transfer the interest. Moreover, appellant’s sister stated
she recalled hearing appellee and her father discussing the “pass through,” for the
benefit of the grandchildren.
{¶10} Appellant hired Brent Tyler Kuwatch, a licensed real estate appraiser in
the state of Ohio. Mr. Kuwatch appraised the Carroll County Property with a market
value of $705,000.
{¶11} With respect to appellant’s separate property, appellant’s parents gifted
numerous properties to her and her siblings. Starting in 2006, the parties notified
appellant’s siblings and advised them they no longer wished to be joint owners. The
various properties were ultimately sold and appellee deposited the proceeds from the
sale in the parties’ joint accounts. These funds were therefore commingled with marital
assets. Appellant asserted appellee compelled her to sell the properties, which caused
a rift with her siblings. Appellee stated that appellant had problems with her siblings
prior to the sales and he believed selling the properties would eliminate the problems.
Between the proceeds from the sales of the properties, proceeds received from the
state of Tennessee in compensation for property taken by eminent domain, and other
income from separate-property interests, appellant received $2,242,836 through gifts
and inheritances from 2003 through 2014.
{¶12} Both parties had access to their joint accounts, but appellee wrote nearly
all checks and managed all finances. Appellee was an active investor of both marital
and separate funds. And, according to appellant, appellee would frequently endorse
her name on checks and other financial documents without her knowledge or
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permission. Sometime after 2007, appellee ceased depositing his income into the
parties’ joint account, which was used to fund family expenses, and commenced
dissipation of over $1,000,000 in appellant’s separate property. Appellee asserted he
treated all funds as “our” money and moved the funds to maximize investments.
{¶13} Appellant retained John D. Davis, an expert in public accounting, forensic
accounting, and valuation analysis, to trace her separate property. Mr. Davis noted
three tracing methodologies employed by forensic accountants: direct tracing, lowest
intermediate balance, and proportionate share. Mr. Davis stated he used direct tracing
to identify the amounts going into the accounts and then utilized the lowest intermediate
balance to identify the assets that continued to exist as separate property. He noted he
did not use the proportional share approach because it assumes the deposited funds
are fungible; in this matter, he maintained, the cash in the accounts was not fungible,
but rather included both marital and separate property.
{¶14} Mr. Davis also testified he used the lowest intermediate balance approach
because it provided for equitable recovery of the assets based on the parties’ intentions;
to wit, appellant’s intention to keep her separate property separate and appellee’s
financial intentions, circumstantially gleaned from his patterns of deposits, non-deposits,
and withdrawals from the family’s operating account(s). Moreover, according to Mr.
Davis, the lowest intermediate balance approach assumes traced assets exist as long
as the account balance does not fall below the amount on deposit. Put differently, when
separate assets were deposited into the joint accounts, marital funds are utilized to pay
expenses first and, if the balance falls below the original amount in marital funds, the
separate property is still traceable, as long as it is not dissipated. Of the $2,242,836 in
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separate property appellant inherited, Mr. Davis was able to trace $1,075,907 of actual
funds located in accounts existing at the date of trial. In addition, Mr. Davis calculated
the traced funds passively accumulated $428,065 in interest, for a total of $1,503,972 of
total traced property, plus interest.
{¶15} Appellee retained Robert Nemeth, a certified public accountant, a certified
valuation analyst, and a certified divorce financial analyst to trace the parties’ separate
property. Mr. Nemeth utilized the proportional share methodology, which follows
transactions in an account and adjusts parties’ separate versus marital assets. The
tables used by Mr. Nemeth were prepared by appellee, at Mr. Nemeth’s direction. Mr.
Nemeth ultimately testified to $300,000 of “misclassifications,” (marital property rather
than appellant’s separate property), which impacted the amount to which the parties
were entitled. Mr. Nemeth concluded that appellant should be awarded $740,551 in
separate property.
{¶16} After the hearing, the magistrate issued her decision. She concluded
appellant should retain the Haywood County, Tennessee property, valued at
$1,856,943, and appellee was entitled to one-half the value of the property, i.e.,
$928,471.50. In so concluding, the magistrate found:
{¶17} It is difficult to believe Defendant that the parties purchased this
property purely as an investment with no consideration as to any
family connection. While Defendant may have agreed to the
purchase for the reasons he stated, instead of purchasing a farm in
Iowa, the parties purchased a property that Plaintiff and her family
visited in her childhood, a property that bordered property owned by
Plaintiff’s parents and later gifted to the parties’ children. There is a
reliable fair market value for the property. By allowing Plaintiff to
retain the property and compensate Defendant his half, the parties
are saving the cost of sale and avoiding potential real estate tax
consequences as well as potential income tax consequences.
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{¶18} The magistrate next concluded appellee should retain the one-sixth
interest in the Carroll County, Ohio property as well as the rents associated with the
same. In support, the magistrate found that had appellant’s parents intended to deed
appellee something different than the one-sixth ownership interest, they could have
attached conditions to the grant. The magistrate determined “[p]laintiff’s parents were
wealthy, tax conscious, and financially savvy. If they had intended to do anything other
than give defendant an interest in the property, they had the knowledge and the means
to do so.”
{¶19} Next, the magistrate determined the traceable amount of separate
property to which appellant was entitled is $1,075,907, the amount traced by appellant’s
expert using the lowest intermediate balance method. She further determined appellant
should be entitled to $428,065 in passive interest based upon the actual rate of return
the separate funds would have generated.
{¶20} The magistrate additionally recommended that “all marital property be
divided equally between the parties with the parties retaining the assets pursuant to
exhibit B.” Exhibit B included tables setting forth marital assets as well as separate
assets that were ostensibly not in dispute at the hearing.
{¶21} Finally, the magistrate determined both parties are wealthy, well educated,
tax conscious, financially savvy, and competent professionals. And no evidence was
adduced to show appellant was unable to access the joint bank account or look out for
her own personal and financial interests. The magistrate thus found both parties are
capable of supporting themselves and no statutory duty of support was breached. The
magistrate also concluded appellee did not commit financial misconduct.
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{¶22} The parties both filed objections to the magistrate’s decision, as well as
supplemental objections. Appellee objected to the amount of traceable separate
property, along with interest, the magistrate awarded appellant; appellee further claimed
the magistrate erred in awarding the Haywood County, Tennessee real property to
appellant. Alternatively, appellant asserted the magistrate committed error in
concluding appellee did not breach his statutory duty of support as well as her decision
that appellee did not commit financial misconduct. Appellant further objected to the
magistrate’s decision that appellee should retain the one-sixth interest in the Carroll
County, Ohio property, including the proceeds derived from the property.
{¶23} After considering the parties’ objections, the trial court modified the
magistrate’s decision and adopted it as modified. In particular, the trial court agreed
that the value of appellant’s separate property is $1,075,907. The court, however,
determined it did not “agree that plaintiff is entitled to interest or appreciation upon the
separate property determined by the lowest intermediate balance approach.” The court
did not expressly disagree with any remaining dispositional recommendation of the
magistrate.
{¶24} Appellant now appeals assigning three errors. She first asserts:
{¶25} “The trial court erred in failing to award appellant the $428,065 of actual
appreciation on her traced separate property in contravention of the magistrate’s
decision.”
{¶26} A party’s “separate property” includes, among other things, “[a]ny gift of
any real or personal property or of an interest in real or personal property that is made
after the date of the marriage and that is proven by clear and convincing evidence to
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have been given to only one spouse.” R.C. 3105.171(A)(6)(a)(vii). Furthermore,
“[p]assive income and appreciation acquired from separate property by one spouse
during the marriage” is separate property. R.C. 3105.171(A)(6)(a)(iii). “Passive income”
is defined as “income acquired other than as a result of the labor, monetary, or in-kind
contribution of either spouse.” R.C. 3105.171(A)(4).
{¶27} In a divorce, “[t]he trial court’s role in dividing the property is to evaluate all
relevant facts and arrive at an equitable division. * * * ‘Equitable need not mean equal.’ *
* * We review a trial court’s division of property for an abuse of discretion.” Hood v.
Hood, 10th Dist. Franklin No. 10AP-999, 2011-Ohio-3704, ¶14, quoting Cherry v.
Cherry, 66 Ohio St.2d 348, 355 (1981).
{¶28} In this case, Mr. Davis, using the lowest intermediate balance method,
traced $1,075,907 of appellant’s separate property that had not been dissipated. He
further testified that the interest earned on the invested property, totaled $428,065 in
investment returns, for a total of $1,503,972. The magistrate accepted the foregoing,
thereby concluding the combined investment returns were passive income, and
awarded appellant $1,503,972. Appellee objected to the magistrate’s recommendation,
challenging Mr. Davis’ use of the lowest intermediate balance approach as well as the
magistrate’s characterization of the interest earned on the separate property as passive
income.
{¶29} In its judgment entry, the trial court concluded it did “not agree” with the
magistrate’s decision recommending appellant receive the interest traced using the
lowest intermediate balance approach. The trial court did not elaborate on its
conclusion. Given the facts and the lack of any basis for the trial court’s decision, we
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conclude the trial court erred in not awarding appellant the interest that was traceable to
her separate property.
{¶30} In his report, Mr. Davis detailed the transfers, deposits and withdrawals
from the couple’s joint accounts as well as their individual accounts. The parties jointly
stipulated these transactions were accurate and properly identified.
{¶31} Mr. Davis’ testimony indicates he calculated the interest or appreciation
based upon the actual rate and the traceable interest, as set forth in his report and his
testimony, i.e., $428,065. In his report, Mr. Davis further stated “[t]he separate property
in this analysis was also accumulating passive income based on investment returns. In
certain instances, because of the amount of subsequent deposits in the account, I did
not calculate the amount of investment income that should be attributed to the separate
property because of the time and cost involved in doing so. Had I made these
computations, my conclusion of the value of separate property would be higher.” This
point illustrates that Mr. Davis’ conclusion regarding the amount of interest to which
appellant was entitled on her separate property was very conservative. Nevertheless,
Mr. Davis’ testified to the amount of actual interest accrued through investments made
with appellant’s separate property and his testimony is supported by figures set forth in
his report.
{¶32} The trial court, in rejecting the magistrate’s decision to award appellant
$428,065 in passive income, merely stated “the court does not agree that plaintiff is
entitled to interest or appreciation upon the separate property determined by the lowest
intermediate balance approach.” The trial court did not support its disagreement with
any rationale and, in light of its acceptance of Mr. Davis’ use of the lowest intermediate
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balance approach to trace appellant’s separate property, the conclusion is
fundamentally arbitrary. There was competent, credible evidence to support the
magistrate’s decision recommending that appellant is entitled to both $1,075,907 in
separate property as well as $428,065 in passive income from the interest returns on
that property. We therefore hold the trial court abused its discretion in failing to award
wife $1,503,972. The trial court’s judgment excluding the $428,065 of passive income
was error and we modify the trial court’s judgment to reflect appellant’s entitlement to
this separate property and affirm the judgment as modified.1
{¶33} Appellant’s first assignment of error has merit.
{¶34} Appellant’s second assignment of error provides:
{¶35} “The trial court erred in failing to find that appellee committed financial
misconduct, which misconduct also violated his statutory duty of support to appellant,
resulting in a financial loss to appellant totaling $1,696,602.”
{¶36} Here appellant argues appellee intentionally failed to support her out of
marital income and assets and, in doing so, committed financial misconduct in
dissipating her separate property to pay marital expenses. She maintains appellee’s
misuse of her separate property to satisfy marital liabilities and expenses amounts to
both a violation of his statutory duty to support as well as financial misconduct.
{¶37} R.C. 3103.03(A) provides: “Each married person must support the
person’s self and spouse out of the person’s property or by the person’s labor. If a
married person is unable to do so, the spouse of the married person must assist in the
support so far as the spouse is able.”
1. It may be useful for the parties to offset the $18,000 appellee is owed from our disposition in Case No.
2019-G-0191 against the $428,065. If the parties elect to offset, appellant would be entitled to $410,065.
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{¶38} Further, as it relates to the division of property in a domestic case,
financial misconduct has a specific meaning. It includes, but is not limited to “the
dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets
* * *.” R.C. 3105.171(E)(4). Financial misconduct connotes some form of wrongdoing,
such as interference with the other spouse’s property rights with a wrongful
scienter. Taub v. Taub, 10th Dist. Franklin No. 08AP-750, 2009-Ohio-2762, ¶33; White
v. White, 5th Dist. Licking No. 15-CA-54, 2016-Ohio-2997, ¶13, citing Bucalo v. Bucalo,
9th Dist. Medina No. 05CA0011-M, 2005-Ohio-6319, ¶23. In cases of financial
misconduct, “typically, the offending spouse * * * either profit[s] from the misconduct or
intentionally defeat[s] the other spouse’s distribution of marital assets.” Taub, supra, at
¶33; quoting Hammond v. Brown, 8th Dist. Cuyahoga No. 67268, 1995 WL 546903
(Sept. 13, 1995); see also Mikhail v. Mikhail, 6th Dist. Lucas No. L-03-1195, 2005-Ohio-
322, ¶28.
{¶39} Appellant testified appellee wielded complete control over financial
matters in the couple’s relationship. And when she would receive checks relating to her
separate property, she would place them in appellee’s mail stack for deposit; she also
testified that, on occasions, such funds would be wire transferred at appellee’s behest.
Regardless, she stated she did not know what appellee did with the funds, even though
both parties had access to the couple’s joint account.
{¶40} Appellant, along with appellee in certain cases, were joint owners of
various properties with appellant’s siblings. In 2006, the couple alerted appellant’s
siblings and advised them that the couple no longer desired to be joint owners.
Appellant maintained appellee forced her to sell the properties and, she testified, he
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was very cruel to her if she did not follow his demands. According to appellant, a
significant rift arose between her and her siblings due to the sale of the properties. After
the sale in 2007 and 2008, the income was deposited by appellee in the couple’s joint
account. Appellant testified she thought appellee was investing her separate funds and
keeping them separate. She further asserted she did not authorize the funds to be used
to pay family expenses. Meanwhile, appellee began depositing his earnings into a
separate savings account. Appellant noted the shift in appellee’s depositing/investing
patterns occurred immediately following a confrontation she had with appellee regarding
seeking a separation or going to counseling.
{¶41} Appellant described her relationship with appellee as one with little power
or control. She stated she was afraid of angering him and thus allowed appellee to
continue to manage the family’s finances without question. She asserted she was
required to wear a worn-out coat and shopped at thrift stores because, despite the
couple’s wealth, appellee would not allow her to spend money.
{¶42} Appellee testified that, prior to 2007, he had significant concerns with
being exposed to individual liability for medical malpractice. Even though he carried
malpractice insurance, he felt his exposure to potential liability would exceed his
coverage. As such, he did not want to place an abundance of marital funds in a joint
account. He therefore deposited most income into appellant’s individual account.
{¶43} Appellee further testified that appellant and her siblings had strained
relationships well prior to the sale of the jointly-owned properties. He asserted, in an
effort to distance themselves from the problems, he and appellant decided to sever
appellant’s (and in some cases his own) interest in the properties by selling them.
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Because this created more tension, in 2006, he became concerned with appellant’s
exposure to lawsuits from her siblings. At or about this time, appellee noted tort reform
became law in Ohio. As such, his worries of exposure to excessive medical-malpractice
liability diminished, but his concern that appellant’s vindictive siblings would file suit
increased. Appellee therefore began transferring assets from appellant’s individual
account to his name with the goal of isolating what he believed to be the couple’s assets
from appellant’s siblings.
{¶44} Appellee admitted that he placed approximately $2,000,000 of appellant’s
separate funds into the joint account or other accounts not in appellant’s name. He also
stated, however, over the years, appellant never gave him any instruction to segregate
these funds. He testified when appellant received the funds, some were wired, at
appellant’s direction, and some were placed by appellant in appellee’s “mail pile” for
deposit. He testified he deposited most of the money into the parties’ joint family
account and, during this timeframe, the family had significant outgoing expenses,
including tuition for three children in private high school, and one child in college. He
emphasized his purpose in investing was not to appropriate appellant’s separate
property, but to maximize returns and avoid loss to funds he characterized as “ours.”
{¶45} In concluding no duty of support was breached and appellant did not
engage in financial misconduct, the magistrate stated there was no evidence
demonstrating appellant could not access the joint account or look out for her own
personal and financial interests. The trial court adopted this recommendation. Although
some significant dissipation occurred, appellee’s testimony regarding his management
of the separate and marital funds, while somewhat misguided occasionally, did not
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reflect a “wrongful scienter” or an attempt to intentionally defeat appellant’s property
distribution. And, while appellant’s testimony suggested appellee sought to benefit
himself by surreptitiously commingling her funds while placing his income in a separate
account, this is not a necessary inference in light of his testimony. We therefore hold
the trial court did not abuse its discretion in concluding appellee neither violated his duty
to support nor engaged in financial misconduct.
{¶46} Appellant’s second assignment of error lacks merit.
{¶47} Appellant’s third assignment of error provides:
{¶48} “The trial court erred in failing to impose a constructive trust upon the one-
sixth interest in the Carroll County, Ohio property titled to appellee, and the associated
rents derived therefrom, for the benefit of the parties’ two daughters and appellant’s
nephew.”
{¶49} Appellant asserts the trial court erred in adopting the magistrate’s decision
awarding the Carroll County property to appellee because the prior owners, appellant’s
parents, lacked the donative intent to create a valid gift. She further contends appellee
stood in a position of confidence with her parents and thus, as a fiduciary and family
member, a presumption of undue influence arose which required appellant to
demonstrate appellee acted free of coercion or fraud.
{¶50} We first point out that appellant does not request this court to negate the
gift because she has some direct or specific interest in the property; rather, she seeks
the gift to be declared invalid and a constructive trust be placed on the interest for the
benefit of the now-surviving grandchildren of her parents. She thus is making an
argument in a representative capacity for non-parties who allegedly have an interest in
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the property deeded to appellee. “[T]he fundamental requirement of standing is that the
party bringing the action must have a personal stake in the outcome of the controversy,
i.e., that it must be the injured party.” Deutsche Bank Natl. Trust Co. v. Holden, 147
Ohio St.3d 85, 2016-Ohio-4603, ¶32. Because appellant is not arguing the property
should be considered an aspect of the marital estate and thus appellant’s ownership
interest would be inequitable in relation to property distribution, it is not clear she has
standing to assert the instant argument, let alone obtain the relief requested. Still,
appellee did not raise the standing issue and thus we shall proceed to address the
merits of appellant’s argument.
{¶51} The elements of a valid inter vivos gift require proof of the following: (1)
the donor must intend to make an immediate gift of the property; (2) the donor must
deliver the property to the donee; and (3) the donor must relinquish all dominion and
control of the property. Streeper v. Myers, 132 Ohio St. 322 (1937), paragraph one of
the syllabus.
{¶52} Initially, there was no evidence that appellee stood in a fiduciary
relationship to appellant’s parents. The record indicates he had a friendly congenial
relationship with them. He testified he would visit appellant’s father weekly when they
lived near the parties. This congenial association, however, does not indicate appellant
stood in a special position of trust and confidence that would place appellee in the
position of a fiduciary. We therefore decline to accept appellant’s argument that
appellee was required to rebut a presumption of undue influence vis-à-vis the gift.
{¶53} Evidence was adduced that the donor, appellant’s mother, was alive at the
time the deed was executed and both of appellant’s parents signed the deed. The
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deed, which listed appellee and five others as grantees, stated the donor has “given,
granted, remised, released, and forever quit-claimed” the property in question to the
grantees. There were no conditions attached to appellant’s interest and the deed
demonstrates the intention of the donor to transfer a present possessory, one-sixth
interest in the property to appellee. Accordingly, the deed facially satisfies each
requirement of a valid inter vivos gift.
{¶54} Appellant cites her sister’s testimony, where she recalled a family meeting
wherein appellee and appellant’s father discussed and allegedly agreed that appellee
would eventually transfer his interest to grandchildren. Appellee, however, stated he
had no recollection of the meeting. She also cites a previous instance in which
appellee acted in the capacity of a placeholder for appellant’s father in a separate piece
of real property. In that instance, appellee acknowledged appellant’s father, after
transferring an interest to appellee in the property, presented him with a quitclaim deed
to sign away his interest., which he did. With respect to the Carroll County property,
appellee testified he was never instructed he was a mere placeholder and the first he
heard of the assertion was the initiation of the divorce proceedings. Moreover,
appellant’s father or mother never approached him and asked him to sign his interest in
the property away to another. Simply because he was arguably a placeholder in a
previous instance does not establish, in light of the language of the deed and the
inaction of appellant’s parents, that he must be a mere placeholder over the Carroll
County property. And appellant’s assertion that the foregoing establishes fraud on
appellee’s behalf assumes what still requires some proof; namely, that the unconditional
language of the deed was actually conditional.
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{¶55} Not surprisingly, the parties take completely opposing positions on this
issue. The trier of fact is in the best position to evaluate the credibility of the testimony
and evidence and adjudicate any conflicts arising therefrom. See Hvamb v.
Mishne, 11th Dist. Geauga No. 2002-G-2418, 2003-Ohio-921, ¶18. On this issue, the
magistrate agreed with appellee’s position that a valid, inter vivos transfer occurred.
The trial court agreed with the magistrate and adopted this conclusion. We cannot say
the trial court abused its discretion in doing so.
{¶56} Appellant’s third assignment of error lacks merit.
{¶57} For the reasons discussed in this opinion, the judgment of the Geauga
County Court of Common Pleas is modified and affirmed as modified.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
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