[Cite as Shupe v. Shupe, 2017-Ohio-5864.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TERRY K. SHUPE : JUDGES:
: Hon. Patricia A. Delaney, P.J
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
EDWARD SHUPE : Case No. 17CA2
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Division,
Case No. 2013-DIV-1149
JUDGMENT: Affirmed/Reversed in Part and
Remanded
DATE OF JUDGMENT: July 17, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES D. LYNCH GEORGE R. KEYSER
Six West Third Street 44 Park Avenue West
Suite 200 Suite 202
Mansfield, OH 44902 Mansfield, OH 44902
Richland County, Case No. 17CA2 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Edward Shupe, appeals the December 16, 2016
final judgment entry decree of divorce of the Court of Common Pleas of Richland
County, Ohio, Domestic Relations Division. Plaintiff-Appellee is Terry Shupe.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On October 14, 1989, appellant and appellee were married. Two children
were born as issue of the marriage. On November 12, 2013, appellee filed a complaint
for divorce. There are no issues involving the minor children.
{¶ 3} Hearings on the division of the parties' real and personal property were
held before a magistrate on June 8, August 10, and 18, and November 4, 2015. By
decision filed January 8, 2016, the magistrate divided the parties' property. Both parties
filed objections. By judgment entry filed November 23, 2016, the trial court denied
appellant's objections, and adopted the magistrate's decision with modifications. A final
judgment entry decree of divorce was filed on December 16, 2016.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 5} "THE TRIAL COURT ERRED BY ORDERING APPELLANT TO PAY
ONE-HALF OF APPELLEE'S ATTORNEY FEES DURING THE ENTIRE TIME HE WAS
ACTING AS HIS OWN ATTORNEY."
II
{¶ 6} "THE TRIAL COURT ERRED IN ITS DETERMINATION THAT
APPELLANT SHALL MAINTAIN OWNERSHIP AGAINST HIS EXPRESS WISHES AND
Richland County, Case No. 17CA2 3
BY ITS ACCEPTANCE OF THE VALUATION OF THE 2008 TOYOTA TUNDRA BY
FRANK FOTI WHICH WAS NOT SUPPORTED BY COMPETENT AND CREDIABLE
(SIC) EVIDENCE."
III
{¶ 7} "THE TRIAL COURT ERRED WHEN IT FOUND THAT THE TWO
CHECKS WRITTEN TO THE PARTIES IN THE AMOUNT OF $13,000 EACH BY
APPELLEE'S GRANDFATHER AND THEN DEPOSITED INTO AN AMERIPRISE
ANNUITY ACCOUNT IN APPELLEE'S NAME ONLY WAS A GIFT TO APPELLEE AND
THEREFORE WAS HER SEPARATYE (SIC) PROPERTY."
IV
{¶ 8} "THE TRIAL COURT ERRED WHEN IT CHARGED APPELLANT WITH
THE FULL $21,000 HE RECEIVED FROM THE SALE OF THE PARTIES' BOAT
PRIOR TO THE SEPARATION OF THE PARTIES AND WHEN IT ONLY GAVE A
CREDIT OF $9,459 FOR THE WRONGFUL WITHDRAWALS MADE BY APPELLEE."
V
{¶ 9} "THE TRIAL COURT ERRED BY NOT MAKING AN EQUAL DIVISION OF
FEDERAL INCOME TAX RETURNS FOR THE 2012, 2013 AND 2014 TAX YEARS."
VI
{¶ 10} "THE TRIAL COURT ERRED BY ORDERING THE DELAYED SALE OF
THREE (3) PARCELS OF REAL ESTATE OWNED BY THE PARTIES UNTIL THE
YOUNGEST CHILD WAS EMANCIPATED FOR CHILD SUPPORT PURPOSES."
Richland County, Case No. 17CA2 4
VII
{¶ 11} "THE TRIAL COURT ERRED IN ITS DETERMINATION TO DENY
APPELLANT'S REQUEST FOR ONE-HALF OF THE PHOTOGRAPHS OF THE
FAMILY AND CHILDREN."
VIII
{¶ 12} "THE TRIAL COURT ERRED IN ITS AWARD OF THE GO-CARTS AND
THE ATV 4 WHEELERS TO THE APPELLEE WHEN THE APPELLEE HAD NOT
REQUESTED THAT SHE BE AWARDED THOSE ITEMS."
IX
{¶ 13} "THE TRIAL COURT ERRED WHEN HE WAS NOT GIVEN CREDIT FOR
HIS PAYMENT ABOVE AND BEYOND THE MINIMUM PAYMENTS ON THE CHECK
LINE ACCOUNTS ORDERED UNDER THE TEMPORARY ORDERS."
STANDARDS OF REVIEW, MARITAL AND SEPARATE PROPERTY
{¶ 14} As stated by this court in Cooper v. Cooper, 5th Dist. Licking No. 14 CA
100, 2015-Ohio-4048, ¶ 45:
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." The party to a divorce action
seeking to establish that an asset or portion of an asset is separate
Richland County, Case No. 17CA2 5
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, 5th
Dist. Coshocton 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). We reiterate that as an appellate court, we generally
review the overall appropriateness of the trial court's property division in
divorce proceedings under an abuse of discretion standard. Cherry [v.
Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981)], supra.
{¶ 15} However, when a party claims the separate property is a gift, the burden
becomes clear and convincing evidence [R.C. 3105.171(A)(6)(a)(vii)]:
"Separate property" means all real and personal property and any
interest in real or personal property that is found by the court to be any of
the following:
(vii) Any 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 have been given to only one
spouse.
Richland County, Case No. 17CA2 6
{¶ 16} Clear and convincing evidence is that evidence "which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d
613 (1985). "Where the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the trier of
facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross at
477. Sufficiency of the evidence "is a test of adequacy. Whether the evidence is legally
sufficient to sustain a verdict [decision] is a question of law." State v. Thompkins, 78
Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 17} R.C. 3105.171(A)(3)(a) defines "marital property" as following in pertinent
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.
Richland County, Case No. 17CA2 7
{¶ 18} R.C. 3105.171(C)(1) 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 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.
{¶ 19} 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, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 20} We will address the assignments of error under the applicable standards
and the cited statutes.
I
{¶ 21} Appellant claims the trial court erred in ordering him to pay $4,790.00 for
one-half of appellee's attorney fees during the time between July 31, 2014 and March 3,
2015, when he was not represented by counsel. We agree in part.
{¶ 22} R.C. 3105.73(A) states the following:
In an action for divorce, dissolution, legal separation, or annulment
of marriage or an appeal of that action, a court may award all or part of
Richland County, Case No. 17CA2 8
reasonable attorney's fees and litigation expenses to either party if the
court finds the award equitable. In determining whether an award is
equitable, the court may consider the parties' marital assets and income,
any award of temporary spousal support, the conduct of the parties, and
any other relevant factors the court deems appropriate.
{¶ 23} As explained by this court in Dotts v. Schaefer, 5th Dist. Tuscarawas No.
2014 AP 06 0022, 2015-Ohio-782, ¶ 17:
The resolution of a request for attorney fees is vested in the sound
discretion of the trial court and will not be overturned upon review absent a
showing of an abuse of discretion. Bagnola v. Bagnola, 5th Dist. Stark
No. 2004CA00151, 2004-Ohio-7286 [2004 WL 3090245], ¶ 36. While the
trial court has discretion in determining the amount of attorney fees, the
court must base its decision on evidence showing the reasonableness of
the time spent on the matter and the hourly rate. Id. Where the amount of
an attorney's time and work is evident to the trier of fact, an award of
attorney fees, even in the absence of specific evidence to support the
amount, is not an abuse of discretion. Hawk v. Hawk, 5th Dist.
Tuscarawas No. 2002AP040024, 2002-Ohio-4384 [2002 WL 1969845], ¶
28.
Richland County, Case No. 17CA2 9
{¶ 24} In her post-trial brief filed November 25, 2015, appellee at 12-13
requested an award of attorney fees, arguing appellant failed to provide requested
discovery forcing her to file a motion to compel, and appellant's "behavior in the final
hearing, among other hearings, has led to an unnecessary amount of time being
exhausted on this case that would have otherwise never have been utilized." Appellee
concluded by requesting attorney fees incurred while appellant was a pro se litigant
from July 31, 2014 to March 3, 2015. This time period had nothing to do with
appellant's "behavior in the final hearing, among other hearings" other than the hearing
on the motion to compel held on February 11, 2015. The trial court granted appellee's
motion to compel on February 13, 2015.
{¶ 25} In her January 8, 2016 decision, the magistrate at 30 found appellant did
not comply with discovery requests, resulting in appellee having to file a motion to
compel and incur "additional attorney's fees associated with the preparation and
prosecution of that motion." The magistrate at 31 found it was equitable to award
appellee one-half of the "reasonable attorney's fees" as evidenced in Plaintiff's Exhibit
6, and awarded appellee $4,790.00.
{¶ 26} In his objections filed January 22, 2016 at 4, appellant objected to this
amount, noting the combined time for the two hearings on the issue was less than four
hours. In his July 8, 2016 amended supplementary objections, appellant argued the
following at 6:
In any event the amount of work that Attorney Naumoff spent
during that time Defendant was not represented was not apparent. The
Richland County, Case No. 17CA2 10
Magistrate has an idea of how long the hearing lasted on February 11,
2015. But the Magistrate cannot know about work performed out of court.
There was no stipulation or evidence that the work was done, that the
work was necessary because of Defendant's failure to abide by court
order, or that the charges were reasonable.
The Plaintiff could have had another Attorney review the work and
testify concerning the reasonableness and necessity of the work. Counsel
for Plaintiff submitted a bill without explanation from herself or another
Attorney who could have testified as an expert.
{¶ 27} In her January 29, 2016 response to appellant's objections, appellee
stated at 2: "The evidence presented will show this Court that Defendant was difficult,
non-compliant, and filing frivolous motions while being a pro se litigant."
{¶ 28} In its November 23, 2016 judgment entry denying the objection, the trial
court stated the following at 2:
The amount of work and time spent by Plaintiff's counsel during the
time Mr. Shupe was unrepresented and during the pendency of the
divorce action was apparent as set forth in Plaintiff's Exhibit 6. Two
hundred dollars ($200) per hour is a reasonable charge. While it would
have been better to have had expert testimony concerning the
reasonableness and necessity of Attorney Naumoff's work, the Court finds
that Attorney Naumoff's fees are reasonable and were necessary.
Richland County, Case No. 17CA2 11
Defendant's argument is not well-taken. The Court further finds that the
Magistrate could have properly applied Ohio Revised Code section
3105.73 to the facts and found it equitable to award Plaintiff attorney's
fees in the amount of $17,075.
{¶ 29} A review of the record from July 31, 2104 to March 3, 2015 indicates
appellant filed the following pro se motions (followed with disposition):
{¶ 30} 1) August 15, 2104 – Motion to Modify Parenting Time. Failed to serve
guardian ad litem.
{¶ 31} 2) September 16, 2014 – Refiled Motion to Modify Parenting Time. Motion
granted on January 15, 2015.
{¶ 32} 3) November 21, 2014 – Motion to Compel. Motion denied on December
30, 2014, although appellee was instructed to produce and provide specific documents
to appellant.
{¶ 33} 4) February 3, 2015 – Motion to Modify Parenting Time. Motion granted
on February 13, 2015.
{¶ 34} 5) February 11, 2015 – Motion to Compel Absolute Auction. Subsequently
withdrawn at the June 8, 2015 hearing. T. at 31.
{¶ 35} In reviewing this list, we do not find appellant filed "frivolous motions while
being a pro se litigant." In reading the decisions of both the magistrate and the trial
court, the attorney fees were awarded to appellee because of appellant's conduct
surrounding the motion to compel.
Richland County, Case No. 17CA2 12
{¶ 36} We find the trial court did not abuse its discretion in awarding attorney
fees for the time spent on the preparation and prosecution of the motion to compel
including hearing time, as well as the time spent on attempting to resolve the discovery
matter via emails to appellant on December 19, 2014, and January 9, 13, and 20, 2015,
as outlined in the motion to compel filed January 21, 2015. However, we find the trial
court abused its discretion in awarding attorney fees to appellee for the entire time
appellant was pro se.
{¶ 37} A review of Plaintiff's Exhibit 6 does not reveal what charges are
attributable to the discovery issue and the motion to compel. We note, as did the trial
court, no testimony was presented as to the reasonableness of the charges. However,
appellant did not object to the admission of the exhibit nor request a hearing on the
reasonableness of the fees. T. at 166-168, 187-188.
{¶ 38} Upon review, we remand this issue to the trial court to determine
appellee's attorney fees incurred because of the discovery issue/motion to compel and
award appellee that amount.
{¶ 39} Assignment of Error I is granted in part.
II
{¶ 40} Appellant claims the trial court erred in awarding him the Toyota Tundra
against his express wishes and valuing the vehicle at $21,550.00. We agree in part.
{¶ 41} The 2008 Tundra was purchased new in 2009 for $26,000.00. T. at 44-
45. In March 2014, the parties' agreed appraiser, Frank Foti, appraised the vehicle at
$21,550.00. T. at 107; Plaintiff's Exhibit 2. He testified he used the NADA guide to
Richland County, Case No. 17CA2 13
appraise the Tundra and it took him ten minutes to appraise the vehicle. T. at 107, 115.
He did not note any "detractions." T. at 111.
{¶ 42} A second appraisal was conducted by Michael Augustine in February
2015. T. at 120; Defendant's Exhibit W. Mr. Augustine appraised the vehicle at
$12,400.00. Id. He used the NADA guide and took into consideration the repairs that
were needed on the vehicle. Id. Those repairs included dents to the front and rear
bumpers, removal of the lettering, replacement of the right rear mirror, tailgate dent
damage, loss of paint in the bed, and cleaning of the interior. T. at 120-121.
{¶ 43} A third appraisal was conducted by David Paone in June 2015. T. at 175-
176; Defendant's Exhibit J. Mr. Paone appraised the vehicle at $8,500.00. T. at 175.
He noted the vehicle was in "rough" condition, needing paint, tires, interior work, and
front and rear bumper repairs to be in a sellable condition. T. at 176. The vehicle
"needs body repair, the interior is rough, the tires are bad, the passenger mirror is
broken, the front and rear bumpers are damaged, there is rust in the bed and tailgate,
the brakes need replaced, the vehicle needs repainted, and that it is missing the original
front wheel." Id.
{¶ 44} A fourth appraisal was conducted by Chris Theiss in August 2015. T. at
377; Defendant's Exhibit XXX. Mr. Theiss appraised the vehicle at $7,200.00. T. at
376. He used the NADA guide to start and worked from there. T. at 375. He noted the
vehicle was in "horrible" condition and since it was used as a work truck, it was "well
used." T. at 378.
{¶ 45} In her January 8, 2016 decision, the magistrate at 14-15 accepted Mr.
Foti's appraisal, stating it was based "on his NADA research and inspection of the
Richland County, Case No. 17CA2 14
vehicle," and noting he "did not note body damage or wear and tear to the interior and
exterior of the vehicle. He did not notice that it was missing two hubcaps and that one
wheel had been replaced." The magistrate also stated the "value was determined by
Frank Foti whom the parties agreed to use to appraise the property. The Court further
finds that Defendant 'abused' the vehicle and intentionally caused a decrease in the
value of the same."
{¶ 46} In his objections filed January 22, 2016, appellant objected to this
valuation.
{¶ 47} In its November 23, 2016 judgment entry denying the objection, the trial
court stated the following at 1-2:
Defendant is not entitled to create the value of a piece of property
by intentionally, recklessly or neglectfully causing a decrease in the value
of the same; and then performing appraisal after appraisal until the value
of an item suits his purposes. The Magistrate properly found that the 2008
Toyota Tundra has a value of $21,550. In addition, as argued by Plaintiff,
while one of the witnesses testified that the truck 'could' need to be
repainted if the business sticker were removed, that is a moot point
because Defendant continues to use it as his business truck.
{¶ 48} Although appellant stipulated to Mr. Foti as the parties' appraiser, he did
not stipulate or agree to his valuation. February 11, 2015 T. at 30-31; T. at 499.
Appellant opined Mr. Foti "did a very incompetent, incomplete job." T. at 503. He was
Richland County, Case No. 17CA2 15
present when Mr. Foti conducted the appraisal. T. at 500. Appellant testified Mr. Foti
"was never within fifty feet of my truck," he never walked around the truck, he did not
look inside it, he did not drive it, he did not note its condition, he did not write the VIN
number down, and he did not certify its mileage. T. at 502. Instead, Mr. Foti relied on
appellant to tell him the mileage. Id. Appellant described the truck as "a work truck. It's
an eight-year-old, 92,000 mile, beat up, base model, work truck." T. at 503.
{¶ 49} Mr. Foti testified he looked at the vehicle and looked inside to obtain the
mileage, however, when asked if appellant told him the mileage, he admitted that yes,
"[i]t is possible." T. at 111. He had no idea of the interior color. Id. He did not notice
anything about the condition of the vehicle because he did not have anything in his
notes to indicate a "detraction," including the fact that it had lettering on it advertising
"Bellville Construction." T. at 111-112. He admitted there would be an expense
involved with removing the lettering. T. at 116-117. He stated it took him ten minutes to
appraise the vehicle. T. at 115.
{¶ 50} The trial court had before it four appraisals, ranging from $21,550.00 to
$7,200.00, and accepted the $21,550.00 appraisal. It is hard to fathom how a 2008
Toyota Tundra pickup truck used as a work vehicle in a construction business could
have depreciated in value by only $4,450.00 by 2014. Mr. Foti admitted to spending ten
minutes on the appraisal. He made no notes on the condition of the vehicle even
though it contained lettering that he admitted would involve an expense to remove. He
more than likely did not even look inside the vehicle, as he admitted it was possible that
appellant just told him the mileage without verifying the mileage for himself.
Richland County, Case No. 17CA2 16
{¶ 51} There is a great disparity between the first appraisal of $21,550.00 and the
last appraisal of $7,200.00. Given the testimony presented, we find accepting the first
appraisal of $21,550.00 to be an abuse of discretion. We note the $7,200.00 appraisal
was conducted in August 2015, after the hearing commenced in June 2015. Rejecting
these two appraisals leaves the February 2015 appraisal of $12,400.00 and the June
2015 appraisal of $8,500.00. The February 2015 appraisal was conducted less than a
year after the first appraisal, and gave appellee the opportunity to obtain her own
appraisal of the vehicle prior to the commencement of the June 8, 2015 hearing if she
so chose, which she did not. We hereby order the trial court to adopt the $12,400.00
valuation for the 2008 Toyota Tundra.
{¶ 52} We do not find the trial court abused its discretion in awarding the Tundra
to appellant "against his express wishes." If appellant does not want the vehicle, he is
free to sell it and pocket the money. If appellant did indeed "intentionally, recklessly or
neglectfully" cause a decrease in the value of the vehicle as noted by the trial court, his
efforts will be realized when he goes to sell the vehicle.
{¶ 53} Assignment of Error II is granted in part.
III
{¶ 54} Appellant claims the trial court erred in determining two $13,000.00
checks from appellee's grandfather were gifts to appellee and were her separate
property. We agree.
{¶ 55} Appellee testified her grandfather gifted money "at various different times.
Some of it has been for the kids. Some of it was to me. There was one time that he
gifted us $10,000 and I have a statement showing that it was to put towards the
Richland County, Case No. 17CA2 17
mortgage on the house" in 2001. T. at 140-141, 255. Appellee had an Ameriprise
annuity account in her name only with a balance of $7,495.16. T. at 160-161; Plaintiff's
Exhibit 5. Appellee believed the account was not a joint asset because the money
therein was gifted to her by her grandfather. T. at 161. In 2007, appellee's grandfather
wrote two separate checks for $13,000.00 each, one made out to appellee and one
made payable to the order of appellant. T. at 253-254, 591-592. The two checks were
placed into the Ameriprise account. T. at 254. Appellee explained that her grandfather
wrote two separate checks "because of tax purposes." T. at 161. Her grandfather was
told to "pass out" some of his money "so that his death tax wouldn't be so high." T. at
254. She withdrew $10,000.00 out of the account in March 2012 and another $7,000.00
in June/July 2012 to help pay bills. T. at 254, 285-286. Appellant moved out of the
marital residence on July 27, 2012. T. at 27-28, 229. She withdrew $6,300.00 out of
the account in 2013 and $1,000.00 in 2014. T. at 227-228, 240-241, 254; Defendant's
Exhibits E and G.
{¶ 56} Appellant testified he believed the Ameriprise account to be a joint
account, although he admitted his name was not on it. T. at 63. He explained the
financial advisor told them the way the account was set up, it could only be in one name
so they put it in appellee's name. T. at 63-64, 592. They opened the account together
with the two $13,000.00 checks. T. at 468. Appellant considered his check to be a gift
to him from appellee's grandfather. Id. Even though he placed his check in the annuity
containing appellee's name only, he did not intend for the check to be a gift to her, but
"an equal partnership." T. at 469, 592. Appellant would participate in meetings with the
financial advisor "about the state of the account, how it was performing, where we
Richland County, Case No. 17CA2 18
wanted to shift and move money for better performance and that went on for years and
years." T. at 469.
{¶ 57} In her decision filed January 8, 2016, the magistrate at 25 determined
appellee "established by clear and convincing evidence that the funds in the Ameriprise
Annuity account were gifted to her by her grandfather." The magistrate noted that while
appellant argued the checks were intended as gifts to both of them, "the Court does not
find this claim to be credible based on its own observation of the parties' testimony and
demeanor in the courtroom." Id. The magistrate explained the following (Id.):
With respect to the funds in the Ameriprise Annuity, although there
was evidence that Plaintiff's grandfather wrote Plaintiff and Defendant
each a check, the Court finds Plaintiff's testimony that this was done solely
for tax reasons to be credible. The funds from both checks were
deposited into the annuity account established only in Plaintiff's name.
Defendant claimed this was because they were not permitted to have two
names on the account. If that were the case and the funds were truly
intended as a gift for him, Defendant could have set up his own annuity
account to deposit the check in his name. He did not do so.
{¶ 58} In his January 22, 2016 objections at 6, appellant objected to this
determination, arguing the issuance of two separate checks "for the purpose of not
having to file a gift tax return does not negate the presumption that the property was
marital."
Richland County, Case No. 17CA2 19
{¶ 59} In its November 23, 2016 judgment entry denying the objection, the trial
court found appellee's explanation to be credible and appellant's not credible. Further,
the trial court stated the following at 3:
In addition, as Plaintiff argues, by Defendant's own actions of
depositing the check in his name into an annuity in Plaintiff's name only,
he demonstrates both the intent of Plaintiff's grandfather, and his own
understanding that the gift was intended to be Plaintiff's. The Magistrate
properly found that Plaintiff proved, by clear and convincing evidence, that
the checks were a gift from her grandfather to her and that the Ameriprise
annuity account is her separate property.
{¶ 60} We acknowledge a trial court is vested with determining the credibility of
the witnesses. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273
(1984). However, the standard is clear and convincing evidence. We do not find the
trial court had sufficient evidence before it to satisfy the requisite degree of proof of
clear and convincing evidence: a firm belief or conviction that the grandfather's gifts of a
$13,000.00 check to appellee and a $13,000.00 check made payable to appellant were
intended to be appellee's separate property. The grandfather had a history of gifting
money to appellee that was intended to be used as marital property e.g. $10,000.00
toward the mortgage of the marital real estate.
{¶ 61} Upon review, we find the trial court erred in designating the two
$13,000.00 checks to be appellee's separate property. This matter is remanded to the
Richland County, Case No. 17CA2 20
trial court for a determination on the division of the monies deposited into ($26,000.00)
and remaining ($7,495.16) in the Ameriprise account given that withdrawals were made
by appellee to pay living expenses before ($17,000.00) and after ($7,300.00) appellant
moved out of the marital residence.
{¶ 62} Assignment of Error III is granted.
IV
{¶ 63} Appellant claims the trial court erred in assigning him with the full
$21,000.00 he received from selling the parties' boat prior to moving out, especially
since appellee was not held responsible for borrowing against the parties' line of credit
prior to the filing of the complaint. We disagree.
{¶ 64} Appellant acknowledged that he sold the boat in July 2012, about a month
before he left the marital residence. T. at 428-429. At the time he filled out his financial
affidavit in December 2013 a month after the divorce complaint was filed, he thought he
had approximately $11,100.00 left from the sale. T. at 429. He placed $2,000.00 into
the bank to cover overdrawn living expenses, and then deposited $8,100.00 into a bank
account and kept $1,000.00 for emergencies. T. at 429, 432. In the end, "it all got used
for basically living expenses." T. at 428, 432-433.
{¶ 65} In her decision filed January 8, 2016, the magistrate at 26-27 determined
the proceeds of the sale of the boat ($21,000.00) to be marital property, and then at 28,
assigned $9,100.00 to appellant representing the remaining proceeds from the sale of
the boat, noting appellant had $11,100.00 at the time of his financial affidavit and then
used $2,000.00 to pay living expenses.
Richland County, Case No. 17CA2 21
{¶ 66} In her January 29, 2016 objections, appellee objected to this amount,
arguing appellant should have been assigned the entire $21,000.00. Appellant did not
respond to this objection.
{¶ 67} In its November 23, 2016 judgment entry granting the objection, the trial
court stated at 7: "Plaintiff's objection is well-taken and the entire $21,000 is allocated to
Defendant," without explanation.
{¶ 68} Appellant sold the boat, a marital asset, prior to moving out of the home.
Instead of giving appellee half of the proceeds ($10,500.00) or paying down marital
debt, appellant kept the entire amount and spent the money on his own living expenses.
In his post-trial brief file November 24, 2015, appellant acknowledged at 10 the sum of
$21,000.00 for selling the boat should be charged to him.
{¶ 69} Upon review, we do not find the trial court abused its discretion in
allocating the entire $21,000.00 to appellant.
{¶ 70} Appellant argues it is unfair to burden him with the entire $21,000.00
amount that he used for living expenses when the trial court did not assign to appellee
an amount for her improper payments on the home equity line of credit that she used for
her living expenses. Appellant's Brief at 19. Appellant argues: "It was inequitable for
the court to use the date of separation (July 2012) for the valuation date for the sale of
the boat proceeds and the date of filing (Dec 18, 2013) for the date to determine the
beginning date to evaluate her wrongful withdrawal of principal payments for the equity
line of credit." Id.
{¶ 71} In the temporary orders filed December 18, 2013, appellee was ordered to
pay "[a]ll expenses associated with the marital residence." Appellee testified after
Richland County, Case No. 17CA2 22
appellant moved out, she made payments on the home equity line of credit from a
checking account, then withdrew the principal amount from the home equity line of
credit and deposited it back into the checking account, paying nothing but interest on
the line of credit. T. at 142, 242-243.
{¶ 72} In her decision filed January 8, 2016, the magistrate at 22 determined:
"From December 18, 2013, through the date of the final hearing, Defendant proved that
Plaintiff transferred the sum of $9,459 from the parties' line of credit. The amount of the
payment to be made by Defendant to Plaintiff to equalize the property division is
reduced by that amount."
{¶ 73} In his July 8, 2016 amended supplemental objections at 11, appellant
argued "he should have been granted a credit from withdrawals of principal that Plaintiff
made from July 2012 to the final hearing of this case. That sum is an (sic) excess of
$17,800.00."
{¶ 74} In its November 23, 2016 judgment entry denying the objection, the trial
court found the following at 4-5:
Defendant next objects to the Magistrate using the date of
temporary orders as the beginning date for determining Plaintiff's
withdrawal of principal from the line of credit. He believes that because he
is being held responsible for selling marital property prior to the filing of the
complaint, Plaintiff should be responsible for borrowing against the line of
credit prior to the filing of the complaint. Defendant's objection is not well-
taken. As Plaintiff argues, prior to the temporary orders, she paid the
Richland County, Case No. 17CA2 23
entire monthly amount due on the equity line because that was required,
and then withdrew everything except the monthly interest. She did this
because she felt personally compelled to pay the interest on the loan
when Defendant left the marital residence, and many financial
commitments fell solely to her. Plaintiff did not want the parties' credit to
be harmed.
{¶ 75} Appellee was not required to make payments on the home equity line of
credit until ordered to do so by the trial court in the temporary orders filed December 18,
2013. Appellant in effect is arguing appellee should have made payments on the home
equity line of credit, a marital debt, prior to the temporary orders, although he chose not
to do so with the proceeds from the sale of the marital boat. Because appellee made
improper payments after the temporary orders, the trial court correctly credited appellant
with the proper amount.
{¶ 76} Upon review, we find the trial court did not abuse its discretion in using the
date of the temporary orders for the valuation date of the improper payments.
{¶ 77} Assignment of Error IV is denied.
V
{¶ 78} Appellant claims the trial court erred in not making an equitable division of
the parties' federal income tax refunds for 2012, 2013, and 2014. We disagree.
{¶ 79} During the hearing, appellant testified he received a total of $4,179.00 in
tax refunds for the three years and appellee received $13,165.00. T. at 474;
Defendant's Exhibit HH.
Richland County, Case No. 17CA2 24
{¶ 80} There is no disposition in the magistrate's decision in regard to the tax
refunds.
{¶ 81} In his July 8, 2016 amended supplemental objections at 8, appellant
objected, arguing the magistrate erred in not making an equitable division of the tax
refunds.
{¶ 82} In its November 23, 2016 judgment entry denying the objection, the trial
court stated the following at 6:
The Court finds that it would be inequitable to divide the tax refunds
equally between the parties and, therefore, divides the refunds equitably.
As Plaintiff argues, Defendant was found to be voluntarily
unemployed/underemployed by the Magistrate. As such, an equal division
of the 2012, 2013 and 2014 tax refunds would be inequitable. Plaintiff is
awarded the tax refunds that she received for the tax years 2012, 2013
and 2014; and Defendant is awarded the tax refunds he received for the
same tax years.
{¶ 83} We note appellant did not contest the finding of being voluntarily
unemployed/underemployed.
{¶ 84} Upon review, we find the trial court did not abuse its discretion in its
allocation of the tax refunds for the years 2012, 2013, and 2014.
{¶ 85} Assignment of Error V is denied.
Richland County, Case No. 17CA2 25
VI
{¶ 86} Appellant claims the trial court erred in delaying the sale of the three
parcels of real estate owned by the parties until the youngest child was emancipated.
We agree in part.
{¶ 87} The parties own three parcels of real estate; one is a one acre parcel
containing the home and a storage barn, the second is a one acre vacant parcel, and
the third is a half-acre parcel containing a shop building and a gravel parking area.
Appellant's appraiser, Ralph Brown, appraised the property in November 2012 and
assigned a value of $245,000.00 for the whole. T. at 308, 311, 329; Defendant's Exhibit
ZZZ. Appellee's appraiser, Sarah Howard, appraised the property in April 2015 and
assigned a value of $195,000.00 for the whole. T. at 73, 95; Plaintiff's Exhibit 1. At
appellant's request, a third appraisal was conducted by Stan Baumberger in May 2015.
T. at 346. Mr. Baumberger appraised all three parcels separately. T. at 344-345. He
explained they have separate legal descriptions and are surveyed separately. T. at
345. He appraised the parcel with the home and storage barn at $214,000.00, the
parcel with the shop building at $65,000.00, and the vacant parcel at $11,000.00. T. at
351, 354, 355; Defendant's Exhibit DD. In her decision filed January 8, 2016, the
magistrate at 29 found "Mr. Baumberger's appraisal most persuasive."
{¶ 88} Appellee desired to retain the parcels because it is where the children
grew up and one child is still living in the home. T. at 133-134. Appellant desired to
retain the parcels because he built the home, barn, and shop himself, all "built for a
purpose and it was built for a reason and I need that." T. at 26, 461. He stated he was
ready, willing, and able to purchase the parcels with the financial backing from his
Richland County, Case No. 17CA2 26
brother. T. at 199, 204, 460, 465. In fact, appellant was willing to pay the full values of
the parcels as appraised in the Baumberger appraisal for a total amount of
$290,000.00. T. at 460-461, 527. He felt the parcels were worth the amounts, and not
having access to the shop building was "crippling" his business. T. at 461. Appellant
used the shop between July 2012 and November 2013, after which appellee changed
the locks on the shop and he was denied access. T. at 20-21, 496-497, 571-572. He
admitted to taking tools from the shop and selling them to pay bills; however, he "sold
tools that I didn't need that weren't critical and I kept the core stuff." T. at 531, 533-534,
570, 572. He was currently renting shop space from his father. T. at 21-22. He
continued to work the home shows and set up a display at the Bellville Fair to drum up
business, but was unable to do the work "because I don't have the facilities." T. at 466-
467, 576. He stated the loss of his shop "has had a substantial impact on my
business." T. at 508. Appellant wanted the shop building to "earn a living, to build
things, construct things, store things, have a business headquarters." T. at 464-465.
He stated the parcels were "crucial to being able to provide for myself and for her." T.
at 528. Appellee was using the shop building for added income, renting it out to family
and third-parties for storage purposes. T. at 263.
{¶ 89} In her decision filed January 8, 2016, the magistrate at 28-29 found
appellant's claimed need for the marital residence to be not credible, stating the
following:
[T]here was evidence that he sold the backhoe and many tools
used for his construction business during the pendency of this case and
Richland County, Case No. 17CA2 27
he has not had a reasonable profit from his construction business since
2006 or 2007. Neither party is able to afford the marital real estate without
the assistance of some other person. The parties' remaining minor child is
nearly sixteen years of age and resides in the residence with Plaintiff.
{¶ 90} The magistrate ordered that upon "the child emancipating for child support
purposes," the parties shall list the real estate for $290,000.00 and sell the real estate
for the "best price obtainable." "All offers shall be conveyed to both parties. Neither
party shall refuse any reasonable offer." Until the real estate is sold, the magistrate
granted appellee exclusive use of the property, and ordered continuing jurisdiction over
the sale of the real property. This same language is included in the Final Judgment
Entry Decree of Divorce filed December 16, 2016 at 9.
{¶ 91} In his January 22, 2016 objections at 7, appellant objected to this
determination, arguing the real estate should be sold immediately. He noted he has
offered to purchase the property for the full Baumberger appraisal price for each parcel,
and was willing to rent the house and storage barn to appellee until the child is
emancipated.
{¶ 92} In its November 23, 2016 judgment entry denying the objection, the trial
court stated the following at 5-6:
Defendant next objects to the Magistrate not ordering the real
estate located at * * * to be sold immediately. Defendant's objection is not
well-taken. In fact, Defendant admits that the Court has the power to
Richland County, Case No. 17CA2 28
delay the sale until the parties' child is emancipated. Defendant argues
that "it was crippling to his business not to have access to his shop." His
argument is not well-taken. As Defendant himself pointed out, the parties'
adjusted gross income was only $14,040 in 2011, and his adjusted gross
income was only $13,019 in 2012. Defendant had full access to his shop
both years. In addition, Defendant's adjusted gross income was only
$11,516 in 2013. While Plaintiff was granted exclusive use of the marital
residence, including the shop, on November 12, 2013; Defendant did not
even know that his use of the shop was restricted until February of 2014.
{¶ 93} The trial court clarified that the real estate could be sold "in one or more
parcels."
{¶ 94} We do not find the trial court abused its discretion in awarding appellee
exclusive use of the parcel with the home and storage barn until the child is
emancipated. However, we find the trial court abused its discretion in denying
appellant's request for the immediate sale of the parcel with the shop building.
Appellant has made a full offer to purchase the parcel. He or a third party is entitled to
purchase the parcel at the "best price obtainable." The vacant parcel remains with the
home and storage barn parcel; however, appellant may access the driveway on the
parcel.
{¶ 95} Assignment of Error VI is granted in part.
Richland County, Case No. 17CA2 29
VII
{¶ 96} Appellant claims the trial court erred in denying his request for one-half of
the family photographs. We disagree.
{¶ 97} In her decision filed January 8, 2016, the magistrate at 38 ordered
appellee to cooperate with appellant "to obtain duplicates of any of the pictures that he
desires. The parties shall equally divide the cost of obtaining duplicates."
{¶ 98} In his July 8, 2016 amended supplemental objections at 12, appellant
objected to this order.
{¶ 99} In its November 23, 2016 judgment entry denying the objection, the trial
court noted at 7, the parties "entered into a stipulation regarding the division of
photographs of the children and the same is reflected in the Magistrate's decision."
{¶ 100} Upon review, we find the trial court did not abuse its discretion in regard
to the family photographs.
{¶ 101} Assignment of Error VII is denied.
VIII
{¶ 102} Appellant claims the trial court erred in awarding a go-cart and two ATVs
to appellee. We disagree.
{¶ 103} Appellee testified the items belong to the children and the ATVs were
gifted to them. T. at 150. Appellant testified the items were purchased for the children's
use, but they had not used the items in years. T. at 54, 519, 521.
{¶ 104} In his objections filed January 22, 2016, appellant objected to this
determination, although he acknowledged understanding that the award of those items
was discretionary.
Richland County, Case No. 17CA2 30
{¶ 105} In its November 23, 2016 judgment entry denying the objection, the trial
court noted the award of these items is discretionary. As for appellant's argument that
the children do not use the items, the trial court found at 5, appellant "left the marital
residence and has not been around the children while at the residence for any
significant period of time since."
{¶ 106} As we are reminded by the Supreme Court in Briganti v. Briganti, 9 Ohio
St.3d 220, 459 N.E.2d 896 (1984), piece meal appeals are not favored.
{¶ 107} Upon review, we do not find the trial court abused its discretion in
awarding the go-cart and two ATVs to appellee.
{¶ 108} Assignment of Error VIII is denied.
IX
{¶ 109} Appellant claims the trial court erred in not giving him credit for extra
payments he made to the check line accounts under the temporary orders. We
disagree.
{¶ 110} In his July 8, 2016 amended supplemental objections at 12, appellant
argued the following: "Defendant was ordered to make payments to Two (2) separate
check lines in the Temporary Order. Both check lines were paid off by the Defendant.
He should be given a credit of $1,800.00 for these payments."
{¶ 111} There is no disposition in the magistrate's decision in regard to these
check lines.
{¶ 112} In its November 23, 2016 judgment entry, the trial court denied the
objection without explanation.
Richland County, Case No. 17CA2 31
{¶ 113} It is unclear what "check lines" appellant is referring to. In the temporary
orders filed December 18, 2013, appellant was ordered to pay "First Knox checking
overdraft loans." In his appellate brief at 27, appellant cited his testimony at 551
wherein he stated: "I have been ordered by the Court to pay on the check lines and the
beginning balance of those was $990 on each and I have currently paid down the
amounts in excess of what the Court said. And I have the amounts paid down to - - one
of the accounts is 200 and something dollars and the other is 300 and something
dollars." Appellant does not cite to any evidence on the accounts, what he was required
to pay, and what he actually did pay.
{¶ 114} Under the temporary orders, appellant was ordered to pay on the
accounts. Appellant cannot now claim a credit for amounts he voluntarily "overpaid"
and for which he has presented no evidence thereof.
{¶ 115} Upon review, we find the trial court did not abuse its discretion in not
giving him credit for extra payments he made to the check line accounts.
{¶ 116} Assignment of Error IX is denied.
Richland County, Case No. 17CA2 32
{¶ 117} The judgment of the Court of Common Pleas of Richland County, Ohio,
Domestic Relations Division is hereby affirmed in part and reversed in part. The matter
is remanded to said court for further proceedings consistent with this opinion.
By Wise, Earle, J.
Delaney, P.J. and
Hoffman, J. concur.
EEW/sg 608