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Ray Shupert v. Jennifer Shupert

February 6, 2013

RAY SHUPERT, PLAINTIFF-APPELLEE,
v.
JENNIFER SHUPERT, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Harsha, J.

Cite as

Shupert v. Shupert,

DECISION AND JUDGMENT ENTRY

{¶1} In this contested divorce action, Jennifer Shupert appeals the trial court's property distribution. Ray Shupert acquired two farms before the couple married and constructed various buildings on the properties during the marriage. Ms. Shupert contends that the court erred when it limited the marital value of the farms to the appreciation arising from construction on the land. Ms. Shupert argues that additional appreciation is also marital property because it resulted from the couple's contributions to farm operations. However, Ms. Shupert had the burden to establish how much of the appreciation of Mr. Shupert's separate property constituted marital property. Other than the value added by construction, she offered no evidence of how much appreciation the land experienced during the marriage. Moreover, she points to no evidence that establishes the value of any labor, monetary, or in-kind contribution either party made to the land. Therefore, we cannot say that the trial court's decision was against the manifest weight of the evidence.

{¶2} Next, Ms. Shupert complains that the court failed to include the $64,500 in appreciation from the buildings in its calculations when it divided the couple's marital property. We agree. After making extensive findings on the appreciation issue, the court apparently simply overlooked this asset in its final calculations.

{¶3} Ms. Shupert also argues that the trial court's valuation of crop insurance proceeds was against the manifest weight of the evidence. To determine the value of this marital property, the court deducted the cost of the insurance premium from the amount of the insurance proceeds Mr. Shupert received. In effect, the court allowed Mr. Shupert to keep the deducted amount as though he paid the premium with his separate property. However, Mr. Shupert paid the premium with marital property. Therefore, the marital value of the proceeds should have been the full amount of the check Mr. Shupert received.

{¶4} In addition, Ms. Shupert contends that the court's valuation of marital livestock, which was sold after the marriage ended, is against the manifest weight of the evidence. The livestock was owned by a farming operation in which Mr. Shupert has a 30% interest. Ms. Shupert claims that the court's figure for the gross sale proceeds of the livestock is incorrect. However, it is supported by the evidence Ms. Shupert herself introduced at trial. She also claims that the court improperly reduced the gross sale proceeds by costs the court found Mr. Shupert incurred for the livestock between the marriage termination and sale dates. We agree with this contention. Although Mr. Shupert testified about the cost per pound to produce hogs and cattle, he failed to provide any evidence about how much of the costs were paid after the marriage terminated. In the absence of such evidence, the marital value of the livestock should have been 30% of the gross sale proceeds.

{¶5} Next, Ms. Shupert claims that the trial court improperly gave Mr. Shupert credit for paying the couple's 2007 federal income tax debt in its property division calculations. We agree. Even though Mr. Shupert paid this marital debt after the marriage ended, he did so with marital funds, not separate property as the court's calculations suggest.

{¶6} Finally, Ms. Shupert urges us to adopt a new calculation for the division of marital property and her distributive award. However, her calculation is premised on the erroneous assumption that this Court would agree with all of her other arguments, which we do not. Moreover, we are remanding this matter to the trial court to correct its property division in light of our other findings.

I. Facts

{¶7} The parties married in 1997 and have three children together. In November 2007, Mr. Shupert filed a complaint for divorce. Ms. Shupert filed an answer and a counterclaim for divorce. Following a bench trial, the trial court issued a decree of divorce. The court found that the stipulated termination date of the marriage was November 12, 2007, made numerous findings regarding its property division, and awarded Ms. Shupert spousal and child support. Ms. Shupert now appeals several of the court's findings concerning the property division.

II. Assignments of Error

{¶8} Ms. Shupert assigns six errors for our review: First Assignment of Error:

THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THE ONLY MARITAL PORTION OF THE REAL ESTATE WAS THE VALUE OF IMPROVEMENTS, i.e., THE VALUE OF BUILDINGS CONSTRUCTED ON THE LAND DURING THE MARRIAGE.

Second Assignment of Error:

THE TRIAL COURT ERRED WHEN CREDIT FOR THE CROP

INSURANCE PREMIUM WAS DEDUCTED FROM THE PAYMENT

RECEIVED BY THE PLAINTIFF/APPELLEE FOR THE 2007 MARITAL CROP INSURANCE.

Third Assignment of Error:

THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THE

PLAINTIFF-APPELLEE SHOULD RECEIVE CREDIT FOR THE COST

OF FEEDING THE LIVESTOCK WHEN THERE WAS NO EVIDENCE TO SUPPORT THE COST.

Fourth Assignment of Error:

THE TRIAL COURT ERRED BY GIVING PLAINTIFF-APPELLEE

CREDIT FOR PAYING THE 2007 FEDERAL TAXES WHEN THE TAXES WERE PAID WITH MARITAL FUNDS, NOT PERSONAL, NON- MARITAL FUNDS.

Fifth Assignment of Error:

THE TRIAL COURT ERRED IN ITS RECONCILIATION OF THE

PARTIES' ASSETS/LIABILITIES IN POSSESSION BY FAILURE TO INCLUDE ANY MARITAL VALUE IN THE FARM PROPERTIES.

Sixth Assignment of Error:

THE TRIAL COURT'S RECONCILIATION WAS FLAWED AND NOT SUPPORT BY THE EVIDENCE AS SET FORTH IN THE FIRST FIVE ASSIGNMENTS OF ERROR.

III. Appreciation of Real Property

A. Marital v. Separate Property

{¶9} In the first assignment of error, Ms. Shupert contends that the trial court erred when it determined the appreciation in value of Mr. Shupert's farms, except for the portion related to the construction of buildings, was Mr. Shupert's separate property.

{¶10} "Generally, a court dividing property upon divorce must award each spouse his or her separate property." Harrington v. Harrington, 4th Dist. No. 08CA6, 2008-Ohio-6888, ¶ 11, citing R.C. 3105.171(D). "Absent an abuse of discretion, we will not reverse a trial court's property award." Id., citing Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981). " 'However, a trial court's characterization of property as separate or marital is reviewed under a manifest weight of the evidence standard of review.' " Id., quoting Nance v. Nance, 4th Dist. No. 95CA553, 1996 WL 104741, *5 (Mar. 6, 1996). Thus, the court's characterization " 'will not be reversed if it is supported by some competent, credible evidence.' " Id., quoting Nance at *5. The fact finder "is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of proffered testimony." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). "Therefore, the trier of fact determines the ...


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