APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 12DR35271
John D. Smith Co., LPA, John D. Smith, Andrew P. Meier and Mark D. Webb, for appellee/cross-appellant
Robbins, Kelly, Patterson & Tucker, Barry A. Spaeth, Mary M. Sherman and Rina R. Russo, for appellant/cross-appellee
M. POWELL, J.
(¶ 1} Appellant/cross-appellee, Paul W. Casper, Jr. (husband), appeals from a judgment of the Warren County Court of Common Pleas, Domestic Relations Division, granting the parties a divorce. Appellee/cross-appellant, Wilma Lee Casper (wife), cross-appeals from the same judgment. For the reasons that follow, we affirm in part and reverse in part the judgment of the domestic relations court and remand this matter for further proceedings.
(¶ 2} Husband and wife were married on June 28, 1988. After 23 years of marriage, the parties separated on October 7, 2011 when wife left the marital residence. The trial court adopted the separation date as the date the marriage terminated. On January 23, 2012, wife filed a complaint for divorce. Husband is a 65-year-old attorney for a large law firm (the law firm). Husband earned an annual average of $392, 133 for the three years preceding 2012 from his employment with the law firm as an equity partner. This income included law firm partnership distributions and a 401k distribution husband received at various times during the year based upon the prior year's performance (the partnership distributions and the 401k distribution that husband received in 2012 based upon his 2011 performance shall hereinafter be referred to collectively as the distributions). Soon after their separation, husband changed his employment status with the law firm from an equity partner to a contract partner of the law firm. As a contract partner, husband's annual income was reduced to $300, 000 per year. Wife is 64 years old and works four days a week as a legal secretary and business manager for a different law firm. Wife had an annual income of $27, 228 plus an annual health insurance reimbursement of $8, 784 from her employment. Prior to the parties' marriage, wife owned residential property located on Lemcke Road in Beavercreek, Ohio (Lemcke Road). During the marriage Lemcke Road was sold and the parties purchased another residence on Old Forest Lane in West Chester, Ohio (Old Forest). No children were born as issue of the marriage.
(¶ 3} The magistrate rendered a decision regarding temporary orders on March 30, 2012, which was adopted by the trial court, ordering husband to pay wife $8, 721 a month in spousal support beginning April 1, 2012. A final divorce hearing was held before the magistrate on June 28, 2012. In the magistrate's decision issued on September 14, 2012, the magistrate made various findings regarding property division, the parties' income, and spousal support. The magistrate granted wife a $52, 618.67 separate property interest in Old Forest because wife was able to trace this amount from the proceeds of the sale of Lemcke Road. The magistrate also divided husband's 2011 partnership distribution (which was paid to husband in 2012) from the law firm based on the number of days the parties were married during 2011 (i.e., January 1, 2011 through October 7, 2011). The magistrate found that 280/365 of husband's 2011 partnership distribution should be classified as marital property. While finding husband's reduction in annual income to $300, 000 by becoming a contract partner after the parties' separation "suspect, " the magistrate declined to impute additional income to husband because retirement was consistent with his age. The magistrate found that there was no reason why wife could not work five days a week and imputed a total income of $42, 819 to wife, including a reimbursement for health insurance.
(¶ 4} The magistrate ordered husband to pay wife spousal support of $8, 570 each month for a period of 106 months. Husband was to receive credit for the spousal support paid under the temporary order during this time. The court retained jurisdiction over the amount of spousal support, but not its duration. The magistrate recognized that husband would retire in the near future, but would not speculate as to his income after retirement. The magistrate also found that it would be inequitable for wife not to receive spousal support for the period of time between when the parties separated on October 7, 2011 and the date that temporary spousal support was ordered (i.e., April 1, 2012). The magistrate offset the spousal support award during this period with the cost of half of the attorney fees incurred by husband during pre-filing settlement negotiations.
(¶ 5} Both husband and wife filed objections to the magistrate's decision. The trial judge overruled in part and sustained in part the magistrate's decision on November 19, 2012. However, the trial judge overruled all objections related to this appeal. The final divorce decree was issued on December 12, 2012. Husband timely appeals and raises three assignments of error for review. Wife timely cross-appeals and raises three cross-assignments of error for review. We first address husband's assignments of error.
(¶ 6} Assignment of Error No. 1:
(¶ 7} THE WARREN COUNTY, OHIO DOMESTIC RELATIONS COURT ABUSED ITS DISCRETION AND ACTED CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE OR CONTRARY TO LAW IN MAKING ITS FINDINGS IN THE FINAL DECREE OF DIVORCE.
(¶ 8} Husband presents three issues in his first assignment of error. First, husband argues the trial court abused its discretion in classifying the net sale proceeds from the sale of Lemcke Road as wife's separate property. Second, husband asserts the trial court erred in failing to take into account in the property division several deposits made into wife's Fifth Third Bank checking account, which he dubs "mystery money." Finally, husband contends the trial court abused its discretion by utilizing a ratio based on calendar days to determine whether his law firm distributions should be classified as his separate property or as marital property. We will address each issue in turn.
1. Lemcke Road
(¶ 9} Husband argues that the trial court abused its discretion in awarding wife $52, 618.67 in separate property. The trial court found that the money consists of the net sale proceeds from Lemcke Road. It is undisputed that wife owned Lemcke Road prior to the parties' marriage. Husband first argues that wife gifted him an undivided one-half interest in Lemcke Road and thus should not have been awarded a separate interest in its proceeds. Alternatively, husband argues that wife failed to adequately trace her separate property interest from the Lemcke Road sale into Old Forest. Finally, husband argues that if we find that the trial court did not abuse its discretion in awarding wife $52, 618.67 in separate property from the proceeds of Lemcke Road, he also should have been awarded a separate interest.
(¶ 10} Subsequent to the parties' marriage wife conveyed Lemcke Road to husband and herself by joint and survivorship deed. Husband argues that this conveyance was a gift to him and transformed the net sale proceeds from Lemcke Road into marital property.
(¶ 11} "A trial court's classification of property as marital or separate must be supported by the manifest weight of the evidence." Oliver v. Oliver, 12th Dist. Butler No. CA2011-01-004, 2011-Ohio-6345, ¶ 8. As the Ohio Supreme Court has stated that the manifest weight standard is the same in both criminal and civil contexts, the weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other." Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. "A reviewing court should be guided by a presumption that the findings of a trial court are correct, since the trial judge is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use those observations in weighing the credibility of the testimony." (Internal quotation marks omitted.) Zollar v. Zollar, 12th Dist. Butler No. CA2008-03-065, 2009-Ohio-1008, ¶ 10.
(¶ 12} The holding of a title to property in the name of both spouses does not, by itself, determine whether a property is marital or separate. R.C. 3105.171(H); Kohus v. Kohus, 12th Dist. Clermont No. CA2002-07-055, 2003-Ohio-2551, ¶ 21. Separate property includes real or personal property that was acquired by one spouse prior to marriage. R.C. 3105.171. One of the more commonly recognized means to convert separate property into marital property is through an inter vivos gift. Golick v. Golick, 12th Dist. Clermont No. CA99-05-040, 2001 WL 1598290, *6 (Dec. 17, 2001). The essential elements of an inter vivos gift are (1) intent of the donor to make an immediate gift, (2) delivery of the property to the donee, and (3) acceptance of the gift by the donee. Bolles v. Toledo Trust Co., 132 Ohio St. 21 (1936), paragraph one of the syllabus. "It is well-established that the donor is not required to introduce evidence that he did not intend for his separate property to be commingled into marital property. Rather, the donee has the burden of showing by clear and convincing evidence that the donor intended an inter vivos gift." (Citations omitted.) Golick at *6. "The existence of an inter vivos gift is ordinarily a question of fact." In re Estate of Lilley, 12th Dist. Warren No. CA2005-08-091, 2006-Ohio-5510, ¶ 30; Leon v. Caroselli, 1st Dist. Hamilton Nos. C-960364 and C-960612, 1997 WL 266761, *2 (May 21, 1997). As to questions of fact, we give deference to the trial court, which is best able to observe the witnesses and weigh the credibility of their testimony. Lilley at ¶ 30.
(¶ 13} The parties stipulated that at the time of marriage wife owned Lemcke Road. The only evidence presented besides the deed showing that husband and wife held Lemcke Road as joint tenants with rights of survivorship, was conflicting testimony of husband and wife. Husband testified: "We were married we were together, we were in this for the duration. So, everything that was mine was hers and everything that was hers was mine." In contrast, wife testified that she put husband's name on the deed because he had asked her to because he was paying some expenses and in order to "protect himself." Husband's testimony did not address with any specificity the issue of whether the conveyance of Lemcke Road into a joint and survivorship tenancy was intended by wife as a gift. There was no evidence of any declarations of wife that she intended the conveyance of Lemcke Road to husband as a gift. In fact, there was no testimony concerning any discussions of the parties relating specifically to the conveyance of Lemcke Road from wife to husband and wife as joint and survivorship tenants. Additionally, there are reasons why wife may have conveyed Lemcke Road to husband other than as a gift. It may have been conveyed in an effort to placate husband and honor his request that wife transfer the property into both of their names. It may have been to protect husband in the event wife predeceased him and to provide him with a place to live, as wife had a child from a previous marriage who might claim an interest in Lemcke Road in such an event.
(¶ 14} Based upon this meager and equivocal evidence, the trial court evidently determined that husband had failed to establish by clear and convincing evidence that wife had intended to make a gift of an undivided one-half interest in Lemcke Road. Because whether an inter vivos gift occurred is a question of fact and the trial court is in the best position to observe witnesses and weigh credibility, we hold that the trial court's determination was not against the manifest weight of the evidence. See Smith v. Emery-Smith, 190 Ohio App.3d 335, 2010-Ohio-5302, ¶ 30-40 (11th Dist); O'Grady v. O'Grady, 11th Dist. Trumbull No. 2003-T-0001, 2004-Ohio-3504, ¶ 70-73; Needles v. Needles, 11th Dist. Geauga No. 2001-G-2386, 2002-Ohio-7128, ¶ 20-23; Golick at *6.
b. Tracing separate property
(¶ 15} Husband argues that wife failed to adequately trace the $52, 618.67 netted from the sale of Lemcke Road into the purchase of Old Forest in order for this sum to be classified as her separate property.
(¶ 16} The party seeking to have a particular asset classified as separate property has the burden of proof, by a preponderance of the evidence, to trace the asset to separate property. Zollar, 12th Dist. Butler No. CA2008-03-065, 2009-Ohio-1008, ¶ 9. In this case, wife had the burden of proof by a preponderance of the evidence to show that a portion of the down payment for the purchase of Old Forest was from the net sale proceeds of Lemcke Road. In determining that wife met her burden of proof, the trial court relied on the settlement statements from the closings on the sale of Lemcke Road and the purchase of Old Forest. The closings occurred on successive days. The proceeds received from Lemcke Road totaled $52, 618.67. Husband stated that $17, 381.33 of the down payment on Old Forest came from his emergency savings account. The two amounts equal the down payment for the purchase of Old Forest. Given the timing and the component amounts of the down payment, the greater weight of evidence supports the trial court's finding that wife traced her separate interest from the net sale proceeds of Lemcke Road into the purchase of Old Forest.
c. Husband's separate property interest
(¶ 17} Husband argues that if wife has a separate interest in Lemcke Road, he should be awarded a separate property interest of $10, 000 for a mortgage payment he made towards Lemcke Road, $17, 381.33 that he contributed to the down payment of Old Forest, and the cost of certain expenses he paid toward Lemcke Road prior to its sale.
i. $10, 000 "mortgage" payment
(¶ 18} Husband argues that he should be credited $10, 000 for a mortgage payment made to wife's former husband. The only evidence presented in this regard was husband's testimony that "I did pay off the remaining mortgage, I recall that, which was about $10, 000, if I recall correctly." In his brief, husband states that the $10, 000 payment was to wife's former husband, apparently as part of some sort of settlement agreement. Husband's testimony was the only reference to such a mortgage. This testimony is also in direct contradiction to wife's testimony that the monthly mortgage payment was $232 and the mortgage was paid off at the time of the sale of Lemcke Road.
(¶ 19} As stated above, a party seeking to have an asset classified as separate property bears the burden of establishing such by a preponderance of the evidence. Zollar at ¶ 9. Husband presented no evidence as to when the $10, 000 payment was made or the source of the funds used to make the payment. For instance, it would be critical to this determination if any of the funds arose from husband's earnings during the marriage as such would be marital property as opposed to husband's separate property. R.C. 3105.171(A)(3)(iii). Additionally, there is uncertainty as to the amount and nature of the payment. Husband's testimony on the subject was equivocal. Husband seemed uncertain as to the exact amount he paid. There is also ambiguity as to the nature of any such payment made by husband. Husband's testimony characterizes the payment as a mortgage. But, in his brief husband argues that "[his] payment to [wife's] former husband could be construed as a payment towards the equity in the Lemcke property" (Emphasis added.) Husband's brief also refers to the payment as for a "mortgage, " always placing the word mortgage in quotation marks.
(¶ 20} These factors, in conjunction with the testimony, raise questions as to whether any such payment actually discharged a lien upon Lemcke Road so as to give husband an interest in Lemcke Road. Based upon the foregoing and the superior position of the trial court to weigh the credibility of the testimony, the trial court's refusal to credit husband with a separate property interest in Lemcke Road based upon any possible $10, 000 ...