JON G. PARKER Appellee
PAMELA A. PARKER Appellant
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. 2011-12-3645
AXNER, Attorney at Law, for Appellant.
M. SIMON, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
Appellant, Jon Parker ("Husband"), appeals a decree
of divorce entered by the Summit County Court of Common
Pleas, Domestic Relations Division. For the following
reasons, this Court affirms in part and reverses in part.
Jon and Pamela ("Wife") Parker married in 1995 and
have three children. In 2011, Husband filed a complaint for
divorce. Wife subsequently counterclaimed for divorce.
Following a hearing, the trial court entered a decree of
divorce in 2014. Husband attempted to appeal it, but this
Court determined that the decree was not final and
appealable. We also dismissed a second attempted appeal for
lack of jurisdiction. In March 2016, the trial court reissued
the decree with corrections in accordance with our previous
decisions. Husband has appealed, assigning three errors.
OF ERROR I
TRIAL COURT ERRED IN ITS FINDINGS AND ORDERS THAT JON HAD NOT
TRACED ANY OF HIS SEPARATE PROPERTY GIFTED TO HIM BY HIS
FATHER AND DISTRIBUTED TO HIM FROM HIS FATHER'S TRUST
RESULTING IN THOSE FUNDS BEING CONSIDERED MARITAL ASSETS
SUBJECT TO EQUAL DIVISION.
In his first assignment of error, Husband argues that the
trial court incorrectly found that two assets that grew out
of gifts he received from his father were not his separate
property under R.C. 3105.171(A)(6). He notes that, under R.C.
3105.171, the definition of separate property includes
"[a]n inheritance by one spouse by bequest, devise, or
descent during the course of the marriage" and
"[a]ny gift of any 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." R.C. 3105.171(A)(6)(a)(i), (vii). Husband also
notes that, under R.C. 3105.171(A)(6)(b), the fact that some
of the money he received from his father may have been
commingled with martial property does not destroy its
identity as separate property because its source is
"The classification of property as marital or separate
is a question of fact that this Court reviews under a civil
manifest weight standard." Fetzer v. Fetzer,
9th Dist. Wayne No. 12CA0036, 2014-Ohio-747, ¶ 21,
quoting Hahn v. Hahn, 9th Dist. Medina No.
11CA0064-M, 2012-Ohio-2001, ¶ 20. When reviewing the
manifest weight of the evidence:
The [reviewing] court * * * weighs the evidence and all
reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the
evidence, the [finder of fact] clearly lost its way and
created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial ordered.
(Alterations sic) (Internal quotations omitted.) Eastley
v. Volkman,132 Ohio St.3d 328, 2012-Ohio-2179, ¶
20. Regarding traceability, "[t]he 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." Fetzer at
¶ 24, quoting Eiken ...