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Parker v. Parker

Court of Appeals of Ohio, Ninth District, Summit

January 11, 2017

JON G. PARKER Appellee
v.
PAMELA A. PARKER Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2011-12-3645

          ARTHUR AXNER, Attorney at Law, for Appellant.

          SUNNY M. SIMON, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          BETH WHITMORE, JUDGE

         {¶1} 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.

         I.

         {¶2} 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.

         II.

         ASSIGNMENT OF ERROR I

         THE 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.

         {¶3} 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 traceable.

         {¶4} "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 ...


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