Court No. CV 2012 0481
W. Gentzel and James J. Martin, for appellee.
Kathleen M. Amerkhanian, for appellant.
DECISION AND JUDGMENT
1} Appellant, Katalin Soley, appeals the judgment of
the Huron County Court of Common Pleas, adopting the decision
of the magistrate, which found that certain real property
located in Huron County was appellee's, Robert Soley,
separate property. Because we find that the trial court erred
in classifying the property, we reverse.
Facts and Procedural Background
2} This is the second time these parties have
appeared before this court in this action. In the first
appeal, we resolved a dispute concerning Katalin's sale
of the Huron County property located at 231 Butler Rd., New
London, Ohio. Soley v. Soley, 6th Dist. Huron No.
H-13-028, 2014-Ohio-3965. In our decision, we recited the
relevant facts as follows:
Robert and Katalin were married on December 23, 1990. During
the course of their marriage, Robert decided to deed a
portion of his real property to Katalin in an effort to evade
creditors. According to Robert, the property was conveyed to
Katalin, free of charge, under a constructive trust in which
Katalin was to hold title of the real estate for Robert's
benefit and deed the property back to him upon demand.
Subsequent to the transfer, Robert and Katalin began
experiencing marital difficulties. As a result, Robert
recorded an affidavit of dower with the Huron County Recorder
on March 30, 2008, evidencing the fact that Katalin was the
owner of the property and that he was entitled to a dower
interest as her husband. Eventually, the parties separated
and divorce proceedings were initiated in Budapest, Hungary,
which is where the parties were living at the time. According
to a translated judgment entry from the Hungarian court, the
parties were ultimately divorced on May 10, 2011. However,
the division of the marital assets had not yet occurred.
Notably, the court expressly declined to distribute the real
property located in Huron County, as the court found that
property within the United States was beyond its
Four months after the parties were divorced, but before the
Hungarian assets were distributed, Katalin reached an
agreement with [Robert and Mary Lou] Harris to sell the real
property located in Huron County for $170, 000. The property
was then transferred to Mr. and Mrs. Harris by warranty deed.
Seeking to set aside the conveyance, Robert filed his
complaint in the underlying action on June 3, 2012, alleging
that the transfer was fraudulent because the property was
subject to a constructive trust. Moreover, Robert alleged
that Mr. and Mrs. Harris knew or should have known that the
property was subject to a constructive trust in Robert's
favor. As a result, Robert sought damages in excess of $25,
000 and also petitioned the court to set aside the conveyance
and restore title to the real estate in his name.
On January 7, 2013, [Katalin, along with Mr. and Mrs. Harris,
] filed a motion for summary judgment. In their motion, [the
movants] argued that Katalin, as the sole owner of the
property, lawfully conveyed the property to Mr. and Mrs.
Harris. Because the marriage was dissolved prior to the
conveyance, [the movants] asserted that Robert had no
interest in the property. Further, [the movants] averred that
Mr. and Mrs. Harris were bona fide purchasers for value
insofar as they were without actual or constructive notice of
Robert's claimed interest in the property. As to
Robert's constructive trust argument, [the movants]
contended that the argument must fail under the statute of
frauds because the agreement was not reduced to writing.
Finally, [the movants] argued that Robert was not entitled to
recover on the basis of any dower interest he may have had in
the property, because such interest was extinguished by
operation of law as of the date the marriage was dissolved.
In response to [the movants'] arguments, Robert argued
that the marriage was not dissolved at the time of the
conveyance because the marital estate had not been divided by
the Hungarian court. Thus, he contended that he possessed a
dower interest in the property at the time of the sale.
Moreover, Robert noted the fact that the property had not
been classified as Katalin's separate property at the
time of the sale as the marital assets had not yet been
divided. He contended that the property was in fact his own
separate property because he owned the property prior to the
marriage. In the alternative, Robert claimed that the
property would at least amount to marital property, entitling
him to a share in the proceeds from its sale. Robert also
took issue with [the] argument that the constructive trust
must be in writing in order to be enforceable under the
statute of frauds. He argued that a constructive trust is
unwritten by its very nature. In supporting his arguments,
Robert submitted several affidavits. In his own affidavit, he
averred that he transferred the property to Katalin
"with the specific understanding by both parties that
the sole purpose of the transfer was to avoid [his] creditors
and that Katalin * * * would deed the property back to [him]
Upon consideration of the parties' arguments, the trial
court issued its decision on July 1, 2013. In its decision,
the trial court granted Mr. and Mrs. Harris' motion for
summary judgment, thereby quieting title to the property in
their name. At this point, Katalin had been dismissed from
the action due to service of process issues. When she was
later properly served, she renewed her motion for summary
judgment, which was granted on December 4, 2013. In granting
Katalin's motion for summary judgment, the trial court
found that Robert's claim of a constructive trust was
barred by the statute of frauds. The court further found that
the parties were divorced at the time of the sale and that,
as such, Robert's dower interest was extinguished.
Robert's timely appeal followed. Soley, 6th
Dist. Huron No. H-13-028, 2014-Ohio-3965, at ¶ 2-8.
3} On appeal, we concluded that Robert deeded the
Huron County property to Katalin "'for the sole
purpose of placing the property beyond the reach of his
creditors.'" Id. at ¶ 22. We found no
evidence of any wrongdoing in Katalin's acquisition or
retention of the property, and thus concluded that the trial
court did not err in rejecting Robert's constructive
trust argument. Id. However, we found that the
matter needed to be remanded to the trial court because a
determination as to whether the real property was marital
property or separate property had not been made. Id.
at ¶ 25. We noted that the Hungarian court, in which the
divorce proceedings were initiated, expressly declined to
exercise jurisdiction over the property. Id.
Ultimately, we remanded the matter for "a determination
of whether the property is marital or separate, and a
concomitant equitable division of the property, if necessary,
under R.C. 3105.171(B)." Id.
4} On remand, the parties appeared for an
evidentiary hearing before a magistrate on the issue of
whether the subject property was marital or separate. At the
hearing, several individuals testified, including Robert and
Katalin. The magistrate issued his decision, in which he
concluded that the subject property was Robert's separate
property. The magistrate specifically found that Robert's
transfer of the property to Katalin did not constitute a gift
and therefore did not convert the separate property into
marital property. The magistrate determined that Robert did
not possess the requisite donative intent when he executed
the quitclaim deed for the purpose of avoiding his creditors.
Moreover, the magistrate stated that, "because the
parcel remained wholly traceable from prior to the Soley
marriage until sale to Defendants Harris, the execution of
the quitclaim deed conveying [Robert's] interest therein
to [Katalin] had absolutely no impact on the separate
property characterization of the Butler road property."
Consequently, the magistrate found that Robert was entitled
to the $85, 000 in proceeds from the sale of the property
that were being held in escrow, as well as a judgment against
Katalin for the remaining $85, 000 that she had already
5} Two weeks after the magistrate issued his
decision, Katalin filed objections with the trial court. Upon
consideration, the trial court overruled Katalin's
objections and adopted the magistrate's decision. In its
judgment entry, the court directed the following:
1. After expiration of the appeal period following entry of
judgment, Attorney Mark Coriell shall be and hereby is
directed to disburse the amount of Eighty-five Thousand