Barkley v. Barkley, 96CA5

Citation694 N.E.2d 989,119 Ohio App.3d 155
Decision Date14 April 1997
Docket NumberNo. 96CA5,96CA5
PartiesBARKLEY, Appellant, v. BARKLEY, Appellee.
CourtUnited States Court of Appeals (Ohio)

James R. Kingsley, Circleville, for appellant.

Gary R. Dumm, Circleville, for appellee.

HARSHA, Judge.

Phyllis Barkley appeals from a judgment of the Pickaway County Court of Common Pleas that granted the parties a divorce and divided their marital property.

Phyllis Barkley and John Barkley were married in 1989. As the result of marital discord, the wife filed a complaint for divorce in 1993. The husband answered and filed a counterclaim for divorce. After a final hearing, the trial court granted both parties' complaints for divorce on the ground of incompatibility. The court determined what constituted the parties' separate property and distributed their marital property under R.C. 3105.171. The wife has filed a notice of appeal challenging several specific aspects of the court's distribution of property.

Appellant's first assignment of error asks:

"Did the trial court commit prejudicial error when it awarded husband the Sylvan lots?"

When a trial court grants a divorce, the court must determine what constitutes the parties' marital property and what constitutes their separate property. R.C. 3105.171(B). The trial court's characterization of the parties' property involves a factual inquiry. Wright v. Wright (Nov. 10, 1994), Hocking App. No. 94CA2, unreported, 1994 WL 649271. As an appellate court, we review the determinations under the standard of manifest weight of the evidence. Wylie v. Wylie (May 30, 1996), Lawrence App. No. 95CA18, unreported, 1996 WL 292044; Miller v. Miller (Dec. 1, 1993), Washington App. No. 93CA7, unreported, 1993 WL 524966.

A judgment of a trial court will not be reversed as being against the manifest weight of the evidence if the court's judgment is supported by some competent, credible evidence. Sec. Pacific Natl. Bank v. Roulette (1986), 24 Ohio St.3d 17, 20, 24 OBR 14, 16, 492 N.E.2d 438, 440; C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus. This standard of review is highly deferential and even "some" evidence is sufficient to sustain the judgment and prevent a reversal. 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. In re Jane Doe I (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181. See, also, Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273.

Once the trial court has determined the status of the parties' property, the court should normally award each spouse his or her separate property and then distribute the marital estate equally unless an equal division would be inequitable. R.C. 3105.171(D) and 3105.171(C). The statutes vest the trial court with discretion to do what is equitable under the facts and circumstances of each particular case. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 130, 541 N.E.2d 597, 598-599; Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 20 O.O.3d 318, 322, 421 N.E.2d 1293, 1298-1299. An appellate court should not reverse the judgment of the trial court unless it appears that the trial court abused its discretion in dividing marital property. Martin v. Martin (1985), 18 Ohio St.3d 292, 294-295, 18 OBR 342, 343-344, 480 N.E.2d 1112, 1113-1115. An abuse of discretion is more than a mere error of judgment; it implies the court's attitude is arbitrary unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.

Prior to the parties' marriage, both the husband and the wife owned their own separate homes. After they married, the husband moved into the wife's home. The couple had discussed the possibility of either building or purchasing another house to use as their marital residence. To that end, on May 29, 1990, the husband sold his home and placed most of the proceeds in an investment account. On the same day, the husband used $38,000 from the sale of his house to purchase Lot Numbers 127 and 128 in the Sylvan subdivision. While the money to purchase these lots came from the husband's separate property, the deed to the lots named both parties as grantees. Prior to filing for divorce, the couple could not agree on a house design, so the lots have remained vacant.

The wife argues in light of the joint deed and her testimony that the husband said the lots were a gift, that, at worst, the property should be considered a marital asset. The husband claims, and the trial court found, that the Sylvan lots were his separate property since he could directly trace the $38,000 purchase price of the lots to the proceeds from the sale of his house. The court determined that, although the property was titled in both parties' names, the husband did not intend to make an outright gift of a one-half interest in the lots to the wife or to convert the lots into a marital asset. The court found that titling of the lots in both names was done on the condition that both parties would contribute financially and build a dream home on the property.

Marital property includes all real property that currently is owned by either or both of the spouses and that was acquired by either or both of the spouses during the marriage. R.C. 3105.171(A)(3)(a)(i). Thus, property acquired during the marriage is presumed to be marital in nature unless it can be shown to be separate. Separate property includes any property acquired by one spouse prior to the marriage. R.C. 3105.171(A)(6)(a)(ii). It is presumed that a spouse's premarital property remains separate property as long as it is traceable, regardless of whether it has been commingled with other property. Baldwin's Ohio Domestic Relations Law (1992) 107, Section 4.08(B)(1)(f). However, a spouse can change separate property into marital property by the spouse's own actions. Baldwin's, supra (Supp.1996) 46, Section 12.04(E).

The most commonly recognized method of effectuating this change is through an inter vivos gift. One line of thinking holds that when a spouse transfers property to the other spouse, the transfer is presumed to be a gift unless it is shown to the contrary. The burden of proof lies with the party attacking the gift. This seems especially appropriate when the transfer is memorialized by a formal legal document such as a deed. See Pettry v. Pettry (1991), 81 Ohio App.3d 30, 610 N.E.2d 443, and Baldwin's, Section 4.04(A)(6). The other approach rejects the gift presumption and adopts a more flexible totality-of-the-circumstances test to determine whether transmutation of the separate property has occurred. See Kuehn v. Kuehn (1988), 55 Ohio App.3d 245, 564 N.E.2d 97, 1 and Anderson v. Anderson (July 7, 1992), Hocking App. No. 91CA1, unreported, 1992 WL 174716.

While we believe that the approach adopted in Pettry has much to recommend it when dealing with deeded real estate, we cannot overlook the significance of R.C. 3105.171(H), which states:

"Except as otherwise provided in this section, the holding of title to property by one spouse individually or by both spouses in a form of co-ownership does not determine whether the property is marital property or separate property."

We take this statute to be a legislative ratification of the flexible approach adopted by Kuehn, supra, and followed by the trial court here. Thus, we believe that R.C. 3105.171(H) means that the form of title is relevant to, but not conclusive of, the classification of property as being either marital or separate. In other words, property held jointly may ultimately be determined to be separate (see Bower v. Bower [Mar. 3, 1995], Sandusky App. No. 5-94-14, unreported, 1995 WL 84708; Domrose v. Domrose [Sept. 16, 1994], Ottawa App. No. 93OT054, unreported, 1994 WL 506180; Irwin v. Irwin [May 11, 1993], Green App. No. 92-CA-54, unreported, 1993 WL 169124; Baker v. Baker [Feb. 10, 1993], Meigs App. No. 477, unreported, 1993 WL 33309; Anderson v. Anderson, supra), while other property held individually may, in fact, turn out to be marital (see Williams v. Williams [Aug. 21, 1996], Medina App. No. 2480-M, unreported, 1996 WL 470658). The effect of the statute is to negate the presumption of a gift, but not to preclude such a finding upon an appropriate factual context.

There is no dispute that the source of the money to buy the lots came from the husband's separate property. Accordingly, our inquiry focuses on whether the trial court was factually correct in finding that the appellee lacked the required donative intent to transfer a present possessory interest in the lots to the appellant when he had her name placed on the deeds along with his. 2

We believe that the following testimony of the appellant on cross-examination, when taken in conjunction with the source of the funds, provides a sufficient basis to support the trial court's finding, notwithstanding the fact that we may well have decided the issue differently: 3

"Q. When the real estate closing took place, was Phyllis there?

"A. I don't think so.

"Q. Now, this deed is in two names?

"A. Yes.

"Q. It is in your name and Phyllis' name?

"A. Yes.

"Q. Did someone ask you how to prepare the deed before it was transferred to you?

"A. Yes.

"Q. What did they ask you?

"A. Well, whether I wanted it in both names.

"Q. And your response was both names?

"A. Yes.

"Q. Before that decision was made, did you discuss this with Phyllis to determine whether or not it should be in your name or her name?

"A. I don't know. But it is pretty clear to me that Phyllis wanted it in both names.

"Q. * * * The house at Hagerty Road was in your name only?

"A. Yes.

"Q. You were using only money from your house?

"A. Yes.

"Q....

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