Pettry v. Pettry

• Citation: 610 N.E.2d 443,81 Ohio App.3d 30
• Decision Date: 04 June 1991
• Docket Number: No. 91AP-187,91AP-187
• Parties: PETTRY, Appellee, v. PETTRY, Appellant.
• Court: United States Court of Appeals (Ohio)

Page 30

81 Ohio App.3d 30

610 N.E.2d 443

PETTRY, Appellee, v. PETTRY, Appellant.

No. 91AP-187.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided June 4, 1991.

R. Chris Harbold, Columbus, for appellee.

Turner & Wright and Carol A. Wright, Worthington, for appellant.

WHITESIDE, Judge.

Defendant, Cheryl A. Pettry, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, and raises two assignments of error, as follows:

"Assignment of Error No. 1:

"(A) The trial court abused its discretion in failing to find the marital residence was appellant's separate property, in light of the evidence submitted.

"(B) The trial court abused its discretion in failing to award appellant $5,000.00 for the $5,000.00 gift from appellant's parents for the down payment on the marital residence.

"Assignment of Error No. 2:

"The trial court erred and abused its discretion in failing to order that appellee continue to maintain medical/hospitalization insurance on appellant for at least as long as there exists any alimony obligation."

At the time the trial court granted a divorce to plaintiff, Roger W. Pettry, upon the grounds that the parties had been living separate and apart for more than one year, the parties had been married for more than nineteen years. Three children were born of the marriage, two of whom were still minors. Pursuant to a stipulation of the parties, a split-custody arrangement was ordered, with plaintiff being ordered to pay child support in the amount of $316.20 per month, based upon his income of $45,000, and defendant's income of $15,000. Plaintiff was also ordered to maintain medical and hospitalization insurance for both children.

The court found that the parties' residence was marital property and had a fair market value of $107,000. However, plaintiff had previously signed a quit-claim deed, giving his interest in the property to defendant. Additionally, the court found that the parties' business, Inspiration, Inc., was a marital asset with a value of $25,000. The debts of the parties included a first mortgage in the amount of $30,154, a line of credit in the amount of $38,878, IRS assessments totalling $26,000 and personal debts of more than $25,000. The business debts included a past tax debt of $7,933.01 and additional tax debt of $2,883.03.

The court ordered that the marital home be sold for no less than its fair market value, with the proceeds to be applied first to pay both mortgages and the IRS assessments. Any remaining proceeds would be applied to certain joint debts. All additional joint debts were required to be paid by plaintiff, who was also ordered to pay mortgage taxes and insurance on the residence until sold. Defendant was ordered to pay all utilities. Plaintiff was awarded the business and all debts and taxes associated directly with it, as well as his life insurance policies. There was an unvalued chose in action against a previous business attorney/accountant, and each party was awarded one half of it. Plaintiff was also awarded his Huntington National Bank checking accounts and an automobile. Defendant was awarded her automobile, her life insurance policies, and her checking accounts. In addition, the court awarded defendant sustenance alimony in the amount of $400 per month for a period of five years and partial attorney fees of $2,000. Following the decree of divorce, defendant filed a motion for new trial and a request for further findings of fact. These motions were both overruled, resulting in this appeal.

By the first assignment of error, defendant contends that the trial court erred and abused its discretion in finding the residence to be marital property rather than defendant's separate property. The evidence is undisputed that plaintiff by quit-claim deed had transferred his interest in the residence at a time the parties had reconciled after a previous separation. At the hearing, he testified in part that:

" * * * I know it was deeded, my name is on it, but the particular reason of why it was deeded, I truthfully--I really couldn't tell you."

However, just before that, he did state that: "It has something to do with the business, something to do with The Inspiration, but I couldn't tell you." When specifically asked whether the deed was given to defendant as a gift because of marital conflict and reconciliation, he stated: "I don't have anything stating that. I don't recall that whatsoever. If there is anything on it, I would like to see it." However, when more specifically asked, did he "intend to make a gift," he emphatically said, "No, I did not."

In the decision, the trial court stated:

"The Court finds that the marital residence at 1349 Knollwood is marital property and that defendant has not shown by a preponderance of the evidence that plaintiff intended the transfer to defendant's name as a gift. * * * " (Emphasis added.)

Plaintiff contends that his testimony supports this conclusion of the trial court and, accordingly, there is no error or abuse of discretion on the part of the trial court in considering the residence to be marital property. Defendant, on the other hand, contends that the only conclusion that can reasonably be reached from the evidence is that the quit-claim deed did constitute a gift from plaintiff to defendant. Defendant also points out that property, even though purchased with marital assets, is no longer marital property when given as a gift from one party to another, citing Slife v. Slife (Dec. 31, 1987), Franklin App. No. 85AP-701, unreported, 1987 WL 32231.

At the outset, we must determine whether the trial court properly placed the burden upon defendant to prove that the quit-claim deed was a gift. The quit-claim deed states that:

"Roger W. Pettry, Husband of the Grantee * * * for valuable consideration paid, grants to Cheryl A. Pettry * * * the following REAL PROPERTY * * *."

The deed is properly witnessed and acknowledged as being plaintiff's "voluntary act and deed." The deed also bears a county auditor's stamp "Transfer Tax Exempt," and was duly recorded in the county recorder's office. In Spencer v. Spencer (1949), 87 Ohio App. 539, 542-543, 56 Ohio Law Abs. 85, 88, 43 O.O. 353, 355, 89 N.E.2d 496, 499, the Second District Court of Appeals stated:

" * * * The law seems to be well established that there is a presumption of gift when property is turned over to a wife by her husband; that the burden of proving a resultant and constructive trust is upon the one claiming such trust and he must establish it by clear and convincing evidence. * * * "

Spencer also involved a divorce action and a transfer of real estate from the husband to the wife prior to a divorce.

That decision is consistent with the general proposition that a deed executed in conformity to the applicable statute (R.C. Chapter 5301) is conclusive of the facts stated therein, and the grantor of such a deed cannot assert rights contrary to the terms of the deed without first securing reformation or cancellation of the deed. See Natl. Bank v. Wheelock (1895), 52 Ohio St. 534, 40 N.E. 636; Willis v. Baker (1906), 75 Ohio St. 291, 79 N.E. 466. See, also, Gardner v. Kern (1926), 115 Ohio...