Rucks v. Moore

• Decision Date: 21 November 2018
• Docket Number: Appellate Case No. 27928
• Citation: 2018 Ohio 4692
• Parties: LANA J. RUCKS Plaintiff-Appellee v. EDMUND H. MOORE Defendant-Appellant
• Court: Ohio Court of Appeals

2018 Ohio 4692

LANA J. RUCKS Plaintiff-Appellee v. EDMUND H. MOORE Defendant-Appellant

Appellate Case No. 27928

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

November 21, 2018

Trial Court Case No. 2014-DR-460

(Domestic Relations Appeal from Common Pleas Court)

OPINION

LANA J. RUCKS, 2481 Edgewater Drive, Apt. 2, Dayton, OH 45431 Plaintiff-Appellee, Pro Se

RICHARD HEMPFLING, Atty. Reg. No. 0029986, 15 W. Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant

FROELICH, J.

{¶ 1} Edmund H. Moore appeals from a final judgment and decree of divorce entered by the Montgomery County Common Pleas Court, Domestic Relations Division. The judgment of the trial court will be affirmed in part and reversed in part, and the matter will be remanded for further proceedings.

Factual Background and Procedural History

{¶ 2} Moore and Lana J. Rucks were married on April 22, 2000, and are the parents of two minor daughters. Moore is an engineer and a civilian employee at Wright-Patterson Air Force Base. Rucks, who has a Ph.D. in psychology, has operated her own consulting firm since 2008. Rucks filed for divorce on May 12, 2014. The parties stipulated to May 1, 2014, as the date their marriage terminated.

{¶ 3} A trial focused largely on valuing the parties' assets and classifying certain property as marital or separate, and it took place before a magistrate over three dates: June 22, 2015, December 4, 2015, and March 4, 2016. On July 26, 2016, the magistrate issued a decision¹ that incorporated the parties' shared parenting agreement as well as the magistrate's determinations regarding the payment of child support and spousal support, the division of the parties' assets and liabilities, and the allocation of costs. Both Moore and Rucks filed objections to that decision.

{¶ 4} On November 30, 2017, the trial judge sustained in part and overruled in part each party's objections. A final judgment and decree of divorce consistent with those rulings was entered on February 23, 2018.

{¶ 5} In his appeal from that final judgment, Moore raises six assignments of error:

1) The Court erred in deeming the four PNC accounts to be marital property.

2) The Court erred in deeming BOA account no. 9603 and its attendant CDs to be marital property.

3) The Court erred in failing to give [Moore] full credit for the down payment on the parties' marital residence.

4) The trial Court erred [in] ordering [Moore] to pay spousal support of $925.00 per month for an additional fifty-six months.

5) The trial Court erred in setting the amount of child support.

6) The trial Court erred in ordering that [Moore] was responsible for the cost of preparing a COAP with regard to his FERS account.

First, Second and Third Assignments of Error—Property Division

{¶ 6} In his first, second and third assignments of error, Moore challenges the trial court's treatment of certain property or payments as marital property rather than as separate property to be awarded to Moore alone. Because these three assignments implicate the same standard of review and the same legal principles governing the division of property, we will address all three together.

a. Standard of Review

{¶ 7} We review property distributions in divorce proceedings for an abuse of discretion. Payne v. Payne, 2d Dist. Montgomery No. 27584, 2017-Ohio-8912, ¶ 6, citing Loughman v. Loughman, 2d Dist. Montgomery No. 25835, 2014-Ohio-2449, ¶ 22. An abuse of discretion occurs when the trial court's decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 8} "A trial court must indicate the basis for its division of marital property in sufficient detail to enable a reviewing court to determine whether the award is fair, equitable, and in accordance with the law." Janis v. Janis, 2d Dist. Montgomery No. 23898, 2011-Ohio-3731, ¶ 43, citing Young v. Young, 2d Dist. Clark Nos. 08CA59 and 08CA61, 2009-Ohio-3504, ¶ 6, and R.C. 3105.171(G). Additionally, a trial court's failure to consider the factors set forth at R.C. 3105.171(F) to guide the division of marital property is an abuse of discretion. Mays v. Mays, 2d Dist. Miami No. 2000-CA-54, 2001 WL 1219345, *6 (Oct. 12, 2001).

b. Law Applicable to Division of Property in Divorce

{¶ 9} "When dividing married parties' assets and liabilities upon divorce, a court must first determine what is marital property and what is not." Bergman v. Bergman, 2d Dist. Montgomery No. 25378, 2013-Ohio-715, ¶ 27. The trial court must classify specific property as marital or separate, and where appropriate, must distribute separate property to the owner. Id., citing R.C. 3105.171(B) and (D). The court's classification must be supported by competent, credible evidence. Id., citing Mays at *3; Renz v. Renz, 12th Dist. Clermont No. CA2010-05-034, 2011-Ohio-1634, ¶ 17.

{¶ 10} The classification of property is governed by R.C. 3105.171. Per R.C. 3105.171(A)(3)(a), "marital property" includes:

(i) All real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;

(ii) All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;

(iii) Except as otherwise provided in this section, all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage.

{¶ 11} In contrast, under R.C. 3105.171(A)(6)(a), "separate property" is defined, in pertinent part, as "all real and personal property and any interest in real or personal property that is found by the court to be any of the following:"

(i) An inheritance by one spouse by bequest, devise, or descent during the course of the marriage;

(ii) Any real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage;

(iii) Passive income and appreciation acquired from separate property by one spouse during the marriage

* * *

(vii) Any gift of real or personal property or of an interest in 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.

{¶ 12} "The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable." R.C. 3105.171(A)(6)(b). Additionally, "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 or separate property. Instead, the couple's total circumstances are reviewed." Bergman, 2d Dist. Montgomery No. 25378, 2013-Ohio-715, at ¶ 30, quoting Nuding v. Nuding, 3d Dist. Mercer No. 10-97-13, 1998 WL 856923 (Dec. 7, 1998). See also R.C. 3105.171(H).

{¶ 13} The proponent of a claim that specific property is separate, not marital, bears the burden to prove that claim by a preponderance of the evidence. Bergman at ¶ 31, citing Peck v. Peck, 96 Ohio App.3d 731, 734, 645 N.E.2d 1300 (12th Dist.1994); Snyder v. Snyder, 2d Dist. Clark No. 2002-CA-6, 2002 WL 1252835, *3. "Oral testimony as evidence, without corroboration, may or may not satisfy the burden." Bergman at ¶ 31, quoting Maloney v. Maloney, 160 Ohio App.3d 209, 2005-Ohio-1368, 826 N.E.2d 864, ¶ 23 (2d Dist.). As traceability presents a question of fact, we must defer to the trial court on that issue, "and the court's decision on the matter will not be reversed as against the manifest weight of the evidence when it is supported by competent, credible evidence." Maloney at ¶ 23, citing C.E. Morris Co v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶ 14} "Once it is proven that specific property was the separate property of one of the spouses at, or after, the time of the marriage, the burden shifts to the other spouse to prove, by clear and convincing evidence, that the property, or some interest therein, has been given to the other spouse." Bergman at ¶ 31, quoting Snyder at *3, citing Helton v. Helton, 114 Ohio App.3d 683, 685, 683 N.E.2d 1157 (2d Dist.1996).

c. Assignment #1 - PNC Accounts

{¶ 15} Moore first asserts that the trial court erred by treating as marital property four PNC bank accounts held in Moore's name alone [accounts ending in 3092 and 3093, consisting of certificates of deposit] or held jointly in the names of Moore and his father, George R. Moore [accounts ending in 7658 and 7659].² The entirety of the trial court's findings as to those accounts is as follows, with certain citations to the record omitted:

Lana testified that during the marriage, she was told that Edmund was listed on one bank account with his parents, so that he could access it in the event of his father's death. * * * A number of accounts that held Edmund's name became unveiled during the course of discovery herein. Lana had no knowledge of the totality of Edmund's PNC accounts, including accounts which are in Edmund's name alone, and some that are joint accounts held by Edmund and his father, George Moore. Lana testified that she does not accept the joint accounts with Edmund's father as premarital or non-marital gifts to Edmund, as she felt over the course of the marriage that he was hiding money. * * * Lana stated that another account, set up by Edmund's mother, which was payable on death to him, would be more consistent with someone who wanted to set up an account in the event of someone's death, but the other accounts name Edmund and his father as co-owners. * * * These PNC accounts were not disclosed on Edmund's Affidavit of Financial Disclosure. * *

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