[Cite as Kuhn v. Kuhn, 2014-Ohio-126.]


                                      COURT OF APPEALS
                                  GUERNSEY COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



JAMES P. KUHN                              :       JUDGES:
                                           :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                 :       Hon. Sheila G. Farmer, J.
                                           :       Hon. John W. Wise, J.
-vs-                                       :
                                           :
KELLY L. KUHN NKA COTTLE                   :       Case No. 13 CA 24
                                           :
        Defendant-Appellant                :       OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 12-DR-140



JUDGMENT:                                          Affirmed/Reversed in Part




DATE OF JUDGMENT:                                  January 13, 2014




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DONALD D. BROWN                                    ROBERT ROE FOX
803 Steubenville Avenue                            388 South Main Street
Cambridge, OH 43725                                Suite 402
                                                   Akron, OH 44311
Guernsey County, Case No. 13 CA 24                                                    2

Farmer, J.

      {¶1}   On April 19, 2001, appellee, James Kuhn, purchased a property for

$30,000.00. He put $6,000.00 down and financed the remaining amount with First

Federal Savings Bank of Eastern Ohio. The property was deeded in his name only.

      {¶2}   On March 13, 2002, the mortgage was rolled into a mortgage with

Caldwell Savings and Loan Co. in the amount of $136,600.00 in order to construct a

home on the property.

      {¶3}   On June 3, 2006, appellee executed a home equity line of credit with

Wright-Patt Credit Union in the amount of $25,000.00.

      {¶4}   On February 5, 2007, appellant, Kelly (Fatheree) Kuhn nka Cottle, paid

the balance due on the home equity line of credit in the amount of $18,644.38. On

February 17, 2007, appellant paid $80,000.00 toward the Caldwell mortgage.

      {¶5}   On March 30, 2007, appellee, together with appellant, refinanced the

property with Summit Federal Credit Union in the amount of $47,500.00, the amount

remaining on the Caldwell mortgage.

      {¶6}   On May 12, 2007, appellee and appellant were married.         The subject

property and home became the marital residence. During the course of the marriage,

the mortgage was satisfied and the marital residence property was unencumbered by

any debt.

      {¶7}   On October 22, 2011, the parties executed an oil and gas lease with

Gulfport Energy Corporation for oil and gas rights to the marital residence property.

Both parties were identified as the "lessors." The lease provided for a signing bonus of
Guernsey County, Case No. 13 CA 24                                                     3


$121,285.00, and twenty percent royalties in the event oil and gas are produced from

the property. The signing bonus check was executed on February 16, 2012.

      {¶8}    On March 19, 2012, appellee filed a complaint for divorce. The parties

entered into various agreements and temporary orders. By order filed June 12, 2012,

the parties agreed that appellee would pay appellant $70,000.00.

      {¶9}    A final hearing before a magistrate was held on March 1, 2013. The

parties entered into an agreement on all issues except for the disposition of the oil and

gas lease signing bonus check and the rights to any future royalties. By decision filed

March 26, 2013, the magistrate determined the marital residence property was

appellee’s separate property and therefore the signing bonus and the rights to any

future royalties under the oil and gas lease were the sole property of appellee. The

magistrate noted appellant received $70,000.00 and appellee agreed to pay appellant

an additional $10,000.00. The trial court adopted the magistrate’s decision on same

date. Appellant filed objections. By entry filed June 7, 2013, the trial court denied the

objections.

      {¶10} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶11} "THE TRIAL COURT'S DECISION TO GRANT PLAINTIFF-APPELLEE

THE FULL PROCEEDS FROM THE SIGNING BONUS CHECK AND LEASE

ROYALTIES WAS NOT SUPPORTED BY CREDIBLE OR SUFFICIENT EVIDENCE AS

DEFENDANT-APPELLANT INVESTED SUBSTANTIAL PREMARITAL FUNDS WHICH

PROVIDED HER A SEPARATE PROPERTY INTEREST IN SAME."
Guernsey County, Case No. 13 CA 24                                                     4


                                            II

        {¶12} "THE TRIAL COURT'S DECISION TO GRANT PLAINTIFF-APPELLEE

THE FULL PROCEEDS FROM THE SIGNING BONUS CHECK AND LEASE

ROYALTIES WAS NOT SUPPORTED BY CREDIBLE OR SUFFICIENT EVIDENCE AS

THESE ASSETS REPRESENT MARITAL PROPERTY ACQUIRED DURING THE

MARRIAGE."

                                           I, II

        {¶13} Appellant claims the trial court's decision to grant appellee the full

proceeds from the signing bonus check and the rights to any future royalties under the

oil and gas lease was against the manifest weight and sufficiency of the evidence.

Appellant claims she had invested premarital funds in the subject property thereby

providing her a separate property interest, and the signing bonus check and the rights to

any future royalties constitute marital property acquired during the marriage. We agree

in part.

        {¶14} R.C. 3105.171(A)(3)(a) defines "marital property" as follows in pertinent

part:



              (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
Guernsey County, Case No. 13 CA 24                                                       5


          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;



      {¶15} R.C. 3105.171(A)(6)(a)(ii) defines "separate property" and includes the

following: "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."

      {¶16} As noted by the magistrate in her decision filed March 26, 2013 at

Findings of Fact Nos. 10 and 11, it is uncontested that appellee purchased the marital

residence property prior to the marriage and constructed a home on the property:



             10. The real property located at 64720 Haught Road, Cambridge,

             Ohio, which consists of approximately 24.257 acres, more or less,

             and which will hereinafter be referred to as the Haught Road

             property, was acquired by Husband by general warranty deed

             dated April 19, 2001, for $30,000. All mineral rights including oil

             and gas went with the land.

             11. Husband paid $6000 down and secured the other $24,000 with

             a mortgage. In 3/13/2002, Husband using an equity line of credit

             for $136,000 and with the help of his family and some
Guernsey County, Case No. 13 CA 24                                                     6


               subcontractor's, Husband built a home on the real estate. What

               was left on the original mortgage was rolled over into the line of

               credit. The only value given for the Haught Road property was

               $165,000, from a drive by appraisal for an equity line of credit.



      {¶17} Appellant argues she obtained a separate interest in the property when

she invested her premarital funds in the property ($18,644.38 toward a home equity line

of credit and $80,000.00 toward the mortgage). In addition, the property was refinanced

during the course of the marriage and appellant's name was included on the note and

mortgage. See, Note, Disclosure, Security Agreement attached to Appellant's Brief as

Appendix I.

      {¶18} Appellee argues the parties agreed to an $80,000.00 payment to

appellant.    During the hearing before the magistrate (T. at 5), appellant's attorney

explained the following:



               ***Mr. Kuhn had agreed in the Temporary Orders that he would

               reimburse to Mrs. Kuhn Eighty Thousand Dollars that we agree she

               paid on the mortgage before they were married.                Seventy

               Thousand ($70,000.00) on it has been paid so he still owes her Ten

               Thousand Dollars ($10,000.00).         That Ten Thousand Dollars

               ($10,000.00) will be paid as far as a cash award is concerned or a

               cash payment is concerned.
Guernsey County, Case No. 13 CA 24                                                     7


      {¶19} The magistrate's temporary order filed June 12, 2012 stated the following:



             3. That the oil and gas delayed rental/royalty deposit previously

             ordered held in a joint account by the parties, shall be closed and

             the funds held in said account shall be divided $70,000 to the

             Defendant and the balance in the amount of $51,419.48 to the

             Plaintiff. The parties are ordered to forthwith meet at Advantage

             Bank to close and liquidate said account, consistent with this

             agreement and order (see attached check copies evidencing

             closure and distribution of account proceeds.



      {¶20} The parties' March 1, 2013 agreement, attached to the magistrate's March

26, 2013 decision as Exhibit A, included the following.



             A. Real Estate

              1. Haught Road Residence and Premises: The real estate and

              residence premises located at 64720 Haught Road, Adams

              Township, Cambridge, Guernsey County, Ohio, presently titled in

              the name of the Plaintiff, consisting of the Plaintiff's residence and

              improvements and 24.257 acres more or less, shall be the sole

              property of the Plaintiff, free and clear of all claims of the

              Defendant. Any and all mortgage indebtedness on said premises,

              in excess of the $142,525 due on the Orchard property financing,
Guernsey County, Case No. 13 CA 24                                                        8


              secured by the Haught Road current line of credit, shall be

              assumed and paid by the Plaintiff and the Plaintiff shall save the

              Defendant harmless therefrom.       The line of credit indebtedness

              associated with the indebtedness due on the Orchard property/farm

              shall be paid in accord with subsequent provisions of this

              agreement. Further the Plaintiff shall pay unto the Defendant, on or

              before April 22, 2013, the remaining sum of $10,000.



       {¶21} The parties resolved all of their issues regarding the marital residence

property save for the issue of the $121,285.00 signing bonus for the oil and gas lease

acquired during the course of the marriage, as well any future royalties.

       {¶22} During the hearing, appellant presented evidence of her premarital

investments in the property, despite the parties' agreement to reimburse appellant for

her contributions.

       {¶23} We specifically find the agreed settlement amount for appellant's

contributions to the financing of the marital residence property fully resolved the issue of

appellant's investments.    Therefore, we find "transmutation" of the property did not

occur, and appellant did not obtain a separate property interest.

       {¶24} The gravamen of this case is whether the oil and gas lease signed by both

parties is separate or marital property.

       {¶25} The lease provided for a signing bonus of $121,285.00 and the right to

future royalties in the event oil and/or gas is extracted from the property. The lease

specifically identifies the lessors as "James P. Kuhn and Kelly L. Kuhn, his wife." The
Guernsey County, Case No. 13 CA 24                                                     9


consideration for the drilling rights was the out-front payment of $121,285.00 to the

lessors. This was "income" received during the marriage and was reportable to the IRS

for tax purposes. T. at 52. The 1099 from Gulfport Energy Corporation identified both

parties as the recipients of the signing bonus. Id.

       {¶26} Based on the nature of the payment, we find the $121,285.00 to be marital

property just as any other income generated during a marriage. We find it is divisible as

a separate award, half to each party. Because no transmutation occurred, we find any

future royalty rights belongs exclusively to the property owner, appellee herein.

       {¶27} Upon review, we find the trial court erred in granting the full proceeds of

the signing bonus to appellee, but was correct in awarding appellee the rights to any

future royalties. The $121,285.00 is to be divided equally between the parties, and

appellee is entitled to any future royalties under the oil and gas lease.

       {¶28} Assignment of Error I is denied. Assignment of Error II is granted as to the

signing bonus and denied as to any future royalties under the oil and gas lease.
Guernsey County, Case No. 13 CA 24                                            10


      {¶29} The judgment of the Court of Common Pleas of Guernsey County, Ohio is

hereby affirmed in part and reversed in part.

By Farmer, J.

Wise, J. concurs separately and

Gwin, P.J. dissents.




SGF/sg 1210
Guernsey County, Case No. 13 CA 24                                                    11

Gwin, P.J., dissenting

       {¶30} I respectfully dissent from the majority’s characterization of the

$121,285.00 signing bonus as marital property to be divided equally between the

parties.

       {¶31} The trial court recognized that the marital residence property was

appellee’s separate property. The trial court further recognized that the royalties from

the oil and gas lease are exclusively appellee’s separate property because appellant

never acquired any interest in the marital residence property.

       {¶32} "Marital property" includes 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. R.C. 3105.171(A)(3)(iii). Thus, when either

spouse makes a labor, money or an in-kind contribution that causes an increase in the

value of separate property, that increase in value is marital property. Passive income

and appreciation acquired from separate property by one spouse during the marriage,

however, is separate property. R.C. 3105.171(B)(4). Therefore, because the agreed

settlement amount for appellant’s contributions to the financing of the marital residence

fully resolved the issue of appellant’s investments, allocation of the signing bonus can

only be characterized as passive income acquired from the separate property of the

appellee. Appellant never acquired a “separate property interest.” Appellant’s signing of

the lease agreement could not create a property interest in the marital residence

property. She therefore had no interest to convey through the oil and gas lease.

       {¶33} The only interest appellant potentially had to convey was a dower interest.

R.C. 2103.02. However, a “‘[d]ower interest arises when property is purchased during a
Guernsey County, Case No. 13 CA 24                                                    12


marriage and continues unless the interest is specifically released. * * * Such a release

must be done in writing and recorded.’ State ex rel. Miller v. Private Dancer (1992), 83

Ohio App.3d 27, 30, 613 N.E.2d 1066, 1068.” Ogan v. Ogan, 122 Ohio App.3d 580,

585, 702 N.E.2d 472(12th Dist 1977); Accord Jewett v. Feldheiser, 68 Ohio St. 523, 67

N.E. 1072. The oil and gas lease could not, and, as found by the trial court did not

create any interest in appellant in the separate marital residence property of appellee.

Thus, appellant could never have a dower interest in appellee’s separate property that

was not purchased during the marriage.

      {¶34} Accordingly, I dissent from that portion of the majority opinion that

characterizes the $121,285.00 signing bonus as marital property to be divided equally

between the parties. I would overrule both of appellant’s assignments of error and affirm

the Court of Common Pleas of Guernsey County decision.
Guernsey County, Case No. 13 CA 24                                                     13

Wise, J., concurring

       {¶35} I concur with Judge Farmer’s decision to affirm in part and reverse in part.

I add my observation, regarding the issue of future royalties on the oil and gas lease,

that even though appellee was awarded the subject real estate as his separate

property, he agreed in writing in the lease to effectively make appellant a co-lessor. I

find this provides at least some evidence of transmutation of the future revenue stream

into marital property. However, a trial court’s decision on the classification of separate

and marital property is generally not reversed unless there is a showing of an abuse of

discretion. See, e.g., Valentine v. Valentine, (Jan. 10, 1996), Ashland App.No.

95COA01120, citing Peck v. Peck (1994) 96 Ohio App.3d 731, 734, 645 N.E.2d 1300. I

am therefore not inclined under the circumstances presented to disturb the trial court’s

ruling as to said future lease royalties.
