[Cite as Miller v. Miller, 2018-Ohio-5285.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               SANDUSKY COUNTY




DANIEL A. MILLER,
                                                             CASE NO. S-18-19
   PLAINTIFF-APPELLANT/
   CROSS-APPELLEE,

  v.

AMY M. MILLER,                                               OPINION

   DEFENDANT-APPELLEE/                                       December 28, 2018
   CROSS-APPELLANT.



                Appeal from Sandusky County Common Pleas Court
                           Domestic Relations Division
                            Trial Court No. 14DR1122

                  Judgment Affirmed in Part and Reversed in Part,
                                Cause Remanded

                                         Date of Decision:



APPEARANCES:

        Andrew R. Mayle for Appellant/Cross-Appellee

        Lisa M. Snyder for Appellee/Cross-Appellant
Case No. S-18-19



WILLAMOWSKI, P.J.

       {¶1} Plaintiff-appellant, cross-appellee Daniel A. Miller (“Daniel”) and

defendant-appellee, cross-appellant Amy M. Miller (“Amy”) appeal the judgment

of the Sandusky County Court of Common Pleas, alleging the trial court did not

correctly follow the ruling of this Court in Miller v. Miller, 6th Dist. Sandusky No.

S-16-27, 2017-Ohio-7646, ¶ 11. For the reasons set forth below, the judgment of

the trial court is affirmed in part and reversed in part.

                            Facts and Procedural History

       {¶2} Daniel and Amy were married in 1986. Doc. 1. In 2012, Amy had

inherited roughly $276,585.00 from her father. Doc. 31. Amy used $71,175.80 of

this inheritance to pay off the remaining balance of the mortgage on the marital

residence. Tr. 33-34. Ex. B. At the time of the divorce, the marital residence was

valued at $253,000.00. Tr. 38. Ex. A. Amy also used portions of this inheritance

to fund a joint investment account with Edward Jones. Tr. 98-101. Ex. B, N. Doc.

31. The funds in this joint investment account were subdivided into two different

accounts: a stock account and an annuity contract account. Tr. 101. Amy testified

that the stock account was initially funded with inheritance monies but that later

contributions were made to this account with marital funds. Tr. 102. The annuity

contract account, however, was entirely funded with inheritance monies, and no

subsequent contributions were made to this annuity. Tr. 101. While this was a joint


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investment account, Amy claimed that “if you’re married, Ed Jones just

automatically puts it in spousal name. Dan was never present. [Daniel] was never

involved in the investments or anything like that.” Tr. 105.

       {¶3} Daniel filed for a divorce in 2014. Doc. 1. At the divorce proceeding

on April 12, 2016, one of the primary issues before the trial court was whether

certain assets that were purchased with the proceeds of Amy’s inheritance should

be classified as separate or marital property. Doc. 30. Amy asserted that she did

not intend for the identified transactions to be gifts to Daniel and that these assets

remained her separate property because they were traceable to her inheritance. Doc.

30. She further argued that Daniel—as the purported donee—had the burden of

establishing that these transactions were gifts. Doc. 30. Daniel, on the other hand,

argued that these transactions were gifts and that these proceeds from Amy’s

inheritance were, through these transactions, transmuted into marital property. Doc.

29. Daniel further argued that, under the family gift presumption, Amy—as the

purported donor—had the burden of establishing that these transactions were not

gifts and that she had not carried this burden of proof. Doc. 29.

       {¶4} On May 9, 2016, the trial court determined that Daniel—as the

purported donee—had the burden of establishing that the identified transactions

were gifts and found that he had not carried this burden. Doc. 31. For this reason,

the trial court determined that the equity in the marital residence that resulted from

the mortgage payoff was Amy’s separate property. Doc. 31. The trial court then

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determined that the annuity contract account was Amy’s separate property but found

that the stock account was marital property to be divided equally between the

parties. Doc. 31.

        {¶5} On his first appeal, Daniel argued that the trial court failed to apply the

family gift presumption in the process of classifying the contested assets. Miller,

supra, at ¶ 11. Generally, the purported donee bears the burden of establishing that

the donor intended for a transaction to be an inter vivos gift. Kovacs v. Kovacs, 6th

Dist. Sandusky No. S-09-039, 2011-Ohio-154, ¶ 12. However, under the family gift

presumption, if a transaction benefits a family member, the transaction is presumed

to be a gift.1 Id. Thus, when the family gift presumption is applicable, the purported

donor will generally bear the burden of establishing that a transaction was not a gift.

Id. Since Amy and Daniel were family members at the time of these transactions,

Daniel argued that he—as the purported donee—should not have had the burden of

proving these transactions were gifts. Miller at ¶ 11. Rather, he argued that Amy—

as the purported donor—should have had the burden of establishing these

transactions were not gifts. See Kovacs at ¶ 12.

        {¶6} The family gift presumption has not generally been applied in the

context of domestic relations proceedings. See Creed v. President, etc., of Lancaster



1
 In our prior opinion, we referred to this as the “marital gift presumption” because the Sixth District, in
Kovacs applied the family gift presumption in the context of marital relationships. Kovacs, supra, at ¶ 12.
However, in this opinion, we have opted to refer to this concept uniformly as the “family gift presumption.”

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Bank, 1 Ohio St. 1 (1852); Maurer v. Maurer, 2d Dist. Montgomery No. 10029,

1987 WL 7868, *3 (Mar. 13, 1987) (holding that the family gift presumption has

traditionally been applied in cases “involve[ing] claims by creditors alleging

fraudulent conveyances and not domestic relations matters.”); Davis v. Davis, 5th

Dist. Stark No. 2003CA00243, 2004-Ohio-820, ¶ 8. However, in 2004, the Eleventh

District applied the family gift presumption in the context of a divorce proceeding

in Osborn v. Osborn, 11th Dist. Trumbull No. 2003-T-0111, 2004-Ohio-6476, ¶ 33.

The Osborn decision was somewhat novel in applying the family gift presumption

to transactions between spouses that are alleged to be gifts in a divorce proceeding.2

Compare Helton v. Helton, 114 Ohio App.3d 683, 683 N.E.2d 1157 (2d Dist.);

Neville v. Neville, 3d Dist. Marion No. 9-08-37, 2009-Ohio-3817, ¶ 17; Stotts v.

Stotts, 4th Dist. Athens No. 16CA14, 2017-Ohio-5738, ¶ 12; Nethers v. Nethers,

2018-Ohio-4085, --- N.E.3d ---, ¶ 16 (5th Dist.). The Sixth District, in Kovacs,

followed the Osborn decision and applied the family gift presumption in a divorce

proceeding. Kovacs, supra, at ¶ 12, citing Osborn at ¶ 33. Since that time, the Sixth

District has not overturned or clearly contradicted Kovacs in a factually similar case.

See Soley v. Soley, 2017-Ohio-2817, 82 N.E.3d 43 (6th Dist.).3


2
  Since the Kovacs decision, the Eleventh District has decided several cases that are factually similar to
Osborn. See Brady v. Brady, 11th Dist. Portage No. 2007-P-0059, 2008-Ohio-1657, ¶ 27; Siefert v. Seifert,
2012-Ohio-3037, 973 N.E.2d 834, ¶ 10 (11th Dist.). In these cases, the Eleventh District clearly applied the
traditional rule and expressly placed burden on the donee spouse to establish that the donor spouse intended
a transaction to be a gift. Brady, supra, at ¶ 24; Seifert, supra, at ¶ 10.
3
  In Soley, the appellee owned real property that he transferred to the appellant via a quitclaim deed after his
marriage. Soley, supra, at ¶ 2. The trial court found this remained appellee’s separate property. Id. On
appeal, appellant argued that a transfer via a quitclaim deed makes a transaction a gift per se. Id. at ¶ 23.

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         {¶7} As we are sitting by assignment, we followed the precedent of the Sixth

District in Kovacs. Thus, we found Daniel’s argument to have merit and ordered

the trial court to apply the family gift presumption to the relevant transactions. Id.

at ¶ 17. On remand, the trial court applied the family gift presumption to the equity

in the marital residence in its judgment entry. Doc. 48. The trial court then

determined that the mortgage payoff was a gift from Amy to Daniel and credited

Daniel with $35,587.90. Doc. 48. The trial court, however, did not expressly

analyze any other assets under the family gift presumption in its judgment entry.

Doc. 48. Both Daniel and Amy appealed this decision. On appeal, Daniel raises

the following assignment of error:

                                  Daniel’s Assignment of Error

         Before ordering the ultimate distribution of property in this
         divorce case, the trial court erred by never determining, under
         the right legal standard, the threshold issue of whether certain
         disputed assets are ‘marital’ or ‘separate’ property.

On cross-appeal, Amy raises the following assignment of error:

                               Amy’s Assignment of Error

         The trial court erred on remand in finding that the mortgage
         payoff constituted marital property when the funds used were
         separate property under R.C. 3105.171(A)(6)(a).

The Sixth District rejected the appellant’s argument but reversed the trial court’s classification because the
record showed that appellee transferred the property with the intent to avoid creditors. Id. at ¶ 23. In this
decision, the Sixth District quoted a portion of Kovacs but did not mention the family gift presumption. Id.
at ¶ 20. While the Sixth District addressed the appellant’s arguments on appeal, it is not clear who had the
burden of proving a gift in Soley. The primary issue was the legal significance of the quitclaim deed, not the
question of which party had the burden of proof. In the absence of a case that clearly contradicted or
overturned Kovacs, we, sitting by assignment, applied what is expressly stated in Kovacs to the facts of Miller
I. Miller, supra, at ¶ 17.

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                            Daniel’s Assignment of Error

       {¶8} Daniel argues the trial court did not apply the family gift presumption

to all of the contested assets.

                                   Legal Standard

       {¶9} In dividing property between the parties to a divorce action, the trial

court identifies what property is marital and what property is separate. R.C.

3105.171(B). The separate property is retained by the party who obtained the

separate property regardless of whether the separate property was acquired before

or during the marriage. R.C. 3105.171(D). The marital property is then to be

divided equally between the parties unless such a division would be inequitable.

R.C. 3105.171(C)(1). Separate property includes “an inheritance by one spouse by

bequest, devise, or descent during the course of the marriage.”                    R.C.

3105.171(A)(6)(a)(i). If separate property is commingled with marital property, the

separate property does not become marital property unless “the separate property is

not traceable.” R.C. 3105.171(A)(6)(b).

       {¶10} Parties can transmute separate property into marital property by means

of an inter vivos gift, where, as here, there has been effected a reduction of the

parties’ joint obligation for their mortgage. See Kovacs, supra, at ¶ 12. “The

essential elements of an inter vivos gift are: ‘(1) [the] intent of the donor to make an

immediate gift, (2) delivery of the property to the donee, [and] (3) acceptance of the



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gift by the donee.’” Id., quoting Barkley v. Barkley, 119 Ohio App.3d 155, 694

N.E.2d 989 (4th Dist. 1997), fn. 2.

          “The donee has the burden of showing by clear and convincing
          evidence that the donor made an inter vivos gift.” Clear and
          convincing evidence is that proof which establishes in the mind of
          the trier of fact a firm conviction as to the allegations sought to be
          proven. However, “[w]hen a transaction is made that benefits a
          family member, there is a presumption that the transaction was
          intended as a gift.”

(Citations omitted.) Kovacs at ¶ 12, citing Osborn, supra, at ¶ 33; Davis, supra, at

¶ 8. On appeal, “a trial court’s classification of property as marital or separate is

reviewed under a manifest weight standard.” Miller v. Miller, 6th Dist. Sandusky

No. S-12-035, 2013-Ohio-5071, ¶ 22.

          As such, we must weigh the evidence and all reasonable
          inferences, consider the credibility of witnesses, and determine
          whether in resolving conflicts in the evidence, the finder of fact
          clearly lost its way and created such a manifest miscarriage of
          justice that the judgment must be reversed and a new trial
          ordered. In so doing, ‘the court of appeals must always be mindful
          of the presumption in favor of the finder of fact.’

(Citations omitted.) Gomer v. Gomer, 2017-Ohio-989, 86 N.E.3d 920, ¶ 38 (6th

Dist.).

                                     Legal Analysis

          {¶11} In addressing the appellant’s argument, we find it necessary to clarify

our prior ruling. In his previous appeal, Daniel argued that the trial court failed to

apply the proper legal standard in the process of dividing “the equity in the marital

residence [and] other accounts.” Miller, 2017-Ohio-7646, ¶ 9. The primary thrust

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of Daniel’s argument addressed the equity in the marital residence, but Daniel also

alleged that the trial court failed to apply the family gift presumption to the annuity

contract account that was funded with Amy’s inheritance. In sustaining the first

assignment of error in Daniel’s prior appeal, we did not intend for the application

of the family gift presumption to be limited to the equity in the marital residence.

Rather, we intended for the family gift presumption to be applied to all of the assets

that were contested in Section A of his first assignment of error: the equity in the

marital residence and the “other accounts.” 4 While the trial court, on remand,

expressly applied the family gift presumption to the equity in the marital residence,

the trial court did not reference any other accounts in its judgment entry. Doc. 48.

Thus, we cannot conclusively determine from the judgment entry whether the trial

court applied the family gift presumption to the annuity contract account. For this

reason, we sustain Daniel’s sole assignment of error.5




4
  The appellant, in his brief, does not specifically identify which accounts he believes were improperly
classified as Amy’s separate property. From the record, it appears that at least one account would be subject
to the family gift presumption: the annuity contract account in the Edward Jones investment portfolio. This
annuity contract was jointly owned and awarded to Amy as her separate property. Thus, the family gift
presumption seems to be applicable to at least one account. We will, however, leave it to the trial court to
find whether any additional accounts should be analyzed under the family gift presumption.
5
  In our prior opinion, we did not require the trial court to divide the contested assets between the parties.
We only required the trial court to apply the family gift presumption where it was applicable. Thus, it is
possible that the trial court did consider the disputed accounts under the family gift presumption but did not
incorporate this analysis into its judgment entry because it determined that no modification of its prior order
was necessary as to these assets. If this is the case, the trial court needs only to incorporate these additional
findings into its judgment entry.

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                              Amy’s Assignment of Error

         {¶12} Amy argues that the trial court erred in crediting Daniel with half the

value of the mortgage payoff amount. She asserts that the trial court should have

classified this amount as her separate property because the funds used to pay off the

mortgage were traceable to her inheritance.

                                    Legal Standard

         {¶13} We reincorporate the standard set forth under Daniel’s assignment of

error.

                                    Legal Analysis

         {¶14} At the divorce proceeding, Amy submitted documentation that traced

the funds she used to payoff the mortgage back to her inheritance. Ex. B. However,

under the Sixth District’s family gift presumption, the issue was not merely whether

Amy could establish that these funds were traceable but also whether Amy could

carry the burden of establishing that this transaction was not a gift to Daniel. Miller,

2017-Ohio-7646, ¶ 13-14. On remand, the trial court found that Amy had not

carried this burden. Doc. 48.

         {¶15} The evidence in the record shows that the trial court did not, in this

matter, make a classification that was against the manifest weight of the evidence.

At trial, Daniel testified that the marital residence was jointly owned and that the

mortgage on this property was in both of their names. Tr. 14. Daniel also testified


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that he did not ask Amy to pay off the mortgage. Tr. 34-35. Amy, on the other

hand, testified that she paid off the mortgage because her “goal was always to be

debt free * * *.” Tr. 128. Daniel, in his final argument, responded by arguing that

this was a jointly held debt and that this transaction was, therefore, undertaken to

reduce his indebtedness also. Doc. 29. See Kovacs, supra, at ¶ 15 (holding “the

evidence established that by paying off the mortgage on the * * * marital home,

appellant eased the burden of a mortgage payment on both he and appellee.”).

       {¶16} On remand, the trial court followed our order to apply the family gift

presumption to the equity resulting from the mortgage payoff and determined that

Amy had, in 2012, intended this transaction to be a gift. Doc. 48. After reviewing

the evidence in the record, we find that the trial court’s classification was supported

by competent, credible evidence. Further, we do not find evidence in the record that

indicates that this determination is against the manifest weight of the evidence. For

these reasons, Amy’s sole of assignment of error is overruled.



                                     Conclusion

       {¶17} Having found error prejudicial to the appellant in the particulars

assigned and argued in his sole assignment of error, the judgment of the trial court

is reversed as to this issue. Having found no error prejudicial to the cross-appellant

in the particulars assigned and argued, the judgment of the trial court is affirmed as



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to this issue. This matter is remanded to the Sandusky County Court of Common

Pleas for further proceedings in accordance with this opinion.


                                                      Judgment Affirmed in Part,
                                                               Reversed in Part,
                                                          And Cause Remanded

SHAW and PRESTON, J.J., concur.

/hls

Judges John R. Willamowski, Vernon L. Preston and Stephen R. Shaw, from the
Third District Court of Appeals, sitting by assignment of the Chief Justice of the
Supreme Court of Ohio.




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