[Cite as Gilleo v. Gilleo, 2010-Ohio-5191.]




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




WILLIS GILLEO,

        PLAINTIFF-APPELLANT,                             CASE NO. 10-10-07

        v.

BEVERLY GILLEO,                                          OPINION

        DEFENDANT-APPELLEE.




                  Appeal from Mercer County Common Pleas Court
                            Domestic Relations Division
                            Trial Court No. 07 DIV 075

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                            Date of Decision: October 25, 2010




APPEARANCES:

        Kelly J. Rauch for Appellant

        Thomas E. Luth for Appellee
Case No. 10-10-07


SHAW, J.,

       {¶1} Plaintiff-Appellant, Willis Gilleo (“Willis”) appeals the judgment of

the Mercer County Court of Common Pleas, Domestic Relations Division,

granting a divorce from Defendant-Appellee, Beverly Gilleo (“Beverly”). On

appeal, Willis contends that the trial court made several errors in dividing marital

property, separate property, and debts.

       {¶2} The facts relevant to this appeal are as follows. Willis and Beverly

married on March 8, 2003, in Celina, Ohio. They separated on January 16, 2006,

and were granted a divorce on April 14, 2009. No children were born as issue of

the marriage.

       {¶3} The parties had been living together since September of 2000.

Beverly owned a home and property located at 205 Stella Street that she had

purchased in 1985. Originally, the couple lived elsewhere because the Stella

Street property had been badly damaged by renters. Beverly testified that the

home was in “fair” condition and she was planning to repair it. She had already

purchased new windows and drywall to restore the home. Willis testified that the

home was “uninhabitable” with drywall and insulation torn out, windows broken

out, and a flooded basement. Therefore, he wanted to tear it down and build a

brand new home in its place on Beverly’s property.




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        {¶4} Willis had construction experience, having previously owned a

construction company and had worked as an electrical engineer and a mechanical

engineer. At that time, he was earning over $65,000, plus bonuses,1 and had

approximately $50,000 funding available from the sale of his previous home.

Beverly claimed that she did not want to tear down the old house and that she told

Willis she could not afford to build a new home. She earned approximately

$20,000 working at Wal-Mart and for the Dayton Daily News. She claims that she

agreed to have Willis demolish the old house and build a new one because Willis

said he would help her if the payments got too high.

        {¶5} In June 2001, they tore down the old house and began constructing a

new home that Willis designed. Willis acted as general contractor and worked on

the home, along with various other contractors. Beverly’s adult son, Charles

Dennis, and Willis’ adult son, Adam Gilleo, also helped with the demolition and

the new construction. Both sons appeared at the hearing and provided testimony

as to how much time and work each contributed. Charles testified that he worked

on the home even after he began working at Celina Aluminum Precision

Technology, aka CAPT, on November 5, 2001, and that his contributions to the

home construction compared to Adam’s was 60/40 or 65/35, with him performing

more work on the home than Adam. Willis also testified about the work of both


1
  At the time of the hearing, Willis testified that he was currently receiving only $1,750 per month in
disability payments. He testified that he is disabled and has not been able to work since August 2005.


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Case No. 10-10-07


sons, stating that each equally participated in the demolition of the old home but

that Charles did little for the new home construction because he had obtained a job

by that point and worked several hours.

      {¶6} The construction was completed in early 2002, and the couple

moved into the new home together, along with Charles, who also had lived with

the couple in their previous residence.         In March 2003, Beverly and Willis

married. They continued to reside together in the Stella Street home until January

16, 2006, when Willis moved out after a dispute with Beverly’s son. Willis filed

for divorce in December 2007.

      {¶7} On July 28, 2008, Willis and Beverly appeared before the magistrate

for a hearing, and both parties testified and presented numerous exhibits for the

court’s review. They testified concerning several vehicles and the debts associated

with those vehicles. The parties also testified concerning who was entitled to

various household items, including a grandfather clock, a coffee pot, curtains, a

pressure washer, suitcases, a freezer, a ladder, and a wheelbarrow. However, the

primary area of contention involved the Stella Street home and property.

      {¶8} Willis testified that he had spent his own money to build the home

and presented almost two hundred exhibits showing receipts, invoices, checks, and

credit card payments for various expenses allegedly incurred in the building of the

new home.     He testified that he spent $113,940.54 between June 2001 and



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November 2002, and showed deposits of over $73,000 towards the construction of

the home that he asserted came from his personal monies.

       {¶9} During cross-examination, issues were raised concerning whether all

of the invoices had actually been paid and whether there was a duplicate billing for

a range hood. As to the range hood, Willis testified that one invoice was for a 30”

range hood above the stove but could not recall what the invoice for the other

range hood was for, simply that the invoice stated “conver range hood.” However,

he testified that it could have been the supplier’s way of describing an exhaust fan

or something of that nature but that, in any event, he only purchased one range

hood for above the stove.

       {¶10} As for the questions concerning some of his invoices, although

Willis did not have documentation that each invoice was paid, he testified to

paying these invoices and was able to recall how most of the invoices were paid,

i.e. cash, credit card, etc. Willis was also questioned as to why he had paid his son

for the work Adam did on the home but did not compensate Beverly’s son for his

work. Willis testified that Charles lived in his home for four years, including the

new home on Stella Street without paying rent, so he felt that was sufficient.

Willis also acknowledged that Beverly owned the Stella Street property and that

she refinanced the property for $85,000 during the home’s construction and gave




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him $50,000 from the mortgage proceeds to pay for expenses in building the new

house.

         {¶11} Beverly produced the deed showing that she had owned the property

since 1985.       No evidence was presented concerning its value prior to the

construction of the new home. Beverly testified that, during the construction,

Willis complained he was running low on money and that he wanted her to get a

loan. Therefore, in January 2002, Beverly obtained a mortgage for $85,000. She

used the money to pay off the existing mortgage of $11,745.98 that she had on the

property, $11,483.14 was used to pay off the drywall and windows she had

purchased to put in the old house, $1,711 was used to pay off a credit card of

Beverly’s, $5,131 was used to pay off her car loan, and she gave Willis $50,000

for expenditures on the new house.

         {¶12} After they were married, Willis believed that they could get a better

interest rate on a new mortgage using his credit rating. In August 2003, at Willis’

urging, they refinanced the property for $96,000. This money was used to pay off

the existing mortgage from January 2002, and to pay other bills of Beverly’s,

including medical bills from Mercy County hospital, NCO Financial, and

Progressive. In order to obtain this financing, the mortgage broker required the

mortgage and deed to be in both parties’ names. Beverly testified that she did not

intend to give Willis her interest in the real estate; she was simply signing the



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Case No. 10-10-07


documents they asked her to complete in order to obtain the loan.                             Beverly

testified that she had paid the mortgage payments on all of the mortgages that had

existed on the property from her money and provided her check registers and bank

statements to support her testimony.2

        {¶13} At the time of the separation in January 2006, the mortgage balance

was $89,518.34. Both parties agreed that the value of the home and property was

$94,000, based upon a May 2008 appraisal.

        {¶14} On December 15, 2008, the magistrate issued findings of fact and

conclusions of law. The magistrate found that the property located at 205 Stella

Street was Beverly’s separate property prior to the marriage and awarded the

house and property to Beverly. The magistrate found that the fair market value of

the property was $94,000, and the value of the mortgage at the time of the

separation was $89,500, leaving $4,500 in equity. Beverly was ordered to pay

Willis $2,250 as his one-half share of the marital equity in the real estate. The

magistrate did not find that Willis’ testimony and exhibits regarding how much of

his separate property he put into the construction of his new home was credible

because (1) he paid his son for work done on the home but not Beverly’s; (2) there

were duplicate receipts for the same item; and (3) there were invoices with no

evidence that any money was paid towards the home.


2
  Willis and Beverly maintained separate checking accounts and did not comingle their funds, even during
the marriage, except for one brief period when Willis added Beverly’s name to an account.


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       {¶15} In addition, the magistrate specifically awarded certain items of

personal property to each party, and all other items were to be divided with the

parties meeting and making alternating choices based upon a coin toss. Each party

was to keep any motor vehicles, stocks, bonds, retirement benefits and bank

accounts currently titled in their own name, and each party was responsible for any

debt incurred in his or her own name. Willis was responsible for payment of any

debt incurred for the motor vehicles.

       {¶16} Willis filed timely objections to the magistrate’s decision. On April

6, 2009, the trial court overruled all the objections with the exception of clarifying

the portion of the decision pertaining to the coin toss. On April 14, 2009, the trial

court issued the final divorce decree, following the magistrate’s recommendations.

However, due to a clerical error, the trial court issued a new judgment entry on

February 9, 2010, assigning the mortgage debt on the property to Beverly.

       {¶17} This appeal followed, and Willis now asserts five assignments of

error for our review.

                          ASSIGNMENT OF ERROR I

       The trial court erred to the prejudice of [Willis] when it failed to
       determine that he used $113,940.54 of his premarital funds to
       improve the Stella Street residence.




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                         ASSIGNMENT OF ERROR II

       The trial court erred to the prejudice of [Willis] when it
       determined that the equity in the Stella Street home was only
       $4,500.00.

                         ASSIGNMENT OF ERROR III

       The trial court abused its discretion when it failed to equally
       divide the marital debts of the parties.

                         ASSIGNMENT OF ERROR IV

       The trial court erred [sic] abused its discretion when it failed to
       equally divide the marital assets of the parties.

                         ASSIGNMENT OF ERROR V

       The trial court applied the wrong standard of review in
       considering the magistrate’s decision.

       {¶18} The first four assignments of error assert that the trial court erred in

allocating and dividing the parties’ marital and separate property and their debts.

It is well-settled that trial courts have “broad discretion to determine what property

division is equitable in a divorce proceeding.” Cherry v. Cherry (1981), 66 Ohio

St.2d 348, paragraph two of the syllabus, 421 N.E.2d 1293.            A trial court’s

decision allocating marital property and debt will not be reversed absent an abuse

of discretion. Jackson v. Jackson, 3d Dist. No. 11-07-11, 2008-Ohio-1482, ¶ 15,

citing Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131, 541 N.E.2d 597. An

abuse of discretion is more than a mere error; it implies that the court’s attitude is




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unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140.

                             First Assignment of Error

       {¶19} In his first assignment of error, Willis claims that the trial court erred

when it did not find that he was entitled to be fully compensated for all of the

premarital funds that he claims he spent building their new home on the Stella

Street property. He maintains that he presented 199 exhibits tracing in excess of

$113,000 of his premarital funds that he spent, and therefore, the court was

required to reimburse him for his separate property.

       {¶20} A trial court is charged with the duty of distinguishing between

marital property and separate property in accordance with the definitions set forth

in R.C. 3105.171(A). Lust v. Lust, 3d Dist. No. 16-02-04, 2002-Ohio-3629, ¶ 12.

Marital property includes property that is currently owned by either or both

spouses and that was acquired by either or both of the spouses during the

marriage.   R.C. 3105.171(A)(3)(a).       Property acquired during a marriage is

presumed to be marital property unless it can be shown to be separate. Barkley v.

Barkley (1997), 119 Ohio App. 3d 155, 160, 694 N.E.2d 989.

       {¶21} Separate property is defined by R.C. 3105.171(A)(6)(a), and

includes any real or personal property, or interest in such, that was acquired by one

spouse prior to the date of the marriage. Neville v. Neville, 3d Dist. No. 9-08-37,



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2009-Ohio-3817, ¶ 11. The commingling of separate property with other property

does not necessarily destroy the identity of the separate property, except when the

separate property is not traceable. R.C. 3105.171(A)(6)(b). Therefore, traceability

is the main issue in determining whether separate property has become marital

property due to commingling. Earnest v. Earnest, 151 Ohio App.3d 682, 785

N.E.2d 766, 2003-Ohio-704, ¶ 38, citing Peck v. Peck (1994), 96 Ohio App.3d

731, 734, 645 N.E.2d 1300.       Separate property can be converted to marital

property if one spouse grants the other spouse an interest in the property. Jackson,

2008-Ohio-1482, at ¶ 7. The general rule with regard to separate property is that

the trial court must disburse a spouse’s separate property to that spouse. R.C.

3105.171(D).    Nevertheless, the trial court has broad discretion in dividing

property equitably in a divorce. Berish v. Berish (1982), 69 Ohio St.2d 318, 319,

432 N.E.2d 183.

       {¶22} Although the trial court questioned the validity and credibility of

some of Willis’ expenditures, the record shows that he did provide legitimate

documentation for numerous costs involved in the construction of the new home.

However, he also acknowledged that Beverly repaid him $50,000 for many of

those expenditures; therefore, his claim that he is entitled to reimbursement in the

full amount of $113,904.54 is without merit. Nevertheless, the magistrate found

      2. When the parties were residing together, they lived at 205
      Stella Street, Celina, Ohio. Evidence proved that the Defendant


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       purchased the home in February 1985, the same is her separate
       property. Prior to the marriage, Plaintiff put approximately
       $50,000 into the home making the home more habitable. There
       were some issues with the home including a flooded basement,
       etc. Into 2002 prior to the party’s marriage, Defendant took out
       a loan and repaid the Plaintiff $50,000. The money was placed
       directly into the Plaintiff’s checking account. Throughout their
       marriage the parties maintained separate checking accounts.
       They did not co-mingle any funds. At one point in time after the
       marriage a loan was taken by the Defendant in her sole name.
       She was advised by the mortgage broker to transfer one-half
       interest of the home to the Plaintiff.

       ***

       5. The evidence did establish that Defendant repaid the
       Plaintiff $50,000 for the money he put into the home prior to the
       parties’ marriage.

These findings contain at least two inaccuracies. First, Defendant’s Exhibit F, a

copy of the August 2003 re-financing indicates that both Willis and Beverly

borrowed this money.      Second, and more importantly, Willis did not put

approximately $50,000 into the old house to make it more habitable, and Beverly

did not re-pay him $50,000 for so doing. Rather, the parties agreed that while

Willis was building the new home, using his own monies, Beverly re-mortgaged

the property and gave Willis $50,000 because he needed more money to continue

the project. Thus, this $50,000 was not associated with making the old home more

habitable.

       {¶23} Beverly did not provide exact figures and receipts for her

contributions, but the record shows that the property the home was built upon was


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her premarital property. Beverly produced banking records proving that she had

been responsible for making the mortgage payments for the property, both before

and after they were married. In addition, some of the drywall she purchased for

the old house and one of the windows she purchased were used in the construction

of the new home. However, Beverly acknowledged that all of the windows, with

the exception of the one bay window used in the new home, were still in her

possession. Further, with the exception of the range hood, a few exhibits that

counsel for Beverly questioned whether Willis had a receipt showing payment

received, and the payments to Willis’ son, Beverly presented no evidence or

testimony to dispute Willis’ expenditures on the construction of the home.

      {¶24} The record clearly demonstrates that both Beverly and Willis

contributed premarital funds and assets to the home before they were married and

both had marital interests in the home after they were married. Unfortunately, the

home’s present value is considerably less than the total amount of money that both

parties’ contributed. Whether the parties invested more money into the property

than it was ever worth or if it has lost value due to current market conditions is

unknown.

      {¶25} The trial court awarded Beverly possession of the real estate that she

had owned as her separate property for eighteen years prior to the marriage. The

parties also had marital interests in the property due to the payments and



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improvements to the property made during the nearly three years that they were

married and living together in the home. The trial court equally divided the

marital equity in the home between the two parties, thereby acknowledging the

contributions of both Beverly and Willis.                    However, despite the extensive

documentation provided by Willis and largely undisputed by Beverly, the trial

court found Willis’ evidence regarding his premarital funds to not be credible.

Thus, the trial court did not find that any of his contributions were his separate

property.

        {¶26} As previously noted, the commingling of separate property with

marital property does not destroy the identity of the separate property as long as

the separate property can be traced. Here, Willis provided nearly 200 exhibits to

document the money he expended in building the new house, including invoices

from suppliers, copies of his personal checks to pay the majority of these

suppliers, and receipts for smaller purchases for the home. He also testified what

each was, that they represented expenditures for the new home, and how most of

these were paid.3 He acknowledged that Beverly gave him $50,000 for the home’s

construction but the remainder came from his separate monies.                            Despite this

extensive tracing, the trial court disregarded his testimony because he had two



3
  On some of the smaller purchases Willis was unable to directly re-call what was purchased but explained
that he was not working on any other building project at the time so the receipts were all for the Stella
Street home.


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Case No. 10-10-07


receipts that described a range hood purchase that Willis could not account for the

apparent duplication, because he paid his son for the work on the home but not

Beverly’s, and because some of the invoices (no specific ones mentioned) did not

include proof that they were paid. We find that the trial court’s decision in this

regard was unreasonable and arbitrary.

      {¶27} First, the range hoods at issue were valued at $61.49 and $43.99,

respectively, both paltry sums given that the cost to build the home was in excess

of $100,000.   Second, Willis’ unrefuted testimony was that he paid for each

purchase with cash, check, or his personal credit card. He had numerous items to

show proof of payment, including many cancelled checks and receipts from the

supplier. Additionally, there is no evidence in the record that any suppliers went

unpaid or that the property had mechanic’s liens on it due to work that was

performed by a contractor that went unpaid. Lastly, Beverly did not dispute that

Adam Gilleo worked on her home. Further, her son, Charles, never testified that

he was promised payment for the services he provided in building the home. If

Charles worked on the home and believed he was owed payment for doing so,

then it would be incumbent on him to attempt to be paid. Whether he is owed

money has nothing to do with whether Willis has traced his separate property.

Moreover, the payments made to Adam total less than $2,000, yet again another

small amount in the overall cost to build the new home.



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       {¶28} Certainly the trial court was free to not believe the legitimacy of the

payments to Adam Gilleo and the receipts for the range hoods. However, to

discount the remainder of undisputed and largely documented evidence of Willis’

pre-marital contributions to the home was unreasonable and arbitrary. Rather, the

trial court should have simply deducted those amounts that it discredited.

Therefore, in as much as the first assignment of error challenges the trial court’s

failure to find any of the premarital funds contributed by Willis to the construction

of the new home to be his separate property, it is sustained.

       {¶29} Accordingly, we reverse and remand this matter to the trial court to

determine what amount of pre-marital funds contributed by Willis to the

construction of the new home was sufficiently traced in accordance with the

proper weight of the evidence and what amount should be awarded to him as his

separate property in a manner consistent with this opinion and in recognition of

the greatly diminished value of both parties’ contributions to the property.

                            Second Assignment of Error

       {¶30} In his second assignment of error, Willis maintains that the trial

court erred when it calculated that the equity in the Stella Street home was only

$4,500. He asserts that the trial court did not take into consideration that a “large

portion” of the existing mortgage was used to pay off Beverly’s premarital debts

and to repay him for his personal expenditures in the home. He further contends



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that this portion of the current mortgage should not count towards reducing the

equity in the property.

       {¶31} Our review of the record shows that the majority of the funds from

the two mortgages were used to pay expenses associated with the home’s

construction and the property, and therefore, rightfully reduced the value of the

equity in the home. Moreover, the second refinancing mortgage for $96,000 was

agreed to by Willis, it occurred during the marriage in August 2003, and was in

both parties’ names. Out of the $85,000 mortgage obtained by Beverly in January

2002, $11,745.98 was used to pay off the previous mortgage on the property,

which essentially, was paying off the land the new home was being built upon.

However, $11,483 went to pay off the windows and drywall that were purchased

with the intention of repairing the original residence. Only one window and an

unspecified amount of drywall were used in the new home, the remainder of which

is in Beverly’s possession. Nevertheless, Willis built the new home and chose

what materials to use, including leaving the other windows unused and in storage

for nearly five years by the time the parties separated. Thus, we cannot find that

the trial court acted unreasonably in including this amount to determine the equity

in the home.

       {¶32} From the $85,000 mortgage proceeds, there were two smaller

amounts that were used to pay off expenses that were Beverly’s premarital debts.



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We note that because of the refinancing, Beverly’s mortgage payments increased

significantly. Prior to the construction project, Beverly was paying only $240 a

month on her mortgage.       After Willis requested her to obtain the $85,000

mortgage in 2002 to finance the rest of the construction, her monthly payments

increased to over $690, and then they further increased to $774 after the couple

refinanced together in 2003. It was not unreasonable for Beverly to consolidate

her payments in order to be able to afford to make the house payments, and the

trial court did not abuse its discretion by including these amounts in the

determination of the home’s equity.

      {¶33} Finally, Willis contends that the $50,000 that Beverly gave him for

the construction costs should not count towards reducing the equity because he

contends that it “reversed the ‘repayment’ that he was entitled to receive.” This

reasoning is not accurate.     The $50,000 was used to pay for the home’s

construction expenses. If Beverly had kept the $50,000 herself and used it to

directly pay for the construction materials and services, Willis’ expenditures

would have been reduced by $50,000 and there would be no question that the

$50,000 obtained from the mortgage was a legitimate building expense included in

the mortgage. Simply because the construction payments were funneled through

Willis does not render them a reversal of his repayment. Therefore, the trial court

properly included this amount in determining the equity of the property.



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       {¶34} For all of these reasons, we do not find that the trial court’s

calculation of the equity in the home was unreasonable or arbitrary. Accordingly,

Willis’ second assignment of error is overruled.

                            Third Assignment of Error

       {¶35} In his third assignment of error, Willis asserts that the trial court

abused its discretion when it held him solely responsible for the $11,548.88 debt

(plus interest and court costs) owed to GMAC as a result of the repossession of the

Grand Prix before the end of the lease term. Willis claims that this was a marital

debt that should be divided equally between the parties.

       {¶36} The determination of debt as marital or separate is reviewed under

the manifest weight of the evidence standard. Gosser v. Gosser, 11th Dist. No.

2006-T-0029, 2007-Ohio-3201, ¶ 29. A trial court’s judgment 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. This highly deferential standard

of review permits the affirmation of the trial court's judgment if there is even

“some” evidence to support the court’s finding. DeWitt v. DeWitt, 3d Dist. No. 9-

02-42, 2003-Ohio-851, ¶11 (internal citations omitted).

       {¶37} Although the Grand Prix was acquired while the parties were

married in May 2005, the testimony indicated that Willis was in complete control

over purchasing, leasing, trading, and selling all of the parties’ vehicles, before,



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during, and after the separation and marriage. Willis leased the Grand Prix in his

name only, he drove it, and he was the one in charge of making the payments.

Most importantly, when the couple separated in January 2006, Willis took both the

Grand Prix and the parties’ other vehicle with him and did not offer Beverly an

opportunity to keep or make the payments for either one.

       {¶38} Traditionally, the time “during a marriage” concludes with the

marriage ending on the date of the final hearing. Dill v. Dill, 179 Ohio App.3d 14,

20, 2008-Ohio-5310, 900 N.E.2d 654, ¶ 9.        However, the trial court has the

discretion to select other dates when determining the distribution of marital

property and debt, if the result would be more equitable. Id. Generally, a trial

court's determination of whether to utilize a de facto termination of marriage date

is upheld on appeal. Id. at ¶12.

       {¶39} Although the GMAC judgment technically occurred “during the

marriage” prior to the final divorce decree, it was after Willis’ and Beverly’s

separation date. The parties and the trial court used the January 16, 2006 date of

separation to value the mortgage balance and, in every other way, treated that date

as the end of the marriage. The repossession of the Grand Prix occurred after the

separation date and the GMAC settlement document stating Willis still owed

$11,553.88 was dated September 15, 2006. Although Willis claimed that he could

not afford to make the payments on both of the vehicles, the record shows that he



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had over $100,0004 in his bank account in December 2005, and that over $72,000

remained in his account at the time of the separation. Willis allowed the Grand

Prix to be repossessed when he had exclusive use and control over the vehicle,

after the separation date, and he did not do anything to prevent the judgment.

           {¶40} The trial court did not abuse its discretion by holding Willis

responsible for the debts associated with the vehicles that he retained and

controlled after the parties’ separation date. Thus, the third assignment of error is

overruled.

                                     Fourth Assignment of Error

           {¶41} In his fourth assignment of error, Willis contends that the trial court

abused its discretion when it determined that it did not have sufficient evidence to

divide all of the marital assets that were in dispute. The trial court awarded Willis

his dresser, birth certificate, suitcases, and one-half the wedding pictures and

family photos. Beverly was allowed to keep the high-pressure washer, curtains,

coffee maker, silverware, and dishes. All the other items were to be divided with

the parties meeting and dividing the property with alternating choices, with the

first choice awarded by a coin toss. Willis contends that there was sufficient

evidence available to allow the court to equally divide all of the contested marital




4
    Apparently this money was from a retirement account that was Willis’ separate property.


                                                    -21-
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property, including the chest freezer, grandfather clock, space heater, Christmas

decorations, living room furniture, wheel barrow, and an extension ladder.

       {¶42} There was considerable testimony about these household items, but

most of it was conflicting. Beverly said she bought the pressure washer for the

house, and he claimed that it was a gift to him from Beverly. Willis testified that

the parties bought the living room furniture together, and Beverly testified that she

had paid for it on layaway when she was dating a previous boyfriend. Their

testimony acknowledged that the current depreciated value of many of the items

would be quite low.

       {¶43} As discussed above, a trial court is granted broad discretion in

determining how to award an equitable property division according to the

circumstances of each case before it.     In determining whether the decision was

fair, equitable, and in accordance with the law, an appellate court cannot substitute

its judgment for that of the trier-of-fact unless the trial court’s decision amounts to

an abuse of discretion.      DeWitt, 2003-Ohio-851, at ¶ 10 (internal citations

omitted).

       {¶44} Given the discrepancies in most of the testimony concerning these

items, we do not believe that the trial court abused its discretion when it left it up

to the two parties to divide the remaining personal property.          By alternating

choices, they will have control over effectuating a fairly equally valued allocation



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of the property if they so choose. Therefore, the fourth assignment of error is

overruled.

                            Fifth Assignment of Error

      {¶45} In his final assignment of error, Willis states that the trial court

utilized an incorrect standard of review when it ruled on his objections to the

magistrate’s decision.   Willis complains that the trial court failed to make a

sufficient independent analysis and to substitute its own judgment where

necessary.

      {¶46} Pursuant to Rule 53(D)(4)(d) of the Ohio Rules of Civil Procedure,

when objections are filed to a magistrate’s decision, the trial court must

independently review the objected matters to decide if the magistrate properly

determined the factual issues and appropriately applied the law.      Brandon v.

Brandon, 3d Dist. No. 10-08-13, 2009-Ohio-3818, ¶ 31; Davidson v. Davidson,

7th Dist. No. 07 BE 19, 2007-Ohio-6919, ¶ 2. When examining whether a trial

court has conducted the required independent review of a magistrate's decision,

appellate courts “generally presume regularity in the proceedings below, and,

therefore, we generally presume that the trial court conducted its independent

analysis in reviewing the magistrate’s decision.” Mahlerwein v. Mahlerwein, 160

Ohio App.3d 564, 2005-Ohio-1835, 828 N.E. 2d 153, ¶ 47. Therefore, the party

who asserts that the trial court did not conduct such a review bears the burden of



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affirmatively demonstrating the trial court’s failure to perform its duty. Id.; Figel

v. Figel, 3d Dist. No. 10-08-14, 2009-Ohio-1659, ¶ 2.

       {¶47} Willis asserts that the trial court incorrectly gave too much deference

to the magistrate’s findings as to the evidence and credibility of the witnesses

based upon the trial court’s statement in the judgment entry that “it is the

Magistrate’s responsibility to weigh the evidence which requires the Magistrate to

determine the credibility of the witnesses.” The record does not support Willis’

contention. While a trial court is required to independently review the record and

make its own factual determinations, the trial court may rely upon the magistrate’s

credibility determinations when it reviews the magistrate’s decision. Hendricks v.

Hendricks, 3d Dist. No. 15-08-08, 2008-Ohio-6754, ¶ 25, citing Osting v. Osting,

3d Dist. No. 1-03-88, 2004-Ohio-4159.

       {¶48} The record contained conflicting testimony from the parties, so the

trial court was allowed to rely on the magistrate’s assessments of the parties’

credibility. The trial court’s judgment entry noted that, “the testimonies of the

plaintiff and the defendant tell ‘two very conflicting stories’ *** regarding the

individual financial contributions to the primary asset at issue, the residence at 205

Stella Street, Celina, Ohio.”

       {¶49} In addition, there were several references in the judgment entry

where the trial court affirmatively stated that it had indeed made its own



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independent review of the record. An appellate court presumes that the trial court

did exactly what it said it did. Figel, 2009-Ohio-1659, at ¶ 11, citing Betz v.

Timken Mercy Med. Ctr. (1994), 96 Ohio App.3d 211, 216, 644 N.E.2d 1058. In

its April 6, 2009 judgment entry, the trial court specifically stated that it had

“undertaken an independent review as to the objected matters to ascertain whether

the Magistrate has properly determined the factual issues and appropriately

applied the law.”     It further indicated that “[b]ased upon its review of the

transcript, the court finds and concludes that the evidence is sufficient to support

the findings of fact and conclusions of law made by the Magistrate in the decision

filed December 15, 2008.” The trial court also demonstrated it had reviewed the

record by including quotations from the transcript and other specific references to

the record.     Moreover, although the trial court adopted the majority of the

magistrate’s decision, it did modify a portion of it.

       {¶50} With the exceptions of the matters previously addressed under the

first assignment of error, there was ample evidence that the trial court met its

obligations to conduct an independent review under Civ.R. 53(D)(4)(d).

Therefore, Willis’ fifth assignment of error is overruled.

       {¶51} For all of these reasons, the judgment of the Common Pleas Court,

Domestic Relations Division, of Mercer County, Ohio, is affirmed in part,




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reversed in part, and the matter remanded for further proceedings consistent with

this opinion.

                                                     Judgment Affirmed in Part,
                                                          Reversed in Part and
                                                              Cause Remanded

WILLAWOSKI, P.J., and PRESTON, J., concur.

/jlr




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