[Cite as Garcia v. Samano, 2019-Ohio-3223.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




JESSICA GARCIA,                                    :

      Appellant,                                   :      CASE NO. CA2018-05-094

                                                   :           OPINION
   - vs -                                                       8/12/2019
                                                   :

MANUEL GARCIA SAMANO,                              :

      Appellee.                                    :




             APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                            Case No. DR16-11-1125



Arnold Law Firm, LLC, Brittany N. Born, 8833 Chapelsquare Lane, Suite C, Cincinnati, Ohio
45249, for appellant

Manuel Garcia Samano, 2305 Dixie Highway, Hamilton, Ohio 45011, pro se



        RINGLAND, J.

        {¶ 1} Appellant, Jessica Garcia, appeals from the decision of the Butler County Court

of Common Pleas, Domestic Relations Division, dividing marital property after her divorce

from appellee, Manuel Garcia Samano. For the reasons detailed below, we affirm.

        {¶ 2} Jessica and Manuel married in 2009. On November 22, 2016, Jessica filed a

complaint for divorce. The trial court held final hearings in September and October of 2017.
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This appeal largely concerns the division of marital property associated with Garcia One, LLC

and other real property owned or sold during the marriage.

       {¶ 3} Jessica testified that she and Manuel owned Garcia One, a car dealership or

"buy here-pay here lot" during the course of the marriage. Jessica stated that "we sold cars

and we also fixed them, like a mechanic shop." The parties disagreed on how the business

was run, with Jessica alleging that Manuel did not do "anything really legitimately" and that

the business was run with unaccounted cash. Due to bad record keeping, Jessica was

unable to keep internal books on the business or pay out expenses. Jessica also described

certain questionable business practices, such as instances in which she purportedly

notarized unsigned titles and an instance in which she was held personally liable in a matter

after Manuel repossessed a vehicle sold by the company. Jessica testified that she stopped

working for Garcia One due to these business practices.

       {¶ 4} Manuel stated that he was a part owner of Garcia One. However, similar to

Jessica's testimony, Manuel's description of the business was extremely vague and

inconsistent. Manuel testified that there was no written partnership agreement, just an oral

agreement amongst themselves. Manuel testified that the rent for the business premises

was paid by whichever partner could pay at the time, but they were "probably" going to be

evicted because "no one has paid" the rent. When one of Manuel's alleged partners testified,

he denied any ownership interest in Garcia One, but suggested that Manuel might have

"considered" him a part owner due to a prior familial relationship. As of the time of the final

hearing, Manuel testified that he no longer receives "anything" from the company. As to his

involvement in the company, Manuel stated that he doesn't work there anymore, but will

sometimes go there to visit friends. However, this contradicted Manuel's earlier testimony in

which he stated that he would still occasionally fix a vehicle for the company for cash.

       {¶ 5} In addition to the disputes regarding the business, the parties also raise multiple
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issues with regard to certain real properties. Manuel testified about multiple properties that

he owned during the marriage, including properties which were sold within weeks of the filing

of the complaint for divorce. In total, Manuel sold six properties between October and

November 2016, shortly before Jessica filed her complaint for divorce.

       {¶ 6} Following its review of the evidence, the trial court divided the parties' marital

property and entered a final decree of divorce. Jessica now appeals the trial court's decision

regarding several aspects of the property division, raising three assignments of error for

review.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE TRIAL COURT ERRED IN THE DIVISION OF MARITAL ASSETS.

       {¶ 9} In her first assignment of error, Jessica argues the trial court erred by failing to

include all relevant property owned by the parties in the decision dividing their marital

property. Jessica's argument is without merit.

       {¶ 10} Property division in a divorce proceeding is a two-step process that is subject to

two different standards of review. Smith v. Smith, 12th Dist. Clermont No. CA2016-08-059,

2017-Ohio-7463, ¶ 8. Initially, pursuant to R.C. 3105.171(B), "the court shall * * * determine

what constitutes marital property and what constitutes separate property." An appellate court

reviews the trial court's classification of property or debt as marital or separate under the

manifest-weight-of-the-evidence standard. Oliver v. Oliver, 12th Dist. Butler No. CA2011-01-

004, 2011-Ohio-6345, ¶ 8.

       {¶ 11} Jessica maintains the trial court erred by failing to include additional property in

the initial marital property classification. Specifically, Jessica alleges Manuel is a part owner

of Garcia One. Additionally, Jessica claims that Manuel failed to disclose certain real

property to the trial court and the trial court failed to consider other property the parties

owned, including a tow truck.
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        {¶ 12} We find the trial court's classification of the parties' marital property is

supported by the manifest weight of the evidence. The trial court noted that neither Jessica

nor Manuel were "particularly credible as far as how they made a living prior to separation."

Though Manuel stated that he had an ownership interest in Garcia One, the record is

exceedingly sparse as to any details or consequences of that purported ownership interest or

if said ownership interest was a going concern. Both parties' respective testimonies reflect a

failure to comprehend the nature or structure of the business. Manuel stated that there is no

written partnership agreement with respect to the company and "[t]hat is the problem. It's just

an oral agreement so whenever it's time to pay the rent, no one has money to pay the

rentals." There is also confusion as to who owns the business, or if the business retains any

value. Jessica admits that she previously worked for the company where Manuel failed to do

"anything really legitimately" and operated solely in cash. Manuel testified that Garcia One

does not own the real property where the business operates and that they were "probably"

going to be evicted due to the failure to pay rent. Manuel also testified that he "isn't receiving

anything" from Garcia One, but will stop by occasionally to visit with friends or fix a vehicle for

cash.

        {¶ 13} Jessica places emphasis on the testimony of David Wood, an investigator with

the State of Ohio Bureau of Motor Vehicles, who testified that Manuel is the owner of Garcia

One. However, Wood testified that his knowledge was related to a prior 2013 proceeding.

Wood expressly stated that he had no reason to look at the ownership records since that

time.

        {¶ 14} In short, given the exceedingly limited, vague, and contradictory evidence

presented to the trial court, we find it appropriate that the trial court would find neither party

credible as to the ownership of Garcia One and therefore exclude it from the division of

marital property. We similarly find that Jessica's remaining arguments are without merit as to
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property located at 21 Kelly Court and a tow truck. The record of the ownership of those

interests were disputed by the parties with the trial court below. As the trial court was in the

best position to weigh the credibility of the witnesses and resolve conflicts in the evidence,

we will not reverse unless 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." Eastley

v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. The trial court did not clearly lose its

way in classification of the parties' marital property. Jessica's first assignment of error is

overruled.

       {¶ 15} Assignment of Error No. 2:

       {¶ 16} THE TRIAL COURT ERRED IN NOT FINDING THAT HUSBAND EXERCISED

FINANCIAL MISCONDUCT.

       {¶ 17} In her second assignment of error, Jessica asserts that the trial court erred by

not finding that Manuel engaged in financial misconduct. We disagree.

       {¶ 18} Findings as to whether a party has engaged in financial misconduct are

reviewed pursuant to the manifest-weight-of-the-evidence standard. Robinson v. Robinson,

12th Dist. Warren No. CA2012-11-118, 2013-Ohio-4435, ¶ 14. Under this standard, the

reviewing court weighs the evidence and all reasonable inferences, considers the credibility

of witnesses, and determines 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." Id., quoting Eastley at ¶ 20. The burden of

proving financial misconduct is on the complaining party. Smith, 2017-Ohio-7463 at ¶ 10.

       {¶ 19} The term "financial misconduct" has a specific meaning and is defined in R.C.

3105.171(E)(4). Pursuant to that provision, financial misconduct includes, but is not limited

to "the dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of

assets." Robinson at ¶ 12. Financial misconduct implies some type of wrongdoing such as
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interference with the other spouse's property rights (i.e., wrongful scienter). Taub v. Taub,

10th Dist. Franklin No. 08AP-750, 2009-Ohio-2762, ¶ 33; White v. White, 5th Dist. Licking

No. 15-CA-54, 2016-Ohio-2997, ¶ 13, citing Bucalo v. Bucalo, 9th Dist. Medina No.

05CA0011-M, 2005-Ohio-6319, ¶ 23. In cases of financial misconduct, "typically, the

offending spouse * * * either profit[s] from the misconduct or intentionally defeat[s] the other

spouse's distribution of marital assets." Taub at ¶ 33; Mikhail v. Mikhail, 6th Dist. Lucas No.

L-03-1195, 2005-Ohio-322, ¶ 28.

         {¶ 20} In this case, both parties have repeatedly accused the other of fraudulent or

illegal activity throughout the marriage and the pendency of this divorce. As previously noted,

Manuel conveyed six properties to various individuals within weeks of Jessica's complaint for

divorce. Jessica alleges that she was unaware of these conveyances and testified that she

did not release her dower rights on these properties. As part of her case, Jessica introduced

exhibits including appraisal values of the properties. Nevertheless, although Jessica notes

that Manuel conveyed six properties, she only addresses three such conveyances in her

brief:

           Property                             Sale Price              Appraisal Value
 252 Hanover Street                  $8,000                        $12,200
 1437 See Avenue                     $10,000                       $30,320
 "A third property"1                 $10,000                       $32,610

Jessica argues the conveyances by Manuel were intended to defraud her and the trial court

erred by failing to include the properties in the recapitulation index or decree.

         {¶ 21} After considering the evidence, we again conclude the trial court's decision is

supported by the manifest weight of the evidence. While Jessica alleges that she had no

knowledge of the sales and generally complains of Manuel's fraudulent activities, there was

dispute between the parties as to the sale price and appraisal value that the trial court


1. Jessica did not provide the address for the "third property."
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considered in entering final judgment. In this case, Manuel disputed the appraised values

and argued that some of the properties were in poor condition, including the Hanover Street

property, which he described as missing windows and "still a lot of things missing" and not

habitable. Manuel also described the See Avenue property as a "destroyed property."

Furthermore, Manuel also presented the testimony of Jorge Romero, who testified that he

purchased three of the properties. Romero explained that he transacted business with both

Jessica and Manuel "in a parking lot" and paid cash for the properties. Romero testified that

both Jessica and Manuel appeared pleased with the sales and "were dying to get some

money."

       {¶ 22} Though we recognize that transacting real estate business in cash "in a parking

lot" is peculiar, the testimonies of both Jessica and Manuel indicate that their financial

dealings often lack transparency. Both parties testified that many of their dealings involve

strictly cash transactions that were largely unexplained or not coherently established before

the trial court. Under the circumstances, we are unable to determine whether any financial

misconduct occurred, or whether Jessica was indeed in agreement with these real estate

transactions. As a result, we find that Jessica has not met her burden of proving financial

misconduct. Jessica's second assignment of error is overruled.

       {¶ 23} Assignment of Error No. 3:

       {¶ 24} THE TRIAL COURT ERRED BY MAKING AN INEQUITABLE AWARD

CONCERNING THE DISPOSITION OF CERTAIN PROPERTY.

       {¶ 25} In her third assignment of error, Jessica argues the trial court erred by making

an inequitable division of property. Jessica's argument is without merit.

       {¶ 26} As noted in Jessica's first assignment of error, property division in a divorce

proceeding is a two-step process that is subject to two different standards of review. Smith,

2017-Ohio-7463 at ¶ 8. After the initial step of classifying the property as separate or marital,
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"the court shall disburse a spouse's separate property to that spouse" and divide the marital

property equally. R.C. 3105.171(C)(1) and (D). However, if the court finds an equal division

would be inequitable, then the court must divide the property in a manner it determines is

equitable. R.C. 3105.171(C)(1); Roberts v. Roberts, 12th Dist. Clinton Nos. CA2012-07-015

and CA2012-07-016, 2013-Ohio-1733, ¶ 34. The trial court is given broad discretion in

fashioning a property or debt division and will not be reversed absent an abuse of discretion.

Williams v. Williams, 12th Dist. Warren No. CA2012-08-074, 2013-Ohio-3318, ¶ 54. To find

abuse of discretion, we must determine that the trial court's decision was unreasonable,

arbitrary, or unconscionable, and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶ 27} Similar to her second assignment of error, Jessica alleges that Manuel

attempted to deceive the trial court by transferring properties to family members at a reduced

cost and therefore the trial court should have valued the respective properties based on their

appraised values instead of sale price. Therefore, Jessica argues that since the incorrect

values were assigned to the properties, the trial court's division of marital property was

inequitable.

       {¶ 28} However, as noted earlier, Jessica failed to sustain her burden of proof with

respect to any financial misconduct or fraud related to the sale of the properties. The trial

court's recapitulation index and final decree show that the court considered matters of

credibility in fashioning the final property division, despite the extraordinary inconsistencies of

the parties. We find the trial court did not abuse its discretion in its equitable division of

marital property. As a result, Jessica's third assignment of error is overruled.

       {¶ 29} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.


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