[Cite as Hall v. Hall, 2018-Ohio-4453.]




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


Cleadis Hall                                     Court of Appeals No. S-18-011

        Appellant                                Trial Court No. 16DR99

v.

Shirley Hall                                     DECISION AND JUDGMENT

        Appellee                                 Decided: November 2, 2018


                                          *****

        Joseph F. Albrechta, John A. Coble, and George J. Schrader, for appellant.

        Lisa M. Snyder, for appellee.

                                          *****


        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Sandusky County Court of

Common Pleas, Domestic Relations Division, which granted the parties a divorce and
determined the separate property classification of disputed funds. For the reasons set

forth below, this court affirms the judgment of the trial court.

       {¶ 2} On February 8, 2016, plaintiff-appellant Cleadis Hall (hereafter “Mr. Hall”)

filed a complaint for divorce against defendant-appellee Shirley Hall (hereafter “Mrs.

Hall”) after nearly 40 years of marriage. Mr. Hall alleged incompatibility with Mrs. Hall.

On March 2, 2016, Mrs. Hall answered the complaint and counter-claimed for divorce

alleging “gross neglect of duty and extreme cruelty.” The parties were married on

August 12, 1978, and separated on February 8, 2016, the date of Mr. Hall’s divorce

filing. Their “relationship deteriorated in December of 2015,” prior to the separation,

when Mrs. Hall alleged a domestic violence incident by Mr. Hall. Following a period of

discovery and mediation, evidentiary hearings were held on May 17, 2017, and on

January 3, 2018. As journalized on February 22, 2018, the trial court filed a decision and

judgment entry granting the parties a divorce due to incompatibility and determined,

among other matters, certain disputed funds as the separate property of Mrs. Hall, of

which Mr. Hall received none.

       {¶ 3} Mr. Hall sets forth two assignments of error:

              I. The trial court erred by finding that Mrs. Hall possessed $36,500.00 in

       separate funds arising from a wrongful death settlement.

              II. The trial court erred in finding that alleged gift of Mrs. Hall’s children

       was separate property.

       {¶ 4} We will address the assignments of error together.



2.
                           A. Separate Property Classification

       {¶ 5} Neither party disputes in a divorce proceeding the trial court is required to

determine what constitutes marital property and separate property. R.C. 3105.171(B).

       {¶ 6} “Marital property” is not “separate property.” R.C. 3105.171(A)(3)(b).

“Separate property” is defined as “all real and personal property and any interest in real

or personal property that is found by the court to be any of the following,” including,

“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.” R.C. 3105.171(A)(6)(a)(ii). “Separate

property” also includes, “Compensation to a spouse for the spouse’s personal injury,

except for loss of marital earnings and compensation for expenses paid from marital

assets.” R.C. 3105.171(A)(6)(a)(vi). “Separate property” also includes, “Any gift of any

real or personal property or of an interest in real or personal property that is made after

the date of the marriage and that is proven by clear and convincing evidence to have been

given to only one spouse.” R.C. 3105.171(A)(6)(a)(vii).

       {¶ 7} Further, “The commingling of separate property with other property of any

type does not destroy the identity of the separate property as separate property, except

when the separate property is not traceable.” R.C. 3105.171(A)(6)(b).

       {¶ 8} We review a trial court’s factual findings on the classification of marital and

separate property pursuant to R.C. 3105.171 under a manifest weight of the evidence

standard. Okos v. Okos, 137 Ohio App.3d 563, 569-570, 739 N.E.2d 368 (6th Dist.2000),

citing Barkley v. Barkley, 119 Ohio App.3d 155, 159, 694 N.E.2d 989 (4th Dist.1997).



3.
Consequently, we will not reverse the trial court’s decision if it is supported by some

competent and credible evidence. Hook v. Hook, 189 Ohio App.3d 440, 2010-Ohio-

4165, 938 N.E.2d 1094, ¶ 18 (6th Dist.), citing Schober v. Schober, 6th Dist. Ottawa No.

OT-08-061, 2009-Ohio-4408, ¶ 27. Competent evidence is admissible evidence for the

purpose of proving a relevant fact. In re Meeks, 11th Dist. Lake No. 95-L-050, 1995

Ohio App. LEXIS 4369, *13-14 (Sep. 29, 1995), citing 29 American Jurisprudence 2d,

Evidence, Section 257 at 307-308 (1995). Credible evidence means evidence found

worthy of being believed. See State v. Stone, 6th Dist. Sandusky No. S-06-026, 2007-

Ohio-752, ¶ 20.

       {¶ 9} The burden of proof is generally on the party seeking to have the property

declared separate by a preponderance of the evidence standard to trace the asset to

separate property. Hook at ¶ 19, citing Okos at 570. However, where the separate

property being proven is pursuant to R.C. 3105.171(A)(6)(a)(vii), the burden of proof is

clear and convincing evidence. Clear and convincing evidence means “that degree of

proof which will provide in the mind of the trier of fact a firm belief or conviction as to

the facts sought to be established.” Hook at ¶ 19, quoting Barkley at 168-169. “Clear and

convincing evidence” is more than a mere preponderance of the evidence but less than

the certainty required for “beyond a reasonable doubt” in criminal cases. State ex rel.

Cincinnati Enquirer v. Deters, 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶

19, citing Cross v. Ledford, 161 Ohio St. 469, 471, 120 N.E.2d 118 (1954), paragraph

three of the syllabus.



4.
       {¶ 10} We will not reweigh the evidence introduced to the trial court; rather, we

will uphold the findings of the trial court if the record contains some competent and

credible evidence to support the trial court’s conclusions. Fletcher v. Fletcher, 68 Ohio

St.3d 464, 468, 628 N.E.2d 1343 (1994), citing Ross v. Ross, 64 Ohio St.2d 203, 204, 414

N.E.2d 426 (1980).

       {¶ 11} In support of his first assignment of error, Mr. Hall argued Mrs. Hall

withdrew $36,500 in cash from undisclosed bank accounts in December 2015 that “were

held, concealed and disbursed during the term of the marriage” making them marital

property pursuant to R.C. 3105.171(A)(3). Mr. Hall further argued Mrs. Hall failed to

meet her burden with clear and convincing evidence the money was not for loss of

consortium for personal injuries suffered by her first husband pursuant to R.C.

3105.171(A)(6)(a)(vi). Mr. Hall further argued Mrs. Hall did not trace the money to prior

to their marriage as originating from the deaths of her previous husband and son pursuant

to R.C. 3105.171(A)(6)(a)(ii), because she and her children were not credible and did not

provide any documentary evidence.

       {¶ 12} In support of his second assignment of error, Mr. Hall argued the trial court

erred by applying the “wrong [preponderance] standard of evidence” to the gifts from her

children rather than the higher clear and convincing evidence standard of review required

by R.C. 3105.171(A)(6)(a)(vii). Mr. Hall argued Mrs. Hall’s evidence was murky at best

and far from meeting the standard of clear and convincing evidence.




5.
         {¶ 13} In response to both assignments of error, Mrs. Hall argued the trial court

did not commit any error. Mrs. Hall argued the $36,500 in dispute was derived from

$40,000 comprised as follows: (1) gifts of $10,000 from each of her three surviving

children, and (2) an additional $10,000 from “the proceeds remaining from a certain

wrongful death actions involving Appellee’s first husband and a child of that

relationship.” Mrs. Hall argued she met her burden of proof of preponderance of the

evidence to show the $36,500 in dispute was separate property acquired prior to the

marriage pursuant to R.C. 3105.171(A)(6)(a)(ii). Mrs. Hall further argued she met her

burden of proof by clear and convincing evidence to show $30,000 of the total amount in

dispute was separate property pursuant to gifts from her three surviving children pursuant

to R.C. 3105.171(A)(6)(a)(vii).

         {¶ 14} Applying the appropriate legal standard is a question of law, which we

review on a de novo basis. Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972

N.E.2d 586, ¶ 13.

         {¶ 15} The record shows the May 17, 2017 hearing concluded with the parties

agreeing to all matters except for one. To resolve the dispute, they agreed to additional

time for Mrs. Hall to prove the tracing of “approximately 38 to $40,000 * * * for which

[Mrs. Hall] is asserting a separate property interest by gifts from her children.” The trial

court concurred with that approach as reflected in its June 21, 2017 journalized judgment

entry:




6.
             The parties have hereby entered and read onto the record an

      agreement on all issues relating [to] the marriage but for one. That issue

      being the marital or separateness of some $36,500.00 that was deposited

      and withdrawn from Defendant’s Fremont Federal Credit Union account

      between October 2015 and December 2015. Upon agreement of the parties

      and of the Court, Counsel for Defendant shall submit to Counsel for

      Plaintiff all documents in Defendant’s possession regarding the tracing of

      the $36,500.00 in the Fremont Federal Credit Union account. Should the

      parties not reach an agreement regarding the reserved issue within thirty

      (30) days, the matter shall be set for final hearing on that sole issue.

      {¶ 16} The record contains affidavits filed on June 14, 2017, from Mrs. Hall and

her three surviving adult children, Shirley Marie Zeigler, Mary Denise Dennis and

Rodney Sharp, regarding the tracing of the funds in dispute. A fourth adult child,

Jeannie, “passed away from cancer during the pendency of the divorce.”

      {¶ 17} Mrs. Hall averred in her affidavit dated June 5, 2017, that following the

December 2015 domestic violence incident involving Mr. Hall, she:

             [E]xpressed concern to my four children about my financial stability

      if Mr. Hall and I were divorced. Around this time, my children offered to

      contribute funds sufficient for me to pay off the mortgage on our Clyde

      residence and attorney fees to my lawyer for the divorce action. I had

      previously gifted to my children certain funds I received from wrongful



7.
     death claims involving their father and brother. My children gifted back to

     me some of those funds as follows: (a) Shirley Marie Zeigler the sum of

     $10,000.00; (b) Mary Denise Dennis the sum of $10,000.00; and (c)

     Rodney Sharp [the] sum of $10,000.00. * * * In December 2015, Mr. Hall

     started to move funds from our accounts without my knowledge or consent.

     I was able to secure the sum of $10,000.00 from a bank account that I

     moved into my individual name which offset the cash that Mr. Hall took

     when we separated. Mr. Hall admitted to taking the cash and never

     objected to my making the withdrawal, presumably because he had already

     taken more than his share. This was before the divorce was filed. The

     funds I received from my children were gifted from my children for my

     financial stability and are to be considered a gift in consideration of the

     circumstances. There is no obligation for me to repay my children these

     sums. I took the $30,000.00 received from my children, plus the

     $10,000.00 that I had from my separation from Mr. Hall, and invested the

     $40,000.00 in a Certificate of Deposit at Croghan Colonial Bank. Copies

     of the receipts for the deposits for the CD are attached hereto. The funds

     are still on deposit as security for the payment of my mortgage and my

     attorney fees.




8.
       {¶ 18} Shirley Marie Zeigler and Marie Denise Dennis each averred in affidavits

dated June 5, 2017, that she gifted $10,000 to Mrs. Hall from funds Mrs. Hall had

previously given her from a wrongful death settlement involving her biological father:

              [F]or my mother’s stability and her sole benefit [to payoff the

       mortgage secured by the residence in which she is residing and to retain an

       attorney to represent her in a divorce proceeding] to the exclusion of Mr.

       Hall. * * * The funds transferred are to be considered a gift to my mother in

       consideration of the circumstances. There is no obligation for my mother

       to repay the funds to me nor do I intend the funds to benefit Mr. Hall in any

       way.

       {¶ 19} Rodney Sharp, Mrs. Hall’s surviving son living in Arkansas, averred in his

affidavit dated May 30, 2017, “I Rodney Sharp gave my mother Shirley Hall ten

thousand dollars $10,000 on December 26, 2015.”

       {¶ 20} It is undisputed in the record that prior to their 1978 marriage, the parties

had each previously been married with children. Mrs. Hall testified at the January 3,

2018 hearing that prior to her marriage to Mr. Hall she received two separate wrongful

death settlements, first for her son and then for her first husband. The exact amount of

wrongful death proceeds received by Mrs. Hall prior to her marriage to Mr. Hall is not

clear in the record. Mrs. Hall testified, “I got that [money] 20 years ago when my son

died, and the first money I got when my husband died, my first husband.” Later, Mrs.

Hall clarified the money from the two wrongful death settlements was used by her to



9.
support the family for the 13 years between the death of her first husband and her

marriage to Mr. Hall. At some point previously she gave some of the wrongful death

settlement money to her children, and this was the money with which they offered to

help, starting in December 2015. Mrs. Hall testified she received a total of $30,000 from

her children and added $10,000 from her own bank account to deposit $40,000 into a new

savings account at a different bank.

       {¶ 21} Much time was spent by Mr. Hall’s counsel to find originating bank

deposits to dispute the testimony from Mrs. Hall and her daughters the wrongful death

settlement money sat for decades as cash in safes. In response to questions about bank

deposits, Mrs. Hall replied, “I don’t know what you’re talking about, sir. You got me

confused.” Previously, Mrs. Hall had testified, “They – both – well, my daughters both

had them in their safes, I think, ask them.” The final $10,000 deposited into the new

savings account was from her own, separate account: “* * * and I got my 10 out of mine,

and I put it in.” It took from December 2015, to February 2016, for her children to give

her their $30,000 in cash. Then Mrs. Hall added her own $10,000 to total $40,000, all

cash. Mrs. Hall then requested a $40,000 cashier’s check from the first bank to then

deposit $40,000 into the new bank account at Croghan Colonial Bank, referred to as her

“safety net” due to the impending divorce: “That’s the way the man said it would be the

best way to do it.” Mrs. Hall testified the names on the new $40,000 account were hers

and her children’s: “Their names are right on the account. * * * All three of their names

are on it, too * * * not just mine.”



10.
       {¶ 22} Mrs. Hall’s daughter, Mary Denise Dennis, testified at the January 3, 2018

hearing as to the origin of her $10,000 cash gift to her mother around December 2015.

The money originated from the deaths of her father and young brother: “Well * * * when

we were young, * * * my dad passed away and my brother passed away, so my mom

gave us each $5,000 apiece * * * so I kept that in my safe.” Later, Mrs. Dennis testified

she received an additional $5,000 cash gift from her mother from the wrongful death

settlements. Each time Mrs. Dennis put the cash in her safe. The intent of the full

$10,000 cash gift was for her mother “to pay off the house.” Although Mrs. Dennis

testified, “I’m not good at bank things,” she said when her mother deposited $40,000 into

the new bank account, Mrs. Hall had all three children’s names on the account: “[It] was

in all our kids’ names so that she would make sure it came back to us if anything

happened to her.” Mrs. Dennis confirmed her mother did not have to pay back the

$10,000 gift.

       {¶ 23} Mrs. Hall’s other surviving daughter, Shirley Zeigler, also testified at the

January 3, 2018 hearing as to the origin of the $10,000 cash gift to her mother around

December 2015:

                [S]he gave us money from our dad passing away, my brother passing

       away, and it was, like, now she needed help. We never needed help, she

       just gave it to us, ‘cause it was my brother and my dad. * * * My mom has

       always been there when you needed her, and that’s why [my sister, brother

       and I] said, you know, she gave us the $10,000. We didn’t want her to lose



11.
       her house, ‘cause she wouldn’t be able to make the payments [because of

       the impending divorce].

       {¶ 24} Mrs. Zeigler testified she gave her mother $10,000 “cash, out of the safe.”

Mrs. Zeigler and her husband always kept the cash in a safe at the home “so we didn’t

have to go to the bank and borrow money all the time.” Mrs. Zeigler also testified that

when her mother deposited $40,000 into the new bank account, Mrs. Hall opened the

account in her own name and “put if anything was to happen to her * * * we [three

children] all will make sure the house gets paid off first and then whatever after that

would be ours.” Mrs. Zeigler also confirmed her mother does not have to pay back the

$10,000 gift.

       {¶ 25} In its January 16, 2018 journalized judgment entry entitled, “Decision re

Separate Property,” the trial court stated as a result of the January 3, 2018 hearing:

                Testimony was provided by Defendant and her two daughters, Mary

       Dennis and Shirley Zeigler. * * * Documentary evidence was admitted

       establishing balances and transfers from various account[s] during the time

       in questions [sic]. Defendant had accounts with the Fremont Federal Credit

       union jointly with her daughter, Shirley Zeigler. Defendant’s testimony was

       that these monies had their origin in two wrongful death settlements

       involving her former husband, and son. Her attorney at the time * *

       *advised her to, in essence, save the money for a rainy day. With the

       divorce, her rainy day had arrived as she would need about $30,000.00 to



12.
      pay off the mortgage on her house, and since she only received $623.00 a

      month in social security, she would need help from her children to do so.

      Mary Dennis and Shirley Zeigler each testified that they accompanied Mom

      to the Croghan Colonial branch bank in Green Springs to purchase

      cashier’s checks, that they each contributed $10,000.00 to do so, and that

      their brother also contributed $10,000.00. A fourth sibling who was

      prepared to also contribute died of cancer about that time, thus no

      contribution from her. The additional $10,000.00 in cashier’s checks was

      paid in by the Defendant. * * * While she did provide information to her

      attorney to insert into the Property disclosure affidavit, there was no

      information provided regarding the cashier’s checks. The Court finds it

      reasonable for Defendant to have assumed that since she had always

      maintained the monies separately from the Plaintiff husband, and in fact

      held them jointly with her daughter Shirley, that these monies would not be

      a consideration in the divorce proceeding. And, it appears that the Plaintiff

      retained moneys that he considered separate * * *. The $10,000.00 was not

      disclosed on his affidavit. In any event, the parties negotiated a settlement

      of the property issues with each party having an understanding of the assets

      to be divided.

             The Court is persuaded by a preponderance of the evidence that the

      monies in question have been properly traced as having been $30,000.00 in



13.
       contributions from her three children to help her pay off her mortgage, and

       $36,500.00 from monies held jointly by her with daughter Shirley Zeigler

       and having its origin as wrongful death settlements from her previous

       husband and son.

              The Court finds said monies to be the separate property of the

       Defendant wife, not part of the marital estate.

       {¶ 26} In its January 30, 2018 journalized findings of fact and conclusions of law,

the trial court reaffirmed the findings set forth in its January 16, 2018 journalized

judgment entry and made the following additional findings:

              Additionally, the court finds that at no time did the Defendant

       possess $79,000.00 plus change in separate funds as suggested by the

       questioning of Plaintiff’s counsel. * * * That the Plaintiff [sic] was

       credible, as were her daughters who also testified, and that her actions were

       consistent with the way a spouse in a second marriage would most likely

       conduct his or herself, i.e. as to how assets were held. Specifically, that she

       retained control over her funds at the Fremont Federal Credit Union by

       titling them in the name of herself and daughter Shirley Zeigler, and not her

       husband. No evidence was presented to suggest that Defendant ever

       commingled her FFCU monies with marital funds, nor that she gifted said

       monies to Plaintiff.




14.
       {¶ 27} In its February 23, 2018 journalized judgment entry of divorce, the trial

court found, “That an evidentiary hearing was conducted on January 3, 2018, with a

Decision re Separate Property issuing January 10, 2018, FINDING (emphasis sic.)

Defendant met the burden of establishing her separate property claim.” Among the trial

court’s orders was, “Each party is awarded, free and clear of any claims of the other, all

bank accounts presently held individually in his or her respective name. The parties

represent that there are no joint accounts in existence as of the date of final hearing

herein.”

       {¶ 28} Our de novo review of the legal standards reaches the same outcomes as

the trial court because the record contains some competent and credible evidence to

support the separate property determinations. There is some competent and credible

evidence supporting the disputed $36,500 is Mrs. Hall’s separate property derived, by

clear and convincing evidence, in part from the donative intent of each of Mrs. Hall’s

three children gifting her $30,000 in total. Kovacs v. Kovacs, 6th Dist. Sandusky No. S-

09-039, 2011-Ohio-154, ¶ 12-15; R.C. 3105.171(A)(6)(a)(vii). In addition, there is some

competent and credible evidence supporting the disputed $36,500 is separate property

derived, by the preponderance of the evidence, in part from the pre-marital origin of the

final $10,000 (to reach $40,000) obtained by Mrs. Hall from her own account, R.C.

3105.171(A)(6)(a)(ii), and never comingled with Mr. Hall or other marital funds, R.C.

3105.171(A)(6)(b).




15.
       {¶ 29} Further, even if we interpreted the amount in dispute as being for $36,500

plus $30,000, for a total of $66,500, there is some competent and credible evidence in the

record to support the trial court’s determination by a preponderance of the evidence “at

no time did the Defendant possess $79,000.00 plus change in separate funds as suggested

by the questioning of Plaintiff’s counsel” because the trial court reviewed “the account

statements introduced into evidence from Fremont Federal Credit Union, Croghan

Colonial Bank, Old Fort Bank, and Impact Credit Union.” The trial court found at all

times Mrs. Hall “retained control over her funds at the Fremont Federal Credit Union [the

focus of Mr. Hall’s assertions] by titling them in the name of herself and daughter Shirley

Zeigler, and not her husband.”

       {¶ 30} We also find that Mrs. Hall met her burden to show all of the elements of

inter vivos gifts from her children to support the determination of $30,000 as separate

property pursuant to R.C. 3105.171(A)(6)(a)(vii). In order for Mrs. Hall’s three

surviving children to make inter vivos gifts of $10,000 each, Mrs. Hall must show by

clear and convincing evidence: (1) the donor’s intent to make the gift to her, (2) delivery

of the gift to her, (3) the donor’s relinquishing ownership, dominion or control over the

gift, and (4) her acceptance of the gift. Kovacs at ¶ 12, citing Barkley, 119 Ohio App.3d

155, at fn. 2, 694 N.E.2d 989. The record contains evidence that each child voluntarily

made the $10,000 cash gifts to their mother with no expectation of any repayment

because of their desire to help their mother through the difficult period of a divorce and to

keep her home, which Mr. Hall had vacated. None of the cash gifts were for Mr. Hall.



16.
Mrs. Hall accepted the cash donations, contributed her own funds, turned the cash into

cashier’s checks, and then opened a new bank account with the $40,000 she assembled.

Although there was some testimony that the three children’s names were also on the

Croghan Colonial Bank account, further testimony clarified they were not primary names

on the account but, instead, beneficiaries in the event of something happening to Mrs.

Hall. While it may be unusual for people today to deal with so much cash or cashier’s

checks, as the trial court explained, “her actions were consistent with the way a spouse in

a second marriage would most likely conduct his or herself, i.e. as to how assets were

held.”

         {¶ 31} We also find Mrs. Hall met her burden by a preponderance of the evidence

to show the remaining $6,500 of the $36,500 in dispute are traceable to wrongful death

settlements occurring prior to her marriage to Mr. Hall. The record shows Mrs. Hall had

“her own account,” and it is undisputed that account was never comingled with other

marital funds and was not used for marital expenses. Mr. Hall concedes, “She has

admitted to concealing $40,000 in undisclosed moneys, of which she is claiming only

$10,000.00 came from her own funds.” Mr. Hall does not challenge “$10,000.00 came

from her own funds.” Mr. Hall questions the basis of how Mrs. Hall’s wrongful death

settlement money relates to her loss of consortium because “no evidence was offered into

the record regarding the size of the award, the amount attributable to loss of consortium,

where the funds were stored, what funds were consumed since the day they were

received, or any other information helpful to tracing them apart from the bare assertion



17.
by Mrs. Hall that, at one point in time, she got money from a wrongful death settlement.”

We find Mr. Hall’s reliance on R.C. 3105.171(A)(6)(a)(vi) to be misplaced because the

record contains some competent, credible evidence Mrs. Hall’s wrongful death settlement

money can be traced to at least 13 years before her marriage to Mr. Hall. Mr. Hall urged

us to find “her inherently less credible witness testimony” that “sharply contradicted”

bank records. We will uphold the findings of the trial court, which was not persuaded by

Mr. Hall’s logic or math to support this claim.

                            B. Division of Separate Property

       {¶ 32} Even if we interpreted the issues on appeal brought by Mr. Hall as being a

challenge to the lack of division of Mrs. Hall’s separate property, we do not find the trial

court abused its discretion. We review a trial court’s division of marital and separate

property for an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d

83 (1990), citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989).

Abuse of discretion “‘connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d

151, 157, 404 N.E.2d 144 (1980). “An unequal property division does not, standing

alone, amount to an abuse of discretion.” Enriquez v. Enriquez, 6th Dist. Lucas No. L-

94-252, 1995 Ohio App. LEXIS 5362, *18 (Dec. 8, 1995), citing Cherry v. Cherry, 66

Ohio St.2d 348, 352, 421 N.E.2d 1293 (1981), paragraph two of the syllabus.




18.
       {¶ 33} In this case the parties reached agreements on all financial matters

pertaining to the divorce, except for Mrs. Hall’s bank accounts. We find Mr. Hall’s

assertions Mrs. Hall engaged in financial misconduct with respect to “undisclosed bank

accounts * * * held, concealed and disbursed during the term of the marriage” are

misplaced, and Mr. Hall failed to meet his burden. Epperson v. Epperson, 6th Dist.

Wood No. WD-14-054, 2015-Ohio-2443, ¶ 40, citing Lindsay v. Lindsay, 6th Dist.

Sandusky No. S-11-055, 2013-Ohio-3290, ¶ 21. The trial court found Mrs. Hall’s failure

to include the $40,000 held at Croghan Colonial Bank in the “Separate Property” section

of her affidavit of property pursuant to R.C. 3105.171(E)(3) was “excusable neglect due

to her age, confusion due to her medical issues at the time, and anxiety over how her

house mortgage was going to be paid.” We do not find the trial court abused its

discretion with those findings. See R.C. 3105.171(E) and (F); see also Epperson at ¶ 40,

citing Thomas v. Thomas, 2012-Ohio-2893, 974 N.E.2d 679, ¶ 63 (5th Dist.) (“financial

misconduct” allegations requires looking to the reasons behind and results of the

wrongful activity). Nor do we find the trial court abused its discretion when it ordered

each party “is awarded, free and clear of any claims of the other, all bank accounts held

individually in her or her respective name.” See Lindsay at ¶ 22.

                                     C. Conclusion

       {¶ 34} Since we find there was some competent and credible evidence to support

the trial court’s determination that $30,000 of the $40,000 at Croghan Colonial Bank

were gifts from Mrs. Hall’s children, and the remaining $10,000 was from Mrs. Hall’s



19.
own funds, we cannot find the trial court’s judgment “on the marital or separateness of

some $36,500.00 that was deposited and withdrawn from Defendant’s Fremont Federal

Credit Union account between October 2015 and December 2015” as Mrs. Hall’s

separate property was against the manifest weight of the evidence.

       {¶ 35} Mr. Hall’s first and second assignments of error are not well-taken.

       {¶ 36} The judgment of the Sandusky County Court of Common Pleas, Domestic

Relations Division, is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                      Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.              .
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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