[Cite as White-Rhoades v. Rhoades, 2014-Ohio-1790.]




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




CYNTHIA KAY WHITE-RHOADES,

        PLAINTIFF-APPELLANT,                            CASE NO. 9-13-60

        v.

WAYNE A. RHOADES,                                       OPINION

        DEFENDANT-APPELLEE.




                Appeal from Marion County Common Pleas Court
                                Family Division
                          Trial Court No. 12 DR 0043

                                    Judgment Affirmed

                            Date of Decision: April 28, 2014




APPEARANCES:

        Jeff Ratliff for Appellant

        Nathan D. Witkin for Appellee
Case No. 9-13-60


SHAW, J.

       {¶1} Plaintiff-appellant, Cynthia K. White-Rhoades (“Cynthia”), appeals

the October 1, 2013 judgment of the Marion County Court of Common Pleas,

Family Division, classifying the appreciation of Cynthia’s residence, located at

295 Kenmore Avenue, Marion, Ohio (the “Kenmore residence”), as marital

property based upon improvements made during the marriage which were funded

by a bank account containing Cynthia’s separate property and marital funds

contributed by defendant-appellee, Wayne A. Rhoades (“Wayne”). The trial court

concluded that the account was a marital asset due to the comingled nature of the

funds and further determined that it was unable to discern from the evidence

presented which party’s funds financed the improvements to the Kenmore

residence. As a result, the trial court ordered Cynthia to pay Wayne one half of

the value of the appreciation.

       {¶2} This Court originally heard this matter in case number 9-12-60

(“White-Rhoades v. Rhoades I”). White-Rhoades v. Rhoades, 3rd Dist. Marion

No. 9-12-60, 2013-Ohio-2385. In the original decree of divorce, the trial court

determined that the appreciation of the Kenmore residence was Cynthia’s separate

property. Specifically, the trial court found that:

       During the course of the marriage the residence at 295 Kenmore
       Avenue underwent an addition. [Wayne] seeks to be awarded
       one-half of the increase in the value of the real property due to
       the labor he performed. The evidence shows that [Cynthia]

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       engaged the services of a contractor to construct an addition to
       the Kenmore Avenue property. The evidence further shows that
       [Cynthia] expended funds in excess of $200,000.00 for this
       construction. [Wayne] acknowledged that the funds for the
       construction came from [Cynthia’s] monies. However, [Wayne]
       claims he is entitled to a portion of the increase in the value of
       the property because he assisted the construction team with his
       labor and expertise. [Wayne] further indicated that he used the
       opportunity to learn some construction skills from the
       contractor.

       Don Davis, a certified real estate appraiser, appraised the home
       with and without the addition. He determined, and the parties
       stipulated, that the increase in the value of the property is
       $40,000.00. The Court finds that [Wayne] failed to show that the
       work he performed and the expertise he provided increased the
       value of the real estate. The Court therefore finds that
       [Wayne’s] labor and expertise did not result in any comingling
       of the property and the property shall remain [Cynthia’s]
       separate property.

(Doc. No. 47, p. 2–3).

       {¶3} The trial court also determined that the Honda Account which

financed the improvements to the Kenmore residence was a marital asset.

Specifically, the trial court found as follows:

       [Wayne] claims that his income was deposited into [Cynthia’s]
       checking account and that as a result there has been a
       comingling of assets. Bank records show that [Wayne’s]
       paycheck was direct deposited into [Cynthia’s] Honda Federal
       Credit Union checking account ending in account # 3693. This
       arrangement was made because [Wayne], due to prior felony
       convictions, was not able to open his own separate checking
       account. Additionally, direct deposit was required by his
       employer. [Wayne] acknowledged that awards on [Cynthia’s]
       personal injury claims were deposited into this account and that
       they were not comingled and are [Cynthia’s] separate property.

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Case No. 9-13-60


       [Cynthia] eventually moved those funds into her investment
       accounts. The Court finds that those funds remain [Cynthia’s]
       separate property. The bank records show that the monies in
       [Cynthia’s] Honda Federal Credit Union checking account
       indicated by checking #3693 were used for various expenditures.
       Some of the expenses were for the parties’ vacations, dining and
       other non-essential purposes. Others are attributable to trips
       that [Wayne] had separately from [Cynthia]. Other expenses
       were used for the daily living expenses of the parties. [Cynthia]
       has not met the burden of showing adequate tracing to show that
       the account, although solely in her name, was not comingled
       with [Wayne’s] funds. The Court therefore finds that checking
       account ending with the numbers 3693 is a marital asset. Both
       parties’ property affidavits show that the balance in this account
       at separation was $1,713.77. These funds are marital.

(Id. at p. 3–4).

       {¶4} Wayne filed an appeal in White-Rhoades v. Rhoades I claiming that

the trial court erred in determining that the $40,000.00 of appreciation of the

Kenmore residence was attributable to only Cynthia’s separate property.

Specifically, Wayne argued that the trial court overlooked certain evidence

presented during the final hearing when the trial court stated in the divorce decree

that “[Wayne] acknowledged that the funds for the construction came from

[Cynthia’s] monies. However, [Wayne] claims he is entitled to a portion of the

increase in the value of the property because he assisted the construction team

with his labor and expertise.”      Instead, Wayne argued that he consistently

maintained during the trial court proceedings that the appreciation was marital

property due to the fact that the addition on the Kenmore residence was funded in


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Case No. 9-13-60


large part by the Honda Account where $84,000.00 of his earnings were deposited

during the marriage.

       {¶5} This Court reviewed the record in White-Rhoades v. Rhoades I and

determined that the evidence supported Wayne’s contentions on appeal that he

maintained throughout the final hearing that the appreciation was a marital asset

due to the comingling of marital and separate funds in the Honda account and that

the characterizations of the trial court to the contrary were not supported by the

record. White-Rhoades v. Rhoades I, 2013-Ohio-2385 at ¶ 19. Consequently, we

issued a remand solely “for the trial court to consider the argument Wayne

asserted in his trial brief concerning the classification of the Kenmore residence’s

appreciation.” Id. at ¶ 23.

       {¶6} The record reflects that a status conference was held on August 15,

2013, following the release of this Court’s opinion in White-Rhoades v. Rhoades I.

       {¶7} On September 25, 2013, Wayne filed “Defendant’s Post Appeal

Brief.” In this document, Wayne acknowledged, for the first and only time in the

record of these divorce proceedings, the existence of a debt associated with a

judgment in a separate civil case involving Cynthia and Nye Construction—the

contractors who built the addition on the Kenmore residence.




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       {¶8} On October 1, 2013, the trial court issued a judgment entry on the

remanded matter of considering Wayne’s arguments regarding the appreciation.

In this judgment entry, trial court reached the following conclusion:

       Ohio Revised Code § 3105.171(C)(1) indicates that the Court
       shall divide marital property equally unless such a division is not
       equitable. Ohio Revised Code § 3105.171(C)(2) indicates that
       each spouse shall be considered to have contributed equally to
       the production and acquisition of marital property. As indicated
       above the Court determined the Honda Federal Credit Union
       account to be marital property due to inadequate tracing.

       To determine whether or not an equal division of the increase in
       value of [Cynthia]’s separate real property is equitable the
       Court turns to Ohio Revised Code § 3105.171(F). This Court
       finds that the duration of the marriage was six years. The Court
       further finds that [Cynthia] owned the real property at issue
       prior to the marriage. The Court further finds that the
       additions [sic] made to the real estate were made after the
       marriage. The addition increased the value of the home from
       $90,000.00 to $130,000.00 yielding a $40,000.00 increase in the
       property value. The Court is unable to discern which particular
       dollars from the Honda Federal Credit Union account were
       assigned to the payment of the addition.

       The Court therefore finds that an equal division of the increase
       in the value of the property is fair and equitable.

       It is therefore ORDERED that [Cynthia] shall pay [Wayne]
       $20,000.00 for his share of the increase in the value of the real
       property on Kenmore Avenue within 30 days of this judgment
       entry.

(Doc. No. 60 at 2).

       {¶9} Cynthia subsequently filed this appeal, asserting the following

assignment of error.

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                           ASSIGNMENT OF ERROR

        THE TRIAL COURT FAILED TO MAKE AN EQUAL
        DIVISION OF ALL THE MARITAL ASSETS AND DEBTS,
        AS DIRECTED BY R.C. 3105.171, WITHOUT STATING
        THAT AN EQUAL DIVISION WOULD BE INEQUITABLE
        OR INDICATING ANY REASONS FOR AN UNEQUAL
        DIVISION AS LISTED IN R.C. 3105.171(C).

        {¶10} In her sole assignment of error, Cynthia argues following three points

on appeal: (1) the trial court abused its discretion when it determined that the

appreciation of the Kenmore residence should be divided equally between the

parties; (2) the trial court erred when it failed to consider the liability owed to Nye

Construction as a result of a judgment issued in a separate civil suit in making its

property division regarding the appreciation of the Kenmore residence; and (3) the

trial court failed to equally divide the parties’ Honda Account and Wayne’s 401k

plan.

        {¶11} At the outset, we note that neither party sought to have any part of

the record of the separate civil suit involving Nye Construction certified or

otherwise introduced into the record of these divorce proceedings.             On the

contrary, the only evidence of the Nye Construction case before the trial court was

brief testimony regarding Cynthia’s expenses and her payment of attorney’s fees

to defend that case. Moreover, there is nothing in the evidence presented to trial

court indicating that the parties contemplated a potential liability affecting the

property distribution in the divorce arising from the Nye Construction case. As a

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result, the trial court could not have properly considered any debt resulting from

this separate and independent civil case as part of its property distribution in the

parties’ divorce. Accordingly, we find Cynthia’s contention that the trial court on

remand should have considered the judgment in the Nye Construction case when

determining the parties’ shares of the Kenmore residence appreciation to be

without merit.

       {¶12} We further note that the only issue properly before us on this appeal

is the matter specifically remanded by this Court in White-Rhoades v. Rhoades I—

i.e., trial court’s division of the appreciation of the Kenmore residence. Thus, any

argument the parties may have challenging the trial court’s division of other

property, including the Honda Account or Wayne’s 401(k), are waived as they

should have been raised in the prior appeal.

       {¶13} We next turn to address the final argument presented by Cynthia in

support of her assignment of error which does properly pertain to the matter

remanded by this Court in White-Rhoades v. Rhoades I—specifically that the trial

court erred in allocating to the parties equal shares of the Kenmore residence

appreciation.

       {¶14} Trial courts have broad discretion to determine what property

division is equitable in a divorce proceeding. Cherry v. Cherry, 66 Ohio St.2d

348, 355 (1981). A trial court’s decision allocating marital property will not be


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reversed absent an abuse of discretion. Jackson v. Jackson, 3d Dist. Paulding No.

2008–Ohio–1482, ¶ 15, citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131

(1989). Here, the record supports the trial court’s conclusion that the Honda

Account used to finance the improvements to the Kenmore residence contained

comingled marital and separate funds. The record also supports the trial court’s

determination that Cynthia failed to present sufficient evidence establishing that

only her separate funds were used from the Honda Account to finance the addition

on the Kenmore residence. Accordingly, we do not find the trial court’s decision

to equally divide the appreciation between the parties to be an abuse of discretion.

       {¶15} For all these reasons, Cynthia’s assignment of error is overruled and

the judgment is affirmed.

                                                                Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




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