[Cite as Joseph v. Joseph, 2014-Ohio-1599.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



JAMES P. JOSEPH                               :     JUDGES:
                                              :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :     Hon. Sheila G. Farmer, J.
                                              :     Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
KAREN M. JONES JOSEPH                         :     Case No. 2013CA00190
                                              :
        Defendant-Appellant                   :     OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Domestic Relations Division,
                                                    Case No. 2012DR01196



JUDGMENT:                                           Affirmed/Reversed in Part and
                                                    Remanded




DATE OF JUDGMENT:                                   April 14, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

GREGORY J. RUFO                                     SCOT A. STEVENSON
101 Central Plaza South                             441 Wolf Ledges Parkway
900 Chase Tower                                     Suite 400
Canton, OH 44702                                    Akron, OH 44311
Stark County, Case No. 2013CA00190                                                       2

Farmer, J.

      {¶1}   Appellant, Karen Jones Joseph, and appellee, James Joseph, were

married on November 8, 1996. On October 18, 2012, appellee filed a complaint for

divorce. A hearing commenced on August 15, 2013. By final entry decree of divorce

filed August 21, 2013, the trial court granted the parties a divorce, upheld the terms and

conditions of their antenuptial agreement, and divided the parties' marital assets.

      {¶2}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶3}   "THE TRIAL COURT ERRED IN FINDING THE INTEGRITY CREDIT

UNION SAVINGS ACCOUNT OWNED BY KAREN JOSEPH WAS NOT HER

SEPARATE PROPERTY."

                                            II

      {¶4}   "THE TRIAL COURT ERRED IN AWARDING A $5,000.00 SAVINGS

ACCOUNT THAT DID NOT EXIST TO MS. JOSEPH AS MARITAL PROPERTY."

                                            III

      {¶5}   "THE TRIAL COURT ERRED IN FAILING TO AWARD EITHER PARTY

HOUSEHOLD GOODS THAT WERE NOT THEIR SEPARATE PROPERTY BUT

INSTEAD ORDERING THAT THE PARTIES SHOULD AGREE TO A DIVISION OF

THOSE ASSETS."

                                             I

      {¶6}   Appellant claims the trial court erred in finding the Integrity Federal Credit

Union savings account was marital property. We disagree.
Stark County, Case No. 2013CA00190                                                        3


       {¶7}   Under R.C. 3105.171(B), in divorce proceedings, a trial court shall

"determine what constitutes marital property and what constitutes separate property."

R.C. 3105.171(A)(3)(a) defines "marital property" as follows in pertinent part:



              (i) All real and personal property that currently is owned by either or

       both of the spouses, including, but not limited to, the retirement benefits of

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

       during the marriage;

              (ii) All interest that either or both of the spouses currently has in any

       real or personal property, including, but not limited to, the retirement

       benefits of the spouses, and that was acquired by either or both of the

       spouses during the marriage;

              (iii) Except as otherwise provided in this section, all income and

       appreciation on separate property, due to the labor, monetary, or in-kind

       contribution of either or both of the spouses that occurred during the

       marriage;



       {¶8}   R.C. 3105.171(A)(6)(a) defines "separate property" 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":



              (i) An inheritance by one spouse by bequest, devise, or descent

       during the course of the marriage;
Stark County, Case No. 2013CA00190                                                       4


             (ii) 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;

             (iii) Passive income and appreciation acquired from separate

      property by one spouse during the marriage;

             (iv) Any real or personal property or interest in real or personal

      property acquired by one spouse after a decree of legal separation issued

      under section 3105.17 of the Revised Code;

             (v) Any real or personal property or interest in real or personal

      property that is excluded by a valid antenuptial agreement;

             (vi) Compensation to a spouse for the spouse's personal injury,

      except for loss of marital earnings and compensation for expenses paid

      from marital assets;

             (vii) 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.



      {¶9}   As explained by this court in Oliver v. Oliver, 5th Dist. Tuscarawas No.

2012 AP 11 0067, 2013-Ohio-4389, ¶ 80:



             The characterization of property as separate or marital is a mixed

      question of law and fact, and the trial court's ruling must be supported by
Stark County, Case No. 2013CA00190                                                      5

      sufficient credible evidence.      Globokar v. Globokar, 5th Dist. No.

      2009CA00138, 2010-Ohio-1737.         We will not reverse the trial court's

      judgment as being against the manifest weight of the evidence if some

      competent, credible evidence supports the court's judgment. C.E. Morris

      Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376

      N.E.2d 578.     "Trial court decisions on what is presently separate and

      marital property are not reversed unless there is a showing of an abuse of

      discretion." Vonderhaar-Ketron v. Ketron, 5th Dist. No. 10CA22, 2010-

      Ohio-6593.



      {¶10} In order to find an abuse of discretion, we must determine 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 (1983).

      {¶11} Appellant argues the savings account was her separate property as it was

in fact the Barberton Credit Union account that was identified in the parties' antenuptial

agreement.

      {¶12} In its August 21, 2013 final entry, under Findings of Fact, "Financial

Institutions," the trial court noted the parties' accounts, specifically stating: "She

[appellant] also has an account with Integrity Credit Union valued at $11,049." Under

Conclusions of Law and Order, "Division of Marital and Separate Property," the trial

court stated: "Each party shall take the marital assets as listed in his/her column on the

attached Property Division Exhibit." In this exhibit, the Integrity account is listed as a

marital asset and awarded solely to appellant. Also included in this exhibit and listed as
Stark County, Case No. 2013CA00190                                                     6


marital property and awarded solely to appellee is an ING Deferred Compensation

account which appellee claimed was his separate property. In the final entry under

Conclusions of Law and Order, "Pension," the trial court rejected appellee's claim of

separate property:



             The ING account was established shortly after the party's marriage.

      The Husband claims that a check for $30,000 went into the ING account.

      His exhibit, 26 does reveal that a check was issued to him in the amount

      of $38,000 in 2008. Plaintiff's exhibit 3, however does not indicate any

      corresponding deposit into the ING account. Accordingly, the Husband's

      claim that there may be some separate property interest in the ING

      account has not been shown. Accordingly, the entire balance of $14,525

      is marital.



      {¶13} Appellant argues the Integrity account has the same account number as

the Barberton Credit Union account included in the antenuptial agreement and therefore

the Integrity account is her separate property.    However, during the course of the

marriage and during the period encompassing the divorce proceedings, appellant

placed marital income into the account, including bingo winnings and social security

income. August 21, 2013 T. at 40, 76-78, 80.

      {¶14} The trial court disregarded the "separate property" assertions of both

appellant and appellee regarding their respective accounts as for all practical purposes,

the parties had comingled marital funds with separate funds. The trial court deemed
Stark County, Case No. 2013CA00190                                                      7


both accounts marital property, and awarded each account to the claimed owner,

$11,049.00 in the Integrity account to appellant and $14,525.00 in the ING account to

appellee.

       {¶15} Upon review, we find the trial court was able to see the forest for the trees

with the comingling of marital income in the separate property accounts, and did not

abuse its discretion in its distribution of said accounts.

       {¶16} Assignment of Error I is denied.

                                              II

       {¶17} Appellant claims the trial court erred in awarding her $5,000.00 in marital

property from a PNC savings account that did not exist. We agree.

       {¶18} A subpoena issued to PNC Bank on April 10, 2013 requested the following

information: "A copy of any and all financial records for the years 2010, 2011, 2012 and

2013 to date, for the joint account of James P. Joseph, Sr. and Karen M. Joseph.

Account No. 3851, together with a copy of any and all statements of account for either

James P. Joseph, Sr. and/or Karen M. Joseph."

       {¶19} Appellant argues Plaintiff's Exhibit 4 conclusively establishes that a

$5,000.00 PNC savings account did not exist. The exhibit is the requested records from

PNC Bank. The title page of the exhibit lists a checking account number only, and

includes statements from January 2010 to March 2013. A review of the statements

indicates several CDs as well as a joint savings account with a balance of just under

$6,000.00.    On December 27, 2011, $5,899.07 was withdrawn from the savings

account, leaving a zero balance.          The savings account was dropped from the

statements starting with the January 28, 2012 statement. The money was withdrawn
Stark County, Case No. 2013CA00190                                                          8


during the course of the marriage, as appellee did not file for divorce until October 18,

2012.

        {¶20} The only mention of this account in the final entry is under Findings of

Fact, "Financial Institutions": "Jointly they have a PNC checking account of $14,897 and

a PNC savings account of $5,000."           In the attached Property Division Exhibit, the

account is listed as a marital asset and awarded solely to appellant. There is no finding

of who withdrew the money from the account or that there was any impropriety

regarding the withdrawal.

        {¶21} Appellee argues the trial court correctly included the savings account in

the division of marital assets because in Plaintiff's Exhibit 7, his affidavit of property, he

listed the PNC checking account as well as the PNC savings account in the amount of

$5,000.00. However, a review of the evidence does not support this averment. We find

the PNC Bank records in Plaintiff's Exhibit 4 lay to rest the issue of the savings account.

It did not exist after the entire amount was withdrawn on December 27, 2011.

        {¶22} We find the trial court erred in including the PNC savings account as a

marital asset and awarding $5,000.00 to appellant. The matter is remanded to the trial

court for recalculation of the division of marital property in light of this decision.

        {¶23} Assignment of Error II is granted.

                                               III

        {¶24} Appellant claims the trial court erred in not dividing or providing a means

to divide the parties' personal property. We disagree.

        {¶25} In its final entry under Conclusions of Law and Order, "Household Goods

and Belongings," the trial court stated: "The parties shall divide the household
Stark County, Case No. 2013CA00190                                                      9


furnishings pursuant to their mutual agreement OR Exhibit's Plaintiff's 27, Plaintiff's 28

and Defendant's B which are attached."

       {¶26} We note because a reviewing court must consider the totality of the

circumstances in reviewing a trial court's decision, piecemeal appeals are not favored.

Briganti v. Briganti, 9 Ohio St.3d 220 (1984).

       {¶27} Prior to the marriage, the parties entered into an antenuptial agreement

setting forth their own separate property, which is attached to the final entry. They also

presented handwritten lists of their separate personal property which are attached to the

final entry. See, Plaintiff's Exhibits 27 and 28, and Defendant's Exhibit B. Appellant

conceded that most of the items listed in Plaintiff's Exhibit 27 belonged to appellee.

August 21, 2013 T. at 54-60.

       {¶28} Given the testimony, we find it correct to assume that the parties would be

able to agree on the division of a few personal items. No other request was made

during the entire hearing to indicate otherwise.

       {¶29} Assignment of Error III is denied.
Stark County, Case No. 2013CA00190                                             10


      {¶30} The judgment of the Court of Common Pleas of Stark County, Ohio,

Domestic Relations Division is hereby affirmed in part and reversed in part.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




SGF/sg 306
