[Cite as Neville v. Neville, 2009-Ohio-3817.]




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




SUSAN NEVILLE nka GORHAM,

        PLAINTIFF-APPELLANT,                               CASE NO. 9-08-37

        v.

TERRY NEVILLE,                                             OPINION

        DEFENDANT-APPELLEE.




                  Appeal from Marion County Common Pleas Court
                                   Family Division
                            Trial Court No. 2008-DR-0036

                                       Judgment Affirmed

                             Date of Decision:   August 3, 2009




APPEARANCES:

        Darrell L. Heckman for Appellant

        Kevin P. Collins for Appellee
Case No. 9-08-37



SHAW, J.

       {¶1}   Plaintiff-Appellant Susan Neville (“Susan”) appeals from the July

15, 2008 Judgment Entry Decree of Divorce of the Court of Common Pleas,

Family Division, Marion County, Ohio.

       {¶2}   Susan married Terry Neville (“Terry”) on June 17, 2006.       Prior to

the marriage, Susan had moved into Terry’s residence located in Marion, Ohio. At

the time they were married, Susan was employed as a school secretary and Terry

owned his own farming business.

       {¶3}   Throughout the marriage, the common funds in the checking account

held jointly by Susan and Terry were kept separate from Terry’s farm accounts.

Susan’s paycheck was directly deposited into the joint account, and Terry made

periodic transfers from the farm accounts into the joint account. Those funds, in

the joint account, were used to cover living expenses. The farm business funds

were kept completely separate.

       {¶4}   During the course of the marriage, Terry acquired several vehicles

and pieces of farm equipment which were subsequently sold. The buying and

selling of vehicles appeared to be a normal part of Terry’s farming business.

Terry also sold some property, prior to the marriage, which resulted in a balance of

funds of approximately $51,000. A portion of that money was then subsequently




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used to purchase a cottage at Indian Lake for $44,000 which was deeded to both

Susan and Terry.

       {¶5}     It appears from the record that Susan left the marital residence in

January of 2008. On February 13, 2008, Susan filed for divorce. Terry filed an

answer on February 19, 2008 in which he admitted that the parties were

incompatible.

       {¶6}     A hearing was held on June 18, 2008. On July 15, 2008 the trial

court issued a decree of divorce.

       {¶7}     Susan now appeals, asserting four assignments of error.

                   ASSIGNMENT OF ERROR I
       THE TRIAL COURT ERRED IN CHARACTERIZING THE
       PARTIES’ COTTAGE AT INDIAN LAKE AS SEPARATE
       PROPERTY OF APPELLEE.

                  ASSIGNMENT OF ERROR II
       THE TRIAL COURT ERRED IN CHARACTERIZING THE
       APPRECIATION OF THE SEA RAY BOAT AND THE
       DODGE RAM TRUCK AS SEPARATE PROPERTY OF
       APPELLEE.

                  ASSIGNMENT OF ERROR III
       THE TRIAL COURT ERRED IN CHARACTERIZING ALL
       OF THE FARM SAVINGS ACCOUNT AND FARM
       CHECKING ACCOUNT AS SEPARATE PROPERTY OF
       THE APPELLEE.

                  ASSIGNMENT OF ERROR IV
       THE TRIAL COURT ERRED IN FAILING TO AWARD
       ATTORNEY FEES TO APPELLANT-WIFE.




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       {¶8}   For ease of discussion, we elect to address Susan’s first three

assignments of error together, as they deal with substantially similar issues. In her

first three assignments of error, Susan argues that the trial court erred in

characterizing the cottage at Indian Lake, the appreciation on the Sea Ray boat and

the Dodge Ram, and the farm savings account and farm checking account as

separate property.

       {¶9}   In a divorce proceeding, the trial court must determine whether

property is marital or separate property. Gibson v. Gibson, 3rd Dist. No. 9-07-06,

2007-Ohio-6965, ¶ 29 citing R.C. 3105.171(B), (D). This court reviews the trial

court’s classification of property as marital or separate property under a manifest

weight of the evidence standard. Gibson, 3rd Dist. No. 9-07-06, at ¶26, quoting

Eggeman v. Eggeman, 3rd Dist. No. 2-04-06, 2004-Ohio-6050, ¶14, citing

Henderson v. Henderson, 3rd Dist. No. 10-01-17, 2002-Ohio-2720, ¶28.

Accordingly, the trial court’s judgment will not be reversed if the decision is

supported by some competent, credible evidence. Eggeman, 2004-Ohio-6050, at

¶14 citing DeWitt v. DeWitt, 3rd Dist. No. 9-02-42, 2003-Ohio-851, ¶10. In

determining whether competent, credible evidence exists, “[a] reviewing court

should be guided by a presumption that the findings of a trial court are correct,

since the trial judge is best able to view the witnesses and observe their demeanor,

gestures, and voice inflections, and use those observations in weighing the



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credibility of the testimony.” Barkley v. Barkley (1997), 119 Ohio App.3d 155,

159, 694 N.E.2d 989 citing In re Jane Doe I (1991), 57 Ohio St.3d 135, 566

N.E.2d 1181.

      {¶10} Marital property is defined by R.C. 3105.171(A)(3)(a) as follows:

      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;

      (iv) A participant account, as defined in section 148.01 of the
      Revised Code, of either of the spouses, to the extent of the
      following: the moneys that have been deferred by a continuing
      member or participating employee, as defined in that section,
      and that have been transmitted to the Ohio public employees
      deferred compensation board during the marriage and any
      income that is derived from the investment of those moneys
      during the marriage; the moneys that have been deferred by an
      officer or employee of a municipal corporation and that have
      been transmitted to the governing board, administrator,
      depository, or trustee of the deferred compensation program of
      the municipal corporation during the marriage and any income
      that is derived from the investment of those moneys during the
      marriage; or the moneys that have been deferred by an officer
      or employee of a government unit, as defined in section 148.06 of
      the Revised Code, and that have been transmitted to the
      governing board, as defined in that section, during the marriage


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      and any income that is derived from the investment of those
      moneys during the marriage.

       {¶11} However, marital property does not include any separate property.

R.C. 3105.171(A)(3)(b). Separate property is defined by R.C. 3105.171(A)(6)(a)

which provides in pertinent part as follows:

      (i) An inheritance by one spouse by bequest, devise, or descent
      during the course of the marriage;

      (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.

       {¶12} In addition to the statutory definitions of marital and separate

property, we note that “[t]he commingling of separate property with other property

of any type does not destroy the identity of the separate property as separate


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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. Further, “the party

seeking to establish an asset as separate property * * * has the burden of proof, by

a preponderance of the evidence, to trace the asset to separate property.” Id.

       {¶13} In the present case, Susan argues that the cottage at Indian Lake (“the

cottage”) which was deeded in both of their names was not separate property

belonging to Terry. With respect to the cottage, the trial court found as follows:

       Wife seeks an interest in the property for two reasons. The first
       reason is because it was purchased during the marriage and
       because her name is on the deed. Wife also cites her
       contribution to improving the property as a reason the Court
       could consider the property marital. The parties agree that the
       value of the property at the time of purchase was $44,000.00.
       The parties also agreed that the value of the property at the
       present time remains $44,000.00 despite the improvements
       made. Ohio Revised Code Section §3105.171(H) indicates that
       the holding of title to property by one spouse individually or by
       both spouses in the form of co-ownership does not determine
       whether the property is marital property or separate property.
       The Husband provided proficient tracing to show that the
       purchase of the Indian Lake cottage came from his separate
       non-marital monies. Wife’s contribution did not increase the
       value of the property. Therefore, the Court finds, based and
       [sic] the totality of the circumstances, that the cottage at Indian
       Lake is the separate non-marital property of the Husband.




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       {¶14} Specifically, Susan argues that the trial court erred by failing to

consider that the cottage became marital property because it was given as a gift.

As an initial matter, we note that Susan did not raise this argument, that the cottage

was deeded in part to her as a gift, before the trial court. It is axiomatic that a party

may not assert an issue for the first time on appeal. Gibson, 2007-Ohio-6965 at

¶34. Therefore, we find that Susan is now precluded from arguing that the cottage

was marital property as a result of a gift.

       {¶15} However, in the interest of justice, we will address Susan’s argument

that the cottage was converted to marital property as a gift. R.C. 3105.171(H)

specifically provides that “(e)xcept as otherwise provided in this section, the

holding of title to property by one spouse individually or by both spouses in a form

of co-ownership does not determine whether the property is marital property or

separate property.” Therefore, we agree with the trial court that the deed itself is

not wholly determinative of whether the cottage remains separate property.

       {¶16} Separate property may also be converted to marital property by inter

vivos gift. Helton v. Helton (1996), 114 Ohio App.3d 683, 685, 683 N.E.2d 1157.

The elements of an inter vivos gift are “‘(1) an intention on the part of the donor to

transfer the title and right of possession of the particular property to the donee then

and there and (2), in pursuance of such intention, a delivery by the donor to the

donee of the subject-matter of the gift to the extent practicable or possible,



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considering its nature, with relinquishment of ownership, dominion and control

over it.’” Helton, 114 Ohio App.3d at 685-686, quoting Bolles v. Toledo Trust Co.

(1936), 132 Ohio St. 21, 4 N.E.2d 917 at syllabus. Additionally, “‘[a]n inter vivos

gift is an immediate, voluntary, gratuitous and irrevocable transfer of property by a

competent donor to another.’” Helton, 114 Ohio App.3d at 685-686, quoting Smith

v. Shafer (1993), 89 Ohio App.3d 181, 183, 623 N.E.2d 1261.

       {¶17} The party claiming an inter vivos gift bears the burden of showing by

clear and convincing evidence that such a gift was made. Id. Moreover, the

existence of a deed in the names of both parties does not shift the burden away

from the donee spouse to prove that an inter vivos gift occurred. See Jones v.

Jones 4th Dist. No. 07CA25, 2008-Ohio-2476; Brady v. Brady, 11th Dist. No. 2007-

P-0059, 2008-Ohio-1657; Gibson v. Gibson 5th Dist No. 2006 AP 01 0009, 2007-

Ohio-2087; Ardrey v. Ardrey, 3rd Dist. No. 14-03-41, 2004-Ohio-2471.

       {¶18} In the present case, although Susan’s name was on the deed, no facts

were presented at the hearing that would indicate that partial ownership of the

cottage was a gift. Moreover, in her brief, Susan cites to no evidence to indicate

that the cottage was a gift, other than the deed. Therefore, the record is silent as to

the element of donative intent.

       {¶19} Additionally, other than Susan’s claims that she helped with

improvements on the cottage, there is nothing in the record to contradict Terry’s



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claim that the cottage is his separate property. Moreover, ample evidence was

provided by Terry to trace the money used to purchase the cottage to proceeds

from the sale of real estate occurring prior to the marriage, which was the separate

property of Terry. Therefore, we find that the trial court’s determination that the

cottage is the separate property of Terry is supported by competent, credible

evidence.

       {¶20} Susan also argued that the trial court erred in finding the

appreciation on the Dodge Ram truck and the Sea Ray boat to be the separate

property of Terry. In considering the appreciation of these assets, the trial court

found that “[t]he Husband provided proof of these purchases being made from his

separate farm accounts and also for value of items that were owned prior to the

marriage by the Husband as trade. Wife was unable to prove otherwise that the

monies were not Husbands [sic].”

       {¶21} In support of her argument, Susan relies on Middendorf v.

Middendorf, 82 Ohio St.3d 397, 696 N.E.2d 575, 1998-Ohio-403. In Middendorf,

the Ohio Supreme Court considered whether the appreciation in value on a

stockyard that occurred during a marriage, was separate or marital property. The

Court noted that the stockyard itself was separate property, but then considered the

classification of the appreciation that occurred during the marriage. The court

concluded that the appreciation was marital property. In reaching this conclusion,



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the Middendorf Court relied on a finding that the increase in the value of the

stockyard was due to labor, money, or in-kind contributions.                See R.C.

3105.171(A)(3)(a)(iii).    Specifically, the court in Middendorf found that the

husband’s labor made the appreciation that occurred during the marriage marital

property.

       {¶22} However, the Middendorf Court specifically noted that appreciation

due to labor, money, or in-kind contributions of either spouse was to be

distinguished from passive appreciation.        Passive appreciation value remains

separate property. See, R.C. 3105.171(A)(6)(a)(iii).

       {¶23} Here, any appreciation that occurred on the Dodge Ram and the Sea

Ray boat was the result of passive appreciation. The Sea Ray boat was purchased

and sold during the marriage with Terry’s separate funds from the farm account.

Although Terry made a profit on the sale of the Sea Ray boat, we note that the

profit was then put into a Fisher pontoon boat, which is still at the cottage.

       {¶24} With respect to the Dodge Ram, which was bought and sold during

the course of the marriage, the increase in value of the Ram was the result of

passive appreciation. Therefore, the income from the sale of the Ram would still

be treated as separate property.

       {¶25} We note that in making this determination that the appreciation on

the Dodge Ram and the Sea Ray boat was passive, we are assuming that no labor,



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money, or in-kind contribution was put into these items to increase their value.

This assumption arises from the failure of Susan to introduce any evidence to the

contrary that would meet her burden of proving that this separate property has

been converted to marital property.

           {¶26} Finally, Susan argues that the trial court erred by characterizing the

bank accounts of the farm as separate property.1 Susan does not appear to claim

that the funds in these accounts prior to the marriage are marital property. Instead,

she claims that funds deposited in the accounts during the course of the marriage

should be treated as marital property.

           {¶27} Initially, we note that although Susan now argues that she is entitled

to some part of the business, she did not make that argument at the trial court.

Moreover, Susan appears to confuse two arguments: 1) that she is entitled to part

of the business income that occurred during the marriage, and 2) that she is

entitled to part of the appreciation on the business, based on Middendorf.

           {¶28} As previously noted, a party may not assert an issue for the first time

on appeal. See Gibson, 2007-Ohio-6965 at ¶34. Here, Susan did not raise the

issue of allocation of business income or appreciation on the farm business at trial.

In fact, as no argument was made to this effect, the trial court did not even address

the matters of business income or appreciation allocation in its judgment entry.



1
    The farm accounts include both a checking and savings account, but will be discussed together.


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       {¶29} In Middendorf, where appreciation of a business was at issue, expert

testimony was introduced as to the value of the appreciation of the business. Here,

no evidence was introduced specifically giving a value to the appreciation on the

business.   Moreover, although it is argued on appeal that income can be

substituted for appreciation, this is simply not the case. Therefore, we find that the

trial court’s determination that Susan was not entitled to any part of the business

was supported by competent credible evidence.           Accordingly, Susan’s first,

second, and third assignments of error are overruled.

       {¶30} In her fourth assignment of error, Susan argues that the trial court

erred by failing to award attorney fees to her. An award of attorney’s fees is

generally within the sound discretion of the trial court and not to be overturned

absent an abuse of discretion. Kaufman v. Kaufman, 3rd Dist. No. 2-05-24, 2006-

Ohio-603, ¶30, citing Babka v. Babka (1992), 83 Ohio App.3d 428, 435, 615

N.E.2d 247. An abuse of discretion connotes more than a mere error of judgment;

it implies that the trial court’s attitude is arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore, (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140.

       {¶31} Absent a statute to the contrary, bad faith on behalf of a party, or a

contractual obligation, the general rule is that each party is to bear his own

attorney’s fees. Am. Premiere Underwriters v. Marathon Ashland Pipeline, 3rd



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Dist. No. 10-03-12, 2004-Ohio-2222, ¶ 23, citing Sorin v. Bd. of Edn. of

Warrensville Heights School Dist. (1976), 46 Ohio St.2d 177, 179, 347 N.E.2d

527; McConnell v. Hunt Sports Ent. (1999), 132 Ohio App.3d 657, 725 N.E.2d

1193.

        {¶32} R.C. 3105.73 governs the awarding of attorney’s fees in domestic

relations cases. The statute states, in pertinent part:

        In an action for divorce, dissolution, legal separation, or
        annulment of marriage or an appeal of that action, a court may
        award all or part of reasonable attorney's fees and litigation
        expenses to either party if the court finds the award equitable.
        In determining whether an award is equitable, the court may
        consider the parties' marital assets and income, any award of
        temporary spousal support, the conduct of the parties, and any
        other relevant factors the court deems appropriate.

R.C. 3105.73(A).

        {¶33} In the present case, the trial court found that

        [e]ach party seeks Attorney’s fees from the other. Wife
        indicates that she would not have been able to prosecute her
        claims unless Husband paid her Attorney’s fees. Wife has
        borrowed money from her sister for the retainer for her
        Attorney. Wife claims that she is going to be required to repay
        her sister although there is no note or testimony verifying the
        obligation. Husband seeks Attorney’s fees based upon the
        conduct of the wife during the course of the proceedings. He
        claims that wife committed financial misconduct. There was
        insufficient evidence for the claims of either party. The Court
        finds that each party shall pay his or her own Attorney’s fees.

        {¶34} We agree with the trial court’s assessment of the evidence presented

by both parties on the issue of attorney fees. Neither party presented sufficient


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evidence to support their claims for attorney fees based on need or the misconduct

of the other party. Therefore, we find that the trial court acted within its discretion

in disallowing both parties’ claims for attorney fees. Susan’s fourth assignment of

error is overruled.

       {¶35} Based on the foregoing, the July 15, 2008 Judgment Entry Decree of

Divorce of the Court of Common Pleas, Family Division, Marion County, Ohio is

affirmed.

                                                                 Judgment Affirmed

PRESTON, P.J. concurs.

/jlr



ROGERS, J., Concurring as to Assignments of Error Nos. 2, 3, and 4, and
Dissenting as to Assignment of Error No. 1.

       {¶36} I respectfully dissent from the opinion of the majority on the first

assignment of error.     While the majority might have followed conventional

wisdom in finding that the cottage is Terry’s separate property, I find troubling the

lack of importance placed upon the formally executed deed of the parties.

       {¶37} The majority’s conclusion places its reliance upon three established

legal principles: that separate property can be converted into marital property by

inter vivos gift, Helton v. Helton (1996), 114 Ohio App.3d 683, 685; that the party

claiming an inter vivos gift has been made bears the burden of demonstrating that


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gift by clear and convincing evidence, Id.; and, that the holding of title to property

by both spouses in a form of co-ownership, in and of itself, is not determinative of

whether the property is marital or separate. R.C. 3105.171(H). While the majority

and other courts are generally correct in applying these principles to issues of inter

vivos gifts, I believe there has been a failure to recognize long-established case

law regarding formally executed deeds.

       {¶38} A deed transfers an interest in real property, see Black’s Law

Dictionary (8 Ed. 2004), and the well-settled general rule in Ohio is that a deed

executed in the correct form is presumed valid and cannot be set aside except on a

showing of fraud, undue influence, or lack of capacity by clear and convincing

evidence by the party challenging the validity of the deed. Household Fin. Corp.

v. Altenberg (1966), 5 Ohio St.2d 190, syllabus; Weaver v. Crommes (1959), 109

Ohio App. 470, paragraph two of the syllabus. See, also, Henkle v. Henkle (1991),

75 Ohio App.3d 732 (a deed executed in the correct form is presumed to be valid

and will not be set aside except upon a showing, by clear and convincing evidence,

of undue influence or mistake by the party seeking recission or cancellation);

Augenstein v. Augenstein (2000), 107 Ohio Misc.2d 44, 52-53 (“[w]hether the

ground asserted for setting aside [a] formal written instrument [such as a deed] be

lack of capacity, fraud or undue influence, the plaintiff cannot succeed unless he

establishe[s] either lack of mental capacity, fraud, or undue influence by clear and



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convincing evidence”).     Accordingly, it follows that a grantor spouse who

executes a deed to the grantee spouse, granting an interest in the grantor-spouse’s

separate real property, has given to the grantee spouse an interest that cannot be

set aside absent a showing by the grantor spouse, by clear and convincing

evidence, of fraud, undue influence, or lack of capacity. While R.C. 3105.171(H)

may establish that spouses holding title to property in a form of co-ownership does

not, in and of itself, determine whether the property is marital or separate, this

section does not overrule the general requirements for setting aside a formally

executed deed. As such, effect must be given to both the established case law and

the statutory rule found in R.C. 3105.171(H). Accordingly, a court must consider

the totality of the circumstances, but must also place the burden of proof on the

grantor spouse to prove fraud, undue influence, or lack of capacity by clear and

convincing evidence.

      {¶39} To the extent that cases dealing with inter vivos gifts have placed the

burden of proof on the donee to prove that the donor had the requisite donative

intent to convert separate property into marital property, those cases not involving

a formally executed deed were decided properly. See Gibson v. Gibson, 3d Dist.

No. 9-07-06, 2007-Ohio-6965, ¶31. On the other hand, I respectfully disagree

with the decisions that have placed the burden of proof on the donee/transferee

when the facts involved an interest in real property being transferred by one



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spouse to another spouse by a formally executed deed. See, Helton, 114 Ohio

App.3d at 685; Jackson v. Jackson, 3d Dist. No. 11-07-11, 2008-Ohio-1482, ¶8;

Eggman v. Eggman, 3d Dist. No. 2-04-06, 2004-Ohio-6050, ¶30. However, even

those cases stating that the burden of proof is on the donee/transferee appear to

place some importance on the formally executed deed, with some cases even

requiring the party attempting to set aside the deed to carry the burden of proof.

See, Helton, 114 Ohio App.3d 683 (finding that husband had donative intent to

grant an interest in his separate property to his wife, and, consequently, that the

property was converted into marital property, even though the court found that the

main purpose behind the grant was to further the avoidance of taxes and probate);

Jackson, 2008-Ohio-1482 (finding that the trial court abused its discretion in

holding that the wife did not have the donative intent necessary to convert her

separate property into marital property when she transferred an interest in the

property to her husband through a deed making them joint tenants, and finding that

wife did not meet her burden of proof to set aside the deed based on her argument

for undue influence); and Eggman, 2004-Ohio-6050 (relying on a deed that

transferred interest in property to wife in finding that husband had the requisite

donative intent to convert his separate property into marital property by inter vivos

gift).




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       {¶40} In the case at bar, while Terry did not directly deed the cottage to

Susan, he chose to have the cottage deeded in both their names after he purchased

it with his separate funds. Now, Terry seeks to have Susan’s interest in the

property eliminated despite the existence of a validly executed deed.

Consequently, the burden of proof should be on Terry to establish that Susan has

no marital interest in the property. However, the majority places the burden of

proof on Susan to demonstrate that Terry had the requisite donative intent for the

cottage at Indian Lake, purchased with his separate funds, to become marital

property. The majority places no significance on the fact that Terry had the

property deeded to both Susan and himself; the majority is willing to set aside a

validly executed deed with no evidence of an irregular or illegal transfer.

       {¶41} Terry had the deed placed in the names of both parties, with the right

of survivorship, which is generally accepted as a means of estate planning and of

avoiding the expense of probate.      Furthermore, R.C. 5302.20 provides that a

survivorship deed conveys an immediate interest in the real estate.

       (C) A survivorship tenancy has the following characteristics or
       ramifications:
       (1) Unless otherwise provided in the instrument creating the
       survivorship tenancy, each of the survivorship tenants has an
       equal right to share in the use, occupancy, and profits, and each
       of the survivorship tenants is subject to a proportionate share of
       the costs related to the ownership and use of the real property
       subject to the survivorship tenancy.

R.C. 5302.20(C)(1).


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       {¶42} Consequently, I would find that that the trial court applied the wrong

legal standard; that the trial court imposed the burden of proof on the wrong party;

that no evidence exists to divest Susan of her interest in the cottage at Indian Lake;

and, that the trial court erred in finding the cottage to be Terry’s separate property.

       {¶43} However, I would concur with the result reached on assignments of

error two, three, and four, as the boat, truck, and savings account do not implicate

my concerns presented by the transfer of an interest in land through a formally

executed deed.

/jlr




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