[Cite as Osborne v. Malkamaki, 2013-Ohio-4752.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                       LAKE COUNTY, OHIO


BETH OSBORNE,                                     :    OPINION

                 Plaintiff-Appellee,              :
                                                       CASE NO. 2012-L-134
        - vs -                                    :

MATT MALKAMAKI, et al.,                           :

                 Defendant-Appellant.             :


Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations
Division, Case No. 11 DR 00397.

Judgment: Affirmed.


Gary S. Okin, Dworken & Bernstein, Co., L.P.A., 60 South Park Place, Painesville, OH
44077 (For Plaintiff-Appellee).

Carl L. DiFranco, Cannon, Aveni, & Malchesky Co., L.P.A., 41 East Erie Street,
Painesville, OH 44077 (For Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Matt Malkamaki, appeals the Judgment Entry of

Divorce, rendered by the Lake County Court of Common Pleas, Domestic Relations

Division. The issue before this court is whether a trial court errs by determining that a

husband’s contributions from his separate funds to a jointly-owned limited liability

company become marital in the absence of a donative intent. For the following reasons,

we affirm the decision of the court below.
       {¶2}    On June 13, 2011, plaintiff-appellee, Beth Osborne, filed a Complaint for

Divorce against Malkamaki and various business entities in which he held an ownership

interest.1

       {¶3}    On July 25, 2011, Malkamaki filed his Answer and Counterclaim for

Divorce.

       {¶4}    On January 24 and 30, 2012, trial on the merits was held before a

magistrate of the domestic relations court.

       {¶5}    On May 13, 2012, the magistrate issued his Decision, including the

following relevant findings of fact and conclusions of law:

       {¶6}    The Plaintiff and the Defendant were married on June 23, 2006,

               separated on or about January 23, 2009, and have no children born

               as issue of their marriage.

       {¶7}    Barefoot Development, LLC was organized under the laws of the

               State of Ohio and registered as a Limited Liability Company on or

               about May 31, 2007. On or about June 5, 2007, * * * the parties

               entered into an Operating Agreement for Barefoot Development,

               LLC * * *.

       {¶8}    The purpose of Barefoot Development was to take advantage of

               Wife’s expertise in real estate sales, and Husband’s expertise in

               construction. Husband, Matt Malkamaki, and Wife, Beth Osborne

               Malkamaki, are named in the Operating Agreement as the only




1. These were Barefoot Development, LLC; Malkamaki Builders, Inc.; Emerald Point, Inc.; Hidden Harbor
Marina, Inc.; AG Edwards; Wachovia Securities; and First Place Bank.


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       “Members/Interest Holders” of Barefoot Development, LLC * * *

       each assigned a “percentage” of 50%.

{¶9}   During the marriage, Barefoot Development owned, or had

       assigned to it, four different parcels of real estate, hereinafter

       referred to as: “Fairview”, “Salida”, “Manner”, and “Skinner”.     All

       four properties were transferred to Barefoot free and clear of any

       liens or encumbrances.       Fairview has been sold, Skinner is

       unimproved land, and Salida and Manner are rental houses. It is

       not disputed that Husband used his separate, premarital property to

       purchase the four parcels of real estate for Barefoot Development.

       However, at the time that it was transferred to Barefoot, Skinner

       was owned by Beth Properties Ltd., a Corporation owned solely by

       Wife. Prior to this marriage, Husband owned a house on 9411

       Headlands Rd., Mentor, OH 44060. Some of the funds used to

       purchase the four parcels for Barefoot came from a line of credit

       taken out against Husband’s Headlands Road home.            Husband

       also had premarital funds available from a substantial products

       liability settlement.

       ***

{¶10} Magistrate finds that, under the Operating Agreement the parties

       are each entitled to one half of the net profits realized by Barefoot.

       Thus, upon divorce, each party has a separate property interest in

       one half of the new profits.       * * * Wife’s argument that she is




                                      3
entitled to one half of the gross amount realized from the sale of a

Barefoot property is not supported by the evidence, the Operating

Agreement, or divorce law. Magistrate rejects Wife’s argument that

Husband gifted the funds used to purchase the Barefoot properties.

There was no evidence from which Magistrate could find that

Husband had donative intent when he formed Barefoot with Wife.

Barefoot was established as a for-profit business. This business

transaction was memorialized by the formation of a Limited Liability

Corporation [sic] and by the execution of the Operating Agreement.

Magistrate also rejects Wife’s claim that Husband is not entitled to

be reimbursed for funds that he borrowed to purchase properties

for Barefoot. The fact that Husband’s separate funds were used to

purchase the Barefoot properties is undisputed. Wife’s argument is

apparently based upon a provision of the Operating Agreement

which states that no single member may enter into “… contracts,

obligations, loans, liabilities, liens or otherwise bind the Company

when the dollar value … shall be greater than One Thousand

Dollars ($1000).” Wife argues that there is no document showing

that she ever approved loans to Barefoot from Husband. As noted

above, the Operating Agreement provides that Husband’s Capital

Account should be credited with any contributions made to Barefoot

by Husband, and with company liabilities assumed by Husband.

Wife at least implicitly agreed to the transactions whereby the four




                             4
      parcels were acquired and transferred to Barefoot. She therefore

      gave her tacit approval to the transactions, including the fact that

      Husband provided the capital used to purchase the properties.

      Wife is entitled to be compensated for the services she provided to

      Barefoot including real estate commissions earned.      Husband is

      entitled to be reimbursed for funds loaned for the purchase of

      properties, and Husband, or his construction company, is also

      entitled to be paid for construction work done on the properties.

      Husband and Wife are each entitled to one half of any net profits. *

      **

{¶11} Fairview was sold in 2009 for approximately $183,000 and from the

      proceeds of that sale, Malkamaki Builders was paid $30,000 for

      renovations/repair work; and about $150,000 was paid against the

      First-Place Bank mortgage to reimburse Husband for the funds he

      borrowed against his Headlands Road home to purchase Fairview;

      and the balance was paid to Plaintiff to reimburse her for work she

      did on the Fairview project. * * * Had the parties realized a new

      profit on Fairview, then they each would have been entitled to one

      half of the net profit. Neither party presented evidence showing

      that a net profit was made on Fairview. Magistrate therefore finds

      that the Fairview property transaction was properly closed and that

      no further reallocation of funds is warranted.




                                     5
       {¶12} On March 27, 2012, Osborne filed Objections to Magistrate’s

Decision, and on May 18, 2012, she filed a Supplement to Objections.

       {¶13} On September 11, 2012, the domestic relations court ruled on

Osborne’s Objections. With respect to the Barefoot real estate holdings, the

court upheld the Objections and modified the Magistrate’s Decision, in relevant

part, as follows:

       {¶14} Wife argues Husband’s funds provided to the LLC were gifts, not

               capital contributions as found by the Magistrate, nor loans as

               previously argued by Husband. Husband testified [that] he is due

               $363,202.55 from the LLC as of December 31, 2011 for loans he

               made to it. Loans to the LLC are specifically governed by Section

               3.7, 5.1 and 5.1.2 of the agreement. Section 3.7 entitled “Loans”

               states:

       {¶15}        Any Member may, at any time, make or cause a loan to be

                    made to the Company in any amount and on those terms

                    upon which the Company and the Member agree.

       {¶16} Section 5.1 and 5.1.2 read as follows:

       {¶17}        5.1 MANAGEMENT: The Company shall be managed

                    equally by the Members.

       {¶18}        5.1.2 No single member shall have authority to approve

                    expenses, enter into contracts, obligations, loans, liabilities,

                    liens or otherwise bind the Company when the dollar value




                                               6
         of such expense, contract, obligation, loan liability or lien

         shall be greater than One Thousand Dollars ($1,000).

{¶19} The Company, according to section 3.7, is managed equally by the

      members. Therefore, Husband needed Wife’s concurrence as an

      equal 50% partner for the Company to receive a loan from a

      member.    The transcript is devoid of such evidence as to any

      agreement from Wife for the LLC to accept various loans from

      Husband. Wife testified she was not asked about loans to be made

      to the Company by Husband. Nor was there any documentation

      executed between the Company and Husband at the time of the

      purported loans.     Section 5.1.2 limits a single member to a

      maximum of $1,000 in approving contracts, obligations, loans,

      liabilities or liens on behalf of the LLC, to avoid the unilateral

      overextending of the liabilities of the Company, as occurred herein.

      The evidence is clear [that] Husband failed to comply with sections

      5.1 and 5.2 as to his claim of loans to the Company.

{¶20} In addition, Husband was appointed as the statutory agent of the

      LLC by the operating agreement. Husband and his accountants

      prepared the Internal Revenue Service Forms 1065 for tax years

      2008, 2009, and 2010, according to Husband’s testimony. Even

      though Wife is a 50% member of the LLC, she had no knowledge of

      said filings, which is contrary to section 8.4 of the Agreement * * *.

      The transcript shows the first time she reviewed the LLC annual




                                    7
      Forms 1065 Returns of Partnership Income was through discovery

      herein. This Judge concurs with the Magistrate’s analysis that the

      funds provided by Husband to the LLC are not loans by the terms

      of the operating agreement.

{¶21} For Husband’s funds to be considered capital contributions,

      compliance with the Internal Revenue regulations is necessary. * *

      *   [T]he Operating Agreement provides in its section of defined

      terms: “‘Regulation’ means the income tax regulations, including

      any temporary regulations, from time to time promulgated under the

      Code.” [The 2008, 2009, and 2010 Forms 1065] do not support the

      Magistrate’s analysis the funds are capital contributions of Husband

      to the LLC.

{¶22} Said funds, therefore, are property contributed from Husband to the

      LLC. Although Husband’s contributions to the LLC came from his

      separate property, the contributions became marital property once

      in the LLC. As Husband testified, he and Wife formed the LLC to

      build and market homes; the LLC was designed to capitalize on

      their professional expertise.       Barefoot Development, LLC was

      formed after the parties’ 2006 marriage and is therefore a marital

      asset subject to division and distribution pursuant to Revised Code

      3105.171. * * *

{¶23} As a result of finding Husband’s contributions are voluntary, this

      Judge rejects the portion of the Magistrate’s Decision which




                                      8
              provided [that] each party is entitled to one-half (1/2) of the net

              profits realized by the LLC, after payment of Husband’s loans to the

              LLC.     Calculations of net profits shall disregard Husband’s

              contributions. However, Husband is entitled to be compensated for

              the construction work done on the properties, pursuant to the

              operating agreement of the LLC.             Wife is entitled to be

              compensated for the services she provided to the LLC, including

              real estate commissions earned and prospective commissions on

              the    three    remaining   properties   pursuant   to   the   operating

              agreement. * * * [With respect to the Fairview Property,] Husband

              gave himself a $153,000 distribution from the sale as payment for

              his loan to the LLC. Since this Court has already found Husband’s

              loans to the LLC are invalid, * * * Wife is due an additional $76,500

              from Husband from the sale of the Fairview Property.

       {¶24} On October 23, 2012, the domestic relations court entered a Judgment

Entry of Divorce.

       {¶25} On November 19, 2012, Malkamaki filed his Notice of Appeal. On appeal,

Malkamaki raises the following assignment of error:

       {¶26} “[1.] The trial court erred in finding that Appellee-Wife met her burden to

prove by clear and convincing evidence that Appellant-Husband gifted his separate

property interest to wife.”

       {¶27} We review the trial court’s judgment for abuse of discretion, the standard

generally applied when reviewing a trial court’s adoption of a magistrate’s decision.




                                              9
Wolkoff v. Bloom Bros. Supply, Inc., 11th Dist. Geauga No. 2012-G-3092, 2013-Ohio-

2403, ¶ 32.    Under this deferential standard, an abuse of discretion is a judgment

“‘which does not comport with reason or the record,’ and as one in which the court failed

‘to exercise sound, reasonable, and legal decision-making.’” (Citation omitted.) Id.

       {¶28} It is well-recognized that a spouse may convert his or her separate

property into marital property by an inter vivos gift to the other spouse during the course

of the marriage. Helton v. Helton, 114 Ohio App.3d 683, 685, 683 N.E.2d 1157 (2nd

Dist.1996). “The essentials of a valid gift inter vivos 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,

considering its nature, with relinquishment of ownership, dominion and control over it.”

Bolles v. Toledo Trust Co., 132 Ohio St. 21, 4 N.E.2d 917 (1936), paragraph one of the

syllabus. The party asserting the conversion to marital property bears the burden of

demonstrating the required elements of a valid gift by clear and convincing evidence.

Id. at paragraph two of the syllabus.

       {¶29} In the present case, there is no evidence of a donative intent on

Malkamaki’s part other than the fact that the properties purchased with his separate

funds were transferred to Barefoot Development. Malkamaki testified that it was never

his intent that the properties be gifted.    Osborne offered no testimony as to what

Malkamaki’s intentions were with respect to the properties. The 2008, 2009, and 2010

general ledgers for Barefoot Development evidence Malkamaki’s intention that the

monies used to purchase the properties be considered loans.




                                            10
       {¶30} It has often been held that “where the separate property is placed in joint

title to accomplish a specific objective, rather than due to a true donative intent, the

property remains separate despite the joint title.” Bell v. Bell, 2nd Dist. No. 2002 CA 13,

2002-Ohio-5542, ¶ 16 (cases cited); accord Seifert v. Seifert, 11th Dist. Trumbull No.

2011-T-0103, 2012-Ohio-3037, ¶ 15; R.C. 3105.171(H) (“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”). Here, the

parties created Barefoot Development as a holding company for the sale of property.

Without the use of Malkamaki’s separate funds to purchase the real estate, Barefoot

was without the capital to begin operating. Malkamaki’s purchase, then, was necessary

for the success of the business venture, and did not necessarily reflect any intent of a

gift to Osborne.

       {¶31} Osborne’s contention that the properties must be considered a gift rests

on the fact “that the contribution of the parcels represented neither a loan nor a capital

contribution,” so that “[o]nce the separation occurred it can be assumed that

[Malkamaki] wanted to change the characterization of the funds.” Appellee’s brief at 15,

14. Under the law cited above, such an assumption is invalid.

       {¶32} We further note that the domestic relations court did not expressly find that

the properties were an inter vivos gift or that Malkamaki possessed a donative intent.

Rather, like Osborne, the court’s judgment rested on the invalidity of the transfers as

loans or capital contributions. The failure of the evidence to demonstrate a donative

intent does not require the reversal of the court’s judgment.        “[I]t is the definitely

established law of this state that where the judgment is correct, a reviewing court is not




                                            11
authorized to reverse such judgment merely because erroneous reasons were assigned

as the basis thereof.” Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284, 58

N.E.2d 658 (1944); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69

Ohio St.3d 217, 222, 631 N.E.2d 150 (1994) (“a reviewing court is not authorized to

reverse a correct judgment merely because erroneous reasons were assigned as a

basis thereof”).

       {¶33} In its judgment, the domestic relations court set forth an alternative

justification for its order that the four properties be divided as though they were marital

properties. The court recognized that “each spouse [is required] to disclose in a full and

complete manner all marital property, separate property, and other assets, debts,

income, and expenses of the spouse.” R.C. 3105.171(E)(3). Where a spouse fails to

do so, “the court may compensate the offended spouse with a distributive award or with

a greater award of marital property.” R.C. 3105.171(E)(5).

       {¶34} With respect to Malkamaki’s disclosure of nonmarital assets, the domestic

relations court found:

       {¶35} In reviewing the transcript, Husband’s conduct during the divorce

              proceeding is quite disturbing as to his disregard of the Judicial

              System. On his affidavit of income and expenses filed with the

              Court * * *, Husband, under oath, failed to disclose more than one

              million dollars in real estate and securities he holds in Finland,

              along with a Mercedes Benz and household goods in said country.

              ***




                                            12
       {¶36} The transcript also shows Husband sold a Mercedes Benz vehicle

              located in the United States while the parties were restrained from

              selling assets during the divorce because he “ran out of money.” *

              * * On cross examination, Husband testified he didn’t know the

              year of the vehicle or when he acquired it. * * * His lack of recall

              and vague responses on cross examination shown in the transcript

              renders [sic] his testimony not credible.

       {¶37} Although he has investments and real property abroad and in the

              United States in excess of one million dollars, Husband requested

              an award of spousal support from Wife. * * * The case record

              shows his request was prima facie unsupported by statute; his

              request was not supported by a scintilla of evidence adduced at

              trial.

       {¶38} In sum, the subject properties were titled in the name of Barefoot

Development, a marital asset. The evidence that the properties were a gift is deficient,

as is the evidence that the properties were a loan and/or capital contribution. The

domestic relations court properly found Malkamaki to have defied court orders and

failed to disclose assets. Pursuant to R.C. 3105.171(E)(5), Osborne is entitled to a half-

interest in these properties as part of a distributive award. On this basis, the judgment

of the lower court is affirmed.

       {¶39} The sole assignment of error is without merit.




                                            13
      {¶40} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, Domestic Relations Division, is affirmed. Costs to be taxed against the

appellant.



CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


                                _________________________



COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

      {¶41} While I concur with the majority’s decision to affirm the trial court’s holding,

I write separately to note my disagreement with how the majority arrived at its decision.

The majority states that the trial court did not expressly find that the funds provided by

husband to the LLC were an inter vivos gift or that husband possessed a donative

intent. The majority notes, however, that the trial court’s decision in awarding only a

half-interest from the LLC to husband can be reconciled as a distributive award due to

husband’s failure to disclose assets.

      {¶42} Appellate review of a trial court's designation of property as marital or

separate is under a manifest weight of the evidence standard. Gibson v. Gibson, 3rd

Dist. Marion No. 9-07-06, 2007-Ohio-6965, ¶26, quoting Eggeman v. Eggeman, 3rd

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

Dist. Mercer No. 10-01-17, 2002-Ohio-2720, ¶28.            An appellate court may not

independently weigh the evidence but should presume that the trial court's findings are

correct where they are supported by some competent and credible evidence. Myers v.



                                            14
Garson, 66 Ohio St.3d 610, 614 (1993); Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).

When the record contains little direct evidence on the issue of donative intent we must

look to the totality of the circumstances. Kovacs v. Kovacs, 6th Dist. Sandusky No. S-

09-039, 2011-Ohio-154, ¶15; Hippely v. Hippely, 7th Dist. Columbiana No. 01 CO 14,

2002-Ohio-3015, ¶18.

      {¶43} The trial court held that husband’s funds, provided to the limited liability

company (LLC), were not loans under the terms of the operating agreement as husband

did not obtain wife’s consent in order for the LLC to accept these loans. The trial court

also determined that husband failed to comply with the necessary Internal Revenue

regulations, so as to qualify the funds as capital contributions.    Based upon these

findings, the trial court determined that the funds were a voluntary contribution from

husband to the LLC.

      {¶44} Husband placed the funds into an LLC that listed only him and wife as

Members/Interest Holders, each assigned a fifty percent interest. Wife also contributed

a parcel of property to the LLC. The evidence established that wife would contribute her

real estate expertise for reduced or no payments, while husband’s construction

company would be paid for the construction services it provided. Under the LLC articles

the profits would be divided equally by husband and wife.

      {¶45} Husband failed to take any steps to distinguish these funds as separate

property under the LLC articles. Husband could have loaned these funds to the LLC,

with wife’s written consent, as the LLC articles outline.      Or husband could have

complied with the Internal Revenue regulations that would have qualified these funds for

designation as capital contribution under the LLC articles. Neither were done. The




                                           15
articles of the LLC and its terms are the best evidence of the parties’ intent to comingle

the assets. And although neither the parties, nor the court, are bound exclusively by the

terms of the LLC in dividing the marital assets, the agreement is substantial evidence of

their intent to transfer and comingle those assets placed in the LLC.

      {¶46} Under the totality of the circumstances, husband’s donative intent was

established by his placing funds into an LLC, co-owned by his wife. By not taking any

steps to maintain the separate identity of these funds, husband effectively stated his

intent to his wife, who was also his business partner, as well as to third parties. As

such, the trial court’s determination that husband’s contribution was voluntary is

supported by competent, credible evidence. Therefore, there is no need for this court to

affirm the trial court’s holding as a distributive award based upon husband’s

concealment of assets.

      {¶47} Thus, I concur in judgment only.




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