[Cite as Soley v. Soley, 2017-Ohio-2817.]




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


Robert Stephen Soley                                  Court of Appeals No. H-16-021

        Appellee                                      Trial Court No. CV 2012 0481

v.

Katalin Terezia Soley, et al.                         DECISION AND JUDGMENT

        Appellant                                     Decided: May 12, 2017

                                               *****

        Robert W. Gentzel and James J. Martin, for appellee.

        Kathleen M. Amerkhanian, for appellant.


                                               *****

        JENSEN, P.J.

                                            I. Introduction

        {¶ 1} Appellant, Katalin Soley, appeals the judgment of the Huron County Court

of Common Pleas, adopting the decision of the magistrate, which found that certain real
property located in Huron County was appellee’s, Robert Soley, separate property.

Because we find that the trial court erred in classifying the property, we reverse.

                         A. Facts and Procedural Background

       {¶ 2} This is the second time these parties have appeared before this court in this

action. In the first appeal, we resolved a dispute concerning Katalin’s sale of the Huron

County property located at 231 Butler Rd., New London, Ohio. Soley v. Soley, 6th Dist.

Huron No. H-13-028, 2014-Ohio-3965. In our decision, we recited the relevant facts as

follows:

              Robert and Katalin were married on December 23, 1990. During the

       course of their marriage, Robert decided to deed a portion of his real

       property to Katalin in an effort to evade creditors. According to Robert, the

       property was conveyed to Katalin, free of charge, under a constructive trust

       in which Katalin was to hold title of the real estate for Robert’s benefit and

       deed the property back to him upon demand.

              Subsequent to the transfer, Robert and Katalin began experiencing

       marital difficulties. As a result, Robert recorded an affidavit of dower with

       the Huron County Recorder on March 30, 2008, evidencing the fact that

       Katalin was the owner of the property and that he was entitled to a dower

       interest as her husband. Eventually, the parties separated and divorce

       proceedings were initiated in Budapest, Hungary, which is where the

       parties were living at the time. According to a translated judgment entry

       from the Hungarian court, the parties were ultimately divorced on May 10,


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     2011. However, the division of the marital assets had not yet occurred.

     Notably, the court expressly declined to distribute the real property located

     in Huron County, as the court found that property within the United States

     was beyond its jurisdiction.

            Four months after the parties were divorced, but before the

     Hungarian assets were distributed, Katalin reached an agreement with

     [Robert and Mary Lou] Harris to sell the real property located in Huron

     County for $170,000. The property was then transferred to Mr. and Mrs.

     Harris by warranty deed.

            Seeking to set aside the conveyance, Robert filed his complaint in

     the underlying action on June 3, 2012, alleging that the transfer was

     fraudulent because the property was subject to a constructive trust.

     Moreover, Robert alleged that Mr. and Mrs. Harris knew or should have

     known that the property was subject to a constructive trust in Robert’s

     favor. As a result, Robert sought damages in excess of $25,000 and also

     petitioned the court to set aside the conveyance and restore title to the real

     estate in his name.

            On January 7, 2013, [Katalin, along with Mr. and Mrs. Harris,] filed

     a motion for summary judgment. In their motion, [the movants] argued that

     Katalin, as the sole owner of the property, lawfully conveyed the property

     to Mr. and Mrs. Harris. Because the marriage was dissolved prior to the

     conveyance, [the movants] asserted that Robert had no interest in the


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     property. Further, [the movants] averred that Mr. and Mrs. Harris were

     bona fide purchasers for value insofar as they were without actual or

     constructive notice of Robert’s claimed interest in the property. As to

     Robert’s constructive trust argument, [the movants] contended that the

     argument must fail under the statute of frauds because the agreement was

     not reduced to writing. Finally, [the movants] argued that Robert was not

     entitled to recover on the basis of any dower interest he may have had in

     the property, because such interest was extinguished by operation of law as

     of the date the marriage was dissolved.

            In response to [the movants’] arguments, Robert argued that the

     marriage was not dissolved at the time of the conveyance because the

     marital estate had not been divided by the Hungarian court. Thus, he

     contended that he possessed a dower interest in the property at the time of

     the sale. Moreover, Robert noted the fact that the property had not been

     classified as Katalin’s separate property at the time of the sale as the marital

     assets had not yet been divided. He contended that the property was in fact

     his own separate property because he owned the property prior to the

     marriage. In the alternative, Robert claimed that the property would at least

     amount to marital property, entitling him to a share in the proceeds from its

     sale. Robert also took issue with [the] argument that the constructive trust

     must be in writing in order to be enforceable under the statute of frauds. He

     argued that a constructive trust is unwritten by its very nature. In


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       supporting his arguments, Robert submitted several affidavits. In his own

       affidavit, he averred that he transferred the property to Katalin “with the

       specific understanding by both parties that the sole purpose of the transfer

       was to avoid [his] creditors and that Katalin * * * would deed the property

       back to [him] upon demand.”

              Upon consideration of the parties’ arguments, the trial court issued

       its decision on July 1, 2013. In its decision, the trial court granted Mr. and

       Mrs. Harris’ motion for summary judgment, thereby quieting title to the

       property in their name. At this point, Katalin had been dismissed from the

       action due to service of process issues. When she was later properly

       served, she renewed her motion for summary judgment, which was granted

       on December 4, 2013. In granting Katalin’s motion for summary judgment,

       the trial court found that Robert’s claim of a constructive trust was barred

       by the statute of frauds. The court further found that the parties were

       divorced at the time of the sale and that, as such, Robert’s dower interest

       was extinguished. Robert’s timely appeal followed. Soley, 6th Dist. Huron

       No. H-13-028, 2014-Ohio-3965, at ¶ 2-8.

       {¶ 3} On appeal, we concluded that Robert deeded the Huron County property to

Katalin “‘for the sole purpose of placing the property beyond the reach of his creditors.’”

Id. at ¶ 22. We found no evidence of any wrongdoing in Katalin’s acquisition or

retention of the property, and thus concluded that the trial court did not err in rejecting

Robert’s constructive trust argument. Id. However, we found that the matter needed to


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be remanded to the trial court because a determination as to whether the real property was

marital property or separate property had not been made. Id. at ¶ 25. We noted that the

Hungarian court, in which the divorce proceedings were initiated, expressly declined to

exercise jurisdiction over the property. Id. Ultimately, we remanded the matter for “a

determination of whether the property is marital or separate, and a concomitant equitable

division of the property, if necessary, under R.C. 3105.171(B).” Id.

       {¶ 4} On remand, the parties appeared for an evidentiary hearing before a

magistrate on the issue of whether the subject property was marital or separate. At the

hearing, several individuals testified, including Robert and Katalin. The magistrate

issued his decision, in which he concluded that the subject property was Robert’s separate

property. The magistrate specifically found that Robert’s transfer of the property to

Katalin did not constitute a gift and therefore did not convert the separate property into

marital property. The magistrate determined that Robert did not possess the requisite

donative intent when he executed the quitclaim deed for the purpose of avoiding his

creditors. Moreover, the magistrate stated that, “because the parcel remained wholly

traceable from prior to the Soley marriage until sale to Defendants Harris, the execution

of the quitclaim deed conveying [Robert’s] interest therein to [Katalin] had absolutely no

impact on the separate property characterization of the Butler road property.”

Consequently, the magistrate found that Robert was entitled to the $85,000 in proceeds

from the sale of the property that were being held in escrow, as well as a judgment

against Katalin for the remaining $85,000 that she had already received.




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       {¶ 5} Two weeks after the magistrate issued his decision, Katalin filed objections

with the trial court. Upon consideration, the trial court overruled Katalin’s objections and

adopted the magistrate’s decision. In its judgment entry, the court directed the following:

              1. After expiration of the appeal period following entry of judgment,

       Attorney Mark Coriell shall be and hereby is directed to disburse the

       amount of Eighty-five Thousand Dollars ($85,000) to Plaintiff Robert

       Stephen Soley;

              2. Judgment shall be and hereby is granted in favor of Plaintiff

       Robert Stephen Soley and against Defendant Katalin Terzia Soley in the

       amount of Eighty-five Thousand Dollars ($85,000), together with statutory

       interest thereon from the date of judgment;

              3. Any additional costs of these proceedings are assessed to

       Defendant Katalin Terzia Soley.

       {¶ 6} It is from this order that Katalin has timely appealed.

                                B. Assignments of Error

       {¶ 7} On appeal, Katalin assigns the following errors for our review:

              Assignment of Error I: The trial court’s order is void as Ohio courts

       do not have subject matter jurisdiction to make a determination of whether

       or not property is marital or separate property outside of a divorce or legal

       separation proceeding.

              Assignment of Error II: The trial court erred in finding the subject

       property to be “separate” property in favor of Robert and such a finding


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       constituted an abuse of discretion, plain error, and is against the manifest

       weight of the evidence.

              Assignment of Error III: The trial court erred when it determined

       that the relevant marriage date for purposes of applying O.R.C. 3105.171

       was a marriage date that had previously been invalidated as bigamous by

       the Sixth District Court of Appeals.

              Assignment of Error IV: The trial court’s determination that Katalin

       Soley was not entitled to a distributive award was an abuse of discretion,

       plain error, and against the manifest weight of the evidence.

                                        II. Analysis

               A. Subject Matter Jurisdiction Under R.C. 3105.171(B)

       {¶ 8} In her first assignment of error, Katalin argues that the trial court’s order is

void because the court did not possess subject matter jurisdiction to classify the property

as marital or separate under R.C. 3105.171(B).

       {¶ 9} The question of whether a trial court possesses subject matter jurisdiction is

a question of law that we review de novo. WFAL Constr. v. Dir., Ohio Dept. of Job &

Family Servs., 10th Dist. Franklin No. 14AP-985, 2015-Ohio-3044, ¶ 6. The authority to

classify property as either marital or separate and subsequently divide the property

equitably between spouses is granted to courts under R.C. 3105.171(B). Under that

section, courts are vested with such authority in the context of divorce and legal

separation proceedings.




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       {¶ 10} As noted above in our recitation of the facts, this case presents the unique

circumstance in which a foreign court has granted the parties a divorce while expressly

declining to exercise jurisdiction over a piece of property located in the United States.

Given the foreign court’s refusal to classify and divide the subject property, Robert

brought this action before the trial court in order to set aside Katalin’s allegedly improper

conveyance of the property. While the action was not styled as a divorce or legal

separation proceeding as such, we find that the action was a necessary extension of the

property distribution action that was pending before the Hungarian court, and was

therefore akin to a divorce or legal separation action under R.C. 3105.171(B). Indeed,

the trial court is the only court that would possess subject matter jurisdiction over the

subject property in light of the Hungarian court’s refusal to exercise such jurisdiction.

       {¶ 11} Were we to conclude that the trial court lacks subject matter jurisdiction,

we would leave the parties with no venue in which to resolve their dispute as to the

classification of the property incident to divorce. We refuse to construe R.C.

3105.171(B) in such a narrow fashion.

       {¶ 12} In support of her argument that the trial court lacked subject matter

jurisdiction under R.C. 3105.171(B) to classify the property, Katalin cites the decision of

the Supreme Court of Ohio in Bolinger v. Bolinger, 49 Ohio St.3d 120, 551 N.E.2d 157

(1990). In that case, the court held that a trial court’s subject matter jurisdiction to award

permanent alimony and to formulate an equitable division of marital assets under R.C.




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3105.011, 1 3105.17, 2 and 3105.18, 3 commences when either party files a complaint for

divorce and a division of the marital property. Id. at 123.

         {¶ 13} Notably, Bolinger did not address Katalin’s jurisdictional argument under

R.C. 3105.171(B) concerning the classification and distribution of property in a divorce

or legal separation proceeding. Rather, the court was confronted with the question of

whether the trial court was required to retry a divorce action on remand from the court of

appeals on the basis that the subject matter jurisdiction of a domestic relations court is

“markedly different from that in an alimony-only action.” Id. at 121. The Supreme

Court of Ohio rejected this argument, finding that the aforementioned statutory sections

1
    R.C. 3105.011 provides:

         The court of common pleas including divisions of courts of domestic
         relations, has full equitable powers and jurisdiction appropriate to the
         determination of all domestic relations matters. This section is not a
         determination by the general assembly that such equitable powers and
         jurisdiction do not exist with respect to any such matter.
2
    R.C. 3105.17 states, in relevant part:

         (A) Either party to the marriage may file a complaint for divorce or for
         legal separation, and when filed the other may file a counterclaim for
         divorce or for legal separation. * * * The court of common pleas may grant
         legal separation on a complaint or counterclaim, regardless of whether the
         parties are living separately at the time the complaint or counterclaim is
         filed * * *.
3
 The version of R.C. 3105.18 that was in effect at the time of the court’s decision in
Bolinger provided, in relevant part:

         (A) In divorce, dissolution of marriage, or alimony proceedings, the court
         of common pleas may allow alimony it considers reasonable to either party.
         The alimony may be allowed in real or personal property, or both, or by
         decreeing a sum of money, payable either in gross or by installments, as the
         court considers equitable.

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“make it abundantly clear that the court of common pleas has wide latitude in

determining the appropriateness of as well as the amount of alimony, regardless of

whether the complaint and counterclaims request alimony only, a divorce, or both a

divorce and alimony.” Id. at 122. Thus, the court found that the trial court possessed

subject matter jurisdiction to award permanent alimony and to formulate an equitable

division of the marital assets. Id. at 123.

       {¶ 14} Because the court in Bolinger did not address the issue of subject matter

jurisdiction under R.C. 3105.171(B), and expressly relied on other statutory sections to

support its conclusion that the trial court possessed broad subject matter jurisdiction to

award alimony and divide the marital assets, we find that Bolinger is inapposite here.

       {¶ 15} In sum, we hold that the trial court possessed subject matter jurisdiction

under R.C. 3105.171(B) to comply with our remand instructions to determine whether the

property was marital or separate, and, if necessary, equitably divide the property. We

recognize the unusual procedural backdrop of this case. Therefore, we stress that this

case is limited to its facts and should not be broadly construed.

       {¶ 16} Accordingly, Katalin’s first assignment of error is not well-taken.

                             B. Classification of the Property

       {¶ 17} In her second assignment of error, Katalin argues that the trial court’s

finding that the subject property was Robert’s separate property was against the manifest

weight of the evidence.

       {¶ 18} “On appeal, a trial court’s classification of property as marital or separate is

reviewed under a manifest weight standard.” Miller v. Miller, 6th Dist. Sandusky No. S-


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12-035, 2013-Ohio-5071, ¶ 22. The standard of review for manifest weight is the same

in a civil case as in a criminal case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-

2179, 972 N.E.2d 517, ¶ 17. As such, we must weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether in resolving

conflicts in the evidence, the finder of fact clearly lost its way and created such a

manifest miscarriage of justice that the judgment must be reversed and a new trial

ordered. Id. at ¶ 20. In so doing, “the court of appeals must always be mindful of the

presumption in favor of the finder of fact.” Id. at ¶ 21.

       {¶ 19} Under R.C. 3105.171(A)(6)(a)(ii), any real or personal property that was

acquired by one spouse prior to the date of the marriage is considered separate property.

However, separate property can be converted to marital property if one spouse grants an

interest in the property to the other spouse. Helton v. Helton, 114 Ohio App.3d 683, 686,

683 N.E.2d 1157 (2d Dist.1996) (“Numerous appellate districts in Ohio have recognized

that separate real property can be transformed by the grantor spouse into marital property

by a gratuitous transfer to the grantee spouse of a present interest in the property.”)

Generally, conversion occurs when a donor spouse makes an inter vivos gift of the

property to the donee spouse. Id. at 685.

       {¶ 20} The essential elements of an inter vivos gift are: “(1) [the] intent of the

donor to make an immediate gift, (2) delivery of the property to the donee, [and] (3)

acceptance of the gift by the donee.” Barkley v. Barkley, 119 Ohio App.3d 155, 694

N.E.2d 989 (4th Dist.1997), fn. 2, citing Bolles v. Toledo Trust Co., 132 Ohio St. 21, 4

N.E.2d 917 (1936). Generally, the donee has the burden of showing, by clear and


12.
convincing evidence, that the donor made an inter vivos gift. Kovacs v. Kovacs, 6th Dist.

Sandusky No. S-09-039, 2011-Ohio-154, ¶ 12, citing Helton at 686.

       {¶ 21} Here, the parties do not dispute the fact that Robert acquired the property

prior to the marriage. Thus, the property was initially Robert’s separate property.

Katalin argues that Robert’s actions during the marriage, namely the transferring of the

title to the property to her in the form of a quitclaim deed, transmuted the property.

       {¶ 22} We find that the mere execution of a deed transferring title from one spouse

to another does not convert property that is otherwise separate property into marital

property. Indeed, R.C. 3105.171(H) states: “Except 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.” Under this section, Ohio courts employ “a flexible totality-of-the-

circumstances test to determine whether transmutation of the separate property has

occurred.” Hippely v. Hippely, 7th Dist. Columbiana No. 01 CO 14, 2002-Ohio-3015, ¶

18. Thus, “the form of title is relevant to, but not conclusive of, the classification of

property as being either marital or separate.” Barkley, supra, at 161.

       {¶ 23} Having found no merit to Katalin’s argument that Robert’s execution of the

quitclaim deed converted the subject property into marital property per se, we

nonetheless find that the magistrate erred in completely disregarding the relevance of the

transfer of title when he stated that “the execution of the quitclaim deed conveying

[Robert’s] interest therein to [Katalin] had absolutely no impact on the separate property

characterization of the Butler road property.” Indeed, Ohio courts have held that the


13.
transfer of title by execution of a deed “can be some evidence of the parties’ intent as to

the nature of the asset being marital or separate.” Gallo v. Gallo, 11th Dist. Lake No.

2000-L-208, 2002-Ohio-2815, ¶ 25.

       {¶ 24} The Tenth District examined a situation similar to the present case in

Neighbarger v. Neighbarger, 10th Dist. Franklin No. 05AP-651, 2006-Ohio-796. In that

case, the husband transferred farmland via quitclaim deed to his wife shortly before their

marriage. Because the husband acquired the property prior to the marriage, it was his

separate property that would normally not be subject to equitable distribution. Upon

divorce, the husband claimed that the farmland remained his separate property because he

did not intend to make a gift to the wife by transferring the property to her. Rather, the

husband argued that his motive in transferring the property was to shield it from potential

civil judgments against him. The Tenth District rejected the husband’s argument, stating:

              There is no question that [husband] intended, in 1990 [the year in

       which husband transferred the property to wife], to create a legal barrier

       between himself and the property. His stated objective was to shelter his

       assets from any financial risk arising from the criminal charges against him.

       If the outcome of the criminal trial had been different, he most certainly

       would have argued that he had no assets to satisfy whatever financial

       liability might have arisen, including his child support obligations. Having

       made that choice for his own benefit in 1990, to the detriment of his

       children and creditors, we will not allow [husband] to turn his deliberate

       action into a legal fiction for his own benefit again. He intended to transfer


14.
       the property and, as evidenced by the quitclaim deed, he did transfer the

       property. Id. at ¶ 25.

       {¶ 25} Relying on the Neighbarger decision, the Third District has also held that

the relinquishment of all legal rights to farmland by transfer of the property via quitclaim

deed to a spouse for the purpose of avoiding creditors constitutes a gift for purposes of

classifying the property as separate or marital property. Strasburg v. Strasburg, 3d Dist.

Auglaize No. 2-10-12, 2010-Ohio-3672, ¶ 22. In Strasburg, the husband testified that he

inherited farmland from his father’s estate during the marriage, and that he conveyed the

property to his wife via quitclaim deed because he was concerned about the risk that he

would be sued. Id. Like the court in Neighbarger, the Third District found that the

husband

       transferred his inherited farmland via quitclaim deed immediately upon his

       inheritance, and that, had [husband] been sued, he doubtlessly would have

       argued that the farmland was [wife’s] sole property, and was not an asset

       subject to any ensuing financial liability. * * * Regardless of [husband’s]

       testimony that he did not intend to relinquish ownership or waive his rights

       to the property, the fact remains that [husband] deeded the farmland to

       [wife] solely via quitclaim deed, and did not retain any reserved rights or

       joint rights to the property. Thus, [husband’s] testimony about his motives

       for the transfer was wholly inconsistent with his actions in making the

       transfer. As [husband’s] testimony established that he relinquished all legal

       rights to the farmland upon its transfer to [wife], we cannot find that the


15.
       trial court erred in concluding that the farmland was not [husband’s]

       separate property. Id.

       {¶ 26} Similar to the husbands in Neighbarger and Strasburg, the record in this

case reveals that Robert deeded the Huron County property to Katalin for the sole

purpose of placing the property beyond the reach of his creditors. We are in agreement

with the Third and Tenth Districts that a transferor of property acts with donative intent

when transferring property for the purpose of avoiding creditors. See Wolf-Sabatino v.

Sabatino, 10th Dist. Franklin No. 10AP-1161, 2011-Ohio-6819, ¶73, quoting Dever v.

Dever, 12th Dist. Clermont No. CA98-07-050, 1999 Ohio App. LEXIS 1625 (Apr. 12,

1999) (“Courts have held that when ‘a transferor transfers his interest in real property for

a specific purpose other than ownership, the transferor has demonstrated donative

intent.’”). Therefore, we find that the trial court’s determination that Robert lacked

donative intent when he transferred the subject property to Katalin was against the

manifest weight of the evidence. By extension, we find that the court’s classification of

the property as Robert’s separate property was also against the manifest weight of the

evidence since Robert gifted the property to Katalin during the marriage, making the

property marital.

       {¶ 27} Accordingly, we find Katalin’s second assignment of error well-taken.

Having found that the subject property was marital property pursuant to an inter vivos

gift, we must remand this matter to the trial court once again for the court to equitably

distribute the property. Thus, Katalin’s remaining assignments of error are moot.




16.
                                     III. Conclusion

       {¶ 28} For the foregoing reasons, the judgment of the Huron County Court of

Common Pleas is reversed, and this matter is remanded to the trial court so that it may

make an equitable division of the property under R.C. 3105.171(B). Costs are to be

assessed to appellee pursuant to App.R. 24.

                                                                      Judgment reversed.




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




Arlene Singer, J.                              _______________________________
                                                           JUDGE
James D. Jensen, P.J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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