[Cite as Bergman v. Bergman, 2013-Ohio-715.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

ROBERT LEE BERGMAN, JR.                              :

        Plaintiff-Appellee                           : C.A. CASE NO.         25378

v.                                                   : T.C. NO.      11LS22

KENDRA BERGMAN, et al.                               :     (Civil appeal from Common
                                                            Pleas Court, Domestic Relations)
        Defendant-Appellant                          :

                                                     :

                                           ..........

                                          OPINION

                        Rendered on the        1st       day of      March       , 2013.

                                           ..........

JOSEPH P. MOORE, Atty. Reg. No. 0014362, 262 James E. Bohanan Memorial Drive,
Vandalia, Ohio 45377
      Attorney for Plaintiff-Appellee

KEITH A. FRICKER, Atty. Reg. No. 0037355, 7460 Brandt Pike, Huber Heights, Ohio
45424
      Attorney for Defendant-Appellant

                                           ..........

DONOVAN, J.

        {¶ 1}    Defendant-appellant Kendra Bergman appeals from a decision of the
                                                                                               2

Montgomery County Court of Common Pleas, Domestic Relations Division, regarding the

terms of her contested divorce with plaintiff-appellee Robert Lee Bergman, Jr.              The

decision was rendered by the trial court on July 17, 2012. The trial court issued the parties’

Final Judgment and Decree of Divorce on August 22, 2012. Kendra filed a timely notice of

appeal with this Court on September 18, 2012,

       {¶ 2}    Robert and Kendra were married in Clayton, Ohio, on August 19, 1994, and

one child, R.L.B., was born during the course of the marriage, born on January 21, 1995.

The parties separated on June 27, 2011, and on June 29, 2011, Robert filed a complaint for

legal separation. When it became apparent that the parties would be unable to amicably

dissolve their marriage, Robert filed a motion to convert the legal separation to a divorce.

The trial court granted Robert’s motion, and on November 8, 2011, he filed an amended

complaint for divorce.

       {¶ 3}    On May 7, 2012, a trial was held before the court in order to determine the

terms of the parties’ divorce, specifically the division of marital assets. Shortly thereafter,

the trial court issued its decision regarding the division of marital assets between the parties.

 On August 22, 2012, the Final Judgment and Decree of Divorce was filed which outlined

the parties’ duties and responsibilities regarding child support and custody, spousal support,

and the division of the marital estate. We note that Robert was awarded full custody of the

parties’ minor son.

       {¶ 4}    It is from this judgment that Kendra now appeals.

       {¶ 5}    Kendra’s first assignment of error is as follows:

       {¶ 6}    “THE COURT COMMITTED ERROR IN THE MANNER OF THE
                                                                                              3

DIVISION OF APPELLEE’S SICK, VACATION AND COMP TIME.”

       {¶ 7}    In her first assignment, Kendra does not argue that the trial court erred when

it divided Robert’s accrued sick leave and vacation time. Rather, Kendra asserts that the

trial court erred when it failed to require Robert to pay to her the alotted portion of his

accrued sick leave and vacation leave at the time of the final divorce hearing instead of when

Robert finally chose to retire.

       {¶ 8}    “Under R.C. 3105.171(C)(1), the court is to divide marital property equally,

unless an equal division is inequitable. Trial courts have broad discretion in deciding

appropriate property awards, and we reverse only if the trial court abuses its discretion. * * *

.” Donnelly v. Donnelly, 2d Dist. Green No. 2002-CA-53, 2003-Ohio-1377, ¶ 38.

       {¶ 9}    As the Supreme Court of Ohio determined:

       “Abuse of discretion” has been defined as an attitude that is unreasonable,

       arbitrary or unconscionable. (Internal citation omitted). It is to be expected

       that most instances of abuse of discretion will result in decisions that are

       simply unreasonable, rather than decisions that are unconscionable or

       arbitrary.

       A decision is unreasonable if there is no sound reasoning process that would

       support that decision. It is not enough that the reviewing court, were it

       deciding the issue de novo, would not have found that reasoning process to be

       persuasive, perhaps in view of countervailing reasoning processes that would

       support a contrary result. AAAA Enterprises, Inc. v. River Place Community

       Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
[Cite as Bergman v. Bergman, 2013-Ohio-715.]
        {¶ 10} R.C. 3105.171(A)(3)(a)(i) defines marital property to include: “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.” “During the marriage”means “the period of time from the

date of the marriage through the date of the final hearing in an action for divorce,” except

that if the court determines that either of those dates “would be inequitable, the court may

select dates it considers equitable in determining marital property.”

        {¶ 11} Initially, we note that neither party disputes that Robert’s sick leave and

vacation time that was accrued during the parties’ marriage are both marital assets subject to

division and distribution. We also note that neither party disputes the trial court’s valuation

of Robert’s sick leave benefits and vacation time that was accrued during the parties’

marriage.

        {¶ 12} Specifically, Kendra asserts that she is entitled to payment of her portion of

Robert’s sick leave benefits and vacation time immediately at the time of the issuance of the

final divorce decree instead of when Robert chooses to retire or is otherwise discharged from

his current employment. Upon review we conclude that the trial court did not abuse its

discretion by finding that Kendra is not entitled to any distribution from Robert’s accrued

sick leave benefits and vacation time until the date on which he retires or is discharged.

        {¶ 13} “[S]everal Ohio appellate districts have determined that accrued sick leave

benefits resemble deferred bonus payments or pension plan accumulations and, as such,

qualify as an interest in property subject to division as a marital asset under R.C.

3105.171(A)(3)(a)(ii). Herrmann v. Herrmann, 12th Dist. Butler No. CA99-01-006 and

CA99-01-011, 2000 WL 1671045; Hartley v. Hartley, 2d Dist. Montgomery No. 16668,
                                                                                            5

1998 WL199637; Pearson v. Pearson, 10th Dist. Franklin No. 96APF08-1100, 1997 WL

275496. The rationale for this principle is that ‘since sick leave benefits, like deferred

bonus payments or pension plan accumulations, are accumulated by the employee during the

employment for past services rendered, they are essentially deferred compensation earned

during working years.’ Herrmann, at ¶ 10.” Weller v. Weller, 11th Dist. Geauga No.

2004-G-2599, 2005-Ohio-6892. The same rationale applies to accumulated vacation time.

Accordingly, the value of Robert’s accrued sick leave benefits and vacation time will not be

distributed until the employee receives that payout from his employer at termination or

retirement.

       {¶ 14} Thus, the trial court did not abuse its discretion when it found that it would

be inequitable to order Robert to pay any portion of his accumulated sick leave benefits or

vacation time to Kendra until such time as he retires or is otherwise discharged from his

current employment. Therefore, the trial court did not err when it ordered Robert, upon his

retirement or discharge, to pay Kendra the sum of $3,514.75, that being her portion of his

vacation time benefits which were accrued during the course of their marriage.

       {¶ 15} With respect to Robert’s sick leave benefits, the trial court ordered that upon

his retirement or termination of employment, he would be required to pay Kendra the lesser

of the two of one-half of any unused sick leave benefits or $8433.50, which was half of the

balance of Robert’s accrued sick leave benefits at the time of the parties’ divorce. The trial

court reasoned that Robert “may, at sometime, incur a serious illness that may require him to

expend some of his sick hours. The court finds it would be inequitable to require Robert to

pay for sick time hours he no longer has, at the time of his retirement.” Because the
                                                                                                6

benefits at issue are marital assets subject to division and distribution but are in the nature of

deferred compensation, we conclude that the trial court did not abuse its discretion by

holding that Kendra is not entitled to any distribution from Robert’s accrued sick leave

benefits and vacation time until the date on which he retires or is discharged from his

employment with the City of Union.

       {¶ 16} Lastly, Kendra points out that the trial court failed to address Robert’s

accumulated comp time in its decision issued on July 17, 2012. Evidence was adduced that

Robert accumulated approximately fifty-four hours of comp time in 2012 in lieu of receiving

payment for overtime hours hour worked. Robert’s supervisor, John Applegate, further

testified that upon Robert’s termination or retirement, he would be paid out for his remaining

comp time. Kendra asserts that Robert’s comp time is in the nature of sick leave benefits

and vacation time, and therefore, a marital asset subject to division and distribution.

Kendra, however, fails to support her position with any case law from Ohio or elsewhere.

       {¶ 17} When Robert works overtime during the course of his employment, he is

awarded comp time that can be used for absences or time off from work. Since comp time

is essentially modified credit for overtime work, it falls under the definition of gross income

in R.C. 3119.01(C)(7), which is used to determine an individual’s income for the purpose of

computing his or her child or spousal support obligation. On this record, the court did not

abuse its discretion by holding that comp time is not marital property.

       {¶ 18} Kendra’s first assignment of error is overruled.

       {¶ 19} Kendra’s second assignment of error is as follows:

       {¶ 20} “THE TRIAL COURT ERRED IN COMPUTING CHILD SUPPORT PER
                                                                                            7

THE CHILD SUPPORT WORKSHEET.”

       {¶ 21} In her second assignment, Kendra argues that the trial court erred in its

computation of her child support obligation. Specifically, Kendra points out that the trial

court found that she is employed as a teacher at Northmont Schools with a yearly salary of

$15,340.00. Kendra further notes that on the first page of the child support computation

worksheet, her salary amount was inexplicably left out. While the remaining amounts were

correctly added to the worksheet, Kendra asserts that the final amount of child support due is

incorrect due to the failure of the trial court to properly include her income. In his merit

brief, Robert concedes that Kendra is liable for additional child support because of the

failure to include her yearly income in the worksheet computation.

       {¶ 22} While it is rather uncommon for an appellant to point out an error made by

the trial court which adversely affects him or her, the trial court nevertheless erred when it

failed to include Kendra’s income when computing the amount of child support she

currently owes, and the error must be corrected.

       {¶ 23} Kendra’s second assignment of error is sustained.

       {¶ 24} Kendra’s third and final assignment of error is as follows:

       {¶ 25} “THE TRIAL COURT ERRED IN NOT FINDING REAL PROPERTY

LOCATED AT 8215 N. MAIN STREET, DAYTON, OHIO AS A MARITAL ASSET.”

       {¶ 26} In her third and final assignment, Kendra contends that the trial court erred

when it found that the real property located at 8215 N. Main Street in Dayton, Ohio, was not

a marital asset, but rather the separate property of Robert for the purposes of the parties’

divorce.
                                                                                             8

       {¶ 27} When dividing married parties’ assets and liabilities upon divorce, a court

must first determine what is marital property and what is not. The trial court must classify

property as marital or separate, and must distribute separate property to the owner, where

appropriate. R.C. 3105.171(B) and (D). A trial court’s classification of property as marital

or separate must be supported by competent, credible evidence. Mays v. Mays, 2d Dist.

Miami No. 2000-CA-54, 2001-Ohio-1450;             Renz v. Renz, 12th Dist. Clermont No.

CA2010-05-034, 2011-Ohio-1634, ¶17.

       {¶ 28} Classification of property is governed by R.C. 3105.171.                     R.C.

3105.171(A)(3)(a) provides, in pertinent part, that marital property includes:

       (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.

       {¶ 29} Under R.C. 3105.171(A)(6)(a), separate property is defined, in pertinent

part, as “all real and personal property and any interest in real or personal property that is
                                                                                          9

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;

       (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.”

       {¶ 30} “The commingling of separate property with other property of any type does

not destroy the identity of the separate property as separate property, except when the

separate property is not traceable.” R.C. 3105.171(A)(6)(b). “[T]he 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 or separate property. Instead, the couple’s total

circumstances are reviewed.” Nuding v. Nuding, 3d Dist. Mercer No. 10-97-13, 1998 WL

856923 (Dec. 7, 1998), citing Mayer v. Mayer, 110 Ohio App.3d 233, 236, 673 N.E.2d 981

(3d Dist. 1996); R.C. 3105.171(H).

       {¶ 31} The burden of proof that specific property is not marital but separate is upon

the proponent of the claim to prove by a preponderance of the evidence. Peck v. Peck, 96

Ohio App.3d 731, 734, 645 N.E.2d 1300 (12th Dist.1994); Snyder v. Snyder, 2d Dist. Clark

No. 2002-CA-6, 2002-Ohio-2781. “Oral testimony as evidence, without corroboration, may

or may not satisfy the burden.” Maloney v. Maloney, 160 Ohio App.3d 209,

2005-Ohio-1368, 826 N.E.2d 864,        ¶ 23 (2d Dist.), citing Fisher v. Fisher, 2d Dist.

Montgomery No. 20398, 2004-Ohio-7255. “Because traceability presents a question of
                                                                                           10

fact, we must give deference to the trial court’s findings, and the court’s decision on the

matter will not be reversed as against the manifest weight of the evidence when it is

supported by competent credible evidence.” Id., citing C.E. Morris Co. v. Foley Constr. Co.,

54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

       {¶ 32} “Once it is proven that specific property was the separate property of one of

the spouses at, or after, the time of the marriage, the burden shifts to the other spouse to

prove, by clear and convincing evidence, that the property, or some interest therein, has been

given to the other spouse.” Snyder, supra, citing Helton v. Helton, 114 Ohio App.3d 683,

685, 683 N.E.2d 1157 (2d Dist. 1996).

       {¶ 33} The evidence adduced at trial clearly establishes that the real property

located at 8215 N. Main Street in Dayton, Ohio, is the separate property of Robert and not a

marital asset. Initially, we note that the property was purchased by Robert and his mother,

Sandra Bergman, using monies from an inheritance only received when Robert’s father,

John Bergman, passed away. Testimony adduced at trial also establishes that no marital

funds were used to pay the mortgage on the property at issue.          Rather, the mortgage

payments were funded using monies from the rental of the property.           Further, Robert

testified that all expenditures made on the rental property came from income derived from

the property. Thus, the funds used to finance and maintain the property are clearly traceable

to Robert, alone.

       {¶ 34} Although Kendra’s name is listed on the mortgage, the evidence adduced at

trial failed to establish any donative intent on the part of Robert or his mother.

Additionally, Kendra testified that she assisted on occasion in cleaning up the property after
                                                                                               11

it was vacated by tenants, but she did no other work or maintenance with respect to the rental

property. Simply put, the evidence presented by Kendra was insufficient to establish that

she had any interest in the property at issue, and the trial court correctly found that the rental

property was the separate property of Robert and not a marital asset.

        {¶ 35} Kendra’s final assignment of error is overruled.

        {¶ 36} Kendra’s second assignment of error having been sustained, this matter is

remanded to the trial court for a recalculation of the child support due Robert, making sure

to impute Kendra’s yearly salary of $15,340.00. In all other respects, the judgment of the

trial court is affirmed.

                                          ..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Joseph P. Moore
Keith A. Fricker
Hon. Timothy D. Wood
