[Cite as Soley v. Soley, 2014-Ohio-3965.]




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


Robert Stephen Soley                                  Court of Appeals No. H-13-028

        Appellant                                     Trial Court No. CVH 20120481

v.

Katalin Terezia Soley, et al.                         DECISION AND JUDGMENT

        Appellees                                     Decided: September 12, 2014

                                               *****

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

        Justin C. Miller, for appellee, Katalin T. Soley.

        Robert B. Daane, Danielle A. Higgins, and Mark Coriell, for appellees,
        Robert Harris and Mary Lou Harris.

                                               *****

        YARBROUGH, P.J.

                                            I. Introduction

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

Common Pleas, granting summary judgment in favor of appellees, Katalin Soley, Robert
Harris, and Mary Lou Harris (Mr. and Mrs. Harris). For the following reasons, we

affirm, in part, and reverse, in part.

                          A. Facts and Procedural Background

       {¶ 2} This appeal originates from a dispute concerning Katalin’s sale of a piece of

real property located at 231 Butler Rd., New London, Huron County, Ohio, to Mr. and

Mrs. Harris. 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.

       {¶ 3} 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, 2011. However,

the division of the marital assets had not yet occurred.1 Notably, the court expressly




1
 Robert subsequently appealed the Hungarian court’s decision, seeking to delay the
divorce until the marital property was divided. The appellate court rejected Robert’s
argument and the appeal was denied on March 12, 2012.



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declined to distribute the real property located in Huron County, as the court found that

property within the United States was beyond its jurisdiction.

        {¶ 4} Four months after the parties were divorced, but before the Hungarian assets

were distributed, Katalin reached an agreement with Mr. and Mrs. 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.

        {¶ 5} 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.

        {¶ 6} On January 7, 2013, appellees filed a motion for summary judgment. In

their motion, appellees 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, appellees asserted that Robert had no interest in the property. Further,

appellees 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, appellees contended that the

argument must fail under the statute of frauds because the agreement was not reduced to




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writing. Finally, appellees 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.

       {¶ 7} In response to appellees’ 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 appellees’ 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

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.”

       {¶ 8} 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




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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.

                                B. Assignments of Error

       {¶ 9} On appeal, Robert assigns the following errors for our review:

              FIRST ASSIGNMENT OF ERROR: IT WAS REVERSIBLE ERROR

       FOR THE TRIAL COURT TO GRANT SUMMARY JUDGMENT TO

       APPELLEE, KATALIN SOLEY, AND TO ORDER ATTORNEY CORIELL TO

       DISBURSE TO HER THE BALANCE OF THE SALE PROCEEDS AS

       GENUINE ISSUES OF MATERIAL FACT EXIST AND SAID APPELLEE IS

       NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.

              SECOND ASSIGNMENT OF ERROR: IT WAS REVERSIBLE ERROR

       FOR THE TRIAL COURT TO FIND AS A MATTER OF LAW THAT

       APPELLANT’S CLAIM OF A CONSTRUCTIVE TRUST WAS BARRED BY

       THE OHIO STATUTE OF FRAUDS.

              THIRD ASSIGNMENT OF ERROR: IT WAS REVERSIBLE ERROR

       FOR THE TRIAL COURT TO GRANT SUMMARY JUDGMENT QUIETING




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       TITLE TO THE PROPERTY TO APPELLEES HARRIS AS GENUINE ISSUES

       OF MATERIAL FACT EXIST AS TO WHETHER SAID APPELLEES WERE

       BONA FIDE PURCHASERS OR WERE ENTITLED TO JUDGMENT AS A

       MATTER OF LAW.

              FOURTH ASSIGNMENT OF ERROR: IT WAS REVERSIBLE ERROR

       FOR THE TRIAL COURT TO FIND THAT ANY DOWER RIGHTS OF

       APPELLANT WERE NOT VESTED AND HAD BEEN TERMINATED BY

       DIVORCE PRIOR TO THE SALE OF THE PROPERTY BY KATALIN

       SOLEY.

                                       II. Analysis

       {¶ 10} For ease of discussion, we will address Robert’s assignments of error out of

order. We will begin by addressing Robert’s first, second, and fourth assignments of

error, all of which challenge the trial court’s granting of summary judgment in favor of

Katalin. We will then turn to Robert’s third assignment of error, in which he argues that

the trial court erred in granting summary judgment in favor of Mr. and Mrs. Harris.

                     A. Summary Judgment on Katalin’s Claims

       {¶ 11} In Robert’s first, second, and fourth assignments of error, he argues that the

trial court erroneously granted summary judgment in favor of Katalin.

       {¶ 12} We review summary judgment rulings de novo, applying the same standard

as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241




6.
(1996); Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198

(9th Dist.1989). The motion may be granted only when it is demonstrated:

                 (1) that there is no genuine issue as to any material fact; (2) that the

       moving party is entitled to judgment as a matter of law; and (3) that

       reasonable minds can come to but one conclusion, and that conclusion is

       adverse to the party against whom the motion for summary judgment is

       made, who is entitled to have the evidence construed most strongly in his

       favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375

       N.E.2d 46 (1978); Civ.R. 56(C).

       {¶ 13} In his fourth assignment of error, Robert contends that the trial court

erroneously determined that his dower rights had not vested by the time Katalin

transferred the property.

       {¶ 14} In Ohio, a spouse’s dower right is codified in R.C. 2103.02, which states, in

relevant part:

                 A spouse who has not relinquished or been barred from it shall be

       endowed of an estate for life in one third of the real property of which the

       consort was seized as an estate of inheritance at any time during the

       marriage. Such dower interest shall terminate upon the death of the consort

       except:




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              (A) To the extent that any such real property was conveyed by the

       deceased consort during the marriage, the surviving spouse not having

       relinquished or been barred from dower therein;

              (B) To the extent that any such real property during the marriage

       was encumbered by the deceased consort by mortgage, judgment, lien

       except tax lien, or otherwise, or aliened by involuntary sale, the surviving

       spouse not having relinquished or been barred from dower therein. * * *

              Dower interest shall terminate upon the granting of an absolute

       divorce in favor of or against such spouse by a court of competent

       jurisdiction within or without this state. (Emphasis added.)

       {¶ 15} The dower interest described above is inchoate and contingent, vesting only

upon the death of the spouse who owns the property. Stand Energy Corp. v. Epler, 163

Ohio App.3d 354, 2005-Ohio-4820, 837 N.E.2d 1229, ¶ 11 (10th Dist.), citing Goodman

v. Gerstle, 158 Ohio St. 353, 358, 109 N.E.2d 489 (1952).

       {¶ 16} In light of the foregoing, we find that the trial court properly determined

that Robert’s dower right had not vested at the time of the transfer. Indeed, the statute

makes it clear that Robert’s dower right was extinguished upon the divorce of the parties

in Hungary. Therefore, Robert’s argument concerning dower is misplaced.

       {¶ 17} Accordingly, Robert’s fourth assignment of error is not well-taken.

       {¶ 18} In his first and second assignment of error, Robert argues that genuine

issues of material fact existed as to whether the property in question was subject to a




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constructive trust. In response, Katalin contends that the burden was on Robert to

demonstrate the existence of a constructive trust. She argues that Robert failed to present

evidence to establish that a constructive trust was formed at the time of Robert’s

conveyance of the property. Additionally, Katalin argues that the trial court properly

held that the statute of frauds requires the alleged constructive trust to be in writing.

       {¶ 19} In Ferguson v. Owens, 9 Ohio St.3d 223, 459 N.E.2d 1293 (1984), the

Supreme Court of Ohio defined a constructive trust as

              “a trust by operation of law which arises contrary to intention and in

       invitum, against one who, by fraud, actual or constructive, by duress or

       abuse of confidence, by commissions of wrong, or by any form of

       unconscionable conduct, artifice, concealment, or questionable means, or

       who in any way against equity and good conscience, either has obtained or

       holds the legal right to property which he ought not, in equity and good

       conscience, hold and enjoy. It is raised by equity to satisfy the demands of

       justice. * * *” Id. at 225, quoting 76 American Jurisprudence 2d (1975)

       446, Trusts, Section 221.

       {¶ 20} Although a constructive trust is usually imposed when a party acquires

property through fraud, it may also be invoked when property was acquired without

fraud. Id. at 226. “A constructive trust may not be impressed, however, just because

there has been a moral wrong or abuse of a business or other relationship; rather, it

requires a showing of a wrongful acquisition or retention of property.” Sorgen v. Sorgen,




9.
6th Dist. Ottawa No. OT-94-035, 1995 WL 136203, *4 (Mar. 31, 1995), citing Croston v.

Croston, 18 Ohio App.2d 159, 247 N.E.2d 765 (4th Dist.1969).

       {¶ 21} With respect to the trial court’s conclusion that the alleged oral constructive

trust is barred by the statute of frauds, we note that Ohio courts have previously held that

constructive trusts are not subject to the statute of frauds. See Teeter v. Teeter, 7th Dist.

Carroll No. 13 CA 887, 2014-Ohio-1471, ¶ 16 (finding that an agreement to re-convey

real property would ordinarily be subject to the statute of frauds, except in the case of

constructive trusts or promissory estoppel), citing Hunter v. Green, 5th Dist. Coshocton

No. 12-CA-2, 2012-Ohio-5801; see also Sorgen, supra (remanding the case back to the

trial court to determine whether an agreement to convey real property was excluded from

the statute of frauds upon a finding that a constructive trust did not exist). Thus, the trial

court was incorrect in rejecting Robert’s constructive trust argument on the basis that it

was barred by the statute of frauds.

       {¶ 22} Nonetheless, Katalin argues that a constructive trust does not exist on these

facts. We agree. As noted above, a constructive trust is imposed where there has been a

showing of a wrongful acquisition or retention of property. The evidence contained in

the record in the form of three affidavits filed by Robert along with his memorandum in

opposition to summary judgment demonstrates that Robert deeded the property to Katalin

“for the sole purpose of placing the property beyond the reach of his creditors.” Robert

alleged that the transfer was never intended as a gift. However, “[a] constructive trust is

imposed ‘not because of the intention of the parties but because the person holding the




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title to property would profit by a wrong, or would be unjustly enriched if [she] were

permitted to keep the property.’” Univ. Hosps. Of Cleveland, Inc. v. Lynch, 96 Ohio

St.3d 118, 2002-Ohio-3748, 772 N.E.2d 105, ¶ 60, quoting Restatement of the Law,

Restitution, Section 160, Comment b. On the evidence contained in the record before us,

we cannot find any wrongdoing in Katalin’s acquisition or retention of the property.

Therefore, we conclude that the trial court did not err in dismissing Robert’s constructive

trust argument.

       {¶ 23} Additionally, Robert argued on summary judgment that the proceeds from

the sale of the property must be distributed incident to the divorce because the property

constitutes a portion of the marital estate.

       {¶ 24} R.C. 3105.171 provides the definition for marital property and separate

property in the context of divorce proceedings in Ohio. Relevant to this issue, R.C.

3105.171(B) provides, in relevant part:

              In divorce proceedings, the court shall, and in legal separation

       proceedings upon the request of either spouse, the court may, determine

       what constitutes marital property and what constitutes separate property. In

       either case, upon making such a determination, the court shall divide the

       marital and separate property equitably between the spouses, in accordance

       with this section.

       {¶ 25} Here, a determination as to whether the real property is marital property or

separate property has not been made. As indicated above, the Hungarian court in which




11.
the divorce proceedings were initiated expressly declined to exercise jurisdiction over the

property. Thus, we must remand this matter to the trial court 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). Accordingly, Robert’s first and second

assignments of error are well-taken, in part.

              B. Summary Judgment on Mr. and Mrs. Harris’s Claims

       {¶ 26} In Robert’s third assignment of error, he argues that the trial court erred in

granting summary judgment in favor of Mr. and Mrs. Harris as questions of fact existed

regarding whether they were bona fide purchasers.

              “A ‘bona fide purchaser’ is one who acquires legal title to real estate for

       valuable consideration, in good faith, and without knowledge or notice of

       another’s equitable interest in that property.” Bergholtz Coal Holding Co. v.

       Dunning, 11th Dist. Lake No. 2004-L-209, 2006-Ohio-3401, ¶ 32, citing Shaker

       Corlett Land Co. v. Cleveland, 139 Ohio St. 536, 41 N.E.2d 243 (1942), paragraph

       three of the syllabus.

       {¶ 27} Here, Robert argues that Mr. and Mrs. Harris “had actual and constructive

notice of Appellant’s claim to this property before entering into the transaction. They

had a duty to make further inquiry and did not do so.” Robert’s argument rests on the

assumption that a constructive trust exists in his favor and that his dower interest

constituted a competing claim against the property. However, we have already rejected

each of these arguments in our discussion of his assignments of error pertaining to




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Katalin. Despite Robert’s reliance on the “Affidavit to Preserve Dower” that was

recorded prior to the sale of the property, the record confirms that Mr. and Mrs. Harris

bought the property after the parties were divorced by the Hungarian court on May 10,

2011, free of any prior dower interest. Notably, the deed transferring the property from

Katalin to Mr. and Mrs. Harris indicates that Katalin was “divorced and unremarried” at

the time of the transfer. Further, the record is devoid of any evidence suggesting that Mr.

and Mrs. Harris were aware of the alleged oral agreement between Robert and Katalin.

In light of the foregoing, we conclude that the trial court did not err in granting summary

judgment in favor of Mr. and Mrs. Harris upon a finding that they were bona fide

purchasers.

       {¶ 28} Accordingly, Robert’s third assignment of error is not well-taken.

                                       III. Conclusion

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

Common Pleas is affirmed, in part, and reversed, in part. This matter is remanded to the

trial court so that it may classify the real property at issue as either marital or separate,

and make an equitable division of the property under R.C. 3105.171(B), if necessary.

Costs are to be split evenly between the parties pursuant to App.R. 24.

                                                                   Judgment affirmed, in part,
                                                                   And reversed, in part.




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                                                                      H-13-028
                                                                      Soley v. Soley, et al.




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



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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