[Cite as Byrd v. Byrd, 2013-Ohio-4450.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


VICKI BYRD                                  :       JUDGES:
                                            :
                                            :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                :       Hon. John W. Wise, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
-vs-                                        :
                                            :
RANDALL BYRD                                :       Case No. 2013CA00005
                                            :
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Stark County Common
                                                    Pleas Court, Domestic Relations
                                                    Division, Case No. 2011DR00814




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   October 7, 2013




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ARNOLD F. GLANTZ                                    SUSAN PUCCI
Glantz Law Offices                                  4429 Fulton Drive NW
4883 Dressler Rd. NW                                Suite 100
Canton, OH 44718                                    Canton, OH 44718
Stark County, Case No. 2013CA00005                                                      2

Baldwin, J.

      {¶1}    Appellant Randall Byrd appeals a divorce judgment of the Stark County

Common Pleas Court, Domestic Relations Division. Appellee is Vicki Byrd.

                            STATEMENT OF FACTS AND CASE

      {¶2}    The parties were married in 1996. During the marriage, the parties lived in

a residence located at 711 Ford Avenue S.W., North Canton, Ohio.        Appellant owned

this home with his first wife, and purchased her interest in 1991 when they divorced. In

1999, appellant put appellee’s name on the deed to this house.

      {¶3}    Appellee filed for divorce in 2011. The parties agreed on all issues except

for valuation and division of the marital residence and ownership of a curio cabinet.

The case proceeded to a hearing at which each party presented evidence concerning

ownership of the real property and curio cabinet, and each party presented expert

testimony regarding the value of the real property.            The magistrate filed a

recommendation on August 28, 2012, finding that the value of the property was

$87,500.00, roughly in the middle of the two appraisals presented by the parties. She

further found that the real estate was marital property because appellant intended to gift

half of the property to appellee at the time her name was placed on the deed.

      {¶4}    Appellant filed objections. On November 7, 2012, the trial court found that

the residence was marital property because appellant intended to gift half of the

property to appellee.    However, the court sustained the objection regarding the

valuation of the property and remanded the case to the magistrate to select a valuation

from the evidence presented. The magistrate filed a new recommendation finding that

the value of the property was $99,500.00, the amount testified to by appellee’s expert.
Stark County, Case No. 2013CA00005                                                     3


The magistrate found that the testimony of Edward Fernandez, appellee’s expert, was

credible because he “included a more hands-on approach, with more knowledge of the

neighborhood.” Appellant’s objection to this finding was overruled.

      {¶5}    Appellant assigns three errors on appeal:

      {¶6}    “I. THE TRIAL COURT ERRED IN FINDING THAT THE REAL ESTATE

WAS MARITAL PROPERTY WHEN APPELLEE FAILED TO PRESENT CLEAR AND

CONVINCING EVIDENCE OF AN INTER VIVOS GIFT.

      {¶7}    “II.    VALUING THE REAL ESTATE AT $99,500.00 WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

      {¶8}    “III.    THE TRIAL COURT ABUSED ITS DISCRETION IN EQUALLY

DIVIDING THE REAL ESTATE WHEN APPELLANT HAD TRACED $68,000.00

WORTH OF SEPARATE PROPERTY IN THE HOME.”

                                               I.

      {¶9}    In his first assignment of error, appellant argues that the court erred in

finding the property to be marital. He argues that appellee did not prove he gifted her

half of the property as an inter vivos gift, and he only put her name on the deed as an

estate planning tactic.

      {¶10}   We review a trial court's classification of property as marital or separate

under a manifest weight of the evidence standard and will affirm if the classification is

supported by some competent, credible evidence.           Jackson v. Jackson, 5th Dist.

Fairfield No. 12-CA-11, 2012-Ohio-6074, ¶41.

      {¶11}   A spouse can convert separate property into marital property by making

an inter vivos gift to his or her spouse. Helton v. Helton, 114 Ohio App.3d 683, 685, 683
Stark County, Case No. 2013CA00005                                                               4


N.E.2d 1157 (1996). To prove that an inter vivos gift has been made, the following

elements are required: (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. Id. at 685–686.

      {¶12}   “The donee has the burden of showing by clear and convincing evidence

that the donor made an inter vivos gift.” Id. at 686. Clear and convincing evidence is that

evidence “which will produce in the mind of the trier of facts a firm belief or conviction as

to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 53 O.O. 361,

120 N.E.2d 118, paragraph three of the syllabus (1954).

      {¶13}   The fact that both parties' names are on the deed is not determinative of

whether the property is marital or separate, but such evidence may be considered on

the issue. R.C. 3105.171(H); Gibson v. Gibson, 5th Dist. Tuscarawas No. 2006 AP 01

0009, 2007-Ohio-2087. See also Gearhart v. Gearhart, 5th Dist. Richland No.

2007CA0026, 2008-Ohio-23 (finding that the execution of a joint-survivorship deed and

the testimony of the donor husband that half of the property was to be given to the

donee wife as a result of the transfer, without any limitation or restriction, supported the

trial court's decision that the transfer of interest in the property was an inter vivos gift).

      {¶14}   In the instant case, appellee testified that at the time her name was placed

on the deed, they were both in good health, neither was contemplating death, and there

were no thoughts about protecting the asset in the event one of them died. Tr. 53. She

testified that she and appellant discussed it and he was gifting her half of the property
Stark County, Case No. 2013CA00005                                                      5


by placing her name on the deed.         Tr. 54.   She testified that their goal was that

everything they had would be combined into marital property. Tr. 54. Similarly, while

appellant testified that the parties made a will together, he did not testify that the

transfer of the house was accomplished for estate planning purposes. Rather, appellant

testified:

       {¶15}   “Q.   And somewhere in 1999, was it?         You put Vicki’s name on the

property. Is that correct?

       {¶16}   “A. Yes.

       {¶17}   “Q. Could you explain to the Court, in your own words, why you did that?

What your motivation was?

       {¶18}   “A. I just thought it was the right thing to do. I was (inaudible) that we

would be together rest of our lives. I just thought it was the right thing to do. I don’t

know.” Tr. 47.

       {¶19}   Counsel attempted to elicit testimony from appellant that the intent of the

transfer was so the property would pass to appellee if he passed away, but objections to

these questions were sustained on the grounds that they were leading. Tr. 47-48.

Appellant testified on cross-examination that they put everything in both names, and

further testified that the only estate planning tool they used was a will. Tr. 49-50.

       {¶20}   The trial court’s finding that the property was marital because appellant

put appellee’s name on the deed intending to give her one-half of the property is not

against the manifest weight of the evidence. The first assignment of error is overruled.
Stark County, Case No. 2013CA00005                                                   6


                                             II.

     {¶21}    In his second assignment of error, appellant argues that the trial court

erred in accepting the valuation of the property presented by appellee’s expert.

Appellant’s expert, Timothy Dannemiller, testified that the property was worth

$68,000.00 when the parties married in 1996 and $70,000.00 at the time of the divorce

hearing.   Ed Fernandez, appellee’s expert, testified that the property was worth

$99,500.00.

     {¶22}    Valuing property involves factual inquiries and therefore requires an

appellate court to apply a manifest weight of evidence standard of review.    Jackson,

supra, at ¶41.   An appellate court will not reverse a trial court's valuation if it is

supported by some competent, credible evidence. Seasons Coal Co. v. Cleveland, 10

Ohio St.3d 77, 461 N.E.2d 1273 (1984).

     {¶23}    The trial court’s finding that the property was worth $99,500.00 was

supported by competent, credible evidence. The magistrate noted that Fernandez’s

valuation included a more hands-on approach, with more knowledge of the

neighborhood. While he was not allowed access to the inside of the home, he walked

the property and made adjustments for peeling paint, for disrepair of the driveway and

for the poor condition of the windows. He reviewed comparable sales within a quarter

mile of the home. Further, while appellant’s expert does mostly appraisals and not

much selling, approximately 80% of Fernandez’s business is in sales.

     {¶24}    The second assignment of error is overruled.
Stark County, Case No. 2013CA00005                                                       7


                                               III.

      {¶25}   In his third assignment of error, appellant argues that because the real

property was worth $68,000.00 at the time of the marriage and he owned the property

free and clear of a mortgage, he traced $68,000.00 of separate property in the real

estate. However, as discussed in the first assignment of error, the evidence established

that in 1999 when he placed appellee’s name on the deed, appellant intended to make

an inter vivos gift of one half of the value of the real estate to appellee. Therefore, the

concept of traceability of separate property has no application to this asset.

      {¶26}   The third assignment of error is overruled.

      {¶27}   The judgment of the Stark County Common Pleas Court, Domestic

Relations Division, is affirmed. Costs are assessed to appellant.


By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.




                                         HON. CRAIG R. BALDWIN



                                         HON. W. SCOTT GWIN



                                         HON. JOHN W. WISE




CRB/rad
[Cite as Byrd v. Byrd, 2013-Ohio-4450.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


VICKI BYRD                                    :
                                              :
        Plaintiff - Appellee                  :
                                              :
-vs-                                          :       JUDGMENT ENTRY
                                              :
RANDALL BYRD                                  :
                                              :
        Defendant - Appellant                 :       CASE NO. 2013CA00005


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Stark County Common Pleas Court, Domestic Relations Division is

affirmed. Costs assessed to appellant.




                                           HON. CRAIG R. BALDWIN



                                           HON. W. SCOTT GWIN



                                           HON. JOHN W. WISE
