[Cite as Pletcher v. Pletcher, 2019-Ohio-3625.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



AUNDREA PLETCHER                                     JUDGES:
                                                     Hon. John W. Wise, P. J.
        Plaintiff-Appellee                           Hon. Craig R. Baldwin, J.
                                                     Hon. Earle E. Wise, Jr., J.
-vs-
                                                     Case No. CT2019-0002
JARED PLETCHER

        Defendant-Appellant                          OPINION




CHARACTER OF PROCEEDING:                          Civil Appeal from the Court of Common
                                                  Pleas, Domestic Relations Division, Case
                                                  No. DA2017-0332


JUDGMENT:                                         Reversed and Remanded



DATE OF JUDGMENT ENTRY:                           September 9, 2019



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

AUNDREA PLETCHER                                  MILES D. FRIES
PRO SE                                            GOTTLIEB, JOHNSTON, BEAM
640 Downard Road                                  & DAL PONTE, P.L.L.
Zanesville, Ohio 43701                            320 Main Street, P.O. Box 190
                                                  Zanesville, Ohio 43702-7555
Muskingum County, Case No. CT2019-0002                                                     2

Wise, John, P. J.

        {¶1}   Appellant Jared Pletcher appeals from his divorce in the Muskingum County

Court of Common Pleas, Domestic Relations Division. Appellee Aundrea Pletcher is his

former spouse. The relevant facts leading to this appeal are as follows.

        {¶2}   Appellee Aundrea and Appellant Jared were married in 2007. Two children

were born as issue of the marriage.

        {¶3}   On December 14, 2010, during their marriage, appellee and appellant took

title to a residential property located on Old River Road in Philo, Ohio, near the marital

residence. The property was acquired by appellee and appellant from prior owner R.L.,

who had been renting the house on the property to Richard and Karen H., appellee’s

parents.1

        {¶4}   During the time the aforesaid property was owned by R.L., it was

encumbered by a mortgage. R.L. had previously expressed some interest in selling the

property to appellee’s parents, but they were not in a position to buy it at that time.

However, in lieu of that plan, appellee and appellant jointly obtained a mortgage from

Community Bank to pay off R.L.’s existing mortgage. Appellee’s parents thereafter

continued to reside in the house under the ownership of appellee and appellant.

Appellee’s parents paid rent, but an assignment of those rent monies to Community Bank

was arranged.

        {¶5}   On May 2, 2017, appellee filed a complaint for divorce. Appellant filed an

answer and counterclaim on June 14, 2017.




1   Technically speaking, R.L. owned the house as the trustee of a trust. See Tr. at 29.
Muskingum County, Case No. CT2019-0002                                                    3


       {¶6}   The parties eventually entered into a shared parenting plan, which was

subsequently incorporated into the divorce decree, with certain exceptions set forth by

the court. The remaining issues, particularly the division of property, proceeded to a trial

on October 25, 2018.

       {¶7}   On October 29, 2018, the trial court issued its decision and judgment entry,

concluding inter alia that the aforesaid Old River Road property was not part of the marital

estate.

       {¶8}   On December 20, 2018, the trial court issued a final “judgment entry /

decree of divorce.” Among other things, appellant was granted the marital residence as

his separate property, as he was found to have owned said residence since before the

marriage.2 The court also treated portions of appellant’s “savings and investment plan”

and his personal retirement account as his separate property; the remainder (totaling

$117,347.00) was treated as marital property. The court also listed a 2016 Jeep and 1998

Baja Outlaw boat as marital assets.

       {¶9}   All told, the court found the existence of $166,947.00 in marital assets, less

$73,944.18 in marital debts, equaling $93,002.82 in net marital assets. The court then

distributed the marital assets ($152,197.00 to appellant, $14,750 to appellee) and

allocated the marital debts ($58,275.18 to appellant, $15,669.00 to appellee). Appellant

was thus ordered to make an equalization payment to appellee of $47,420.41. See

Decree at 2; Marital Balance Sheet Exhibit.




2  The marital residence is also in Philo, close to the Old River Road property at issue in
the present appeal.
Muskingum County, Case No. CT2019-0002                                                      4


       {¶10} Finally, as indicated previously, the Old River Road property occupied by

appellee’s parents was found to be appellee’s separate property. Appellee was ordered

within one year to refinance the mortgage encumbering said property so as to remove

appellant’s name therefrom.

       {¶11} Appellant filed a notice of appeal on January 22, 2019.3 He herein raises

the following sole Assignment of Error:

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

OWNED BY THE PARTIES IS NOT PART OF THE MARITAL ESTATE.”

                                                 I.

       {¶13} In his sole Assignment of Error, appellant contends the trial court erred in

determining that the Old River Road property, titled to both appellee and appellant and

occupied by appellee’s parents, was not marital property for purposes of the parties’

divorce. We agree.

                                          Applicable Law

       {¶14} An appellate court generally reviews the overall appropriateness of the trial

court's property division in divorce proceedings under an abuse-of-discretion standard.

Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. An abuse of discretion

connotes more than an error of law or judgment; it implies that the court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219, 450 N.E.2d 1140.



3  Appellant filed his brief on April 15, 2019. Appellee did not file a response brief, but on
July 16, 2019, she filed a pro se letter to this Court with the Muskingum County Clerk of
Courts, albeit with no proof of service on appellant. We admonish appellee that such
correspondence is improper and not in conformity with the Appellate Rules.
Muskingum County, Case No. CT2019-0002                                                    5


       {¶15} A trial court should be given wide latitude in dividing property between the

parties. See Koegel v. Koegel (1982), 69 Ohio St.2d 355, 432 N.E.2d 206. Trial court

decisions regarding the classification of separate and marital property are not reversed

unless there is a showing of an abuse of discretion. See Valentine v. Valentine, 5th Dist.

Ashland No. 95COA01120, 1996 WL 72608, citing Peck v. Peck, 96 Ohio App.3d 731,

734, 645 N.E.2d 1300 (12th Dist.1994). The characterization of property as separate or

marital must also be supported by sufficient, credible evidence. See Chase–Carey v.

Carey, 5th Dist. Coshocton No. 99CA1, 1999 WL 770172. Furthermore, as an appellate

court, we are not the trier of fact. Our role is to determine whether there is relevant,

competent, and credible evidence upon which the factfinder could base his or her

judgment. Tennant v. Martin–Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010–Ohio–

3489, ¶ 16, citing Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911.

       {¶16} R.C. 3105.171(B) states as follows: “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. For

purposes of this section, the court has jurisdiction over all property, excluding the social

security benefits of a spouse other than as set forth in division (F)(9) of this section, in

which one or both spouses have an interest.”

       {¶17} There is a presumption in Ohio that an asset acquired during the course of

the marriage is marital property, unless proved otherwise. Haven v Haven, 5th Dist.

Ashland No. 12-COA-013, 2012-Ohio-5347, ¶ 23. Correspondingly, the definition of
Muskingum County, Case No. CT2019-0002                                                     6


“separate property” includes “[a]ny real or personal property or interest in real or personal

property that was acquired by one spouse prior to the date of the marriage[.]” R.C.

3105.171(A)(6)(a)(ii) (emphasis added). We have recognized that the party to a divorce

action seeking to establish that an asset or portion of an asset is separate property, rather

than marital property, has the burden of proof by a preponderance of evidence. Cooper

v. Cooper, 5th Dist. Licking No. 14 CA 100, 2015–Ohio–4048, ¶ 45 (additional citation

omitted).

       {¶18} We also note R.C. 3105.171(C)(1) states in pertinent part as follows:

“Except as provided in this division or division (E) of this section, the division of marital

property shall be equal. If an equal division of marital property would be inequitable, the

court shall not divide the marital property equally but instead shall divide it between the

spouses in the manner the court determines equitable. ***.”

                                             Analysis

       {¶19} As set forth in our recitation of the facts, supra, appellant’s focus in the

present appeal is the residential property, acquired during the marriage, located on Old

River Road in Philo, Ohio, which the trial court excluded from the marital estate, stating

as follows:

              The real property located at [****] Old River Road, Philo, Ohio is titled

       in the names of both Jared Pletcher and Aundrea Pletcher. This property is

       encumbered by a mortgage to Community Bank and it is a joint obligation

       of the parties.

              From the evidence the Court finds the property at [****] Old River

       Road, Philo, Ohio is the primary residence of Rick and Karen [H.], the
Muskingum County, Case No. CT2019-0002                                              7


     parents of Aundrea Pletcher. The Court finds the [parents] first rented the

     property from the [R.E.L] Trust but thereafter the property was conveyed

     from the Trust to Aundrea and Jared Pletcher. At the time of the conveyance

     in December 2010 the property was encumbered by a mortgage. On the

     acquisition of the property by Aundrea and Jared Pletcher the previous

     mortgage was extinguished by way of a subsequent mortgage from the

     Pletcher's to Community Bank. The Court further finds at the time of the

     Community Bank mortgage Aundrea Pletcher and Jared Pletcher entered

     into and executed an assignment of rents on the property in favor of the

     Community Bank to secure the mortgage.

            Jared Pletcher's testimony indicated he had little understanding of

     the circumstances surrounding the acquisition of this property. The

     testimony of Aundrea Pletcher established that her parents had been living

     there as lessees but [R.L.] wished to sell the property. Because her parents

     did not have good credit they could not obtain financing to obtain the

     property in their name and therefore Aundrea Pletcher and Jared Pletcher

     acquired the property allowing the [parents] to remain as tenants. Aundrea

     Pletcher testified that no marital funds were used as a down payment to

     acquire this real estate nor were marital funds ever used to satisfy the

     monthly mortgage obligation. Jared Pletcher produced no evidence to

     contradict this testimony.

            The Court finds from the evidence including the testimony of Aundrea

     Pletcher and the assignment of rents to Community Bank that the intent was
Muskingum County, Case No. CT2019-0002                                                      8


       to provide an alternate method for Richard and Karen [H.] to obtain this

       property and this property is therefore not part of the marital estate.

       {¶20} Decision and Judgment Entry, October 29, 2018, at 2-3.

       {¶21} At trial, appellee testified on cross-examination that even though her

parents “would never” suddenly decide to move out of the Old River Road house, if that

event were to happen under the then-extant arrangement, she and appellant would be

obligated as joint mortgagors. Tr. at 71. It appears presently undisputed that the

appraised value of the property in question is $116,000.00. See Tr. at 33. As of the trial

date, the Community Bank mortgage payoff balance was 64,971.93. Tr. at 34. No

evidence was adduced that appellee intends to gift the property or to sell it at a break-

even price to her parents in the future, nor is there any requirement of that nature set forth

in the divorce decree. While no significant marital funds were apparently expended in

acquiring the property, both appellee and appellant gave a form of consideration for the

transfer of the deed, as “[e]xecution of a mortgage implies consideration.” Montgomery v.

Mosley, 4th Dist. Pike No. 448, 1990 WL 127047 (Harsha, J., concurring in part and

dissenting in part). Furthermore, during the marriage, the parties, until 2016, claimed the

interest paid on the mortgage as a federal income tax deduction.

       {¶22} Under the circumstances presented, we find no valid basis for the trial court

to have deprived appellant of the benefit of R.C. 3105.171(C)(1), supra. In other words,

by removing the Old River Road property in question from the category of marital property,

even though both parties during the marriage gave consideration for the transfer of the

real estate by jointly taking on a new mortgage obligation, appellee has effectively

obtained a windfall, while appellant has been unreasonably denied an equal or equitable
Muskingum County, Case No. CT2019-0002                                                    9


portion of the equity in the property at the time of the divorce, a figure of approximately

$51,000.00. In our minds, the fact that the mortgage payments have been coming from

appellee’s parents’ rental monies makes no difference.4 The situation would be identical,

legally speaking, if a married couple were to jointly acquire a residential property to rent

out purely as a side investment, using the tenants’ rent payments (a form of marital

income) to cover and pay down the property’s mortgage, thereby increasing the value of

a marital asset. See Cherconis v. Cherconis, 9th Dist. Medina No. 16CA0077-M, 2017-

Ohio-7912, ¶ 24 (stating that any reduction in the amount of a mortgage during a marriage

by payment of marital funds is marital property.)

                                           Conclusion

       {¶23} Accordingly, we find the trial court abused its discretion in this instance in

concluding appellee had met her burden to establish that the Old River Road property

was her separate asset.

       {¶24} Appellant's sole Assignment of Error is sustained, and this matter will be

remanded with directions to the trial court to treat the Old River Road property as marital

property and the Community Bank mortgage as marital debt, and to adjust the marital

property distribution accordingly.




4 The parties are in dispute as to whether appellee writes the checks to the mortgagee
(Community Bank) after receiving payments from appellee’s parents, or whether the
parents simply pay the mortgagee directly. See Tr. at 32, 69.
Muskingum County, Case No. CT2019-0002                                         10


       {¶25} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, Muskingum County, Ohio, is hereby reversed and

remanded.



By: Wise, John, P. J.

Baldwin, J., and

Wise, Earle, J., concur.


JWW/d 0816
