[Cite as Talkington v. Brown, 2014-Ohio-779.]
                             STATE OF OHIO, COLUMBIANA COUNTY
                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

LYNN TALKINGTON,                                )
                                                )
        PLAINTIFF-APPELLANT,                    )
                                                )                CASE NO. 13 CO 30
V.                                              )
                                                )                    OPINION
DAVID BROWN,                                    )
                                                )
        DEFENDANT-APPELLEE.                     )

CHARACTER OF PROCEEDINGS:                       Civil Appeal from Court of Common
                                                Pleas of Columbiana County, Ohio
                                                Case No. 11CV295

JUDGMENT:                                       Modified

APPEARANCES:
For Plaintiff-Appellant                         Attorney Adrian V. Hershey
                                                4110 Sunset Boulevard
                                                Steubenville, Ohio 43952

For Defendant-Appellee                          No brief filed




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                Dated: February 26, 2014
[Cite as Talkington v. Brown, 2014-Ohio-779.]
DONOFRIO, J.

        {¶1}    Plaintiff-appellant, Lynn Talkington, appeals from a Columbiana County
Common Pleas Court judgment awarding her a judgment of $18,079.45 against
defendant-appellee, David Brown, following a bench trial.
        {¶2}    Appellant and appellee met in 2010 and, on December 4 of that year,
they became engaged to be married.                   In January 2011, the parties were at a
motorcycle shop and decided to purchase a motorcycle that they would ride together.
Appellant paid for the $36,248.90 Harley Davidson in two payments. She stated it
was a wedding present to her and appellee. The parties do not dispute that appellant
paid for the motorcycle with her own personal funds.
        {¶3}    That March, the parties broke up.                  Appellant claimed she asked
appellee for the motorcycle. Appellee claimed appellant did not ask him to return the
motorcycle. On April 12, 2011, appellee traded the motorcycle in on his purchase of
a Hummer. He received $33,000.00 for the trade-in towards the purchase of his
Hummer.
        {¶4}    Appellant filed a complaint against appellee alleging (1) the motorcycle
was a gift in contemplation of marriage and (2) unjust enrichment.
        {¶5}    The matter proceeded to a bench trial on April 10, 2013. The trial court
heard evidence from the parties and two other witnesses.
        {¶6}    The court found that appellant made a conditional gift to appellee of
one-half of the motorcycle in contemplation of their anticipated marriage. Because
the condition of marriage was not fulfilled, the court determined appellant was entitled
to the return of the gift or its value. The court also found appellee was unjustly
enriched to the extent of one-half of the purchase price of the motorcycle. It went on
to find that if it were to award appellant the full value of the motorcycle, she would be
unjustly enriched because she purchased the motorcycle for her and appellee to
enjoy together. Therefore, the trial court entered judgment against appellee in the
amount of $18,079.45, one-half of the purchase price of the motorcycle.1

1 The trial court states that it awarded appellant $18,079.45, one-half of the purchase price of the
motorcycle. However, Plaintiff’s Exhibit 4, the bill of sale, clearly states that the purchase price was
$36,248.90. And the trial court cites to Plaintiff’s Exhibit 4 in discussing the purchase price. Therefore,
                                                                                              -2-


        {¶7}    Appellant filed a timely notice of appeal on July 1, 2013.
        {¶8}    Appellee has failed to file a brief in this matter. Therefore, we may
consider appellant's statement of the facts and issues as correct and reverse the
judgment if appellant's brief reasonably appears to sustain that action. App.R. 18(C).
        {¶9}    Appellant raises a single assignment of error that states:

                WAS THE COURT’S DECISION TO AWARD APPELLANT ONE
        HALF OF THE PURCHASE PRICE OF THE MOTORCYCLE
        SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE?

        {¶10} Appellant argues there was no evidence to support the trial court’s
judgment. She points out that the trial court found that the motorcycle was a gift
contingent upon marriage of the parties, that she was to be reimbursed, and that
appellee was unjustly enriched.            She also points to the evidence that appellee
contributed nothing toward the purchase price of the motorcycle and that he traded it
in and received a $33,000 trade-in benefit toward his purchase of a Hummer. Given
the evidence and the findings, appellant argues the trial court should have awarded
her the full amount of the purchase price of the motorcycle ($36,248.90) instead of
just half.
        {¶11} When reviewing civil appeals from bench trials, an appellate court
applies a manifest-weight standard of review. Revilo Tyluka, L.L.C. v. Simon Roofing
& Sheet Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181, ¶5 (8
Dist.), citing App .R. 12(C), Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d
1273 (1984). Judgments supported by some competent, credible evidence going to
all the material elements of the case must not be reversed, as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d
279, 376 N.E.2d 578, syllabus (1978). See, also, Gerijo, Inc. v. Fairfield, 70 Ohio
St.3d 223, 226, 638 N.E.2d 533 (1994).                  Reviewing courts must oblige every

one-half of the purchase price is actually $18,124.45. It seems, however, that this was a simple
mathematical error by the trial court as its judgment entry states it is granting “one-half the purchase
price of the motorcycle.” The difference is $45.
                                                                                  -3-


reasonable presumption in favor of the lower court's judgment and finding of facts.
Gerijo, 70 Ohio St.3d at 226 (citing Seasons Coal Co., supra). In the event the
evidence is susceptible to more than one interpretation, we must construe it
consistently with the lower court's judgment. Id. In addition, the weight to be given
the evidence and the credibility of the witnesses are primarily for the trier of the facts.
Kalain v. Smith, 25 Ohio St.3d 157, 162, 495 N.E.2d 572 (1986). “A finding of an
error of law is a legitimate ground for reversal, but a difference of opinion on
credibility of witnesses and evidence is not.” Seasons Coal, 10 Ohio St.3d at 81.
       {¶12} At trial, appellant testified that she and appellee were engaged in
December 2010. (Tr. 9). At that time, appellee was collecting unemployment and
was receiving approximately $600 every few weeks. (Tr. 10-11). She stated that she
and appellee had a joint bank account. (Tr. 12). She also maintained her own
separate bank account. (Exs. 1, 2). Appellant testified that in January, she and
appellee went to a motorcycle shop and decided to buy a motorcycle. (Tr. 12-13).
She stated they both loved motorcycles.         (Tr. 13).   Appellant testified she told
appellee she would buy one for them to share as a wedding present. (Tr. 13, 22-23).
Appellant paid $15,000 by check from her personal bank account to McMahon’s (the
motorcycle shop) that day as a deposit on the $36,248.90 Harley Davidson. (Tr. 14,
19, Ex. 1). A few weeks later, appellant made out another check from her personal
account in the amount of $25,000 payable to cash. (Tr. 15, Ex. 2). In the memo
section she wrote “bike.” (Ex. 2). This money she deposited into her and appellee’s
joint account. (Tr. 15). The parties then wrote a check to pay for the balance on the
motorcycle. (Tr. 15). Appellant submitted copies of the account records for the joint
bank account that demonstrated the only money appellee put into the account was
his $600 from unemployment compensation. (Tr. 16-17, Ex. 3).
       {¶13} Appellant testified that she thought the motorcycle was going to be titled
in both her and appellee’s names. (Tr. 19, 20). But when the parties left McMahon’s
she saw that the title only had appellee’s name on it. (Tr. 19). Appellant testified she
was upset about this and appellee told her not to worry about it. (Tr. 19).
                                                                              -4-


       {¶14} Appellant further testified that after a fight while returning from a
vacation in March 2011, she broke off the engagement. (Tr. 21, 23). She stated she
moved out of appellee’s house in April. (Tr. 23). Appellant stated that when she was
packing up her things at appellee’s house, she asked him for the motorcycle and he
refused. (Tr. 24).
       {¶15} Appellant later learned that appellee traded the motorcycle in towards
the purchase of a Hummer on April 12, 2011. (Tr. 26, Ex. 6). Appellee received
$33,000 on the trade-in towards the purchase of his new vehicle. (Tr. 27).
       {¶16} Johnna Abdalla was appellee’s daughter-in-law during the time the
parties purchased the motorcycle. Abdalla testified that from spending time with the
parties, she learned they bought the motorcycle for them to enjoy together as a
wedding present. (Tr. 45-46). She stated this was common knowledge in the family.
(Tr. 46-47).
       {¶17} Melissa Orr is appellee’s brother. She testified it was her understanding
that the parties purchased the motorcycle to ride together because they were going
to get married. (Tr. 53).
       {¶18} Appellee testified he and appellant never had any discussions
regarding the motorcycle about what would happen if they did not get married. (Tr.
67). He also stated that appellant did not put any conditions on her buying the
motorcycle. (Tr. 68). Appellee acknowledged that appellant paid for the motorcycle.
(Tr. 74). And he did not see any reason to put her name on the title. (Tr. 74).
       {¶19} Many Ohio courts hold the view that gifts made in contemplation of
marriage, typically exemplified by engagement rings, may be recovered by the donor
if marriage does not ensue, regardless of which party is at fault regarding the
termination of the engagement. Patterson v. Blanton, 109 Ohio App.3d 349, 352,
672 N.E.2d 208 (10th Dist.1996), citing Lyle v. Durham, 16 Ohio App.3d 1, 473
N.E.2d 1216 (1st Dist.1984); McIntire v. Raukhorst, 65 Ohio App.3d 728, 585 N.E.2d
456 (9th Dist.1989). Additionally, this court held in Somple v. Livesay, 7th Dist. No.
78-CA-16 (July 31, 1979), that other gifts in contemplation of marriage are conditional
                                                                                  -5-


and that the donor is entitled to the return of those gifts if the condition of marriage is
not fulfilled.   This view was also adopted by the Eleventh Appellate District in
Zsigmond v. Vandemberg, 11th Dist. No. 95-P-06 (Dec. 29, 1995).
        {¶20} Based on the evidence, the trial court found appellant made a
conditional gift to appellee of one-half of the motorcycle.       It stated that gift was
conditioned on and was in contemplation of their anticipated marriage. The court
found that appellant was, therefore, entitled to the return of the gift or its value
because the condition of the marriage was not fulfilled. In making these findings, the
trial court relied on numerous facts including that the parties purchased the
motorcycle during the engagement period, the parties were going to ride the
motorcycle together, appellant told appellee’s family members that the motorcycle
was a wedding gift, and appellant was upset when she learned her name was not on
the title.
        {¶21} Competent, credible evidence supports the trial court’s findings on this
point. There is ample evidence as set out above to support each of the trial court’s
findings.
        {¶22} A problem exists, however, with the court’s conclusion. After making
the findings that it did, the trial court went on to award appellant a judgment in the
amount of one-half of the purchase price of the motorcycle.             This judgment is
inconsistent with the trial court’s detailed findings and analysis.
        {¶23} The trial court specifically found that appellant made a conditional gift to
appellee “of one-half of the Harley Davidson motorcycle.” If appellant gifted one-half
of the motorcycle to appellee, then appellant necessarily owned the other one-half of
the motorcycle. This is where the problem arises.
        {¶24} The trial court found that appellant was entitled to the return “of the gift
or its value because the condition of marriage was not fulfilled.” Thus, appellant was
entitled to the return of appellee’s one-half of the motorcycle or its value. But the
question arises as to what then became of appellant’s one-half interest in the
motorcycle.      Presumably, if appellee had not traded in the motorcycle, the court
                                                                                 -6-


would have simply awarded appellant the motorcycle (appellant’s one-half of the
motorcycle + appellee’s one-half of the motorcycle).          But appellee traded the
motorcycle in on his new vehicle.        Thus, appellee used the whole value of the
motorcycle, the one-half that appellant conditionally gifted to him and appellant’s one-
half.
        {¶25} Therefore, while the trial court’s findings are supported by the evidence,
its judgment is not. The trial court erred in not awarding appellant the full value of the
motorcycle.
        {¶26} Accordingly, appellant’s assignment of error has merit.
        {¶27} For the reasons stated above, the trial court’s judgment is modified to
reflect that appellant is entitled to a judgment against appellee for the full purchase
price of the motorcycle or $36,248.90.


Waite, J., concurs.

DeGenaro, P.J., concurs.
