[Cite as Hall v. Hall, 2013-Ohio-3758.]




                IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

MARY JANE HALL                                     :

        Plaintiff-Appellee                         : C.A. CASE NO.          2013 CA 15

v.                                                 : T.C. NO.      09DR134

TERRY HALL                                         :     (Civil appeal from Common
                                                        Pleas Court, Domestic Relations)
        Defendant-Appellant                        :

                                                   :

                                           ..........

                                           OPINION

                         Rendered on the    30th       day of      August       , 2013.

                                           ..........

APRIL H. MOORE, Atty. Reg. No. 0084711, 260 N. Detroit Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

JENNIFER MARIETTA, Atty. Reg. No. 0089642, 77 W. Main Street, Xenia, Ohio 45385
     Attorney for Defendant-Appellant

                                           ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Terry Hall appeals from a decision of the Greene

County Court of Common Pleas, Domestic Relations Division, adopting in part and
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modifying in part the decision of the magistrate regarding the equitable division of marital

property between himself and plaintiff-appellee Mary Jane Hall. The magistrate’s decision

was filed on February 17, 2011. The judgment entry adopting in part and modifying in part

the decision of the magistrate was filed by the trial court on February 27, 2013. On March

25, 2013, Terry filed a timely notice of appeal with this Court.

       {¶ 2}     Terry and Mary Jane were married on August 17, 1970. Three children

were born during the marriage, to wit: Brian M. Hall, Jamie L. Vaouva, and Tracy D. Hall,

all of whom were emancipated at the time of this action. On May 6, 2009, Mary Jane filed

a complaint for divorce, alleging gross neglect and adultery. Both Mary Jane and Terry

were represented by private counsel throughout the pendency of their divorce. A temporary

restraining order (TRO) was issued by the magistrate which ordered Terry to pay as spousal

support the following debts and obligations with respect to the marital residence: mortgage,

taxes, insurance, utilities, cable, trash, and phone service.

       {¶ 3}     The divorce action proceeded to a hearing before the magistrate on March

18, 2010. Based on new evidence of undisclosed bank accounts purportedly held by Terry,

Mary Jane filed a motion to reopen the evidence on June 10, 2010. On September 1, 2010,

the magistrate held a supplemental hearing. Following the hearing, the magistrate issued a

decision on February 17, 2011. In her decision, the magistrate adopted the date of the filing

of the complaint for divorce, May 7, 2009, as the marriage termination date. Regarding

distribution of the parties’ marital assets, the magistrate awarded Mary Jane sole interest in

the only real property owned jointly by the parties which had both positive equity and which

would provide a rental income stream for Mary Jane since the evidence established that
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Terry was unemployed and, therefore, unable to provide spousal support. That property is

located at 1300 Cobblestone Street The magistrate also awarded Mary Jane title to a 1997

Chevy Cavalier owned by the parties.

       {¶ 4}    The magistrate awarded Terry the remainder of the marital assets, including

two motor vehicles of minimal value, and three parcels of real property. One of the parcels,

which was the parties’ marital residence, had negative equity. The marital property was

located at 1395 Betty Drive in Xenia, Ohio. The second property was located at 2054

Kylemore Drive in Xenia, Ohio, where Terry resided with his girlfriend. The third property

was located at 2321 and 2323 Knoll Drive and is owned in equal shares by Terry, Willard

Hall, and Pauline Hall. The magistrate found that Terry’s interest in this third parcel “is one

of a separate property nature” because the property belongs to his parents. We note that the

magistrate also found that Terry had committed financial misconduct in his handling of the

parties’ marital property and funds.

       {¶ 5}    The final decree of divorce was filed on March 8, 2011. On the same day,

Mary Jane filed her objections to the magistrate’s decision. On March 11, 2011, Terry’s

filed his response to Mary Jane’s objections. After the hearing transcripts were filed, Mary

Jane filed supplemental objections with the trial court. Terry filed his response to Mary

Jane’s supplemental objections on June 16, 2011. On July 6, 2011, the magistrate issued an

interim order requiring Terry to pay temporary spousal support to Mary Jane, in addition to

her car insurance and cell phone bill during the pendency of the objections. The magistrate

also permitted Mary Jane to continue receiving rental income from the property located at

Cobblestone Street.
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       {¶ 6}     On February 27, 2013, the trial court issued its decision adopting in part and

modifying in part the magistrate’s decision. Specifically, the trial court agreed with the

magistrate and found that Mary Jane was entitled to 1300 Cobblestone Street and all the

marital equity in the property in its entirety. The trial court modified the decision of the

magistrate, however, finding that Mary Jane was entitled to half of the marital equity in both

the Knoll Drive property and the Kylemore property. The trial court also awarded Mary

Jane half of the marital equity in Terry’s Roth IRA account (#214564942) that he admitted

to “cashing in” during the divorce proceedings without informing Mary Jane. Lastly, the

trial court found that Mary Jane was entitled to half of the proceeds from Terry’s sale of a

2000 Chevrolet Tracker to his father during the pendency of the divorce action. In total, the

trial court found that Mary Jane was entitled to a monetary award from Terry in the amount

of $84,182.41.

       {¶ 7}     It is from this judgment that Terry now appeals.

       {¶ 8}     Because they are interrelated, Terry’s first and second assignments of error

will be discussed together:

       {¶ 9}     “THE COURT IMPROPERLY DETERMINED THAT THE KNOLL

DRIVE REAL ESTATE WAS MARITAL ASSETS.”

       {¶ 10} “THE COURT INCORRECTLY CALCULATED THE AMOUNT OF

MARITAL EQUITY IN THE KNOLL DRIVE REAL ESTATE.”

       {¶ 11} In his first assignment, Terry contends that the trial court abused its

discretion when it found that the property located at 2321 and 2323 Knoll Drive were marital

assets and that Terry’s one-third interest in the property was subject to equitable distribution.
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 Specifically, Terry argues that his interest in the property was a gift to him from his parents.

 Therefore, Terry asserts, the property is a non-marital asset and Mary Jane is not entitled to

one-half of his remaining equity in the property.

       {¶ 12} Appellate courts review a trial court’s division of property under an abuse of

discretion standard, but a trial court’s classification of property as marital or separate must

be supported by the manifest weight of the evidence. Mays v. Mays, 2d Dist. Miami No.

2000-CA-54, 2001-Ohio-1450. When we consider manifest weight arguments, we “review

the evidence, and *** determine whether, when appropriate deference is given to the factual

conclusion of the trial court, the evidence persuades us by the requisite burden of proof.”

Cooper v. Cooper, 2d Dist. Greene Nos. 2007-CA-76 and 2007-CA-77, 2008-Ohio-4731, at

¶25; Howard v. Howard, Montgomery App. No. 16542, 1998 WL 127526 (Mar. 20, 1998).

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
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       Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

       {¶ 13} “Oral testimony as evidence, without corroboration, may or may not satisfy

the burden.” Maloney v. Maloney, 160 Ohio App.3d 209, 2005-Ohio-1368, at ¶23 (2d Dist.),

citing Fisher v. Fisher, 2d Dist. Montgomery No. 20398, 2004-Ohio-7255.                “Because

traceability presents a question of 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.

       {¶ 14} Generally, the party claiming that an asset is separate property has the

burden of proving the claim by a preponderance of the evidence. Peck v. Peck, 96 Ohio

App.3d 731, 734, 645 N.E.2d 1300 (1994).              However, R.C. 3105.171(A)(6)(a)(vii)

provides: (a) Separate property means all real and personal property and any interest in

real or personal property that is found by the court to be any of the following: * * * (vii) Any

gift of any real or personal property or of an interest in real or personal property that is made

after the date of the marriage and that is proven by clear and convincing evidence to have

been given to only one spouse. Because of the presumption that property acquired during

marriage is marital property, R.C. 3105.171(3)(a)(i), this presumption can be overcome only

with clear and convincing evidence. Barkley v. Barkley, 119 Ohio App.3d 155, 168, 694

N.E.2d 989 (1997). Clear and convincing evidence means that degree of proof which will

provide in the mind of the trier of fact a firm belief or conviction as to the facts sought to be

established. Id.

       {¶ 15} Upon review, we conclude that Terry’s interest in the Knoll Drive real estate

was marital property and, therefore subject to an equitable distribution between the parties.
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Initially, we note that it is undisputed that Terry owned a one-third interest in the Knoll

Drive real estate. According to the land sale contract, Terry is a joint owner with his

parents on the deed to the property. Terry testified that he had put no money into the

property and that his parents were making the monthly mortgage payments on the real estate.

 Terry testified that his interest in the Knoll Drive property was a gift from his parents and

part of his inheritance. A land installment contract, however, was admitted into evidence

which established that Terry purchased his interest in the property from his parents for

$80,000.00 on February 25, 1999. Plaintiff’s Ex. 27. In the contract, Terry is specifically

listed as the “BUYER,” and the land sale was clearly executed during the parties’ marriage.

The trial court also found that Terry’s testimony lacked credibility and that he failed to meet

his burden, by clear and convincing evidence, that the Knoll Drive real estate was a gift

purchased with non-marital/separate funds. We also note that while Mary Jane testified that

she did not think that Terry put any money into the Knoll Drive property, she consistently

testified at other points during the hearing that she left the management of the marital

finances to Terry’s discretion, and she did not generally know how their money was spent.

Accordingly, we find that the trial court did not abuse its discretion when it found that

Terry’s one-third interest in the Knoll Drive real estate was a marital asset, and therefore,

subject equitable division between the parties.

       {¶ 16} Having determined that Terry’s one-third interest in the Knoll Drive

property is a marital asset, we find, however, that the trial court erred when it miscalculated

Mary Jane’s portion of the marital equity in the Knoll Drive real estate as totaling

$24,702.38.
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       {¶ 17} Terry has a one-third vested interest in the subject property. The Greene

County Auditor’s records establish that as of the termination date of the parties’ marriage,

the appraisal value of 2321 Knoll Drive is $101,630.00, and the appraisal value of 2323

Knoll Drive is $105,590. Plaintiff’s Exs. 9 & 11. The aggregate value of both parcels of

land, in which Terry purchased a one-third interest, totals $207,220.00. As of December of

2009, the remaining balance on the only mortgage for these properties was listed at

$80,887.62, leaving $126,332.38 in total equity in the subject property. Accordingly, Terry

and Mary Jane’s one-third marital equity in the property equals $42,110.79, half of which

should have awarded to Mary Jane. Therefore, the trial court’s award to Mary Jane for her

one-half marital equity in the Knoll Drive real estate is modified to $21,055.40.

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

       {¶ 19} Terry’s second assignment of error is sustained.

       {¶ 20} Terry’s third assignment of error is as follows:

       {¶ 21} “THE COURT DIVIDED THE EQUITY FOR THE KYLEMORE DRIVE

REAL ESTATE, THE 2000 CHEVROLET TRACKER, AND THE ROTH IRA BY

IGNORING THE EQUITABLE DIVISION OF ASSETS AND DEBTS BY THE

MAGISTRATE.”

       {¶ 22} In his third assignment, Terry argues that the trial court erred when it

divided the marital equity for the Kylemore Drive real estate, the 2000 Chevrolet Tracker,

and the Roth IRA by ignoring the equitable division of assets and debts by the magistrate.

       {¶ 23} The Kylemore Drive Property

       {¶ 24} The record establishes that Terry continued making the mortgage and utility
                                                                                               9

payments at the marital residence located at 1395 Betty Drive where Mary Jane continued to

live after he moved out in April or May of 2008. In May of 2008, Terry purchased the

residence located at 2054 Kylemore Drive where he began to reside with his girlfriend. In

August of 2009, Terry stopped making mortgage payments on the Betty Drive residence, and

the property eventually went into foreclosure. Terry admitted that he doubled his living

expenses when he moved out of the marital residence and began residing at Kylemore Drive

with is girlfriend. Terry testified that he paid for the entire mortgage and all of the utilities

at the Kylemore Drive residence while his girlfriend lived there at no cost. Terry further

testified that his voluntary decision to quit his job as a minister at a local church reduced his

income by approximately two-thirds of the prior amount. The trial court found that Terry’s

misuse of marital assets to provide housing for himself and his girlfriend, while allowing the

marital residence to go into foreclosure, was intentional and constituted financial

misconduct.

       {¶ 25} We note that the magistrate adopted the date of the filing of the complaint

for divorce, May 7, 2009, as the marriage termination date. Thus, we agree with the trial

court that the funds used to purchase the residence at Kylemore Drive in May, 2008 were

marital assets. This conclusion is further supported by Terry’s admission that he stopped

making mortgage payments on the marital residence shortly after moving into the Kylemore

Drive residence with his girlfriend. Pursuant to the Greene County Auditor’s records, the

Kylemore Drive real estate was valued at $68,670.00 at the time of the parties divorce in

2009. Plaintiff’s Ex. 5. The balance due on the mortgage for the subject property was listed

at $60,711.90 as of December, 2009, thereby leaving $7,958.10 in marital equity. Thus, the
                                                                                           10

trial court did not abuse its discretion when it awarded Mary Jane $3,979.501 as her portion

of the marital equity in the Kylemore Drive property.

       {¶ 26} The 2000 Chevrolet Tracker

       {¶ 27} Terry admitted that he sold the Chevrolet Tracker to his father after the

imposition of mutual restraining orders which prohibited the parties from selling or

otherwise disposing of any marital assets. Terry’s father paid him $4,000.00 and a wrecked

1998 Chevy S-10 pickup truck for the Chevrolet Tracker. Terry further testified that he

sold the S-10 pickup truck in the late summer of 2009 after the restraining orders were filed.

 It is undisputed that Mary Jane received no money from the sale of the Chevrolet Tracker.

No where in his brief does Terry argue that the Chevrolet Tracker is not a marital asset.

Terry merely argues that because the magistrate awarded Mary Jane the Cobblestone Drive

property, she is not entitled to any proceeds from the sale of the vehicle. While the

magistrate awarded Mary Jane the Cobblestone Drive property in lieu of spousal support,

this has no bearing on whether she is entitled to her marital portion from the sale of the

Chevrolet Tracker. The vehicle was clearly a marital asset which Terry sold in violation of

the restraining order which was in place. Accordingly, the trial court did not abuse its

discretion when it awarded Mary Jane $2,000.00 of the $4,000.00 that Terry received from

the sale of the Chevrolet Tracker.

       {¶ 28} The Roth IRA/Primerica Account (#214564942)

       {¶ 29} Upon review of this portion of Terry’s third assignment, it is apparent the



          1
         The trial court ordered the amount due to Mary Jane as $3,979.50 rather
  than $3,979.05. However, this .45 cent disparity is not challenged on appeal.
                                                                                           11

trial court may have made a substantial error in the amount of marital equity in the Roth IRA

it awarded to Mary Jane. The transcript indicates that Terry testified that he unilaterally

withdrew $107,000.56 from the Roth IRA (#214564942) on June 23, 2009, in order to pay

bills. Plaintiff’s Exhibit 16 clearly reveals that on June 23, 2009, Terry only withdrew

$807.56 from the Roth IRA account. Mary Jane’s own exhibit which was admitted during

the hearing establishes that the testimony at trial was likely misstated, and at most, she was

only entitled to $403.78, or half the amount Terry withdrew from the Roth IRA account, and

not $53,500.28.     Accordingly, the trial court’s finding that the Roth IRA (Acct. #

214564942) was valued at $107,000.56 is against the manifest weight of the evidence.

       {¶ 30} Terry’s third assignment of error is overruled in part and remanded in part in

order for the trial court to reconcile the amount of the Roth IRA withdrawal with all of the

evidence presented at the hearing.

       {¶ 31} Terry’s fourth and final assignment of error is as follows:

       {¶ 32} “THE COURT’S UNREASONABLE DELAY IN RULING ON THE

OBJECTIONS TO MAGISTRATE’S [DECISION] UNDULY PREJUDICED THE

DEFENDANT.”

       {¶ 33} In his final assignment, Terry argues that he was unduly prejudiced by the

trial court’s failure to rule on Mary Jane’s objections to the magistrate’s decision in timely

fashion. Terry points out that the magistrate’s decision was issued on February 17, 2011,

and an interim order was issued on July 6, 2011, ordering appellant to pay Mary Jane

$750.00 per month, and allowing her to keep the rental income from the Cobblestone Drive

property. Terry was also ordered to continue paying Mary Jane’s car insurance and cell
                                                                                            12

phone bill during the pendency of the objections. There was no further activity on the case

until October 26, 2012, when the trial court scheduled a hearing on the objections for

January 25, 2013. It appears from the record that no such hearing was ever held, and on

February 27, 2013, the trial court issued its decision adopting in part and modifying in part

the decision of the magistrate.

       {¶ 34} Upon review, we conclude that although there was a considerable delay

between the time that the interim order was issued and the trial court’s issuance of a decision

on Mary Jane’s objections, Terry has failed to establish that he was prejudiced in any way.

Specifically, had the delay been prejudicial to Terry, he could have filed a writ with this

Court asking us to compel the trial court to rule on the objections. Terry did not avail

himself of such a remedy. Moreover, although Terry argues that he faithfully paid all of the

spousal support he was ordered to pay by the interim order of July 6, 2011, he did not attach

any receipts or check stubs establishing that he, in fact, was paying the support to Mary Jane

as he was ordered. We note that Mary Jane argues in her brief that Terry did not comply

with the interim order to pay her spousal support. Thus, Terry has failed to establish that he

was prejudiced by the trial court’s failure to rule on the objections to the magistrate’s

decision in a timely fashion.

       {¶ 35} Terry’s fourth and final assignment of error is overruled.

       {¶ 36} Based on the foregoing, Terry’s second assignment of error is sustained and

modified. In regards to our holding with respect to Terry’s third assignment of error, this

cause is remanded specifically for the trial court to reconcile the amount of the Roth IRA

(#214564942) withdrawal on June 23, 2009, with all of the evidence presented at the hearing
                                                                                      13

which will determine the proper payment amount to be made to Mary Jane for purposes of

marital equity. In all other respects, the judgment of the trial court is affirmed.

                                           ..........

FAIN, P.J. and FROELICH, J., concur.

Copies mailed to:

April H. Moore
Jennifer Marietta
Hon. Steven L. Hurley
