[Cite as Forcier v. Forcier, 2019-Ohio-5052.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


BEVERLY FORCIER,                                :        OPINION

                 Plaintiff-Appellant,           :
                                                         CASE NO. 2019-G-0192
        - vs -                                  :

PAUL GERARD FORCIER, et al.,                    :

                 Defendant-Appellee.            :


Appeal from the Geauga County Court of Common Pleas, Case No. 2015 D 000574.

Judgment: Modified and affirmed as modified.


Amy M. Keating, Christopher R. Reynolds and Kyleigh A. Weinfurtner, Zashin & Rich
Co., LPA, 950 Main Avenue, Fourth Floor, Cleveland, OH 44113 (For Plaintiff-
Appellant).

Dominic M. Antonelli and Kristen A. Crane, Kvale Antonelli & RAJ, 1406 West Sixth
Street, Second Floor, Cleveland, OH 44113 (For Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Dr. Beverly Forcier, appeals from the final judgment granting a

divorce to appellee, Dr. Paul Gerard Forcier.        The issues on appeal are threefold.

Appellant challenges: (1) the trial court’s modification of the magistrate’s decision

regarding whether appellant is entitled to interest on her separate property; (2) the trial

court’s adoption of the magistrate’s decision that appellee did not engage in financial

misconduct; and (3) the trial court’s adoption of the magistrate’s decision that certain
real property, gifted to appellee by appellant’s parents, is his separate property. We

modify the judgment and affirm as modified.

       {¶2}     The parties, each medical doctors, were married in December 1979. Four

children, all emancipated, were born of the marriage. Early in the marriage, appellant

worked full time as an ophthalmologist, but as the parties’ children were born, she

reduced her hours, eventually retiring in 1997. Appellee, an orthopedic surgeon, has

been the parties’ primary wage earner. Throughout their marriage, the parties invested

in real estate and had multiple investment accounts, some were held jointly and others

individually.    Appellee managed the parties’ finances and controlled the various

accounts. Although the parties had a relatively high income due to appellee’s salary and

their investments, they lived frugally. Ultimately, between their incomes, savings, funds

received as gifts, and investments, the marital estate grew in excess of $15 million. The

parties separated in 2015 and appellant subsequently filed for divorce. During litigation,

multiple stipulations were filed. After many of the issues were settled, four matters

remained for the trial court to decide: (1) the disposition of marital property in Haywood

County, Tennessee; (2) the disposition of property in Carroll County, Ohio; (3) the

disposition of appellee’s separate property; and (4) whether appellee committed

financial misconduct and violated his duty to support appellant.

       {¶3}     At the final hearing, evidence demonstrated the parties owned some

561.01 acres of real property located in Haywood County, Tennessee. Between 1998

and 2003, the parties paid approximately $660,000 for the property. Both parties sought

to retain the property free and clear of any claim by the other. Appellant argued she

should be entitled to retrain the property due to its personal value and the ancestral




                                            2
connections to her family; appellee asserted he should be entitled to the property due to

its past, present, and future investment value.

         {¶4}   Appellant, who was interested in genealogy, traced her family’s ownership

of land in Haywood County from the 1820s. She had fond childhood memories of trips

to Haywood County to visit relatives. In 2004, the parties learned of a potential large

industrial “megasite” that the Tennessee Valley Authority was developing on property

adjoining the Haywood County property. At the time of trial, however, there was no

indication that any development of the “megasite” had or would commence.                Still,

appellee testified the parties investigated other properties, one in Iowa, prior to

purchasing the Tennessee land and selected the Haywood County property due to the

greater rate of return on potential rental income. He further asserted the proximity to

the potential “megasite” would cause the property to significantly increase the land’s

value.

         {¶5}   Appellant enlisted John Powell Jenkins, a certified appraiser in the state of

Tennessee, to assign a value to the Haywood County property.               After visiting the

property, taking photos, and reviewing comparable sales, Mr. Jenkins concluded the

property had a market value, at the time of the final hearing, of $1,856,943. Mr. Jenkins

noted he was aware of the potential “megasite,” and inquired locally about its

development. When he visited the property, Mr. Jenkins did not observe any indication

that the adjacent land was being developed.

         {¶6}   In lieu of completely divesting one of the party’s entire possessory interest

in the property, appellee proposed dividing Haywood County property. Mr. Jenkins,

however, testified partitioning the property, such that each party would receive equal




                                              3
value, would be difficult. The property includes agricultural fields, wooded areas, and,

due to its size, aspects of the land do not have enough road frontage to effectively

divide the land. In light of these points, not every acre or region of the land is of equal

or similar value. He opined the property’s best and most lucrative use was farming and

nothing would indicate this would change in the future.

      {¶7}   Appellant’s parents owned substantial real estate and assets and, during

the parties’ marriage, her parents transferred interest in numerous properties to

appellant, appellee, and their children. In 1991, appellee received an undivided one-

sixth interest in the property in Carroll County, Ohio. The other deeded owners were

appellant’s niece, her two nephews, and the parties’ two sons. Since obtaining an

ownership interest in the property, appellee has received one-sixth of the rents and

other income associated with the same.

      {¶8}   Appellant sought to impose a constructive trust upon appellee’s interest in

the Carroll County Property for the benefit of the parties’ two daughters and nephew

and designate appellant as the trustee. According to appellant, when the one-sixth

interest was transferred to appellee, her parents intended him to be merely a

placeholder. Specifically, she asserted her parents, in transferring the interest, were

maximizing their annual exclusion for purposes of estate and gift taxes; their ultimate

goal was to have appellee transfer the one-sixth interest to their living grandchildren and

not give appellee an indefinite ownership interest. Appellee maintained he was not

aware he was a mere placeholder until the divorce was filed.

      {¶9}   Appellant testified she and appellee discussed transferring his interest in

the Carroll County property in 2011, pursuant to the alleged intention of her parents.




                                            4
Appellee, however, was unwilling to transfer, but, according to appellant, he did not

dispute the plan to eventually transfer the interest. Moreover, appellant’s sister stated

she recalled hearing appellee and her father discussing the “pass through,” for the

benefit of the grandchildren.

       {¶10} Appellant hired Brent Tyler Kuwatch, a licensed real estate appraiser in

the state of Ohio. Mr. Kuwatch appraised the Carroll County Property with a market

value of $705,000.

       {¶11} With respect to appellant’s separate property, appellant’s parents gifted

numerous properties to her and her siblings.      Starting in 2006, the parties notified

appellant’s siblings and advised them they no longer wished to be joint owners. The

various properties were ultimately sold and appellee deposited the proceeds from the

sale in the parties’ joint accounts. These funds were therefore commingled with marital

assets. Appellant asserted appellee compelled her to sell the properties, which caused

a rift with her siblings. Appellee stated that appellant had problems with her siblings

prior to the sales and he believed selling the properties would eliminate the problems.

Between the proceeds from the sales of the properties, proceeds received from the

state of Tennessee in compensation for property taken by eminent domain, and other

income from separate-property interests, appellant received $2,242,836 through gifts

and inheritances from 2003 through 2014.

       {¶12} Both parties had access to their joint accounts, but appellee wrote nearly

all checks and managed all finances. Appellee was an active investor of both marital

and separate funds. And, according to appellant, appellee would frequently endorse

her name on checks and other financial documents without her knowledge or




                                           5
permission.    Sometime after 2007, appellee ceased depositing his income into the

parties’ joint account, which was used to fund family expenses, and commenced

dissipation of over $1,000,000 in appellant’s separate property. Appellee asserted he

treated all funds as “our” money and moved the funds to maximize investments.

      {¶13} Appellant retained John D. Davis, an expert in public accounting, forensic

accounting, and valuation analysis, to trace her separate property. Mr. Davis noted

three tracing methodologies employed by forensic accountants: direct tracing, lowest

intermediate balance, and proportionate share. Mr. Davis stated he used direct tracing

to identify the amounts going into the accounts and then utilized the lowest intermediate

balance to identify the assets that continued to exist as separate property. He noted he

did not use the proportional share approach because it assumes the deposited funds

are fungible; in this matter, he maintained, the cash in the accounts was not fungible,

but rather included both marital and separate property.

      {¶14} Mr. Davis also testified he used the lowest intermediate balance approach

because it provided for equitable recovery of the assets based on the parties’ intentions;

to wit, appellant’s intention to keep her separate property separate and appellee’s

financial intentions, circumstantially gleaned from his patterns of deposits, non-deposits,

and withdrawals from the family’s operating account(s).       Moreover, according to Mr.

Davis, the lowest intermediate balance approach assumes traced assets exist as long

as the account balance does not fall below the amount on deposit. Put differently, when

separate assets were deposited into the joint accounts, marital funds are utilized to pay

expenses first and, if the balance falls below the original amount in marital funds, the

separate property is still traceable, as long as it is not dissipated. Of the $2,242,836 in




                                            6
separate property appellant inherited, Mr. Davis was able to trace $1,075,907 of actual

funds located in accounts existing at the date of trial. In addition, Mr. Davis calculated

the traced funds passively accumulated $428,065 in interest, for a total of $1,503,972 of

total traced property, plus interest.

       {¶15} Appellee retained Robert Nemeth, a certified public accountant, a certified

valuation analyst, and a certified divorce financial analyst to trace the parties’ separate

property.   Mr. Nemeth utilized the proportional share methodology, which follows

transactions in an account and adjusts parties’ separate versus marital assets. The

tables used by Mr. Nemeth were prepared by appellee, at Mr. Nemeth’s direction. Mr.

Nemeth ultimately testified to $300,000 of “misclassifications,” (marital property rather

than appellant’s separate property), which impacted the amount to which the parties

were entitled. Mr. Nemeth concluded that appellant should be awarded $740,551 in

separate property.

       {¶16} After the hearing, the magistrate issued her decision.         She concluded

appellant should retain the Haywood County, Tennessee property, valued at

$1,856,943, and appellee was entitled to one-half the value of the property, i.e.,

$928,471.50. In so concluding, the magistrate found:

       {¶17} It is difficult to believe Defendant that the parties purchased this
             property purely as an investment with no consideration as to any
             family connection. While Defendant may have agreed to the
             purchase for the reasons he stated, instead of purchasing a farm in
             Iowa, the parties purchased a property that Plaintiff and her family
             visited in her childhood, a property that bordered property owned by
             Plaintiff’s parents and later gifted to the parties’ children. There is a
             reliable fair market value for the property. By allowing Plaintiff to
             retain the property and compensate Defendant his half, the parties
             are saving the cost of sale and avoiding potential real estate tax
             consequences as well as potential income tax consequences.




                                             7
       {¶18} The magistrate next concluded appellee should retain the one-sixth

interest in the Carroll County, Ohio property as well as the rents associated with the

same. In support, the magistrate found that had appellant’s parents intended to deed

appellee something different than the one-sixth ownership interest, they could have

attached conditions to the grant. The magistrate determined “[p]laintiff’s parents were

wealthy, tax conscious, and financially savvy. If they had intended to do anything other

than give defendant an interest in the property, they had the knowledge and the means

to do so.”

       {¶19} Next, the magistrate determined the traceable amount of separate

property to which appellant was entitled is $1,075,907, the amount traced by appellant’s

expert using the lowest intermediate balance method. She further determined appellant

should be entitled to $428,065 in passive interest based upon the actual rate of return

the separate funds would have generated.

       {¶20} The magistrate additionally recommended that “all marital property be

divided equally between the parties with the parties retaining the assets pursuant to

exhibit B.” Exhibit B included tables setting forth marital assets as well as separate

assets that were ostensibly not in dispute at the hearing.

       {¶21} Finally, the magistrate determined both parties are wealthy, well educated,

tax conscious, financially savvy, and competent professionals. And no evidence was

adduced to show appellant was unable to access the joint bank account or look out for

her own personal and financial interests. The magistrate thus found both parties are

capable of supporting themselves and no statutory duty of support was breached. The

magistrate also concluded appellee did not commit financial misconduct.




                                            8
       {¶22} The parties both filed objections to the magistrate’s decision, as well as

supplemental objections.     Appellee objected to the amount of traceable separate

property, along with interest, the magistrate awarded appellant; appellee further claimed

the magistrate erred in awarding the Haywood County, Tennessee real property to

appellant.    Alternatively, appellant asserted the magistrate committed error in

concluding appellee did not breach his statutory duty of support as well as her decision

that appellee did not commit financial misconduct. Appellant further objected to the

magistrate’s decision that appellee should retain the one-sixth interest in the Carroll

County, Ohio property, including the proceeds derived from the property.

       {¶23} After considering the parties’ objections, the trial court modified the

magistrate’s decision and adopted it as modified. In particular, the trial court agreed

that the value of appellant’s separate property is $1,075,907.        The court, however,

determined it did not “agree that plaintiff is entitled to interest or appreciation upon the

separate property determined by the lowest intermediate balance approach.” The court

did not expressly disagree with any remaining dispositional recommendation of the

magistrate.

       {¶24} Appellant now appeals assigning three errors. She first asserts:

       {¶25} “The trial court erred in failing to award appellant the $428,065 of actual

appreciation on her traced separate property in contravention of the magistrate’s

decision.”

       {¶26} A party’s “separate property” includes, among other things, “[a]ny 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




                                             9
have been given to only one spouse.” R.C. 3105.171(A)(6)(a)(vii). Furthermore,

“[p]assive income and appreciation acquired from separate property by one spouse

during the marriage” is separate property. R.C. 3105.171(A)(6)(a)(iii). “Passive income”

is defined as “income acquired other than as a result of the labor, monetary, or in-kind

contribution of either spouse.” R.C. 3105.171(A)(4).

       {¶27} In a divorce, “[t]he trial court’s role in dividing the property is to evaluate all

relevant facts and arrive at an equitable division. * * * ‘Equitable need not mean equal.’ *

* * We review a trial court’s division of property for an abuse of discretion.” Hood v.

Hood, 10th Dist. Franklin No. 10AP-999, 2011-Ohio-3704, ¶14, quoting Cherry v.

Cherry, 66 Ohio St.2d 348, 355 (1981).

       {¶28} In this case, Mr. Davis, using the lowest intermediate balance method,

traced $1,075,907 of appellant’s separate property that had not been dissipated. He

further testified that the interest earned on the invested property, totaled $428,065 in

investment returns, for a total of $1,503,972. The magistrate accepted the foregoing,

thereby concluding the combined investment returns were passive income, and

awarded appellant $1,503,972. Appellee objected to the magistrate’s recommendation,

challenging Mr. Davis’ use of the lowest intermediate balance approach as well as the

magistrate’s characterization of the interest earned on the separate property as passive

income.

       {¶29} In its judgment entry, the trial court concluded it did “not agree” with the

magistrate’s decision recommending appellant receive the interest traced using the

lowest intermediate balance approach.           The trial court did not elaborate on its

conclusion.   Given the facts and the lack of any basis for the trial court’s decision, we




                                              10
conclude the trial court erred in not awarding appellant the interest that was traceable to

her separate property.

       {¶30} In his report, Mr. Davis detailed the transfers, deposits and withdrawals

from the couple’s joint accounts as well as their individual accounts. The parties jointly

stipulated these transactions were accurate and properly identified.

       {¶31} Mr. Davis’ testimony indicates he calculated the interest or appreciation

based upon the actual rate and the traceable interest, as set forth in his report and his

testimony, i.e., $428,065. In his report, Mr. Davis further stated “[t]he separate property

in this analysis was also accumulating passive income based on investment returns. In

certain instances, because of the amount of subsequent deposits in the account, I did

not calculate the amount of investment income that should be attributed to the separate

property because of the time and cost involved in doing so.            Had I made these

computations, my conclusion of the value of separate property would be higher.” This

point illustrates that Mr. Davis’ conclusion regarding the amount of interest to which

appellant was entitled on her separate property was very conservative. Nevertheless,

Mr. Davis’ testified to the amount of actual interest accrued through investments made

with appellant’s separate property and his testimony is supported by figures set forth in

his report.

       {¶32} The trial court, in rejecting the magistrate’s decision to award appellant

$428,065 in passive income, merely stated “the court does not agree that plaintiff is

entitled to interest or appreciation upon the separate property determined by the lowest

intermediate balance approach.” The trial court did not support its disagreement with

any rationale and, in light of its acceptance of Mr. Davis’ use of the lowest intermediate




                                            11
balance approach to trace appellant’s separate property, the conclusion is

fundamentally arbitrary.         There was competent, credible evidence to support the

magistrate’s decision recommending that appellant is entitled to both $1,075,907 in

separate property as well as $428,065 in passive income from the interest returns on

that property. We therefore hold the trial court abused its discretion in failing to award

wife $1,503,972. The trial court’s judgment excluding the $428,065 of passive income

was error and we modify the trial court’s judgment to reflect appellant’s entitlement to

this separate property and affirm the judgment as modified.1

        {¶33} Appellant’s first assignment of error has merit.

        {¶34} Appellant’s second assignment of error provides:

        {¶35} “The trial court erred in failing to find that appellee committed financial

misconduct, which misconduct also violated his statutory duty of support to appellant,

resulting in a financial loss to appellant totaling $1,696,602.”

        {¶36} Here appellant argues appellee intentionally failed to support her out of

marital income and assets and, in doing so, committed financial misconduct in

dissipating her separate property to pay marital expenses. She maintains appellee’s

misuse of her separate property to satisfy marital liabilities and expenses amounts to

both a violation of his statutory duty to support as well as financial misconduct.

        {¶37} R.C. 3103.03(A) provides: “Each married person must support the

person’s self and spouse out of the person’s property or by the person’s labor. If a

married person is unable to do so, the spouse of the married person must assist in the

support so far as the spouse is able.”


1. It may be useful for the parties to offset the $18,000 appellee is owed from our disposition in Case No.
2019-G-0191 against the $428,065. If the parties elect to offset, appellant would be entitled to $410,065.


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      {¶38} Further, as it relates to the division of property in a domestic case,

financial misconduct has a specific meaning. It includes, but is not limited to “the

dissipation, destruction, concealment, nondisclosure, or fraudulent disposition of assets

* * *.” R.C. 3105.171(E)(4). Financial misconduct connotes some form of wrongdoing,

such as interference with the other spouse’s property rights with a wrongful

scienter. Taub v. Taub, 10th Dist. Franklin No. 08AP-750, 2009-Ohio-2762, ¶33; White

v. White, 5th Dist. Licking No. 15-CA-54, 2016-Ohio-2997, ¶13, citing Bucalo v. Bucalo,

9th Dist. Medina No. 05CA0011-M, 2005-Ohio-6319, ¶23.              In cases of financial

misconduct, “typically, the offending spouse * * * either profit[s] from the misconduct or

intentionally defeat[s] the other spouse’s distribution of marital assets.” Taub, supra, at

¶33; quoting Hammond v. Brown, 8th Dist. Cuyahoga No. 67268, 1995 WL 546903

(Sept. 13, 1995); see also Mikhail v. Mikhail, 6th Dist. Lucas No. L-03-1195, 2005-Ohio-

322, ¶28.

      {¶39} Appellant testified appellee wielded complete control over financial

matters in the couple’s relationship. And when she would receive checks relating to her

separate property, she would place them in appellee’s mail stack for deposit; she also

testified that, on occasions, such funds would be wire transferred at appellee’s behest.

Regardless, she stated she did not know what appellee did with the funds, even though

both parties had access to the couple’s joint account.

      {¶40} Appellant, along with appellee in certain cases, were joint owners of

various properties with appellant’s siblings.    In 2006, the couple alerted appellant’s

siblings and advised them that the couple no longer desired to be joint owners.

Appellant maintained appellee forced her to sell the properties and, she testified, he




                                            13
was very cruel to her if she did not follow his demands. According to appellant, a

significant rift arose between her and her siblings due to the sale of the properties. After

the sale in 2007 and 2008, the income was deposited by appellee in the couple’s joint

account. Appellant testified she thought appellee was investing her separate funds and

keeping them separate. She further asserted she did not authorize the funds to be used

to pay family expenses. Meanwhile, appellee began depositing his earnings into a

separate savings account. Appellant noted the shift in appellee’s depositing/investing

patterns occurred immediately following a confrontation she had with appellee regarding

seeking a separation or going to counseling.

       {¶41} Appellant described her relationship with appellee as one with little power

or control. She stated she was afraid of angering him and thus allowed appellee to

continue to manage the family’s finances without question.         She asserted she was

required to wear a worn-out coat and shopped at thrift stores because, despite the

couple’s wealth, appellee would not allow her to spend money.

       {¶42} Appellee testified that, prior to 2007, he had significant concerns with

being exposed to individual liability for medical malpractice. Even though he carried

malpractice insurance, he felt his exposure to potential liability would exceed his

coverage. As such, he did not want to place an abundance of marital funds in a joint

account. He therefore deposited most income into appellant’s individual account.

       {¶43} Appellee further testified that appellant and her siblings had strained

relationships well prior to the sale of the jointly-owned properties. He asserted, in an

effort to distance themselves from the problems, he and appellant decided to sever

appellant’s (and in some cases his own) interest in the properties by selling them.




                                            14
Because this created more tension, in 2006, he became concerned with appellant’s

exposure to lawsuits from her siblings. At or about this time, appellee noted tort reform

became law in Ohio. As such, his worries of exposure to excessive medical-malpractice

liability diminished, but his concern that appellant’s vindictive siblings would file suit

increased.     Appellee therefore began transferring assets from appellant’s individual

account to his name with the goal of isolating what he believed to be the couple’s assets

from appellant’s siblings.

       {¶44} Appellee admitted that he placed approximately $2,000,000 of appellant’s

separate funds into the joint account or other accounts not in appellant’s name. He also

stated, however, over the years, appellant never gave him any instruction to segregate

these funds.     He testified when appellant received the funds, some were wired, at

appellant’s direction, and some were placed by appellant in appellee’s “mail pile” for

deposit.   He testified he deposited most of the money into the parties’ joint family

account and, during this timeframe, the family had significant outgoing expenses,

including tuition for three children in private high school, and one child in college.   He

emphasized his purpose in investing was not to appropriate appellant’s separate

property, but to maximize returns and avoid loss to funds he characterized as “ours.”

       {¶45} In concluding no duty of support was breached and appellant did not

engage in financial misconduct, the magistrate stated there was no evidence

demonstrating appellant could not access the joint account or look out for her own

personal and financial interests. The trial court adopted this recommendation. Although

some significant dissipation occurred, appellee’s testimony regarding his management

of the separate and marital funds, while somewhat misguided occasionally, did not




                                            15
reflect a “wrongful scienter” or an attempt to intentionally defeat appellant’s property

distribution.   And, while appellant’s testimony suggested appellee sought to benefit

himself by surreptitiously commingling her funds while placing his income in a separate

account, this is not a necessary inference in light of his testimony.    We therefore hold

the trial court did not abuse its discretion in concluding appellee neither violated his duty

to support nor engaged in financial misconduct.

       {¶46} Appellant’s second assignment of error lacks merit.

       {¶47} Appellant’s third assignment of error provides:

       {¶48} “The trial court erred in failing to impose a constructive trust upon the one-

sixth interest in the Carroll County, Ohio property titled to appellee, and the associated

rents derived therefrom, for the benefit of the parties’ two daughters and appellant’s

nephew.”

       {¶49} Appellant asserts the trial court erred in adopting the magistrate’s decision

awarding the Carroll County property to appellee because the prior owners, appellant’s

parents, lacked the donative intent to create a valid gift. She further contends appellee

stood in a position of confidence with her parents and thus, as a fiduciary and family

member, a presumption of undue influence arose which required appellant to

demonstrate appellee acted free of coercion or fraud.

       {¶50} We first point out that appellant does not request this court to negate the

gift because she has some direct or specific interest in the property; rather, she seeks

the gift to be declared invalid and a constructive trust be placed on the interest for the

benefit of the now-surviving grandchildren of her parents.         She thus is making an

argument in a representative capacity for non-parties who allegedly have an interest in




                                             16
the property deeded to appellee. “[T]he fundamental requirement of standing is that the

party bringing the action must have a personal stake in the outcome of the controversy,

i.e., that it must be the injured party.” Deutsche Bank Natl. Trust Co. v. Holden, 147

Ohio St.3d 85, 2016-Ohio-4603, ¶32. Because appellant is not arguing the property

should be considered an aspect of the marital estate and thus appellant’s ownership

interest would be inequitable in relation to property distribution, it is not clear she has

standing to assert the instant argument, let alone obtain the relief requested. Still,

appellee did not raise the standing issue and thus we shall proceed to address the

merits of appellant’s argument.

       {¶51} The elements of a valid inter vivos gift require proof of the following: (1)

the donor must intend to make an immediate gift of the property; (2) the donor must

deliver the property to the donee; and (3) the donor must relinquish all dominion and

control of the property. Streeper v. Myers, 132 Ohio St. 322 (1937), paragraph one of

the syllabus.

       {¶52} Initially, there was no evidence that appellee stood in a fiduciary

relationship to appellant’s parents. The record indicates he had a friendly congenial

relationship with them. He testified he would visit appellant’s father weekly when they

lived near the parties. This congenial association, however, does not indicate appellant

stood in a special position of trust and confidence that would place appellee in the

position of a fiduciary.   We therefore decline to accept appellant’s argument that

appellee was required to rebut a presumption of undue influence vis-à-vis the gift.

       {¶53} Evidence was adduced that the donor, appellant’s mother, was alive at the

time the deed was executed and both of appellant’s parents signed the deed.           The




                                            17
deed, which listed appellee and five others as grantees, stated the donor has “given,

granted, remised, released, and forever quit-claimed” the property in question to the

grantees.    There were no conditions attached to appellant’s interest and the deed

demonstrates the intention of the donor to transfer a present possessory, one-sixth

interest in the property to appellee.      Accordingly, the deed facially satisfies each

requirement of a valid inter vivos gift.

       {¶54} Appellant cites her sister’s testimony, where she recalled a family meeting

wherein appellee and appellant’s father discussed and allegedly agreed that appellee

would eventually transfer his interest to grandchildren. Appellee, however, stated he

had no recollection of the meeting.        She also cites a previous instance in which

appellee acted in the capacity of a placeholder for appellant’s father in a separate piece

of real property.    In that instance, appellee acknowledged appellant’s father, after

transferring an interest to appellee in the property, presented him with a quitclaim deed

to sign away his interest., which he did. With respect to the Carroll County property,

appellee testified he was never instructed he was a mere placeholder and the first he

heard of the assertion was the initiation of the divorce proceedings. Moreover,

appellant’s father or mother never approached him and asked him to sign his interest in

the property away to another. Simply because he was arguably a placeholder in a

previous instance does not establish, in light of the language of the deed and the

inaction of appellant’s parents, that he must be a mere placeholder over the Carroll

County property.     And appellant’s assertion that the foregoing establishes fraud on

appellee’s behalf assumes what still requires some proof; namely, that the unconditional

language of the deed was actually conditional.




                                            18
       {¶55} Not surprisingly, the parties take completely opposing positions on this

issue. The trier of fact is in the best position to evaluate the credibility of the testimony

and evidence and adjudicate any conflicts arising therefrom.               See Hvamb v.

Mishne, 11th Dist. Geauga No. 2002-G-2418, 2003-Ohio-921, ¶18.            On this issue, the

magistrate agreed with appellee’s position that a valid, inter vivos transfer occurred.

The trial court agreed with the magistrate and adopted this conclusion. We cannot say

the trial court abused its discretion in doing so.

       {¶56} Appellant’s third assignment of error lacks merit.

       {¶57} For the reasons discussed in this opinion, the judgment of the Geauga

County Court of Common Pleas is modified and affirmed as modified.



THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.




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