[Cite as Cherconis v. Cherconis, 2016-Ohio-1140.]


STATE OF OHIO                    )                       IN THE COURT OF APPEALS
                                 )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

DAVID M. CHERCONIS                                       C.A. No.    14CA0086-M
                                                                     14CA0088-M
        Appellant

        v.
                                                         APPEAL FROM JUDGMENT
CAROLINE CHERCONIS                                       ENTERED IN THE
                                                         COURT OF COMMON PLEAS
        Appellee                                         COUNTY OF MEDINA, OHIO
                                                         CASE No.   13DR0036

                                DECISION AND JOURNAL ENTRY

Dated: March 21, 2016



        MOORE, Judge.

        {¶1}    David M. Cherconis (“Husband”) appeals from the judgment of the Medina

County Court of Common Pleas, Division of Domestic Relations. This Court affirms in part,

reverses in part, and remands this matter for further proceedings consistent with this decision.

                                                    I.

        {¶2}    Husband and Caroline Cherconis (“Wife”) originally were married on July 21,

1984. Four children were born to the Cherconises during their marriage, the oldest three of

whom are now emancipated. In 2007, the parties divorced. In the 2007 divorce decree, the trial

court awarded Husband the marital residence, ordered him liable for the associated mortgage

debt, and ordered that he pay Wife $29,000 as her share of the equity in the marital residence.

The decree further provided that Wife could reside in the marital home until Husband tendered

her equity payment, and that, if she chose to remain in the marital home, Husband would be

credited rent at the rate of $719.89 per month.
                                                2


       {¶3}    Subsequent to the 2007 decree, Wife continued to reside in the marital residence.

Thereafter, Husband returned to reside with Wife at the marital residence, and, in October of

2010, Husband and Wife remarried. However, in July of 2011, the parties separated, and they

have since lived apart. In June of 2012, the first mortgagee on the marital property filed suit

seeking to foreclose. Thereafter, Husband’s sister, Randi J. Schneider, obtained a personal loan

and paid off the mortgage balance on the home in the amount of $38,550. In 2013, Husband

filed a complaint for divorce. After filing for divorce, Husband quitclaimed his interest in the

marital residence to Ms. Schneider. Thereafter, the trial court joined Ms. Schneider as a party to

the action upon Wife’s motion.

       {¶4}    The case proceeded to a final contested hearing, where the 2007 divorce decree

was admitted as an exhibit. On August 25, 2014, the trial court issued the second divorce decree.

Husband appealed from the decree, and he now presents three assignments of error for our

review. We have re-ordered the assignments of error to facilitate our discussion.

                                               II.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       FAILING TO DETERMINE THAT []HUSBAND WAS ENTITLED TO
       PAYMENT OR SET-OFF FROM []WIFE DUE TO SEVERE PROPERTY
       DAMAGE OR WASTE TO HIS MOTOR VEHICLE WHICH THE TRIAL
       COURT ORDERED TO BE RETURNED TO []HUSBAND, WHILE SAID
       VEHICLE WAS IN HER POSSESSION, AND BY FURTHER ORDERING
       []HUSBAND TO PAY []WIFE HALF OF THE REMAINING VALUE OF
       THAT SEVERELY DAMAGED MOTOR VEHICLE.

       {¶5}    In his third assignment of error, Husband argues that the trial court abused its

discretion in failing to credit Husband for damage to his car and by ordering him to pay Wife

$300 for one-half of the value of the car. We disagree.
                                                 3


       {¶6}    “A trial court has broad discretion in making divisions of property in domestic

cases.” Budd v. Budd, 9th Dist. Summit No. 26132, 2013-Ohio-2170, ¶ 8, quoting Hines v.

Hines-Ramsier, 9th Dist. No. 09CA0022, 2010-Ohio-2996, ¶ 4. “Therefore, we will not reverse

a trial court’s decision regarding the division of property, absent an abuse of discretion.”

Sigman v. Sigman, 9th Dist. Wayne No. 11CA0012, 2012-Ohio-5433, ¶ 5, citing Briganti v.

Briganti, 9 Ohio St.3d 220, 222 (1984). The term “abuse of discretion” connotes “that the trial

court’s attitude [was] unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶7}    Here, the trial court concluded that the parties purchased a 1995 Crown Victoria

for $1,500 when they remarried in 2010. Thereafter, when the parties separated, Wife had

possession of the vehicle. Husband regained possession of the vehicle in 2013, and he claimed

that the car suffered damage while it was in Wife’s possession. At the final hearing, Husband

provided pictures of the condition of the car together with his testimony and the testimony of a

police officer, who had prepared a report documenting the damage to the car. Husband testified

that he believed the car to be worth $600 in its damaged state. Wife testified that the car was

damaged when the parties purchased it. The trial court concluded that Husband provided no

evidence that the car suffered the damage after the parties separated.

       {¶8}    Although Husband frames his third assignment as a challenge to the trial court’s

discretion in dividing marital property, in his argument in support, Husband essentially

challenges the weight the trial court afforded to the parties’ testimony. He maintains that the

court “was unreasonable or arbitrary * * * in rejecting [Husband’s] testimony that the 1995 Ford

Crown Victoria had been severely damaged while in [Wife’s] possession since July of 2011 and
                                                 4


accepting [Wife’s] testimony that the motor vehicle had those damages when it was purchased

by [Husband] in 2010[.]” When reviewing the manifest weight of the evidence:

       The [reviewing] court * * * weighs the evidence and all reasonable inferences,
       considers the credibility of witnesses and determines whether in resolving
       conflicts in the evidence, the [finder of fact] clearly lost its way and created such a
       manifest miscarriage of justice that the [judgment] must be reversed and a new
       trial ordered.

(Internal quotations omitted.) Fetzer v. Fetzer, 9th Dist. Wayne No. 12CA0036, 2014-Ohio-747,

¶ 21, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.

       {¶9}    Husband has provided this Court with no indication as to why the trial court

should have believed his testimony over that of Wife, except that he maintains that the car could

not have been driven with such extensive damage and maintains that it would not have been

purchased in such a condition. However, our review of the record reveals no evidence of

damage which we could say necessarily renders the car inoperable and no reason why it would

necessarily not have been purchased at the amount in question in the damaged state. Further,

aside from the parties’ competing testimony, there exists no evidence as to when any of the

damage occurred. We cannot say that the trial court clearly lost its way in in crediting Wife’s

testimony on this issue. See Eastley at ¶ 20.

       {¶10} Accordingly, Husband’s third assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       TREATING A $38,550 BANK LOAN OBTAINED BY [MS. SCHNEIDER] TO
       PAY OFF THE MORTGAGE DEBT OWED ON THE MARITAL RESIDENCE,
       IN ORDER TO SETTLE A PENDING FORECLOSURE CASE BROUGHT BY
       THE MORTGAGE HOLDER, AS AN INCREASE IN MARITAL EQUITY IN
       THE RESIDENCE, WHERE []HUSBAND TRAN[S]FERRED OWNERSHIP
       OF THE RESIDENCE TO HIS SISTER IN EXCHANGE FOR HER PAYMENT
       OF THAT MORTGAGE DEBT, AND BY ORDERING []HUSBAND TO PAY
       []WIFE THE SUM OF $19,275.
                                                 5


       {¶11} In his second assignment of error, Husband argues that the trial court erred in

concluding that the satisfaction of the mortgage was active appreciation on Husband’s equity

interest constituting marital property and in awarding Wife one-half of this amount as an increase

in the equity in the home. We agree.

       {¶12} As set forth above in our discussion of Husband’s third assignment of error, “A

trial court has broad discretion in making divisions of property in domestic cases.” Budd, 2013-

Ohio-2170, at ¶ 8, quoting Hines, 2010-Ohio-2996, at ¶ 4. R.C. 3105.171(C)(1) provides, in

relevant part, that “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.” However,

unlike “marital property,” “‘separate property’ should be disbursed to the spouse who acquired it

unless the court decides to make a distributive award of all or part of it to the other spouse.”

Charles v. Charles, 9th Dist. Lorain No. 96CA006396, 1997 WL 28247, *3 (Jan. 22, 1997),

citing R.C. 3105.171(D) and R.C.3105.171(E)(1).

       {¶13} “Marital property” includes all income and appreciation on separate property, due

to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred

during the marriage. R.C. 3105.171(A)(3)(a)(iii). However, passive income and appreciation

acquired from separate property by one spouse during the marriage, remains that spouse’s

separate property. R.C. 3105.171(A)(6)(a)(iii), (D). Although the division of marital property is

reviewed for an abuse of discretion, “[t]he classification of property as marital or separate is a

question of fact that this Court reviews under a civil manifest weight standard.” Fetzer v. Fetzer,

9th Dist. Wayne No. 12CA0036, 2014-Ohio-747, ¶ 21, quoting Hahn v. Hahn, 9th Dist. Medina
                                                 6


No. 11CA0064-M, 2012-Ohio-2001, ¶ 20, citing Louis v. Louis, 9th Dist. Wayne No.

10CA0047, 2011-Ohio-4463, ¶ 4. When reviewing the manifest weight of the evidence:

       The [reviewing] court * * * weighs the evidence and all reasonable inferences,
       considers the credibility of witnesses and determines whether in resolving
       conflicts in the evidence, the [finder of fact] clearly lost its way and created such a
       manifest miscarriage of justice that the [judgment] must be reversed and a new
       trial ordered.

(Internal quotations omitted.) Fetzer at ¶ 21, quoting Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, ¶ 20. Here, although Husband frames his argument in terms of the trial court

abusing its discretion, his challenge pertains to the trial court’s classification of the mortgage

payoff as marital property. Accordingly, we will review his argument under the manifest-weight

standard. See Fetzer at ¶ 21.

       {¶14} In the decree, the trial court determined that the term of the parties’ second

marriage for purposes of the property division was October 22, 2010 to January 14, 2014, the

date of the final hearing. With respect to the marital residence, the trial court noted that the

division of the parties’ assets was complicated by the parties’ failure to execute the terms of the

original divorce decree. The trial court also noted that the division of the marital property was

complicated by Husband’s transfer of the marital residence to Ms. Schneider, an action which the

trial court stated was in violation of a mutual restraining order. The trial court noted that

Husband had failed to pay Wife the $29,000 equity payment as ordered in the first decree, and

Wife had exercised her option to remain at the marital residence, with $719.89 per month being

credited toward the $29,000 equity payment. The trial court concluded that, after appropriate

crediting, Husband still owed Wife $3,803.05 for her equity in the home. Accordingly, the court

determined that the marital residence was Husband’s separate property because he was awarded

the marital residence in the first divorce, making it premarital to the second marriage. However,
                                                7


Wife also had a separate property interest in the marital residence in the amount of $3,803.05

still owed to her as her share of marital equity of the residence from the first divorce, which was

her separate property at the time of the second marriage. Husband does not challenge this

portion of the trial court’s order.

        {¶15} However, the trial court then proceeded to conclude that Ms. Schneider’s payment

of the mortgage debt associated with the marital residence was “appreciation” in the equity of the

home that occurred during the second marriage. Because the pay-down of the mortgage was

accomplished due to Husband’s “solicit[ation]” of Ms. Schneider’s assistance during the

marriage, the trial court determined that this “appreciation” was not passive, and thus constituted

marital property. See R.C. 3105.171(A)(6)(a)(iii), (A)(3)(a)(iii). Accordingly, the trial court

awarded Wife one-half of the $38,550 pay-off as her share of marital “appreciation[.]”

        {¶16} Although the trial court used the term “appreciation” to refer to an increase in

equity, these terms are not properly interchangeable. “Appreciation” refers to the increase in the

value of an asset, not the increase of equity in that asset. See Black’s Law Dictionary 110 (8th

Ed.2004); see also Moore v. Moore, 11th Dist. Portage Nos. 2012-P-0136, 2012-P-0138, 2013-

Ohio-5649, ¶ 29 (a pay down of liabilities encumbering real property increases equity but does

not result in “appreciation”). An asset is “[a]n item that is owned and has value.” (Emphasis

added.) Black’s at 125. “Equity,” as that term was used by the trial court here, relates to “the

amount by which the value of or an interest in property exceeds secured claims or liens; the

difference between the value of the property and all encumbrances upon it[.]” Black’s at 580.

Accordingly, although “appreciation” may cause an increase in equity, the terms are not

synonymous. We clarify the distinction in these terms to stress that there existed no evidence of

any appreciation, i.e. increase in the value, of the marital residence during the second marriage.
                                                8


Compare Middendorf v. Middendorf, 82 Ohio St.3d 397, 398 (1998) (addressing appreciation of

stockyard in which Husband had a premarital interest).

       {¶17} Despite its utilization of the term “appreciation[,]” it appears that the trial court

essentially determined that the decrease in Husband’s separate mortgage debt was the result of

marital effort, entitling Wife to a credit. See Ray v. Ray, 9th Dist. Medina No. 03CA0026-M,

2003-Ohio-6323, ¶ 8; see also Flynn v. Flynn, 196 Ohio App.3d 93, 2011-Ohio-4714, ¶ 18 (12th

Dist.) (paydown of mortgage attributable to marital effort is marital equity). Husband argues that

the trial court should have treated the payoff as a sale, as he quitclaimed his interest in the

property to Ms. Schneider in exchange for the payoff, because the house was subject to a

foreclosure proceeding. Accordingly, Husband maintains that the payoff of the mortgage was

acquired through his transfer of his separate property interest.                See also R.C.

3105.171(A)(6)(a)(ii), (A)(6)(b).   Essentially Husband is arguing that his separate property

merely changed in form from his separate property interest in the marital residence to the payoff

of the mortgage obligation. We agree.

       {¶18} Here, the property interest at issue is the reduction of Husband’s separate

mortgage debt. The trial court noted that “on January 22, 2013 and through his sole efforts,

[Husband] solicited Ms. Schneider’s help to pay off the mortgage on the home and on February

24, 2013, he unilaterally violated the mutual restraining order by transferring title of the

residence to Ms. Schneider. Whether his intent was to save the house from foreclosure, as he

testified, or whether his real motivation was to thwart any claims of interest by []Wife is

irrelevant. His efforts were successful and now the marital residence is unencumbered by debt.”

       {¶19} Despite the undisputed evidence presented at the final hearing that Husband

transferred his interest in the property to Ms. Schneider through quitclaim deed, the trial court
                                                 9


appears to have disregarded that transaction to conclude that there was an increase in an equity

interest retained by Husband. This determination is not supported by any of the evidence before

the trial court. The testimony of Husband and Ms. Schneider, which was undisputed, and in fact

recognized by Wife at trial, was that Husband quitclaimed his interest in the marital home to Ms.

Schneider in exchange for her paying off the mortgage on the property. Accordingly, there was

no evidence before the trial court that Husband retained an interest in the real property for which

there could be any increase in equity, whether it be achieved through marital effort or otherwise.

       {¶20}     We emphasize that nothing in our opinion should be read as condoning a party’s

violation of a court order, and the trial court was free to sanction Husband if that was its

intention. Instead, our focus is on the evidence speaking to Husband’s increase of equity, in

accordance with the trial court’s determination, as this purported increase in equity served as a

fundamental basis for the trial court’s award of half of that equity to Wife.

       {¶21} Based upon the foregoing evidence presented at the final hearing, we conclude

that the trial court clearly lost its way in determining that Husband’s equity in the marital

residence increased, where it was not disputed, and the trial court appears to have accepted, that

Husband transferred his interest to Ms. Schneider in consideration of her payment of his separate

mortgage debt. Husband’s second assignment of error is sustained. On remand, the trial court is

ordered to vacate the $19,275 award to Wife attributable to Ms. Schneider’s payment of

Husband’s separate property debt, and make any adjustments necessary to the property division

as are within its discretion to make.
                                                10


                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       AWARDING INDEFINITE SPOUSAL SUPPORT TO []WIFE IN THE
       AMOUNT OF $340 PER MONTH UNTIL THE EARLIER OF THE DEATH OF
       EITHER PARTY, WIFE’S REMARRIAGE, OR WIFE’S CO-HABITATION
       WITH AN UNRELATED ADULT MALE.

       {¶22} In his first assignment of error, Husband contends that the trial court erred in

ordering him to pay Wife $340 per month in spousal support for an indefinite period.

       {¶23} “[I]n determining whether spousal support is appropriate and reasonable, the court

must consider, among other factors, ‘[t]he relative assets and liabilities of the parties * * * .’”

Fetzer, 2014-Ohio-747, at ¶ 60, quoting Braidy v. Braidy, 9th Dist. Summit No. 26608, 2013-

Ohio-5304, ¶ 16, quoting R.C. 3105.18(C)(1)(i). Accordingly, based upon our resolution of

Husband’s second assignment of error, this matter must be remanded to the trial court for

reassessing the property division. See id. Therefore, we conclude that our review of the spousal

support award is premature, and we decline to address it.

                                                III.

       {¶24} Husband’s third assignment of error is overruled, and Husband’s second

assignment of error is sustained. Our resolution of Husband’s second assignment of error

renders our review of Husband’s first assignment of error premature. The decision of the trial

court is affirmed in part, and reversed in part, and this matter is remanded to the trial court for

further proceedings consistent with this decision.

                                                                       Judgment affirmed in part,
                                                                                reversed in part,
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.
                                                11


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     CARLA MOORE
                                                     FOR THE COURT



SCHAFER, J.
CONCURS.

CARR, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶25} I would sustain Husband's third assignment of error. At the outset, Wife did not

file an appellate brief. Therefore, we may accept the facts and issues as stated in Husband's

appellate brief as correct and reverse the judgment if Husband's brief reasonably appears to

sustain such action. See App.R. 18(C). During the pendency of the divorce proceeding, Husband

filed a motion for the court to order the return of a 1995 Crown Victoria automobile he claimed

as separate property. The magistrate who heard the motion ordered Wife to return the car to

Husband by leaving it at a location in Brunswick for him to pick up.
                                                12


       {¶26} Instead of leaving the car in Brunswick though as she was ordered, Wife left the

car in a different location in Medina Township. Husband testified at the hearing that Wife

severely damaged the car before she returned it to him. Upon discovering the damage, Husband

took photographs of the claimed damage and filed a police report. The officer who took the

report testified at the hearing and confirmed the reported damage. According to the evidence at

trial, all of the knobs on the dashboard of the car were broken off, including the knobs for the

windshield wipers and the lights. In addition, the front driver’s door would not close; the gas

cover door was missing; the gas release button was broken on the inside of the driver’s door;

the trunk key was broken off inside the lock on driver’s door, the trunk would not open; the

ashtray/cup holder component was ripped out/missing with wires hanging down; the glove box

was broken with the door flying open and swinging; the backseat passenger’s roof handle behind

the driver’s seat was broken and hanging down; and the rear view mirror was missing. Wife

claimed the car was in this state at the time of purchase and no additional damage was done.

       {¶27} Although as a reviewing court we defer to the finder of fact, in reviewing the

weight of the evidence and credibility we are not forced to accept the incredible as true. State v.

Apanovitch, 33 Ohio St.3d 19, 23-24 (1987). I find it incredible that anyone would purchase a

car in this condition and, moreover, drive it in that condition for three years without a rearview

mirror or knobs to control the lights and windshield wipers, for example. Moreover, it seems

implausible and incredible to me that all of the knobs on the dashboard were broken off or

missing without an intentional act being done. Consequently, I would sustain Husband’s third

assignment of error.

       {¶28} I concur with the remainder of the opinion.
                                         13


APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

CAROLINE CHERCONIS, pro se, Appellee.
