Seybert v. Seybert

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[Cite as Seybert v. Seybert, 2001-Ohio-7066.] COURT OF APPEALS ELEVENTH DISTRICT TRUMBULL COUNTY, OHIO JUDGES DANIEL LEE SEYBERT, Plaintiff-Appellee, HON. DONALD R. FORD, P.J., HON. ROBERT A. NADER, J., HON. DIANE V. GRENDELL, J. - vs CASE NO. 99-T-0119 MADELINE C. SEYBERT, et al., OPINION Defendant-Appellant. CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 97 DR 579 JUDGMENT: Affirmed. ATTY. PATRICIA A. MORRIS 412 Boardman-Canfield Road Boardman, OH 44512 ATTY. DAVID J. GERCHAK 3855 Starr Centre Drive, #3 Canfield, OH 44406 (For Plaintiff-Appellee) (For Defendant-Appellant) 2 GRENDELL, J. {¶1} Madeline C. Seybert ( appellant ) appeals the August 4, 1999 judgment entry by th Trumbull County Court of Common Pleas, Domestic Relations Division, issuing a final decree o divorce. For the following reasons, we affirm the decision of the lower court. {¶2} Appellant and Daniel Seybert ( appellee ) were married on May 16, 1980. N children were born of their marriage. On September 16, 1997, appellee filed a complaint for divorc Appellee also named RMI Titanium Company ( RMI Titanium ) and RMI Employees Credit Unio ( RMI Credit Union ) as third party defendants because they held funds in the name of the partie and/or appellant. On September 19, 1997, the trial court enjoined appellant and appellee from selling, removing, withdrawing, or disposing of property accumulated during their marriage or an other asset, other than funds for their usual and customary living expenses, including for leg representation. Appellant filed an amended answer and counterclaim for divorce on February 5 1998. {¶3} The matter proceeded to trial on February 25, 1999, February 26, 1999 and June 1999. A final divorce decree was filed on August 4, 1999. The trial court determined that th separation/termination date of the marriage was September 1, 1997. Additionally, the trial cou found that the parties individual retirement benefits, accrued during their marriage, were marit assets, subject to equal division. Next, in relation to the 1974 Porsche 914, retained by appellant an valued at nine thousand dollars ($9,000), the trial court determined that it was marital property an ordered appellant to pay appellee four thousand five hundred dollars ($4,500), representing his ha interest. In regard to the 1993 Chevrolet pick-up truck, retained by appellee and valued at eigh 3 thousand five hundred dollars ($8,500), the trial found it was martial property and ordered appelle to pay appellant $4,250, representing her half interest. As to the 1982 Harley Davidson motorcycl sold by appellee for five hundred dollars ($500) and valued at $3,650, the trial court determined was martial property and ordered appellee to pay appellant $1,825, representing her half interest i its value. {¶4} Finally, as to the certificates of deposits with account numbers 93127 and 45717, th trial court found that they were appellant s separate property and were funded by money that sh received from her mother as an early inheritance gift. As to the remaining certificates of deposi the trial court determined that they were marital property, subject to equal division, because appellan was unable to trace them as her separate property. {¶5} On September 3, 1999, appellant filed a timely appeal, asserting three assignments o error.1 At this time, we note that appellant s brief fails to reference those portions of the record upo which she relies. App.R. 16 provides that any references to parts of the record in an appellate brie must be accompanied by citations to the record. A reviewing court is not required to search th record for evidence to support an assignment of error. See Gregg v. Gregg (Nov. 21, 1997), Portag App. No. 96-P-0263, unreported, 1997 Ohio App. LEXIS 5241, at 8. In the interest of justice, w will consider appellant s alleged errors. Appellant s assignments of error will be set out as each on is reviewed. {¶6} 1. We begin with appellant s first assignment of error: Regarding the other defendants in the instant case, on April 24, 2000, upon remand, the trial court issued a judgment entry, dismissing RMI Titanium. The trial court also stated that RMI Credit Union remained a party, pending the division of the funds; however, the August 4, 1999 divorce decree was a final, 4 {¶7} [1.] The trial court abused its discretion by failing to consider the evidence an testimony produced at trial that clearly demonstrated that the plaintiff/appellee committed financi misconduct throughout the marriage and during the pendency of the divorce proceedings. {¶8} In appellant s first assignment of error, appellant contends the trial court erred when awarded appellee fifty (50) percent of their marital assets and fifty percent of certain separat property because appellee s actions gave rise to an issue of the equitable division of the property Appellant posits that the award of property should have been uneven and in her favor because th trial court failed to give proper weight to the evidence of appellee s financial misconduc Specifically, appellant asserts that the trial court failed to consider or even mention appellee s action pertaining to the 1993 Chevrolet pick-up truck and the 1982 Harley Davidson motorcycle that wer sold for far less than their values immediately before the divorce. Appellant claims that appelle committed fraud by attempting to destroy any marital claim on that property. Finally, appellant ave that the testimony showed that appellee spent his money on liquor while she used her funds t support the household, pay the bills, and buy appellee s vehicles. {¶9} Briefly, it is necessary to point out that the arguments raised in appellant s fir assignment of error refute the trial court s equal division of the property that it determined to b marital. Appellant s second assignment of error raises arguments as to the trial court s finding th certain property was marital and not separate. A trial court has broad discretion in determinin the equitable division of marital property based upon the facts and circumstances. Bisker v. Biske (1994), 69 Ohio St.3d 608, 609; Bugos v. Bugos (Oct. 15, 1999), Trumbull App. No. 98-T-014 appealable order, pursuant to Civ.R. 54(B). 5 unreported, 1999 Ohio App. LEXIS 4875, at 5-6. When reviewing the equity of a division o property, an appellate court is limited to determining whether, under the totality of the circumstance the trial court abused its discretion in dividing the marital property. Holcomb v. Holcomb (1989), 4 Ohio St.3d 128, 131. Abuse of discretion connotes more than an error of law or judgment; rather, implies that the trial court s attitude is unreasonable, arbitrary or unconscionable. Blakemore Blakemore (1983), 5 Ohio St.3d 217, 219. An appellate court must be vigilant in ensuring the tri court s determination is fair, equitable, and in accordance with the law; however, an appellate cou must refrain from the temptation of substituting its judgment for that of the trier-of-fact, unless th trial court s decision amounts to an abuse of discretion. Martin v. Martin (1985), 18 Ohio St. 3 292, 295. {¶10} The division of marital property is equal, unless such a division would be inequitabl R.C. 3105.171(C)(1). A potentially equal division of the marital property should be the startin point of a trial court s analysis. Martin, supra, at 294; Cherry v. Cherry (1981), 66 Ohio St. 2d 34 paragraph one of the syllabus. If a spouse engaged in financial misconduct, including, but no limited to, the dissipation, destruction, concealment, or fraudulent disposition of assets, then a tri court may compensate the other spouse with a distributive award or with a greater award of th marital property. R.C. 3105.171(E)(3). The party making the allegation of financial miscondu bears the burden of proving such misconduct. Czup v. Czup (Sept. 17, 1999), Ashtabula App. No 98-A-0046, unreported, 1999 Ohio App. LEXIS 4324, 18. {¶11} It is necessary to keep in mind that a trial court is in the best position to view th witnesses and observe their demeanor, gestures, and voice inflections in order to assess the 6 credibility and weigh the testimony. State ex rel. Pizza v. Strope (1990), 54 Ohio St.3d 41, 45-46 citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. In the event that the evidence susceptible to more than one interpretation, a reviewing court must construe it consistently with th trial court s judgment. Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 226. A reviewing cou must defer matters of witnesses credibility to the trier of fact. Babka v. Babka (1992), 83 Ohi App.3d 428, 436. {¶12} In the case sub judice, on September 19, 1997, the trial court issued a restrainin order, enjoining appellant and appellee from selling, removing, withdrawing, or disposing o property accumulated during their marriage or any other asset, other than funds for their usual an customary living expenses, including their legal representation. Appellant alleges that appelle committed fraud by selling the 1982 Harley Davidson motorcycle and the 1993 Chevrolet pick-u truck to destroy her marital claim on that property. Appellant adds that appellee was an alcoholic fo the first fifteen years of their marriage. {¶13} Appellee testified that he sold the 1982 Harley Davidson motorcycle before th divorce for five hundred dollars. Appellee denied the allegations that he improperly sold it since h had attempted to sell it several times before. Appellant acknowledged that appellee tried to sell before. Appellee stated that his reason for selling the motorcycle was to obtain legal representatio for his divorce. Appellee also indicated that he had no objections to appellant receiving her share o the motorcycle s value, which was ($3,650). The final divorce decree reflects the equal division o the motorcycle s value. {¶14} As to the 1993 Chevrolet pick-up truck, appellee testified that used the truck a 7 collateral when he borrowed one thousand dollars ($1,000) from a neighbor/friend so that he coul obtain legal representation for his divorce. Appellee stated that he transferred the truck s title to h neighbor/friend; however, once he paid the debt, the title was transferred back to him. The recor contains a copy of the truck s title, showing that it was transferred back to appellee. The judgmen entry demonstrates that the trial court ordered the equal division of the truck s value. Additionally as to appellant s allegations of alcoholism, appellee denied drinking a lot and stated that he stoppe drinking completely in 1993. {¶15} Further, appellee asserted his own allegation that appellant placed the marital assets i the hands of others. Appellant testified she transferred money from her profit sharing account int her daughter s account; however, she did not think that this was a violation of the restraining orde because it was income that she received after appellee left. Appellant subsequently indicated th this money was for income that she earned in 1997. Appellant also testified about a couch an refrigerator that were removed from the marital residence, which she stated were damaged during th fire in 1987 and did not think this was a violation of the restraining order. {¶16} The trial court was in the best position to determine the witnesses credibility an weigh the evidence. There is no indication that the trial court ignored aspects of the evidenc presented. Even assuming appellee s actions amounted to financial misconduct, the inclusion of th term may in R.C. 3105.171(E)(3) indicates that a trial court is granted discretion in compensating spouse with a greater award of the marital property or with a distributive award. See Huener Huener (1996), 110 Ohio App.3d 322, 326; Leister v. Leister (Oct. 23, 1998), Delaware App. No 97CA-F-07027, unreported, 1998 Ohio App. LEXIS 5166, at 11. We cannot say the trial court 8 decision to equally divide the marital property between appellant and appellee constitutes an abuse o discretion. We may not substitute our own judgment. Appellant s first assignment of error without merit. {¶17} [2.] The trial court erred by awarding the appellee half of the appellants [sic certificates of deposits and half the value of the Porsche 914 that the appellant owns when th evidence at trial clearly established that the property was the separate property of the appellant. {¶18} In appellant s second assignment of error, appellant claims that the trial court erre when it awarded appellee half of her certificates of deposit ( CDs ). Appellant posits that there wa a preponderance of evidence to show that the funds for one CD were from her personal injur lawsuit. With regard to the Porsche 914, appellant argues that it was bought and financed by her son Appellant contends that it was titled in her name only for insurance reasons and that she finishe making the payments when her son became unemployed, but she expected that he would pay he back. {¶19} In a divorce proceeding, R.C. 3105.171(B) requires a trial court to identify th separate property and marital property of the parties. When reviewing a trial court s designation o property as marital or separate, an appellate court applies a manifest weight of the evidence standar of review. Okos v. Okos (2000), 137 Ohio App.3d 563, 596-570, citing Barkley v. Barkley (1997 119 Ohio App.3d 155, 159; Zeefe v. Zeefe (1998), 125 Ohio App.3d 600, 614. On appeal, judgment of a trial court will not be reversed as being against the manifest weight of the evidence it is supported by competent and credible evidence. Fletcher v. Fletcher (1994), 68 Ohio St.3d 464 468; Glick v. Glick (1999), 133 Ohio App. 3d 821, 829. 9 {¶20} R.C. 3105.171(A)(3)(a)(i) provides that marital property is, among other things: {¶21} All real and personal property that currently is owned by either or both of th spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquire by either or both spouses during the marriage. (Emphasis added.) {¶22} On the other hand, separate property includes, inter alia, an inheritance by one spous acquired during the course of the marriage; any real or personal property or interest on such propert acquired by a spouse prior to the marriage; compensation to a spouse for a personal injury; any gi of real or personal property or interest on such property, given to one spouse after the marriage. R.C 3105.171(A)(6)(a). The commingling of separate property with marital property does not destroy th identity of the separate property, provided the separate property is traceable. R.C 3105.171(A)(6)(b); see, also, Peck v. Peck (1994), 96 Ohio App.3d 731, 734. {¶23} This court has held that the party seeking to have property labeled as separat property, bears the burden of proof by a preponderance of the evidence. Matic v. Matic (July 27 2001), Geauga App. No. 2000-G-2266, unreported, 2001 Ohio App. LEXIS 3360; Letson v. Letso (Sept. 30, 1997), Trumbull App. No. 95-T-5356, unreported, 1997 Ohio App. LEXIS 4445, 8; se also, Zeefe, supra, 125 Ohio App.3d at 614; Okos, supra, 137 Ohio App.3d 563; Peck, supra, 9 Ohio App.3d at 734.2 {¶24} In the instant case, the trial court determined that the 1972 Porsche 914 and all CD except accounts 93127 and 45717, were marital property. Appellant is obviously not contesting th 2. As an aside, a spouse, who is asserting that separate property is a gift, bears the burden of proving by clear and convincing evidence that it was gifted to only one spouse. 10 CDs with account numbers 93127 and 45717 that were determined to be her separate property. Ou focus is on the remaining CDs and the Porsche. {¶25} We begin with the 1972 Porsche 914, valued at nine thousand dollars ($9,000 During the course of their marriage, appellant testified that her son bought the vehicle and that sh merely co-signed for the loan. However, appellant stated that the Porsche was titled in her name an that she made most of the payments. Although appellant s son testified that the Porsche was his, h also stated that it was titled in appellant s name and that appellant took over the payment Additionally, the vehicle was kept in the garage of the marital residence. Appellant did not offer an testimony or evidence to show that the payments that she made for the Porsche were from he separate funds. {¶26} Upon review of the record, the weight of the evidence supports the trial court determination that the Porsche 914 is marital property. Appellant bore the burden of demonstratin by a preponderance of the evidence that the Porsche was her separate property. However, th evidence demonstrated that while it was titled in appellant s name, appellant made most of th payments throughout the course of their marriage using marital funds, and that the vehicle wa housed at the marital residence. There was no evidence, let alone a preponderance of the evidenc demonstrating that appellant used her separate property to make the payments. As stated, marit property is property, which is currently owned by either or both of the spouses, and, which wa acquired by either or both spouses during the marriage. We cannot say the classification of th Porsche as marital property was against the manifest weight of the evidence. {¶27} Next, we address those CDs that were classified as marital property. The CDs wit 11 account numbers 93127 and 45717 are not at issue. The trial court determined that the funds for th CDs with account numbers 93127 and 45717 were acquired from two $5,000 early inheritanc gifts to appellant from her mother. The testimony and evidence, pertaining to these CDs, is no relevant to our review of the remaining CDs classified as marital property. {¶28} Appellant testified that, in January 1988, she received approximately eleven thousan two hundred dollars ($11,200) as a settlement for a personal injury lawsuit, resulting from a ca accident that involved her. Appellant stated that Debora Witten represented her in the person injury settlement. However, appellant read a letter from Debora Witten stating that there were n records that she represented appellant and that she did not recall such a suit in 1987. Appellan testified that her personal injury lawsuit settlement check was deposited on January 12, 1988 at RM Credit Union. An exhibit admitted into evidence shows a deposit of eleven thousand three hundre dollars ($11,300) on January 12, 1988 into the parties main share account. Appellant testified th her personal injury lawsuit settlement was subsequently used to buy a ten thousand dollar ($10,000 CD. Exhibits admitted into evidence show that, on April 25, 1988, $10,000 was transferred from the parties main share account at RMI Credit Union into a CD. However, appellant also testifie that an insurance check for the fire at the marital residence, in a similar amount, was received an deposited at RMI Credit Union around the same time. Appellant stated that the money from the fir insurance check went towards rebuilding the house. There was no other testimony by appellan concerning the traceability of the other CDs from her alleged separate property. {¶29} Upon thorough review of the record, although there were numerous exhibits admitte into evidence concerning the parties financial statements, there is no clear evidence showing that th 12 funds for the remaining CDs were acquired using appellant s separate property. The only attemp that appellant made to trace funds was with her personal injury settlement check. Howeve appellant was not able to demonstrate, by a preponderance of the evidence, that the funds from he personal injury settlement check were transferred into a ten thousand dollar ($10,000) CD on Apr 25, 1988. An RMI account statement of the parties main account shows a deposit of eleve thousand four hundred dollars ($11,400) on December 2, 1987 and a deposit of eleven thousan three hundred dollars ($11,300) on January 12, 1988. However, the transfer of ten thousand dollar ($10,000) from the parties main share account into a CD occurred on April 25, 1988. Further, o the same day as the deposit of eleven thousand three hundred dollars ($11,300) on January 12, 198 there were three withdrawals, totaling $5,663.54. The commingling of separate property with marit property does not destroy the identity of separate property; however, separate property must b traceable. The evidence presented by appellant did not prove by a preponderance of the evidenc that the remaining CDs were traceable to her separate property. We cannot say that the tri court s decision to classify the remaining CDs as marital property was against the manifest weight o the evidence. Appellant s second assignment of error is without merit. {¶30} [3.] The trial court erred by awarding the appellee half of the value of appellants [sic 401K plan when the appellee came to the court with unclean hands. {¶31} Finally, in appellant s third assignment of error, appellant asserts that the trial cou erred in awarding appellee fifty percent of her 401K plan since appellee initiated the divorce actio and came to court with unclean hands. Appellant again argues that appellee committed fraud an deception with the assets of the marriage, i.e., the vehicles that were transferred before he filed fo 13 divorce and his waste of funds during their marriage. {¶32} Appellant s argument pertaining to appellee s unclean hands, resulting from h fraud and deception with the vehicles that were transferred and his waste of funds during th marriage, was already addressed in appellant s first assignment of error. As we stated, the trial cou was in the best position to determine the witnesses credibility and weigh the evidence. W determined that the trial court did not abuse its discretion in ordering an equal distribution of th marital property. Further, pursuant to R.C. 3105.171(A)(3)(a)(i), marital property includes all re and personal property that is currently owned by either or both spouses and that was acquired durin the marriage, including, but not limited to, the retirement benefits of the spouses. {¶33} In the instant case, the parties were married on May 18, 1980. The trial cou determined that the separation date of the marriage was September 1, 1997. Appellant does not rais argument as to the date of separation. The trial court ordered that the parties retirement benefi from their respective employers, from May 16, 1980 through September 1, 1997, be equally divide This included appellant s 401K retirement savings plan through RMI Titanium. Appellant testifie that this 401K plan was established during their marriage in 1987. Appellant presented no evidenc let alone a preponderance of the evidence, to show that the 401K plan was traceable to her separat property. The trial court did not err in classifying the 401K retirement plan and the parties othe retirement benefits as marital property. Appellant s third assignment of error is without merit. {¶34} For the foregoing reasons, appellant s three assignments of error are without meri The judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division, affirmed. 14 JUDGE DIANE V. GRENDELL FORD, P.J., NADER, J., concur.

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