Drummer v. Drummer
2012 Ohio 3064
Ohio Ct. App.2012Background
- William and Shirley Drummer married on July 28, 1994 and have one minor child.
- William filed for divorce in June 2010; Shirley counterclaimed in September 2010.
- At a May 2011 hearing, the parties reached agreement on some property division and Shirley was designated the residential parent.
- The trial court found the marital residence equity, located at 21023 State Route 15, and a 955 John Deere tractor to be marital property.
- The court imputed minimum wage income to both parties for child-support calculations, in addition to pension distributions.
- Shirley cross-appealed asserting a pre-existing common-law marriage, inequitable beginning date, and pension-MAR duration issues; the court denied these.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Residence equity as marital property | William: equity is his separate property; traceable down payment, pre-marital. | Shirley: ongoing contributions transformed equity into marital property. | Residence equity is marital property. |
| Tractor as marital property | William: tractor acquired pre-marriage; separate property. | Shirley: purchase date post-dates marriage; tractor should be marital. | Tractor is marital property. |
| Imputation of minimum wage for child support | William contends no express finding of voluntary unemployment/underemployment; retirement should not impute income. | Shirley: court properly imputes income based on potential earnings. | Court did not abuse discretion; imputing minimum wage income affirmed. |
| Existence of common law marriage | Shirley contends common law marriage existed before 1991. | Shirley asserts pre-1991 common law marriage proven by conduct; trial court erred. | No clear and convincing evidence of praesenti agreement; no common law marriage. |
| Equitable beginning date and pension duration | October 1988 should be equitable beginning; pension should be 214 months. | Beginning date not October 1988; pension 144 months correct. | Trial court not abuse in finding July 1994 marriage date; 144 months pension properly classified. |
Key Cases Cited
- Eggeman v. Eggeman, 2004-Ohio-6050 (Ohio 3d Dist. 2004) (manifest-weight standard; property characterization governs outcome)
- C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279 (1956) (competent evidence suffices; credibility not reversed on appeal)
- Reed v. Reed, 2010-Ohio-4550 (3d Dist. 2010) (divorce property classification framework)
- Ward v. Ward, 2004-Ohio-1390 (3d Dist. 2004) (traceability of separate property when commingled)
- Nestor v. Nestor, 15 Ohio St.3d 143 (1984) (elements of a pre-1991 common-law marriage)
- O'Connor v. O'Connor, 184 Ohio App.3d 538 (3d Dist. 2009) (imputable income not reversible error when vacancy of express finding)
- Bradley v. Bradley, 8th Dist. No. 78400 (2001) (distinguishes applicability of equitable beginning dates)