2018 Ohio 4085
Ohio Ct. App.2018Background
- Randy and Tresa Nethers married in 1999, separated in Nov. 2016, and Tresa filed for divorce in Jan. 2017; no children of the marriage.
- Husband had previously executed warranty deeds (Sept. 10, 2012) transferring undivided one-half interests in three parcels to Wife as trustee of her revocable living trust; both spouses executed separate trusts the same day for estate-planning purposes.
- Attorney Plummer prepared and explained the trusts and deeds; each spouse was trustee and beneficiary of his/her own trust and retained power to revoke or control only assets in that spouse’s own trust.
- Magistrate found Husband intended an inter vivos gift of one-half interests in the Marne Road, Mt. Herman Road, and Indian Camp Road properties to Wife and granted the divorce; ordered trusts revoked to divide assets.
- Husband objected, arguing the properties (and mineral rights) remained his separate property and challenging valuation/division of personal property; trial court overruled objections and affirmed the magistrate.
- The appellate court reviewed for manifest weight and affirmed: it found competent, credible evidence of donative intent and supported valuations and distribution; Husband’s testimony was found not credible.
Issues
| Issue | Plaintiff's Argument (Wife) | Defendant's Argument (Nethers) | Held |
|---|---|---|---|
| Whether Husband’s transfers to Wife’s trust constituted an inter vivos gift converting separate property to marital (or wife’s) property | Deeds and trust terms, plus contemporaneous execution and attorney testimony, show present donative intent to transfer one-half interests to Wife | Transfers were estate planning only; Husband lacked understanding/donative intent and merely intended future testamentary disposition to nephew | Affirmed: court found sufficient evidence of present donative intent and that an inter vivos gift occurred |
| Whether trial court’s valuation and division of household/personal property was supported by the evidence | Wife’s inventories, receipts (asserted), and testimony support the valuations; court may weigh credibility | Husband claims valuations rest only on Wife’s opinion and he showed many items were sold/junked after separation, so values unsupported | Affirmed: court found valuations supported by competent evidence, credited Wife and rejected Husband’s credibility; division not an abuse of discretion |
Key Cases Cited
- Moore v. Moore, 83 Ohio App.3d 75 (Ohio Ct. App.) (spouse conduct can change property character)
- Bolles v. Toledo Trust Co., 132 Ohio St. 21 (Ohio 1936) (elements and burden of proof for inter vivos gift)
- Brate v. Hurt, 174 Ohio App.3d 101 (Ohio Ct. App.) (donative intent = transferor intends present possessory interest)
- Briganti v. Briganti, 9 Ohio St.3d 220 (Ohio 1984) (equity and totality of circumstances in valuation)
- McCoy v. McCoy, 91 Ohio App.3d 570 (Ohio Ct. App.) (valuation must be supported by competent, credible evidence)