2012 Ohio 1511
Ohio Ct. App.2012Background
- Cheryl Pancake and Harold Pancake divorced previously; Cheryl received 50% of Harold's Marathon Retirement and Marathon Thrift Plan in the 2008 decree.
- Cheryl and Harold remarried in 2009; Cheryl signed affidavits (Sept. 28, 2009) waiving her 50% interests in both the retirement and thrift plans, prepared by her attorney with a notary.
- Cheryl filed for divorce May 10, 2010; the parties reached agreement on most issues but disputed the Plans in distribution.
- The trial court distributed 100% of the Plans to Harold, finding Cheryl gifted or otherwise transferred her interest to him.
- Cheryl appealed alleging (a) prior 2008 division controls? and (b) affidavits evidenced a gift to Harold; Harold argued the affidavits show abandonment.
- Court reviews affidavits de novo and determines Cheryl abandoned her interest in the Plans, not necessarily making a gift to Harold.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Cheryl abandon her interest in the Plans through the affidavits? | Cheryl argues no abandonment; the 2008 decree preserved her rights; affidavits merely reflect a change in desire. | Affidavits show voluntary relinquishment of benefits; supports treating Plans as Harold's separate property. | Affidavits show abandonment; cannot credit a remaining interest to Cheryl. |
| Did the affidavits create an inter vivos gift to Harold? | Affidavits do not expressly name a donee; therefore no gift to Harold. | Affidavits indicate a transfer of rights benefiting Harold; court should treat as gift. | Affidavits do not establish a satisfied inter vivos gift; abandonment suffices to negate Cheryl's interest. |
Key Cases Cited
- Cherry v. Cherry, 66 Ohio St.2d 348 (1981) (standard for abuse-of-discretion in property division)
- Dassel v. Hershberger, 4th Dist. No. 10CA6, 2010-Ohio-6595 (2010) (definition of inter vivos gift and its limits)
- Jones v. Jones, 4th Dist. No. 07CA25, 2008-Ohio-2476 (2008) (interpretation of gifts and conveyances in marital context)
- Smith v. Shafer, 89 Ohio App.3d 181 (1993) (definition and scope of inter vivos transfers)
- Captain v. United Ohio Ins. Co., 4th Dist. No. 09CA14, 2010-Ohio-2691 (2010) (harms/harmless-error approach to appellate review when basis is erroneous)
- Reynolds v. Budzik, 134 Ohio App.3d 844 (1999) (appellate review considerations; reliance on proper grounds)