Smith v. Emery-Smith
941 N.E.2d 1233
Ohio Ct. App.2010Background
- Gloria Emery-Smith appeals a Geauga County divorce judgment regarding the marital residence and Gloria’s alleged financial misconduct with William Smith’s stock certificates.
- The parties married on December 24, 1985, have one son, Gregory, and stipulated to most issues including custody, support, and no spousal support.
- The Bainbridge property was purchased with funds from Mrs. Barry and titled in Gloria’s name; later Gloria signed a joint survivorship deed in 2003 purportedly to assist refinancing.
- William testified the Bainbridge home was marital property; Gloria testified she intended to keep it as her separate property and signed to satisfy the bank’s loan process.
- In 2007, William entered treatment; during that period Gloria deposited 106 shares of Honeywell and 375 shares of Sherwin Williams into a joint account and then withdrew the funds.
- The trial court found Gloria committed financial misconduct and ordered repayment of proceeds, with William receiving the first $10,250 from sale proceeds and the rest shared.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bainbridge property is marital or Gloria’s separate property | Gloria contends Bainbridge is her separate property. | William argues it became marital through joint use and contributions. | Bainbridge is Gloria’s separate property; remand for debt and appreciation considerations |
| If Bainbridge is separate property, whether any marital debt or appreciation must be allocated | Debt and improvements should not affect Gloria’s separate property balance. | Debt and improvements financed during marriage could create marital interest or appreciation. | Trial court erred by not addressing marital debt and potential appreciation; remand to consider both |
| Whether Gloria committed financial misconduct by selling William’s stock | Plaintiff asserts Gloria dissipated William’s stock proceeds without authorization. | Gloria claims William authorized the sale or that proceeds were used for marital purposes. | Finding of financial misconduct supported by evidence; Gloria’s conduct sustained |
Key Cases Cited
- Osborn v. Osborn, 2004-Ohio-6476 (11th Dist. No. 2003-T-0111) (examines conversion of separate property to marital property via inter vivos gift factors)
- Ockunzzi v. Ockunzzi, 2006-Ohio-5741 (8th Dist. No. 86785) (refinancing of separate property does not convert it to marital property if the purchase was not financed to acquire the home)
- Gosser v. Gosser, 2007-Ohio-3201 (11th Dist. No. 2006-T-0029) (defines separate vs marital property and weighting on tracing and contributions)
- Middendorf v. Middendorf, 1998-Ohio-397 (82 Ohio St.3d 397) (general framework for determining marital property and appreciation)
- Berish v. Berish, 1982-Ohio-296 (69 Ohio St.2d 318) (equitable division standard for property in divorce)
- Kohus v. Kohus, 2003-Ohio-2551 (12th Dist. No. CA2002-07-055) (illustrates that refinancing alone does not convert separate property to marital)
- Smith v. Shafer, 1993-Ohio App.3d 181 (11th Dist. No. 192) (inter vivos gift elements and burden of proof to show intent)
- Helton v. Helton, 1996-Ohio-683 (114 Ohio App.3d 683) (elements of inter vivos gift: intent, delivery, acceptance)
- Barkley v. Barkley, 1997-Ohio App.3d 155 (119 Ohio App.3d 155) (burden on donee to prove gift elements)
- Sherman v. Sherman, 1989-Ohio-117421 (8th Dist. No. 55711) (forged check cases; outlined that failure to rebut indicates conversion)
- Nemeth v. Nemeth, 2008-Ohio-3263 (11th Dist. No. 2007-G-2791) (marital debt includes loans incurred during marriage)