Campbell v. CampbellCampbell v. Campbell
Mary Joseph Clair, 4132 Erie Street, #202, Willoughby, OH 44094 (For Defendant-Appellant).
O P I N I O N
COLLEEN MARY O‘TOOLE, J.
{¶1} Timothy Sean Campbell, appeals from the judgment entry of the Lake County Court of Common Pleas, Domestic Relations Division, affirming in part, and modifying in part, the decision of its magistrate regarding the division of property in Mr. Campbell‘s divorce from Charlene L. Campbell. Principally, Mr. Campbell asserts the trial court failed to properly evaluate his separate property. He also finds error in the trial court‘s valuation of the marital residence. We affirm in part and modify in part.
{¶3} A case management order issued February 16, 2010, indicating both parties agreed to pass all pending motions to final trial. They were referred to mediation, which failed. Trial commenced before the magistrate July 27 and 28, 2010, and then was recessed until October 22, 2010. October 26, 2010, the parties filed a joint petition for conciliation, and the trial court stayed proceedings. The conciliation failed.
{¶4} Further trial was had June 20 and 22, 2010, and July 8, 2010. The parties filed proposed findings of fact and conclusions of law August 23, 2011.
{¶5} The magistrate filed his decision August 10, 2012. Both parties objected. Hearing was held on the objections January 22, 2013; and the trial court issued its judgment entry regarding the objections August 30, 2013. Ms. Campbell filed a proposed final judgment entry, to which Mr. Campbell filed objections. The trial court ruled on the objections, and issued its final decree January 8, 2014. Mr. Campbell timely noticed appeal, assigning three errors.
{¶6} Relevant facts will be discussed under the appropriate assignments of error.
{¶8} At the time of marriage, Mr. Campbell owned a house on Harrison Street, Mentor, Ohio, which he purchased with a down payment of $5,637. The house was sold in September 2009, and Mr. Campbell realized a profit of $5,034.78 as his separate property.
{¶9} Mr. Campbell used the proceeds from the sale of the Harrison Street property to purchase property in Montville, Ohio. It was titled solely in his name. He also obtained a construction loan, later converted to a mortgage, solely in his name.
{¶10} In May 2000, Mr. Campbell suffered a serious accident at his place of employment, Polychem, causing serious injury to one hand, including the loss of a finger. He received extensive worker‘s compensation benefits, compensating him for his lost wages. Further, he and Ms. Campbell hired attorneys James Joseph and Steve Albert to file a personal injury action against Polychem. The action asserted pain and suffering, and punitive damages on Mr. Campbell‘s behalf, and loss of services and consortium for Ms. Campbell. The action settled for $775,000 in May 2000, and the Campbells received a check for $414,448.90, payable to them both, and with no breakdown of any percentage attributable to either party‘s claims.
{¶11} Mr. Joseph testified at trial on Mr. Campbell‘s behalf. He admitted the file in the personal injury action had been destroyed, with Mr. Campbell‘s approval. He referred throughout his testimony to an exhibit given him by Mr. Campbell‘s counsel,
{¶12} Mr. Campbell used a portion of the proceeds from his personal injury claim to pay off his mortgage on the Montville house. He then deposited the remaining amount in an account separate from that generally used by the couple. He took out an equity line on the Montville house. He sold the house in October 2005, and used the proceeds to purchase the property on Munson Road, and to obtain a construction loan for building a house there. This loan was converted to a mortgage, and the mortgagee granted a homeowners line of equity with the mortgage of $20,000. The mortgagee insisted the Munson Road property be titled to both parties. Later, Mr. Campbell doubled the equity line.
{¶13}
{¶14} Mr. Campbell objected to this finding, and the trial court affirmed. In doing so, the trial court further cited to Long v. Long, 176 Ohio App.3d 621, 2008-Ohio-3006 (2d Dist.), wherein the court held husband‘s personal injury settlement became untraceable when the parties took out a home equity loan relating in part to funds originally traceable to the personal injury settlement.
{¶15} On appeal, Mr. Campbell asserts the same arguments as he did below. We are respectfully un-persuaded.
{¶16} A trial court‘s decision to adopt, reject, or modify a magistrate‘s decision is reviewed for abuse of discretion. In re Gochneaur, 11th Dist. Ashtabula No. 2007-A-0089, 2008-Ohio-3987, ¶16. Regarding this standard, we recall the term “abuse of discretion” is one of art, connoting judgment exercised by a court which neither comports with reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when the trial court “applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)
{¶17} In O‘Grady v. O‘Grady, 11th Dist. Trumbull No. 2003-T-0001, 2004-Ohio-3504, ¶45-49, this court stated:
{¶18} “Before addressing appellant‘s assignments of error, we will first lay out the appropriate standard of review under which an appellate court must review a trial court‘s division of property in a divorce action. In a divorce action, a trial court must first
{¶19} “Marital property is defined as any real property, personal property, or interest therein that is owned by either or both spouses, including their retirement benefits, that were acquired by either or both of the spouses during marriage.
{¶20} “Likewise, separate property includes any real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage.
{¶21} “It should be noted that property acquired during the marriage is presumed to be marital property. ‘The party seeking to have a particular asset classified as separate property has the burden of proof, by a preponderance of the evidence, to trace the asset to separate property.’ Smith v. Smith (Oct. 15, 1999), 11th Dist. No. 98-A-0034, 1999 Ohio App. LEXIS 4862, at *13. See, also,
{¶23} We agree with the reasoning of the Twelfth Appellate District in Cox, supra, at *11-12, where the court held:
{¶24} “This court is not without guidance in the division of personal injury awards in divorce proceedings. In Modon v. Modon (1996), 115 Ohio App. 3d 810, * * *, the Ninth District Court of Appeals determined that:
{¶25} “‘[T]he trial court‘s inability to determine what amount of (the personal injury) proceeds was payment for loss of wages and Mrs. Modon‘s loss of consortium as opposed to compensation for Mr. Modon‘s permanent injuries, pain and suffering, and medical expenses, was fatal to his claim.’ Id. at 815. The court went on to state:
{¶26} “‘[B]y choosing to receive the settlement proceeds in one check, the Modons commingled their separate and marital property. In order for Mr. Modon‘s separate property to maintain its separate character, he had to trace it into the check. In order to do so, he had the burden of convincing the trial court how much of the check
{¶27} “Similarly, in this case, the parties received their personal injury proceeds in a check payable to both parties, thereby commingling their separate and marital property. Accordingly, the burden of proof was on appellant to convince the trial court that his separate property was traceable. The evidence presented only definitively traced a portion of the settlement proceeds, and then traced them into a marital home purchased and titled in the names of both parties. Additional evidence revealed that the parties used the remainder of the proceeds for joint debts and improvements to the marital residence. Even the attorney who handled the parties’ lawsuit could not determine what amount of the personal injury proceeds would have been separate as opposed to marital property.” (Parallel citation omitted.)
{¶28} In this case, the personal injury settlement was paid in one check. Of course, it was not initially used to purchase a house titled to both parties, as in Cox. Rather, Mr. Campbell used the monies to pay off the mortgage on the Montville house, then purchase the Munson Road property. However, the magistrate found Mr. Joseph‘s testimony that Ms. Campbell‘s portion of the settlement was only four to five percent of the total unconvincing. It was Mr. Campbell‘s burden to show what portion of the proceeds from the personal injury settlement was his separate property, and he failed to do so.
{¶29} The first assignment of error lacks merit.
{¶31} The parties submitted as a joint exhibit the appraisal of Cynthia Casto regarding the value of the Munson Road property. She gave it an unimpaired value of $240,000, and an impaired value of $215,000. The impaired value related to the breaking of the sump pump. Mr. Campbell, and his father, testified this caused considerable damage to the house, including mold growth. Ms. Campbell, who has a realtor‘s license, did not believe there was any impairment. In her appraisal, Ms. Casto references repair estimates given by various contractors for fixing the alleged impairments, but expressed concern as to their validity. Those estimates were not attached to her report, and the contractors giving them did not testify.
{¶32} Based on the foregoing, the magistrate “split the difference,” and assigned a value of $227,500 to the Munson Road property. In its August 30, 2013 judgment entry, the trial court modified this figure. Citing to this court‘s decision in Davis v. Davis, 11th Dist. Geauga No. 2011-G-3018, 2013-Ohio-1118, the trial court held it was improper to choose arbitrarily between two figures for valuing an asset in divorce proceedings, and went on to hold that Mr. Campbell failed to present proper evidence regarding damage to the property, or the costs of repair. Consequently, the trial court determined the property should be valued at $240,000. On appeal, Mr. Campbell insists his testimony and that of his father was sufficient to require a finding for the impaired value.
{¶33} In Davis, supra, at ¶41, this court held:
{¶35} Further, the valuation of property in a divorce being a question of fact, we review the trial court‘s valuation of an asset under a manifest weight standard. Davis at ¶40, quoting Covert v. Covert, 4th Dist. Adams No. 03CA778, 2004-Ohio-3534, ¶6.
{¶36} Given this standard of review, we cannot find the trial court abused its discretion in choosing the unimpaired valuation for the Munson Road property. The decision is supported by competent, credible evidence. Ms. Casto herself expressed doubt concerning the costs of repairs submitted by the contractors, and their reports were not submitted to the trial court. Ms. Campbell denied many of the damages testified to by the Campbells, father and son, and the magistrate clearly found neither side‘s version convincing, since he settled on a valuation exactly between the impaired and unimpaired figures.
{¶37} The second assignment of error lacks merit.
{¶39} Mr. Campbell and his father (as well as Mr. Campbell‘s brothers-in-law and sisters) are avid drag racing enthusiasts. Both Mr. Campbell and his father drive in races frequently. In late 2005, they purchased a race car in Pennsylvania for $15,500, Mr. Campbell contributing $6,000 from his personal injury monies, his father contributing $9,500. His father has since spent some $16,200 on parts and labor improving the car. Both father and son testified at trial they viewed their purchase of the race car as a joint venture. In his decision, the magistrate stated that Mr. Campbell, Sr., was a particularly credible witness on the issue of the race car. The parties had stipulated the value of the car to be $25,000. The magistrate assigned 61% of this value to Mr. Campbell, Sr., and 39% to his son, that being $9,750, all of which was marital. Consequently, he determined Mr. Campbell should pay Ms. Campbell $4,875 for her half of the race car.
{¶40} In its August 30, 2013 judgment entry, the trial court held there was insufficient evidence of a joint venture regarding the race car, since there was no written agreement between Mr. Campbell and his father. The trial court found the stipulated value of the race car to be marital, less $5,034.78 as Mr. Campbell‘s separate property.
{¶41} On appeal, Mr. Campbell asserts the magistrate was correct, and the trial court incorrect. We agree. A joint venture is a matter of contract, either express or implied. Ford v. McCue, 163 Ohio St. 498 (1955), paragraph one of the syllabus. There is no need for a written contract. The magistrate, who was trier of fact in this case,
{¶42} The third assignment of error has merit.
{¶43} The judgment of the Lake County Court of Common Pleas, Domestic Relations Division, is affirmed in part and modified in part.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.