{¶ 3} Prior to the marriage, on August 3, 2002, Wife wrote a personal check to Husband for $15,000. Wife wrote the word "gift" on the memo line of the check. Four days later, Husband wrote a $15,000 check to his then-wife, Dena Stevens, in order to buy out her interest in land jointly owned by Husband and Stevens.
{¶ 4} Husband and Wife both testified at a divorce hearing before a magistrate. At the hearing, the court admitted into evidence thirty-six exhibits, including a copy of the $15,000 check written by Wife, that Husband produced to support his testimony relating to marital versus non-marital property. Wife did not produce any exhibits in support of her testimony. The magistrate issued a decision with findings of fact and conclusions of law. The magistrate found, in pertinent part, that the $15,000 Wife gave Husband prior to their marriage constituted a gift.
{¶ 5} Wife timely filed objections to the magistrate's decision. Husband filed a memorandum in opposition to Wife's objections. The trial court considered Wife's objections and noted in its judgment entry that it "strongly considered" the issue of whether Wife's $15,000 check to Husband constituted a gift or a loan. The court concluded that the $15,000 exchange of funds between Wife and Husband was a gift that became Husband's separate property, which the court could not order Husband to repay Wife in the division of marital property. Thus, the court overruled Wife's objection to the magistrate's decision regarding the $15,000.
{¶ 6} Wife timely appeals, asserting the following assignment of error: "The trial court erred and committed an abuse of discretion when it found that defendant's pre-marital payment of plaintiff's debt to his former spouse constituted a gift from defendant [and] was not a loan."
{¶ 8} We review the overall appropriateness of the trial court's property division in a divorce proceeding under an abuse of discretion standard. Cherry v. Cherry (1981),
{¶ 9} We will not reverse the trial court's judgment as being against the manifest weight of the evidence if the court's judgment is supported by some competent, credible evidence. Sec.Pacific Natl. Bank v. Roulette (1986),
{¶ 10} Once the court makes the determination of whether property is marital or separate property, we review the actual distribution of the asset under the more deferential abuse of discretion standard. Kelly v. Kelly (1996),
{¶ 11} Pursuant to R.C.
{¶ 12} R.C.
{¶ 13} A donee bears the burden of proving the existence of an inter vivos gift by clear and convincing evidence. In reFife's Estate (1956),
{¶ 14} The existence of an inter vivos gift is ordinarily a question of fact. Wheeler v. Martin, Washington App. No. 04CA15,
{¶ 15} The requisite elements of a valid inter vivos gift include: "(1) intent on the part of the donor to make an immediate gift of particular property to the donee and to part with dominion and control over the subject of the gift; (2) delivery of the subject of the gift; and (3) acceptance of the gift." Wheeler, supra, at ¶ 14. Here, Wife disputes the trial court's finding that she intended to make a gift of $15,000 to Husband.
{¶ 16} Husband and Wife both cite Gamble v. Gamble, Hancock App. No. 5-04-14,
{¶ 17} Here, the trial court noted that Wife did not produce any evidence that she had no "real choice" but to give Husband the $15,000. Unlike in Gamble, here Wife did not produce evidence that Husband was obligated to pay a $15,000 debt, or instead merely wished to purchase the subject land. Wife did not produce any evidence that Husband and Wife could not otherwise obtain financing to acquire a marital home. Additionally, we can hardly overstate the value of the evidence that Wife personally wrote the check and wrote the word "gift" on the memo line of the check. We find that this written notation, combined with Wife's failure to produce evidence that she did not freely choose to give the money to Husband, constitutes some competent, credible evidence that Wife intended the $15,000 as a gift to Husband. Therefore, the trial court did not err in concluding that the $15,000 was a gift.
{¶ 18} Wife does not provide any argument in support of her contention that the trial court abused its discretion in distributing Husband's separate property to him or in otherwise equitably dividing separate and marital property. Instead, she devotes the entirety of her argument to her contention that the court erred in classifying the $15,000 as Husband's separate property.
{¶ 19} As we noted above, a court generally "shall" disburse a spouse's separate property to that spouse, absent certain exceptions or findings. R.C.
{¶ 20} Because we find that the trial court neither erred nor abused its discretion when it classified the $15,000 as a separate property and distributed it to Husband, we overrule Wife's assignment of error.
{¶ 21} Accordingly, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.