Louis v. LouisLouis v. Louis
Dated: September 6, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Charles and Arvy Louis divorced after nearly 40 years of marriage. At the time of the divorce, they owned two houses. Ms. Louis had purchased one of the houses before marrying Mr. Louis. Mr. Louis had inherited the other, but had transferred title into both of their names. A magistrate recommended that the trial court find that both houses were marital property. Mr. Louis objected to the magistrate’s decision, but the trial court overruled his objection. The court ordered both houses to be sold and the net proceeds to be split between the parties. Mr. Louis has appealed, assigning as error that the trial court’s finding that the house he
MARITAL PROPERTY
{¶2} Mr. Louis’s assignment of error is that the trial court’s decision to uphold the magistrate’s finding that he converted his separate property into marital property was against the manifest weight of the evidence. He has argued that Ms. Louis failed to prove that he gave an interest in the house to her as a gift.
{¶3} “In divorce proceedings, the court shall . . . determine what constitutes marital property and what constitutes separate property.”
{¶4} Whether property is marital or separate property is a question of fact. Barlow v. Barlow, 9th Dist. No. 08CA0055, 2009-Ohio-3788, at ¶6. We review the trial court’s finding to determine whether it was against the manifest weight of the evidence. Id. In State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, at ¶26, the Ohio Supreme Court held that the test for
{¶5} Ms. Louis does not dispute that Mr. Louis inherited the house in 1986 and that it was his separate property at that time. She has argued, however, that the house became marital property in 1998 when Mr. Louis conveyed an interest in it to her.
{¶6} Under
{¶7} This Court has identified “six factors a court should consider when determining whether [a deed] . . . transmuted [separate property] into marital property, which are: (1) the expressed intent of the parties as far as it can be determined; (2) the source of the funds used to acquire the property; (3) the circumstances which surround the property’s acquisition; (4) the beginning and ending dates of the marriage, the acquisition of the property, and the claimed transmutation; (5) the inducement for and/or purpose of the transaction which gave rise to the alleged transmutation; and (6) the value of the property and its significance to the parties.” Hazen v. Hazen, 9th Dist. No. 2159, 1993 WL 261566 at *1-2 (July 14, 1993) (citing Kuehn v. Kuehn, 55 Ohio App. 3d 245, 246 (1988)); see also Barkley v. Barkley, 119 Ohio App. 3d 155, 161 (1997) (noting that
{¶8} At times, this Court has analyzed whether transmutation has occurred to real property using the test for an inter vivos gift. See Sweeney v. Sweeney, 9th Dist. No. 19709, 2000 WL 799095 at *2 (June 21, 2000). “The essential elements of an inter vivos gift are ‘(1) an intention on the part of the donor to transfer the title and right of possession of the particular property to the donee then and there and (2), in pursuance of such intention, a delivery by the donor to the donee of the subject-matter of the gift to the extent practicable or possible, considering its nature, with relinquishment of ownership, dominion and control over it.’” Id. (quoting Helton v. Helton, 114 Ohio App. 3d 683, 685 (1996)). A deed, however, is considered delivered when it is recorded. Algren v. Algren, 183 Ohio App. 3d 114, 2009-Ohio-3009, at ¶20 (“One who . . . records a deed that names the recipient as grantee . . . satisfies the delivery requirement”); see West v. West, 9th Dist. No. 01CA0045, 2002 WL 388845 at *4 (Mar. 13, 2002). Accordingly, when the test for an inter vivos gift is applied to real property, the “key issue is donative intent.” Sweeney, 2000 WL 799095 at *2.
{¶9} Upon review of our case law, we conclude that, when real property is involved, the six-factor Kuehn test leads to a more thorough analysis of whether separate property has become marital property than the test for an inter vivos gift. We note, however, that, under either test, the intent of the parties is the focus of the inquiry.
{¶10} According to Mr. Louis, he added Ms. Louis to the deed as a joint tenant with right of survivorship in 1998 when he and Ms. Louis co-signed a loan for their daughter and had to put the house up as collateral. Mr. Louis testified that the idea was suggested to him by a mortgage broker he had worked with on another loan and that he had no objection to Ms. Louis
{¶11} Considering Mr. Louis’s testimony that he willingly transferred an interest in his inherited property to Ms. Louis because, in light of the length of the marriage, he considered all of their property to be joint and because he thought it would make things more convenient for them in the future, we conclude that the trial court’s finding that the house was marital property is supported by some competent, credible evidence. See Helton v. Helton, 114 Ohio App. 3d 683, 687 (1996) (concluding residence was marital property because husband intended to convey a present possessory interest in the residence when he executed a joint survivorship deed to his spouse and himself); Moore v. Moore, 83 Ohio App. 3d 75, 78 (1992) (same). Mr. Louis’s assignment of error is overruled.
CONCLUSION
{¶12} The trial court’s determination that the house Mr. Louis inherited was marital property is not against the manifest weight of the evidence. The judgment of the Wayne County Domestic Relations Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, P. J.
WHITMORE, J.
CONCUR
APPEARANCES:
DAVID L. MCARTOR and KRISTOPHER K. AUPPERLE, Attorneys at Law, for Appellant.
ROSANNE K. SHRINER, Attorney at Law, for Appellee.