Umbaugh v. StinsonUmbaugh v. Stinson
KENT J. DEPOORTER, Atty. Reg. No. 0058487, 7501 Paragon Road, Dayton, Ohio 45459
Attorney for Plaintiff-Appellee
BRIAN E. LUSARDI, Atty. Reg. No. 0080294, 85 West Main Street, Xenia, Ohio 45385
Attorney for Defendant-Appellant
FROELICH, J.
Factual and Procedural Background
{¶ 2} Stinson and Umbaugh married in Beavercreek, Ohio on August 17, 2007. No children were born of the marriage. On November 10, 2016, the Domestic Relations Division of the Greene County Common Pleas Court issued a Final Judgment and Decree of Legal Separation in Case No. 2016-DR-312, a prior action between Umbaugh and Stinson. Among the separation decree‘s provisions as to division of the couple‘s various assets were the following:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED the Husband [Umbaugh] shall retain his personal 401K; the Husband shall retain his Fifth Third IRA; the Husband shall retain the Marriott Rewards and Amex Points, [and] all remaining joint and personal bank accounts that have not been stated previously, all free and clear of any claim of the Wife [Stinson].
* * *
Upon execution of the Final Judgment and Decree of Legal Separation, the Husband shall pay to the Wife the sum of $285,000 as and for her interest in [the marital home] and the sale of previous real estate.
(See “Final Judgment and Decree of Legal Separation” in Case No. 2016-DR-312, p. 3).
{¶ 3} On the date of the above judgment, the “remaining joint and personal bank accounts” included a Fifth Third Bank account in Umbaugh‘s name. Some of the funds in
{¶ 4} After a subsequent attempt at reconciliation was unsuccessful, Umbaugh filed a complaint for divorce from Stinson on November 3, 2017. The only matter in the divorce action that the parties were not able to resolve by agreement involved a dispute over $142,000 that had been moved through a series of bank accounts. Following a hearing where both parties presented testimony about the disputed funds, the magistrate issued a decision that stated in pertinent part as follows:
* * * Husband demonstrated at the time of the Legal Separation that he had a Fifth Third bank account solely in his name with proceeds of at least $142,000. The parties attempted to reconcile with one another after the issuance of the Decree of Legal Separation. The parties were seeing a counselor through a church in an attempt to rescue their relationship. As part of their counseling, the parties had disputes regarding monies received by each of them in the Legal Separation. Wife believed that she should have received more money than was awarded to her. In order to assist with the reconciliation, [H]usband withdrew $142,000 from his account at Fifth Third and placed it in a bank account at Chase Bank in both parties’ names on June 17, 2017. The parties continued to participate in the private
counseling. On August 30, 2017, Wife transferred $142,016.77 from the joint account into an account solely in her name without the knowledge or consent of * * * Husband. Thereafter, the parties’ reconciliation terminated. Husband alleges those funds removed from the joint account by Wife should be deemed his separate property as they were awarded to him in the Legal Separation. Wife claims the funds were a gift to her by Husband to reconcile an imbalance in property contained in the Legal Separation. * * *
* * * Husband has clearly demonstrated that he was awarded the funds in question in the Legal Separation. As such, Husband has clearly traced funds of $142,000 from his personal account into a joint account of the parties. The question before the Court is whether or not Husband intended to give those funds to Wife as a gift of her own separate property or whether or not any of those funds should be treated as marital in nature.
Husband testified that in order to move forward with potential reconciliation, he moved the funds with the intention of keeping them in a joint account. There is no evidence that Husband ever intended those funds to belong solely to Wife. Further, the Court finds that Wife and the marital counselor exerted pressure on Husband to move the funds to a joint account in the first place. Wife believed that the funds were “stolen” from her in the Legal Separation. The Count finds that this is an improper forum for challenging the Decree of Legal Separation. The fact that Wife believed that she was entitled to them in the Legal Separation is belied by the Decree
itself. Wife removed the funds from the joint account in a spiteful act because she believed Husband was having an affair. The Court concludes that Wife has failed to establish that Husband‘s move [sic] of the funds from his separate account into a joint account satisfied the donative intent required for an inter-vivos spousal gift. Wife never proved that Husband intended her to have those funds solely as her funds, nor did Wife prove that when Husband moved the funds into a joint account that he somehow “transmuted” them into marital property. Therefore, the Court hereby AWARDS Husband the sum o[f] $142,000 to be paid by Wife within thirty (30) days of the filing of the Final Judgment and Decree of Divorce.
{¶ 5} Stinson filed objections and supplemental objections to the magistrate‘s decision, which objections the trial court overruled. On June 26, 2019, the trial court entered a Final Judgment and Decree of Divorce which awarded Umbaugh the sum of $142,000, to be paid by Stinson within 30 days.
{¶ 6} Stinson appeals from that judgment, setting forth this single assignment of error:
The Trial Court abused its discretion in determining that [Umbaugh] was entitled to the sum of $142,000 because the true origination of the funds at issue belonged to [Stinson], both parties testified that the $142,000 was still in dispute despite already having a Decree of Legal Separation in place, and because [Umbaugh] intended to share the $142,000 with [Stinson] after agreeing to put the disputed money into a new joint savings account with [Stinson].
{¶ 7} We review property distributions in divorce proceedings for an abuse of discretion. Payne v. Payne, 2d Dist. Montgomery No. 27584, 2017-Ohio-8912, ¶ 6, citing Loughman v. Loughman, 2d Dist. Montgomery No. 25835, 2014-Ohio-2449, ¶ 22. An abuse of discretion occurs when the trial court‘s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 8} “When dividing married parties’ assets and liabilities upon divorce, a court must first determine what is marital property and what is not.” Bergman v. Bergman, 2d Dist. Montgomery No. 25378, 2013-Ohio-715, ¶ 27. The trial court must classify specific property as marital or separate, and where appropriate, must distribute separate property to the owner. Id., citing
{¶ 9} The classification of property is governed by
- (i) All real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;
- (ii) All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to, the retirement benefits of the
spouses, and that was acquired by either or both of the spouses during the marriage; - (iii) Except as otherwise provided in this section, all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage.
{¶ 10} In contrast, under
- (i) An inheritance by one spouse by bequest, devise, or descent during the course of the marriage;
- (ii) 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;
- (iii) Passive income and appreciation acquired from separate property by one spouse during the marriage
* * *
- (vii) Any gift of real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse.
{¶ 11} The proponent of a claim that specific property is separate, not marital, bears the burden to prove that claim by a preponderance of the evidence. Bergman, 2d Dist. Montgomery No. 25378, 2013-Ohio-715 at ¶ 31, citing Peck v. Peck, 96 Ohio App.3d 731, 734, 645 N.E.2d 1300 (12th Dist.1994); Snyder v. Snyder, 2d Dist. Clark No. 2002-CA-6, 2002 WL 1252835, *3. “Oral testimony as evidence, without corroboration, may or
{¶ 12} “Once it is proven that specific property was the separate property of one of the spouses at, or after, the time of the marriage, the burden shifts to the other spouse to prove, by clear and convincing evidence, that the property, or some interest therein, has been given to the other spouse.” Id. at ¶ 31, quoting Snyder at *3, citing Helton v. Helton, 114 Ohio App.3d 683, 685, 683 N.E.2d 1157 (2d Dist.1996).
{¶ 13} “The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable.”
{¶ 14} Additionally, “the holding of title to property by one spouse individually or by both spouses in a form of co-ownership does not determine whether the property is marital or separate property. Instead, the couple‘s total circumstances are reviewed.” Bergman at ¶ 30, quoting Nuding v. Nuding, 3d Dist. Mercer No. 10-97-13, 1998 WL 856923 (Dec. 7, 1998). See also
Analysis
a. Whether the $142,000 was Umbaugh‘s separate property
{¶ 15} The trial court did not err by determining that the $142,000 in dispute was Umbaugh‘s separate property. The Final Judgment and Decree of Legal Separation in
[STINSON]: * * * we did a legal separation, so.
[UMBAUGH‘S COUNSEL]: And in the legal separation he [Umbaugh] was granted the $142,000, is that correct?
[STINSON]: That‘s correct.
[UMBAUGH‘S COUNSEL]: Okay. And then –
[STINSON]: Well, he wasn‘t – he wasn‘t granted. He was granted, it was a stipulation over the $142,000. He was granted ban[k] accounts, all of the bank accounts that were in mine [sic] and his name. He was granted that in the legal separation.
[UMBAUGH‘S COUNSEL]: You agree –
[STINSON]: But then he took it out of there.
[UMBAUGH‘S COUNSEL]: You agree in the legal separation he was granted that money, correct?
[STINSON]: That‘s correct.
(See Tr. of 10/26/18 hearing, p. 40).
{¶ 16} Stinson is mistaken in now arguing that the trial court erred by failing to trace the $142,000 back to the sale of real estate purchased with her premarital assets, in order to determine that such amount originally was her separate property. One way in which property may become one spouse‘s “separate property” for purposes of distribution in a divorce is through “[a]ny gift of real or personal property or of an interest in real or personal
{¶ 17} “Res judicata ‘prevent[s] relitigation of issues already decided by a court or matters that should have been brought as part of a previous action.’ ” Ahmad v. Ahmad, 2d Dist. Montgomery No. 23740, 2010-Ohio-5635, ¶ 22, quoting Machnics v. Sloe, 11th Dist. Geauga No. 2007-G-2784, 2008-Ohio-1133, ¶ 68. ” ‘[A] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.’ ” Id. “As a general rule, the doctrine of res judicata bars the relitigation of issues involved in a decree of legal separation * * *.” Condit v. Condit, 190 Ohio App.3d 634, 2010-Ohio-5202, 943 N.E.2d 1041, ¶ 8 (1st Dist.).
{¶ 18} If Stinson wished to dispute the legal separation decree‘s classification of the subject $142,000 as Umbaugh‘s separate property, the appropriate means of doing so was through an appeal of the November 10, 2016 judgment in Case No. 2016-DR-312. Because Stinson failed to timely pursue such an appeal, that matter now is res judicata. Stinson‘s assignment of error based upon the original source of the $142,000 in dispute is not well taken.
b. Whether Umbaugh subsequently “gifted” the $142,000 to Stinson
{¶ 19} Stinson also argues that the trial court erred by failing to find that Umbaugh
{¶ 20} “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. at 685-686, quoting Bolles v. Toledo Trust Co., 132 Ohio St. 21, 4 N.E.2d 917 (1936), paragraph one of the syllabus. “The donee has the burden of showing by clear and convincing evidence that the donor made an inter vivos gift.” Id. at 686; accord Snyder v. Snyder, 2d Dist. Clark No. 2002-CA-6, 2002 WL 1252835, *3 (June 7, 2002) (“Once it is proven that specific property was the separate property of one of the spouses at, or after, the time of the marriage, the burden shifts to the other spouse to prove, by clear and convincing evidence, that the property, or some interest therein, has been given to the other spouse.“).
{¶ 21} Competent, credible evidence supports the trial court‘s determination that Umbaugh did not intend to make an inter vivos gift to Stinson by placing the $142,000 in a joint bank account sometime after the legal separation decree had awarded those sums to him. According to Stinson‘s hearing testimony, beginning in or around February of 2017, she and Umbaugh attempted to reconcile their marriage. (See Tr. p. 35). The
{¶ 22} Umbaugh further testified as follows:
I set it [the $142,000 placed in the joint account] aside for one specific purpose. Even though I didn‘t necessarily agree with what the counselor had said, if putting that money aside * * * was going to make her [Stinson] ability [sic] to unblock – to unblock the relationship so we could work on our marriage[,] * * * I was willing to put that aside * * *.
(Tr. p. 33).
{¶ 23} On August 30, 2017, the entire $142,016.772 balance of the joint Chase account was transferred by Stinson into a different Chase account bearing her name only. On October 22, 2017, Stinson transferred $142,001.87 from the second Chase account to a third account at Chase, again in her name alone. Stinson testified that she understood the $142,000 deposited by Umbaugh into the joint Chase account to be a gift to her “from
{¶ 24} In divorce actions as in other actions, appellate courts generally defer to the trial court‘s assessment of credibility. See Edwards v. Edwards, 2d Dist. Montgomery No. 25309, 2013-Ohio-117, ¶ 14. “The ‘rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’ ” Id., quoting In re J.Y., 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1980).
{¶ 25} We have no basis to disrupt the trial court‘s finding that Umbaugh did not intend to make a gift to Umbaugh of any portion of the $142,000 by placing that amount into a joint bank account only in an attempt to facilitate reconciliation. Because the trial court did not abuse its discretion, there was no error.
c. Whether an award to Stinson was warranted by Umbaugh‘s “misconduct”
{¶ 26} Finally, Stinson contends that the trial court erred by failing to consider whether some portion of the disputed $142,000 should have been awarded to her due to her testimony about Umbaugh‘s “stealing or at least improperly acquiring” proceeds from the sale of a home allegedly purchased with her premarital assets. As we determined above, the issue of classifying those funds as marital or separate property is res judicata.3
{¶ 27} The assignment of error is overruled.
Conclusion
{¶ 28} For the foregoing reasons, the judgment of the trial court will be affirmed.
HALL, J. and WELBAUM, J., concur.
Copies sent to:
Kent J. Depoorter
Brian E. Lusardi
Hon. Steven L. Hurley