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Date: 08-01-2022

Case Style:


Case Number: C-210392


Marilyn Zayas; Presiding Judge

Pierre H. Bergeron
Ginger S. Bock



On Appeal From The Hamilton County Court of Common Pleas, Domestic Relations Division

Plaintiff's Attorney: Barry Law, LLC, and Sara M. Barry

Defendant's Attorney:

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Cincinnati, Ohio - Divorce lawyer represented Defendant-appellant with appealing the decree of divorce.

On January 10, 2020, wife filed a complaint for divorce against
husband, which asserted that the parties were married on February 16, 2017. Husband
filed an answer and counterclaim for divorce on February 13, 2020. A property trial
was held on February 10 and February 26, 2021. After submission of written closing
arguments, the magistrate entered a decision on all issues on April 30, 2021. Husband
filed objections to the magistrate’s decision on April 30, 2021, and wife filed objections
to the magistrate’s decision on May 10, 2021. A hearing was held on the objections
and on the merits on June 1, 2021. The trial court entered a decision overruling the
objections and adopting the magistrate’s decision without modification on June 7,
2021, and entered a final decree of divorce on June 25, 2021.
{¶3} Husband timely filed a notice of appeal on July 21, 2021. He now raises
three assignments of error for our review: (1) whether the trial court abused its
discretion by failing to allocate the parties’ 2019 tax debt in violation of R.C. 3105.171;
(2) whether the trial court abused its discretion by failing to allocate husband’s
premarital business bank account funds as his separate property; and (3) whether the
trial court abused its discretion by failing to address husband’s requested
reimbursements which benefited wife.
Factual Background
2019 Tax Debt
{¶4} Wife testified that she was employed by husband starting in 2018. She
was still employed by husband for most of 2019. Husband paid her $5,000 monthly,
plus living expenses. Her employment stopped on November 13, the day she left.
Husband sent her a 1099 form in either January or February of 2020. She had never
received a 1099 form from husband in the past. Wife said that she attempted to
contact the parties’ accountant multiple times to find out how the parties were going
to file their taxes for 2019 but received no response. She ultimately filed her taxes
without using the 1099 form because she had never received one before and did not
have any offsetting expenses to file with it. Wife agreed that she would be willing to
file an amended tax return if the court felt that it was necessary, so long as she was
able to review what husband was filing before she did.
{¶5} Husband testified that he ultimately filed his taxes as married filing
separately, which resulted in a tax liability of $45,117. He asserted that, had he been
able to file jointly, his tax liability would have only been around $4,320. However, at
one point in his testimony, he also agreed that he filed his taxes as head of household.
Premarital Business Bank Account
{¶6} At the time of the parties’ marriage, husband held a business bank
account with Park National Bank. When discussing the status of this account before
the marriage, husband testified, “I had $107,000 and I used that money to put the
down payment of $38,000 on our first house that we purchased in January of 2017,
which reduced my business account down to $72,000.” He denied having a personal
checking account prior to the marriage. Husband said that he ultimately switched this
account to First Financial Bank in 2018 when he established a personal and business
account at First Financial. Husband did not dispute that the First Financial business
account was set up during the marriage and was commingled with marital expenses.
{¶7} Wife testified that she did not know husband had a personal bank
account. She claimed that everything was charged to husband’s business account. She
said, “He paid like the house expenses and things like that, so those would be paid out
of the business account.” She also said that trips and Cardinal’s season tickets were
purchased out of the business account and that husband’s child-support payments
were paid from the business account.
{¶8} Husband claimed that he paid his child-support payments from his
personal account. He agreed that he paid for the Cardinal’s season tickets out of his
business account and admitted making payments on his personal credit card from his
business account. He also agreed that part of the purchase price for his latest home
was paid from his business account. Ultimately, when asked if it was fair to say that
there was mixed personal use and business expenses, husband responded, “I mean,
there might be some personal.”
Payment of Expenses
{¶9} Wife testified that, during the marriage, husband was responsible for
paying the mortgage and expenses, including the car. She said that her contribution
was grocery shopping, holiday shopping, birthday shopping, and sometimes paying
when they went out to eat.
{¶10} Husband submitted a list of alleged payments to the trial court that he
had made on wife’s behalf since the filing of this action. He asked the court to consider
these payments when making an award to wife and to include these payments as part
of the court’s decision. He also testified and presented evidence of two additional
payments that did not appear on his initial list: a 2021 property tax payment and a
monthly car payment.
Law and Analysis
{¶11} “This court reviews ‘the manner in which a domestic-relations court
executes an equitable division of property for an abuse of discretion.’ ” Boolchand v.
Boolchand, 1st Dist. Hamilton Nos. C-200111 and C-200120, 2020-Ohio-6951, ¶ 9,
citing McKenna v. McKenna, 1st Dist. Hamilton No. C-180475, 2019-Ohio-3807, ¶ 9.
“An abuse of discretion is more than a mere error of judgment; it implies that the
court’s attitude [was] arbitrary, unreasonable, or unconscionable.” (Citations
omitted.) Id. “Factual issues, however, such as those arising in the classification and
valuation of property, are reviewed under the distinct sufficiency-and-weight-of-theevidence standards.” Id., citing McKenna at ¶ 9-10.
{¶12} “In divorce proceedings, the court shall * * * determine what constitutes
marital property and what constitutes separate property. * * * [U]pon making such a
determination, the court shall divide the martial and separate property equitably
between the spouses, in accordance with [R.C. 3105.171].” R.C. 3105.171(B).
Generally, “the division of marital property should be equal. If an equal division of
marital property would be inequitable, the court shall not divide the martial property
equally but instead shall divide it between the spouses in the manner the court
determines equitable.” R.C. 3105.171(C)(1). “In making a division of marital property,
the court shall consider all relevant factors.” Id. In relevant part, this includes the
following factors: (1) the duration of the marriage; (2) the assets and liabilities of the
spouses; (3) the liquidity of the property to be distributed; (4) the economic
desirability of retaining intact an asset or an interest in an asset; (5) the tax
consequences of the property division upon the respective awards to be made to each
spouse; and (6) any other factor that the court expressly finds to be relevant and
equitable. R.C. 3105.171(C)(1) and 3105.171(F). “[T]he court shall disburse a spouse’s
separate property to that spouse. If a court does not disburse a spouse’s separate
property to that spouse, the court shall make written findings of fact that explain the
factors that it considered in making its determination that the spouse’s separate
property should not be disbursed to that spouse.” R.C. 3105.171(D).
{¶13} “In any order for the division or disbursement of property * * *, the court
shall make written findings of fact that support the determination that the martial
property has been equitably divided and shall specify the dates it used in determining
the meaning of ‘during the marriage.’ ” R.C. 3105.171(G). “During the marriage”
means (1) the period of time from the date of the marriage through the date of the final
hearing; or (2) if the court determines that the use of either or both of those dates
would be inequitable and instead selects dates that it considers equitable in
determining marital property, the period of time between those dates selected and
specified by the court. R.C. 3105.171(A)(2). “The court may issue any orders under
[R.C. 3105.171] that it determines equitable * * *.” R.C. 3105.171(J).
{¶14} In relevant part, “marital property” means: (1) all real or personal
property that currently is owned by either or both of the spouses, and that was
acquired during the marriage; (2) all interests that either or both of the spouses
currently has in any real or personal property, that was acquired by either or both of
the spouses during the marriage; and (3) 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. R.C. 3105.171(A)(3)(a). “Marital property”
does not include “separate property.” R.C. 3105.171(A)(3)(b). In relevant part,
“separate property” means all real or personal property, and any interest in real or
personal property, that the court finds was acquired by one spouse prior to the date of
the marriage. R.C. 3105.171(A)(6)(a)(ii). “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.” R.C.
{¶15} “ ‘Traceable’ here ‘refers to evidence demonstrating a connection
between property currently owned and some antecedent article of separate property.
Such proof overcomes the effect of commingling, by which separate property may be
“transmuted” into marital property.’ ” Fiamengo v. Fiamengo, 2d Dist. Montgomery
No. 26704, 2016-Ohio-4720, ¶ 28, quoting Maloney v. Maloney, 160 Ohio App.3d
209, 2005-Ohio-1368, 826 N.E.2d 864, ¶ 22 (2d Dist.). “So in determining whether
property is separate or marital, ‘[t]he key issue is traceability.’ ” Id., citing Janis v.
Janis, 2d Dist. Montgomery No. 23898, 2011-Ohio-3731, ¶ 48. “The party in a divorce
action claiming that specific property owned when the marriage terminates is not
marital but separate property has the burden of proof by a preponderance-of-theevidence standard.” Boolchand, 1st Dist. Hamilton Nos. C-200111 and C-200120,
2020-Ohio-6951, at ¶ 8, citing Dunn v. Dunn, 1st Dist. Hamilton Nos. C-010282 and
C-010292, 2002-Ohio-6247, ¶ 14. “Generally, the evidence of tracing must be specific,
and oral testimony unsupported by documentary evidence should not carry much
weight.” Id. at ¶ 25, citing Harkey v. Harkey, 11th Dist. Lake No. 2006-L-273, 2008-
Ohio-1027, ¶ 64, and Dunn at ¶ 21-22. “ ‘Because traceability presents a question of
fact, we must give deference to the trial court’s findings, and the court’s decision on
the matter will not be reversed as against the manifest weight of the evidence when it
is supported by competent credible evidence.” Fiamengo at ¶ 29, quoting Maloney at
¶ 23.
2019 Tax Debt
{¶16} Husband argues that it was error for the trial court to “fail to allocate”
the parties’ 2019 tax debt. However, the trial court acknowledged husband’s testimony
that he had to pay significantly higher taxes because wife filed separately rather than
together, made specific findings regarding certain other liabilities of the parties, and
then ordered that “[e]ach party shall be responsible for and pay any and all additional
debts or liabilities in his or her separate name * * *.” Thus, the trial court obviously
considered the parties’ tax liability in determining the equitable distribution of the
parties’ debts and liabilities but found it equitable to leave the liability for the 2019
taxes as it was. Therefore, contrary to husband’s contentions, the trial court did not
fail to issue a decision on this issue.
{¶17} Beyond that, husband does not assert any argument that the trial court’s
decision was inequitable in this regard. Additionally, the record contains three
different tax returns for husband, all of which have a different tax filing status and
none of which are signed, and all three tax returns show different tax liabilities. There
was also inconsistent testimony from husband at trial on whether he filed as head of
household or as married filing separate. Thus, the record is unclear on what husband’s
tax liability even was. Accordingly, we cannot determine the trial court abused its
discretion in making its decision and this assignment of error is overruled.
Funds from Premarital Business Bank Account
{¶18} Husband asserts that the trial court abused its discretion by failing to
allocate to him as separate property the $70,758 in his premarital business bank
account at Park National Bank. The trial court found that the funds were significantly
comingled with marital property and found that husband failed to provide sufficient
tracing evidence to prove the money remained his separate property.
{¶19} Husband submitted a statement from his business account at Park
National Bank, which covered the period between January 31, 2017, and February 28,
2017. The statement showed that husband had $70,758 in the account as of February
16, 2017, the date of the parties’ marriage. The statement also showed that the balance
of that account went down to $49,538.92 as of February 28, 2017. Husband
additionally submitted a statement from his business account at First Financial Bank,
which covered the period between December 2, 2019, and December 31, 2019. This
statement showed an ending balance of $192,816.19 as of December 31, 2019, the last
day of the parties’ marriage. No evidence was presented to show any transfer of funds
from the account at Park National Bank to the account at First Financial Bank. Thus,
the only tracing evidence presented by husband was the balance of the Park National
account on the first day of the marriage, and the balance of the First Financial account,
where he asserted the funds were transferred, on the last day of the marriage.
Husband asserts that this was sufficient tracing evidence as it showed that the account
balance never fell below $70,758. However, the Park National Bank statement showed
that the account balance fell to $49,538.92 as of February 28, 2017. Additionally,
without any connecting evidence, the evidence failed to show that the money in the
First Financial account was in fact the money from the Park National Bank account.
{¶20} The lack of sufficient tracing evidence is further demonstrated by the
trial court’s apparent confusion on which account husband was claiming the funds
were transferred to, his personal account or his business account at First Financial.
The trial court found that the funds were transferred to husband’s personal checking
account at First Financial Bank. This is likely because that is what husband argued in
his written closing argument to the trial court. However, husband’s testimony at trial
was that the funds were transferred into his business account, his objections to the
magistrate’s decision claimed the funds were transferred into his business account,
and his argument here on appeal is that the funds were transferred into his business
{¶21} Nevertheless, any error by the trial court was harmless as husband
agreed at trial that the funds in his personal checking account were marital property,
and he does not present any argument here on appeal that allocating this account as
marital was improper. See Civ.R. 61; Civ.R. 75(A); Knor v. Parking Co. of Am., 73
Ohio App.3d 177, 189, 596 N.E.2d 1059 (1st Dist.1991), citing Civ.R. 61 (“An appellate
court will not reverse a judgment on the basis of any error that is harmless.”). The trial
court ultimately allocated both First Financial Bank accounts in their entirety as
marital and we cannot say this was not supported by sufficient evidence in the record
or that it was against the manifest weight of the evidence. Accordingly, this
assignment of error is overruled.
Reimbursement for Payment of Expenses
{¶22} Without listing any of the specific expenses to which he is referring,
husband argues that he paid “numerous expenses” on behalf of wife during the
pendency of this action and asserts that it was an abuse of discretion for the trial court
to fail to allocate these expenses because it permitted wife to retain the benefit of such
payments, which rendered an unequal division of property. He then makes a
conclusory statement that the property division must be equitable if it is not equal.
However, he does not assert any further argument or point to any legal authority to
show why this resulted in an inequitable division of property.
{¶23} “ ‘ “It is not the duty of an appellate court to search the record for
evidence to support an appellant’s argument as to any alleged error.” ’ ” Heimann v.
Heimann, 3d Dist. Hancock No. 5-21-11, 2022-Ohio-241, ¶ 49, quoting Rodriquez v.
Rodriguez, 8th Dist. Cuyahoga No. 91412, 2009-Ohio-3456, ¶ 7. Under App.R.
16(A)(7), husband had a duty to present “[a]n argument containing the contentions of
appellant with respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities, statutes, and
parts of the record on which appellant relies.” (Emphasis added.) Because he failed
to do so, we disregard this assignment of error. See App.R. 12(A); App.R. 16(A)(7);
Victor v. Kaplan, 2020-Ohio-3116, 155 N.E.3d 110, ¶ 102 (8th Dist.); Kapadia v.
Kapadia, 8th Dist. Cuyahoga No. 94456, 2011-Ohio-2255, ¶ 30.

Outcome: Having overruled or disregarded each assignment of error, we affirm
the judgment of the trial court.

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