Beyer v. Beyer

2024 Ohio 1278

• Court: Ohio Court of Appeals
• Decided: April 4, 2024
• Docket: 112887 & 112912
• Status: Published

Opinion

[Cite as Beyer v. Beyer, 2024-Ohio-1278.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MEGAN COLOSIMO BEYER, :

Plaintiff-Appellant/ : Cross-Appellee, Nos. 112887 and 112912

v. :

JAMES S. BEYER, JR., :

Defendant-Appellee/ Cross-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; VACATED IN PART; AND REMANDED RELEASED AND JOURNALIZED: April 4, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-22-388896

Appearances:

Costanzo & Lazzaro, P.L.L., and Raymond J. Costanzo, for appellant/cross-appellee.

Rosenthal│Lane, L.L.C., Scott S. Rosenthal, and Alarra S. Jordan, for appellee/cross-appellant.

SEAN C. GALLAGHER, J.:

Megan Colosimo Beyer (“Wife”) appeals the decision of the Cuyahoga

County Court of Common Pleas, Domestic Relations Division, advancing arguments pertaining to issues of child support, division of property, and her failure to comply

with the domestic relations court’s mutual restraining order. James S. Beyer, Jr.

(“Husband”), cross-appeals from the domestic relations court’s child support and

cash medical support orders. For the following reasons, we affirm in part, vacate in

part, and remand for further proceedings consistent with this opinion.

I. Background

Wife and Husband were married in November 2014. Wife filed a

complaint for divorce on March 3, 2022; Husband filed an answer and

counterclaim. At the time of trial, which commenced on March 21, 2023, the parties

had two minor children, ages ten and six. Prior to trial, Husband and Wife filed a

shared parenting plan, leaving only the issues of property division and support for

trial.

After trial, the domestic relations court issued a written decision (1)

finding that the marital home was Husband’s separate property but awarding Wife

$36,000 as satisfaction of her interest in the property, less $1,387.91 based on Wife’s

violation of a mutual restraining order; (2) awarding the parties their own vehicles,

bank accounts, and credit cards; (3) awarding Wife her cosmetology business, Suite

Sashay, LLC, as well as the numerous items of personal property from the marital

home listed on Wife’s exhibit No. 9; (4) awarding Wife 50 percent of Husband’s

401(k) earned through his employment at Momentive Technologies Materials; and

(5) ordering Husband to pay $734.18 per month child support ($367.09 per month per child) and $37.11 per month cash medical support effective May 1, 2023.1 Wife

appealed, and Husband cross-appealed from these decisions.

II. Law and Analysis

A. Wife’s Appeal

1. The Marital Home

At trial, the parties stipulated that the value of the home at the time

of trial was $200,000. In its judgment entry of divorce, the domestic relations court

found that as demonstrated by the warranty deed and mortgage documents

produced by Husband at trial, Husband purchased the home in 2010 for $128,600.

He made a down payment of $1,709 with monies from his Citizens Bank account

and financed the remainder of the purchase price with a $126,891 mortgage in his

name.

The domestic relations court found that Husband acquired the home

prior to the date of the marriage and that it was therefore his separate property

pursuant to R.C. 3105.171(A)(6)(a)(ii), which provides that “separate property”

means real property “that was acquired by one spouse prior to the date of the

marriage.” The court further found that although “Wife attempts to assert that she

is entitled to some interest in the real property,” she “failed to present any evidence

of the value of the property at the time of the marriage or income and appreciation

1 A copy of the parties’ shared parenting plan was attached as Exhibit A to the

court’s judgment entry and a copy of the child support computation worksheet was attached as Exhibit B. on separate property due to labor, monetary, or in-kind contributions of either or

both spouses that occurred during the marriage.” See R.C. 3105.171(A)(3)(a)(iii).

Despite the court’s conclusion, it found that “based on testimony presented at trial,”

Wife’s interest in the property was valued at $36,000, less $1,387.91 for her violation

of the court’s mutual restraining order. Accordingly, although the court ordered that

the marital home was Husband’s separate property, it ordered Husband to pay Wife

$34,612.09 to settle what represented Wife’s interest in the appreciated value of the

property.

In her first assignment of error, consisting of two paragraphs of

discussion and analysis, Wife contends that the domestic relations court erred in

finding that the marital home was Husband’s separate property. According to Wife,

when “commingled marital funds are used to pay expenses of separate real estate,

the real estate is properly considered marital property subject to equitable division

under R.C. 3105.171(C)(1).”

R.C. 3105.171 governs the domestic relations court’s determination of

whether assets are marital or separate. Marital property generally includes all

property acquired by either spouse during the marriage, and separately, the

appreciation of (or income derived from) separate property due to the labor,

monetary, or in-kind contributions of either party during the marriage. R.C.

3105.171(A)(3)(a)(i) and (iii). Marital property does not include separate property.

R.C. 3105.171(A)(3)(b). “Separate property” includes all real and personal property

that was acquired by one spouse prior to the marriage, and distinct from that, any “passive income and appreciation acquired from separate property by one spouse

during the marriage.” R.C. 3105.171(A)(6)(a)(ii) and (iii).

Thus, in pertinent part, there are two separate inquiries with respect

to dividing property, especially where real property is concerned: (1) is the property

itself separate, and if so, (2) is the appreciation of that property considered separate

property that is independently traceable. See, e.g., Ockunzzi v. Ockunzzi, 8th Dist.

Cuyahoga No. 86785, 2006-Ohio-5741, ¶ 23 (husband traced the premarital equity

for the purposes of demonstrating that portion of the equity was separate property

and the trial court erred in concluding otherwise).

For the purposes of evaluating real estate, the issue in this appeal, if

one spouse traces the property to a premarital purchase with separate funds, that

real property acquired before marriage is deemed separate property.

R.C. 3105.171(A)(6)(a)(ii) and (A)(6)(b). After that, the inquiry shifts to the

appreciation or passive income derived from that separate property, which also

remains separate property under a different provision of the statute,

R.C. 3105.171(A)(6)(a)(iii), if the passive income or appreciation is traceable.

Appreciation and income derived from separate property is a separate consideration

under the statute, which is addressed only if the property is deemed separate

However, not all appreciation or income from property is considered

separate property. If the income or appreciation of separate property is “due to the

labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage” that appreciation or income is deemed marital

property. R.C. 3105.171(A)(3)(a)(iii). Thus, in order to demonstrate that the

appreciation and income derived from the separate property should remain separate

property, the proponent must demonstrate that the appreciation of the asset or the

income derived therefrom is traceable as separate property. See, e.g., Ockunzzi at

¶ 23. But if the appreciation or income was due to marital labor or funds, the

appreciation or income is considered marital property. Even if the appreciation or

income was due to marital labor or funds, however, that does not convert the

separate property into marital property. Only the appreciation or income on or from

the separate property is deemed marital property. R.C. 3105.171(A)(3)(a)(iii).

In this appeal, Wife argues that the domestic relations court erred by

considering the home separate property of Husband but assigns no error to the

domestic relations court dividing the purported appreciation in the value of the

home equally among the parties. According to the domestic relations court, the

home was valued at $200,000 based on the earlier purchase price of approximately

$128,000, roughly leaving $72,000 in appreciation as of the trial. Half of that was

awarded to Wife, and neither party disputes that calculation or determination in this

appeal.

Wife instead claims that the real property itself is also marital

property. It is undisputed, however, that the home was purchased by Husband

before the marriage and is traceable to his own funds acquired before the marriage.

There is no evidence that Wife contributed, financially or otherwise, to the purchase of the home. Under R.C. 3105.171(A)(6)(a)(ii) and (A)(6)(b), the real property is

separate property — Husband provided proof that the real property was purchased

before the marriage with his own funds. See, e.g., Favri v. Favri, 7th Dist. Carroll

No. 22 CA 0955, 2022-Ohio-2063, ¶ 27 (use of marital funds for home improvement

did not destroy the separate property classification), citing Akers v. Akers, 2015-

Ohio-3326, 40 N.E.3d 699, ¶ 13 (7th Dist.).

Wife should be arguing either of two things: that the appreciation in

the value of the home is marital property under R.C. 3105.171(A)(3)(a)(iii) based on

the use of marital funds during the marriage to pay for expenses and contributing to

appreciation or that Husband cannot demonstrate that the appreciation of the

separate property is itself separate property under R.C. 3105.171(A)(6)(a)(iii). She

failed to demonstrate that any appreciation was due to her contribution under R.C.

3105.171(A)(3)(a)(iii), a finding by the domestic relations court not contested in this

appeal. See App.R. 16(A)(7); State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-

4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-

2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part),

and Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). And, Wife has not argued,

demonstrated, or discussed whether Husband proved that the appreciation of the

real property was separately traceable.

Instead, as already mentioned, Wife contends that the domestic

relations court erred in determining that the entirety of the real property was

Husband’s separate property because although Husband admittedly purchased the home prior to the parties’ marriage, commingled marital funds were used to pay the

mortgage, taxes, insurance, maintenance, and improvements to the home during

the marriage. On that alone, Wife’s argument must fail. Under R.C.

3105.171(A)(6)(a)(ii) and (A)(6)(b), the commingling of funds alone does not

destroy the identity of the separate property that is otherwise traceable. In this case,

Husband affirmatively demonstrated that he purchased the property before the

marriage with his own funds, i.e., he traced the purchase to his premarital assets.

Wife bases her entire argument on the narrow proposition that “if

commingled marital funds were used to pay the expenses of separate real estate, the

real estate is properly considered marital property subject to equitable division.”

Johnson v. Mills, 8th Dist. Cuyahoga No. 102241, 2015-Ohio-4273, ¶ 27, citing

Robinette v. Robinette, 8th Dist. Cuyahoga No. 88445, 2007-Ohio-2516, ¶ 23.

Johnson, however, cannot stand for that proposition since it directly contradicts

R.C. 3105.171(A)(6)(b), which unambiguously provides that 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.” (Emphasis added.) Thus, under the statute, “traceability becomes the

focus in determining whether separate property has lost its character after being

commingled with marital property.” Lichtenstein v. Lichtenstein, 8th Dist.

Cuyahoga No. 108854, 2020-Ohio-5080, ¶ 21, citing Peck v. Peck, 96 Ohio App.3d

731, 645 N.E.2d 1300 (12th Dist.1994); Robinette at ¶ 23. Commingling alone is not

sufficient to deem the property to be marital property. Robinette understood the distinction between commingling and traceability, but that distinction did not make

its way into Johnson’s analysis. Robinette at ¶ 23.

Johnson appears to have converted the traceability inquiry into a

focus on the commingling of assets. Accepting Wife’s narrow proposition quoting

Johnson in isolation would force this panel to contradict the statutory and binding

case authority. R.C. 3105.171(A)(6)(b); Ockunzzi, 8th Dist. Cuyahoga No. 86785,

2006-Ohio-5741, at ¶ 23. We cannot accept that invitation. And it is for this reason

that our decision does not create a conflict in this district. In light of the binding

authority, which must be adhered to, the law is settled in this district that the

primary concern involving separate property under R.C. 3105.171(A)(6)(b) is

traceability, not the mere commingling of funds. Johnson is an outlier, limited to

the particular facts before that panel.

We are further hampered by the limited briefing. In this appeal, Wife

asks this panel to follow Johnson, but she provides no context, discussion, or

argument discussing the totality of the statutory authority. See App.R. 16(A)(7). She

further does not address the fact that the domestic relations court awarded her

$36,000 (less the penalty for her violation of a restraining order) for her equitable

interest in the appreciated value of the home despite her inartful framing of the

issue. As the court unambiguously concluded, the house was valued at $200,000 at

the time of the divorce upon agreement of the parties, and Wife was awarded

$36,000 representing her half interest in that total appreciation as calculated based on the purchase price of the property. Neither party challenges the amount of that

award in this appeal nor the calculation of the appreciated value in the home.

In light of the fact that (1) accepting the statement from Johnson

would require this panel to ignore the combination of R.C. 3105.171(A)(6)(a)(ii),

(A)(6)(b), and (A)(3)(a)(iii), along with binding authority from this district, and (2)

that Wife’s discussion presented does not account for the totality of the law or the

judgment below, the first assignment of error is overruled.2

2. Child Support

In her second assignment of error, Wife asks this court to reverse the

domestic relations court’s child support calculation because it used inaccurate

income figures in calculating Husband’s child support obligation.

A domestic relations court’s decision regarding child support

obligations will not be reversed on appeal absent an abuse of discretion. In re

M.L.H., 8th Dist. Cuyahoga No. 110031, 2021-Ohio-2681, ¶ 12. “‘Abuse of

discretion’ is a term of art, describing a judgment neither comporting with the

2 We recognize that Wife’s reply brief includes further analysis and discussion

omitted from her initial briefing, especially as it pertains to the first and second assignments of error. Although the reply brief was reviewed, we cannot base our decision on the discussion and analysis provided for the first time therein, even though that discussion and analysis could arguably be considered extensions of the original arguments that were presented in a cursory fashion. We cannot condone the tactic of presenting a short argument in the opening brief only to present a more detailed version of the analysis and discussion in reply after the appellee has responded. That tactic, of tersely mentioning a potential issue in the opening brief and then supporting the conclusionary argument with analysis and a discussion for the first time in a reply brief, deprives the appellee of any opportunity to respond. See, e.g., Suburban Natural Gas Co. v. Columbia Gas of Ohio, Inc., 162 Ohio St.3d 162, 2020-Ohio-5221, 164 N.E.3d 425, ¶ 15, fn. 2. record, nor reason.” Klayman v. Luck, 8th Dist. Cuyahoga Nos. 97074 and 97075,

2012-Ohio-3354, ¶ 12, citing State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E.

362 (1925). “A decision is unreasonable if there is no sound reasoning process that

would support that decision.” AAAA Ents. Inc. v. River Place Community Urban

Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

Wife contends, limiting this discussion and analysis to three

paragraphs, that the domestic relations court erred in using the Social Security and

Medicare wages of $52,968.98, reflected on Husband’s 2022 year-end pay stub

(Wife’s exhibit No. 1), as his “gross income” for 2022 instead of his year-to-date

earnings of $61,911.15 as reflected on the pay stub. She also claims that the court

overstated her “self-generated income” by almost $20,000. It should be noted,

however, that the domestic relations court did not include Husband’s 2022 income

as “gross income” in the worksheet. The income for 2022 was listed under the

“annual amount of overtime, bonuses, and Commissions” section. It is unclear from

the limited argument presented whether that impacts the outcome.

For the purposes of this appeal, it must be noted that the second

assignment of error, as presented in the opening brief, contains no case or statutory

authority supporting the arguments presented, nor any discussion or analysis upon

which it could be concluded that reversible error occurred. See App.R. 16(A)(7);

Russo v. Gissinger, 9th Dist. Summit No. 29881, 2023-Ohio-200, ¶ 30.3

3 See fn. 2 above. Accordingly, we will not delve deeper. It is not an appellate panel’s role to provide

the necessary authority and analysis to justify a decision to reverse the lower court.

See Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900.

It suffices for the purposes of this appeal that Wife has not

demonstrated that the domestic relations court abused its discretion with respect to

the factual foundation establishing the parties’ income for the purposes of the child

support computation worksheet. The second assignment of error is overruled.

3. Mutual Restraining Order

Upon the filing of the complaint for divorce, the domestic relations

court issued a mutual restraining order, enjoining each party from, among other

things, “incurring debt on existing lines of credit or credit cards in the name of the

other spouse or in the spouses’ joint names, unless by prior agreement of the spouse

or order of the court.”

Husband testified at trial that during the marriage, Wife paid for the

gas, water, sewer, and electric bills related to the marital residence and he paid the

mortgage and insurance. Wife acknowledges in her appellate brief that this was

indeed the parties’ custom during the marriage. (Appellant/Cross-appellee’s brief,

p. 9.) Husband testified that during the pendency of the divorce proceedings, while

the parties and their minor children were living in the marital residence, he received

shutoff notices for the utilities several times. He testified that he “had to pay $2,000

more than one time” to keep the utilities current. Husband produced Exhibit W at

trial, which contained, among other invoices, an invoice for $1,387.91 from the Northeast Ohio Regional Sewer District, dated August 22, 2022, that Husband

testified he had to pay because Wife had not done so. The domestic relations court

found that Wife’s failure to pay this bill was a violation of the mutual restraining

order and awarded Husband $1,387.91 for Wife’s violation of the order.

In her third assignment of error, Wife contends that the domestic

relations court’s ruling was an abuse of discretion. We find no merit to this

argument.

Although Wife contends that she “cancelled” many of the parties’

customs regarding bill payment from September 2019 to September 2020, when she

stopped working to care for the parties’ younger son, she cites to no trial testimony

or other documentation that supports this assertion.4 We agree that Husband’s

Exhibit W contains several invoices that Husband presumably paid because Wife

did not, but we recognize that those invoices are from 2021, before the complaint for

divorce was filed, and that they would therefore not be subject to the restraining

order. Nevertheless, the invoice for $1,387.91 from the Northeast Ohio Sewer

District contained in Husband’s Exhibit W was dated August 22, 2022, which was

during the pendency of the divorce proceedings. Because Wife did not pay this

4 Husband’s and Wife’s trial testimony established that their younger son was

diagnosed with cancer in September 2019. Wife closed her business for approximately one year during the child’s treatment, and Husband took extensive time off work, including using time offered by the Family Medical Leave Act several times and a Family Hardship Leave granted by his employer. Wife’s cousin started a GoFundMe campaign that elicited approximately $2,000 in donations for the family, and Husband withdrew approximately $30,000 from his 401(k) account during this time to assist with the family’s finances. utility bill as was her responsibility, we find that the domestic relations court did not

abuse its discretion in concluding that Wife’s failure to pay the invoice caused

Husband to incur debt he otherwise would not have had, in violation of the court’s

mutual restraining order, and awarding Husband $1,387.91, the amount of the

invoice, for her violation. The third assignment of error is overruled.

B. Husband’s Cross-Appeal

1. A Downward Deviation in Child Support Calculation

In his first cross-assignment of error, Husband contends that the

domestic relations court erred in ordering that he pay $771.29 per month in child

support because although the court concluded in its journal entry that a 10 percent

downward deviation in child support was warranted because of Husband’s extended

parenting time, the child support computation worksheet reflects an upward

deviation of $66.74 instead of a downward deviation. Wife concedes the error.

Upon remand, the domestic relations court is instructed to apply the 10 percent

downward deviation to Husband’s child support obligation. The first cross-

assignment of error is sustained.

2. Cash Medical Support

Husband next contends that the domestic relations court erred by not

deviating the cash medical support amount to $0.00 because the parties specifically

agreed in the shared parenting plan that Husband would maintain the children’s

medical insurance and the parties would split the medical costs equally. R.C. 3119.30(C)(1) states that “cash medical support” is “an amount

ordered to be paid in a child support order toward the medical expenses incurred

during a calendar year.” The domestic relations court’s journal entry included this

definition of cash medical support, but then, despite the parties’ agreement in the

shared parenting plan that “medical expenses not covered by insurance shall be split

equally between the parties” and that “health care expenses for the minor children

shall be paid equally by the parties,” the domestic relations court ordered Husband

to pay Wife cash medical support. We find this to be an abuse of discretion.

Wife contends that because the domestic relations court issued a child

support order, it was required pursuant to R.C. 3119.30(C) to issue a cash medical

support amount to be paid with Husband’s child support order. R.C. 3119.30(C)

states that “[w]hen a child support order is issued, the order shall include a cash

medical support order consistent with division (B) of section 3119.302 of the Revised

Code for each child subject to the order.” R.C. 3119.302(B) states that the director

of job and family service shall periodically update the amount of cash medical

support obligation to be paid pursuant to R.C. 3119.30(C).

Although the domestic relations court is required by law to enter a

cash medical support order, neither statute prohibits the court from deviating from

the amount of cash medical support calculated on the child support computation

worksheet. Indeed, Ohio courts have recognized that R.C. 3119.22 and 3119.23 allow

a court to deviate from the cash medical support amount calculated on the

worksheet and order payment of $0.00 in cash medical support in appropriate circumstances.5 See Macknight v. Macknight, 12th Dist. Butler No. CA2021-07-

078, 2022-Ohio-648 (affirming the domestic relations court’s downward deviation

of the child support calculation and its full deviation of cash medical support to

$0.00); Siders v. Siders, Union C.P. No. 09 DR 0043, 2009 Ohio Misc. LEXIS 12483

(July 1, 2009) (court ordered that neither party would pay cash medical support,

finding that a deviation of the cash medical support amount was appropriate under

R.C. 3119.22 because if cash medical support were ordered, the in-kind

contributions of the parent under the shared parenting plan would have to be

decreased and the standard of living of the parent and the children would suffer);

Smith v. Smith, Summit C.P. No. 15 DR-A 0253, 2015 Ohio Misc. LEXIS 26318

(Dec. 3, 2015) (obligor ordered to pay obligee $0.00 per month in cash medical

support because upon consideration of the deviation factors set forth in R.C. 3119.23

as applied to the facts of the case, the cash medical support computation from the

child support computation worksheet would be “unjust, inappropriate, and not in

the children’s best interest.”).

We reach the same result here. Because Husband and Wife expressly

agreed in the shared parenting plan to split the children’s medical expenses equally,

it would be unjust to order Husband to nevertheless pay Wife cash medical support.

Accordingly, we reverse the domestic relations court’s order that Husband pay cash

5 R.C. 3119.22 provides that a court may deviate from the amounts calculated on

the child support computation worksheet if the court determines, after considering the R.C. 3119.23 deviation factors, that the amount calculated would be unjust or inappropriate and therefore not in the best interest of the child. medical support and remand for the court to enter an order that Husband pay $0.00

per month in cash medical support. Husband’s second cross-assignment of error is

sustained.

3. Effective Date of Child Support

Last, Husband contends that the domestic relations court erred by

ordering his child support obligation effective as of May 1, 2023. Husband contends

that Wife and the children were still living in the marital residence as of May 1, 2023,

and that his child support obligation should not have begun until after Wife moved

out of the residence.

Husband cites to nothing in the record to support his assertion that

Wife remained in the home after May 1, 2023, nor to any case law demonstrating

that the domestic relations court abused its discretion in ordering Husband’s child

support effective as of May 1, 2023. Accordingly, the third cross-assignment of error

is overruled.

III. Conclusion

In sum, we vacate the court’s child support order and remand for

recalculation consistent with this opinion; we also vacate the court’s order of cash

medical support. We affirm the domestic relations court’s decision in all other

respects.

Affirmed in part; vacated in part; and remanded.

It is ordered that the parties share equally costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, J., CONCURS; KATHLEEN ANN KEOUGH, A.J., CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION)

KATHLEEN ANN KEOUGH, A.J., CONCURRING IN PART AND DISSENTING IN PART:

Respectfully, I concur in part and dissent in part.

With respect to the first assignment of error, I concur with the

majority’s conclusion that the marital residence was Husband’s separate property.

I further find that the trial court did not abuse its discretion in dividing the

appreciation in the value of the home equally between the parties. See Hampton v.

Hampton, 8th Dist. Cuyahoga No. 78091, 2001 Ohio App. LEXIS 3018, 10 (July 5,

2001) (a trial court reviews the trial court’s division of marital property for an abuse

of discretion).

Nevertheless, I would find that the trial court abused its discretion in

not equitably dividing the reduction in the mortgage during the marriage between

Husband and Wife. “Any reduction in the amount of a mortgage during the

marriage by payment with marital funds contributes to the equity in the property and becomes marital property.” Forbis v. Forbis, 6th Dist. Wood Nos. WD-04-056

and WE-04-063, 2005-Ohio-5881, ¶ 62, citing Ray v. Ray, 9th Dist. Medina No.

03CA0026-M, 2003-Ohio-6323, ¶ 8; see also Gosser v. Gosser, 11th Dist. Trumbull

No. 2006-T-0029, 2007-Ohio-3201, ¶ 42 (any reduction of the mortgage on the

marital residence during the marriage by payment of marital funds is marital

property subject to equitable division).

Importantly, although it is undisputed that during the marriage Wife

paid the utilities related to the property from the profits of her business, Wife’s or

any spouse’s entitlement to an equitable distribution of the mortgage reduction is

not dependent on that spouse’s financial contribution to the mortgage reduction or

expenses related to the marital home. Where marital funds are used to pay the

mortgage, a spouse is entitled to an equitable distribution of any mortgage reduction

simply by virtue of being married. See Goebel v. Werling, 9th Dist. Summit No.

19385, 1999 Ohio App. LEXIS 3443, 3 (July 28, 1999) (“The reduction in a mortgage

during a marriage is equivalent to a marital investment and is considered part of the

marital equity.”).

In this case, it cannot be reasonably disputed that marital funds were

used to pay down the mortgage. Husband’s argument that no marital funds were

used to pay the mortgage because his wages from his employment during the

marriage were deposited into his separate bank account, from which he paid the

mortgage, ignores the fact that income earned by a spouse from employment during

the marriage is considered marital funds. R.C. 3105.171(3)(a). Husband’s and Wife’s maintenance of separate bank accounts does not transform wages earned

during the marriage and deposited into those accounts into personal property.

Accordingly, I would find that because marital funds were used to pay

down the mortgage, the mortgage debt reduction should have been classified as

marital property, and therefore, the trial court abused its discretion in not making

that classification and in failing to equitably distribute the mortgage debt reduction

between Husband and Wife. I would remand for recalculation of Wife’s interest in

the marital home to include an equitable distribution of the mortgage debt

reduction.

I otherwise concur with the remainder of the majority’s decision.