[Cite as Hall v. Hall, 2018-Ohio-4453.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
Cleadis Hall Court of Appeals No. S-18-011
Appellant Trial Court No. 16DR99
v.
Shirley Hall DECISION AND JUDGMENT
Appellee Decided: November 2, 2018
*****
Joseph F. Albrechta, John A. Coble, and George J. Schrader, for appellant.
Lisa M. Snyder, for appellee.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Sandusky County Court of
Common Pleas, Domestic Relations Division, which granted the parties a divorce and determined the separate property classification of disputed funds. For the reasons set
forth below, this court affirms the judgment of the trial court.
{¶ 2} On February 8, 2016, plaintiff-appellant Cleadis Hall (hereafter “Mr. Hall”)
filed a complaint for divorce against defendant-appellee Shirley Hall (hereafter “Mrs.
Hall”) after nearly 40 years of marriage. Mr. Hall alleged incompatibility with Mrs. Hall.
On March 2, 2016, Mrs. Hall answered the complaint and counter-claimed for divorce
alleging “gross neglect of duty and extreme cruelty.” The parties were married on
August 12, 1978, and separated on February 8, 2016, the date of Mr. Hall’s divorce
filing. Their “relationship deteriorated in December of 2015,” prior to the separation,
when Mrs. Hall alleged a domestic violence incident by Mr. Hall. Following a period of
discovery and mediation, evidentiary hearings were held on May 17, 2017, and on
January 3, 2018. As journalized on February 22, 2018, the trial court filed a decision and
judgment entry granting the parties a divorce due to incompatibility and determined,
among other matters, certain disputed funds as the separate property of Mrs. Hall, of
which Mr. Hall received none.
{¶ 3} Mr. Hall sets forth two assignments of error:
I. The trial court erred by finding that Mrs. Hall possessed $36,500.00 in
separate funds arising from a wrongful death settlement.
II. The trial court erred in finding that alleged gift of Mrs. Hall’s children
was separate property.
{¶ 4} We will address the assignments of error together.
2. A. Separate Property Classification
{¶ 5} Neither party disputes in a divorce proceeding the trial court is required to
determine what constitutes marital property and separate property. R.C. 3105.171(B).
{¶ 6} “Marital property” is not “separate property.” R.C. 3105.171(A)(3)(b).
“Separate property” is defined as “all real and personal property and any interest in real
or personal property that is found by the court to be any of the following,” including,
“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.” R.C. 3105.171(A)(6)(a)(ii). “Separate
property” also includes, “Compensation to a spouse for the spouse’s personal injury,
except for loss of marital earnings and compensation for expenses paid from marital
assets.” R.C. 3105.171(A)(6)(a)(vi). “Separate property” also includes, “Any gift of any
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.” R.C. 3105.171(A)(6)(a)(vii).
{¶ 7} Further, “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. 3105.171(A)(6)(b).
{¶ 8} We review a trial court’s factual findings on the classification of marital and
separate property pursuant to R.C. 3105.171 under a manifest weight of the evidence
standard. Okos v. Okos, 137 Ohio App.3d 563, 569-570, 739 N.E.2d 368 (6th Dist.2000),
citing Barkley v. Barkley, 119 Ohio App.3d 155, 159, 694 N.E.2d 989 (4th Dist.1997).
3. Consequently, we will not reverse the trial court’s decision if it is supported by some
competent and credible evidence. Hook v. Hook, 189 Ohio App.3d 440, 2010-Ohio-
4165, 938 N.E.2d 1094, ¶ 18 (6th Dist.), citing Schober v. Schober, 6th Dist. Ottawa No.
OT-08-061, 2009-Ohio-4408, ¶ 27. Competent evidence is admissible evidence for the
purpose of proving a relevant fact. In re Meeks, 11th Dist. Lake No. 95-L-050, 1995
Ohio App. LEXIS 4369, *13-14 (Sep. 29, 1995), citing 29 American Jurisprudence 2d,
Evidence, Section 257 at 307-308 (1995). Credible evidence means evidence found
worthy of being believed. See State v. Stone, 6th Dist. Sandusky No. S-06-026, 2007-
Ohio-752, ¶ 20.
{¶ 9} The burden of proof is generally on the party seeking to have the property
declared separate by a preponderance of the evidence standard to trace the asset to
separate property. Hook at ¶ 19, citing Okos at 570. However, where the separate
property being proven is pursuant to R.C. 3105.171(A)(6)(a)(vii), the burden of proof is
clear and convincing evidence. Clear and convincing evidence means “that degree of
proof which will provide in the mind of the trier of fact a firm belief or conviction as to
the facts sought to be established.” Hook at ¶ 19, quoting Barkley at 168-169. “Clear and
convincing evidence” is more than a mere preponderance of the evidence but less than
the certainty required for “beyond a reasonable doubt” in criminal cases. State ex rel.
Cincinnati Enquirer v. Deters, 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶
19, citing Cross v. Ledford, 161 Ohio St. 469, 471, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
4. {¶ 10} We will not reweigh the evidence introduced to the trial court; rather, we
will uphold the findings of the trial court if the record contains some competent and
credible evidence to support the trial court’s conclusions. Fletcher v. Fletcher, 68 Ohio
St.3d 464, 468, 628 N.E.2d 1343 (1994), citing Ross v. Ross, 64 Ohio St.2d 203, 204, 414
N.E.2d 426 (1980).
{¶ 11} In support of his first assignment of error, Mr. Hall argued Mrs. Hall
withdrew $36,500 in cash from undisclosed bank accounts in December 2015 that “were
held, concealed and disbursed during the term of the marriage” making them marital
property pursuant to R.C. 3105.171(A)(3). Mr. Hall further argued Mrs. Hall failed to
meet her burden with clear and convincing evidence the money was not for loss of
consortium for personal injuries suffered by her first husband pursuant to R.C.
3105.171(A)(6)(a)(vi). Mr. Hall further argued Mrs. Hall did not trace the money to prior
to their marriage as originating from the deaths of her previous husband and son pursuant
to R.C. 3105.171(A)(6)(a)(ii), because she and her children were not credible and did not
provide any documentary evidence.
{¶ 12} In support of his second assignment of error, Mr. Hall argued the trial court
erred by applying the “wrong [preponderance] standard of evidence” to the gifts from her
children rather than the higher clear and convincing evidence standard of review required
by R.C. 3105.171(A)(6)(a)(vii). Mr. Hall argued Mrs. Hall’s evidence was murky at best
and far from meeting the standard of clear and convincing evidence.
5. {¶ 13} In response to both assignments of error, Mrs. Hall argued the trial court
did not commit any error. Mrs. Hall argued the $36,500 in dispute was derived from
$40,000 comprised as follows: (1) gifts of $10,000 from each of her three surviving
children, and (2) an additional $10,000 from “the proceeds remaining from a certain
wrongful death actions involving Appellee’s first husband and a child of that
relationship.” Mrs. Hall argued she met her burden of proof of preponderance of the
evidence to show the $36,500 in dispute was separate property acquired prior to the
marriage pursuant to R.C. 3105.171(A)(6)(a)(ii). Mrs. Hall further argued she met her
burden of proof by clear and convincing evidence to show $30,000 of the total amount in
dispute was separate property pursuant to gifts from her three surviving children pursuant
to R.C. 3105.171(A)(6)(a)(vii).
{¶ 14} Applying the appropriate legal standard is a question of law, which we
review on a de novo basis. Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972
N.E.2d 586, ¶ 13.
{¶ 15} The record shows the May 17, 2017 hearing concluded with the parties
agreeing to all matters except for one. To resolve the dispute, they agreed to additional
time for Mrs. Hall to prove the tracing of “approximately 38 to $40,000 * * * for which
[Mrs. Hall] is asserting a separate property interest by gifts from her children.” The trial
court concurred with that approach as reflected in its June 21, 2017 journalized judgment
entry:
6. The parties have hereby entered and read onto the record an
agreement on all issues relating [to] the marriage but for one. That issue
being the marital or separateness of some $36,500.00 that was deposited
and withdrawn from Defendant’s Fremont Federal Credit Union account
between October 2015 and December 2015. Upon agreement of the parties
and of the Court, Counsel for Defendant shall submit to Counsel for
Plaintiff all documents in Defendant’s possession regarding the tracing of
the $36,500.00 in the Fremont Federal Credit Union account. Should the
parties not reach an agreement regarding the reserved issue within thirty
(30) days, the matter shall be set for final hearing on that sole issue.
{¶ 16} The record contains affidavits filed on June 14, 2017, from Mrs. Hall and
her three surviving adult children, Shirley Marie Zeigler, Mary Denise Dennis and
Rodney Sharp, regarding the tracing of the funds in dispute. A fourth adult child,
Jeannie, “passed away from cancer during the pendency of the divorce.”
{¶ 17} Mrs. Hall averred in her affidavit dated June 5, 2017, that following the
December 2015 domestic violence incident involving Mr. Hall, she:
[E]xpressed concern to my four children about my financial stability
if Mr. Hall and I were divorced. Around this time, my children offered to
contribute funds sufficient for me to pay off the mortgage on our Clyde
residence and attorney fees to my lawyer for the divorce action. I had
previously gifted to my children certain funds I received from wrongful
7. death claims involving their father and brother. My children gifted back to
me some of those funds as follows: (a) Shirley Marie Zeigler the sum of
$10,000.00; (b) Mary Denise Dennis the sum of $10,000.00; and (c)
Rodney Sharp [the] sum of $10,000.00. * * * In December 2015, Mr. Hall
started to move funds from our accounts without my knowledge or consent.
I was able to secure the sum of $10,000.00 from a bank account that I
moved into my individual name which offset the cash that Mr. Hall took
when we separated. Mr. Hall admitted to taking the cash and never
objected to my making the withdrawal, presumably because he had already
taken more than his share. This was before the divorce was filed. The
funds I received from my children were gifted from my children for my
financial stability and are to be considered a gift in consideration of the
circumstances. There is no obligation for me to repay my children these
sums. I took the $30,000.00 received from my children, plus the
$10,000.00 that I had from my separation from Mr. Hall, and invested the
$40,000.00 in a Certificate of Deposit at Croghan Colonial Bank. Copies
of the receipts for the deposits for the CD are attached hereto. The funds
are still on deposit as security for the payment of my mortgage and my
attorney fees.
8. {¶ 18} Shirley Marie Zeigler and Marie Denise Dennis each averred in affidavits
dated June 5, 2017, that she gifted $10,000 to Mrs. Hall from funds Mrs. Hall had
previously given her from a wrongful death settlement involving her biological father:
[F]or my mother’s stability and her sole benefit [to payoff the
mortgage secured by the residence in which she is residing and to retain an
attorney to represent her in a divorce proceeding] to the exclusion of Mr.
Hall. * * * The funds transferred are to be considered a gift to my mother in
consideration of the circumstances. There is no obligation for my mother
to repay the funds to me nor do I intend the funds to benefit Mr. Hall in any
way.
{¶ 19} Rodney Sharp, Mrs. Hall’s surviving son living in Arkansas, averred in his
affidavit dated May 30, 2017, “I Rodney Sharp gave my mother Shirley Hall ten
thousand dollars $10,000 on December 26, 2015.”
{¶ 20} It is undisputed in the record that prior to their 1978 marriage, the parties
had each previously been married with children. Mrs. Hall testified at the January 3,
2018 hearing that prior to her marriage to Mr. Hall she received two separate wrongful
death settlements, first for her son and then for her first husband. The exact amount of
wrongful death proceeds received by Mrs. Hall prior to her marriage to Mr. Hall is not
clear in the record. Mrs. Hall testified, “I got that [money] 20 years ago when my son
died, and the first money I got when my husband died, my first husband.” Later, Mrs.
Hall clarified the money from the two wrongful death settlements was used by her to
9. support the family for the 13 years between the death of her first husband and her
marriage to Mr. Hall. At some point previously she gave some of the wrongful death
settlement money to her children, and this was the money with which they offered to
help, starting in December 2015. Mrs. Hall testified she received a total of $30,000 from
her children and added $10,000 from her own bank account to deposit $40,000 into a new
savings account at a different bank.
{¶ 21} Much time was spent by Mr. Hall’s counsel to find originating bank
deposits to dispute the testimony from Mrs. Hall and her daughters the wrongful death
settlement money sat for decades as cash in safes. In response to questions about bank
deposits, Mrs. Hall replied, “I don’t know what you’re talking about, sir. You got me
confused.” Previously, Mrs. Hall had testified, “They – both – well, my daughters both
had them in their safes, I think, ask them.” The final $10,000 deposited into the new
savings account was from her own, separate account: “* * * and I got my 10 out of mine,
and I put it in.” It took from December 2015, to February 2016, for her children to give
her their $30,000 in cash. Then Mrs. Hall added her own $10,000 to total $40,000, all
cash. Mrs. Hall then requested a $40,000 cashier’s check from the first bank to then
deposit $40,000 into the new bank account at Croghan Colonial Bank, referred to as her
“safety net” due to the impending divorce: “That’s the way the man said it would be the
best way to do it.” Mrs. Hall testified the names on the new $40,000 account were hers
and her children’s: “Their names are right on the account. * * * All three of their names
are on it, too * * * not just mine.”
10. {¶ 22} Mrs. Hall’s daughter, Mary Denise Dennis, testified at the January 3, 2018
hearing as to the origin of her $10,000 cash gift to her mother around December 2015.
The money originated from the deaths of her father and young brother: “Well * * * when
we were young, * * * my dad passed away and my brother passed away, so my mom
gave us each $5,000 apiece * * * so I kept that in my safe.” Later, Mrs. Dennis testified
she received an additional $5,000 cash gift from her mother from the wrongful death
settlements. Each time Mrs. Dennis put the cash in her safe. The intent of the full
$10,000 cash gift was for her mother “to pay off the house.” Although Mrs. Dennis
testified, “I’m not good at bank things,” she said when her mother deposited $40,000 into
the new bank account, Mrs. Hall had all three children’s names on the account: “[It] was
in all our kids’ names so that she would make sure it came back to us if anything
happened to her.” Mrs. Dennis confirmed her mother did not have to pay back the
$10,000 gift.
{¶ 23} Mrs. Hall’s other surviving daughter, Shirley Zeigler, also testified at the
January 3, 2018 hearing as to the origin of the $10,000 cash gift to her mother around
December 2015:
[S]he gave us money from our dad passing away, my brother passing
away, and it was, like, now she needed help. We never needed help, she
just gave it to us, ‘cause it was my brother and my dad. * * * My mom has
always been there when you needed her, and that’s why [my sister, brother
and I] said, you know, she gave us the $10,000. We didn’t want her to lose
11. her house, ‘cause she wouldn’t be able to make the payments [because of
the impending divorce].
{¶ 24} Mrs. Zeigler testified she gave her mother $10,000 “cash, out of the safe.”
Mrs. Zeigler and her husband always kept the cash in a safe at the home “so we didn’t
have to go to the bank and borrow money all the time.” Mrs. Zeigler also testified that
when her mother deposited $40,000 into the new bank account, Mrs. Hall opened the
account in her own name and “put if anything was to happen to her * * * we [three
children] all will make sure the house gets paid off first and then whatever after that
would be ours.” Mrs. Zeigler also confirmed her mother does not have to pay back the
{¶ 25} In its January 16, 2018 journalized judgment entry entitled, “Decision re
Separate Property,” the trial court stated as a result of the January 3, 2018 hearing:
Testimony was provided by Defendant and her two daughters, Mary
Dennis and Shirley Zeigler. * * * Documentary evidence was admitted
establishing balances and transfers from various account[s] during the time
in questions [sic]. Defendant had accounts with the Fremont Federal Credit
union jointly with her daughter, Shirley Zeigler. Defendant’s testimony was
that these monies had their origin in two wrongful death settlements
involving her former husband, and son. Her attorney at the time * *
*advised her to, in essence, save the money for a rainy day. With the
divorce, her rainy day had arrived as she would need about $30,000.00 to
12. pay off the mortgage on her house, and since she only received $623.00 a
month in social security, she would need help from her children to do so.
Mary Dennis and Shirley Zeigler each testified that they accompanied Mom
to the Croghan Colonial branch bank in Green Springs to purchase
cashier’s checks, that they each contributed $10,000.00 to do so, and that
their brother also contributed $10,000.00. A fourth sibling who was
prepared to also contribute died of cancer about that time, thus no
contribution from her. The additional $10,000.00 in cashier’s checks was
paid in by the Defendant. * * * While she did provide information to her
attorney to insert into the Property disclosure affidavit, there was no
information provided regarding the cashier’s checks. The Court finds it
reasonable for Defendant to have assumed that since she had always
maintained the monies separately from the Plaintiff husband, and in fact
held them jointly with her daughter Shirley, that these monies would not be
a consideration in the divorce proceeding. And, it appears that the Plaintiff
retained moneys that he considered separate * * *. The $10,000.00 was not
disclosed on his affidavit. In any event, the parties negotiated a settlement
of the property issues with each party having an understanding of the assets
to be divided.
The Court is persuaded by a preponderance of the evidence that the
monies in question have been properly traced as having been $30,000.00 in
13. contributions from her three children to help her pay off her mortgage, and
$36,500.00 from monies held jointly by her with daughter Shirley Zeigler
and having its origin as wrongful death settlements from her previous
husband and son.
The Court finds said monies to be the separate property of the
Defendant wife, not part of the marital estate.
{¶ 26} In its January 30, 2018 journalized findings of fact and conclusions of law,
the trial court reaffirmed the findings set forth in its January 16, 2018 journalized
judgment entry and made the following additional findings:
Additionally, the court finds that at no time did the Defendant
possess $79,000.00 plus change in separate funds as suggested by the
questioning of Plaintiff’s counsel. * * * That the Plaintiff [sic] was
credible, as were her daughters who also testified, and that her actions were
consistent with the way a spouse in a second marriage would most likely
conduct his or herself, i.e. as to how assets were held. Specifically, that she
retained control over her funds at the Fremont Federal Credit Union by
titling them in the name of herself and daughter Shirley Zeigler, and not her
husband. No evidence was presented to suggest that Defendant ever
commingled her FFCU monies with marital funds, nor that she gifted said
monies to Plaintiff.
14. {¶ 27} In its February 23, 2018 journalized judgment entry of divorce, the trial
court found, “That an evidentiary hearing was conducted on January 3, 2018, with a
Decision re Separate Property issuing January 10, 2018, FINDING (emphasis sic.)
Defendant met the burden of establishing her separate property claim.” Among the trial
court’s orders was, “Each party is awarded, free and clear of any claims of the other, all
bank accounts presently held individually in his or her respective name. The parties
represent that there are no joint accounts in existence as of the date of final hearing
herein.”
{¶ 28} Our de novo review of the legal standards reaches the same outcomes as
the trial court because the record contains some competent and credible evidence to
support the separate property determinations. There is some competent and credible
evidence supporting the disputed $36,500 is Mrs. Hall’s separate property derived, by
clear and convincing evidence, in part from the donative intent of each of Mrs. Hall’s
three children gifting her $30,000 in total. Kovacs v. Kovacs, 6th Dist. Sandusky No. S-
09-039, 2011-Ohio-154, ¶ 12-15; R.C. 3105.171(A)(6)(a)(vii). In addition, there is some
competent and credible evidence supporting the disputed $36,500 is separate property
derived, by the preponderance of the evidence, in part from the pre-marital origin of the
final $10,000 (to reach $40,000) obtained by Mrs. Hall from her own account, R.C.
3105.171(A)(6)(a)(ii), and never comingled with Mr. Hall or other marital funds, R.C.
3105.171(A)(6)(b).
15. {¶ 29} Further, even if we interpreted the amount in dispute as being for $36,500
plus $30,000, for a total of $66,500, there is some competent and credible evidence in the
record to support the trial court’s determination by a preponderance of the evidence “at
no time did the Defendant possess $79,000.00 plus change in separate funds as suggested
by the questioning of Plaintiff’s counsel” because the trial court reviewed “the account
statements introduced into evidence from Fremont Federal Credit Union, Croghan
Colonial Bank, Old Fort Bank, and Impact Credit Union.” The trial court found at all
times Mrs. Hall “retained control over her funds at the Fremont Federal Credit Union [the
focus of Mr. Hall’s assertions] by titling them in the name of herself and daughter Shirley
Zeigler, and not her husband.”
{¶ 30} We also find that Mrs. Hall met her burden to show all of the elements of
inter vivos gifts from her children to support the determination of $30,000 as separate
property pursuant to R.C. 3105.171(A)(6)(a)(vii). In order for Mrs. Hall’s three
surviving children to make inter vivos gifts of $10,000 each, Mrs. Hall must show by
clear and convincing evidence: (1) the donor’s intent to make the gift to her, (2) delivery
of the gift to her, (3) the donor’s relinquishing ownership, dominion or control over the
gift, and (4) her acceptance of the gift. Kovacs at ¶ 12, citing Barkley, 119 Ohio App.3d
155, at fn. 2, 694 N.E.2d 989. The record contains evidence that each child voluntarily
made the $10,000 cash gifts to their mother with no expectation of any repayment
because of their desire to help their mother through the difficult period of a divorce and to
keep her home, which Mr. Hall had vacated. None of the cash gifts were for Mr. Hall.
16. Mrs. Hall accepted the cash donations, contributed her own funds, turned the cash into
cashier’s checks, and then opened a new bank account with the $40,000 she assembled.
Although there was some testimony that the three children’s names were also on the
Croghan Colonial Bank account, further testimony clarified they were not primary names
on the account but, instead, beneficiaries in the event of something happening to Mrs.
Hall. While it may be unusual for people today to deal with so much cash or cashier’s
checks, as the trial court explained, “her actions were consistent with the way a spouse in
a second marriage would most likely conduct his or herself, i.e. as to how assets were
held.”
{¶ 31} We also find Mrs. Hall met her burden by a preponderance of the evidence
to show the remaining $6,500 of the $36,500 in dispute are traceable to wrongful death
settlements occurring prior to her marriage to Mr. Hall. The record shows Mrs. Hall had
“her own account,” and it is undisputed that account was never comingled with other
marital funds and was not used for marital expenses. Mr. Hall concedes, “She has
admitted to concealing $40,000 in undisclosed moneys, of which she is claiming only
$10,000.00 came from her own funds.” Mr. Hall does not challenge “$10,000.00 came
from her own funds.” Mr. Hall questions the basis of how Mrs. Hall’s wrongful death
settlement money relates to her loss of consortium because “no evidence was offered into
the record regarding the size of the award, the amount attributable to loss of consortium,
where the funds were stored, what funds were consumed since the day they were
received, or any other information helpful to tracing them apart from the bare assertion
17. by Mrs. Hall that, at one point in time, she got money from a wrongful death settlement.”
We find Mr. Hall’s reliance on R.C. 3105.171(A)(6)(a)(vi) to be misplaced because the
record contains some competent, credible evidence Mrs. Hall’s wrongful death settlement
money can be traced to at least 13 years before her marriage to Mr. Hall. Mr. Hall urged
us to find “her inherently less credible witness testimony” that “sharply contradicted”
bank records. We will uphold the findings of the trial court, which was not persuaded by
Mr. Hall’s logic or math to support this claim.
B. Division of Separate Property
{¶ 32} Even if we interpreted the issues on appeal brought by Mr. Hall as being a
challenge to the lack of division of Mrs. Hall’s separate property, we do not find the trial
court abused its discretion. We review a trial court’s division of marital and separate
property for an abuse of discretion. Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d
83 (1990), citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989).
Abuse of discretion “‘connotes more than an error of law or judgment; it implies that the
court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980). “An unequal property division does not, standing
alone, amount to an abuse of discretion.” Enriquez v. Enriquez, 6th Dist. Lucas No. L-
94-252, 1995 Ohio App. LEXIS 5362, *18 (Dec. 8, 1995), citing Cherry v. Cherry, 66
Ohio St.2d 348, 352, 421 N.E.2d 1293 (1981), paragraph two of the syllabus.
18. {¶ 33} In this case the parties reached agreements on all financial matters
pertaining to the divorce, except for Mrs. Hall’s bank accounts. We find Mr. Hall’s
assertions Mrs. Hall engaged in financial misconduct with respect to “undisclosed bank
accounts * * * held, concealed and disbursed during the term of the marriage” are
misplaced, and Mr. Hall failed to meet his burden. Epperson v. Epperson, 6th Dist.
Wood No. WD-14-054, 2015-Ohio-2443, ¶ 40, citing Lindsay v. Lindsay, 6th Dist.
Sandusky No. S-11-055, 2013-Ohio-3290, ¶ 21. The trial court found Mrs. Hall’s failure
to include the $40,000 held at Croghan Colonial Bank in the “Separate Property” section
of her affidavit of property pursuant to R.C. 3105.171(E)(3) was “excusable neglect due
to her age, confusion due to her medical issues at the time, and anxiety over how her
house mortgage was going to be paid.” We do not find the trial court abused its
discretion with those findings. See R.C. 3105.171(E) and (F); see also Epperson at ¶ 40,
citing Thomas v. Thomas, 2012-Ohio-2893, 974 N.E.2d 679, ¶ 63 (5th Dist.) (“financial
misconduct” allegations requires looking to the reasons behind and results of the
wrongful activity). Nor do we find the trial court abused its discretion when it ordered
each party “is awarded, free and clear of any claims of the other, all bank accounts held
individually in her or her respective name.” See Lindsay at ¶ 22.
C. Conclusion
{¶ 34} Since we find there was some competent and credible evidence to support
the trial court’s determination that $30,000 of the $40,000 at Croghan Colonial Bank
were gifts from Mrs. Hall’s children, and the remaining $10,000 was from Mrs. Hall’s
19. own funds, we cannot find the trial court’s judgment “on the marital or separateness of
some $36,500.00 that was deposited and withdrawn from Defendant’s Fremont Federal
Credit Union account between October 2015 and December 2015” as Mrs. Hall’s
separate property was against the manifest weight of the evidence.
{¶ 35} Mr. Hall’s first and second assignments of error are not well-taken.
{¶ 36} The judgment of the Sandusky County Court of Common Pleas, Domestic
Relations Division, is affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. . _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
20.