Humbarger v. Cassidy

2024 Ohio 5361

• Court: Ohio Court of Appeals
• Decided: November 12, 2024
• Docket: CA2024-04-024
• Status: Published

Opinion

[Cite as Humbarger v. Cassidy, 2024-Ohio-5361.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

ROBERT W. HUMBARGER III, :

Appellant, : CASE NO. CA2024-04-024

: OPINION - vs - 11/12/2024 :

TONIA L. CASSIDY, :

Appellee. :

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 22 DR 43567

The Law Offices of Jason A. Showen, LLC, and Jason A. Showen, for appellant.

Tonia L. Cassidy, pro se.

PIPER, J.

{¶1} Appellant, Robert W. Humbarger III ("Husband"), appeals a decision of the

Warren County Court of Common Pleas, Domestic Relations Division, granting a divorce

between him and appellee, Tonia L. Cassidy ("Wife"), and dividing their property.

Specifically, Husband challenges the trial court's division of a Jackson Roth IRA. Warren CA2024-04-024

I. Factual and Procedural Background

{¶2} Husband and Wife were married on November 19, 2018. After three years

of marriage, the parties sought divorce, agreed they are incompatible, and stipulated to

November 30, 2021 as the termination date of the marriage. No children were born issue

of their marriage.

{¶3} On July 19, 2023, a final divorce hearing was held before the trial court's

magistrate. At the hearing Husband established that when he entered into the marriage,

he already possessed a Jackson Roth IRA with a value of $80,887.95 on November 19,

2018. Over the course of the marriage, Husband contributed $300 per month to the

account, with a total contribution of $9,000 to the account during the marriage. The

parties made no other contributions or withdrawals. By November 30, 2021, when the

parties separated, the IRA was worth $161,953.22.

{¶4} Husband testified that Wife should only be awarded half of the total

contributions made during the marriage ($4,500), plus any gains attributable to her half

of the contributions. However, at the hearing, Husband provided no evidence or

argument as to how to calculate the gains attributable to Wife's half of the marital

contributions. When asked how the gains might be calculated, Husband testified "I have

my theory but I'm not gonna give you an answer. I'm not an accountant." Husband then

admitted he was not prepared to propose any figures. Wife, on the other hand, argued

that she should receive one-half of all gains that accrued during the marriage, which was

$40,532.64. Wife calculated the total IRA value at the time of separation to be

$161,953.22, subtracted husband's premarital, separate IRA value of $80,887.95, which

left remaining $81,065.27, and divided that amount in half.

{¶5} On September 12, 2023, the magistrate issued a decision recommending

divorce. In the decision, the magistrate recommended, "As there was no expert evidence

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presented regarding the passive increase of Husband's premarital funds, this Magistrate

finds Wife shall receive fifty percent (50%) of Husband's Roth IRA between the dates of

the parties' marriage, to wit: November 19, 2018, and November 30, 2021, (or the closest

valuation dates thereto) plus or minus any market fluctuation until divided."

{¶6} On September 25, 2023, Husband filed objections to the magistrate's

decision, reiterating his argument that Wife should only receive one half of the marital

contributions to the IRA ($4,500), plus any gains attributable to that amount. Husband

still offered no way of calculating and attributing the gains.

{¶7} Over five months after the evidentiary hearing, on January 11, 2024,

Husband filed a memorandum in support of his objections to the magistrate's decision,

and for the first time proposed two methods to divide the gains that accrued during the

marriage. First, Husband proposed an algebraic formula to divide the IRA, in which he

calculated that because he had made 95 percent of all contributions to the IRA, he should

receive 95 percent of its final value ($153,855.56), and wife should receive five percent

of its final value ($8,097.66). Second, in the alternative, Husband proposed that the

parties should submit the complete record of IRA statements to an accountant. The

accountant would then determine the effect that the market had on the $4,500 Wife

contributed during the marriage.

{¶8} On March 12, 2024, the trial court ruled on Husband's objections to the

magistrate's decision. The trial court found that Husband did not offer any testimony at

the final divorce hearing on the passive growth of his premarital interest in the IRA, and

he was not permitted to do so after the fact. Accordingly, the trial court overruled

Husband's objections regarding the division of the IRA. On April 10, 2024, the trial court

journalized an Entry and Final Decree and Judgment of Divorce, ordering that Wife

receive 50 percent of the IRA gains acquired between November 19, 2019 and November

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30, 2021 ($40,532.64, plus any market fluctuation until divided).

{¶9} On appeal, Husband raises one assignment of error for our review.

II. Legal Analysis

{¶10} Assignment of Error:

THE TRIAL COURT ERRED BY INEQUITABLY AWARDING APPELLEE 50% OF THE PASSIVE EARNINGS ON APPELLANT'S PREMARITAL SEPARATE PROPERTY.

{¶11} In his sole assignment of error, Husband asserts that the trial court erred

when it awarded Wife 50 percent of the IRA gains acquired during the marriage. In doing

so, Husband argues that Wife received an inequitable 900 percent growth on her half of

the contributions made during the marriage. Husband argues Wife was only entitled to

$4,500 plus an undetermined amount of gains attributable to that $4,500. Alternatively,

Husband argues that the trial court could have awarded Wife an amount calculated by his

algebraic formula or by an accountant, as proposed in his January 2024 memorandum.

We disagree with Husband's arguments.

{¶12} In divorce proceedings, the Revised Code requires the domestic relations

court to determine what constitutes marital property and what constitutes separate

property. R.C. 3105.171(B). After making this determination, the court then must

equitably divide the marital property and separate property between the spouses in

accordance with the provisions of R.C. 3105.171. Id.

{¶13} After the domestic relations court has classified property as marital or

separate, it possesses broad discretion to determine an equitable and fair division of the

marital estate. Cherry v. Cherry, 66 Ohio St.2d 348, 355 (1981). This court will not

reverse a domestic relations court's decision regarding the division of property in a divorce

proceeding absent an abuse of discretion. Id. An abuse of discretion implies that the trial

court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

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Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶14} "Marital property" is defined as "[a]ll real and personal property that currently

is owned by either or both of the spouses . . . and that was acquired by either or both of

the spouses during the marriage." R.C. 3105.171(A)(3)(a)(i). "'Marital property' does not

include any separate property." R.C. 3105.171(A)(3)(b). Separate property includes

"[a]ny real or personal property or interest in real or personal property that was acquired

by one spouse prior to the date of the marriage" and "passive income and appreciation

acquired from separate property by one spouse during the marriage." R.C.

3105.171(A)(6)(a)(ii) and (iii).

{¶15} "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). The party seeking to have

a particular asset classified as separate property has the burden of proof, by a

preponderance of evidence, to trace the asset to separate property. Peck v. Peck, 96

Ohio App.3d 731, 734 (12th Dist.1994). "Traceability presents a question of fact and we

ordinarily defer to the trial court as the factfinder." Bauer v. Bauer, 2020-Ohio-425 ¶ 38

(12th Dist.), citing Maloney v. Maloney, 2005-Ohio-1368, ¶ 23 (2d Dist.).

{¶16} Here, the IRA gained $81,065.27 in value during the marriage. Husband

asserts that the gains on the IRA that are attributable to his premarital contributions should

be classified as his separate property. Nevertheless, Husband failed to present any

evidence at the evidentiary hearing tracing any specific portion of the gains to his

premarital property (i.e. the $80,887.95 he already had in the IRA when he entered the

marriage). Instead, Husband only testified that Wife should receive 50 percent of the

contributions made to the IRA during the marriage, being $4,500, plus an undetermined

amount of gains attributable to that $4,500. Yet, at the evidentiary hearing, Husband

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made no proposal of what those gains on the $4,500 might be, or the methodology to

calculate them.

{¶17} When asked at the evidentiary hearing how those gains might be calculated,

Husband admitted "I have my theory but I'm not gonna give you an answer. I'm not an

accountant." Husband did not give a specific figure. There was no evidence in the record

to determine what IRA gains were attributable to Wife's contributions versus Husband's

contributions. The credibility and reasonableness of proposed valuations are ordinarily

tested at evidentiary hearings with cross-examination and counter proposals. Because

Husband proposed no methodology at the hearing, Wife never had the opportunity to

cross-examine him on his methodology and the calculation he reached.

{¶18} This court has previously explained that "The starting point for allocating

marital property is an equal division of both marital assets and marital debts." Doty v.

Doty, 2023-Ohio-2519, ¶ 37 (12th Dist.). In the absence of any evidence tracing any

specific portion of gains to Husband's separate property, the trial court reasonably

decided to divide all gains during the marriage equally.

{¶19} Husband also argues that the trial court could have adopted one of the

suggestions he proposed in his January 2024 memorandum. However, Husband did not

make these suggestions or give testimony supporting his suggestions until after the final

divorce hearing. Civ.R. 53(D)(4)(d) states that when a trial court reviews objections to a

magistrate's decision "the court may hear additional evidence but may refuse to do so

unless the objecting party demonstrates that the party could not, with reasonable

diligence, have produced that evidence for consideration by the magistrate." Here, the

trial court correctly found that Husband could have proposed a realistic figure to the

magistrate, at the final divorce hearing, to represent the passive growth of his premarital

contributions to the IRA. He chose not to. Therefore, the trial court correctly refused to

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consider Husband's late proposals to use an algebraic formula or to employ an

accountant. Husband is not permitted to take a wait-and-see approach with the

magistrate's decision, and only propose other calculations afterward when he is

dissatisfied.

III. Conclusion

{¶20} We find the trial court did not err when it awarded Wife 50 percent of the

gains made in the IRA during the marriage. Husband's sole assignment of error is

overruled.

{¶21} Judgment affirmed.

S. POWELL, P.J., and HENDRICKSON, J., concur.

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