Koneski v. Koneski

2025 Ohio 38

• Court: Ohio Court of Appeals
• Decided: January 8, 2025
• Docket: CT2024-0020
• Status: Published

Opinion

[Cite as Koneski v. Koneski, 2025-Ohio-38.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STEPHANIE N. KONESKI : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : JERRY D. KONESKI : Case No. CT2024-0020 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. DA2022-0222

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 8, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROSE M. FOX BRIAN W. BENBOW 233 Main Street 803 Taylor Street Zanesville, OH 43701 Zanesville, OH 43701 Muskingum County, Case No. CT2024-0020 2

King, J.

{¶ 1} Defendant-Appellant, Jerry D. Koneski ("husband"), appeals the January

17, 2024 judgment entry decree of divorce of the Court of Common Pleas of Muskingum

County, Ohio, Domestic Relations Division, contesting the division of property. Plaintiff-

Appellee is Stephanie N. Koneski ("wife"). We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} The parties were married on December 16, 2010. On April 13, 2022, wife

filed a complaint for divorce. A final hearing was held on July 20, 2023. By judgment

entry decree of divorce filed January 17, 2024, the trial court granted the parties a divorce

and divided the parties' property. Pertinent to this appeal are the decisions on a piece of

real estate located on Claysville Road and the insurance proceeds from an automobile

(Lexus) totaled in an accident. The trial court determined the Claysville property was

marital property due to commingling of funds, sweat equity by wife, and the joint deed in

both parties' names. The trial court also determined wife was entitled to the insurance

proceeds as the automobile had been a gift from husband.

{¶ 3} Husband filed an appeal with the following assignments of error:

I

{¶ 4} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FINDING

THAT THE NONEXISTENT, NON-SPECIFIED, AND NON-SPECIFIC 'SWEAT EQUITY'

IN APPELLANT'S REAL ESTATE WAS MARITAL PROPERTY SUBJECT TO EQUAL

DIVISION DUE TO THE NONEXISTENT ACTIVE CONTRIBUTIONS OF APPELLEE

NOT CONTAINED ANYWHERE ON THE RECORD. Muskingum County, Case No. CT2024-0020 3

"THE TRIAL COURT'S FINDINGS AND CONCLUSIONS AS SUCH WERE

AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE AND CONTRARY TO

THE SPECIFIC UNREBUTTED, AND UNDISPUTED TRACING OF PRE-MARITAL

EQUITY SUBMITTED BY APPELLANT THAT THE TRIAL COURT SUMMARILY

IGNORED. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR ACCORDINGLY

BY FINDING THAT THE EQUITY IN THE REAL ESTATE WAS MARITAL PROPERTY

SUBJECT TO EQUAL DIVISION DUE TO COMMINGLING WHEN SAID EQUITY WAS

DIRECTLY TRACED TO ITS ORIGIN AS BEING PRE-MARITAL EQUITY.

"THE TRIAL COURT THUS COMMITTED PREJUDICIAL ERROR BY

FAILING TO AWARD APPELLANT HIS SEPARATE INTEREST IN THE EQUITY IN HIS

REAL ESTATE. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FINDING

THAT THE EQUITY IN THE REAL ESTATE WAS MARITAL PROPERTY SUBJECT TO

EQUAL DIVISION DUE TO THE ALLEGED 'SWEAT EQUITY' CONTRIBUTIONS THAT

WAS NONEXISTENT RESULTING IN UNJUST ENRICHMENT TO APPELLEE."

II

{¶ 5} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY

ADMITTING INADMISSIBLE EVIDENCE IN ARRIVING AT AN AWARD OF ½ OF THE

EQUITY IN THE MARITAL HOME TO APPELLEE ($96,500.00 (½ OF $193,200.00))

ABSENT ANY EVIDENCE AS TO THE ACTUAL VALUE OF THE ALLEGED ACTIVE

CONTRIBUTIONS MADE TO THE VALUE OF THE REAL ESTATE THAT WERE

TRACED TO THE ORIGIN OF APPELLANT'S PREMARITAL INTEREST."

III Muskingum County, Case No. CT2024-0020 4

{¶ 6} "THE TRIAL COURT'S CONTINUED RELIANCE ON THE ALLEGED

JOINT TITLING OF THE REAL ESTATE IS CONTRARY TO LAW."

IV

{¶ 7} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FINDING

THAT THE EQUITY IN THE 2012 LEXUS WAS SEPARATE PROPERTY NOT SUBJECT

TO DIVISION AND BY AWARDING THE SAME EXCLUSIVELY TO APPELLEE DUE TO

A NON-EXISTENT MARITAL GIFT SUCH THAT THE TRIAL COURT'S DECISION IS

AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

I, III

{¶ 8} In his first assignment of error, husband claims the trial court erred in finding

the Claysville property was marital property; he claims the decision was against the

manifest weight and sufficiency of the evidence.

{¶ 9} In his third assignment of error, husband claims the trial court's reliance on

the joint titling of the real estate was contrary to law.

{¶ 10} We disagree with husband's arguments.

{¶ 11} In divorce proceedings, a trial court shall "determine what constitutes

marital property and what constitutes separate property." R.C. 3105.171(B). R.C.

3105.171(A)(6)(a)(ii) defines "separate property" as including "[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." Marital property can include "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)(iii). "[T]he

holding of title to property by one spouse individually or by both spouses in a form of co- Muskingum County, Case No. CT2024-0020 5

ownership does not determine whether the property is marital property or separate

property." R.C. 3105.171(H). But the trial court may consider the ownership of the

property in its determination of traceability. Barkley v. Barkley, 119 Ohio App.3d 155, 161

(4th Dist. 1997) ("the form of title is relevant to, but not conclusive of, the classification of

property as being either marital or separate"). "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).

{¶ 12} The focus on a determination of separate property is on traceability. Peck

v. Peck, 96 Ohio App.3d 731 (12th Dist. 1994). "A party who wants an asset classified

as separate property bears the burden of tracing that asset to his or her separate

property." Gregory v. Falcon, 2023-Ohio-1741, ¶ 36 (5th Dist.). The burden to establish

separate property is by a preponderance of evidence. Zeefe v. Zeefe, 125 Ohio App.3d

600, 614 (8th Dist. 1998). "Preponderance of the evidence" means "evidence which is of

a greater weight or more convincing than the evidence which is offered in opposition to

it." Black's Law Dictionary (6th Ed. 1998). The characterization of property as separate

or marital is a mixed question of law and fact, and the characterization must be supported

by sufficient, credible evidence. Chase-Carey v. Carey, 1999 WL 770172 (5th Dist. Aug.

26, 1999).

{¶ 13} Sufficiency of the evidence "is a test of adequacy. Whether the evidence is

legally sufficient to sustain a verdict [decision] is a question of law." State v. Thompkins,

78 Ohio St.3d 380, 386 (1997). Muskingum County, Case No. CT2024-0020 6

{¶ 14} On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly

lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175 (1st Dist. 1983). In Thompkins at 387, quoting Black's Law Dictionary (6th Ed.

1990), the Supreme Court of Ohio explained the following:

Weight of the evidence concerns "the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the

evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them. Weight

is not a question of mathematics, but depends on its effect in inducing

belief." (Emphasis in original.)

{¶ 15} In weighing the evidence, however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 2012-Ohio-

2179.

{¶ 16} In 1994, husband and his then wife Louise jointly owned property on

Woodhaven Drive through a survivorship deed. T. at 118, 144. Louise died in 2006. T. Muskingum County, Case No. CT2024-0020 7

at 153-154. Husband and wife married in 2010; she was 17 and he was 65. T. at 117.

Wife agreed she did not bring any assets into the marriage. Id. In 2012, husband filed

an affidavit to transfer the Woodhaven property into his name. T. at 154, 419; Defendant's

Exhibit E. At some point, wife's name was added to the deed. T. at 240. Husband and

wife lived at Woodhaven Drive for eight years. In 2019, the property was sold listing both

parties as the sellers. T. at 240; Defendant's Exhibit M.

{¶ 17} Wife testified over the course of a couple years, the parties purchased,

fixed-up, and sold several properties ending with the Claysville property. T. at 42-43. The

property was deeded in both their names via a general warranty survivorship deed. T. at

43-44; Plaintiff's Exhibit 14. The properties prior to Claysville were deeded in both their

names as well. T. at 53-55, 57, 61; Defendant's Exhibits N, O, and P. One of the

properties, Taylor Road, had a mortgage and wife was listed on that mortgage. T. at 57-

58; Defendant's Exhibit O. Wife helped to fix-up the properties as they did the work

themselves, they did not hire anyone for the most part. T. at 51-52, 56, 58-59, 62-63.

Wife also sold the properties saving them a real estate commission. T. at 62-63.

{¶ 18} On cross-examination, wife agreed with each property purchase, the equity

could be traced back to the Woodhaven property. T. at 150-151, 154-158, 161-162.

{¶ 19} Husband testified he bought the Woodhaven property in 1997 prior to the

marriage, and sold it in 2019 after the marriage. T. at 422; Defendant's Exhibit M. The

net proceeds from the sale equaled $246,617.46. T. at 423. Husband then purchased

property in 2019 on Freedom Road with the proceeds. T. at 423-424. He sold the

Freedom property and realized a $173,500 net profit and purchased a property on Taylor

Road. T. at 425; Defendant's Exhibit N. He had to take out a brief mortgage to complete Muskingum County, Case No. CT2024-0020 8

the purchase. Id. He sold the Taylor property and realized a $263,386.79 gain. T. at

426; Defendant's Exhibit O. He then bought a property on Johnnycake and sold it for

$200,034.00. T. at 426-427; Defendant's Exhibit P. With those proceeds, he purchased

the subject Claysville property. T. at 427; Defendant's Exhibit Q. Husband stated the

money he used to buy the Claysville property could be traced back to the Woodhaven

sale; he used the equity from each sale to purchase the next property. T. at 423-429,

436; Defendant's Exhibit Q. Husband wanted the trial court to find the Claysville property

was "pre-marital equity not subject to division." T. at 520. He did not intend to gift wife

any real estate and placing her name on the deeds was for estate planning purposes. T.

at 550.

{¶ 20} On cross-examination, husband acknowledged all but two properties were

sold by owner and wife is the one who posted about them and handled the sales. T. at

531-534. He characterized wife's home improvement work on the properties as

"maintenance." T. at 534. When asked if wife's earned income was deposited into a joint

account, husband admitted he did not know as wife did the banking. T. at 527-528.

{¶ 21} The trial court noted the parties' joint ownership of the properties, including

their first property together, the Woodhaven property, their work in flipping the various

properties purchased after the Woodhaven property was sold, and wife's selling of the

properties to avoid relator fees. See January 17, 2024 Judgment Entry Decree of Divorce

at 7-8. The trial court also noted wife's name on the Taylor Road mortgage. Id. at 7. The

trial court found husband "produced no documentation to trace any funds from the sale

of his pre-marital residence." Id. at 8. The trial court found wife's testimony to be credible

"that the parties jointly improved the property while they lived there for eight years and Muskingum County, Case No. CT2024-0020 9

utilized the sale proceeds to invest in the next jointly titled property they flipped." Id. The

trial court found the "proceeds from every subsequent property they flipped was utilized

to purchase each jointly titled property they subsequently purchased and flipped. All of

those funds together were utilized to purchase the marital residence." Id. The trial court

acknowledged wife's sweat equity contributions and noted she worked part time during

the marriage and the parties' monies went into a joint bank account. Id. The trial court

found husband's testimony that wife's name was on the deeds only for estate planning

purposes and he did not intend to gift any real estate to her was not credible as it was

"clear the parties jointly contributed to every property flip they engaged in, including

improvements and sale of the original home." Id. The trial court concluded any proceeds

from the sale of husband's pre-marital home were "completely co-mingled" and became

marital because of wife's sweat equity in improving the properties thus helping to increase

their values and her role in selling the properties the proceeds of which were used to

purchase jointly owned properties. Id. The trial court found the Claysville property to be

marital property, took the listed value, $193,120.00, and awarded half to each party. Id.

at 11. Husband retained the property. Id.

{¶ 22} The testimony demonstrates husband placed wife's name on the original

Woodhaven property. After it was sold, there is no evidence to show where the proceeds

were deposited i.e., a joint account or an account solely in husband's name. The parties

continued to jointly purchase properties and flip them. While husband submitted sales

contracts for the properties, he never produced evidence showing where the funds went

after each sale. No evidence was presented to trace the equity from the sale of the

Woodhaven property to the purchase of the Claysville property; there was no showing Muskingum County, Case No. CT2024-0020 10

that the funds after each sale were not commingled and the equity remained husband's

separate property. See Bello v. Bello, 2009-Ohio-5982, ¶ 89 (5th Dist.), citing Peck, 96

Ohio App.3d 731 ("There was no direct tracing of the original assets"). Although husband

testified to the traceability, it was within the trial court's province to judge the weight of the

evidence and the credibility of the witnesses, and the trial court did not find husband's

testimony to be credible. Jacobs v. Jacobs, 2003-Ohio-3466, ¶ 42 (4th Dist.).

{¶ 23} The trial court found any proceeds from the sale of the premarital home

were commingled to jointly purchase the subsequent properties to flip. We find no error

in the trial court's decision. We find the decision is supported by competent, credible

evidence; husband did not meet his burden of tracing the funds from the Woodhaven

property to the Claysville property by the preponderance of the evidence.

{¶ 24} Upon review, we find the trial court did not err in finding the Claysville

property was marital property.

{¶ 25} Assignments of Error I and III are denied.

{¶ 26} In his second assignment of error, husband claims the trial court erred in

awarding wife half of the equity in the marital home. We disagree.

{¶ 27} A trial court "shall divide the marital and separate property equitably

between the spouses" in accordance with R.C. 3105.171(B). Once the characterization

of what constitutes marital property has been made, the actual distribution of the assets

may be properly reviewed under the more deferential abuse-of-discretion standard. See

R.C. 3105.171(D). We reiterate that as an appellate court, we generally review the overall

appropriateness of the trial court's property division in divorce proceedings under an Muskingum County, Case No. CT2024-0020 11

abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348 (1981). "Abuse of

discretion" means an attitude that is unreasonable, arbitrary or unconscionable. Huffman

v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87 (1985). Most instances of abuse of discretion

will result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary. AAAA Enterprises, Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). An unreasonable decision is one

backed by no sound reasoning process which would support that decision. Id. "It is not

enough that the reviewing court, were it deciding the issue de novo, would not have found

that reasoning process to be persuasive, perhaps in view of countervailing reasoning

processes that would support a contrary result." Id.

{¶ 28} Wife testified the Guernsey County Auditor listed the Claysville property

valuation as $193,120.00. T. at 45-47; Plaintiff's Exhibit 8. She believed the property

was worth much more than that, but did not present any evidence to support her belief.

T. at 50. Husband's attorney challenged the auditor's tax value as "not determinative of

what a piece of real estate is worth," yet listed the auditor's amount in his marital balance

sheet. T. at 46; Defendant's Exhibit B. The trial court accepted the amount presented by

the parties and awarded each party half ($96,560.00), finding that to be appropriate, fair,

and equitable.

{¶ 29} The parties purchased the property in 2020 for $253,000.00. Defendant's

Exhibit Q. The property was awarded to husband and wife argued it was worth more than

the auditor's valuation. If so, husband received more than wife; but both parties waived

an appraisal. Muskingum County, Case No. CT2024-0020 12

{¶ 30} Upon review, given the state of the record, we find the trial court did not

abuse its discretion in its valuation of the Claysville property and awarding half to each

party.

{¶ 31} Assignment of Error II is denied.

{¶ 32} In his fourth assignment of error, husband claims the trial court erred in

finding the equity in an automobile was wife's separate property not subject to division;

he claims the decision was against the manifest weight and sufficiency of the evidence.

We disagree.

{¶ 33} Wife testified she drove a 2012 Lexus titled in husband's name. T. at 67-

68. A drunk driver smashed into several parked cars and the Lexus was totaled. Id. The

insurance proceeds are in an account held by husband ($14,000+). T. at 68; Defendant's

Exhibit C. Wife testified husband told her after their separation that she could have the

vehicle as long as she paid all the fees on it; she paid half of the insurance and the tax

and licensing fees each year. T. at 69.

{¶ 34} During husband's testimony, he was asked about the bank account

containing the insurance proceeds. He agreed a prior separation agreement the parties

had drawn up but never executed awarded the vehicle to wife. T. at 409-410. Husband

further agreed the insurance money was "traceable funds that relate to the loss of the

Lexus." T. at 410. The separation agreement also awarded the Claysville property to

husband. T. at 435-436. Because husband sought to have that portion of the separation

agreement enforced, he stated he wanted the trial court to also enforce the provision

about the Lexus and award the insurance proceeds to wife. T. at 436. He signed the Muskingum County, Case No. CT2024-0020 13

separation agreement awarding the Lexus to wife and he wanted to be bound by it. T. at

438. He agreed wife would "retain the proceeds of the Lexus." T. at 519.

{¶ 35} The trial court found husband gifted the Lexus to wife. See January 17,

2024 Judgment Entry Decree of Divorce at 9. The trial court noted husband agreed wife

could have the insurance proceeds to purchase a new vehicle. Id. at 9-10. The trial court

awarded wife all of the insurance proceeds, $13,692.47. Id. at 11.

{¶ 36} Based upon husband's testimony, we agree with the trial court's finding that

husband agreed wife could have the insurance proceeds.

{¶ 37} Upon review, we find the trial court did not err in awarding wife the insurance

proceeds for the totaled Lexus.

{¶ 38} Assignment of Error IV is denied.

{¶ 39} The judgment of the Court of Common Pleas of Muskingum County, Ohio,

Domestic Relations Division, is hereby affirmed.

By King, J.

Hoffman, P.J. and

Baldwin, J. concur.