[Cite as Pancake v. Pancake, 2012-Ohio-1511.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
CHERYL A. PANCAKE, : : Plaintiff-Appellant, : Case No: 11CA15 : v. : : DECISION AND HAROLD K. PANCAKE, : JUDGMENT ENTRY : Defendant-Appellee. : Filed: March 29, 2012
APPEARANCES:
Brenda K. Neville, Meyers & Neville, L.L.C., Chesapeake, Ohio, for Appellant.
Michael A. Davenport, Ironton, Ohio, for Appellee.
Kline, J.:
{¶1} Cheryl A. Pancake (hereinafter “Cheryl”) appeals the judgment of the
Lawrence County Court of Common Pleas. The trial court granted Cheryl a divorce
from Harold K. Pancake (hereinafter “Harold”). In distributing property between Cheryl
and Harold, the trial court awarded Harold his entire (1) retirement plan and (2) thrift
plan (together, the “Plans”). On appeal, Cheryl claims that she is entitled to a portion of
these Plans. We disagree. Based on the plain language of two affidavits, Cheryl clearly
and unambiguously abandoned her interest in the Plans. Accordingly, we affirm the
judgment of the trial court.
I. Lawrence App. No. 11CA15 2
{¶2} Cheryl and Harold were first married in 1979, but that marriage ended in
divorce. In their October 15, 2008 divorce decree, Cheryl received “Fifty Percent (50%)
of [Harold’s] Marathon Retirement and Marathon Thrift Plan[.]” That is, Cheryl received
a fifty-percent interest in the Plans.
{¶3} Cheryl and Harold remarried on June 3, 2009. On September 28, 2009,
Cheryl attested to two affidavits related to the Plans. One affidavit states, in part, the
following: “I no longer wish to receive the fifty (50%) percent of my Husband’s, Harold K.
Pancake, Retirement.” The other affidavit states, in part, the following: “I no longer wish
to receive the fifty (50%) percent of my Husband’s, Harold K. Pancake, Thrift Plan.”
Cheryl’s attorney prepared these affidavits, and Cheryl signed them in the presence of a
notary.
{¶4} Cheryl filed for divorce on May 10, 2010. In the proceedings below,
Cheryl and Harold agreed on all relevant issues except for the distribution of the Plans.
Cheryl claimed that, because of the October 15, 2008 divorce decree, she had a fifty-
percent interest in the Plans. But Harold claimed that, because of the affidavits, Cheryl
“repudiated her right to receive these monies.” Defendant’s Brief Regarding Division of
Assets at 1.
{¶5} The trial court awarded one-hundred percent of the Plans to Harold.
Essentially, the trial court found that Cheryl had gifted her interest in the Plans to Harold
and, as a result, that the Plans were Harold’s separate property.
{¶6} Cheryl appeals and asserts the following two assignments of error: I. “The
trial court erred when it purported to divide that portion of the thrift plan and the
retirement account that had been divided in the first divorce, because those assets were Lawrence App. No. 11CA15 3
not before the court in the parties’ second divorce action.” And, II. “The trial court erred
when it determined that the affidavits signed by Appellant Cheryl A. Pancake[]
demonstrated clear and convincing evidence of an inter vivos gift to Appellee Harold K.
Pancake.”
II.
{¶7} Both of Cheryl’s assignments of error turn on our interpretation of her
affidavits. Therefore, we will review Cheryl’s assignments of error together. In both
assignments of error, Cheryl essentially contends that she is entitled to an interest in the
Plans.
A.
{¶8} Generally, we review the division of marital property under an abuse-of-
discretion standard. See Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981),
paragraph two of the syllabus. But here, our decision turns on the interpretation of
Cheryl’s two affidavits, which we will interpret de novo without regard for the trial court’s
findings. See Dorsey v. Dorsey, 11th Dist. No. 2010-T-0043, 2011-Ohio-6336, ¶ 49;
McLaughlin v. McLaughlin, 178 Ohio App.3d 419, 2008-Ohio-5284, 898 N.E.2d 79, ¶ 16
(4th Dist.).
{¶9} Initially, we disagree with the trial court’s interpretation of the affidavits.
The trial court interpreted them as establishing an inter vivos gift from Cheryl to Harold.
“An inter vivos gift is ‘an immediate, voluntary, gratuitous and irrevocable transfer of
property by a competent donor to another.’” Dassel v. Hershberger, 4th Dist. No.
10CA6, 2010-Ohio-6595, ¶ 16, quoting Jones v. Jones, 4th Dist. No. 07CA25, 2008-
Ohio-2476, ¶ 22, in turn quoting Smith v. Shafer, 89 Ohio App.3d 181, 183, 623 N.E.2d Lawrence App. No. 11CA15 4
1261 (3d Dist.1993). The plain language of the affidavits, however, does not establish
that Cheryl transferred her interest in the Plans to Harold. Rather, the plain language
indicates that Cheryl relinquished her interest in the Plans without referencing a
particular donee. Therefore, we interpret the affidavits as establishing that Cheryl
abandoned her interest in the Plans.
{¶10} “Abandoned property * * * is property over which the owner has
relinquished all right, title, claim, and possession with the intention of not reclaiming it or
resuming its ownership, possession or enjoyment.” Doughman v. Long, 42 Ohio App.3d
17, 21, 536 N.E.2d 394 (12th Dist.1987). “Abandonment requires affirmative proof of
the intent to abandon coupled with acts or omissions implementing the intent.” Davis v.
Suggs, 10 Ohio App.3d 50, 52, 460 N.E.2d 665 (12th Dist.1983). In both affidavits,
Cheryl states the following: “I no longer wish to receive the fifty (50%) percent of my
husband’s, Harold K. Pancake, [Plans].” This language clearly shows that Cheryl
intended to abandon her interest in the Plans. And by having her attorney prepare the
affidavits, Cheryl took affirmative acts to implement her intent.
{¶11} In interpreting the affidavits, Cheryl asks us to consider “the context in
which the affidavits were executed[.]” Brief for Appellant at 11. But here, the affidavits
are unambiguous, and the plain language clearly establishes Cheryl’s intent to abandon
her interest in the Plans. Therefore, we will not consider evidence outside of the
affidavits themselves. See Robinson v. Robinson, 2d. Dist. No. 17562, 1999 WL
1082656, *6 (Dec. 3, 1999).
{¶12} Cheryl also argues that the affidavits “could not undo the effect of” the
October 15, 2008 divorce decree. Brief for Appellant at 10. She does not, however, Lawrence App. No. 11CA15 5
provide any legal support for this argument, and we disagree with the notion that Cheryl
lacked the authority to either (1) gift or (2) abandon her interest in the Plans. Under the
October 15, 2008 divorce decree, Cheryl received her interest in the Plans as part of the
distribution of property. As a result, Cheryl was free to dispose of her interest in the
Plans -- i.e., her personal property -- as she wished. In this case, the affidavits clearly
show that Cheryl abandoned her interest in the Plans.
B.
{¶13} The trial court found the Plans to be Harold’s separate property because
the affidavits “provided the court with clear and convincing evidence of [Cheryl’s] intent
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[Cite as Pancake v. Pancake, 2012-Ohio-1511.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
CHERYL A. PANCAKE, : : Plaintiff-Appellant, : Case No: 11CA15 : v. : : DECISION AND HAROLD K. PANCAKE, : JUDGMENT ENTRY : Defendant-Appellee. : Filed: March 29, 2012
APPEARANCES:
Brenda K. Neville, Meyers & Neville, L.L.C., Chesapeake, Ohio, for Appellant.
Michael A. Davenport, Ironton, Ohio, for Appellee.
Kline, J.:
{¶1} Cheryl A. Pancake (hereinafter “Cheryl”) appeals the judgment of the
Lawrence County Court of Common Pleas. The trial court granted Cheryl a divorce
from Harold K. Pancake (hereinafter “Harold”). In distributing property between Cheryl
and Harold, the trial court awarded Harold his entire (1) retirement plan and (2) thrift
plan (together, the “Plans”). On appeal, Cheryl claims that she is entitled to a portion of
these Plans. We disagree. Based on the plain language of two affidavits, Cheryl clearly
and unambiguously abandoned her interest in the Plans. Accordingly, we affirm the
judgment of the trial court.
I. Lawrence App. No. 11CA15 2
{¶2} Cheryl and Harold were first married in 1979, but that marriage ended in
divorce. In their October 15, 2008 divorce decree, Cheryl received “Fifty Percent (50%)
of [Harold’s] Marathon Retirement and Marathon Thrift Plan[.]” That is, Cheryl received
a fifty-percent interest in the Plans.
{¶3} Cheryl and Harold remarried on June 3, 2009. On September 28, 2009,
Cheryl attested to two affidavits related to the Plans. One affidavit states, in part, the
following: “I no longer wish to receive the fifty (50%) percent of my Husband’s, Harold K.
Pancake, Retirement.” The other affidavit states, in part, the following: “I no longer wish
to receive the fifty (50%) percent of my Husband’s, Harold K. Pancake, Thrift Plan.”
Cheryl’s attorney prepared these affidavits, and Cheryl signed them in the presence of a
notary.
{¶4} Cheryl filed for divorce on May 10, 2010. In the proceedings below,
Cheryl and Harold agreed on all relevant issues except for the distribution of the Plans.
Cheryl claimed that, because of the October 15, 2008 divorce decree, she had a fifty-
percent interest in the Plans. But Harold claimed that, because of the affidavits, Cheryl
“repudiated her right to receive these monies.” Defendant’s Brief Regarding Division of
Assets at 1.
{¶5} The trial court awarded one-hundred percent of the Plans to Harold.
Essentially, the trial court found that Cheryl had gifted her interest in the Plans to Harold
and, as a result, that the Plans were Harold’s separate property.
{¶6} Cheryl appeals and asserts the following two assignments of error: I. “The
trial court erred when it purported to divide that portion of the thrift plan and the
retirement account that had been divided in the first divorce, because those assets were Lawrence App. No. 11CA15 3
not before the court in the parties’ second divorce action.” And, II. “The trial court erred
when it determined that the affidavits signed by Appellant Cheryl A. Pancake[]
demonstrated clear and convincing evidence of an inter vivos gift to Appellee Harold K.
Pancake.”
II.
{¶7} Both of Cheryl’s assignments of error turn on our interpretation of her
affidavits. Therefore, we will review Cheryl’s assignments of error together. In both
assignments of error, Cheryl essentially contends that she is entitled to an interest in the
Plans.
A.
{¶8} Generally, we review the division of marital property under an abuse-of-
discretion standard. See Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981),
paragraph two of the syllabus. But here, our decision turns on the interpretation of
Cheryl’s two affidavits, which we will interpret de novo without regard for the trial court’s
findings. See Dorsey v. Dorsey, 11th Dist. No. 2010-T-0043, 2011-Ohio-6336, ¶ 49;
McLaughlin v. McLaughlin, 178 Ohio App.3d 419, 2008-Ohio-5284, 898 N.E.2d 79, ¶ 16
(4th Dist.).
{¶9} Initially, we disagree with the trial court’s interpretation of the affidavits.
The trial court interpreted them as establishing an inter vivos gift from Cheryl to Harold.
“An inter vivos gift is ‘an immediate, voluntary, gratuitous and irrevocable transfer of
property by a competent donor to another.’” Dassel v. Hershberger, 4th Dist. No.
10CA6, 2010-Ohio-6595, ¶ 16, quoting Jones v. Jones, 4th Dist. No. 07CA25, 2008-
Ohio-2476, ¶ 22, in turn quoting Smith v. Shafer, 89 Ohio App.3d 181, 183, 623 N.E.2d Lawrence App. No. 11CA15 4
1261 (3d Dist.1993). The plain language of the affidavits, however, does not establish
that Cheryl transferred her interest in the Plans to Harold. Rather, the plain language
indicates that Cheryl relinquished her interest in the Plans without referencing a
particular donee. Therefore, we interpret the affidavits as establishing that Cheryl
abandoned her interest in the Plans.
{¶10} “Abandoned property * * * is property over which the owner has
relinquished all right, title, claim, and possession with the intention of not reclaiming it or
resuming its ownership, possession or enjoyment.” Doughman v. Long, 42 Ohio App.3d
17, 21, 536 N.E.2d 394 (12th Dist.1987). “Abandonment requires affirmative proof of
the intent to abandon coupled with acts or omissions implementing the intent.” Davis v.
Suggs, 10 Ohio App.3d 50, 52, 460 N.E.2d 665 (12th Dist.1983). In both affidavits,
Cheryl states the following: “I no longer wish to receive the fifty (50%) percent of my
husband’s, Harold K. Pancake, [Plans].” This language clearly shows that Cheryl
intended to abandon her interest in the Plans. And by having her attorney prepare the
affidavits, Cheryl took affirmative acts to implement her intent.
{¶11} In interpreting the affidavits, Cheryl asks us to consider “the context in
which the affidavits were executed[.]” Brief for Appellant at 11. But here, the affidavits
are unambiguous, and the plain language clearly establishes Cheryl’s intent to abandon
her interest in the Plans. Therefore, we will not consider evidence outside of the
affidavits themselves. See Robinson v. Robinson, 2d. Dist. No. 17562, 1999 WL
1082656, *6 (Dec. 3, 1999).
{¶12} Cheryl also argues that the affidavits “could not undo the effect of” the
October 15, 2008 divorce decree. Brief for Appellant at 10. She does not, however, Lawrence App. No. 11CA15 5
provide any legal support for this argument, and we disagree with the notion that Cheryl
lacked the authority to either (1) gift or (2) abandon her interest in the Plans. Under the
October 15, 2008 divorce decree, Cheryl received her interest in the Plans as part of the
distribution of property. As a result, Cheryl was free to dispose of her interest in the
Plans -- i.e., her personal property -- as she wished. In this case, the affidavits clearly
show that Cheryl abandoned her interest in the Plans.
B.
{¶13} The trial court found the Plans to be Harold’s separate property because
the affidavits “provided the court with clear and convincing evidence of [Cheryl’s] intent
to make an inter vivos gift to [Harold] and thereby waive all her rights and interest in that
marital property.” June 30, 2011 entry at 3. As noted above, we disagree with the trial
court’s finding of an inter vivos gift to Harold. Nevertheless, “‘[w]hen a trial court has
stated an erroneous basis for its judgment, an appellate court must affirm the judgment
if it is legally correct on other grounds, that is, it achieves the right result for the wrong
reason, because such an error is not prejudicial.’” Captain v. United Ohio Ins. Co., 4th
Dist. No. 09CA14, 2010-Ohio-2691, ¶ 33, quoting State v. Sebastian, 4th Dist. No.
08CA19, 2009-Ohio-3117, ¶ 25, in turn quoting Reynolds v. Budzik, 134 Ohio App.3d
844, 846, fn. 3, 732 N.E.2d 485 (6th Dist.1999). And here, we affirm the judgment of
the trial court because the affidavits demonstrate that Cheryl abandoned her interest in
the Plans. Therefore, Cheryl was not entitled to a portion of the Plans as part of the
distribution of property.
{¶14} Accordingly, we overrule Cheryl’s two assignments of error and affirm the
judgment of the trial court. Lawrence App. No. 11CA15 6
JUDGMENT AFFIRMED. Lawrence App. No. 11CA15 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas 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. Exceptions.
Harsha, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________ Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.