[Cite as White-Rhoades v. Rhoades, 2014-Ohio-1790.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
CYNTHIA KAY WHITE-RHOADES,
PLAINTIFF-APPELLANT, CASE NO. 9-13-60
v.
WAYNE A. RHOADES, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court Family Division Trial Court No. 12 DR 0043
Judgment Affirmed
Date of Decision: April 28, 2014
APPEARANCES:
Jeff Ratliff for Appellant
Nathan D. Witkin for Appellee Case No. 9-13-60
SHAW, J.
{¶1} Plaintiff-appellant, Cynthia K. White-Rhoades (“Cynthia”), appeals
the October 1, 2013 judgment of the Marion County Court of Common Pleas,
Family Division, classifying the appreciation of Cynthia’s residence, located at
295 Kenmore Avenue, Marion, Ohio (the “Kenmore residence”), as marital
property based upon improvements made during the marriage which were funded
by a bank account containing Cynthia’s separate property and marital funds
contributed by defendant-appellee, Wayne A. Rhoades (“Wayne”). The trial court
concluded that the account was a marital asset due to the comingled nature of the
funds and further determined that it was unable to discern from the evidence
presented which party’s funds financed the improvements to the Kenmore
residence. As a result, the trial court ordered Cynthia to pay Wayne one half of
the value of the appreciation.
{¶2} This Court originally heard this matter in case number 9-12-60
(“White-Rhoades v. Rhoades I”). White-Rhoades v. Rhoades, 3rd Dist. Marion
No. 9-12-60, 2013-Ohio-2385. In the original decree of divorce, the trial court
determined that the appreciation of the Kenmore residence was Cynthia’s separate
property. Specifically, the trial court found that:
During the course of the marriage the residence at 295 Kenmore Avenue underwent an addition. [Wayne] seeks to be awarded one-half of the increase in the value of the real property due to the labor he performed. The evidence shows that [Cynthia]
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engaged the services of a contractor to construct an addition to the Kenmore Avenue property. The evidence further shows that [Cynthia] expended funds in excess of $200,000.00 for this construction. [Wayne] acknowledged that the funds for the construction came from [Cynthia’s] monies. However, [Wayne] claims he is entitled to a portion of the increase in the value of the property because he assisted the construction team with his labor and expertise. [Wayne] further indicated that he used the opportunity to learn some construction skills from the contractor.
Don Davis, a certified real estate appraiser, appraised the home with and without the addition. He determined, and the parties stipulated, that the increase in the value of the property is $40,000.00. The Court finds that [Wayne] failed to show that the work he performed and the expertise he provided increased the value of the real estate. The Court therefore finds that [Wayne’s] labor and expertise did not result in any comingling of the property and the property shall remain [Cynthia’s] separate property.
(Doc. No. 47, p. 2–3).
{¶3} The trial court also determined that the Honda Account which
financed the improvements to the Kenmore residence was a marital asset.
Specifically, the trial court found as follows:
[Wayne] claims that his income was deposited into [Cynthia’s] checking account and that as a result there has been a comingling of assets. Bank records show that [Wayne’s] paycheck was direct deposited into [Cynthia’s] Honda Federal Credit Union checking account ending in account # 3693. This arrangement was made because [Wayne], due to prior felony convictions, was not able to open his own separate checking account. Additionally, direct deposit was required by his employer. [Wayne] acknowledged that awards on [Cynthia’s] personal injury claims were deposited into this account and that they were not comingled and are [Cynthia’s] separate property.
-3- Case No. 9-13-60
[Cynthia] eventually moved those funds into her investment accounts. The Court finds that those funds remain [Cynthia’s] separate property. The bank records show that the monies in [Cynthia’s] Honda Federal Credit Union checking account indicated by checking #3693 were used for various expenditures. Some of the expenses were for the parties’ vacations, dining and other non-essential purposes. Others are attributable to trips that [Wayne] had separately from [Cynthia]. Other expenses were used for the daily living expenses of the parties. [Cynthia] has not met the burden of showing adequate tracing to show that the account, although solely in her name, was not comingled with [Wayne’s] funds. The Court therefore finds that checking account ending with the numbers 3693 is a marital asset. Both parties’ property affidavits show that the balance in this account at separation was $1,713.77. These funds are marital.
(Id. at p. 3–4).
{¶4} Wayne filed an appeal in White-Rhoades v. Rhoades I claiming that
the trial court erred in determining that the $40,000.00 of appreciation of the
Kenmore residence was attributable to only Cynthia’s separate property.
Specifically, Wayne argued that the trial court overlooked certain evidence
presented during the final hearing when the trial court stated in the divorce decree
that “[Wayne] acknowledged that the funds for the construction came from
[Cynthia’s] monies. However, [Wayne] claims he is entitled to a portion of the
increase in the value of the property because he assisted the construction team
with his labor and expertise.” Instead, Wayne argued that he consistently
maintained during the trial court proceedings that the appreciation was marital
property due to the fact that the addition on the Kenmore residence was funded in
-4- Case No. 9-13-60
large part by the Honda Account where $84,000.00 of his earnings were deposited
during the marriage.
{¶5} This Court reviewed the record in White-Rhoades v. Rhoades I and
determined that the evidence supported Wayne’s contentions on appeal that he
maintained throughout the final hearing that the appreciation was a marital asset
due to the comingling of marital and separate funds in the Honda account and that
the characterizations of the trial court to the contrary were not supported by the
record. White-Rhoades v. Rhoades I, 2013-Ohio-2385 at ¶ 19. Consequently, we
issued a remand solely “for the trial court to consider the argument Wayne
asserted in his trial brief concerning the classification of the Kenmore residence’s
appreciation.” Id. at ¶ 23.
{¶6} The record reflects that a status conference was held on August 15,
2013, following the release of this Court’s opinion in White-Rhoades v. Rhoades I.
{¶7} On September 25, 2013, Wayne filed “Defendant’s Post Appeal
Brief.” In this document, Wayne acknowledged, for the first and only time in the
record of these divorce proceedings, the existence of a debt associated with a
judgment in a separate civil case involving Cynthia and Nye Construction—the
contractors who built the addition on the Kenmore residence.
-5- Case No. 9-13-60
{¶8} On October 1, 2013, the trial court issued a judgment entry on the
remanded matter of considering Wayne’s arguments regarding the appreciation.
In this judgment entry, trial court reached the following conclusion:
Ohio Revised Code § 3105.171(C)(1) indicates that the Court shall divide marital property equally unless such a division is not equitable.
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[Cite as White-Rhoades v. Rhoades, 2014-Ohio-1790.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
CYNTHIA KAY WHITE-RHOADES,
PLAINTIFF-APPELLANT, CASE NO. 9-13-60
v.
WAYNE A. RHOADES, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court Family Division Trial Court No. 12 DR 0043
Judgment Affirmed
Date of Decision: April 28, 2014
APPEARANCES:
Jeff Ratliff for Appellant
Nathan D. Witkin for Appellee Case No. 9-13-60
SHAW, J.
{¶1} Plaintiff-appellant, Cynthia K. White-Rhoades (“Cynthia”), appeals
the October 1, 2013 judgment of the Marion County Court of Common Pleas,
Family Division, classifying the appreciation of Cynthia’s residence, located at
295 Kenmore Avenue, Marion, Ohio (the “Kenmore residence”), as marital
property based upon improvements made during the marriage which were funded
by a bank account containing Cynthia’s separate property and marital funds
contributed by defendant-appellee, Wayne A. Rhoades (“Wayne”). The trial court
concluded that the account was a marital asset due to the comingled nature of the
funds and further determined that it was unable to discern from the evidence
presented which party’s funds financed the improvements to the Kenmore
residence. As a result, the trial court ordered Cynthia to pay Wayne one half of
the value of the appreciation.
{¶2} This Court originally heard this matter in case number 9-12-60
(“White-Rhoades v. Rhoades I”). White-Rhoades v. Rhoades, 3rd Dist. Marion
No. 9-12-60, 2013-Ohio-2385. In the original decree of divorce, the trial court
determined that the appreciation of the Kenmore residence was Cynthia’s separate
property. Specifically, the trial court found that:
During the course of the marriage the residence at 295 Kenmore Avenue underwent an addition. [Wayne] seeks to be awarded one-half of the increase in the value of the real property due to the labor he performed. The evidence shows that [Cynthia]
-2- Case No. 9-13-60
engaged the services of a contractor to construct an addition to the Kenmore Avenue property. The evidence further shows that [Cynthia] expended funds in excess of $200,000.00 for this construction. [Wayne] acknowledged that the funds for the construction came from [Cynthia’s] monies. However, [Wayne] claims he is entitled to a portion of the increase in the value of the property because he assisted the construction team with his labor and expertise. [Wayne] further indicated that he used the opportunity to learn some construction skills from the contractor.
Don Davis, a certified real estate appraiser, appraised the home with and without the addition. He determined, and the parties stipulated, that the increase in the value of the property is $40,000.00. The Court finds that [Wayne] failed to show that the work he performed and the expertise he provided increased the value of the real estate. The Court therefore finds that [Wayne’s] labor and expertise did not result in any comingling of the property and the property shall remain [Cynthia’s] separate property.
(Doc. No. 47, p. 2–3).
{¶3} The trial court also determined that the Honda Account which
financed the improvements to the Kenmore residence was a marital asset.
Specifically, the trial court found as follows:
[Wayne] claims that his income was deposited into [Cynthia’s] checking account and that as a result there has been a comingling of assets. Bank records show that [Wayne’s] paycheck was direct deposited into [Cynthia’s] Honda Federal Credit Union checking account ending in account # 3693. This arrangement was made because [Wayne], due to prior felony convictions, was not able to open his own separate checking account. Additionally, direct deposit was required by his employer. [Wayne] acknowledged that awards on [Cynthia’s] personal injury claims were deposited into this account and that they were not comingled and are [Cynthia’s] separate property.
-3- Case No. 9-13-60
[Cynthia] eventually moved those funds into her investment accounts. The Court finds that those funds remain [Cynthia’s] separate property. The bank records show that the monies in [Cynthia’s] Honda Federal Credit Union checking account indicated by checking #3693 were used for various expenditures. Some of the expenses were for the parties’ vacations, dining and other non-essential purposes. Others are attributable to trips that [Wayne] had separately from [Cynthia]. Other expenses were used for the daily living expenses of the parties. [Cynthia] has not met the burden of showing adequate tracing to show that the account, although solely in her name, was not comingled with [Wayne’s] funds. The Court therefore finds that checking account ending with the numbers 3693 is a marital asset. Both parties’ property affidavits show that the balance in this account at separation was $1,713.77. These funds are marital.
(Id. at p. 3–4).
{¶4} Wayne filed an appeal in White-Rhoades v. Rhoades I claiming that
the trial court erred in determining that the $40,000.00 of appreciation of the
Kenmore residence was attributable to only Cynthia’s separate property.
Specifically, Wayne argued that the trial court overlooked certain evidence
presented during the final hearing when the trial court stated in the divorce decree
that “[Wayne] acknowledged that the funds for the construction came from
[Cynthia’s] monies. However, [Wayne] claims he is entitled to a portion of the
increase in the value of the property because he assisted the construction team
with his labor and expertise.” Instead, Wayne argued that he consistently
maintained during the trial court proceedings that the appreciation was marital
property due to the fact that the addition on the Kenmore residence was funded in
-4- Case No. 9-13-60
large part by the Honda Account where $84,000.00 of his earnings were deposited
during the marriage.
{¶5} This Court reviewed the record in White-Rhoades v. Rhoades I and
determined that the evidence supported Wayne’s contentions on appeal that he
maintained throughout the final hearing that the appreciation was a marital asset
due to the comingling of marital and separate funds in the Honda account and that
the characterizations of the trial court to the contrary were not supported by the
record. White-Rhoades v. Rhoades I, 2013-Ohio-2385 at ¶ 19. Consequently, we
issued a remand solely “for the trial court to consider the argument Wayne
asserted in his trial brief concerning the classification of the Kenmore residence’s
appreciation.” Id. at ¶ 23.
{¶6} The record reflects that a status conference was held on August 15,
2013, following the release of this Court’s opinion in White-Rhoades v. Rhoades I.
{¶7} On September 25, 2013, Wayne filed “Defendant’s Post Appeal
Brief.” In this document, Wayne acknowledged, for the first and only time in the
record of these divorce proceedings, the existence of a debt associated with a
judgment in a separate civil case involving Cynthia and Nye Construction—the
contractors who built the addition on the Kenmore residence.
-5- Case No. 9-13-60
{¶8} On October 1, 2013, the trial court issued a judgment entry on the
remanded matter of considering Wayne’s arguments regarding the appreciation.
In this judgment entry, trial court reached the following conclusion:
Ohio Revised Code § 3105.171(C)(1) indicates that the Court shall divide marital property equally unless such a division is not equitable. Ohio Revised Code § 3105.171(C)(2) indicates that each spouse shall be considered to have contributed equally to the production and acquisition of marital property. As indicated above the Court determined the Honda Federal Credit Union account to be marital property due to inadequate tracing.
To determine whether or not an equal division of the increase in value of [Cynthia]’s separate real property is equitable the Court turns to Ohio Revised Code § 3105.171(F). This Court finds that the duration of the marriage was six years. The Court further finds that [Cynthia] owned the real property at issue prior to the marriage. The Court further finds that the additions [sic] made to the real estate were made after the marriage. The addition increased the value of the home from $90,000.00 to $130,000.00 yielding a $40,000.00 increase in the property value. The Court is unable to discern which particular dollars from the Honda Federal Credit Union account were assigned to the payment of the addition.
The Court therefore finds that an equal division of the increase in the value of the property is fair and equitable.
It is therefore ORDERED that [Cynthia] shall pay [Wayne] $20,000.00 for his share of the increase in the value of the real property on Kenmore Avenue within 30 days of this judgment entry.
(Doc. No. 60 at 2).
{¶9} Cynthia subsequently filed this appeal, asserting the following
assignment of error.
-6- Case No. 9-13-60
ASSIGNMENT OF ERROR
THE TRIAL COURT FAILED TO MAKE AN EQUAL DIVISION OF ALL THE MARITAL ASSETS AND DEBTS, AS DIRECTED BY R.C. 3105.171, WITHOUT STATING THAT AN EQUAL DIVISION WOULD BE INEQUITABLE OR INDICATING ANY REASONS FOR AN UNEQUAL DIVISION AS LISTED IN R.C. 3105.171(C).
{¶10} In her sole assignment of error, Cynthia argues following three points
on appeal: (1) the trial court abused its discretion when it determined that the
appreciation of the Kenmore residence should be divided equally between the
parties; (2) the trial court erred when it failed to consider the liability owed to Nye
Construction as a result of a judgment issued in a separate civil suit in making its
property division regarding the appreciation of the Kenmore residence; and (3) the
trial court failed to equally divide the parties’ Honda Account and Wayne’s 401k
plan.
{¶11} At the outset, we note that neither party sought to have any part of
the record of the separate civil suit involving Nye Construction certified or
otherwise introduced into the record of these divorce proceedings. On the
contrary, the only evidence of the Nye Construction case before the trial court was
brief testimony regarding Cynthia’s expenses and her payment of attorney’s fees
to defend that case. Moreover, there is nothing in the evidence presented to trial
court indicating that the parties contemplated a potential liability affecting the
property distribution in the divorce arising from the Nye Construction case. As a
-7- Case No. 9-13-60
result, the trial court could not have properly considered any debt resulting from
this separate and independent civil case as part of its property distribution in the
parties’ divorce. Accordingly, we find Cynthia’s contention that the trial court on
remand should have considered the judgment in the Nye Construction case when
determining the parties’ shares of the Kenmore residence appreciation to be
without merit.
{¶12} We further note that the only issue properly before us on this appeal
is the matter specifically remanded by this Court in White-Rhoades v. Rhoades I—
i.e., trial court’s division of the appreciation of the Kenmore residence. Thus, any
argument the parties may have challenging the trial court’s division of other
property, including the Honda Account or Wayne’s 401(k), are waived as they
should have been raised in the prior appeal.
{¶13} We next turn to address the final argument presented by Cynthia in
support of her assignment of error which does properly pertain to the matter
remanded by this Court in White-Rhoades v. Rhoades I—specifically that the trial
court erred in allocating to the parties equal shares of the Kenmore residence
appreciation.
{¶14} Trial courts have broad discretion to determine what property
division is equitable in a divorce proceeding. Cherry v. Cherry, 66 Ohio St.2d
348, 355 (1981). A trial court’s decision allocating marital property will not be
-8- Case No. 9-13-60
reversed absent an abuse of discretion. Jackson v. Jackson, 3d Dist. Paulding No.
2008–Ohio–1482, ¶ 15, citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131
(1989). Here, the record supports the trial court’s conclusion that the Honda
Account used to finance the improvements to the Kenmore residence contained
comingled marital and separate funds. The record also supports the trial court’s
determination that Cynthia failed to present sufficient evidence establishing that
only her separate funds were used from the Honda Account to finance the addition
on the Kenmore residence. Accordingly, we do not find the trial court’s decision
to equally divide the appreciation between the parties to be an abuse of discretion.
{¶15} For all these reasons, Cynthia’s assignment of error is overruled and
the judgment is affirmed.
ROGERS and PRESTON, J.J., concur.
/jlr
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