OPINION

I. THE COURT ABUSED ITS DISCRETION IN AWARDING PLAINTIFF-APPELLEE THE SUM OF $11,218.00 AS SEPARATE PROPERTY FROM THE SALE OF THE REAL PROPERTY LOCATED AT 58 SOUTH UTAH AVENUE, NEWARK, OHIO.

II. THE COURT ABUSED ITS DISCRETION IN NOT FINDING THE ENTIRE VALUE OF THE REAL PROPERTY LOCATED AT 13455 BLUE JAY ROAD, S.E., NEWARK, OHIO, TO BE THE MARITAL PROPERTY OF THE PARTIES.

III. THE COURT ABUSED ITS DISCRETION IN NOT ORDERING PLAINTIFF-APPELLEE TO PROVIDE MEDICAL INSURANCE FOR DEFENDANT-APPELLANT AS SPOUSAL SUPPORT.

We agree with our colleagues in the Fourth and First District Courts of Appeals; with the enactment of R.C. 3105.171, the characterization of property as separate or marital became a mixed question of law and fact, not discretionary, and that the characterization must be supported by sufficient, credible evidence. Kelly v. Kelly (1996), 111, Ohio App.3d 641. See also Barkley v. Barkley (1997), 119 Ohio App.3d 155. Once the characterization has been made, the actual distribution of the asset may be properly reviewed under the more deferential abuse of discretion standard. R.C. 3105.171(D).

The property in question was first acquired by husband on June 22, 1959, just over three years before the parties married. This property was sold during the marriage on April 2, 1976, for $22,435.84. At the March 17, 1998 hearing before the magistrate, husband presented the court with the statement of a savings account into which he deposited $22,000 from the sale of this property. (Plaintiff's Exhibit 7). In making its determination on the objections from the Magistrate's Decision, the trial court stated: The evidence reflected that although the plaintiff purchased the property in 1959, the husband admitted that improvements were made on the property during the marriage. While the Court concedes the initial purchase price was premarital, the property was used primarily as a rental property during the marriage until its sale in 1976. [Husband] noted that the major improvement was the addition of a garage on the property. The Court determines that the proceeds of the sale of the 58 South Utah property was both separate and marital. The Court further determines that based upon the evidence, the equitable solution to these proceeds is to designate them as one-half separate property of the plaintiff and one-half marital. Therefore of the $22,436.00 sale proceeds, $11,218.00 may be assigned to the plaintiff as his separate property and of the remaining $11,218.00, the court finds that $436.00 was used for marital expenses and the remaining $10,782.00 is to be equal divided as marital property; or $16,609.00 to plaintiff and $5,391.00 to defendant from the $22,000.00 deposited in the parties joint account. The Court finds the $11,218.00 is traceable and remains the separate property of the plaintiff. These were part of the funds withdrawn from the joint account by the defendant.

The trial court reviewed the evidence presented at the hearing and found the only equitable solution was to divide the proceeds as one-half separate property and one-half marital property. The trial court's factual determination as to the amount of traceable separate property and the amount of the increase in value during the marriage was supported by competent, credible evidence, and not against the manifest weight of the evidence. Further, we find no abuse of discretion in the overall division of property. Accordingly, Wife's first assignment of error is overruled.

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(iii) Except as otherwise provided in this section, 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.

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(6)(a) "Separate property" means 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:

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(iii) Passive income and appreciation acquired from separate property by one spouse during the marriage . . .

(Emphasis added).

The court traced husband's contribution of 49% of the purchase price of the Blue Jay Road property. Because the parties made no improvements to the Blue Jay Road property during the marriage, the trial court found $140,000, the amount of appreciation on the property, was entirely passive. The valuations of the marital and separate property as it relates to the Blue Jay Road property is intertwined with the sale of 190 Dry Creek Road in Newark, Ohio. Plaintiff purchased 190 Dry Creek Road in 1955, before the marriage. At the final divorce hearing, neither the purchase price, nor the amount of equity in the Dry Creek Road property at the time of the marriage was established. However, at the time of the parties' marriage, there was still a debt on the Dry Creek Road property in the amount of $2,479.88. This balance was paid off after the marriage. Because the magistrate's decision failed to reflect that $2,479.88 debt, the trial court recalculated the separate and marital property with regard to 190 Dry Creek Road. As stated in the December 17, 1998 Opinion: * * * There was an existing mortgage indebtedness on the premises when the parties were married which was paid off during the marriage. There was no evidence that any major improvements were made to the property after the marriage. * * * About $2,480 remained on loan at the time the parties were married. Of the $19,754.76 applied to the Blue Jay Road property minimally $2,480 was marital property. Resolving the figures to properly reflect plaintiff's's separate property would result in $17,274.76 as plaintiff's separate property or 49% of the purchase price of Blue Jay Road property. Using these figures, the court readjusts the plaintiff's separate property share in the Blue Jay Road property to $85,750.00. * * *

Id. 2-3. Our review indicates the trial court's decision was based on competent, credible evidence and was not against the manifest weight of the evidence. Further, in reviewing the entire marital property division, we find no abuse of discretion. Wife's second assignment of error is overruled.

For this reason, wife's third assignment of error is overruled.

The January 6, 1999 Judgment Decree of Divorce of the Licking County Court of Common Pleas, Division of Domestic Relations, is affirmed. By: Hoffman, J. Gwin, P.J. and Edwards, J. concurs in part, dissents in part.

I concur with the majority in regard to the disposition of assignments of error II and III, but disagree as to the disposition of assignment of error I. I do not think that the decision of the trial court to designate one-half of the South Utah Avenue property as marital and one-half as separate property of the husband is supported by competent, credible evidence. The findings of fact made by the trial court do not support the division made by the court in any quantifiable way. It appears it was an equitable decision made by the trial court due to a lack of fundamental information having been presented as evidence to the court. Under Rule 53(E)(4)(b) of the Ohio Rules of Civil Procedure, the court, upon review of a Magistrate's Decision when there is an objection, may hear additional evidence or recommit the matter to the Magistrate with instructions. I find that one of those two options should have been used by the trial court in this matter. While I understand the reluctance of the trial court judge to allow counsel for the parties a second opportunity to present evidence which should have been provided at the trial to the Magistrate, I find that the hearing of additional evidence in this matter was the only way to establish a division of the South Utah Avenue property that can be supported by competent credible evidence.

Therefore, I would remand this matter for further proceedings regarding assignment of error I.