[Cite as Banjoko v. Banjoko,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

VALERIE E. BANJOKO :

Plaintiff-Appellee : C.A. CASE NO. 25406

v. : T.C. NO. 10DR995

SAMUEL O. BANJOKO : (Civil appeal from Common Pleas Court, Domestic Relations) Defendant-Appellant :

:

..........

OPINION

Rendered on the 21st day of June , 2013.

..........

STEPHEN E. KLEIN, Atty. Reg. No. 0014351, 240 Bohanan Drive, Vandalia, Ohio 45377 Attorney for Plaintiff-Appellee

KATHY L. ELLISON, Atty. Reg. No. 0033808, 131 N. Ludlow Street, #382, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

FROELICH, J.

{¶ 1} Samuel O. Banjoko appeals from a Final Judgment and Decree of

Divorce entered by the Montgomery County Court of Common Pleas, Domestic Relations 2

Division. Mr. Banjoko objects to the portion of the trial court’s judgment that disposed of

his retirement accounts by awarding all or part of these accounts to Valerie E. Banjoko.

{¶ 2} The Banjokos were married in January 2000; they had no children together.

Mrs. Banjoko filed a complaint for divorce in September 2010.

{¶ 3} Mr. Banjoko began his career at UPS in 1978, working part-time on the

loading docks. After eleven years in that position, he became a driver and a member of the

Teamsters union. He worked full-time as a driver for approxiamtely ten years. He became

a management supervisor with UPS in late 2000 or early 2001, “just prior to [his] marriage.”

Mr. Banjoko lost his job with UPS in August 2002. During the parties’ divorce

proceedings, the trial court heard evidence about Mr. Banjoko’s retirement accounts with

UPS and subsequent transfers from those accounts. Mrs. Banjoko worked at a department

store during the marriage, but she did not have a pension or other retirement accounts.

{¶ 4} Mr. Banjoko testified that he contributed to his retirement accounts during

his employment with UPS until he became a manager; at that time, his eligibility for the plan

changed, in part because he was no longer a member of the Teamsters’ Union. After he

became a manager and after his separation from employment with UPS, he no longer added

money to the accounts, but he transferred his retirement funds among various similar

accounts and management companies as part of his efforts to manage funds. Mr. Banjoko

testified that “after [his] separation from UPS, * * * that account was just sitting down there.

Nobody [was] managing it,” so he transferred the funds among retirement accounts with

several companies. He testified, however, that all of the funds in the accounts were

contributed prior to his promotion to management, which was also prior to his marriage. 3

{¶ 5} The parties presented several statements from retirement plans, about which

Mr. Banjoko testified. The statements supported Mr. Banjoko’s assertions that he had not

contributed money to the retirement accounts, except for the reinvestment of income

generated by the accounts themselves, with one $75 exception. Mr. Banjoko was

questioned about one retirement plan statement which indicated a $75 “IRA Contribution” to

the Allianz Life Insurance Annuity; he explained that it was either a “fee” or made up a

shortfall “of the $10,000 that was supposed to be there” when the account was opened. The

parties disagreed about whether Mr. Banjoko had provided copies of all the monthly

statements that had been requested by Mrs. Banjoko’s attorney.

{¶ 6} Mrs. Banjoko’s testimony at the hearing did not address, in any way, Mr.

Banjoko’s retirement accounts. She did not claim that contributions had been made to those

accounts from marital funds or at any time during the marriage.

{¶ 7} In its Final Judgment and Decree of Divorce, which was filed in February

2012, the trial court made the following findings with respect to Mr. Banjoko’s retirement

accounts:

Allianz: The court found that the Allianz Life Insurance Company account,

which had a balance of $12,732.94 as of December 30, 2010, was marital

property and that half of the balance as of the date of the decree should be

awarded to Mrs. Banjoko.

Citicorp: The court found that $19,951.07 of the Citicorp Investment

Services Account was marital property, and that half of this amount, or

$9,975.54, should be awarded to Mrs. Banjoko. 4

CitiGroup: The court found that the entire value of Mr. Banjoko’s

CitiGroup Global Market IRA, $35,622.11, was marital property and awarded

half of that amount to Mrs. Banjoko.

United Planners: The court found that the marital share of the United

Planners Financial Services of America 401(k) account was $14,674.63 and

awarded the entire amount to Mrs. Banjoko.

UPS Savings Plan: The court found that the $24,634.85 contained in Mr.

Banjoko’s UPS Savings Plan account was non-marital property and awarded

it entirely to Mr. Banjoko.

American General: The court found that the entire amount contained in

Mr. Banjoko’s American General Annuity Fund account was non-marital

property and awarded it to Mr. Banjoko. No specific dollar value was stated

with respect to this account.

{¶ 8} Five days after the Final Judgment and Decree of Divorce was filed, Mr.

Banjoko filed a motion for relief from judgment. In that motion, he asserted that there was

only one account with Citicorp/CitiGroup, which was created prior to the marriage; the name

of the account had changed several times. Although the motion mentioned other

disagreements with the court’s conclusions regarding marital and non-marital property, the

motion only asked the court to recognize that there was only one Citicorp/Citigroup account

and to make “an equitable division” of that account.

{¶ 9} In addressing the motion for relief from judgment, the trial court conducted

a pretrial conference with the attorneys, but no testimony was presented at that time. As a 5

result of their discussions, the trial court concluded that there was only one Citicorp account,

a “Citi Retirement Account” managed by Pershing LLC. The court scheduled a hearing at

which additional evidence would be presented about “the equitable division of this account.”

{¶ 10} At a hearing on May 22, 2012, Mr. Banjoko testified that the Citicorp

account was created through his union employment with UPS; he reiterated that, when he

became a manager just prior to the parties’ marriage, he could no longer contribute to this

account. Mr. Banjoko testified that, prior to his marriage, he owned 402 shares of UPS

stock, as demonstrated by his Citicorp statements from that time. He also held interests in

two mutual funds through Citicorp. Mr. Banjoko stated that he and Mrs. Banjoko had been

permitted to make additional contributions to these plans between the time of their marriage

and the date of his termination from UPS, but that they had been “financially strained” and

had been unable to do so.

{¶ 11} Mr. Banjoko testified that he moved $10,000 from the Citicorp account to

Allianz in 2007, but he retained the 402 shares of stock at Citicorp. He also stated that

Citicorp, on its own initiative, “took [money] out of one [account] and dumped [it] into the

other.” Mr. Banjoko repeatedly stated that he did not put more money into these accounts,

but was able to convert some of the funds to other assets, including the purchase of

additional shares of UPS stock, due to increases in the value of the investments. According

to Mr. Banjoko, he acquired the Allianz and United Planners accounts as a result of such a

conversion of retirement funds.

{¶ 12} Mr. Banjoko further testified that, when he lost his job, he withdrew

$25,000 from his UPS retirement account, transferring it to an account called “Joko 6

Enterprises,” because they were “financially in stress.” He stated that Mrs. Banjoko knew

of and consented to this transfer. Although they had hoped to repay the money, only $2,000

was repaid, and Mr. Banjoko incurred a tax liability (after the divorce)1 on the amount that

they had been unable to repay within the prescribed period.

{¶ 13} Mrs. Banjoko testified that Mr. Banjoko had handled their financial affairs

and that she had had limited knowledge of account transfers, loans, etc. She testified that

Mr. Banjoko was not being truthful when he stated that she had known of these transactions.

However, Mrs. Banjoko did not assert that any of the funds in these accounts were marital

property.

{¶ 14} On June 22, 2012, the trial court issued a decision stating that the parties

had agreed there was only one Citicorp retirement account, which had a balance of

$35,429.41 as of May 2011. The court acknowledged that Mr. Banjoko had testified that all

of the funds in this account were deposited prior to the marriage, although the value of the

investment had grown in value due to increases in the value of the UPS stock and dividends

paid on the stock. The court found that Mr. Banjoko’s testimony that no funds were placed

in the account after the parties’ marriage was credible, that only one account existed, and

that it was a non-marital asset. Thus, the court ordered that Mr. Banjoko retain the Citicorp

account “free and clear of any claim of” Mrs. Banjoko. An Amended Final Judgment and

Decree of Divorce was filed to reflect this change.

{¶ 15} Mr. Banjoko filed a notice of appeal from the Amended Final Judgment

1 Mr. Banjoko testified that he had sixty months to repay the withdrawal before incurring the tax consequences of the withdrawal. 7

and Decree of Divorce, raising one assignment of error.

THE TRIAL COURT ERRED IN AWARDING A SHARE OF

APPELLANT’S ALLIANZ LIFE INSURANCE COMPANY OF NORTH

AMERICA AND UNITED PLANNERS’ FINANCIAL SERVICES OF

AMERICA RETIREMENT ACCOUNTS TO APPELLEE SINCE THEY

WERE FULLY FUNDED WITH APPELLANT’S PREMARITAL

CONTRIBUTIONS TO HIS UNITED PARCEL SERVICE UNION

PENSION ACCOUNTS AND THE TRIAL COURT FAILED TO PROVIDE

WRITTEN FINDING[S] OF FACTS TO EXPLAIN FACTORS USED TO

DETERMINE THAT THE SPOUSE’S SEPARATE PROPERTY SHOULD

NOT BE DISBURSED TO THAT SPOUSE.

{¶ 16} Mr. Banjoko contends that the trial court erred in concluding that the

Allianz and United Planners accounts were marital property, because the funds for those

accounts came from union retirement accounts with UPS, which were funded before the

marriage. Thus, he claims that the Allianz and United Planners accounts held separate

property and should have been awarded to him in their entirety. Mr. Banjoko characterizes

such treatment of the accounts as “the next obvious step” from the court’s ruling on the

motion for relief from judgment. He also claimed that the trial court should have made

findings of fact in support of its conclusions.

{¶ 17} Pursuant to Civ.R. 52, the trial court was not obligated to provide written

findings of fact in the absence of a request for such findings, and Mr. Banjoko did not make

such a request. Additionally, we do not share Mr. Banjoko’s view that a review of the 8

alleged errors with respect to the Allianz and United Planners accounts “obviously” follows

from the court’s decision on the motion for relief from judgment with respect to the Citicorp

accounts; with respect to the Citicorp accounts, there was confusion over the number of

accounts and the amounts in them, as well as the source of funds. However, the treatment

of the accounts is related, and Mr. Banjoko has properly raised the issues with respect to the

Allianz and United Planners accounts on appeal.

{¶ 18} In an action for divorce, the trial court must determine what constitutes

marital property and what constitutes separate property, divide the marital property equitably

between the parties, and “disburse a spouse’s separate property to that spouse.” R.C.

3105.171(D). A trial court’s classification of property as marital or separate must be

supported by competent, credible evidence. Mays v. Mays, 2d Dist. Miami No.

2000-CA-54,

, * 3 (Oct. 12, 2001); Renz v. Renz, 12th Dist. Clermont

No. CA2010-05-034,

, ¶ 17. Then, in considering whether a trial court’s

division of marital assets and liabilities is fair and equitable, appellate courts review a trial

court’s decision under an abuse of discretion standard. Koegel v. Koegel,

,

(1982); Mays, supra. An abuse of discretion implies that the trial

court’s attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶ 19} The definition of marital property includes all real and personal property

that currently is owned by either or both of the spouses, including “retirement benefits [that

were] acquired by either or both of the spouses during the marriage.” R.C.

3105.171(A)(3)(a)(i). Separate property includes all real and personal property and any 9

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) & (iii).

{¶ 20} The burden of proof that specific property is not marital, but separate, is

upon the proponent of the claim to prove by a preponderance of the evidence. Peck v. Peck,

,

(12th Dist. 1994); Snyder v. Snyder, 2d Dist.

Clark No. 2002-CA-6,

,

* 3 (June 7, 2002). “Once it is

proven that specific property was the separate property of one of the spouses at, or after, the

time of the marriage, the burden shifts to the other spouse to prove, by clear and convincing

evidence, that the property, or some interest therein, has been given to the other spouse.”

, citing Helton v. Helton,

,

(2d

Dist. 1996).

{¶ 21} As described above, Mr. Banjoko testified without contradiction that the

funds in all of his retirement accounts were contributed prior to the marriage, before he

became a manager at UPS, with the exception of $75 that was contributed to the Allianz

account in order to meet the minimum contribution or as some sort of fee. Many documents

related to these accounts were also presented to the court, and these documents corroborated

Mr. Banjoko’s assertion that, once the accounts had been created with money transferred

from his retirement accounts with UPS, no additional contributions were made other than

those generated by returns on the investments. The documents included monthly, quarterly,

and annual statements at various points, mostly near the time of the marriage and the time of

the divorce, but all of the statements for each account were not presented; Mrs. Banjoko 10

claimed that she was not provided with copies of all the statements she requested. Mrs.

Banjoko did not testify or present any documentary evidence that marital funds had been

deposited into Mr. Banjoko’s retirement accounts.

{¶ 22} In its decision on the motion for relief from judgment, the trial court

specifically held that Mr. Banjoko’s testimony about the sources of the funds in his Citicorp

retirement accounts was credible. Although the court did not comment on the credibility of

the testimony with respect to the other retirement accounts, Mrs. Banjoko did not contradict

Mr. Banjoko’s claim that all of the funds in the retirement accounts originated in the UPS

retirement accounts and that he stopped depositing funds into those accounts before the

parties’ marriage. The other transfers were not of a different nature than the ones to

Citicorp, and there is no suggestion in the record that the trial court disbelieved Mr.

Banjoko’s testimony. Pursuant to R.C. 3105.171(A)(6)(a)(iii), if the funds deposited into

the accounts were separate property, any appreciation or passive income earned from those

funds was also separate property.

{¶ 23} Based on the evidence presented, we conclude that Mr. Banjoko met his

burden to establish, by the preponderance of the evidence, that the funds in his retirement

accounts were separate property. In response, Mrs. Banjoko failed to prove, by clear and

convincing evidence, that the retirement accounts contained marital property; indeed, her

testimony did not even include such an allegation. Under these circumstances, the trial

court abused its discretion in ordering that the Allianz and United Planners accounts

contained marital property and in awarding half (as with Allianz) or all (as with United

Planners) of the account balances to Mrs. Banjoko. 11

{¶ 24} The assignment of error is sustained.

{¶ 25} The judgment of the trial court will be reversed with respect to the Allianz

and United Planners retirement accounts; these accounts will be awarded to Mr. Banjoko.

In all other respects, the judgment of the trial court will be affirmed.

..........

DONOVAN, J. and DONOFRIO, J., concur.

(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Stephen E. Klein Kathy L. Ellison Hon. Timothy D. Wood