[Cite as Fiamengo v. Fiamengo,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

K. LYNAE FIAMENGO : : Plaintiff-Appellee : C.A. CASE NO. 26704 : v. : T.C. NO. 11-DR-505 : PAUL H. FIAMENGO : (Civil appeal from Common Pleas : Court, Domestic Relations) Defendant-Appellant : :

...........

OPINION

Rendered on the ___30th___ day of ____June____, 2016.

...........

ROBERT M. MUES, Atty. Reg. No. 0017449, 1105 Wilmington Avenue, Dayton, Ohio 45420

and

CHARLES W. MORRISON, Atty. Reg. No. 0084368, P. O. Box 41450, Dayton, Ohio 45441 Attorneys for Plaintiff-Appellee

BRIAN A. SOMMERS, Atty. Reg. No. 0072821, 130 W. Second Street, Suite 840, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

DONOVAN, P.J.

{¶ 1} Defendant-appellant Paul H. Fiamengo appeals from a Final Judgment and -2-

Decree of Divorce issued by the Montgomery County Court of Common Pleas, Domestic

Relations Division. On appeal, Paul challenges the trial court’s allocation of certain

rental properties and the income derived therefrom between him and his former spouse,

plaintiff-appellee K. Lynae Fiamengo. Paul also challenges the trial court’s decision

ordering him to pay Lynae $1,050.00 per month in spousal support. Paul filed a timely

notice of appeal with this Court on June 1, 2015.

{¶ 2} Paul and Lynae were married on March 26, 1988, in Irvine, California. Prior

to, during, and after the termination date of the parties’ marriage, Paul bought and rented

houses as a real estate investor. Paul formed Dover Properties, Inc., a real estate

company, to manage the rental houses he purchased and sold. At the time of the divorce

hearings, Paul also owned and operated the Dayton Window and Door Company.

{¶ 3} On April 28, 2011, Lynae filed a complaint for divorce. Paul subsequently

filed an answer and counterclaim on May 26, 2011. The trial court held a hearing in order

to resolve the parties’ contested divorce over the following dates: August 20, 2013,

August 22, 2013, September 16, 2013, and August 21, 2014. On February 20, 2015, the

trial court issued a written decision in which it stated the basis for its distribution of the

parties’ marital assets and the spousal support award to Lynae. The trial court awarded

Lynae nine rental properties from those owned and operated by Dover Properties and/or

Paul. The trial court also awarded Lynae $1,050.00 per month in spousal support. For

the purposes of calculating Lynae’s spousal support award, the trial court found that her

gross annual income totaled $18,309.00. The trial court found that Paul’s gross annual

income was $75,000.00. We note that the trial court found that the de facto date for the

termination of the parties’ marriage was June 19, 2010. Although not pertinent to the -3-

instant appeal, Paul was awarded legal custody of the parties’ two children with Lynae

receiving visitation. The trial court determined that Lynae did not have to pay any child

support. The trial court issued a Final Judgment and Decree of Divorce on May 13, 2015,

in which it incorporated all of its findings from the decision issued on February 20, 2015.

{¶ 4} It is from this judgment that Paul now appeals.

{¶ 5} Because they are interrelated, we will discuss Paul’s first and fifth

assignments of error together as follows:

{¶ 6} “THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING INCOME

APPELLEE DERIVES FROM THE DISTRIBUTION OF RENTAL PROPERTIES AND

FAILING TO EXCLUDE THE SAME INCOME FROM APPELLANT IN DETERMINING

THE PARTIES’ INCOME.”

{¶ 7} “THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING

SPOUSAL SUPPORT TO APPELLEE WITHOUT SUBSTANTIVE REASONING.”

{¶ 8} In his first assignment, Paul contends that the trial court erred in calculating

the parties’ respective gross annual incomes. Specifically, Paul argues that in

determining Lynae’s gross annual income, the trial court failed to include the income that

she would derive from the nine rental properties that she was awarded in the divorce

decree. Additionally, Paul argues that the trial court failed to account for the income he

stands to lose as a result of its decision taking away the rental properties and awarding

them to Lynae.

{¶ 9} Lynae testified that she is a certified teacher, but as a result of not working

for many years, she has had difficulty in obtaining a teaching position. After the parties

separated, Lynae testified that she became employed as a teacher’s aide in August of -4-

2010, earning $11.28 per hour while working a thirty-seven hour week during the school

year. Lynae testified that her salary had increased since August of 2010, and by the final

day of the divorce trial on August 21, 2014, she was earning $18,309.00 per year.

{¶ 10} As previously mentioned, Paul is self-employed as a real estate investor

who buys, sells, rents, and rehabilitates homes through his business, Dover Properties.

Paul also owns and operates the Dayton Window and Door Company (DWDC). Paul

testified that his gross taxable income from all of his business activities is $26,276.03.

The trial court disagreed, and upon review, we find that the calculations made by the trial

court in this regard are supported by the record.

{¶ 11} Specifically, evidence was adduced which established that the average

monthly rental income Paul realized totaled $12,710.00 or $152,520.00 annually before

deductions for expenses. Conversely, the record establishes that Dover Properties

averaged a net loss of -$352.00 for the years 2010, 2011, and 2012. With respect to the

DWDC, Paul provided tax returns for the years 2010, 2011, and 2012. In 2010, DWDC’s

gross annual income was $322,599.00; in 2011, DWDC grossed $265,683.00; and in

2012, DWDC grossed $264,324.00. For purposes of calculating Paul’s gross annual

income, the trial court utilized $264,000.00 as the average gross income for DWDC for

those years. Based on the documentary evidence, the trial court found that before

depreciation and expenses are factored into the equation, Paul realizes approximately

$416,520.00 in gross income annually.1

{¶ 12} In addition to Paul’s tax returns and other financial information, the trial court

1 The trial court reached $416,520.00 by adding Paul’s gross annual rental income of $152,520.00 to the gross income for DWDC of $264,000.00. -5-

relied on the testimony of Lynae’s expert, John Bosse, a certified public accountant, in

order to determine Paul’s taxable annual income. After reviewing all of Paul’s credit

statements, rental income, and overall lifestyle (receipts for vacations, dining out, etc.),

Bosse testified that he calculated Paul’s available income to be between $75,000.00 and

$100,000.00 after he paid all of the expenses and costs associated with his rental

properties, Dover Properties, and DWDC. Bosse further testified that he calculated that

Paul had at least $75,000.00 a year available as his “present cash flow.”

{¶ 13} The trial court found that Lynae’s gross annual income was $18,309.00.

The trial court also found “it equitable to use this *** income figure for the computation of

any *** spousal support award.” With respect to Paul, the trial court found that his

testimony that his reported taxable income is $26,000.00 was not credible nor was it

“reflective of his actual free cash flow.” The trial court stated that Paul’s “lifestyle and

business acumen” as testified to by Bosse supports the conclusion that his actual income

lies somewhere between $75,000.00 and $100,000.00. The trial court found that the

totality of the circumstances established that Paul’s annual income was $75,000.00, and

it utilized that amount when calculating his spousal support obligation.

{¶ 14} Regarding spousal support, we note that “[d]omestic relations courts are

granted broad discretion concerning awards of spousal support, and their orders will not

be disturbed on appeal absent an abuse of discretion.” Perry v. Perry, 2d Dist. Clark No.

07–CA–11, 2008–Ohio–1315, ¶ 5. As the Supreme Court of Ohio determined:

“Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. (Internal citation omitted). It is to be expected

that most instances of abuse of discretion will result in decisions that are -6-

simply unreasonable, rather than decisions that are unconscionable or

arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. 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.

AAAA Enterprises, Inc. v. River Place Community Redevelopment Corp.,

,

(1990).

{¶ 15} In determining whether spousal support is appropriate and reasonable,

and in determining the nature, amount, and terms of payment, and duration

of spousal support, which is payable either in gross or in installments, the court shall

consider fourteen factors set forth in R.C. 3105.18(C)(1)(a)-(n), which

governs awards of spousal support. “In allocating property between the parties to a

divorce and in making an award of sustenance alimony, the trial court must indicate the

basis for its award in sufficient detail to enable a reviewing court to determine that

the award is fair, equitable, and in accordance with the law.” Rief v. Rief, 2d Dist. Miami

No. 06–CA–47, 2008–Ohio–266, ¶ 6, citing Kaechele v. Kaechele,

,

(1988).

{¶ 16} R.C. 3105.18(C)(1) sets forth the following factors for the trial court to

consider:

(a) The income of the parties, from all sources, including, but not limited to,

income derived from property divided, disbursed, or distributed under -7-

section 3105.171 of the Revised Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional conditions of the

parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) The extent to which it would be inappropriate for a party, because that

party will be custodian of a minor child of the marriage, to seek employment

outside the home;

(g) The standard of living of the parties established during the marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;

(j) The contribution of each party to the education, training, or earning ability

of the other party, including, but not limited to, any party's contribution to the

acquisition of a professional degree of the other party;

(k) The time and expense necessary for the spouse who is seeking spousal

support to acquire education, training, or job experience so that the spouse

will be qualified to obtain appropriate employment, provided the education,

training, or job experience, and employment is, in fact, sought;

(l) The tax consequences, for each party, of an award of spousal support;

(m) The lost income production capacity of either party that resulted from

that party's marital responsibilities; -8-

(n) Any other factor that the court expressly finds to be relevant and

equitable.

{¶ 17} As part of the divorce decree, Lynae was awarded nine rental properties

free and clear of any claims of Paul. The trial court found that as a result of taking

ownership of the nine rental properties, Lynae stands to receive a total of approximately

$62,784.00 annually ($5,232.00 per month) from the rental fees associated with those

properties. However, the trial court did not include that sum when it found that Lynae’s

gross annual income was $18,309.00 for the purpose of calculating spousal support.

Paul argues that this was error on the part of the trial court. Paul also argues that the

trial court erred when it failed to deduct $62,784.00 from his annual income as a result of

its decision taking away the rental properties and awarding them to Lynae.

{¶ 18} Initially, we note that the trial court did not err when it imputed annual income

in the amount of 75,000.00 for the purpose of calculating spousal support. The record

establishes that after the de facto termination date of the parties’ marriage (June 19,

2010), Paul acquired twelve additional rental properties. Since the acquisition occurred

after the de facto termination date of the marriage, the trial court awarded all twelve

properties to Paul free and clear of any claim from Lynae as part of the divorce decree.

The trial court reasonably found that the twelve properties Paul purchased would cover

any loss he suffered in rental income as a result of the award of nine of the original rental

properties to Lynae. Accordingly, the trial court did not err when it failed to deduct the

rental income from the nine original properties awarded to Lynae from the annual income

of $75,000.00 imputed to Paul.

{¶ 19} Upon review, we further conclude that the trial court did not abuse its -9-

discretion by failing to include the additional $62,784.00 that Lynae would derive from the

nine rental properties in her gross annual income of $18,309.00 when calculating her

spousal support award. Pursuant to R.C. 3105.18(C)(1), the trial court considered the

following factors when calculating Lynae’s spousal support award: 1) the length of the

parties’ marriage was twenty-two years; 2) the present age and health of the parties; 3)

evidence regarding the employment prospects of the parties; 4) the lack of substantial

retirement benefits available to the parties; 5) Paul was the primary breadwinner in the

family throughout the marriage; 6) Paul had a gross yearly income from his rentals totaling

$148,284.00; 7) Paul owns and operates DWDC, which has had gross annual income in

excess of $265,000; 8) the parties “lived an above average lifestyle” during their marriage;

and 9) the parties traveled with their children and were able to amass a respectable real

estate portfolio.

{¶ 20} Pursuant to R.C. 3105.18(C)(1)(a), among the circumstances the court is

required to consider when it awards spousal support in the decree is “[t]he income of the

parties, from all sources, including, but not limited to, income derived from property

divided, disbursed, or distributed under section 3105.171 of the Revised Code.” R.C.

3105.171 governs division of marital and separate property. Paul contends that in its

spousal support award, the trial court failed to consider the annual income that Lynae is

expected to realize from the nine rental properties distributed to her pursuant to R.C.

3105.171. Paul’s claim, however, is undermined by the record.

{¶ 21} In its February 20, 2015, decision, the trial court stated the following

regarding the effects of its award of the nine rental properties to Lynae’s income:

With the real property division as outline[d] above, K. Lynae will be -10-

able to increase her income through her rental properties. Paul’s

acquisition of at least 12 additional properties after the de facto termination

of the marriage will soon, if it hasn’t already, add to his rental income.

In view of the totality of the circumstances, this Court finds an award

of spousal support to be appropriate and reasonable in this case. Effective

March 1, 2015, and subject to the continuing jurisdiction of this Court, [Paul]

shall pay to [Lynae] as and for spousal support, the sum of $1,050 per

month. In view of K. Lynae’s rental income in the near future, this spousal

support award is lower than the $2,000 per month this Court would award

based upon the parties[’] circumstances and present incomes.

{¶ 22} Upon review, we conclude that the trial court did not abuse its discretion

when it ordered Paul to pay spousal support in the amount of $1,050.00 per month to

Lynae. Contrary to Paul’s claims, the record clearly establishes that the trial court

considered every applicable statutory factor listed in R.C. 3105.18(C)(1)(a), including, but

not limited to, the income of both parties, especially the income Lynae is expected to

realize from the nine rental properties distributed to her pursuant to R.C. 3105.171.

Finally, we note that the trial court specifically retained jurisdiction over the issue of Paul’s

spousal support obligation and could potentially modify the award upon a change in the

circumstances of one or both parties.

{¶ 23} Therefore, we find the trial court addressed each of the R.C. 3105.18(C)(1)

factors that apply in the present case and the evidence relevant to those factors. We are

able to glean from the court's journal entry the weight it gave to each, and on that basis

we conclude that no abuse of discretion is demonstrated in the spousal support award -11-

that was ordered.

{¶ 24} Paul’s first and fifth assignments of error are overruled.

{¶ 25} Paul’s second assignment of error is as follows:

{¶ 26} “THE TRIAL COURT ABUSED ITS DISCRETION BY ASSIGNING A

MARITAL PORTION OF APPELLANT’S SEPARATE PROPERTY AND BY MAKING AN

IN-KIND DISTRIBUTION OF APPELLANT’S SEPARATE PROPERTY TO APPELLEE

WITHOUT MAKING FINDINGS.”

{¶ 27} In his second assignment, Paul argues that the trial court abused its

discretion when it awarded Lynae a portion of the equity in the following properties that

were acquired during the parties’ marriage: 1) 2604 Wayne Avenue; 2) 1140 Share Drive;

3) 1222 Holly Avenue; 4) 3111 East Fifth Street; and 5) 616 St. Nicholas Avenue. Paul

also asserts that the trial court erred in making a distributive award to Lynae without

making the requisite findings pursuant to R.C. 3105.171(D).

{¶ 28} A spouse's separate property is usually distributed to that spouse. R.C.

3105.171(D). “Separate property” includes all real and personal property and any

interest in real or personal property that one spouse acquired before the marriage. R.C.

3105.171(A)(6)(a)(ii). This includes “passive income and appreciation acquired

from separate property by one spouse during the marriage.” R.C. 3105.171(A)(6)(a)(iii).

“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). “Traceable” here

“refers to evidence demonstrating a connection between property currently owned and

some antecedent article of separate property. Such proof overcomes the effect of -12-

commingling, by which separate property may be ‘transmuted’ into marital property.”

Maloney v. Maloney,

, 2005–Ohio–1368,

(2d

Dist.). So in determining whether property is separate or marital, “[t]he key issue

is traceability.” Janis v. Janis, 2d Dist. Montgomery No. 23898, 2011–Ohio–3731, ¶ 48.

{¶ 29} The burden of proving that property is separate is on the proponent of the

claim to prove by a preponderance of the evidence. Cooper v. Cooper, 2d Dist. Greene

Nos. 2007 CA 76, 2007 CA 77, 2008–Ohio–4731, ¶ 14. “Because traceability presents

a question of fact, we must give deference to the trial court's findings, and the court's

decision on the matter will not be reversed as against the manifest weight of the evidence

when it is supported by competent credible evidence.”

.

{¶ 30} Generally, the party claiming that an asset is separate property has the

burden of proving the claim by a preponderance of the evidence. Peck v. Peck,

,

(12th Dist. 1994). Because of the presumption

that property acquired during marriage is marital property, R.C. 3105.171(3)(a)(i), this

presumption can be overcome only with clear and convincing evidence. Barkley v.

Barkley,

,

(4th Dist. 1997). Clear and

convincing evidence means that degree of proof which will provide in the mind of the trier

of fact a firm belief or conviction as to the facts sought to be established. Id; Hall v. Hall, 2d

Dist. Greene No. 2013 CA 15, 2013–Ohio–3758, ¶ 14.

{¶ 31} R.C. 3105.171 governs the division of marital property and separate

property and provides:

***

(A)(3)(a) “Marital property” means, subject to division (A)(3)(b) of this -13-

section, all of the following:

(i) All real and personal property that currently is owned by either or both of

the spouses, including but not limited to, the retirement benefits of the

spouses, that was acquired by either or both of the spouses during the

marriage;

(ii) All interest that either or both of the spouses currently has in any real or

personal property, including, but not limited to, the retirement benefits of the

spouses, and that was acquired by either or both of the spouses during the

marriage;

(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 spouses that occurred during the marriage;

***

(b) “Marital property” does not include any separate property.

(4) “Passive income” means income acquired other than as a result of the

labor, monetary, or in-kind contribution of either spouse.

***

(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:

(i) An inheritance by one spouse by bequest, devise, or descent during the

course of the marriage;

(ii) Any real or personal property or interest in real or personal property that -14-

was acquired by one spouse prior to the date of the marriage;

(iii) Passive income and appreciation acquired from separate property by

one spouse during the marriage;

***

(b) 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.

{¶ 32} 2604 Wayne Avenue, 1140 Share Drive, and 1222 Holly Avenue

{¶ 33} With respect to the identification and distribution of these three properties,

the trial court stated the following:

The home located at 2604 Wayne Avenue was purchased for

$28,000 cash on September 16, 1994. *** The home located at 1140 Share

Drive was purchased for $40,000 cash on September 30, 1994. *** The

home located at 1222 Holly Avenue was purchased for $34,000 cash on

October 28, 1994. *** The total cash paid for these 3 properties in 1994 is

$102,000. All properties were purchased during the parties’ marriage.

Paul states these three homes were a like-kind exchange for

property he owned in Torrington, Connecticut located at 31-33 Hillside prior

to the parties’ marriage. They exchanged rental property for rental

property. The tax manager, Jayde Smith, stated that she prepared the tax

return that evidenced said like-kind exchange. *** There was no evidence

presented that reflected the actual payment amount or value of the 31-33

Hillside property at the time of its sale. The Court finds that Paul did own -15-

said Connecticut property prior to his marriage to K. Lynae.

A review of said joint tax return reveals the Connecticut property was

transferred on September 12, 1994. The adjusted basis for the

Connecticut property given up was $48,743, while the property received in

exchange totaled $102,000; therefore the separate property interest Paul

has in these three properties totals approximately $48,743. There was no

other credible tracing of any additional separate funds into these properties.

It is Paul’s burden to trace any alleged separate property interest.

The Court finds that Paul has a separate interest in these three

properties that totals $48,743 and that all other monies are marital. The

parties agree the fair market values (FMV) of said properties are: $30,000

for 2604 Wayne Avenue; $58,000 for 1140 Share Drive; and $32,000 for

1222 Holly Avenue. *** The total agreed upon values [sic] for these 3

properties is $120,000. There is no debt on these properties. Allowing

Paul his separate interest of $48,743, leaves the marital portion to be

divided of approximately $71,257. The Court will divide the marital portion

of these properties equally between the parties.

{¶ 34} As an initial matter, we find it helpful to provide the definition of a like-kind

exchange pursuant to

. Section 1031 permits a property owner to

exchange relinquished property for replacement property of like-kind, while deferring

payment of capital gains taxes on the transaction.

{¶ 35} Paul argues that he sold the Connecticut property for $48,743 in a like-kind

exchange for 2604 Wayne Avenue, 1140 Share Drive, and 1222 Holly Avenue. The -16-

Connecticut property was purchased by Paul prior to the parties’ marriage. However,

the undisputed purchase price of all three properties was $102,000.00. The trial court

did not reject Paul’s claim that he had used the money from the sale of the Connecticut

property to purchase the three new rental properties. Rather, the trial court found that

Paul failed to establish that the difference between the sale of his separate Connecticut

property and the purchase price of the three rental properties was traceable to any other

separate property he owned prior to the marriage. On that basis, the court concluded

that Paul failed to bear the burden imposed on him to show, by a preponderance of the

evidence, that the rental properties located at 2604 Wayne Avenue, 1140 Share Drive,

and 1222 Holly Avenue were fully “traceable” to his own separate property. R.C

3105.171(A)(6)(b).

{¶ 36} Property currently owned is traceable to separate property if a sufficient

connection is shown to exist between the two. Fisher v. Fisher, 2d Dist. Montgomery No.

20398,

. The proponent of a separate property claim has the

burden to prove the connection concerned.

The trial court's review of the evidence

was thorough, and on the facts before us, we find that Paul failed to meet his burden to

establish that all of the funds used to purchase 2604 Wayne Avenue, 1140 Share Drive,

and 1222 Holly Avenue could be traced to the profit he realized from the sale of separate

Connecticut property. Thus, the trial court did not abuse its discretion when it found that

the three rental properties at issue were not Paul’s separate property.

{¶ 37} 3111 East 5th Street and 616 St. Nicholas Avenue

{¶ 38} In regards to 3111 East 5th Street and 616 St. Nicholas Avenue, Paul

claimed that the entire source of funds used to purchase these properties came from the -17-

sale of another pre-marital rental home he owned in Thomaston, Connecticut located at

31-33 Broadview Heights. Specifically, Paul claims that he purchased 3111 East 5th

Street and 616 St. Nicholas Avenue as like-kind exchanges with the property located at

31-33 Broadview Heights, and they are, therefore, his separate property. Evidence

adduced at trial established that the 31-33 Broadview Heights property was exchanged

and/or sold by Paul for $3,383.00 on February 28, 2001.

{¶ 39} The evidence establishes that the 3111 East 5th Street property was

purchased for $19,500.00 cash on December 20, 2000, over two months before the

Broadview Heights property was sold. Moreover, there was no indication on the like-

kind tax document for the property at 31-33 Broadview Heights that 3111 East 5th Street

was being acquired in a deferred exchange. The trial court found, and we agree, that it

is therefore “unlikely” that 31-33 Broadview Heights was used in a like-kind exchange with

3111 East 5th Street.

{¶ 40} Additionally, the rental property located at 616 St. Nicholas Avenue was

purchased for $35,000.00 cash on March 2, 2001. Even if we accept Paul’s claim that

the 31-33 Broadview Heights property was exchanged for 3111 East 5th Street and 616

St. Nicholas Avenue, the purchase price for these two properties totaled $54,500.00,

while the evidence established that the price of the Connecticut property was only

$3,383.00. Upon review, we find that other than the sale price of the Connecticut

property, Paul failed to trace any additional separate funds into the purchase of 3111 East

5th Street and 616 St. Nicholas Avenue. Accordingly, we find that the trial court did not

abuse its discretion when it found that 3111 East 5th Street and 616 St. Nicholas Avenue

were marital property while awarding Paul the sum of $3,383.00 that he was sufficiently -18-

able to trace.

{¶ 41} Distributive Award of 1140 Share Drive and 3111 East Fifth Street to

Lynae

{¶ 42} Finally, Paul contends that the trial court erred when it made a distributive

award to Lynae of the rental properties located at 1140 Share Drive and 3111 East Fifth

Street without making findings pursuant to R.C. 3105.171(D).

{¶ 43} “A ‘distributive award’ is defined as ‘any payment or payments, in real or

personal property, that are payable in a lump sum or over time, in fixed amounts, that are

made from separate property or income, and that are not made from marital property and

do not constitute payments of spousal support, as defined in section 3105.18 of the

Revised Code.’ ” R.C. 3105.171(A)(1). “It is an award from separate property made in

order to achieve equity, (1) to compensate a party for the financial misconduct of the other

party; (2) to provide relief where it is impractical or burdensome to reach an equitable

division comprised of marital property alone; or (3) to effectuate, facilitate, or supplement

the disbursement of marital property.” Klein v. Cruden, 2d Dist. Montgomery No 19952,

, quoting Sowald, Morganstern, Domestic Relations Law (4th

Ed. 2002) 578-579, Section 12:5. A trial court's decision regarding the issue

of distributive awards will not be overturned absent an abuse of discretion. Pressler v.

Pressler, 12th Dist. Butler No. CA 2004-03-068,

.

{¶ 44} As previously stated, we agree with the trial court and find that because

Paul is unable to trace any additional separate funds into the purchase of either 3111

East 5th Street or 1140 Share Drive, both of the rental properties were marital in nature

and therefore not subject to R.C. 3105.171(D). Although Paul was able to trace a small -19-

portion of the equity in these two properties to his separate property, the remaining equity

was marital, subject to an equitable division between the parties. The trial court awarded

Paul his separate interest in the properties which could be traced back to the payments

he received when he sold the two separate properties in Connecticut. Simply put, Lynae

received the titles to the two marital properties after Paul’s proven separate interest had

been deducted. Since Lynae was awarded the titles to 3111 East 5th Street and 1140

Share Drive during an equitable division of marital property, not separate property, R.C.

3105.171(A)(1) does not apply, and the trial court was not required to make any findings

pursuant to that statute.

{¶ 45} Paul’s second assignment of error is overruled.

{¶ 46} Paul’s third assignment of error is as follows:

{¶ 47} “THE TRIAL COURT FAILED TO FOLLOW PRECEDENT AND ABUSED

ITS DISCRETION IN FAILING TO AWARD APPELLANT SEPARATE PROPERTY

OBTAINED THROUGH A § 1031 LIKE-KIND EXCHANGE.”

{¶ 48} In his third assignment, Paul contends that the trial court abused its

discretion when it found that the rental property located at 1832 Pinecrest Drive was

marital property and awarded Lynae her equity interest in the property of $32,500.00.

Specifically, Paul argues that the evidence adduced at trial establishes that 1832

Pinecrest Drive was originally acquired as part of a § 1031 like-kind exchange involving

his pre-marital residence located at 39-41 Broadview Heights in Connecticut. Neither

party disputes that 39-41 Broadview Heights was Paul’s separate pre-marital property.

In support of his argument, Paul introduced a joint tax document which purported to

establish that he exchanged 39-41 Broadview Heights for 1832 Pinecrest Drive in a § -20-

1031 like-kind exchange. Defense Exhibit “XX.”

{¶ 49} Contrary to Paul’s argument, Defense Exhibit XX merely establishes that a

like-kind exchange of a “duplex residential” was executed with 39-41 Broadview Heights.

There is no address stated for the property received in the like-kind exchange, and it

refers to a fair market value for the unidentified property of $76,611.00. Defense Exhibit

XX also lists the date that the unidentified property was received as July 5, 2001.

{¶ 50} We also note that the parties’ 2001 joint tax return refers to an “1831”

Pinecrest Drive property as a “single family residential” that was depreciated in the same

return.2 The trial court found that Paul failed to adduce any credible evidence which

accounted for the lack of an address on the like-kind exchange form, as well as the

discrepancy involving the property’s description, i.e. “duplex residential” versus “single

family residential.” Upon review, we therefore conclude that the trial court did not abuse

its discretion when it found that the rental property located at 1832 Pinecrest Drive was

marital property. We find that that the record establishes that Paul failed to meet his

burden to prove that 1832 Pinecrest Drive, which was acquired during the parties’

marriage, was purchased solely with his pre-marital separate property. On this record,

there is competent, credible evidence to support the trial court's decision, accordingly, we

will not disturb it.

{¶ 51} Paul’s third assignment of error is overruled.

{¶ 52} Paul’s fourth assignment of error is as follows:

2 Both the parties and the trial court treat the reference to “1831” rather than “1832” Pinecrest Drive in the joint tax return as a typo. Any further references to the Pinecrest Drive address in the record list “1832” as the house number. We will therefore treat the reference to “1831” Pinecrest Avenue in Defense Exhibit XX as a typo. -21-

{¶ 53} “THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

IDENTIFY 228 HEATON AVENUE, 625 BOWEN STREET, AND 915 MILBURN AVENUE

AS APPELLANT’S SEPARATE PROPERTY.”

{¶ 54} In his fourth assignment, Paul argues that the trial court abused its

discretion when it found that the rental properties located at 228 Heaton Avenue, 625

Bowen Street, and 915 Milburn Avenue were marital property. 228 Heaton Avenue was

purchased on February 2, 1996, for $24,000.00 cash. 625 Bowen Street was purchased

April 24, 1996, for $27,000.00 cash.3 915 Milburn Avenue was purchased for $7,750.00

on May 29, 1996. Because these properties were all acquired during the parties’

marriage, Paul had the burden of tracing the source of the money used to purchase them

to his separate pre-marital assets.

{¶ 55} Specifically, Paul argues that he purchased 228 Heaton Avenue, 625

Bowen Street, and 915 Milburn Avenue with funds from the sale of a rental property

located at 26 Field Street in Bristol, Connecticut that he owned prior to the parties’

marriage. The record establishes that 26 Field Street was sold on January 19, 1996, for

$82,000.00. In support of his argument, Paul cites to the testimony of his expert witness,

Jayde Smith, who prepared the parties’ 1996 tax returns. Smith testified as follows:

These three properties *** Heaton was purchased in February of ’96, Bowen

was purchased in April of ’96, and Milburn was purchased in October of ’96.

These three properties were purchased *** with the funds from the Field

Street, Bristol, Connecticut property which was sold in January of ’96.

3 The trial court found that the manner of payment for 625 Bowen Street was unclear, but because no lender’s name was included on the property’s closing statement, the court found it to be a cash transaction. -22-

{¶ 56} Other than Smith’s testimony, Paul failed to adduce any additional

evidence, documentary or otherwise, which established that he used the funds from the

sale of 26 Field Street to purchase the Heaton, Bowen, and Milburn properties. We also

note that unlike many of Paul’s other transactions, this land sale was not a § 1031 like-

kind exchange for tax purposes. In addition to Smith’s testimony, Paul’s main argument

is that the timeline of the transactions is compelling evidence which supports his claim

that the Heaton, Bowen, and Milburn properties were purchased with the funds from the

sale of 26 Field Street. Paul further testified that the funds for the purchase of the three

properties came from the sale of 26 Field Street and money given to him by his father.

{¶ 57} Upon review, we agree with the trial court and find that Paul failed to adduce

any competent, credible evidence that he could trace the proceeds from the sale of 26

Field Street to the purchase of the Heaton, Bowen, and Milburn properties. As the trial

court correctly found, it is clear that the three properties were all purchased in 1996 after

the sale of 26 Field Street in January of that year. It is not clear, however, where the

funds originated that were used to purchase the three properties. Without additional

documentary evidence to support his claim in this regard, we cannot say that the trial

court abused its discretion when it found that Paul failed to trace the funds from the sale

of 26 Field Street to the purchase of the Heaton, Bowen, and Milburn properties. There

is simply no evidence in the record, with the exception of Smith’s unsupported testimony,

which supports Paul’s argument.

{¶ 58} We also note that the trial court found that “Paul’s self-serving statements

are not credible evidence of tracing of funds.” Generally, appellate courts defer to the

trial court's decision on credibility. Bomberger-Cronin v. Cronin, 2d Dist. Greene No. -23-

2014-CA-4,

. “The rationale of giving deference to the findings of the

trial court rests with the knowledge that the trial judge is best able to view the witnesses

and observe their demeanor, gestures and voice inflections, and use these observations

in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. City of

Cleveland,

,

(1980). Clearly, the trial court was in

the best position to determine the extent to credit Paul’s testimony, and it ultimately did

not find his “self-serving,” unsupported testimony regarding the origin of the funds that

were used to purchase the Heaton, Bowen, and Milburn properties to be credible.

{¶ 59} Paul’s fourth assignment of error is overruled.

{¶ 60} All of Paul’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Robert M. Mues Charles W. Morrison Brian A. Sommers Hon. Denise L. Cross