Swick v. Swick

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[Cite as Swick v. Swick, 2020-Ohio-6884.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

MICHAEL SWICK                                          C.A. No.        20AP0009

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
PATRICIA SWICK                                         COURT OF COMMON PLEAS
                                                       COUNTY OF WAYNE, OHIO
        Appellee                                       CASE No.   2018 DR-B 000320

                                 DECISION AND JOURNAL ENTRY

Dated: December 28, 2020



        CARR, Judge.

        ¶1    Appellant Michael Swick (“Husband”) appeals from the judgment of the Wayne

County Court of Common Pleas, Domestic Relations Division. This Court reverses and remands

the matter to the trial court for further consideration consistent with this decision.

                                                  I.

        ¶2    This appeal is focused on the allocation of a residence that Husband purchased in

1996 for $119,000.00, prior to his marriage to Patricia Swick (“Wife”) on January 8, 2010. At the

time Husband refinanced the home in 2003, it was appraised at $175,000. In May 2009, Husband

opened a home equity line of credit using his residence as collateral for the purpose of buying a

house on Diane Street to rent/flip with Wife.

        ¶3    As of January 4, 2010, the balance on Husband’s loan for his residence was

$57,914.51. That house became the parties’ marital residence (“Marital Residence”). During the

course of the marriage, Husband and Wife formed MNU, LLC for the purpose of buying, renting,
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and flipping homes. Several homes were purchased over the parties’ marriage. In 2010, the parties

sold the Diane Street house and deposited the money into the business to purchase additional

properties and pay down the home equity line of credit, a process they continued with other homes.

         ¶4   In 2013, the parties paid off the remaining mortgage on the Marital Residence with

$36,049.49 of Wife’s separate property in order to obtain a larger home equity line of credit; the

original home equity line of credit was closed at that time. An appraisal was also conducted at the

time, but the record does not contain the appraised value, only the average value of comparable

homes.

         ¶5   In 2016, a large shed was constructed on the property of the Marital Residence.

There was testimony that the shed was funded from proceeds from an insurance claim from a

wrecked vehicle; the testimony further evidenced that that vehicle had been purchased from funds

from a separate property interest from Wife. However, the trial court ultimately concluded that

Wife failed to adequately trace her separate property to the construction of the shed. In 2017, for

estate planning purposes, Wife’s name was added to the deed. The parties began living separate

and apart in February 2018 and paid off the home equity line of credit in July 2018.

         ¶6   In October 2018, Husband filed a complaint for divorce. Around that time, the

Martial Residence was appraised at $175,000.00. The matter proceeded to a hearing before a

magistrate. Prior to trial, the record reflects that the parties entered into joint stipulations covering

certain items; however, those stipulations are not in the record. Nonetheless, the record is clear

that the stipulations did not cover the value or allocation of the Marital Residence.

         ¶7   Following the hearing, in November 2019, the magistrate issued a decision. That

same day, the trial court issued a judgment entry which appears to mirror the magistrate’s decision.

With respect to the Marital Residence, the magistrate and trial court concluded that no evidence
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was presented to show the equity in the Marital Residence at the time of the parties’ marriage, and,

thus, the court could not determine Husband’s separate property interest in the Marital Residence.

The magistrate and trial court also concluded that Wife had demonstrated that she had a $36,049.49

separate property interest in the Martial Residence. In addition, the magistrate and trial court

determined that the Martial Residence and any appreciation was marital property. The magistrate

and trial court concluded that the Marital Residence should be sold, and that after Wife’s

$36,049.49 separate property interest was deducted from the proceeds, the remainder of the

proceeds and liabilities should be divided equally.

       ¶8    Husband filed objections to the magistrate’s decision. His objections included that

the magistrate erred in finding that there was no evidence to show the equity in the Marital

Residence at the time of the marriage, erred in concluding that Husband had no separate property

interest in the Marital Residence, erred in concluding the Marital Residence was martial property,

and erred in not allowing Husband to retain the Marital Residence and pay off Wife’s share in the

property. The trial court overruled Husband’s objections. Husband has appealed, raising a single

assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT’S DECISION DENYING APPELLANT/HUSBAND,
       MICHAEL SWICK, HIS SEPARATE PROPERTY INTEREST IN THE
       MORELAND ROAD HOME AND NOT ALLOWING HUSBAND TO RETAIN
       THE MORELAND ROAD HOME AND FINANCE PAYING OFF
       APPELLEE/WIFE’S SEPARATE PROPERTY INTEREST IN THE
       MORELAND HOME PLUS WIFE’S ONE-HALF INTEREST IN THE
       REMAINING MARITAL EQUITY IN THE MORELAND HOME WAS AN
       ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE[.]
                                                   4


       ¶9    Husband argues in his sole assignment of error that the trial court erred in failing to

grant him a separate property interest in the Marital Residence and in ordering it sold. In addition,

Husband argues that the trial court failed to value the Marital Residence.

       ¶10 R.C. 3105.171 governs the division of marital and separate property and provides

relevant definitions concerning the same. It provides that, “[i]n divorce proceedings, the court

shall * * * determine what constitutes marital property and what constitutes separate property. *

* * [U]pon making such a determination, the court shall divide the marital and separate property

equitably between the spouses, in accordance with this section.” R.C. 3105.171(B). “Except as

otherwise provided in division (E) of this section or by another provision of this section, the court

shall disburse a spouse’s separate property to that spouse. If a court does not disburse a spouse’s

separate property to that spouse, the court shall make written findings of fact that explain the

factors that it considered in making its determination that the spouse’s separate property should

not be disbursed to that spouse.” R.C. 3105.171(D). “Except as otherwise provided in this section,

the holding of title to property by one spouse individually or by both spouses in a form of co-

ownership does not determine whether the property is marital property or separate property.” R.C.

3105.171(H). “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).

       “Marital property” means, subject to division (A)(3)(b) of this 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, and
       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;
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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;

       (iv) A participant account, as defined in section 148.01 of the Revised Code, of
       either of the spouses, to the extent of the following: the moneys that have been
       deferred by a continuing member or participating employee, as defined in that
       section, and that have been transmitted to the Ohio public employees deferred
       compensation board during the marriage and any income that is derived from the
       investment of those moneys during the marriage; the moneys that have been
       deferred by an officer or employee of a municipal corporation and that have been
       transmitted to the governing board, administrator, depository, or trustee of the
       deferred compensation program of the municipal corporation during the marriage
       and any income that is derived from the investment of those moneys during the
       marriage; or the moneys that have been deferred by an officer or employee of a
       government unit, as defined in section 148.06 of the Revised Code, and that have
       been transmitted to the governing board, as defined in that section, during the
       marriage and any income that is derived from the investment of those moneys
       during the marriage.

R.C. 3105.171(A)(3)(a).

       ¶11 Marital property does not include separate property, R.C. 3105.171(A)(3)(b), which

is defined as:

       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 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;

       (iv) Any real or personal property or interest in real or personal property acquired
       by one spouse after a decree of legal separation issued under section 3105.17 of the
       Revised Code;

       (v) Any real or personal property or interest in real or personal property that is
       excluded by a valid antenuptial agreement;

       (vi) Compensation to a spouse for the spouse’s personal injury, except for loss of
       marital earnings and compensation for expenses paid from marital assets;
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       (vii) Any gift of any real or personal property or of an interest in real or personal
       property that is made after the date of the marriage and that is proven by clear and
       convincing evidence to have been given to only one spouse.

R.C. 3105.171(A)(6)(a). “‘Passive income’ means income acquired other than as a result of the

labor, monetary, or in-kind contribution of either spouse.” R.C. 3105.171(A)(4).

       ¶12 Here, the record demonstrates that Husband purchased the Martial Residence in

1996 for $119,000.00, years before he married Wife in January 2010. In fact, Husband solely

owned the property for longer than the parties were married. Thus, on its face, it would appear

Husband has a separate property interest in the Martial Residence. See R.C. 3105.171(A)(3)(b)(ii).

While there was no appraisal conducted at the time of the marriage in 2010, and the appraised

value from the 2013 appraisal is not in the record, we cannot agree that that leads to the conclusion

that the equity in the Marital Residence could not be established. The record does contain two

appraisals on the property: one from 2003, before the marriage, for $175,000.00 and another from

2018 for $175,000.00. While the trial court did not expressly state it was setting a value for the

Marital Residence, the trial court did specifically state that Wife failed to provide any expert

appraisal of the property and Husband submitted an appraisal from 2018 for $175,000.00. Thus,

it appears that the trial court did adopt Husband’s 2018 appraisal value of $175,000.00.

       ¶13 In addition, the record contains evidence that, on January 4, 2010, the balance on

Husband’s loan for the Marital Residence was $57,914.51. The trial court appears to have found

it significant that it was unclear how much Husband financed when he purchased the Marital

Residence and that it was unclear what the initial principal balance was. However, this Court fails

to see why that information would be necessary to determining the equity in the residence when

the purchase price was established, the balance on the loan was also established, and there was

nothing in the record that suggested the value of the Martial Residence fluctuated from 2003
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through 2018. While the trial court also indicated that the balance of the loan included amounts

escrowed for taxes, a review of that document does not support the trial court’s finding.

Accordingly, the amount of equity in the Martial Residence at the time of the marriage could be

determined from the record before the trial court.

       ¶14 The foregoing information also leads to the conclusion that there was no

appreciation during the marriage. While the trial court concluded that the grading and the addition

of the shed and smoker to the Martial Residence in 2016 resulted in martial appreciation because

both parties contributed money to it, there is no evidence in the record that supports there was any

appreciation after the parties’ married. In other words, there was no evidence that the value of the

Martial Residence increased due to those additions. In fact, the appraisal in 2018 was exactly the

same as the premarital 2003 appraisal.

       ¶15 Nonetheless, to the extent the $57,914.51 balance of the loan was paid off during

the marriage with marital funds it represents martial property. See Ray v. Ray, 9th Dist. Medina

No. 03CA0026-M, 2003-Ohio-6323, ¶ 8. (“Any reduction in the amount of the first and second

mortgages during the marriage by payment of marital funds would be marital property.”) (Internal

quotations and citation omitted.). Notwithstanding the foregoing, this “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).

“The spouse seeking to identify, and protect, his or her own separate property bears the burden of

tracing the existence of the separate property, within the otherwise commingled property.” Salmon

v. Salmon, 9th Dist. Summit No. 22745, 2006-Ohio-1557, ¶ 9.

       ¶16 The trial court seemed to conclude that the Martial Residence was martial property

due to the use of the Martial Residence as collateral for the home equity line of credit. The initial
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home equity line of credit was opened in 2009, prior to the marriage; thus, it was Husband’s

separate property interest that acted as the collateral. In a similar circumstance, the Eighth District

noted that, “the commingling of separate property with other property does not, on its own, destroy

the nature of the separate property. Instead, the question of whether the separate property is

traceable is of paramount concern.” Ockunzzi v. Ockunzzi, 8th Dist. Cuyahoga No. 86785, 2006-

Ohio-5741, ¶ 22. The Ockunzzi court then concluded that the appellant “introduced evidence of

his premarital equity in the residence. Although this equity was borrowed against and the home

was refinanced, these actions did not cause [appellant’s] separate interest to become untraceable.”

Id. The court therefore concluded that the trial court erred in concluding the premarital equity

became marital. Id. at ¶ 23. We conclude that the same logic is applicable here. Husband’s

separate property interest was not destroyed by using a portion of that interest as collateral for a

home equity loan that was used during the marriage.

       ¶17 To the extent Wife has argued in her brief that the trial court concluded that

Husband transformed the Martial Residence from his separate property into marital property by

the transfer of the deed to both of their names in 2017, we read nothing in the trial court’s analysis

that indicates that the trial court made such a determination. Thus, we conclude that Wife’s

argument is without merit.

       ¶18 Accordingly, the trial court erred in concluding that Husband’s equity interest in

the Martial Residence could not be determined. Husband has a separate property interest in the

Marital Residence that is capable of being determined from the record before this Court. There is

also a martial interest in the Marital Residence. Further, because the trial court found that Wife

demonstrated a $36,049.49 separate property interest in the Marital Residence due to separate
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property she used to pay off the mortgage balance in 2013, that interest also must be taken into

account in allocating the parties’ interests in the Martial Residence.

       ¶19 Finally, it appears that the trial court ordered the Martial Residence sold, at least in

part, because it determined that Husband did not have a separate property interest in it. As that

conclusion was incorrect, the trial court should reconsider that determination upon remand, taking

into account the language in R.C. 3105.171(D), namely that, generally, “the court shall disburse a

spouse’s separate property to that spouse.”

       ¶20 Husband’s assignment of error is sustained, and this matter is remanded to the trial

court to reevaluate the allocation of the Martial Residence.

                                                 III.

       ¶21 Husband’s assignment of error is sustained. The judgment of the Wayne County

Court of Common Pleas, Domestic Relations Division, is reversed, and the matter is remanded for

further consideration.

                                                                                Judgment reversed,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
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mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



CALLAHAN, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

TODD E. CHEEK, Attorney at Law, for Appellant.

RACHEL HOFFEE, Attorney at Law, for Appellee.

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