Heitmeyer v. Arthur , 2022 Ohio 4230 ( 2022 )

[Cite as Heitmeyer v. Arthur, 2022-Ohio-4230.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
ALICIA HEITMEYER,
PLAINTIFF-APPELLANT, CASE NO. 5-22-01
v.
GARY ARTHUR, OPINION
DEFENDANT-APPELLEE.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2020 CV 0197
Judgment Affirmed
Date of Decision: November 28, 2022
APPEARANCES:
Dorothy L. Williams for Appellant
William E. Clark for Appellee
Case No. 5-22-01
ZIMMERMAN, P.J.
{¶1} Plaintiff-appellant, Alicia Heitmeyer (“Heitmeyer”), appeals the
January 26, 2022 judgment of the Hancock County Court of Common Pleas
awarding her $392.16 as to her conversion claim. For the reasons that follow, we
affirm.
{¶2} This case stems from Heitmeyer’s allegation that her father, defendant-
appellee, Gary Arthur (“Gary”), established a bank account for her under the
Uniform Transfer to Minors Act (“UTMA”), and that he converted the funds in that
account for his own benefit.
{¶3} On June 11, 2020, Heitmeyer filed a complaint against Gary in the trial
court alleging claims for conversion and punitive damages. On August 20, 2020,
Gary filed an answer along with a third-party complaint against Dianne M. Arthur
(“Dianne”), Heitmeyer’s mother, alleging a claim for contribution. Dianne filed her
answer to Gary’s third-party complaint on October 2, 2020. However, Gary
dismissed his third-party compliant against Dianne without prejudice under Civ.R.
41(A)(1)(a) on July 2, 2021.
{¶4} The case proceeded to a hearing before the trial court’s magistrate on
July 2, 2021, after which the trial court’s magistrate permitted the parties to submit
proposed findings of fact and conclusions of law.1 On September 21, 2021, the trial
1
Even though the transcript reflects that the hearing was a bench trial before the trial court, the record
unequivocally reflects, and the parties agree, that those references in the transcript are scrivener’s errors.
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court’s magistrate concluded that Heitmeyer failed to prove that the account is an
UTMA account or that any transfer occurred while Heitmeyer “was still a ‘minor’
under the [U]TMA.” (Doc. No. 59). However, because Heitmeyer demonstrated
that she deposited two paychecks into the account, the trial court’s magistrate
concluded that Heitmeyer should be awarded $392.16.2
{¶5} On October 5, 2021, Heitmeyer filed her objections to the magistrate’s
decision. However, Heitmeyer failed to provide the trial court with a transcript of
the hearing conducted before the trial court’s magistrate. See Fogt v. Fogt, 3d Dist.
Defiance No. 4-18-10, 2019-Ohio-1403, ¶ 12-14. Gary filed his memorandum in
opposition to Heitmeyer’s objections to the magistrate’s decision on November 9,
2021.
{¶6} On December 13, 2021, the trial court issued its entry overruling
Heitmeyer’s objections to the magistrate’s decision. On January 26, 2022, the trial
court issued judgment in favor of Heitmeyer by awarding her $392.16 as to her
conversion claim.
{¶7} On February 22, 2022, Heitmeyer filed a notice of appeal. She raises
four assignments of error for our review, which we will discuss together.
Assignment of Error No. I
The Trial Court Erred in Determining That the Evidence Did Not
Support a Finding That the Account Was a OTMA Account.
2
Heitmeyer dismissed her punitive-damages claim under Civ.R. 41(B)(2).
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Assignment of Error No. II
The Trial Court Erred in Seeking Clear and Convincing Evidence
When the Burden is Clearly Preponderance of the Evidence.
Assignment of Error No. III
The Trial Court Failed to Determine Ownership of the Account.
Assignment of Error No. IV
The Trial Court Erred in Failing to Recognize the Account in
Question as a Fiduciary Account.
{¶8} In her assignments of error, Heitmeyer argues that the trial court abused
its discretion by adopting the magistrate’s decision concluding that she did not
demonstrate ownership or a right to possess the account (beyond the $392.16).
Specifically, Heitmeyer argues that the trial court erred by failing to conclude that
the parties established a UTMA account, that she is the owner of the UTMA
account, and by failing to award her the full balance of the account.
Standard of Review
{¶9} “Generally, ‘[a]n appellate court reviews the trial court’s decision to
adopt, reject or modify the Magistrate’s decision under an abuse of discretion
standard.’” Fogt, 2019-Ohio-1403, at ¶ 17, quoting Tewalt v. Peacock, 3d Dist.
Shelby No. 17-10-18, 2011-Ohio-1726, ¶ 31. An abuse of discretion suggests the
trial court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
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{¶10} When reviewing a party’s objections to a magistrate’s decision, “[t]he
trial court may adopt, reject, or modify the magistrate’s decision.” Sheehan v.
Sheehan, 3d Dist. Defiance No. 4-19-25, 2020-Ohio-5300, ¶ 11, citing Civ.R.
53(D)(4)(b). Significantly, when reviewing those objections, “the trial court is ‘not
required to follow or accept the findings or recommendations of its magistrate.’”
Id., quoting Stumpff v. Harris, 2d Dist. Montgomery No. 21407, 2006-Ohio-4796,
¶ 16. “Instead, the trial court ‘shall undertake an independent review as to the
objected matters to ascertain that the magistrate has properly determined the factual
issues and appropriately applied the law.’” Id., quoting Civ.R. 53(D)(4)(d), and
citing Stumpff at ¶ 16. “Accordingly, the trial court reviews the magistrate’s
decision under a de novo standard of review,” which is “‘independent and without
deference to the [magistrate’s] determination.’” Id., citing Stumpff at ¶ 16; Canter
v. Garvin, 3d Dist. Union No. 14-19-30, 2021-Ohio-99, ¶ 22, quoting ISHA, Inc. v.
Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25.
{¶11} To aid the trial court’s independent review, Civ.R. 53(D) specifies that
objections to factual findings must “be supported by a transcript of all the evidence
submitted to the magistrate relevant to that finding or an affidavit of that evidence
if a transcript is not available.” Civ.R. 53(D)(3)(b)(ii). Importantly, “‘[t]he duty to
provide a transcript to the trial court rests with the person objecting to the
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magistrate’s decision.’” Fogt at ¶ 12, quoting Slepsky v. Slepsky, 11th Dist. Lake
No. 2016-L-032, 2016-Ohio-8429, ¶ 20. See also Civ.R. 53(D)(3)(b)(ii).
{¶12} “Where a party fails * * * to file a transcript of the evidence presented
at the magistrate’s hearing, the trial court, when ruling on the objections, is required
to accept the magistrate’s findings of fact and to review the magistrate’s conclusions
of law based on the factual findings.” Fogt at ¶ 13, quoting Nieto v. Marcellino,
11th Dist. Geauga No. 2017-G-0146, 2018-Ohio-4952, ¶ 15. “‘“Where the failure
to provide the relevant portions of the transcript or suitable alternative is clear on
the face of the submissions, the trial court cannot then address the merits of that
factual objection because the objecting party, whether through inadvertence or bad
faith, has not provided all of the materials needed for the review of that objection.”’”
(Emphasis sic.) Id., quoting Nieto at ¶ 15, quoting Wade v. Wade, 113 Ohio App.3d
414, 418 (11th Dist.1996).
{¶13} “‘“On appeal of a judgment rendered without the benefit of a transcript
or affidavit, an appellate court only considers whether the trial court correctly
applied the law to the facts as set forth in the magistrate’s decision.”’” Id. at ¶ 17,
quoting In re Estate of Stanford, 2d Dist. Montgomery No. 23249, 2010-Ohio-569,
¶ 22, quoting In re Estate of Lucas, 2d Dist. Montgomery No. 23088, 2009-Ohio-
6392, ¶ 32.
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Analysis
{¶14} As an initial matter, it is undisputed that Heitmeyer failed to provide
the trial court with a transcript of the evidence presented at the hearing conducted
before the trial court’s magistrate. Consequently, this court will consider only
whether the trial court correctly applied the law to the facts as set forth in the
magistrate’s decision. See generally In re Estate of Lucas at ¶ 32.
{¶15} Nevertheless, on appeal, Heitmeyer contends that the trial court
abused its discretion by adopting the magistrate’s decision concluding that Gary
converted only $392.16 from the account. “Conversion is the ‘“wrongful exercise
of dominion over property to the exclusion of the rights of the owner, or withholding
it from his possession under a claim inconsistent with his rights.”’” Warnecke v.
Chaney, 194 Ohio App.3d 459, 2011-Ohio-3007, ¶ 15 (3d Dist.), quoting State ex
rel. Toma v. Corrigan, 92 Ohio St.3d 589, 592 (2001), quoting Joyce v. Gen. Motors
Corp., 49 Ohio St.3d 93, 96 (1990). “‘The elements of conversion are: (1) plaintiff’s
ownership or right to possession of the property at the time of the conversion; (2)
defendant’s conversion by a wrongful act or disposition of plaintiff’s property
rights; and (3) damages.’” Id., quoting Miller v. Cass, 3d Dist. Crawford No. 3-09-
15, 2010-Ohio-1930, ¶ 32. “To prevail on a claim of conversion, the plaintiff bears
the burden of proving all the elements necessary to sustain that claim by a
preponderance of the evidence.” Hutchings v. Hutchings, 6th Dist. Sandusky No.
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S-19-008, 2019-Ohio-5362, ¶ 19. See also Burson v. Peoples Bank, 3d Dist.
Wyandot No. 16-92-31, 1993 WL 373523, *2 (Sept. 1, 1993) (applying the
preponderance-of-the-evidence standard to a conversion claim). But see Dice v.
White Family Cos., 173 Ohio App.3d 472, 2007-Ohio-5755, ¶ 58 (2d Dist.)
(suggesting that the clear-and-convincing-evidence standard applies to conversion
claims).
{¶16} “A ‘preponderance of the evidence means the greater weight of the
evidence that is necessary to destroy the equilibrium.’” Golan-Elliot v. Elliot, 3d
Dist. Union No. 14-17-01, 2017-Ohio-8524, ¶ 53, quoting Reed v. Reed, 3d Dist.
Allen No. 1-09-63, 2010-Ohio-4550, ¶ 10. See also In re J.B., 3d Dist. Allen No.
1-15-79, 2016-Ohio-2670, ¶ 33 (“‘Preponderance of the evidence’ means evidence
that is more probable, more persuasive, or of greater probative value.”).
{¶17} We conclude that the trial court did not abuse its discretion by
overruling Heitmeyer’s objections and adopting the magistrate’s decision. That is,
the trial court correctly applied the law to the facts as set forth in the magistrate’s
decision.
{¶18} To begin with, there is no dispute that Heitmeyer is entitled to the
$392.16. Specifically addressing Heitmeyer’s argument that Gary converted the
funds from two of her paychecks deposited into the account, the trial court’s
magistrate concluded that Heitmeyer is entitled to $392.16 from those two
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paychecks (payable to Heitmeyer) deposited into the account. The trial court
likewise concluded that Heitmeyer proved that Gary converted the funds from the
paychecks deposited into the account. Thus, the trial court issued judgment in favor
of Heitmeyer by awarding her $392.16 as to her conversion claim from the
paychecks deposited into the account.
{¶19} Nevertheless—based on the evidence presented to the trial court’s
magistrate—Heitmeyer did not sustain her burden of demonstrating ownership or a
right to possess the remainder of the account. “A UTMA account is created by
following specific statutory guidelines.”3 In re Marriage of Soenksen & Gillett, 303
P.3d 726, 2013 WL 3455796, *6 (Kan.App.2013). Under Ohio’s UTMA, which is
codified under R.C. Chapter 5814, “a minor can have money, securities, and other
property invested in his or her name with the custodian having a fiduciary
responsibility for managing the funds in the accounts prudently.” Whitman v.
Whitman, 3d Dist. Hancock No. 5-11-20, 2012-Ohio-405, ¶ 3.
{¶20} Specifically, under Ohio’s UTMA, “[a] person * * * may * * * make
a gift or transfer of * * * money [to] a person who is a minor on the date of the gift
3
Because the UTMA is a uniform-statutory scheme, courts “‘may look to other jurisdictions’ resolutions of
the question to inform our own, thus encouraging cross-jurisdictional uniformity.’” Belk v. Belk, 221
N.C.App. 1, 10, 728 S.E.2d 356 (2012), quoting In re Gumpher, 840 A.2d 318, 321 (Pa.Super.2003). See
also Ivers v. Salladay, 253 Or.App. 195, 204, 289 P.3d 334 (2012) (“Because the UTMA is a uniform law
that, to the extent possible, should be interpreted uniformly, ‘case law from other states provides part of the
statutory context.’”), quoting Edward D. Jones & Co. v. Mishler, 161 Or.App. 544, 556, 983 P.2d 1086(1999).
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or transfer.” (Emphasis added.) R.C. 5814.02(A). “Under R.C. 5814.03, ‘a gift or
transfer to a minor child made pursuant to the [UTMA] is irrevocable and conveys
to the minor indefeasibly vested legal title to the property.’” Miller v. Miller, 8th
Dist. No. 107319, 2019-Ohio-1886, ¶ 42, quoting Wojanowski v. Wojanowski, 8th
Dist. Cuyahoga No. 99751, 2014-Ohio-697, ¶ 26. See also Annotation, Uniform
Transfers to Minors Act, 64 A.L.R.7th Art. 1 (2021) (analogizing that “the UTMA
might be viewed as a form of guardianship that continues until the minor reaches
21”).
{¶21} Importantly, to constitute an irrevocable transfer under the statute,
“[i]f the subject of the gift or transfer is money,” the donor must deliver the money
“by paying or delivering it to a broker, or a financial institution for credit to an
account in the name of the donor or transferor, another person who is eighteen years
of age or older, or a trust company, followed, in substance, by the words: ‘as
custodian for * * * (name of minor) under the Ohio Transfers to Minors Act.’” R.C.
5814.02(A)(3).
{¶22} “These funds, or accounts, are the sole property of the minor child in
which the parents of the child ‘“have absolutely no property interest.”’” Miller at ¶
42, quoting Hyder v. Hyder, 9th Dist. Wayne No. 06CA0014, 2006-Ohio-5285, ¶ 9,
quoting Ramus v. Ramus, 8th Dist. Cuyahoga No. 34965, 1976 WL 191006, *3
(Aug. 19, 1976). However, “where the transferor is the custodian, the transferor
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retains control of the funds within the limitations of the statute, leaving the minor
with no control over the gifted property.” Sternlicht v. Sternlicht, 583 Pa. 149, 161-
162, 876 A.2d 904 (2005).
{¶23} Unless the custodian specifies otherwise, “[a]t the time the minor
attains the age of 21, he or she is no longer considered a minor for the purpose of
these accounts and has complete rights to the funds in the accounts.” Whitman,
2012-Ohio-405, at ¶ 3. See R.C. 5814.01(K)(1), (2) and 5814.09. That is, the
custodian is required to hold the funds until the minor (generally) reaches the age of
21, then is required to turn those funds over to the minor, unless the funds are
expended for the minor’s benefit in the interim. Accord In re Johns, 181 B.R. 965,
973 (Bankr.D.Ariz.1995); R.C. 5814.04(D)(1). “[U]nder the UTMA, any changes
to a custodial account held on behalf of a minor[] must be made by a probate court.”
Miller at ¶ 42, citing Brown v. Brown, 12th Dist. Madison No. CA2008-08-021,
2009-Ohio-2204, ¶ 50.
{¶24} In its September 21, 2021 decision, the trial court’s magistrate
concluded that Heitmeyer failed to establish “even by a preponderance of the
evidence” “whether the account is an [UTMA] account compliant with Ohio law.”
(Doc. No. 59). In other words, the trial court’s magistrate concluded that Heitmeyer
failed to demonstrate ownership or the right to possess the account at the time of the
alleged conversion. See Hutchings, 2019-Ohio-5362, at ¶ 25.
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{¶25} In concluding that Heitmeyer failed to meet her burden of establishing
that an account was created under Ohio’s UTMA, the trial court’s magistrate found
that a bank account was opened on February 3, 1993 and that Heitmeyer attained
the age of 21 in 2004. However, the trial court’s magistrate found that “[n]o records
exist for this account prior to April 1, 2010.” (Doc. No. 59). Moreover, the trial
court’s magistrate found that Gary “requested and received an updated signature
card to reflect [Heitmeyer’s] new last name after her * * * marriage” in 2013. (Id.).
The trial court’s magistrate further found that the updated signature card designates
Heitmeyer as a minor and Gary as a custodian and reflects “the language
‘ACCOUNT TYPE: Uniform Transfers to Minors Act (UTMA).’” (Emphasis sic.)
(Id., quoting Plaintiff’s Ex. B). Nevertheless, the trial court’s magistrate found that
“[c]ontrarily, ‘[n]ame 1’ at the signature line contains the name ‘Gary Arthur.’ This
is typed on the Signature Card, indicting the bank’s creation of this text. [Gary]
signed on this line.” (Id., quoting Plaintiff’s Ex. B). Importantly, the trial court’s
magistrate concluded that the UTMA designation on the signature card “is not,
necessarily, sufficient to comply with the statutory requirements for the creation of
the account.” (Id.).
{¶26} Furthermore, as evidence that the account is not a custodial account
under the UTMA, the trial court’s magistrate found that Gary and Dianne divorced
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in 2019 and that the funds in the account were divided equally as marital property
and that the account was closed thereafter.
{¶27} In the alternative, the trial court’s magistrate concluded that Gary
successfully rebutted any presumption of donative intent. That is, the trial court’s
magistrate concluded that Heitmeyer failed to prove that any transfers to the account
(other than the $392.16) constituted gifts or transfers under the UTMA because
“they were not made to a ‘minor.’” (Id., quoting R.C. 5814.02(A)). Similarly, as
to Gary’s donative intent, the trial court’s magistrate found that Gary “utilized the
account to direct deposit checks he received for providing training to college
football referees and other related services” and “that he deposited his state and
federal income tax refunds into the account each year.” (Id.). Importantly, the trial
court’s magistrate found that Gary “testified that at no time did he intend to gift
these amounts to [Heitmeyer] for any deposits made after she reached the statutory
age of majority.” (Id.).
{¶28} In its December 13, 2021 decision overruling Heitmeyer’s objections
to the magistrate’s decision, the trial court, accepting the magistrate’s findings of
fact, similarly concluded that Heitmeyer failed to prove that an account was created
under Ohio’s UTMA and that she held complete rights to the funds (other than the
$392.16) in the account. Moreover, the trial court concluded that the magistrate
properly reasoned that Heitmeyer did not prove that any of the funds were delivered
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into the account when she was a minor or that Gary intended to make an irrevocable
gift of the money to her.
{¶29} Based on the evidence before the trial court’s magistrate, the trial court
did not abuse its discretion by concluding that Heitmeyer did not demonstrate her
ownership or right to possesses the account (other than the $392.16). Further, we
conclude that the trial court correctly applied the law to the facts as set forth in the
magistrate’s decision by determining that Heitmeyer did not demonstrate that the
parties opened a custodial account under Ohio’s UTMA. That is, the trial court
properly concluded that the signature card does not comport with the statutory
language under R.C. 5814.02(A)(3) to authenticate transfers into the account as
irrevocable transfers under the statute. See Hyder, 2006-Ohio-5285, at ¶ 9. See also
State v. Keith, 81 Ohio App.3d 192, 195 (9th Dist.1991) (noting that “the listing on
the signature card did not comply with the requirements of” the statute); In re
Marriage of Soenksen & Gillett, 2013 WL 3455796, at *6.
{¶30} Likewise, since the funds in the account were divided as marital
property in Gary and Dianne’s divorce proceeding also corroborates the trial court’s
conclusion that the account was not a custodial account under the UTMA. See
Brown, 2009-Ohio-2204, at ¶ 50 (“‘A custodial account held for the benefit of a
child is neither marital [n]or separate property.’”), quoting Wilson v. Wilson, 9th
Dist. Wayne No. 95CA0089, 1996 WL 411631, *5 (July 24, 1996).
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{¶31} In the alternative, the trial court properly applied the law to the facts
as set forth in the magistrate’s decision to conclude that Heitmeyer did not prove
that any of the funds in the account were transferred into the account when she was
a minor. Indeed, based on the evidence before the trial court’s magistrate,
Heitmeyer did not submit any evidence documenting the account’s activity prior to
April 1, 2010 even though the account was allegedly established on February 3,
1993.
{¶32} Based on the clear and unambiguous language of the statute, R.C.
Chapter 5814 clearly contemplates gifts to a minor (as defined by the statute). See
HUNY & BH Assoc., Inc. v. Silberberg, N.J.Super. No. A-1696-17, 2021 WL
6109385, *24 (Dec. 27, 2021) (concluding that the UTMA “does not apply to
deposits made after the child ceases being a minor”), citing Peter v. Gibson, 336
S.W.3d 2, 5-6 (Ky.2010) (holding that the law of constructive trusts, not the UTMA,
governs the rights and remedies to custodial property that a custodian failed to
transfer when a minor reaches the age of majority). See also Schout v. Schout, 140
N.C.App. 722, 727, 538 S.E.2d 213 (2000) (applying the rules of statutory
interpretation to the UTMA). There is no dispute that Heitmeyer is not a minor
within the meaning of the statute—that is, Heitmeyer attained the age of 21 in
2004—and there is no evidence that the time for delivery was delayed. See Peter at
5.
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{¶33} Furthermore, the trial court did not abuse its discretion by adopting the
magistrate’s decision concluding that Gary successfully rebutted any presumption
of donative intent. In Ohio, the elements of an inter vivos gift are: (1) the donor’s
intent to make an immediate gift; (2) delivery of the gift; and (3) acceptance of the
gift by the donee after the donor has relinquished dominion and control over the
gift. Ardrey v. Ardrey, 3d Dist. Union No. 14-03-41, 2004-Ohio-2471, ¶ 10;
Streeper v. Myers, 132 Ohio St. 322 (1937), paragraph one of the syllabus.
“Generally, the donee has the burden of showing, by clear and convincing evidence,
that the donor made an inter vivos gift.” Soley v. Soley, 6th Dist. Huron No. H-16-
021, 2017-Ohio-2817, ¶ 20. See also Ardrey at ¶ 10; Sternlicht, 583 Pa. at 166(Cappy, C.J., concurring) (“Under the common law, when the validity of a gift is
challenged, the alleged donee of an inter vivos gift has the burden of proving by
clear and convincing evidence that delivery to the donee occurred and that the
alleged donor had donative intent.”).
{¶34} “‘Once prima facie evidence of a gift is established, a presumption
arises that the gift is valid, and the burden is then on the contestant to rebut the
presumption by clear * * * and convincing evidence.’” Sternlicht at 166 (Cappy,
C.J., concurring), quoting Banko v. Malanecki, 499 Pa. 92, 97, 451 A.2d 1008(1982). See also Brandon v. Brandon, 3d Dist. Mercer No. 10-08-13, 2009-Ohio-
3818, ¶ 26. “Clear and convincing evidence is that measure or degree of proof
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which will produce in the mind of the trier of facts a firm belief or conviction as to
the allegations sought to be established. It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt * * * .” Cross v. Ledford, 161 Ohio St. 469, 477 (1954).
{¶35} However, “transfers made to a custodian account [under the UTMA]
are not controlled by common law requirements of delivery and acceptance of the
gift.” Sternlicht at 161-162. “Indeed, there is no requirement that the minor for
whose benefit the account is opened even be aware of the account, let alone accept
it, notwithstanding that this is inconsistent with the traditional common law
elements of a gift.” Id. “On the contrary, under the statute, where the transferor is
the custodian, the transferor retains control of the funds within the limitations of the
statute, leaving the minor with no control over the gifted property.” Id.Nevertheless, the custodian is required to hold the funds until the minor generally
reaches the age of 21 and to turn those funds over to the minor, unless the funds are
expended for the minor’s benefit in the interim. Accord In re Johns, 181 B.R. at
973; R.C. 5814.04(D)(1).
{¶36} Generally, establishing “a bank account [under the UTMA] is prima
facie evidence of donative intent.” Keith, 81 Ohio App.3d at 195, citing Gordon v.
Gordon, 70 A.D.2d 86, 92, 419 N.Y.S.2d 684 (1979), Heath v. Heath, 143
Ill.App.3d 390, 395 (1986), and Golden v. Golden, 434 So.2d 978 (Fla.App.1983).
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See also Golden v. Golden, 500 So.2d 260, 261 (Fla.App.1986) (“The establishment
of an account in a child’s name pursuant to the [UTMA] creates a rebuttable
presumption of donative intent”). However, “[e]xtrinsic evidence may be
introduced to demonstrate contrary intent.” Keith at 195, citing Gordon at 91, Heath
at 394-395, and Golden, 434 So.2d at 978. See also of In re Marriage of Hendricks,
681 N.E.2d 777, 781 (Ind.App.1997).
{¶37} Thus, based on our review of the record, we conclude that the trial
court properly applied the law to the available facts to conclude that Gary lacked
donative intent. Importantly, the evidence before the trial court’s magistrate reflects
that Gary treated the account as his own. Accord Keith at 195 (concluding that
“despite the form of the account, [the defendant] did not intend to make a gift of the
money contained in the account but rather considered it her own”). Specifically, the
trial court’s magistrate found that Gary testified that he did not intend for any
deposits that he transferred into the account after Heitmeyer reached the age of
majority to constitute a gift. See Silberberg, 2021 WL 6109385, at *24 (concluding
that “the post-twenty-first-birthday deposits * * * were not intended as gifts”).
{¶38} Furthermore, the evidence before the trial court’s magistrate bolsters
Gary’s testimony and reflects that he treated the account as his own. Importantly,
the trial court’s magistrate found that Gary utilized the account to deposit checks
that he received for training college-football referees and other related services as
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well as to deposit his annual tax-refund checks. See Keith at 195 (describing that
the defendant’s “actions with respect to the account did not evidence an intention
on her part to make an irrevocable gift of the money to” her daughter because
“shortly after opening the account, [she] withdrew $20,000 to purchase a piece of
commercial property”). Thus, the trial court did not err by concluding that Gary
lacked donative intent.
{¶39} For these reasons, the trial court correctly applied the law to the facts
as set forth in the magistrate’s decision and did not abuse its discretion by adopting
the magistrate’s decision.
{¶40} Therefore, Heitmeyer’s assignments of error are overruled.
{¶41} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
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