Kontur v. Kontur , 2024 Ohio 5201 ( 2024 )

[Cite as Kontur v. Kontur, 2024-Ohio-5201.]
COURT OF APPEALS
GUERNESY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BRENDA SUE KONTUR, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellant : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DONALD J. KONTUR, : Case No. 24CA000008
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County
Court of Common Pleas, Domestic
Relations Division, Case No. 23 DR
108
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 29, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
COURTNEY A. ZOLLARS EMILY STRANG TARBERT
The Nigh Law Group, LLC Tarbert Law
300 S. Second Street 50 North Fourth Street
Columbus, Ohio 43215 Zanesville, Ohio 43701
Guernsey County, Case No. 24CA000008 2
Baldwin, J.
{¶1} The appellant, Brenda Sue Kontur, appeals the March 5, 2024, judgment
entry of the Delaware County Court of Common Pleas, Domestic Relations Division.
STATEMENT OF THE FACTS AND THE CASE
{¶2} In 1979, the appellee’s father purchased parcel 141 and built his house on
it.
{¶3} In 2002, the appellee obtained title to parcel 141 from his father.
{¶4} In 2006, the appellee purchased parcels 036 and 037.
{¶5} In 2008, the appellant married the appellee.
{¶6} On July 14, 2022, the appellant filed her initial Complaint for Divorce under
Case No. 22 DR 244. The appellants entered into a divorce agreement through an Agreed
Judgment Entry – Decree of Divorce prepared by the appellant’s counsel. The matter was
set for an uncontested hearing on October 13, 2022.
{¶7} On September 29, 2022, Appellee’s counsel filed a Notice of Appearance.
The appellant learned that the appellee no longer agreed with the prepared Decree of
Divorce Judgment Entry.
{¶8} On November 17, 2022, the parties discussed the circumstances and
decided to continue litigation.
{¶9} On March 8, 2023, the Complaint for Divorce was dismissed.
{¶10} On March 27, 2023, the appellant refiled her Complaint for Divorce
(“Complaint”).
{¶11} On April 10, 2023, the appellee filed his Answer, Counterclaim, and Motion
for Exclusive Use of the Marital Residence.
Guernsey County, Case No. 24CA000008 3
{¶12} On May 11, 2023, both parties agreed to the appellee’s Motion for Exclusive
Use of the Marital Residence.
{¶13} On September 18, 2023, the matter proceeded to trial. Prior to trial, the
parties stipulated that the Marital Residence was jointly owned and that it should be
valued at $604,000.
{¶14} On October 19, 2023, prior to trial, the parties settled all matters except the
classification and valuation of three parcels: parcel 141, parcel 036, and parcel 037. The
appellant requested to call the Appraisal Services to the stand to testify about the
appraisal obtained. The Magistrate denied the appellant’s request to call the witness.
{¶15} The Magistrate found that the disputed parcels were separate property of
the appellee, that the appellant was entitled to $30,000 of the paydown on the mortgage
and the contribution from inheritance in the amount of $11,611.50, and $24,000 from the
remodel of the Marital Residence.
{¶16} The appellant filed objections to the Magistrate’s findings.
{¶17} On March 5, 2024, the trial court found there was a sufficient factual basis
for the findings of the Magistrate.
{¶18} The appellant filed a timely notice of appeal and herein raises the following
Assignments of Error:
{¶19} “I. THE COURT ERRED IN FINDING THAT APPELLEE PROVIDED
SUFFICIENT EVIDENCE TO SHOW A SEPARATE PROPERTY INTEREST.”
{¶20} “II. THE COURT ERRED WHEN THEY ARBITRARILY ASSIGNED A
VALUE OF $60,000 TO THE PRINCIPAL PAYDOWN OF THE 2011 CHASE
MORTGAGE PAYDOWN.”
Guernsey County, Case No. 24CA000008 4
{¶21} “III. THE COURT ERRED WHEN THEY DID NOT PROPERLY CONSIDER
THE CO-MINGING AND MARITAL EFFORT ASSOCIATED WITH THE PARCELS AND
WHEN THE COURT FOUND THE INCREASE IN VALUE OF PARCELS 141, 036, AND
037 WERE APPELLEE’S SEPARATE PROPERTY.”
{¶22} “IV. THE COURT ERRED BY FINDING THAT TRANSMUTATION DID NOT
OCCUR FOR PARCEL 141, 036, AND 037.”
{¶23} “V. THE COURT ERRED IN NOT ALLOWING APPELLANT TO CALL THE
APPRAISER ON THE SECOND DAY OF TRIAL.”
I., III.
{¶24} In the appellant’s first and third Assignments of Error, the appellant argues
that the trial court abused its discretion in finding that the appellee provided sufficient
evidence to show a separate property interest in parcels 036, 037, and 141 and that the
trial court failed too properly consider the commingling of assets. We disagree.
Standard of Review
{¶25} “The characterization of property as separate or marital is a mixed question
of law and fact.” Howcroft v. Howcroft, 2010-Ohio-6410 (5th Dist.), ¶57. “A party who wants
an asset classified as separate property bears the burden of tracing that asset to his or
her separate property.” Gregory v. Falcon, 2023-Ohio-1741 (5th Dist.), ¶36. This Court will
not disturb the trial court’s ruling as being against the manifest weight of the evidence if
some competent, credible evidence supports the trial court’s judgment. Howcroft at ¶57,
citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978).
{¶26} Manifest weight of the evidence addresses the evidence’s effect in inducing
belief. State v. Thompkins, 78 Ohio St.3d 380 (1997). The Supreme Court of Ohio stated:
Guernsey County, Case No. 24CA000008 5
Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight
is not a question mathematics but depends on its effect in inducing belief.
Black’s, supra, at 1594.
Id. at 387. The Court stated further:
When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the manifest weight of the evidence, the
appellate court sits as a “ ‘thirteenth juror’ ” and disagrees with the
factfinder’s resolution of the conflicting testimony. Tibbs [v. Florida], 457
U.S. [31] 42, 102 S.Ct. [2211], 2218, 72 L.Ed.2d [652] 661[(1982)]. See,
also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219,
485 N.E.2d 717, 720-721 (“The court, reviewing the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. * * *)”
Id.Further, the Court in Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77 (1984),
stated:
Guernsey County, Case No. 24CA000008 6
“[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the finding of facts.
**
“If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Id. at 80, fn. 3.
ANALYSIS
{¶27} R.C. §3105.171(A), in pertinent part, states:
(3)(a) “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 spouse during the
marriage;
Guernsey County, Case No. 24CA000008 7
(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.
**
(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 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;
**
(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 was acquired by one spouse prior to the date of the marriage;
Guernsey County, Case No. 24CA000008 8
(iv) 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.
{¶28} In the case sub judice, the appellee owned all the parcels prior to marriage.
In 2006, the appellee refinanced the mortgage on parcel 141 to borrow money to
purchase parcels 036 and 037.
{¶29} In 2009, the 2006 mortgage was refinanced. Both parties were on the
mortgage, but only the appellee was on the note.
{¶30} In 2010, another refinancing of the mortgage occurred.
{¶31} Between 2010 and 2018, $60,000 was paid from marital funds to pay down
the 2010 mortgage.
{¶32} In 2018, the appellee’s property was sold and used to pay off the remainder
of the 2010 mortgage. In addition to the proceeds from the sale of the appellee’s property
the appellee also contributed $10,656.50. The appellant contributed an additional
$11,611.56 to pay down the remainder of the mortgage.
{¶33} The Magistrate found the appellee was able to trace his interest in parcel
141, finding it maintained its character as separate property. The appellant was entitled
to half of the mortgage pay down, $30,000, plus the additional amount of $11,611.56 she
contributed. In addition, the appellant failed to point to anything in the record, showing
that the trial court abused its discretion by finding that parcels 036 and 037 were separate
Guernsey County, Case No. 24CA000008 9
property. They make a conclusory statement that the trial court shifted the burden to the
appellant but did not cite the record where the trial court placed this burden on the
appellant.
{¶34} Again, marital property includes “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.” R.C. §3105.171(A)(3)(a)(iii). The appellant
also argues that her labors and improvements paid for from their joint bank account were
not appropriately accounted for by the trial court when determining either the commingling
of the assets or the value of her contribution. However, the appellant fails to show in the
record where evidence was presented of any income or appreciation in the value of the
property due to such contribution. Accordingly, we find that the trial court did not lose its
way in finding parcels 036, 037, and 141, nor did the trial court create such a manifest
miscarriage of justice that the decision must be reversed.
{¶35} The appellant’s first and third assignment of error is overruled.
II.
{¶36} In the appellant’s second assignment of error, the appellant summarily
argues that the trial court erred in limiting the marital interest of Parcel 141 to a value of
the principal paydown of the mortgage. We disagree.
ANALYSIS
{¶37} The appellant cites no statutory, case law, rules of evidence, or learned
treatise from this or any other jurisdiction to support her argument. Accordingly, the
appellant’s brief does not comply with App.R. 16(A)(7), which provides,
Guernsey County, Case No. 24CA000008 10
The appellant shall include in its brief, under the headings and
in the order indicated, all of the following * * * An argument containing
the contentions of the appellant with respect to each assignment of
error presented for review and the resons in support of the
contentions, with citations to the authorities, statutes, and parts of
the record on which appellant relies. The argument may be preceded
by a summary.
{¶38} “If an argument exists that can support [an] assignment of error, it is not this
court’s duty to root it out.” Thomas v. Harmon, 2009-Ohio-3299 (4th Dist.), ¶14, quoting
State v. Carman, 2008-Ohio-4368 (8th Dist.), ¶31. “It is not the function of this court to
construct a foundation for [an appellant’s] claims; failure to comply with the rules
governing practice in the appellate courts is a tactic which is ordinarily fatal.” Catanzarite
v. Boswell, 2009-Ohio-1211 (9th Dist.), ¶16, quoting Kremer v. Cox, 114 Ohio App.3d 41(9th Dist.1996). Therefore, “[w]e may disregard any assignment of error that fails to
present any citations to case law or statutes in support of its assertions.” Frye v. Holzer
Clinic, Inc., 2008-Ohio-2194 (4th Dist.), ¶12. See, also, App.R. 16(A)(7); App.R. 12(A)(2);
Albright v. Albright, 2007-Ohio-3709 (4th Dist.), ¶16; Tally v. Patrick, 2009-Ohio-1831 (11th
Dist.), ¶¶21-22; Jarvis v. Stone, 2008-Ohio-3313 (9th Dist.), ¶23; State v. Norman, 2011-
Ohio-596 (5th Dist.), ¶29.
{¶39} An appellate court may rely on App.R. 12(A) to overrule an assignment of
error because of “the lack of briefing.” State v. Miller, 2004-Ohio-4636 (5th Dist.), ¶41.
“Errors not treated in the brief will be regarded as having been abandoned by the party
Guernsey County, Case No. 24CA000008 11
who gave them birth.” Uncapher v. Baltimore & Ohio Rd. Co., 127 Ohio St. 351, 356
(1933).
{¶40} The appellant has not supported her general argument with citation to legal
authority in support of an argument. Accordingly, this assignment of error is overruled.
State v. Gulley, 2008-Ohio-887 (5th Dist.), ¶12.
{¶41} The appellant’s second assignment of error is overruled.
IV.
{¶42} In the appellant’s fourth assignment of error, the appellant argues the trial
court abused its discretion by finding that the transmutation of parcels 036, 037, and 141
did not occur. We disagree.
STANDARD OF REVIEW
{¶43} As an appellate court, our role is to determine whether there is relevant,
competent, and credible evidence upon which the fact finder could base his or her
judgment. Picciano v. Picciano, 2021-Ohio-4603 (5th Dist.), ¶44.
ANALYSIS
{¶44} In Picciano at ¶43, this Court said:
The factors to consider in determining whether transmutation has occurred
include: (1) the expressed intent of the parties, insofar as it can be reliably
ascertained; (2) the source of the funds, if any, used to acquire the property; (3)
the circumstances surrounding the acquisition of the property; (4) the dates of the
marriage, the acquisition of the property, the claimed transmutation, and the
breakup of the marriage; (5) the inducement for and/or purpose of the transaction
Guernsey County, Case No. 24CA000008 12
which gives rise to the claimed transmutation; and (6) the value of the property and
its significance to the parties.
Id., citing Kuehn v. Kuehn, 55 Ohio App.3d 245 (12th Dist.1988).
{¶45} “Once it is proven that specific property was the separate property of one of
the spouses at * * * 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.” Snyder v. Snyder, 2002-Ohio-2781 (2nd Dist.). “[A]
husband can convert separate property into marital property by making an inter vivos gift
to his wife. Id. The fact that both parties’ names appear on the deed is not determinative
of whether the property is marital or separate property. Gibson v. Gibson, 2007-Ohio-
2087 (5th Dist.), ¶78.
{¶46} We find competent, credible evidence in the record to support the trial
court’s determination. First, the appellee acquired the parcels prior to the marriage, with
parcel 141 being purchased in 1979 by the appellee’s father. Furthermore, both parties
testified that the properties were transferred from the appellee to joint and survivorship
deeds for the sole purpose of estate planning. The appellee did not transfer the properties
with donative intent.
{¶47} Given the evidence in the record, we cannot say the trial court erred in
finding that the transmutation of parcels 036, 037, and 141 did not occur.
{¶48} Accordingly, the appellant’s fourth assignment of error is overruled.
Guernsey County, Case No. 24CA000008 13
V.
{¶49} In the appellant’s fifth assignment of error, the appellant argues the trial
court abused its discretion by not allowing the appellant to call the appraiser to testify
regarding the value of the parcels. We disagree.
STANDARD OF REVIEW
{¶50} The admission or exclusion of evidence must be analyzed under an abuse
of discretion standard of review “so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake County, 58 Ohio St.3d 269, 271 (1991).
“The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies
that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams
(1980), 62 Ohio St.2d 151, 157.
ANALYSIS
{¶51} It appears the appellant is arguing that the trial court abused its discretion
by not allowing testimony on facts already stipulated by the parties.
{¶52} It is well-settled that when parties enter into a stipulation of facts, those facts
are binding on both the trier of fact and the parties themselves. State v. Qirat, 2015-Ohio-
863 (5th Dist.), ¶50.
{¶53} We find the trial court did not abuse its discretion. In the case sub judice,
the appellant and appellee stipulated that the total value of the parcels was $604,000.
The appellant alleges in her brief that the appraiser would testify to the value of the
parcels. Since the parties already stipulated to the value of the parcels, the trial court did
not act unreasonably, arbitrarily, or unconscionably by not allowing the appraiser to
testify.
Guernsey County, Case No. 24CA000008 14
{¶54} Accordingly, the appellant’s fifth assignment of error is overruled.
CONCLUSION
{¶55} For the forgoing reasons, the judgment of the Court of Common Pleas,
Guernsey County, Ohio, is hereby affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.