Louis v. Louis

[Cite as Louis v. Louis, 2011-Ohio-4463.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
ARVY LOUIS
Appellee
v.
CHARLES LOUIS
Appellant
C.A. No. 10CA0047
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
CASE No. 09 DR 0179
DECISION AND JOURNAL ENTRY
Dated: September 6, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Charles and Arvy Louis divorced after nearly 40 years of marriage. At the time of
the divorce, they owned two houses. Ms. Louis had purchased one of the houses before
marrying Mr. Louis. Mr. Louis had inherited the other, but had transferred title into both of their
names. A magistrate recommended that the trial court find that both houses were marital
property. Mr. Louis objected to the magistrate’s decision, but the trial court overruled his
objection. The court ordered both houses to be sold and the net proceeds to be split between the
parties. Mr. Louis has appealed, assigning as error that the trial court’s finding that the house he
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had inherited was marital property was against the manifest weight of the evidence. We affirm
because the trial court’s determination that the house became marital property is supported by
some competent, credible evidence.
MARITAL PROPERTY
{¶2} Mr. Louis’s assignment of error is that the trial court’s decision to uphold the
magistrate’s finding that he converted his separate property into marital property was against the
manifest weight of the evidence. He has argued that Ms. Louis failed to prove that he gave an
interest in the house to her as a gift.
{¶3} “In divorce proceedings, the court shall . . . determine what constitutes marital
property and what constitutes separate property.” R.C. 3105.17.1(B). “‘Marital property’ means
. . . [a]ll real and personal property that currently is owned by either or both of the spouses . . .
[and] [a]ll interest that either or both of the spouses currently has in any real or personal property
. . . that was acquired by either or both of the spouses during the marriage[.] R.C.
3105.17.1(A)(3)(a)(i-ii). “Marital property,” however, “does not include any separate property.”
R.C. 3105.17.1(A)(3)(b). “‘Separate property’ means all real and personal property and any
interest in real or personal property that is found by the court to be . . . [a]n inheritance by one
spouse by bequest, devise, or descent during the course of the marriage[.]” R.C.
3105.17.1(A)(6)(a)(i).
{¶4} Whether property is marital or separate property is a question of fact. Barlow v.
Barlow, 9th Dist. No. 08CA0055, 2009-Ohio-3788, at ¶6. We review the trial court’s finding to
determine whether it was against the manifest weight of the evidence. Id. In State v. Wilson,
113 Ohio St. 3d 382, 2007-Ohio-2202, at ¶26, the Ohio Supreme Court held that the test for
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whether a judgment is against the weight of the evidence in civil cases is different from the test
applicable in criminal cases. According to the Supreme Court in Wilson, the standard applicable
in civil cases “was explained in C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279.” Id. at
¶24. The “explanation” in C.E. Morris was that “[j]udgments supported by some competent,
credible evidence going to all the essential elements of the case will not be reversed by a
reviewing court as being against the manifest weight of the evidence.” Id. (quoting C.E. Morris
Co., 54 Ohio St. 2d at syllabus); but see Huntington Nat’l Bank v. Chappell, 183 Ohio App. 3d 1,
2007-Ohio-4344, at ¶17-75 (Dickinson, J., concurring in judgment only).
{¶5} Ms. Louis does not dispute that Mr. Louis inherited the house in 1986 and that it
was his separate property at that time. She has argued, however, that the house became marital
property in 1998 when Mr. Louis conveyed an interest in it to her.
{¶6} Under Section 3105.17.1(H) of the Ohio Revised Code, the mere “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.” Rather, courts must
determine whether transmutation has occurred. See Starr v. Starr, 9th Dist. No. 16817, 1995
WL 338496 at *5 (June 7, 1995). “Transmutation is [the term] generally used to describe the
process by which independent or nonmarital property has changed to marital property or vice
versa by deed or gift from one party to another.” Kampf v. Kampf, 11th Dist. No. 90-A-1503,
1991 WL 70785 at *4 (May 3, 1991); Dunlap v. Dunlap, 12th Dist. No CA83-09-063, 1984 WL
3431 at *2 (Sept. 28, 1984). “Numerous appellate districts in Ohio have recognized that separate
real property can be transformed by the grantor spouse into marital property by a gratuitous
transfer to the grantee spouse of a present interest in the property.” Helton v. Helton, 114 Ohio
App. 3d 683, 686 (1996) (citing cases from the fourth, sixth, and eleventh district). This Court
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reached the same conclusion in Moore v. Moore, 83 Ohio App. 3d 75, 78 (1992) (concluding that
record supported trial court’s finding that spouses who executed deeds granting the other spouse
possession of their separate property during their joint lives intended to convert that property to
marital property).
{¶7} This Court has identified “six factors a court should consider when determining
whether [a deed] . . . transmuted [separate property] into marital property, which are: (1) the
expressed intent of the parties as far as it can be determined; (2) the source of the funds used to
acquire the property; (3) the circumstances which surround the property’s acquisition; (4) the
beginning and ending dates of the marriage, the acquisition of the property, and the claimed
transmutation; (5) the inducement for and/or purpose of the transaction which gave rise to the
alleged transmutation; and (6) the value of the property and its significance to the parties.”
Hazen v. Hazen, 9th Dist. No. 2159, 1993 WL 261566 at *1-2 (July 14, 1993) (citing Kuehn v.
Kuehn, 55 Ohio App. 3d 245, 246 (1988)); see also Barkley v. Barkley, 119 Ohio App. 3d 155,
161 (1997) (noting that Section 3105.17.1(H) is “a legislative ratification of the flexible
approach [to transmutation] adopted by Kuehn[.]”). The use of the Kuehn test has been limited
by Section 3105.17.1(A)(6)(b) of the Ohio Revised Code, which provides that “[t]he
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.”
Hirt v. Hirt, 9th Dist. No. 03CA0110-M, 2004-Ohio-4318, at ¶19 (noting that R.C.
3105.17.1(A)(6)(b) restricted the application of the Kuehn test). Section 3105.17.1(A)(6)(b)
does not apply in this case, however, because the question of whether Mr. Louis’s house became
marital property does not involve commingled property or the tracing of assets. The focus of the
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analysis, instead, is on Mr. Louis’s intent at the time he deeded an interest in the house to Ms.
Louis.
{¶8} At times, this Court has analyzed whether transmutation has occurred to real
property using the test for an inter vivos gift. See Sweeney v. Sweeney, 9th Dist. No. 19709,
2000 WL 799095 at *2 (June 21, 2000). “The essential elements of an inter vivos gift are ‘(1) an
intention on the part of the donor to transfer the title and right of possession of the particular
property to the donee then and there and (2), in pursuance of such intention, a delivery by the
donor to the donee of the subject-matter of the gift to the extent practicable or possible,
considering its nature, with relinquishment of ownership, dominion and control over it.’” Id.(quoting Helton v. Helton, 114 Ohio App. 3d 683, 685 (1996)). A deed, however, is considered
delivered when it is recorded. Algren v. Algren, 183 Ohio App. 3d 114, 2009-Ohio-3009, at ¶20
(“One who . . . records a deed that names the recipient as grantee . . . satisfies the delivery
requirement”); see West v. West, 9th Dist. No. 01CA0045, 2002 WL 388845 at *4 (Mar. 13,
2002). Accordingly, when the test for an inter vivos gift is applied to real property, the “key
issue is donative intent.” Sweeney, 2000 WL 799095 at *2.
{¶9} Upon review of our case law, we conclude that, when real property is involved,
the six-factor Kuehn test leads to a more thorough analysis of whether separate property has
become marital property than the test for an inter vivos gift. We note, however, that, under
either test, the intent of the parties is the focus of the inquiry.
{¶10} According to Mr. Louis, he added Ms. Louis to the deed as a joint tenant with
right of survivorship in 1998 when he and Ms. Louis co-signed a loan for their daughter and had
to put the house up as collateral. Mr. Louis testified that the idea was suggested to him by a
mortgage broker he had worked with on another loan and that he had no objection to Ms. Louis
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owning part of the house. He said that, because they had been married for so long, he figured
that “everything was everybody’s.” He also thought that the transfer of the property to a joint
survivorship deed would “help out down the road.” Mr. Louis testified that Ms. Louis did not
ask or force him to put her on the deed, but it was something that he did willingly.
{¶11} Considering Mr. Louis’s testimony that he willingly transferred an interest in his
inherited property to Ms. Louis because, in light of the length of the marriage, he considered all
of their property to be joint and because he thought it would make things more convenient for
them in the future, we conclude that the trial court’s finding that the house was marital property
is supported by some competent, credible evidence. See Helton v. Helton, 114 Ohio App. 3d
683, 687 (1996) (concluding residence was marital property because husband intended to convey
a present possessory interest in the residence when he executed a joint survivorship deed to his
spouse and himself); Moore v. Moore, 83 Ohio App. 3d 75, 78 (1992) (same). Mr. Louis’s
assignment of error is overruled.
CONCLUSION
{¶12} The trial court’s determination that the house Mr. Louis inherited was marital
property is not against the manifest weight of the evidence. The judgment of the Wayne County
Domestic Relations Court is affirmed.
Judgment affirmed.
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.
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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(E). The Clerk of the Court of Appeals is
instructed to 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 Appellant.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, P. J.
WHITMORE, J.
CONCUR
APPEARANCES:
DAVID L. MCARTOR and KRISTOPHER K. AUPPERLE, Attorneys at Law, for Appellant.
ROSANNE K. SHRINER, Attorney at Law, for Appellee.