Gilleo v. Gilleo ( 2010 )


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  • [Cite as Gilleo v. Gilleo, 
    2010-Ohio-5191
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    MERCER COUNTY
    WILLIS GILLEO,
    PLAINTIFF-APPELLANT,                             CASE NO. 10-10-07
    v.
    BEVERLY GILLEO,                                          OPINION
    DEFENDANT-APPELLEE.
    Appeal from Mercer County Common Pleas Court
    Domestic Relations Division
    Trial Court No. 07 DIV 075
    Judgment Affirmed in Part, Reversed in Part and Cause Remanded
    Date of Decision: October 25, 2010
    APPEARANCES:
    Kelly J. Rauch for Appellant
    Thomas E. Luth for Appellee
    Case No. 10-10-07
    SHAW, J.,
    {¶1} Plaintiff-Appellant, Willis Gilleo (“Willis”) appeals the judgment of
    the Mercer County Court of Common Pleas, Domestic Relations Division,
    granting a divorce from Defendant-Appellee, Beverly Gilleo (“Beverly”). On
    appeal, Willis contends that the trial court made several errors in dividing marital
    property, separate property, and debts.
    {¶2} The facts relevant to this appeal are as follows. Willis and Beverly
    married on March 8, 2003, in Celina, Ohio. They separated on January 16, 2006,
    and were granted a divorce on April 14, 2009. No children were born as issue of
    the marriage.
    {¶3} The parties had been living together since September of 2000.
    Beverly owned a home and property located at 205 Stella Street that she had
    purchased in 1985. Originally, the couple lived elsewhere because the Stella
    Street property had been badly damaged by renters. Beverly testified that the
    home was in “fair” condition and she was planning to repair it. She had already
    purchased new windows and drywall to restore the home. Willis testified that the
    home was “uninhabitable” with drywall and insulation torn out, windows broken
    out, and a flooded basement. Therefore, he wanted to tear it down and build a
    brand new home in its place on Beverly’s property.
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    {¶4} Willis had construction experience, having previously owned a
    construction company and had worked as an electrical engineer and a mechanical
    engineer. At that time, he was earning over $65,000, plus bonuses,1 and had
    approximately $50,000 funding available from the sale of his previous home.
    Beverly claimed that she did not want to tear down the old house and that she told
    Willis she could not afford to build a new home. She earned approximately
    $20,000 working at Wal-Mart and for the Dayton Daily News. She claims that she
    agreed to have Willis demolish the old house and build a new one because Willis
    said he would help her if the payments got too high.
    {¶5} In June 2001, they tore down the old house and began constructing a
    new home that Willis designed. Willis acted as general contractor and worked on
    the home, along with various other contractors. Beverly’s adult son, Charles
    Dennis, and Willis’ adult son, Adam Gilleo, also helped with the demolition and
    the new construction. Both sons appeared at the hearing and provided testimony
    as to how much time and work each contributed. Charles testified that he worked
    on the home even after he began working at Celina Aluminum Precision
    Technology, aka CAPT, on November 5, 2001, and that his contributions to the
    home construction compared to Adam’s was 60/40 or 65/35, with him performing
    more work on the home than Adam. Willis also testified about the work of both
    1
    At the time of the hearing, Willis testified that he was currently receiving only $1,750 per month in
    disability payments. He testified that he is disabled and has not been able to work since August 2005.
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    sons, stating that each equally participated in the demolition of the old home but
    that Charles did little for the new home construction because he had obtained a job
    by that point and worked several hours.
    {¶6} The construction was completed in early 2002, and the couple
    moved into the new home together, along with Charles, who also had lived with
    the couple in their previous residence.         In March 2003, Beverly and Willis
    married. They continued to reside together in the Stella Street home until January
    16, 2006, when Willis moved out after a dispute with Beverly’s son. Willis filed
    for divorce in December 2007.
    {¶7} On July 28, 2008, Willis and Beverly appeared before the magistrate
    for a hearing, and both parties testified and presented numerous exhibits for the
    court’s review. They testified concerning several vehicles and the debts associated
    with those vehicles. The parties also testified concerning who was entitled to
    various household items, including a grandfather clock, a coffee pot, curtains, a
    pressure washer, suitcases, a freezer, a ladder, and a wheelbarrow. However, the
    primary area of contention involved the Stella Street home and property.
    {¶8} Willis testified that he had spent his own money to build the home
    and presented almost two hundred exhibits showing receipts, invoices, checks, and
    credit card payments for various expenses allegedly incurred in the building of the
    new home.     He testified that he spent $113,940.54 between June 2001 and
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    November 2002, and showed deposits of over $73,000 towards the construction of
    the home that he asserted came from his personal monies.
    {¶9} During cross-examination, issues were raised concerning whether all
    of the invoices had actually been paid and whether there was a duplicate billing for
    a range hood. As to the range hood, Willis testified that one invoice was for a 30”
    range hood above the stove but could not recall what the invoice for the other
    range hood was for, simply that the invoice stated “conver range hood.” However,
    he testified that it could have been the supplier’s way of describing an exhaust fan
    or something of that nature but that, in any event, he only purchased one range
    hood for above the stove.
    {¶10} As for the questions concerning some of his invoices, although
    Willis did not have documentation that each invoice was paid, he testified to
    paying these invoices and was able to recall how most of the invoices were paid,
    i.e. cash, credit card, etc. Willis was also questioned as to why he had paid his son
    for the work Adam did on the home but did not compensate Beverly’s son for his
    work. Willis testified that Charles lived in his home for four years, including the
    new home on Stella Street without paying rent, so he felt that was sufficient.
    Willis also acknowledged that Beverly owned the Stella Street property and that
    she refinanced the property for $85,000 during the home’s construction and gave
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    him $50,000 from the mortgage proceeds to pay for expenses in building the new
    house.
    {¶11} Beverly produced the deed showing that she had owned the property
    since 1985.       No evidence was presented concerning its value prior to the
    construction of the new home. Beverly testified that, during the construction,
    Willis complained he was running low on money and that he wanted her to get a
    loan. Therefore, in January 2002, Beverly obtained a mortgage for $85,000. She
    used the money to pay off the existing mortgage of $11,745.98 that she had on the
    property, $11,483.14 was used to pay off the drywall and windows she had
    purchased to put in the old house, $1,711 was used to pay off a credit card of
    Beverly’s, $5,131 was used to pay off her car loan, and she gave Willis $50,000
    for expenditures on the new house.
    {¶12} After they were married, Willis believed that they could get a better
    interest rate on a new mortgage using his credit rating. In August 2003, at Willis’
    urging, they refinanced the property for $96,000. This money was used to pay off
    the existing mortgage from January 2002, and to pay other bills of Beverly’s,
    including medical bills from Mercy County hospital, NCO Financial, and
    Progressive. In order to obtain this financing, the mortgage broker required the
    mortgage and deed to be in both parties’ names. Beverly testified that she did not
    intend to give Willis her interest in the real estate; she was simply signing the
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    documents they asked her to complete in order to obtain the loan.                             Beverly
    testified that she had paid the mortgage payments on all of the mortgages that had
    existed on the property from her money and provided her check registers and bank
    statements to support her testimony.2
    {¶13} At the time of the separation in January 2006, the mortgage balance
    was $89,518.34. Both parties agreed that the value of the home and property was
    $94,000, based upon a May 2008 appraisal.
    {¶14} On December 15, 2008, the magistrate issued findings of fact and
    conclusions of law. The magistrate found that the property located at 205 Stella
    Street was Beverly’s separate property prior to the marriage and awarded the
    house and property to Beverly. The magistrate found that the fair market value of
    the property was $94,000, and the value of the mortgage at the time of the
    separation was $89,500, leaving $4,500 in equity. Beverly was ordered to pay
    Willis $2,250 as his one-half share of the marital equity in the real estate. The
    magistrate did not find that Willis’ testimony and exhibits regarding how much of
    his separate property he put into the construction of his new home was credible
    because (1) he paid his son for work done on the home but not Beverly’s; (2) there
    were duplicate receipts for the same item; and (3) there were invoices with no
    evidence that any money was paid towards the home.
    2
    Willis and Beverly maintained separate checking accounts and did not comingle their funds, even during
    the marriage, except for one brief period when Willis added Beverly’s name to an account.
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    {¶15} In addition, the magistrate specifically awarded certain items of
    personal property to each party, and all other items were to be divided with the
    parties meeting and making alternating choices based upon a coin toss. Each party
    was to keep any motor vehicles, stocks, bonds, retirement benefits and bank
    accounts currently titled in their own name, and each party was responsible for any
    debt incurred in his or her own name. Willis was responsible for payment of any
    debt incurred for the motor vehicles.
    {¶16} Willis filed timely objections to the magistrate’s decision. On April
    6, 2009, the trial court overruled all the objections with the exception of clarifying
    the portion of the decision pertaining to the coin toss. On April 14, 2009, the trial
    court issued the final divorce decree, following the magistrate’s recommendations.
    However, due to a clerical error, the trial court issued a new judgment entry on
    February 9, 2010, assigning the mortgage debt on the property to Beverly.
    {¶17} This appeal followed, and Willis now asserts five assignments of
    error for our review.
    ASSIGNMENT OF ERROR I
    The trial court erred to the prejudice of [Willis] when it failed to
    determine that he used $113,940.54 of his premarital funds to
    improve the Stella Street residence.
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    ASSIGNMENT OF ERROR II
    The trial court erred to the prejudice of [Willis] when it
    determined that the equity in the Stella Street home was only
    $4,500.00.
    ASSIGNMENT OF ERROR III
    The trial court abused its discretion when it failed to equally
    divide the marital debts of the parties.
    ASSIGNMENT OF ERROR IV
    The trial court erred [sic] abused its discretion when it failed to
    equally divide the marital assets of the parties.
    ASSIGNMENT OF ERROR V
    The trial court applied the wrong standard of review in
    considering the magistrate’s decision.
    {¶18} The first four assignments of error assert that the trial court erred in
    allocating and dividing the parties’ marital and separate property and their debts.
    It is well-settled that trial courts have “broad discretion to determine what property
    division is equitable in a divorce proceeding.” Cherry v. Cherry (1981), 
    66 Ohio St.2d 348
    , paragraph two of the syllabus, 
    421 N.E.2d 1293
    .            A trial court’s
    decision allocating marital property and debt will not be reversed absent an abuse
    of discretion. Jackson v. Jackson, 3d Dist. No. 11-07-11, 
    2008-Ohio-1482
    , ¶ 15,
    citing Holcomb v. Holcomb (1989), 
    44 Ohio St.3d 128
    , 131, 
    541 N.E.2d 597
    . An
    abuse of discretion is more than a mere error; it implies that the court’s attitude is
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    unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
    .
    First Assignment of Error
    {¶19} In his first assignment of error, Willis claims that the trial court erred
    when it did not find that he was entitled to be fully compensated for all of the
    premarital funds that he claims he spent building their new home on the Stella
    Street property. He maintains that he presented 199 exhibits tracing in excess of
    $113,000 of his premarital funds that he spent, and therefore, the court was
    required to reimburse him for his separate property.
    {¶20} A trial court is charged with the duty of distinguishing between
    marital property and separate property in accordance with the definitions set forth
    in R.C. 3105.171(A). Lust v. Lust, 3d Dist. No. 16-02-04, 
    2002-Ohio-3629
    , ¶ 12.
    Marital property includes property that is currently owned by either or both
    spouses and that was acquired by either or both of the spouses during the
    marriage.   R.C. 3105.171(A)(3)(a).       Property acquired during a marriage is
    presumed to be marital property unless it can be shown to be separate. Barkley v.
    Barkley (1997), 
    119 Ohio App. 3d 155
    , 160, 
    694 N.E.2d 989
    .
    {¶21} Separate property is defined by R.C. 3105.171(A)(6)(a), and
    includes any real or personal property, or interest in such, that was acquired by one
    spouse prior to the date of the marriage. Neville v. Neville, 3d Dist. No. 9-08-37,
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    Case No. 10-10-07
    
    2009-Ohio-3817
    , ¶ 11. The commingling of separate property with other property
    does not necessarily destroy the identity of the separate property, except when the
    separate property is not traceable. R.C. 3105.171(A)(6)(b). Therefore, traceability
    is the main issue in determining whether separate property has become marital
    property due to commingling. Earnest v. Earnest, 
    151 Ohio App.3d 682
    , 
    785 N.E.2d 766
    , 
    2003-Ohio-704
    , ¶ 38, citing Peck v. Peck (1994), 
    96 Ohio App.3d 731
    , 734, 
    645 N.E.2d 1300
    .       Separate property can be converted to marital
    property if one spouse grants the other spouse an interest in the property. Jackson,
    
    2008-Ohio-1482
    , at ¶ 7. The general rule with regard to separate property is that
    the trial court must disburse a spouse’s separate property to that spouse. R.C.
    3105.171(D).    Nevertheless, the trial court has broad discretion in dividing
    property equitably in a divorce. Berish v. Berish (1982), 
    69 Ohio St.2d 318
    , 319,
    
    432 N.E.2d 183
    .
    {¶22} Although the trial court questioned the validity and credibility of
    some of Willis’ expenditures, the record shows that he did provide legitimate
    documentation for numerous costs involved in the construction of the new home.
    However, he also acknowledged that Beverly repaid him $50,000 for many of
    those expenditures; therefore, his claim that he is entitled to reimbursement in the
    full amount of $113,904.54 is without merit. Nevertheless, the magistrate found
    2. When the parties were residing together, they lived at 205
    Stella Street, Celina, Ohio. Evidence proved that the Defendant
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    purchased the home in February 1985, the same is her separate
    property. Prior to the marriage, Plaintiff put approximately
    $50,000 into the home making the home more habitable. There
    were some issues with the home including a flooded basement,
    etc. Into 2002 prior to the party’s marriage, Defendant took out
    a loan and repaid the Plaintiff $50,000. The money was placed
    directly into the Plaintiff’s checking account. Throughout their
    marriage the parties maintained separate checking accounts.
    They did not co-mingle any funds. At one point in time after the
    marriage a loan was taken by the Defendant in her sole name.
    She was advised by the mortgage broker to transfer one-half
    interest of the home to the Plaintiff.
    ***
    5. The evidence did establish that Defendant repaid the
    Plaintiff $50,000 for the money he put into the home prior to the
    parties’ marriage.
    These findings contain at least two inaccuracies. First, Defendant’s Exhibit F, a
    copy of the August 2003 re-financing indicates that both Willis and Beverly
    borrowed this money.      Second, and more importantly, Willis did not put
    approximately $50,000 into the old house to make it more habitable, and Beverly
    did not re-pay him $50,000 for so doing. Rather, the parties agreed that while
    Willis was building the new home, using his own monies, Beverly re-mortgaged
    the property and gave Willis $50,000 because he needed more money to continue
    the project. Thus, this $50,000 was not associated with making the old home more
    habitable.
    {¶23} Beverly did not provide exact figures and receipts for her
    contributions, but the record shows that the property the home was built upon was
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    her premarital property. Beverly produced banking records proving that she had
    been responsible for making the mortgage payments for the property, both before
    and after they were married. In addition, some of the drywall she purchased for
    the old house and one of the windows she purchased were used in the construction
    of the new home. However, Beverly acknowledged that all of the windows, with
    the exception of the one bay window used in the new home, were still in her
    possession. Further, with the exception of the range hood, a few exhibits that
    counsel for Beverly questioned whether Willis had a receipt showing payment
    received, and the payments to Willis’ son, Beverly presented no evidence or
    testimony to dispute Willis’ expenditures on the construction of the home.
    {¶24} The record clearly demonstrates that both Beverly and Willis
    contributed premarital funds and assets to the home before they were married and
    both had marital interests in the home after they were married. Unfortunately, the
    home’s present value is considerably less than the total amount of money that both
    parties’ contributed. Whether the parties invested more money into the property
    than it was ever worth or if it has lost value due to current market conditions is
    unknown.
    {¶25} The trial court awarded Beverly possession of the real estate that she
    had owned as her separate property for eighteen years prior to the marriage. The
    parties also had marital interests in the property due to the payments and
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    improvements to the property made during the nearly three years that they were
    married and living together in the home. The trial court equally divided the
    marital equity in the home between the two parties, thereby acknowledging the
    contributions of both Beverly and Willis.                    However, despite the extensive
    documentation provided by Willis and largely undisputed by Beverly, the trial
    court found Willis’ evidence regarding his premarital funds to not be credible.
    Thus, the trial court did not find that any of his contributions were his separate
    property.
    {¶26} As previously noted, the commingling of separate property with
    marital property does not destroy the identity of the separate property as long as
    the separate property can be traced. Here, Willis provided nearly 200 exhibits to
    document the money he expended in building the new house, including invoices
    from suppliers, copies of his personal checks to pay the majority of these
    suppliers, and receipts for smaller purchases for the home. He also testified what
    each was, that they represented expenditures for the new home, and how most of
    these were paid.3 He acknowledged that Beverly gave him $50,000 for the home’s
    construction but the remainder came from his separate monies.                            Despite this
    extensive tracing, the trial court disregarded his testimony because he had two
    3
    On some of the smaller purchases Willis was unable to directly re-call what was purchased but explained
    that he was not working on any other building project at the time so the receipts were all for the Stella
    Street home.
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    receipts that described a range hood purchase that Willis could not account for the
    apparent duplication, because he paid his son for the work on the home but not
    Beverly’s, and because some of the invoices (no specific ones mentioned) did not
    include proof that they were paid. We find that the trial court’s decision in this
    regard was unreasonable and arbitrary.
    {¶27} First, the range hoods at issue were valued at $61.49 and $43.99,
    respectively, both paltry sums given that the cost to build the home was in excess
    of $100,000.   Second, Willis’ unrefuted testimony was that he paid for each
    purchase with cash, check, or his personal credit card. He had numerous items to
    show proof of payment, including many cancelled checks and receipts from the
    supplier. Additionally, there is no evidence in the record that any suppliers went
    unpaid or that the property had mechanic’s liens on it due to work that was
    performed by a contractor that went unpaid. Lastly, Beverly did not dispute that
    Adam Gilleo worked on her home. Further, her son, Charles, never testified that
    he was promised payment for the services he provided in building the home. If
    Charles worked on the home and believed he was owed payment for doing so,
    then it would be incumbent on him to attempt to be paid. Whether he is owed
    money has nothing to do with whether Willis has traced his separate property.
    Moreover, the payments made to Adam total less than $2,000, yet again another
    small amount in the overall cost to build the new home.
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    {¶28} Certainly the trial court was free to not believe the legitimacy of the
    payments to Adam Gilleo and the receipts for the range hoods. However, to
    discount the remainder of undisputed and largely documented evidence of Willis’
    pre-marital contributions to the home was unreasonable and arbitrary. Rather, the
    trial court should have simply deducted those amounts that it discredited.
    Therefore, in as much as the first assignment of error challenges the trial court’s
    failure to find any of the premarital funds contributed by Willis to the construction
    of the new home to be his separate property, it is sustained.
    {¶29} Accordingly, we reverse and remand this matter to the trial court to
    determine what amount of pre-marital funds contributed by Willis to the
    construction of the new home was sufficiently traced in accordance with the
    proper weight of the evidence and what amount should be awarded to him as his
    separate property in a manner consistent with this opinion and in recognition of
    the greatly diminished value of both parties’ contributions to the property.
    Second Assignment of Error
    {¶30} In his second assignment of error, Willis maintains that the trial
    court erred when it calculated that the equity in the Stella Street home was only
    $4,500. He asserts that the trial court did not take into consideration that a “large
    portion” of the existing mortgage was used to pay off Beverly’s premarital debts
    and to repay him for his personal expenditures in the home. He further contends
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    that this portion of the current mortgage should not count towards reducing the
    equity in the property.
    {¶31} Our review of the record shows that the majority of the funds from
    the two mortgages were used to pay expenses associated with the home’s
    construction and the property, and therefore, rightfully reduced the value of the
    equity in the home. Moreover, the second refinancing mortgage for $96,000 was
    agreed to by Willis, it occurred during the marriage in August 2003, and was in
    both parties’ names. Out of the $85,000 mortgage obtained by Beverly in January
    2002, $11,745.98 was used to pay off the previous mortgage on the property,
    which essentially, was paying off the land the new home was being built upon.
    However, $11,483 went to pay off the windows and drywall that were purchased
    with the intention of repairing the original residence. Only one window and an
    unspecified amount of drywall were used in the new home, the remainder of which
    is in Beverly’s possession. Nevertheless, Willis built the new home and chose
    what materials to use, including leaving the other windows unused and in storage
    for nearly five years by the time the parties separated. Thus, we cannot find that
    the trial court acted unreasonably in including this amount to determine the equity
    in the home.
    {¶32} From the $85,000 mortgage proceeds, there were two smaller
    amounts that were used to pay off expenses that were Beverly’s premarital debts.
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    We note that because of the refinancing, Beverly’s mortgage payments increased
    significantly. Prior to the construction project, Beverly was paying only $240 a
    month on her mortgage.       After Willis requested her to obtain the $85,000
    mortgage in 2002 to finance the rest of the construction, her monthly payments
    increased to over $690, and then they further increased to $774 after the couple
    refinanced together in 2003. It was not unreasonable for Beverly to consolidate
    her payments in order to be able to afford to make the house payments, and the
    trial court did not abuse its discretion by including these amounts in the
    determination of the home’s equity.
    {¶33} Finally, Willis contends that the $50,000 that Beverly gave him for
    the construction costs should not count towards reducing the equity because he
    contends that it “reversed the ‘repayment’ that he was entitled to receive.” This
    reasoning is not accurate.     The $50,000 was used to pay for the home’s
    construction expenses. If Beverly had kept the $50,000 herself and used it to
    directly pay for the construction materials and services, Willis’ expenditures
    would have been reduced by $50,000 and there would be no question that the
    $50,000 obtained from the mortgage was a legitimate building expense included in
    the mortgage. Simply because the construction payments were funneled through
    Willis does not render them a reversal of his repayment. Therefore, the trial court
    properly included this amount in determining the equity of the property.
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    {¶34} For all of these reasons, we do not find that the trial court’s
    calculation of the equity in the home was unreasonable or arbitrary. Accordingly,
    Willis’ second assignment of error is overruled.
    Third Assignment of Error
    {¶35} In his third assignment of error, Willis asserts that the trial court
    abused its discretion when it held him solely responsible for the $11,548.88 debt
    (plus interest and court costs) owed to GMAC as a result of the repossession of the
    Grand Prix before the end of the lease term. Willis claims that this was a marital
    debt that should be divided equally between the parties.
    {¶36} The determination of debt as marital or separate is reviewed under
    the manifest weight of the evidence standard. Gosser v. Gosser, 11th Dist. No.
    2006-T-0029, 
    2007-Ohio-3201
    , ¶ 29. A trial court’s judgment will not be reversed
    as being against the manifest weight of the evidence if the court's judgment is
    supported by some competent, credible evidence. This highly deferential standard
    of review permits the affirmation of the trial court's judgment if there is even
    “some” evidence to support the court’s finding. DeWitt v. DeWitt, 3d Dist. No. 9-
    02-42, 
    2003-Ohio-851
    , ¶11 (internal citations omitted).
    {¶37} Although the Grand Prix was acquired while the parties were
    married in May 2005, the testimony indicated that Willis was in complete control
    over purchasing, leasing, trading, and selling all of the parties’ vehicles, before,
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    during, and after the separation and marriage. Willis leased the Grand Prix in his
    name only, he drove it, and he was the one in charge of making the payments.
    Most importantly, when the couple separated in January 2006, Willis took both the
    Grand Prix and the parties’ other vehicle with him and did not offer Beverly an
    opportunity to keep or make the payments for either one.
    {¶38} Traditionally, the time “during a marriage” concludes with the
    marriage ending on the date of the final hearing. Dill v. Dill, 
    179 Ohio App.3d 14
    ,
    20, 
    2008-Ohio-5310
    , 
    900 N.E.2d 654
    , ¶ 9.        However, the trial court has the
    discretion to select other dates when determining the distribution of marital
    property and debt, if the result would be more equitable. 
    Id.
     Generally, a trial
    court's determination of whether to utilize a de facto termination of marriage date
    is upheld on appeal. Id. at ¶12.
    {¶39} Although the GMAC judgment technically occurred “during the
    marriage” prior to the final divorce decree, it was after Willis’ and Beverly’s
    separation date. The parties and the trial court used the January 16, 2006 date of
    separation to value the mortgage balance and, in every other way, treated that date
    as the end of the marriage. The repossession of the Grand Prix occurred after the
    separation date and the GMAC settlement document stating Willis still owed
    $11,553.88 was dated September 15, 2006. Although Willis claimed that he could
    not afford to make the payments on both of the vehicles, the record shows that he
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    had over $100,0004 in his bank account in December 2005, and that over $72,000
    remained in his account at the time of the separation. Willis allowed the Grand
    Prix to be repossessed when he had exclusive use and control over the vehicle,
    after the separation date, and he did not do anything to prevent the judgment.
    {¶40} The trial court did not abuse its discretion by holding Willis
    responsible for the debts associated with the vehicles that he retained and
    controlled after the parties’ separation date. Thus, the third assignment of error is
    overruled.
    Fourth Assignment of Error
    {¶41} In his fourth assignment of error, Willis contends that the trial court
    abused its discretion when it determined that it did not have sufficient evidence to
    divide all of the marital assets that were in dispute. The trial court awarded Willis
    his dresser, birth certificate, suitcases, and one-half the wedding pictures and
    family photos. Beverly was allowed to keep the high-pressure washer, curtains,
    coffee maker, silverware, and dishes. All the other items were to be divided with
    the parties meeting and dividing the property with alternating choices, with the
    first choice awarded by a coin toss. Willis contends that there was sufficient
    evidence available to allow the court to equally divide all of the contested marital
    4
    Apparently this money was from a retirement account that was Willis’ separate property.
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    property, including the chest freezer, grandfather clock, space heater, Christmas
    decorations, living room furniture, wheel barrow, and an extension ladder.
    {¶42} There was considerable testimony about these household items, but
    most of it was conflicting. Beverly said she bought the pressure washer for the
    house, and he claimed that it was a gift to him from Beverly. Willis testified that
    the parties bought the living room furniture together, and Beverly testified that she
    had paid for it on layaway when she was dating a previous boyfriend. Their
    testimony acknowledged that the current depreciated value of many of the items
    would be quite low.
    {¶43} As discussed above, a trial court is granted broad discretion in
    determining how to award an equitable property division according to the
    circumstances of each case before it.     In determining whether the decision was
    fair, equitable, and in accordance with the law, an appellate court cannot substitute
    its judgment for that of the trier-of-fact unless the trial court’s decision amounts to
    an abuse of discretion.      DeWitt, 
    2003-Ohio-851
    , at ¶ 10 (internal citations
    omitted).
    {¶44} Given the discrepancies in most of the testimony concerning these
    items, we do not believe that the trial court abused its discretion when it left it up
    to the two parties to divide the remaining personal property.          By alternating
    choices, they will have control over effectuating a fairly equally valued allocation
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    Case No. 10-10-07
    of the property if they so choose. Therefore, the fourth assignment of error is
    overruled.
    Fifth Assignment of Error
    {¶45} In his final assignment of error, Willis states that the trial court
    utilized an incorrect standard of review when it ruled on his objections to the
    magistrate’s decision.   Willis complains that the trial court failed to make a
    sufficient independent analysis and to substitute its own judgment where
    necessary.
    {¶46} Pursuant to Rule 53(D)(4)(d) of the Ohio Rules of Civil Procedure,
    when objections are filed to a magistrate’s decision, the trial court must
    independently review the objected matters to decide if the magistrate properly
    determined the factual issues and appropriately applied the law.      Brandon v.
    Brandon, 3d Dist. No. 10-08-13, 
    2009-Ohio-3818
    , ¶ 31; Davidson v. Davidson,
    7th Dist. No. 07 BE 19, 
    2007-Ohio-6919
    , ¶ 2. When examining whether a trial
    court has conducted the required independent review of a magistrate's decision,
    appellate courts “generally presume regularity in the proceedings below, and,
    therefore, we generally presume that the trial court conducted its independent
    analysis in reviewing the magistrate’s decision.” Mahlerwein v. Mahlerwein, 
    160 Ohio App.3d 564
    , 
    2005-Ohio-1835
    , 
    828 N.E. 2d 153
    , ¶ 47. Therefore, the party
    who asserts that the trial court did not conduct such a review bears the burden of
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    Case No. 10-10-07
    affirmatively demonstrating the trial court’s failure to perform its duty. Id.; Figel
    v. Figel, 3d Dist. No. 10-08-14, 
    2009-Ohio-1659
    , ¶ 2.
    {¶47} Willis asserts that the trial court incorrectly gave too much deference
    to the magistrate’s findings as to the evidence and credibility of the witnesses
    based upon the trial court’s statement in the judgment entry that “it is the
    Magistrate’s responsibility to weigh the evidence which requires the Magistrate to
    determine the credibility of the witnesses.” The record does not support Willis’
    contention. While a trial court is required to independently review the record and
    make its own factual determinations, the trial court may rely upon the magistrate’s
    credibility determinations when it reviews the magistrate’s decision. Hendricks v.
    Hendricks, 3d Dist. No. 15-08-08, 
    2008-Ohio-6754
    , ¶ 25, citing Osting v. Osting,
    3d Dist. No. 1-03-88, 
    2004-Ohio-4159
    .
    {¶48} The record contained conflicting testimony from the parties, so the
    trial court was allowed to rely on the magistrate’s assessments of the parties’
    credibility. The trial court’s judgment entry noted that, “the testimonies of the
    plaintiff and the defendant tell ‘two very conflicting stories’ *** regarding the
    individual financial contributions to the primary asset at issue, the residence at 205
    Stella Street, Celina, Ohio.”
    {¶49} In addition, there were several references in the judgment entry
    where the trial court affirmatively stated that it had indeed made its own
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    Case No. 10-10-07
    independent review of the record. An appellate court presumes that the trial court
    did exactly what it said it did. Figel, 
    2009-Ohio-1659
    , at ¶ 11, citing Betz v.
    Timken Mercy Med. Ctr. (1994), 
    96 Ohio App.3d 211
    , 216, 
    644 N.E.2d 1058
    . In
    its April 6, 2009 judgment entry, the trial court specifically stated that it had
    “undertaken an independent review as to the objected matters to ascertain whether
    the Magistrate has properly determined the factual issues and appropriately
    applied the law.”     It further indicated that “[b]ased upon its review of the
    transcript, the court finds and concludes that the evidence is sufficient to support
    the findings of fact and conclusions of law made by the Magistrate in the decision
    filed December 15, 2008.” The trial court also demonstrated it had reviewed the
    record by including quotations from the transcript and other specific references to
    the record.     Moreover, although the trial court adopted the majority of the
    magistrate’s decision, it did modify a portion of it.
    {¶50} With the exceptions of the matters previously addressed under the
    first assignment of error, there was ample evidence that the trial court met its
    obligations to conduct an independent review under Civ.R. 53(D)(4)(d).
    Therefore, Willis’ fifth assignment of error is overruled.
    {¶51} For all of these reasons, the judgment of the Common Pleas Court,
    Domestic Relations Division, of Mercer County, Ohio, is affirmed in part,
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    Case No. 10-10-07
    reversed in part, and the matter remanded for further proceedings consistent with
    this opinion.
    Judgment Affirmed in Part,
    Reversed in Part and
    Cause Remanded
    WILLAWOSKI, P.J., and PRESTON, J., concur.
    /jlr
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