Reed v. Reed , 2010 Ohio 4550 ( 2010 )

[Cite as Reed v. Reed, 2010-Ohio-4550.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
PETER W. REED,
PLAINTIFF-APPELLEE, CASE NO. 1-09-63
v.
SUSAN B. REED, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Domestic Relations Division
Trial Court No. DR-2008-0691
Judgment Affirmed
Date of Decision: September 27, 2010
APPEARANCES:
Douglas B. Dougherty and Michael J. Malone for Appellant
James C. King for Appellee
Case No. 1-09-63
SHAW, J.
{¶1} Appellant Susan B. Reed (“Susan”) appeals the October 1, 2009
judgment of the Allen County Court of Common Pleas allocating a marital and a
non-marital percentage to two investment accounts owned by Appellee Peter W.
Reed (“Peter”) and concluding that Peter met his burden in tracing a significant
portion of these accounts to his separate property.
{¶2} The parties were married on March 31, 1991. No children were born
from their union. Both parties had acquired a substantial amount of separate
property prior to their marriage. At the time of the marriage, Peter was employed
as a Radiologist. Peter began his career in Lima in 1965, retiring in 1999. Prior to
the marriage, Susan was employed as a registered nurse, a career she began 1968.
Shortly after the parties married, they agreed that it would be more conducive to
their lifestyle for Susan to quit her job. For the duration of their marriage, Susan
was not employed outside the home.
{¶3} On November 13, 2008, Peter filed for divorce. On December 17,
2008, Susan filed her answer and a counterclaim. The primary contention in the
divorce proceedings focused on the division of the parties’ separate and marital
property. Specifically at issue were six investment accounts owned by Peter prior
to the parties’ marriage. Even though Peter established these accounts before
marrying Susan, he periodically made contributions to some of the accounts while
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they were married. Peter acknowledged that some marital funds were deposited in
the accounts. However, Peter also maintained that these accounts retained a
considerable non-marital component that could be traced to his separate property
held before the marriage. Both parties conducted extensive discovery regarding
these accounts.
{¶4} On June 22 and 23, 2009, the trial court held the final divorce
hearing. Both parties offered expert testimony regarding the traceability of these
accounts to Peter’s pre-marital property. Peter and Susan also took the stand to
testify on their own behalves. At the close of the evidence, the court asked the
parties to submit their respective written arguments by July 8, 2009.
{¶5} On October 1, 2009, the court issued a sixteen-page decision. With
respect to the investment accounts, the court found that Peter met his burden in
tracing a significant amount of the assets to his separately held property. The
court then allocated a marital and a non-marital component to these accounts
accordingly. Susan contended that Peter did not sufficiently trace the assets held
in the two largest accounts to his separately held property. As a result, Susan filed
this appeal with the following assignments of error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN ITS DIVISION OF THE
ASSETS CONTAINED IN THE HUSBAND’S UBS ACCOUNT
BECAUSE IT ERRONEOUSLY ANALYZED TWO
SEPARATE PROPERTY ISSUES.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN ITS DIVISION OF THE
ASSETS CONTAINED IN THE HUSBAND’S J.P. MORGAN
CHASE ACCOUNTS BECAUSE IT ERRONEOUSLY
ANALYZED TWO SEPARATE PROPERTY ISSUES.
{¶6} Because both of Susan’s assignments of error address the trial
court’s decision to classify a significant portion of the two investment accounts in
dispute as Peter’s separate property, we elect to discuss them together.
{¶7} This Court reviews the trial court’s classification of property as
marital or separate property under a manifest weight of the evidence standard.
Gibson v. Gibson, 3rd Dist. No. 9-07-06, 2007-Ohio-6965, at ¶26, quoting
Eggeman v. Eggeman, 3rd Dist. No. 2-04-06, 2004-Ohio-6050, ¶14, citing
Henderson v. Henderson, 3rd Dist. No. 10-01-17, 2002-Ohio-2720, ¶28.
Accordingly, the 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. Barkley v. Barkley, 119 Ohio App.3d 155, 159, 694
N.E.2d 989. “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.” Huelskamp v. Huelskamp, 185 Ohio App.3d 611, 620, 2009-Ohio-6864,
¶15, 925 N.E.2d 167 citing DeWitt v. DeWitt, 3rd Dist. No. 9-02-42, 2003-Ohio-
851, ¶10.
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{¶8} In a divorce proceeding, the trial court must determine whether
property is marital or separate property. Gibson v. Gibson, 3rd Dist. No. 9-07-06,
2007-Ohio-6965, ¶ 29 citing R.C. 3105.171(B), (D). 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. See 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. Huelskamp, 185 Ohio App.3d at 619, 2009-Ohio-
6864, ¶15, 694 N.E.2d 989.
{¶9} Separate property is statutorily defined by R.C. 3105.171(A)(6)(a) in
the following manner:
‘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;
(iv) Any real or personal property or interest in real or personal
property acquired by one spouse after a decree of legal
separation issued under section 3105.17 of the Revised Code;
(v) Any real or personal property or interest in real or personal
property that is excluded by a valid antenuptial agreement;
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(vi) Compensation to a spouse for the spouse's personal injury,
except for loss of marital earnings and compensation for
expenses paid from marital assets;
(vii) Any gift of any real or personal property or of an interest in
real or personal property that is made after the date of the
marriage and that is proven by clear and convincing evidence to
have been given to only one spouse.
R.C. 3105.171(A)(6)(a). (Emphasis added).
{¶10} The statute further states that “the commingling of separate property
with other property of any type does not destroy the identity of the separate
property as separate property, except when the separate property is not traceable.”
R.C. 3105.171(A)(6)(b). Thus, traceability is the key to determining whether
separate property has lost its separate character after being commingled with
marital property. Ward v. Ward, 3rd Dist. No. 01-03-63, 2004-Ohio-1390, ¶ 4
citing Peck v. Peck (1994), 96 Ohio App.3d 731, 734, 645 N.E.2d 1300. The party
seeking to have a particular asset classified as separate property has the burden of
proof, by a preponderance of the evidence, to trace the asset to separate property.
Peck, 96 Ohio App.3d at 734. “Preponderance of the evidence means the greater
weight of evidence that is necessary to destroy the equilibrium.” State v. Stumpf
(1987), 32 Ohio St.3d 95, 102, 512 N.E. 2d 598. It is that proof which leads the
trier of fact to find that the existence of the contested fact is more probable than its
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{¶11} Because Peter maintained during the divorce proceedings that the
two investment accounts at issue contained a substantial separate property
component, Peter had the burden to prove, by a preponderance of the evidence,
that the disputed portions of the accounts could be traced to Peter’s separate
property. In attempting to meet this burden, Peter engaged the services of Jared
Walsh, a licensed CPA.
{¶12} Walsh testified that he used the same methodology to analyze each
of the original six accounts in contention at the divorce proceedings—including
the two disputed on appeal. Walsh gathered data from his interviews with Peter.
Peter also provided Walsh with a substantial amount of documentation associated
with each of the accounts which included the statements issued from the banks or
entities managing the funds. With respect to one of the accounts in question, Peter
also kept a personal ledger. Peter testified that he used this ledger to record each
transaction that resulted in the sale or acquisition of a new security. From these
resources, Walsh reduced the voluminous amount of documentation into a detailed
report. As part of his report, Walsh prepared spreadsheets that tracked the level of
growth and decline of the accounts from the time of the parties’ marriage in 1991
to the end of 2008 around the time this action was filed.
{¶13} Walsh’s spreadsheets began with the pre-marital balance
documented in 1991. In most cases, each statement generated from the managing
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bank or entity during the duration of marriage was included in the spreadsheets
associated with a particular account. Walsh used the information in the statements
to apportion a marital and a non-marital component of the funds held in a
particular account. Walsh tracked a running balance of the marital and the non-
marital components of the account which he allocated into two distinct columns
contained in his report labeled “marital balance” and “non-marital balance.” If
there was a deposit made into the account during the marriage, it was considered
as part of the marital component of the account and added to the overall “marital
balance.” If Walsh could trace the origins of particular account funds to Peter’s
pre-marital property, the funds were added to the “non-marital balance.”
{¶14} Walsh also used these statements to calculate a rate of return. Walsh
testified that deposits as well as withdrawals on the accounts were included in the
rate of return. The rate of return was calculated according to the frequency of the
statements. Therefore, a rate of return would reflect the respective growth or
decline according to a monthly or quarterly interval—depending on what the
statement associated with that particular account stated. Once Walsh calculated
the rate of return for that statement period, he then apportioned the rate between
the marital and non-marital balances.
{¶15} As stated above, Walsh used this methodology to trace Peter’s
separate property in the two investment accounts at issue in this case: (1) X-Ray,
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Inc. pension rollover accounts and (2) the UBS account, formerly McDonald’s and
Company Securities account. According to the testimony at the divorce
proceedings, both of these accounts were funded with cash or cash equivalents.
X-Ray, Inc. Pension Rollover Accounts
{¶16} Peter testified that he began his career in Lima as a Radiologist in
1965. From that time until his retirement in 1999, Peter worked for X-Ray, Inc., a
professional corporation comprised of physicians employed in the field of
Radiology. In 1978, thirteen years before the parties’ married, Peter began
participating in a pension fund established by X-Ray, Inc. The fund permitted the
participants to contribute up to $30,000 annually into the account. Peter testified
that from 1978 until 1996, he contributed $30,000 a year into the pension fund.
The pension fund was managed by a secession of banks throughout the years. On
July 31, 1999, Peter rolled over the pension fund into two IRAs managed by Bank
One and eventually Bank One’s successor JP Morgan.
{¶17} With respect to the X-Ray, Inc. account, Peter provided Walsh with
all but five of the monthly statements generated by the managing banks from
November 1, 1991 to December 31, 2008. The statements reflected that Peter
made an annual contribution of $30,000 in the years of 1992, 1993, 1994, 1995,
and 1996. The statements indicated that no further deposits were made into the X-
Ray, Inc. pension fund during the marriage. Walsh also testified that the
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statements reflected that Peter began making withdrawals in 1999 when Peter
attained the age of seventy and a half—the age of which Peter was required by law
to begin making withdrawals on the retirement account. Even though these
withdrawals were consumed during the marriage, Walsh included them in the
periodic rate of return which was applied to both the marital and non-marital
balances.
{¶18} Walsh tracked the pension fund to a pre-marital balance of
$955,425.81 based on a statement dated November 1, 1991. At the end of 2008,
the X-Ray, Inc. account contained a total amount of $1,105,707.50. Using the
monthly statement balance and the periodic rate of return reflected in each
statement, Walsh determined that the X-Ray, Inc. account had a marital
component of $127,894.91 (approximately 11.57%) and a non-marital component
of $977,812.59 (approximately 88.43%).
{¶19} Based on the evidence presented at the final divorce hearing, the trial
court concluded that Peter met his burden in proving, by a preponderance of the
evidence, that a substantial portion of the X-Ray, Inc. account could be traced to
his separately held property. However, the trial court found that Peter’s testimony
established that he made a $30,000 contribution to the account every year from
1978 until 1996. Therefore, the evidence supported a finding that a $30,000
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contribution was made in 1991 even though there was no statement submitted into
evidence from that year documenting such a contribution.
{¶20} The trial court apportioned the 1991 $30,000 contribution between
the marital and non-marital balances according to the parties’ marriage date of
March 31, 1991. Thus, three-quarters ($22,500) of the contribution was added to
the marital balance and the remaining quarter ($7,500) was added to the non-
marital balance. Applying the applicable rate of return for the 1991 contribution,
the trial court found that an additional $38,334 should be included in the overall
marital balance of the X-Ray, Inc. account. The court then modified Walsh’s
conclusions accordingly and found that 13.7% of the X-Ray, Inc. account was
marital and 86.3% was non-marital.
{¶21} The trial court then ordered that the X-Ray, Inc. account be divided
among the parties in those percentages as of June 22, 2009—the date of the
parties’ divorce. Peter received the non-marital percentage plus half of the marital
percentage for a total of 93.15%. Susan received half of the marital percentage for
a total of 6.85%.
UBS Account
{¶22} The testimony at the final hearing revealed that Peter held a stock
and bond brokerage account with McDonald and Company Securities. This
account was eventually transferred to be under the management of UBS. Over the
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course of the years, Peter purchased and sold many stocks and bonds. Peter kept a
contemporaneous ledger (“log book”) in which he recorded the securities that he
purchased and sold. In the log book, Peter recorded the purchase price per unit,
the money he received upon a sale, the brokerage commission, and the capital
gains accrued for tax purposes. Peter’s handwritten log book begins in 1969 and
tracks the transfer of specific securities until the account is transferred to UBS
sometime between 2006 and 2008. During the parties’ marriage, Peter deposited
some of these securities into the UBS account. Peter maintained that some of
these deposits could be traced to his separate property purchased before the
marriage and offered Walsh’s testimony to prove this point.
{¶23} Walsh testified that he used Peter’s log book, brokerage slips and
UBS/McDonald account statements to determine if Peter acquired a particular
security held in the account prior to the parties’ marriage. Peter provided Walsh
with every statement for the account generated by the managing entity during the
parties’ eighteen-year marriage. Walsh considered all cash deposits made into the
account during the marriage as marital deposits which he added to the “marital
balance.” Walsh further explained his method of tracing for the particular
transfers of securities contained in the UBS account in the following manner:
I started with the statement, if it showed a transfer in of
securities, I would then refer back to the securities log book. If
the transfer in of securities was able to be traced to the securities
log book it may have been . . .it may have been in the log book as
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purchased before March of [19]91, or it may have been in the log
book as purchased after March of [19]91. If it was before and I
could trace it to the log book I would include that deposit in the
non-marital column. It if was after and I could trace it to the log
book after March of [19]91, I would put it in the marital column.
If it wasn’t able to be found in the log book at all, I would put it
in the marital column.
(Hrg. Trans., June 22, 2006, at 91).
{¶24} Walsh testified that Peter also provided him with brokerage slips
reflecting the deposit of a particular security into the UBS account. Based on the
brokerage slips, Peter’s log book and the UBS account statements, Walsh testified
that he was able to identify whether a specific security held in the UBS brokerage
account was Peter’s pre-marital property that was later deposited into the UBS
account during the marriage. As Walsh stated above, the only contributions to the
account that he considered to be non-marital were the ones that he could trace to a
pre-marital purchase date using these resources. Walsh included all other deposits
into the account during the marriage as part of the marital balance.
{¶25} Walsh further testified that he used the same method in calculating
the periodic rate of return as he did for the other accounts. In this instance, Walsh
used the quarterly account statements issued by the managing entity to determine
the periodic rate of return. Further, any withdrawals made on the account during
the marriage were included in the periodic rate of return. Walsh applied the
periodic rate of return to both the marital and non-marital balances.
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{¶26} Walsh established that the UBS account had a pre-marital balance of
$58,518.03 based on a statement dated March 28, 1991—three days before the
parties married. As of December 31, 2008, the account had a balance of
$613,032.14. Based on the methodology previously described, Walsh traced
several substantial deposits into the UBS account to property Peter acquired prior
to the parties’ marriage. Walsh concluded that the UBS account contained a
marital component of 53.17% and a non-marital component of 46.83%.
{¶27} The trial court found that Peter had also met his burden in tracing his
separate property in the UBS account and accepted Walsh’s conclusions as the
percentages allocating marital and separate components of the UBS account. The
trial court then ordered Susan to receive one-half of the marital component
(26.83%) and ordered Peter to receiving the remaining portion of the account
(73.17%) as of June 22, 2009—the date of the parties’ divorce.
Appeal
{¶28} Susan now claims on appeal that the trial court erred when it found
that Peter met his burden in proving that a portion of these accounts remained
Peter’s separate property. Specifically, Susan contends that Peter failed to
sufficiently trace his separate property held in these accounts. Susan also
maintains that Peter failed to prove that the appreciation and income generated
from assets in these accounts were caused by solely passive factors.
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{¶29} In making this claim, Susan directs our review to our prior case law.
In reviewing these cases, we note that the factual basis for the trial court’s ruling
in these decisions is readily distinguishable from the case at hand. Specifically, in
the cases cited by Susan, the party asserting that a particular asset remained
separate property provided either no evidence or incomplete evidence to support
the claim.1 However, the present case is not plagued with the same lack of an
evidentiary record as the cases Susan cites.
{¶30} On the contrary, Peter kept detailed records of the funds in these
accounts which established that these accounts existed prior to the parties’
marriage. Furthermore, from these statements both a pre-marital value and a value
at the time of the divorce proceedings could be ascertained. Based on Peter’s
meticulous record keeping, Walsh was able to quantify a precise portion of the
accounts as Peter’s separate property. These records gave Walsh the necessary
resources to calculate the percentage of the appreciation in the funds attributable to
both Peter’s separate property and the marital property contained in the accounts.
1
For example, in Schalk v. Schalk, 3rd Dist. No. 13-07-13, 2008-Ohio-829, we held that the trial court did
not err in finding that the appellant failed to meet his burden in establishing that shares of stock were his
separate property where there was evidence to show that the stock was acquired after the parties marriage.
Further, the appellant provided no documents to substantiate that the stock could be traced to his separate
property. The only evidence presented was the appellant’s own testimony which the trial court determined
that alone, without more, was not sufficient to support appellant’s contention that the stock was his separate
property. Likewise, Ward v. Ward, 3rd Dist. No. 01-03-63, 2004-Ohio-1390, we upheld the trial court’s
finding that the appellant failed to meet his burden in establishing that a savings account was his separate
property where the evidence showed that the balance of the account fluctuated throughout the marriage
reflecting ongoing marital transactions. Additionally, the appellant in that case provided no evidence nor
made any attempt at the proceedings to trace specific pre-marital deposits held in the account.
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{¶31} The record is supported by an ample amount of evidence provided
by Peter to prove that he could trace a significant portion of the X-Ray, Inc. and
UBS accounts to property that he acquired prior to his marriage to Susan.
Therefore, the evidentiary record in this case is greatly dissimilar from the cases
cited by Susan where little or no evidence was in the record to support the party’s
contention that a particular asset retained a separate property component.
{¶32} Susan also takes issue with the particular method of tracing
employed by Walsh in reaching his conclusions. Specifically, she maintains that
Walsh failed to trace the actual pre-marital asset throughout the parties’ marriage.
In support of this contention, Susan again directs our review to case law.
{¶33} In Sanor v. Sanor, 7th Dist. No. 2001 CO 37, 2002-Ohio-5248, the
Seventh District reversed the trial court’s ruling that the husband sufficiently
established that certain farm equipment was his separate property. The evidence
showed that the husband was given farm equipment as a gift and was, therefore,
his separate property. During the course of the marriage, the husband traded-in
the equipment and applied the proceeds toward the purchase of new farm
equipment. However, marital funds were used to pay the balance of the purchase
price to buy the new equipment—clearly indicating that the proceeds of husband’s
separate property had been comingled with marital property. The appellate court
held that the husband did not establish that the new equipment was his separate
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property because the husband failed to provide any information indicating what
percentage of the proceeds from the sale/trade-in of his separate property were
contributed to the purchase of the new equipment.2
{¶34} The present case is readily distinguishable from the case law cited by
Susan. Here, the assets in the X-Ray, Inc. and UBS accounts were not equipment
that depreciated over time and were eventually replaced with new assets partially
purchased with marital funds. Rather, the assets in Peter’s accounts were cash or
cash equivalents and therefore easily quantifiable. Based on the extensive records
kept by Peter, Walsh was able to calculate the percentages of money held in the X-
Ray, Inc. and UBS accounts which constituted Peter’s separate property held prior
to the parties’ marriage.
{¶35} Susan also argues that Peter failed to sufficiently trace the
appreciation in the X-Ray, Inc. and the UBS accounts to his separate property.
Specifically, Susan maintains that Walsh’s method of calculating the rate of return
was flawed. Susan alleges that Walsh improperly used the “average rate of return”
instead of the “actual rate of return.” Susan cites Mays v. Mays, 2nd Dist. No.
2
Susan also cites Balogh v. Balogh (1995), 11th Dist. No. 94-P-0099 in support of her claim that Walsh did
not sufficiently trace the actual pre-marital assets in the X-Ray, Inc. and UBS accounts. In Balogh, the
husband established that he owned three trucks and one trailer prior to the marriage which he used in his
trucking business. After the parties married, the wife quit her job and began working for her husband’s
trucking business. During the course of the Baloghs’ fifteen-year marriage, the trucks that were originally
the husband’s separate property had been traded-in and replaced with upgraded models which were also
partially purchased with marital funds. As in Sanor, the appellate court reversed the trial court’s ruling that
the husband met his burden in establishing the trucks and trailer were his separate property because
husband did not quantify what percentage of the proceeds from his separate property were contributed to
the purchase of the new trucks and trailer acquired during the marriage.
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2000-CA-54, 2001-Ohio-1450 as authority that Walsh used an impropriate rate of
return in his calculations.
{¶36} In Mays, the husband owned an IRA prior to the parties’ marriage.
Shortly after the parties married, the husband rolled over the IRA funds into an
investment account. As in the present case, the husband maintained that the pre-
marital value of the investment account and any passive income attributed to the
pre-marital amount remained his separate property. The husband hired a CPA
who concluded that a specific portion of the investment could be traced to the
husband’s separate property.
{¶37} The CPA testified that, despite having the actual rates of return
available to him, he used a ten-year “average rate of return” to calculate the
income growth of the account for ten out of the thirteen years the parties were
married. The CPA then used a one year rate of return with respect to each of the
three remaining years of the marriage. The Second District was particularly
concerned with the CPA’s method because he chose to use “hypothetical
numbers” instead of the actual numbers which were readily available to him in
reaching his conclusions. Mays, 2nd Dist. No. 2000-CA-54, *5, 2001-Ohio-1450.
The appellate court remanded the case to the trial court with instructions that the
actual rates of return be used to determine the passive income attributable to the
husband’s separate property.
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{¶38} Contrary to Susan’s assertion, Walsh’s method of calculating the
rate of return differs significantly from method used in the Mays case. As stated
above, Walsh testified that he used the statements issued from the managing bank
or entity associated with the accounts that were generated on either a monthly or
quarterly basis. Based on the actual numbers listed in the statements, Walsh
calculated the rate of return for the respective month or quarter reflected in the
statement. Unlike in the Mays case, there was no evidence before the court that
Walsh declined to use the actual numbers in favor of using hypothetical figures.
Therefore, we find no error in the trial court’s decision to accept Walsh’s
calculation of the rate of return as a valid method.
{¶39} Susan alternatively argues that Peter failed to prove that the
appreciation in the accounts constituted passive income and, therefore his separate
property, because he did not prove that the appreciation resulted from solely
passive factors. The statutory definition of separate property includes “[p]assive
income and appreciation acquired from separate property by one spouse during the
marriage.” R.C. 3105.171(A)(6)(a)(iii). Passive income is further defined as
“income acquired other than as a result of the labor, monetary, or in-kind
contribution of either spouse.” R.C. 3105.171(A)(4).
{¶40} On appeal, Susan insinuates that Peter actively monitored and
managed the accounts which resulted in an “active” appreciation of the funds held
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in the X-Ray, Inc. and the UBS accounts and, therefore, should be considered
marital property. After reviewing the record before us it is apparent that Peter
engaged in the following activities with regard to monitoring and managing the
funds in the accounts in question: Peter kept a contemporaneous log book of his
stocks and bonds; Peter periodically called his stock broker to discuss his
portfolio; and Peter read financial literature and watched television programs
focusing on financial matters.
{¶41} At the hearing on the divorce proceedings, Peter admitted that he
viewed investing as an “interest” but further stated in response to questioning by
Susan’s counsel that it was not a “second career.” Moreover, the record provides
no evidence that Peter aggressively “played the market” and took extreme risks
which resulted in a roller coaster of losses and returns.3 Rather, the record
revealed that Peter used a simple, conservative approach maintaining the level of
growth of the investments that he had spent his career building and which now
3
See Hanna v. Hanna, 6th Dist. No.L-01-1446, 2003-Ohio-1401 (The record revealed evidence that the
husband actively “played” the stock market causing extreme fluctuations of the balance in the disputed
brokerage account. The court held that the husband’s active management of the account constituted
“labor” within the meaning of R.C. 31015.171(A)(3)(a)(iii) because the husband routinely made aggressive
purchases and sales of stocks which resulted in great losses that depreciated the account balance to below
the pre-marital balance. Husband then reinvested marital funds to raise the account to the divorce balance
which was substantially higher than the pre-marital balance. Based on the evidence, the court ruled the
appreciation was marital property.). See, also, Bryant v. Bryant (1999), 5th Dist. No. 97CA8, 98CA1,
(holding that the disputed accounts did not represent passive income and appreciation, but rather, were the
result of the investment of marital funds and labor expended on those accounts during the marriage. As in
Hanna, the evidence showed that the account balance fell below the pre-marital balance as a result of the
parties’ transaction activity on the account during the marriage. The balance was subsequently raised with
the reinvestment of marital funds and active management of the account).
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provided him with a means of support during his retirement. Consequently, the
trial court was not persuaded by Susan’s assertion that Peter’s activities with
regard to these investment accounts amounted to a labor, monetary, or in-kind
contribution resulting “active” income. Accordingly, we also find no error in the
trial court’s conclusion that the appreciation attributable to Peter’s pre-marital
property was passive income and remained Peter’s separate property.
{¶42} Based on the foregoing, we find that there was ample competent,
credible evidence before the trial court to conclude that Peter met his burden in
proving, by the preponderance of the evidence, that a significant portion of the X-
Ray, Inc. and UBS accounts could be traced to his separate property. Therefore,
we find no error in the trial court’s decision that Peter sufficiently traced a
quantifiable component of these accounts to his separate property.
{¶43} For all of these reasons, the assignments of error overruled. The
judgment of the Allen County Court of Common Pleas is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/jlr
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