COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68140 : CHARLES J. CROFTCHECK : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION MARGARET M. CROFTCHECK, ET AL. : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 29, 1996 CHARACTER OF PROCEEDING: Civil appeal from the Domestic Relations Division of the Common Pleas Court Case No. D-214785 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOYCE E. BARRETT, ESQ. JOSEPH G. STAFFORD, ESQ. JANET R. EVANGELISTA, ESQ. JOHN J. DYER, ESQ. 800 Standard Building 380 Lakeside Place 1370 Ontario Street 323 Lakeside Avenue W. Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Appellant, Margaret Croftcheck, appeals from the judgment of the Cuyahoga County Common Pleas Court, Domestic Relations Division, which granted her a divorce from appellee, Charles Croftcheck, and divided the marital assets between them. On appeal, appellant argues that the trial court erred by 1) dividing property which was nonmarital or separate property, 2) failing to award spousal support and calculate past temporary support, 3) failing to divide the proceeds of an escrow account properly, 4) failing to evaluate certain items of marital property, and 5) ordering the sale of certain items of marital property. The parties agree that the trial court is afforded substantial deference over these decisions. Because it cannot be said that the trial court abused it discretion, the judgment of the domestic relations court is affirmed. The relevant facts follow. The parties were married on September 26, 1968. This was a second marriage for appellant, who is now 74. Her present source of income is her monthly social security check of $346.00. She has no retirement benefits. Appellee is 71 years old and this was his first marriage. He worked at Western Auto until 1971, after which he earned income as a "bookmaker" and in various construction jobs. He receives $712.00 a month from social security. - 3 - Appellee filed for divorce on November 25, 1991. On November 9, 1994, after a lengthy trial, the court granted the parties a divorce and divided the marital assets. At issue in this appeal is the trial court's disposition of the following: 1) the residence at 5204 Barkwill, Cleveland, 2) the rental property at 6641 Ovington, 3) the proceeds from the sale of the residence at 5200 Barkwill, 4) money from an escrow account and 5) a number of Elvis decanters. Appellant also contests the trial court's decisions not to award spousal support and not to calculate any temporary support arrearage. The first two assignments challenge the trial court's decisions regarding the three parcels of real estate and state as follows: THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY FINDING THAT THE REAL PROPERTY AT 6641 OVINGTON AVENUE AND 5204 BARKWILL IS MARITAL PROPERTY. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DIVISION OF THE PROCEEDS FROM THE SALE OF RESIDENCE LOCATED AT 5200 BARKWILL, CLEVELAND, OHIO. The trial court has broad discretion in arriving at an equitable property division. Cherry v. Cherry (1981), 66 Ohio St.2d 399. A trial court's judgment regarding property division will not be reversed, unless, under the totality of the circumstances, the trial court abused its discretion. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128. "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 - 4 - unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Generally, all property acquired during the marriage is presumed to be marital property. The party who seeks to have property declared nonmarital has the burden of proof to rebut this presumption. Breitenstine v. Breitenstine (Dec. 12, 1990), Summit App. No. 5495, unreported at 4; 1 Baldwin's Ohio Domestic Relations Law (1987), Section 27.03(B)(1); Kampf v. Kampf (May 3, 1991), Ashtabula App. No. 90-A-1503, unreported. This burden applies to transmuted property, that is, nonmarital property changed to marital property by deed or gift from one party to another. Baldwin's Ohio Domestic Relations Law, supra, T.25.02, at 256. A. Property at 5204 Barkwill. Appellant received the property located at 5204 Barkwill from a prior divorce in 1966. At the time of the parties' marriage, the deed listed appellant as the owner, and most of the mortgage was paid off. In less than a year after being married, the parties paid off the last portion of the mortgage. Marital funds were used to make the last payments on this house, which was the couple's residence. On June 20, 1970, appellant transferred title from herself as sole owner to appellee and herself as joint owners. Finding that the parties treated this house as joint property, the domestic relations court stated as follows: This Court finds that the behavior of the parties over their 25 year marriage in caring for the - 5 - properties, coupled with the facial evidence of the deeds, indicates in clear and convincing fashion Mrs. Croftcheck's intent was to gift Mr. Croftcheck an interest in both properties. While her intent at the time of trial may be different, the intent that the Court must measure is the intent at the time of the transaction. (Judgment entry at 4.) Appellant argued at oral argument and stated in her brief that "Ohio Revised Code Section 3105.171(H) states that title is not relevant in determining whether property is marital or separate." (Appellant's brief at 17.) This is a misstatement of the law. Nothing in R.C. 3105.171(H) states that title is irrelevant when determining whether property is marital 1 property. While not determinative, title is still "an equitable consideration to be included in property characterization." Kampf, supra, at 5. Generally, "the fact that certain property was brought to the marriage by one party is not necessarily determinative of the disposition of that property. *** Nonmarital property may lose its nonmarital character when it is commingled with or transmuted into marital property." King v. King (1992), 78 Ohio App.3d 599, at 604. (Citations omitted.) In Paluch v. Paluch (Dec. 20, 1995), Summit App. No. 17118, unreported, the court held that a home purchased by the husband prior to marriage was transmuted into marital property because, inter alia, (1) the husband and 1 R.C. 3105.171(H) states as follows: (H) Except as otherwise provided in this section, the holding of title to property by one spouse indi- vidually or by both spouses in a form of co-ownership does not determine whether the property is marital property or separate property. - 6 - wife lived over ten years in the home and (2) the parties made repairs to the house. Moreover, the act of transferring title into both parties' names can evidence an intent to treat the property as marital property. See, Krishner v. Krishner (1992), 82 Ohio App.3d 159. In the case at bar, it cannot be said that the trial court abused its discretion by finding the property at 5204 Barkwill to be marital property. By deed, appellant granted appellee a one- half interest in the property. Appellant testified that appellee did various repairs to the Barkwill residence including a new roof, new drywall, and new windows. (Tr. 69.) Appellee was aided by his nephews in some of these projects. Moreover, the parties lived together in this house for almost twenty years. Accordingly, it was not an abuse of discretion to find the residence at 5204 Barkwill to be marital property. B. Property at 6641 Ovington. Appellant argues that the property located at 6641 Ovington, Cleveland, should be considered separate property because it was purchased with money she received from an inheritance prior to the marriage. This argument lacks merit. The property was purchased during the marriage, in 1972, placed in both of the parties' names, and rented out. Again, appellant admitted that appellee and his nephews performed repairs on the property. The rent appellant collected was placed in the parties' joint account. Accordingly, the trial court did not abuse its - 7 - discretion in finding that the Ovington property was marital property. C. Proceeds from 5200 Barkwill. In the second assignment, appellant argues that the trial court erred in its division of the proceeds from the sale of the property located at 5200 Barkwill. When this property was purchased in 1985, the owners on the deed were identified as appellee and his nephew. The evidence conflicts as to how much money appellee contributed to this purchase. Appellee repeatedly contended that he did not contribute any money to the purchase of this residence, that he had no interest in the property, and that he received no proceeds from the sale, but he acknowledged he had worked on the house. He testified that both names were placed on the deed because both the couple and his nephew intended to contribute half of the $5,000 purchase price. However, the deal did not work out this way, appellee said; neither he nor his wife contributed any money toward the purchase of this home even though the deed listed him in addition to the nephew as owners. The nephew corroborated these details concerning the house. (Tr. 931-948.) Appellant alleges, on the other hand, that appellee sold some of their jointly owned Elvis decanters to fund the purchase of this home with his nephew. Appellee expressly denied the allegation that some decanters were sold to pay for this property. (Tr. 435.) - 8 - Finding that the sale of the house resulted in a gain which was marital property, the lower court explained as follows: Likewise, the Court finds that there was a gain to Mr. Croftcheck on the sale of 5200 Barkwill in the amount of $1,696.00 and that Mr. Croftcheck's testimony that the gain did not occur in that regard is not credible. Insofar as Mr. Croftcheck has refused to honestly account for that money, $848.00 should be credited to Mrs. Croftcheck from [the escrow account]. (Judgment entry at 5.) To resolve this dispute, the court apparently relied, in part, on the joint tax statement the couple filed, which showed the couple received a $1,696 gain on the sale. This gain the court attributed to the work he admitted performing on the house. The court also apparently accepted the nephew's corroboration that the nephew alone paid for the house and he alone received the proceeds. Because there was no evidence to support the wife's assertions to the contrary, the trial court did not abuse its discretion by finding the gain but not the proceeds from the sale of the 5200 Barkwill house to be marital property. Appellant's third and fourth assignments concern spousal support and state as follows: THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD APPELLANT SPOUSAL SUPPORT. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO CALCULATE TEMPORARY SUPPORT ARREARAGES. Spousal support is "based on need and the trial court must have latitude to examine all the evidence before it awards an amount that is reasonable and equitable to both parties." Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 95. A trial - 9 - court's decision regarding spousal support will not be reversed absent an abuse of discretion. Blakemore, supra. In the case at bar, the trial court did not abuse its discretion in failing to award spousal support. The assets of these parties are both limited. Appellant was awarded the marital home and receives $346.00 a month in social security benefits. Appellee was awarded the rental property on Ovington. The trial court found, however, that this property is in need of repairs and uninhabited and that appellee is "homeless and living with relatives." Appellant contends that appellee has the ability to pay spousal support because, as he testified, he can perform manual jobs. Appellee's ability to work, however, is questionable, in light of the fact that he is suffering from 2 cancer . Accordingly, the trial court did not err regarding spousal support. Appellant also alleges that appellee failed to pay temporary support for September, October, and November of 1993. The trial court, in the final divorce decree, did not reference this alleged arrearage. Appellant's argument lacks merit. "A party to a divorce proceeding loses the opportunity to receive a judgment based upon the adverse party's failure to make ordered temporary support 2 At oral argument, counsel for appellant questioned whether appellee was suffering from brain cancer; however, the trial court stated in its journal entry, "Plaintiff is in ill health, suffering from cancer." (Journal Entry at 7.) Without any evidence in the record to the contrary, we will accept this statement by the trial court. - 10 - payments if the arrearages are not reduced to a separate judgment before a final decree is entered in the proceeding and that final decree does not make reference to those arrearages." DiLaqua v. DiLacqua (1993), 88 Ohio App.3d 48, 56; Colom v. Colom (1979), 58 Ohio St.2d 245, syllabus. In the case at bar, appellant has not reduced this alleged arrearage to a judgment. Moreover, it is questionable whether there is in fact an arrearage because the record demonstrates the court ordered Social Security Administration to withhold $255 each month from appellee's social security income for temporary spousal support. Appellant's third and fourth assignments are overruled. Appellant's fifth assignment states as follows: THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOCATING THE PROCEEDS OF THE ESCROW ACCOUNT. The fourth assignment argues that the trial court abused its discretion by failing to allocate the proceeds of the escrow account which was formed to hold the rents from the Ovington property during the divorce. At the time of trial, this account contained $3,973.00. The trial court made the following awards: $1,200 from this account was reimbursed to appellant for repairs she paid for from her separate property, $848 was then awarded to appellant to represent one-half of the gain from the sale of the 5200 Barkwill residence. The remaining portion of the escrow account was awarded to appellee. Because the escrow money was marital property, the remaining portion could have been divided equally. However, property division has only to be equitable, not equal. Cherry, supra. Additionally, an appellate court is - 11 - not required to conduct an item by item review of property division: it must only assess whether, upon review of the entire award, the trial court abused its discretion in dividing the property. Briganti v. Briganti (1989), 9 Ohio St.3d 220. After viewing all the evidence and considering whether the award was equitable in the light of the entire award, we hold it was within the trial court's discretion to award the remaining portion of the escrow account to appellee. Appellant's sixth assignment states as follows: THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO VALUE THE MARITAL PROPERTY. In this assignment, appellant argues that the trial court committed reversible error by failing to value certain items of marital property, that is, two Elvis decanters, two life insurance polices, and various tools and guns. This assignment ignores the findings of the trial court. The court ordered the Elvis decanters to be sold, thus assuring their fair market value. The court also found that "there is minimal cash value to the two (2) Colonial Penn life insurance policies, and that each party should retain their [sic] own policy." Finally, the lower court reasonably found that the tools and guns were the separate property of appellee. The seventh and final assignment, which contests the trial court's order that the Elvis decanters be sold, states as follows: THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE SALE OF ANTIQUE WHISKEY DECANTERS. - 12 - This assignment is meritless. Regarding division of property, a trial court has broad equitable powers. Cherry, supra. The court apparently felt that this was the best way to determine the true value of the decanters. If the parties were adamant about not selling the decanters they could have agreed to divide the decanters between themselves. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Domestic Relations Division of the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and .