COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70317 KATHERINE ELIZABETH WYUM : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RONALD ELLSWORTH WYUM, ET AL. : : : Defendant-Appellants: : DATE OF ANNOUNCEMENT OF DECISION: MARCH 6, 1997 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division Case No. D-236525 JUDGMENT: MODIFIED AND, AS MODIFIED, AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: DOUGLAS M. BRILL Spike & Meckler 1551 West River Road North Elyria, Ohio 44035-2713 For Defendant-Appellants: STANLEY MORGANSTERN MICHAEL A. PARTLOW Morganstern, MacAdams & Devito Co., L.P.A. Burgess Building - Suite 400 1406 West Sixth Street Cleveland, ohio 44113 - 2 - O'DONNELL, J.: Ronald E. Wyum, appeals from a February 7, 1996 judgment of the Domestic Relations Division of Common Pleas Court following a trial which granted a divorce to the parties and dissolved the marriage between himself and his wife, Katherine Wyum. Ronald Wyum, a fifty-one year old male, married Katherine Wyum, now thirty-seven years of age, on July 4, 1988, and lived with her in the marital home located at 28300 Hilliard Boulevard in Westlake, Ohio, until October, 1994, when for the final time she moved out of the marital home. At that time, she withdrew $23,348 from a marital savings account and filed for divorce. No reconciliation efforts occurred after this separation. The record further reflects no children were born as a result of this marriage. On February 7, 1996, after a four-day trial, the court journalized its decree of divorce which contained a property settlement and a support order. On appeal, Ronald Wyum has assigned six errors for our review. The first assignment of error states: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT, BY ESTABLISHING A TERMINATION DATE FOR THE MARRIAGE OF DECEMBER, 1995. - 3 - Appellant contends that the trial court erred when it utilized the December 1995 trial date as the termination of the marriage and valued marital assets as of that date instead of selecting the de facto marital termination in October, 1994, when Katherine moved out of the marital home. Appellee, on the other hand, urges that the trial court acted in conformity with R.C. 3105.171(A)(2) and valued marital property as of the date of trial. The issue, then, presented for our consideration concerns whether the trial court erred or abused its discretion in selecting the December 1995 trial date as the valuation date for marital assets thereby rejecting the alleged de facto termination in October, 1994. We begin by reviewing R.C. 3105.171(A)(2) which defines the time period described as, "during the marriage" in the following manner: (a) Except as provided in division (A)(2)(b) of this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce ***; (b) If the court determines that the use of *** the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property. ***. (Emphasis added.) We further recognize that in Gullia v. Gullia (1994), 93 Ohio App.3d 653, our court determined an abuse of discretion where the parties separated in January, 1984, filed for divorce in 1987, and the court issued its divorce decree on July 20, - 4 - 1990. The parties in that case had separate residences, separate business activities, used separate bank accounts and neither attempted reconciliation after the 1984 separation. We stated there that The determination as to when to apply a valuation date other than the actual date of divorce is within the discretion of the trial court and cannot be disturbed on appeal absent a demonstration of an abuse of discretion. In this case, based on a period of fourteen months from separation to journalization, despite the circumstances of this marriage which involved prior periods of separation and recon- ciliation, we conclude the trial court did not abuse its discretion in selecting the trial date as the termination date for this marriage. Accordingly, this assignment of error is not well taken. Appellant's second assignment of error states: II. THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY DETERMINING THAT THE CORVETTE LEASED FOR THE APPELLANT BY HIS EMPLOYER WAS A MARITAL ASSET. Appellant complains that when the court divided marital assets it unfairly considered the net value of the Corvette motor vehicle leased for him by his employer. Appellee urges that the court properly included this vehicle in its division of marital property because appellant had an - 5 - option to purchase the $19,000 vehicle at the expiration of the lease in 1996 for one month's lease payment of $1,183. The issue presented for review concerns whether the trial court abused its discretion when it considered the value of the leased vehicle as marital property. R.C. 3105.171(A)(3)(a) states: "Marital property" means, subject to division (A)(3)(b) of this section, all of the following: *** (ii) All interest that either or both of the spouses currently has in any real or personal property ***. A trial court must have broad discretion to do what is equitable upon the facts and circumstances of each case. See Cherry v. Cherry (1981), 66 Ohio St.2d 348; Martin v. Martin (1985), 18 Ohio St.3d 292. Here, the court determined that appellant received a $900 per month employee benefit in connection with lease of the Corvette together with an option to purchase that vehicle for a single month's lease payment. Under these circumstances, we cannot conclude the court abused its discretion when it included this benefit in its division of assets. Accordingly, this assignment of error is overruled. III. THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY DETERMINING THAT NONE OF THE APPELLANT'S PRE-MARITAL ASSETS COULD BE TRACED TO AN EXISTING ASSET AND DENYING THE APPELLANT'S - 6 - REQUEST THAT THESE EXISTING ASSETS BE TREATED AS SEPARATE PROPERTY. Appellant urges that he properly traced premarital assets to existing marital property and that the trial court erred by ruling that nonmarital assets had been commingled and could not be traced. Appellee urges the trial court correctly concluded that no presently existing assets could be traced to any premarital separate property. The issue here then concerns whether the trial court correctly concluded that the evidence failed to establish the appellant's claim for separate property. In this regard, we note that the court in Peck v. Peck (1994), 96 Ohio App.3d 731, stated in its headnote: 1. In dividing property in divorce proceedings, trial curt is required to classify assets as marital or nonmarital and then award each spouse his or her separate, nonmarital property. R.C. Sec. 3105.171(B), D). 2. Trial court's characterization of property as separate or marital will not be reversed on appeal absent an abuse of discretion. * * * 4. Party seeking to have a particular asset classified as separate property, rather than marital property, has the burden of proof, by a preponderance of the evidence, to trace asset to separate property. Further, we note and all parties agree in this case that R.C. 3105.171(A)(6)(b) provides that commingling of separate property with any other property does not destroy its identity as separate property except when it is not traceable. - 7 - In this case, the record reflects the parties stipulated appellant had $28,766 in several accounts at the outset of the marriage. Appellant attempted at trial to evidence his claim to this cash; to a $6,710 cost goal; to $1,397 incurred as business expenses; to a currency adjustment for tax equalization in connection with overseas employment; to certain prepaid expenses; to a foreign tax credit; to stock options relating to an $11,543 gift tax exclusion, to his 1994 tax liability; and to an appraiser's fee, all by tracing these to existing marital assets. The trial court rejected this analysis completely. Upon our review of the judgment entry in this case, we note that the trial court considered the $23,348 which the appellee took at the time of separation as a marital asset and credited that asset to her. However, a review of the evidence offered by appellant reveals that the parties maintained a minimum cash balance of $21,176, the September 30, 1994 balance shown on page two of Defendant's Exhibit Q. Although the trial court concluded it could not trace the accounts because of commingling, R.C. 3105.171(A)(6)(b) states commingling does not destroy the identity of separate property. Hence, since $21,176 was identified as of September 30, 1994, the court erred in not awarding this sum to appellant as separate premarital property. Accordingly, this portion of the entry is modified. In all other respects, we affirm the judgment of the court regarding this - 8 - assignment of error. This assignment of error is therefore sustained in part and overruled in part. The fourth assignment of error reads as follows: IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, TO THE PREJUDICE OF THE APPELLANT, BY ORDERING A DIVISION OF MARITAL PROPERTY WHICH WAS NEITHER EQUAL NOR EQUITABLE. Appellant avers that the court abused its discretion in assigning him approximately $60,000 in speculative receivables as marital assets while assigning none to appellee and assigning her an interest in the marital home, cash, and personal property, all tangible assets. Appellee acknowledges that it may be an abuse of discretion to assign all of the high risk assets to one spouse, but urges that the bulk of the receivables results from loans made to a company owned by appellant and his son from a previous relationship. From our review of the record concerning these loans, appellant acknowledges ownership of Apartment Services, Inc. with his son and simply complains that the loans may never be repaid. Given the existing personal and corporate relationship concerning these receivables, we cannot conclude an abuse of discretion; nor do we regard the assignment of the loan made to appellee's brother as an abuse of discretion. This assignment of error is not well taken. - 9 - Appellant's fifth assignment of error states as follows: V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, TO THE PREJUDICE OF THE APPELLANT, BY ORDERING THE APPELLANT TO PAY THE SUM OF $1,500.00 TO THE APPELLEE AS SPOUSAL SUPPORT FOR A PERIOD OF TWO YEARS AND ORDERING THE APPELLANT TO PAY $10,000.00 OF THE APPELLEE'S COUNSEL FEES AND COSTS. Appellant complains that since appellee received all available cash and assets, the court abused its discretion in awarding spousal support and attorney fees, and erred in calculating the tax consequences of spousal payments. Appellee urges that due to income disparity, the court's award is reasonable. Since we cannot substitute our judgment for that of the trial court, our review is limited to a determination of whether or not the trial court abused its discretion in making these awards. Here, the trial court determined the appellees' total attorney fees are approximately $17,000, and ordered appellant to pay $10,000, which comprised approximately 50% of appellee's total legal fees and expert witness costs in this case. We conclude that no abuse of discretion occurred. This assignment of error is overruled. The sixth of error states: VI. - 10 - THE TRIAL COURT'S VALUATION OF THE PARTIES' LUMINA AND CAMRY MOTOR VEHICLES IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant complains that the valuations used by the court for the 1991 Chevrolet Lumina and the 1993 Toyota Camry motor vehicles are against the manifest weight of the evidence in that he claims he incurred $3,353 in tax consequences which the court failed to consider and that the $8,000 Camry valuation should have been updated to the December, 1995 valuation date selected by the trial court which would have increased its value as a result of additional lease payments which the court did not consider. Appellee urges the court acted reasonably in furtherance of a stipulation entered into between the parties identified as Joint Exhibit 1. Our review here is focused on whether the court's valuation of these vehicles is against the manifest weight of the evidence. The record in this case contains Joint Exhibit 1, a two- page handwritten list which contains inter alia: 14. Value of 1993 Camry is 8000 net equity 15. Value of 1991 Lumina is 9000 less tax consequences. The transcript reflects the following at Tr. 7-9: THE COURT: *** Number fourteen, the value of the 1993 Camry is $8,000, net equity. MR. BRILL: Correct. - 11 - THE COURT: The value of the 1991 Lumina is $9,000. MR. ZALTIC: Plus tax consequences. THE COURT: Wait. I don't understand that. The value of the 1993 Camry is $8,000 net equity. You are talking then about the value of the car, less the loan balance, right; is that correct? MR. BRILL: Yes. MR. ZALIC: Yes. THE COURT: The value of the Lumina is $9,000. Is that net equity? MR. ZALIC: Your Honor, we will advance an argument that we want to offset its fair market value by the amount of money that needs to be paid on this car, and/or that was paid, because this car was purchased through some scheme with the employer of the Defendant, and there were tax consequences to him as him exercising its option. THE COURT: And you will agree that the tax consequences are taken into account. MR. BRILL: Into consideration by the court, yes. THE COURT: Well, you have stipulated these tax consequences? MR. BRILL: Well, what we meant by that is if Mr. Wyum convinces the Court there are tax consequences, we are agreeing to allow the Court consider that. THE COURT: So, you are not stipulating that I have to take out the tax consequences? MR. BRILL: No, just that the vehicle is $9,000. And I understand Mr. -- - 12 - THE COURT: Well, why don't -- the stipulation will be that the Lumina is $9,000, and then I will hear evidence as to whether or not the tax consequences should be taken into account. MR. BRILL: That would be fine, Your Honor. In its valuation, the court relied upon the numerical values contained in the stipulation and on p. 7 of defendant's Exhibit O concerning the Camry, but apparently rejected evidence of the tax consequences concerning the Lumina which appellant summarized on p. 6 of defendant's Exhibit O, which the parties authorized at the time the stipulations were read into the record. In Myers v. Garson (1993), 66 Ohio St.3d 610, the court stated at 615: Thus, we reaffirm our prior reasoning in Seasons Cook, supra, and hold that an appellate court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court. ***. In this case, the stipulations contained in Joint Exhibit 1 and in defendant's Exhibit O regarding the Camry provided credible evidence supporting the judgment of the trial court. Therefore, we do not have a basis to conclude the judgment of the trial court was against the manifest weight of the evidence and, thus, this assignment of error is overruled. In accordance with this opinion, the judgment of the domestic relations court is modified to award judgment of $21,176 in favor of Ronald Wyum as separate premarital property. In all - 13 - other respects, the judgment of the domestic relations court is affirmed. So ordered. Judgment accordingly. - 14 - Appellee and appellant to share equally 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 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. NAHRA, P.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .