COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71765 MARIA JOSE-PUJANA GRGUREVIC JOURNAL ENTRY AND OPINION Plaintiff-appellee vs. MIROSLAV GRGUREVIC, M.D. Defendant-appellant DATE OF ANNOUNCEMENT NOVEMBER 20, 1997 OF DECISION CHARACTER OF PROCEEDINGS Civil appeal from Court of Common Pleas Case No. D-221985 JUDGMENT AFFIRMED DATE OF JOURNALIZATION APPEARANCES: For plaintiff-appellee: For defendant-appellant: JOYCE E. BARRETT, ESQ. STANLEY MORGANSTERN, ESQ. 800 Standard Building MICHAEL A. PARTLOW, ESQ. 1370 Ontario Street Morganstern, MacAdams & DeVito Cleveland, OH 44113 400 Burgess Bldg. 1406 W. 6th Street Cleveland, OH 44113 LARRY I. MADORSKY, ESQ. 2102 Richmond Road - ii - 39 LaPlace Mall Beachwood, OH 44122 - 2 - PATTON, J. This is an appeal and a cross-appeal from a divorce granted by the domestic relations court. Defendant-husband Miroslav Grgurevic complains the court erred by (1) failing to find certain overseas bank accounts marital property and (2) undervaluing two houses owned by the parties. Plaintiff-wife Maria Jose Pujana-Grgurevic cross-appeals, complaining the court erred by finding one of those properties to be marital property. The facts relevant to the issues raised on appeal show the parties married in 1977 and moved to the United States from Spain 1982. They had two children. Both parties are physicians: husband ultimately obtained employment in the Cleveland area; wife stayed home and reared the children. The parties subsequently resolved questions of custody and support for those children and those issues are not raised on appeal. The parties stipulated to the value of certain marital assets, but could not agree on the value of houses located in the city of Westlake and the city of Los Angeles, California, and the disposition of certain overseas bank accounts. Wife maintained the Westlake property had been purchased with money gifted to her by her mother, so she was entitled to the appreciation of those funds. She further maintained the $3.26 million in Swiss and Spanish banks were either inheritances or gifts from her parents. Husband maintained the money in the overseas accounts had been gifted to both parties, and submitted proof showing his name on some of those - 3 - accounts. He further argued the money used as down payments on both properties were likewise gifts to both parties. The court appointed a special master to make recommendations concerning these issues. The special master found wife's mother gave both parties the $60,000 they used as a down payment on the Westlake property. The special master valued that property at $357,000, adopting the valuation offered by wife's expert. In doing so, the special master specifically rejected the valuation offered by husband's expert, finding that expert based his valuation on an inappropriate comparable. The special master also adopted wife's valuation of the Los Angeles property as $171,900, finding it more persuasive than that offered by husband. The special master found the overseas accounts belonged entirely to wife. In making this finding, the special master acknowledged that husband's name appeared on some of those accounts for a period of time, but found wife either received the funds prior to marriage (by inheritance after the death of her father) or through gifts from her mother. Both parties filed objections to the special master's recommendations: husband contested the valuation of the Westlake and Los Angeles properties and the disposition of the overseas accounts; wife complained that the $60,000 used as a down payment on the Westlake property had been a gift to her. The court overruled objections by both parties and this appeal followed. I - 4 - The first assignment of error is the trial court's findings that the Swiss and Spanish bank accounts were non-marital property is against the manifest weight of the evidence. Husband complains the court permitted wife to thwart his attempts at discovery, thus permitting her to rely exclusively on her own self-serving statements that the money in the foreign accounts belonged to her prior to the marriage. He concedes his evidence may not have been perfect, but claims that putting aside wife's testimony, the only evidence available to the court was wife's own self-serving testimony on the issue, and that testimony is unbelievable. The trial court has wide discretion in deciding how to divide marital property. Cherry v. Cherry (1981), 66 Ohio St.2d 348, paragraph two of the syllabus; Bisker v. Bisker (1994), 69 Ohio St.3d 608, 609. Marital property is generally defined in R.C. 3105.171(A)(3)(a) as property acquired by either or both spouses during the marriage. Separate property, as relevant to this appeal, is defined in R.C. 3105.171(A)(6)(a) as 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. Marital property does not include separate property, R.C. 3105.171(A)(3)(b), but 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). The party seeking to have a particular asset classified as separate property has the burden of proof, by a preponderance of the evidence, to - 5 - trace an asset to separate property. Peck v. Peck (1994), 96 Ohio App.3d 731, 734. There is no question the accounts derived entirely from gifts or inheritance husband earned a meager income during the first part of the marriage, admitting he did not earn more than roughly $14,000 in any year before 1989, when he began work as a medical doctor. His own contribution to the $3.26 million in overseas accounts would have been negligible under the circumstances. Wife gave compelling testimony that the money in the overseas bank accounts represented sums she either received as an inheritance of part of the family business that predated the marriage or as gifts from her mother. Husband did not counter this evidence other than to note that his name appeared on some of the foreign accounts and he used one of the accounts to fund investments. The special master acknowledged that evidence, but concluded that wife's interest in those funds was non-marital. Competent evidence supported that finding. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Moreover, husband's marital contributions did not significantly increase the value of wife's separate property. Under some circumstances, the court may apportion appreciation in value of non-marital property where one spouse's contributions were expended to improve and maintain that property. Worthington v. Worthington (1986), 21 Ohio St.3d 73, 76. The evidence, however, tended to show the opposite. Husband's poor investments adversely affected the value of wife's non-marital property, resulting in a - 6 - $200,000 loss in the commodities futures market. Under the circumstances, we cannot say the trial court abused its discretion by adopting the special master's recommendations on the division of marital property. Husband argues the trial court abused its discretion in finding the overseas accounts separate property because wife failed to carry her burden of proof. He claims she did not adequately document the accounts and consistently refused to respond to discovery requests, including her refusal to permit her accountant to appear for deposition. Prior to the hearing before the special master, husband filed a motion in limine seeking to exclude from evidence any document not timely produced pursuant to discovery requests. The special master did not rule on that motion. During wife's case-in-chief, her attorney questioned her about a series of checks that were used for a down payment on the marital home. Husband objected, saying those documents were among those he had been trying to obtain through discovery. The special master reserved ruling on the motion in limine, but permitted wife to refer to the document for purposes of refreshing her recollection. When wife concluded her case and sought to have the checks admitted into evidence, husband specifically stated he had no objection. The denial of a motion in limine does not preserve error for review a proper objection must be raised at trial to preserve the error. See State v. Brown (1988), 38 Ohio St.3d 305, paragraph three of the syllabus. Although husband objected to the checks at - 7 - trial, he did not renew that objection in light of the special master's decision to reserve ruling on the motion in limine. By not renewing his objection to the admission of the checks, husband waived the right to assert that argument on appeal when he failed to object to the admission of those exhibits at the close of wife's case. Husband likewise waived the right to raise any argument concerning wife's attorney's failure to attend deposition. The court scheduled a hearing on husband's motion to hold the accountant in contempt, but husband failed to appear at the hearing. The magistrate dismissed the motion without prejudice for want of prosecution. Husband did not renew the motion. The first assignment of error is overruled. II The second assignment of error relates to the trial court's valuation of the Westlake property. Husband claims the trial court erred by adopting wife's proposed valuation of $357,000 for the Westlake property because she only submitted an appraisal report, without placing the appraiser himself on the witness stand for cross-examination. He argues his appraisal of $535,000 more accurately reflects the true value of the property. We reject any argument that the trial court erred by permitting wife's appraisal into evidence without first requiring her appraiser to lay a foundation for the report. Husband waived any objection to his inability to cross-examine the appraiser when - 8 - he told the trial court he had no objection to the admission of the appraisal report. See Evid.R. 103(A)(1). As to the substantive issue raised in this assignment, we find the trial court did not abuse its discretion by approving the special master's recommendation to value the property at $357,000. The special master specifically rejected the appraisal offered by husband because the appraiser based it on an inappropriate comparable. Husband's appraiser referenced units outside the subdivision in which the marital residence was located because he believed those units contained features that compared to improvements made to the house. When asked if there were comparable houses within the subdivision, husband's appraiser conceded there were houses in the range of $357,000 to $425,000. Wife's appraiser apparently referenced the same house in the same subdivision, because she listed a comparable house that sold for $357,000. Because the appraisers agreed the only comparable house in the same development was valued at $357,000, we find competent, credible evidence supported the special master's findings. The second assignment of error is overruled. III The third assignment of error raises an issue similar to that raised in the second assignment of error the trial court erred in adopting wife's valuation of the Los Angeles property at $171,900. Husband argues this figure simply reflects a tax valuation and is not indicative of the fair market value. - 9 - Both parties submitted different appraisals. Wife relied upon the current assessed tax value of the property, and supported it by comparison to the assessed tax values of a number of properties in the same neighborhood. The assessed tax value of the property compared closely to houses of similar size and location. Husband submitted a short letter from a realty company that gave a much lower market value for the house, citing needed repairs that lowered the market value. Husband's appraisal did not reference any comparable houses in the neighborhood. The letter mentioned that a package of market analysis had been enclosed, but nothing more was submitted into evidence. As with the previous assignment of error, we find competent, credible evidence supports the special master's decision to accept wife's valuation. The special master clearly found wife's valuation more persuasive, and nothing in the record suggests that finding was in error. The third assignment of error is overruled. IV The cross-assignment of error complains that the trial court erred by including the equity in the Westlake property as marital property. Wife argues the special master's finding that the $60,000 down payment on the home came as a gift from wife's mother to the parties is not supported by the evidence. She maintains she should be given credit for the entire amount of the down payment, along with the appreciation of that down payment. A gift, made after the date of marriage, will be classified as the separate property of a spouse only if it is proven by clear and - 10 - convincing evidence that the corpus of the gift had been intended only for that spouse. See R.C. 3105.171(A)(6)(a)(vii). Clear and convincing evidence is proof beyond a preponderance of the evidence, but less than a reasonable doubt it should produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. See Landsdowne v. Beacon Journal Pub. Co. (1987), 32 Ohio St.3d 176, 180, citing Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. Wife failed to show by clear and convincing evidence that her mother intended to gift the down payment money to wife alone. Her own testimony showed her mother gave her the money so she and her children could have a house. When asked if husband would be living in the house, wife replied, Well, I had hoped that things would come to terms. The special master could reasonably find wife's mother knew husband would move into the house, thus concluding that wife's testimony fell short of being clear and convincing evidence sufficient to establish that the down payment had been intended solely as a gift to wife. See Pettry v. Pettry (1991), 81 Ohio App.3d 30, 34-35. The cross-assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant her 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 Court of Common Pleas 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. BLACKMON, P.J. DYKE, J. .