[Cite as Combs v. Combs,
2019-Ohio-3685.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
TODD A. COMBS :
:
Plaintiff-Appellant : Appellate Case No. 2019-CA-2
:
v. : Trial Court Case No. 2018-DR-63
:
AMY L. COMBS :
: (Appeal from Common Pleas Court –
Defendant-Appellee : Juvenile Division)
:
...........
OPINION
Rendered on the 13th day of September, 2019.
...........
TODD A. COMBS, 5900 Gilbert Road, North Lewisburg, Ohio 43060
Plaintiff-Appellant, Pro Se
RONALD C. TOMPKINS, Atty. Reg. No. 0030007, 121 South Main Street, Urbana, Ohio
43078
Attorney for Defendant-Appellee
.............
HALL, J.
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{¶ 1} Todd A. Combs appeals pro se from the trial court’s judgment entry granting
him a divorce from appellee Amy L. Combs on the grounds of incompatibility and resolving
all issues between them.
{¶ 2} The trial court’s divorce decree incorporated a partial agreed judgment entry
in which the parties voluntarily resolved nearly all issues. One issue on which they did not
agree concerned gifts made by Todd’s parents during the marriage.1 The record reflects
that Todd’s parents owned a house and farmland with a fair market value of $225,000.
During the parties’ marriage, Todd’s parents conveyed the property to Todd and Amy for
a below-market-value purchase price of $100,000. Todd’s parents also made a gift of
$20,000 for a down payment, leaving Todd and Amy with an $80,000 mortgage that was
in both of their names.
{¶ 3} In the proceedings below, the parties disputed whether the $125,000
difference between the purchase price of the property and its fair market value constituted
a gift to Todd and Amy or to Todd alone. The parties similarly disputed whether the
$20,000 provided for a down payment constituted a gift to Todd and Amy or to Todd
alone. At a hearing on the issue, Todd presented testimony from his mother, his father,
and two siblings. Each of these witnesses essentially testified that Todd had worked on
the family farm for many years, that his parents wanted him to have it, and that the
discounted-value gift and the down-payment gift were intended for him alone. Todd also
testified to the same effect. For her part, Amy testified that Todd’s parents had sold the
house to her and Todd and that both of their names were on the deed and the mortgage.
1 For purposes of clarity, we will refer to the parties by their first names.
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{¶ 4} In resolving the issue, the trial court declined to credit the testimony
presented by Todd and his witnesses. It reasoned:
The testimony of Plaintiff, his parents, and siblings was that because
he had always helped farm the property and was going to continue to farm
the property, his parents wanted him to have the property as opposed to his
brother and sister who they would make other arrangements for such as
taking care of debt and giving a place to live.
It is because they wanted Plaintiff to have the farm that they sold it
to him, not his siblings. And although the deed was in both Plaintiff and
Defendant’s names, and the buyers/borrowers on the closing statement
were both Plaintiff and Defendant, and the “gift from parents” on the closing
statement is on the column of both Plaintiff and Defendant as borrowers,
Plaintiff and both his parents, testified that the $20,000 gift and the $125,000
discounted value were both meant only for their son, the Plaintiff, and not
he and Defendant. There was further testimony from Plaintiff’s mother about
this all being in a certain agreement, but none was ever produced.
Defendant testified that the gift of $20,000 and the discounted value
of $125,000 were to both she and Plaintiff as husband and wife as reflected
in the deed to both of them of the property.
Pursuant to ORC 3107.171(H), holding title in one name or both
names does not determine whether property is marital or separate.
Therefore, the fact that Plaintiff and Defendant’s names are both on the
deed is not dispositive of the issue.
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Further, although both of Plaintiff’s parents testified that the $20,000
and $125,000 discount were only gifts to their son and not their daughter-
in-law, the Court believes this is easy to say now that the parties are in the
middle of a divorce, their marriage is over. The Court would expect that from
parents. However, the Court does not believe that was Plaintiff’s parents’
intention at the time they sold the property when times were good between
their son and his wife. The Court believes they were a happily married
couple and Plaintiff’s parents sold the property and gave the gift and
discount to both of them as a couple.
Pursuant to ORC 3105.171(A)(6)(a)(vii), because it has not been
shown by clear and convincing evidence that the gift and discount value gift
were given to only one spouse, said gift and discount gift are not the
separate property of Plaintiff, but is marital property of both spouses, subject
to division of this Court.
The Court, therefore, finds the gift and discounted amount totaling
$145,000 is a gift to both parties and is, therefore, marital property of which
Defendant shall receive one-half.
(Emphasis added.) (Doc. # 48 at 2-3).
{¶ 5} In his sole assignment of error, Todd challenges only the trial court’s
determination that the discounted purchase price of the property was not a gift to him
alone. He cites the testimony from his parents about their intent. He also cites his siblings’
testimony about him being left out of any other inheritance because he got the family
farm.
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{¶ 6} Upon review, we find Todd’s argument to be unpersuasive. “Generally, the
party claiming that an asset is separate property has the burden of proving the claim by
a preponderance of the evidence.” Hall v. Hall, 2d Dist. Greene No. 2013 CA 15, 2013-
Ohio-3758, ¶ 14, citing Peck v. Peck, 96 Ohio App.3d 731, 734,
645 N.E.2d 1300 (12th
Dist.1994). But when the property involves a gift made during the marriage, it is presumed
to be marital property. Overcoming this presumption requires clear and convincing
evidence that the gift was given to only one spouse.
Id. “Clear and convincing evidence
means that degree of proof which will provide in the mind of the trier of fact a firm belief
or conviction as to the facts sought to be established.”
Id.
{¶ 7} Here the trial court found that Todd had failed to prove by clear and
convincing evidence that his parents had intended to make gifts to him alone. That being
so, he did not overcome the presumption that gifts made during the marriage are marital
property. In reaching its conclusion, the trial court expressly disbelieved the testimony
about Todd’s parents’ intent to make gifts only to him. Instead, the trial court believed that
they gave both the down-payment gift and the discounted-value gift to Todd and Amy as
a couple. In its role as trier of fact, the trial court had discretion to make this determination,
which rested on an assessment of witness credibility—a matter “within the province of the
trial court.” Enroute Card v. Roysden, 2d Dist. Greene No. 96 CA 100, 1997 WL 435700,
*2 (Aug. 1, 1997). Having reviewed the record, we find no abuse of discretion in the trial
court’s resolution of the testimony before it.
{¶ 8} Insofar as Todd contends his being left out of any other inheritance supports
a finding that the discounted purchase price of the property was intended to be a gift to
him alone, his argument fails for at least two reasons. First, even if Todd’s parents did
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intend for the reduced purchase price to be in lieu of any other inheritance, there is no
reason why they could not have intended to make this gift to Todd and Amy as a married
couple, as the trial court found. Second, the record contains absolutely no evidence about
the value of any other inheritances available to Todd’s siblings. It could be that even the
one-half interest in the down-payment gift and the discounted purchase price gift to which
the trial court found Todd entitled remains equal to or greater than any inheritance his
siblings will receive. We see no evidence from which we can conclude that Todd
necessarily was intended to receive the entire down-payment gift and the discounted
purchase price gift to equalize inheritances among his siblings.
{¶ 9} For the foregoing reasons, we overrule Todd’s assignment of error and affirm
the judgment of the Champaign County Common Pleas Court.
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WELBAUM, P.J. and TUCKER, J., concur.
Copies sent to:
Todd A. Combs
Ronald C. Tompkins
Hon. Brett A. Gilbert
