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  • [Cite as Jenkins v. Jenkins, 2015-Ohio-5484.]

    IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT

    LAWRENCE COUNTY

    CARRIE JENKINS, : Case No. 14CA30 Plaintiff-Appellee, : v. : DECISION AND JUDGMENT ENTRY MICHAEL JENKINS, : Defendant-Appellant. : RELEASED: 12/21/2015

    APPEARANCES:

    J. Roger Smith, II, Esq., Law Offices of J. Roger Smith, II, Huntington, West Virginia, for appellant. Robert C. Anderson, Esq., Anderson & Anderson, Co., L.P.A., Ironton, Ohio, for appellee. Hoover, P.J.

    { 1} Following trial, the Lawrence County Common Pleas Court granted plaintiff-

    appellee, Carrie Jenkins (Carrie), and defendant-appellant, Michael Jenkins (Michael), a

    divorce based on incompatibility. In its property division, the trial court determined that $51,500

    in cash taken by Carrie from a safe in the parties marital residence constituted a marital asset

    and ordered that it be equally divided between the parties. The trial court further determined that

    Michaels retirement account had a marital value $14,614 greater than that of Carries retirement

    account. Instead of requiring a qualified domestic relations order (QDRO), the trial court

    ordered that Michael pay her half of the difference as her share of his retirement funds. In

    addition, the trial court awarded certain personal property in accordance with an exhibit

    introduced at trial by Carrie. The trial court also awarded to Carrie a Ruger Mark III Pistol and

  • Lawrence App. No. 14CA30 2

    assorted compound and crossbows. Finally, the trial court found the Discover credit card debt to

    be a marital debt and ordered the parties to equally divide the debt.

    { 2} On appeal, Michael asserts in his first assignment of error that the trial courts

    classification of the $51,500 in cash in the parties safe as marital property was against the

    manifest weight of the evidence. Michael testified at trial that the cash came from the sale of

    premarital inventory from his medicinal root-selling business. The final divorce hearing was not

    completed in one session. Several sessions were needed to complete the presentation of evidence

    of the parties. In a later hearing, Michael also testified that a portion of the cash came from the

    sale of a vehicle that he owned prior to their marriage. However, the trial court discounted

    Michaels evidence based on his numerous inconsistencies in testifying about the pertinent

    events. In addition, the parties tax return for 2005, the year Michael claimed that a sale of roots

    to one customer provided the bulk of the money in the safe, specified a beginning business

    inventory of zero. This zero figure supported the trial courts conclusion that the money

    generated from the sale was from roots acquired during the parties marriage rather than roots

    acquired by Michael before the parties married. Finally, Carrie introduced evidence that Michael

    continued to engage in both his root and taxidermy businesses during the marriage and that they

    placed cash from these sales in the safe and took cash out of it to pay for purchases. Based on

    this evidence, the trial court did not clearly lose its way or create a manifest miscarriage of

    justice in finding that the $51,500 in cash that Carrie took from the parties safe constituted

    marital property. We overrule Michaels first assignment of error.

    { 3} In the second assignment of error, Michael contends that the trial court erred in

    dividing the parties personal property by failing to award him the Ruger Mark III pistol and

    certain compound bows and crossbows. Michael introduced no evidence supporting his claim

  • Lawrence App. No. 14CA30 3

    that the pistol constituted separate property that should have been awarded to him. Consequently,

    the trial court did not abuse its discretion in awarding the pistol to Carrie. However, Michael

    presented uncontroverted testimony that two of the bows taken by Carrie were his separate

    property and should have been awarded to him. Therefore, we sustain this assignment of error in

    part and overrule it in part.

    { 4} Michael claims in the third assignment of error that because the trial court erred in

    classifying the $51,500 in cash as marital property, it further erred by denying his request for a

    QDRO to divide the parties retirement accounts. Because this claim is premised upon Michaels

    erroneous assertion in his first assignment of error, we likewise reject this claim and overrule his

    third assignment of error.

    { 5} In his fourth assignment of error, Michael asserts that the trial courts classification

    of the debt on the Sams Club Discover card in Carries name as marital debt rather than her

    separate debt was against the manifest weight of the evidence. Carrie testified that although the

    card was in her name, the purchases made on it were incurred during the marriage for marital

    purposes and constituted marital debt. Michael could not rebut her testimony, instead claiming

    that he had no idea about the purchases on the card. Therefore, the trial courts classification of

    the debt as marital debt is not against the manifest weight of the evidence. We overrule his fourth

    assignment of error.

    { 6} Therefore, having sustained a portion of Michaels second assignment of error, we

    reverse the portion of the judgment of the trial court awarding two of the bows that constituted

    his separate property to Carrie and remand the cause to that court to award these bows to

  • Lawrence App. No. 14CA30 4

    Michael as part of the property division. We overrule the remainder of Michaels assignments of

    error and affirm the rest of the judgment.

    I. Facts and Procedural Posture

    { 7} Carrie and Michael married in October 2002. No children were born as issue of the

    marriage. The parties became incompatible; and in October 2012, Carrie filed for divorce.

    Michael filed an answer and a counterclaim for divorce. Michael asserted that when Carrie left

    the parties marital residence, she wrongfully removed $51,500 from it. Michael claimed that the

    $51,500 represented proceeds from the sale of inventory in his root-selling business, which he

    purchased with his own separate funds before their marriage. Although Carrie denied wrongfully

    removing the money, she agreed to the terms of the trial courts emergency temporary order. The

    order directed her to keep the $51,500 she had deposited in a bank and precluded her from

    withdrawing any of those funds until further order of the court.

    { 8} A trial was held before a magistrate over three separate days in 2013. The

    following pertinent evidence was adduced. Michael worked making waterline pipe for Endot

    Industries until 2005 and thereafter as a machine operator for Leibert. The value of his retirement

    plan was $34,180. In addition, Michael had a medicinal root-selling business and a taxidermy

    business. For the root business, he would purchase goldenseal and ginseng from diggers and then

    resell them.1 From this root business, purportedly $51,500 or a portion of it was earned that is the

    crux of the parties property dispute.

    1 Goldenseal is a plant * * * of the buttercup family, having a thick yellow rootstock * * * formerly used in medicine as an astringent and to inhibit bleeding and ginseng is any of several plants * * * having an aromatic root used medicinally. Websters New Universal Unabridged Dictionary 807, 819-820 (2003).

  • Lawrence App. No. 14CA30 5

    { 9} Michaels testimony regarding the $51,500 was not consistent. He initially testified

    in a deposition that all of this money was generated between 2003 and 2005 by his sale of roots

    that he had acquired prior to the parties marriage to a customer named Brent (aka Steve)

    Duncan. At the deposition, Michael also said that Duncan paid him the $51,500 and that he

    handled the sale and put the cash in a safe at the marital residence. At the first trial hearing,

    however, Michael changed his testimony and said that his $51,500 sale of roots to Duncan could

    have happened in 2006 and that his father and brother handled the sale instead of him. At the

    second trial hearing, Michael changed his testimony again by stating that he had found receipts

    that established he sold goldenseal to Duncan in February 2005 for $46,143 and that he

    subsequently placed an additional $3,000 in the safe from selling a Jeep he had owned separately

    before his marriage.

    { 10} According to Michael, he quit buying roots for his root-selling business in 1998 or

    1999, before he married Carrie in 2002. Michael also testified that he did not purchase any more

    roots during their marriage. Therefore, according to him, the goldenseal he sold to Duncan in

    2005 must have been from root inventory he had acquired as his separate property before he was

    married in 2002. However, when he was confronted with an Ohio Department of Natural

    Resources form for sales of uncertified Ohio root f

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