[Cite as Drummer v. Drummer, 2012-Ohio-3064.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

PUTNAM COUNTY 

 

WILLIAM DRUMMER, 

 PLAINTIFF-APPELLANT/ 

 CROSS-APPELLEE, CASE NO. 12-11-10 

 v. 

SHIRLEY DRUMMER, O P I N I O N 

 DEFENDANT-APPELLEE/ 

 CROSS-APPELLANT. 

 

Appeal from Putnam County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 2010 DIV 00146 

Judgment Affirmed 

Date of Decision: July 2, 2012 

 

APPEARANCES: 

Joseph R. Burkard for Appellant/Cross-Appellee 

Matthew A. Cunningham for Appellee/Cross-Appellant 
Case No. 12-11-10 

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ROGERS, J. 

{¶1} Plaintiff-Appellant/Cross-Appellee, William Drummer, appeals the 

judgment of the Court of Common Pleas of Putnam County, Domestic Relations 

Division, granting his complaint for divorce and Defendant-Appellee/CrossAppellant’s, Shirley Drummer, counterclaim for divorce. On appeal, William 

contends that the trial court erred in finding that the equity in their residence, 

located at 21023 State Route 15, Continental, Ohio, (“marital residence”) is 

marital property; that the trial court erred in determining that the 955 John Deere 

tractor, including accessories, (“tractor”) is marital property; and, that the trial 

court abused its discretion by imputing minimum wage to him for purposes of 

calculating child support. In her cross-appeal, Shirley contends that the trial court 

erred when it did not find the existence of a common law marriage between her 

and William; that the trial court erred by not analyzing R.C. 3105.171(A)(2)(b) for 

purposes of property division; and, that the trial court erred in determining that the 

marital portion of William’s pension was 144 months and not 214 months. Based 

on the following, we affirm the judgment of the trial court. 

{¶2} William and Shirley married on July 28, 1994, and have one minor 

child born as issue of the marriage. In June 2010, William filed a complaint for 

divorce. In September 2010, Shirley filed a counterclaim for divorce. 
Case No. 12-11-10 

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{¶3} In May 2011, the matter proceeded to a hearing. During the hearing, 

William and Shirley, each represented by counsel, informed the trial court that 

they had reached an agreement as to the division of some, but not all, property, 

and that Shirley will be the residential parent of their minor child. During the 

remainder of the hearing, William and Shirley presented evidence on the following 

disputed issues: whether the equity in the marital residence is marital property; 

whether the tractor is marital property; the portion of William’s pension that is 

marital property; and, the existence of a common law marriage prior to the date of 

their marriage. 

{¶4} In June 2011, the trial court determined, in relevant part, that the 

equity in the residence was marital property, that the tractor was marital property, 

that Shirley did not present clear and convincing evidence that a common law 

marriage existed, and that child support would “be calculated based upon imputed 

minimum wage income to each of the parties in addition to those amounts 

previously ordered as pension distributions.” June 21, 2011 Decision, p. 7. 

Thereafter, in August 2011, the trial court entered the divorce decree. 

{¶5} It is from this judgment William and Shirley appeal, presenting the 

following assignments of error for our review. 
Case No. 12-11-10 

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William’s Assignments of Error 

Assignment of Error No. I 

THE TRIAL COURT AWARDING APPELLEE EQUITY IN 

THE PRE-MARITAL HOME LOCATED AT 21023 ST. RT. 15, 

CONTINENTAL, OHIO IS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE. 

Assignment of Error No. II 

THE TRIAL COURT AWARDING APPELLEE EQUITY IN 

THE PRE-MARITAL 955 JOHN DEERE TRACTOR AND 

ACCESSORIES IS AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE. 

Assignment of Error No. III 

THE TRIAL COURT ABUSED ITS DISCRETION BY 

IMPUTING MINIMUM WAGE ON THE APPELLANT IN 

ADDITION TO USING HIS RETIREMENT INCOME 

CALCULATING CHILD SUPPORT. 

Shirley’s Assignments of Error1

Assignment of Error No. I 

THE TRIAL COURT COMMITTED ERROR BY NOT 

RECOGNIZING THE VALIDITY OF A COMMON LAW 

MARRIAGE ESTABLISHED BEFORE OCTOBER 1991. 

Assignment of Error No. II 

 

1

 Upon review, we note that the text in Shirley’s brief does not comply with the spacing requirement set 

forth in App.R. 19(A), which requires “double spacing between each line of text except quoted matter 

which shall be single spaced.” 
Case No. 12-11-10 

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THE TRIAL COURT COMMITTED ERROR BY NOT 

ANALYZING R.C. 3105.171(A)(2)(b) FOR PURPOSES OF 

PROPERTY DIVISION. 

Assignment of Error No. III 

THE TRIAL COURT ERRED BY DETERMINING THAT 

THE MARITAL PORTION OF HUSBAND’S PENSION WAS 

144 MONTHS AND NOT 214 MONTHS. 

William’s Assignments of Error Nos. I & II 

{¶6} In his first assignment of error, William contends that the trial court 

erred in finding that the equity in the marital residence is marital property. In his 

second assignment of error, William contends that the trial court erred in finding 

that the tractor is marital property. Additionally, William contends that the trial 

court erred by not supporting its classification of the marital residence and tractor 

with written findings of fact. Based on the following, we disagree. 

{¶7} “In determining whether the trial court has appropriately categorized 

property as separate or marital, the standard of review is whether the classification 

is against the manifest weight of the evidence.” Eggeman v. Eggeman, 3d Dist. 

No. 2-04-06, 2004-Ohio-6050, ¶ 14, citing Henderson v. Henderson, 3d Dist. No. 

10-01-17, 2002-Ohio-2720, ¶ 28. “Judgments supported by some competent, 

credible evidence going to all the essential elements of the case will not be 

reversed by a reviewing court as being against the manifest weight of the 

evidence.” C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279 (1978), 
Case No. 12-11-10 

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syllabus. When reviewing a judgment under a manifest-weight-of-the-evidence 

standard, a court has an obligation to presume that the findings of the trier of fact 

are correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 79-80 (1984). 

Mere disagreement over the credibility of witnesses or evidence is not sufficient 

reason to reverse a judgment. State v. Wilson, 113 Ohio St.3d 382, 387, 2007-

Ohio-2202, ¶ 40. 

{¶8} “In a divorce proceeding, the trial court must determine whether 

property is marital or separate property.” Reed v. Reed, 3d Dist. No. 1-09-63, 

2010-Ohio-4550, ¶ 8, citing Gibson v. Gibson, 3d Dist. No. 9-07-06, 2007-Ohio6965, ¶ 29. 

{¶9} Marital property includes, in relevant part: 

(i) All real and personal property that currently is owned by either 

or both of the spouses, including, but not limited to, the retirement 

benefits of the spouses, and that was acquired by either or both of 

the spouses during the marriage; 

(ii) All interest that either or both of the spouses currently has in 

any real or personal property, including, but not limited to, the 

retirement benefits of the spouses, and that was acquired by either or 

both of the spouses during the marriage; 

(iii) Except as otherwise provided in this section, all income and 

appreciation on separate property, due to the labor, monetary, or inkind contribution of either or both of the spouses that occurred 

during the marriage; R.C. 3105.171(A)(3)(a). 

Separate property includes, in relevant part:
Case No. 12-11-10 

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(ii) 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; 

(iii) Passive income and appreciation acquired from separate 

property by one spouse during the marriage; R.C. 

3105.171(A)(6)(a). 

Furthermore, “[t]he 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). 

Accordingly, traceability is the key to determining whether separate property has 

lost its separate character after being commingled with marital property. Ward v. 

Ward, 3d Dist. No. 1-03-63, 2004-Ohio-1390, ¶ 4, citing Peck v. Peck, 96 Ohio 

App.3d 731, 734 (12th Dist. 1994). The party seeking to have a particular asset 

classified as separate property has the burden of proof, by a preponderance of the 

evidence, to trace the asset to separate property. Id. 

Marital Residence

{¶10} William contends that that the trial court erred in finding that the 

equity in the marital residence is marital property. Specifically, William contends 

that the equity in the marital residence is separate property because it was 

purchased prior to the marriage, and because its increased value is the result of 

passive appreciation. We disagree. 
Case No. 12-11-10 

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{¶11} In 1988, William purchased the marital residence for the sum of 

$60,000.00. William financed the purchase by making a $6,000.00 down payment 

and securing a $54,000.00 mortgage in his name. The parties stipulated that the 

$6,000.00 down payment was William’s separate property. Shirley testified that 

she moved into the residence in August 1988 and resided there on a permanent 

basis until April 2010. William, on the other hand, testified that Shirley began 

residing at the marital residence on a permanent basis beginning in 1990, and that 

prior to that time she resided at the marital residence on an intermittent basis. 

Shirley testified that in 1988 William added her as a joint holder to his pre-existing 

checking account. Shirley explained that she and William deposited their 

respective income into that checking account and that the funds in the account 

were used to pay household expenses. William did not contest the existence of the 

checking account, but testified that Shirley’s income primarily financed groceries. 

William further testified that the only improvements made on the marital residence 

were the addition of a paved driveway and a new roof. Though William could not 

recall the exact dates those improvements were made, he did testify that the paved 

driveway was likely added in 1995. Also in 1995, the original mortgage on the 

marital residence was paid off via the joint contributions of William and Shirley. 

That same year, William and Shirley took a second mortgage out on the marital 

residence. Both William and Shirley’s names appeared on the mortgage 
Case No. 12-11-10 

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instrument. In 2008, William and Shirley took a third mortgage out on the marital 

residence. Again, Both William and Shirley’s names appeared on the mortgage 

instrument. During the hearing, the parties stipulated that the marital residence 

was valued at $111,000.00, and that the mortgage payoff amount was $42,000.00. 

{¶12} Though the marital residence was purchased several years prior to 

the marriage, and thus was acquired as separate property, See R.C. 

3105.171(A)(6)(a)(ii), there was sufficient competent, credible evidence that 

payment of, maintenance on, and improvements to the marital residence were 

accomplished through William and Shirley’s efforts. In particular, there was 

evidence that household expenses were paid out of a joint checking account in 

which Shirley and William deposited funds, that Shirley helped William pay off 

the original mortgage, and that Shirley was jointly liable for mortgages taken out 

on the marital residence in 1995 and 2008. Given the foregoing, it was reasonable 

for the trial court to conclude that what began as separate property transformed 

into marital property as a result of William and Shirley’s joint contributions prior 

to and during the marriage. Furthermore, with the exception of the $6,000.00 

down payment, William presented no evidence tracing the funds used to pay off, 

maintain, and improve the marital residence to his separate property. Accordingly, 

William failed to establish that the equity in the marital residence, with exception 

of $6,000.00, is his separate property. 
Case No. 12-11-10 

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{¶13} William also contends that the increased value of the marital 

residence is the result of passive appreciation, and thus constitutes separate 

property. We disagree. 

{¶14} Passive appreciation will only be separate property if the property at 

issue is separate. See R.C. 3105.171(A)(6)(a)(iii). Here, we have already 

determined that the marital residence, which began as separate property, was 

transformed into marital property as a result of the Shirley’s contributions in 

paying off, maintaining, and improving the residence prior to and during the 

marriage. Consequently, even if the increased value of the marital residence was 

the result of passive appreciation it would be marital property.2

 

{¶15} Given the foregoing, we find that the trial court’s classification of the 

equity in the marital residence as marital property was not against the manifest 

weight of the evidence. 

Tractor

{¶16} Next, William contends that the tractor is separate property, as it was 

acquired by him prior to the date of the marriage. We disagree. 

{¶17} Considering the evidence presented during the hearing, there were 

two dates on which the tractor could have been purchased. William testified, and 

 

2

 Contrary to William’s contention, the record contains no evidence that the increased value of the marital 

residence resulted from passive appreciation. Instead, the record, particularly William’s testimony 

concerning the addition of a paved driveway and new roof, supports the conclusion that the increased value 

of the marital residence resulted from active appreciation. 
Case No. 12-11-10 

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consequently argued, that he purchased the tractor in October 1993 and financed it 

via an eleven-month installment contract. Though William was unable to produce 

a bill of sale for the tractor, he did introduce a facsimile, purportedly sent by the 

retailer from whom William purchased the tractor, stating that William purchased 

the tractor in October 1993. Shirley, on the other hand, argued that William 

purchased the tractor sometime after November 1994, i.e., after their marriage. In 

support, Shirley cites William’s testimony that he hauled the tractor home with a 

1994 K1500 Chevrolet truck (“truck”). Shirley then introduced a retail installment 

contract for the same truck, which stated that the truck was purchased in 

November 1994. 

{¶18} Given the foregoing, there was competent, credible evidence 

supporting the purchase date asserted by each party. William’s testimony that he 

purchased the tractor in October 1993 was corroborated by a facsimile purportedly 

sent by the retailer from whom William purchased the tractor. However, the fact 

that William could only corroborate his testimony with a facsimile may cause a 

reasonable trier of fact to question William’s asserted purchase date. On the other 

hand, the evidence supporting Shirley’s asserted purchase date of the tractor is 

arguably less dubious. Unlike William, Shirley was able to produce a retail 

installment contract, dated after the marriage, for the truck William admittedly 

used to haul the tractor home. Faced with this evidence, it was reasonable for the 
Case No. 12-11-10 

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trial court to conclude that the tractor was purchased after the marriage. 

Accordingly, we find that the trial court’s classification of the tractor as marital 

property was not against the manifest weight of the evidence. 

Written Findings of Fact 

{¶19} Last, William contends that the trial court erred by not supporting its 

categorization of the marital residence and tractor with written findings of fact. 

We disagree. 

{¶20} Though written findings of fact would undoubtedly be helpful in 

determining whether the trial court erred in classifying property as separate or 

marital, such findings are not required by statute. Oliver v. Oliver, 12th Dist. No. 

CA2011-01-004, 2011-Ohio-6345, ¶ 10. R.C. 3105.171 only requires written 

findings of fact in two situations, both of which deal with the distribution of 

property that has already been classified as marital or separate. See R.C. 

3105.171(D), (G). Because William’s contentions on appeal are limited to the 

classification of the marital residence and tractor as marital property and not the 

distribution thereof, none of R.C. 3105.171’s provisions requiring written findings 

of fact apply in the instant case. Therefore, the absence of written findings of fact 

supporting the trial court’s classification of the marital residence and tractor as 

marital property does not constitute error. 
Case No. 12-11-10 

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{¶21} Accordingly, we overrule William’s first and second assignments of 

error. 

William’s Assignment of Error No. III

{¶22} In his third assignment of error, William contends that the trial court 

erred when it imputed minimum wage income to him for purposes of calculating 

child support. William’s contention is two-fold. First, William contends that the 

trial court erred when it failed to expressly find that he was voluntarily 

unemployed or underemployed. Second, William contends that his retirement 

precludes a finding that he was voluntarily unemployed. Based on the following, 

we disagree. 

{¶23} It is well established that a trial court’s decision regarding child 

support obligations will not be disturbed on appeal absent an abuse of discretion. 

Dreher v. Stevens, 3d Dist. No. 4-05-20, 2006-Ohio-351, ¶ 19, citing Booth v. 

Booth, 44 Ohio St.3d 142, 144 (1989). A trial court will be found to have abused 

its discretion when its decision is contrary to law, unreasonable, not supported by 

the evidence, or grossly unsound. See State v. Boles, 187 Ohio App.3d 345, 2010-

Ohio-278, ¶ 17-18, citing Black’s Law Dictionary 11 (8th Ed.Rev.2004). When 

applying the abuse of discretion standard, a reviewing court may not simply 

substitute its judgment for that of the trial court. Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219 (1983). 
Case No. 12-11-10 

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{¶24} Before computing child support, the trial court must determine each 

parent’s income. See Thacker v. Thacker, 3d Dist. No. 9-10-26, 2010-Ohio-5675, 

¶ 55. Where the calculation of child support involves a parent who is unemployed 

or underemployed, the trial court must consider the parent’s gross income and, 

relevant to the instant case, the parent’s potential income, R.C. 3119.01(C)(5)(b), 

which is income the parent would have earned if he or she had been fully 

employed. R.C. 3119.01(C)(11)(a). In determining the parent’s potential income 

and whether it may impute that income, the trial court must engage in a two-part 

analysis. Theurer v. Foster-Theurer, 12th Dist. Nos. CA2008-06-074, CA2008-

06-083, 2009-Ohio-1457, ¶ 83, citing Badovick v. Badovick, 128 Ohio App.3d 18, 

23 (8th Dist. 1998). First, the trial court must determine whether the parent is 

voluntarily unemployed or underemployed. Id.; see also Smart v. Smart, 3d Dist. 

No. 17-07-10, 2008-Ohio-1996, ¶ 21. If the trial court determines that the parent 

is voluntarily unemployed or underemployed, then the potential income to be 

imputed to the parent must be determined in accordance with the factors 

enumerated under R.C. 3119.01(C)(11)(a). Theurer at ¶ 83. 

{¶25} As an initial matter, we note that William’s contention is limited to 

the finding that he was voluntarily unemployed or underemployed. William 

advances no arguments challenging the amount of imputed income. Accordingly, 
Case No. 12-11-10 

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our review is limited to determining whether the trial court abused its discretion in 

finding that William was voluntarily unemployed or underemployed. 

{¶26} Bearing this in mind, we begin with the trial court’s order addressing 

William’s child support obligation, which reads, in relevant part: 

[c]hild support shall be calculated based upon imputed minimum 

wage income to each of the parties in addition to those amounts 

previously ordered as pension distributions. June 21, 2011 Decision, 

p. 7. 

{¶27} First, William contends that the trial court committed reversible error 

when it did not expressly find that he was either voluntarily unemployed or 

underemployed. Though the better practice would be to expressly find that the 

parent is voluntarily unemployed or underemployed, we disagree with William’s 

contention in light of this court’s precedent in O’Connor v. O’Connor, 184 Ohio 

App.3d 538, 2009-Ohio-5436 (3d Dist.). In O’Connor, the trial court did not 

expressly find that the parent was voluntarily unemployed or underemployed for 

purposes of imputing potential income to the parent. Nevertheless, this court 

explained that the absence of an express finding of voluntary unemployment or 

underemployment is not reversible error where a reviewing court is capable of 

inferring such a finding from the record. O’Connor at ¶ 11; see also Wheeler v. 

Wheeler, 6th Dist. No. OT-04-025, 2005-Ohio-1025, ¶ 26 (no statutory 

requirement that the trial court’s finding concerning voluntary unemployment or 
Case No. 12-11-10 

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underemployment be express); but see Collins v. Collins, 9th Dist. No. 10CA0004, 

2011-Ohio-2087, ¶ 36 (trial court’s finding concerning voluntary unemployment 

or underemployment must be express). 

{¶28} Here, the record contains evidence that is relevant in determining 

whether William was voluntarily unemployed or underemployed. William began 

working at GM in 1978. Shortly thereafter, in 1979, William suffered serious 

injury to one of his ankles while riding a snowmobile. William explained that his 

ankle continues to bother him, especially when he stands for a long period of time. 

Because his position at GM required him to stand for a long period of time, 

William testified that his ankle often hurt during work. William testified that he 

accepted early retirement due to the pain in his ankle. William, however, 

explained that had he not been offered early retirement he would have continued 

working for GM. Since retiring, William has, on a periodic basis, worked as an 

independent contractor installing television satellite dishes. In 2010, William 

earned $220.00 installing satellite dishes. Given the foregoing, we find that there 

is sufficient evidence for us to infer that the trial court determined that William 

was voluntarily unemployed.3

 

3 Though the trial court did not expressly find that William was voluntarily unemployed or underemployed, 

we will, for purposes of discussion, say that William is voluntarily unemployed. Ultimately, though, the 

terminology is inconsequential.
Case No. 12-11-10 

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{¶29} Next, we consider William’s contention that his retirement precludes 

a finding that he is voluntarily unemployed. 

{¶30} First, William’s contention is lacking in both argument and 

supportive authority. See App.R. 12(A)(2), App.R. 16(A)(7). Due to the lack of 

argument and authority, William has failed to convince us that his retirement 

precludes a finding that he is voluntarily unemployed. 

{¶31} Notwithstanding the lack of argument and authority, we find that 

retirement does not per se preclude a finding that a parent is voluntarily 

unemployed or underemployed. First, we are unaware of any provision in R.C. 

Chapter 3119 that precludes a finding that a parent is voluntarily unemployed or 

underemployed simply because he or she is retired. Second, we are unaware of 

any case that has held that retirement alone precludes a finding that a parent is 

voluntarily unemployed or underemployed. Rather, determining whether a parent 

is voluntarily unemployed or underemployed is a matter to be determined by the 

trial court based upon the facts and circumstances of each case. Rock v. Cabral, 

67 Ohio St.3d 108, 112 (1993); see also Combs v. Combs, 12th Dist. No. CA2001-

11-102, 2003-Ohio-198, Justinger v. Schlegel, 3d Dist. No. 11-97-03 (July 15, 

1997). 

{¶32} In Combs, the parent, who had worked for his employer for thirtyfour years and earned a yearly salary of $97,000.00, retired to avoid disciplinary 
Case No. 12-11-10 

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charges and possible termination. After retirement, the parent obtained part-time 

employment earning $10.00 per hour. The parent filed a motion to modify his 

child support obligation as a result of his reduced income. The trial court denied 

the parent’s motion to modify finding that the parent’s retirement constituted 

voluntary underemployment. On appeal, the court of appeals found that despite 

the anticipated disciplinary charges and possible termination, the parent’s decision 

to retire was ultimately a voluntary decision. Accordingly, the court of appeals 

concluded that the trial court did not abuse its discretion in finding that the parent 

was voluntarily underemployed. 

{¶33} In Justinger,

4

 the parent retired at the age of forty-seven having 

earned an average income of $65,000.00 during the last three years of his 

employment.5

 Though the exact reason for the parent’s retirement was unclear, 

the facts established that the parent did not retire due to his age or disability. After 

retirement, the parent did not obtain any employment and thus his yearly income 

was limited to retirement income, which amounted to $25,320.00. The parent 

filed a motion to modify his child support obligation as a result of his reduced 

income. The trial court denied the parent’s motion to modify finding that he was 

voluntarily unemployed and imputed a potential income to him of $40,505.00, 

 

4

 At the time Justinger was decided, R.C. 3113.215 governed child support. R.C. 3113.215 was repealed 

on March 22, 2001, and was replaced by R.C. 3119.01, which is comparable to the provisions of R.C. 

3113.215 and does not vary in any way that affects our current analysis. 

5

 This figure represented the parent’s base salary, overtime, and bonuses. 
Case No. 12-11-10 

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which represented his pre-retirement base salary. On appeal, this court found that 

the parent was voluntarily unemployed because he “reduced his income when he 

was not forced to do so by circumstances beyond his control.” Justinger at *1. 

Accordingly, this court concluded that the trial court did not abuse its discretion in 

finding that the parent was voluntarily unemployed. 

{¶34} Here, we find that there is sufficient evidence supporting the trial 

court’s finding that William is voluntarily unemployed. William testified that his 

primary reason for accepting early retirement was that prolonged standing at work 

“really bothered” the ankle he injured in 1979. Though William testified that he 

decided to accept early retirement because of his ankle, the fact remains that 

William worked at GM for nearly 27 years after injuring his ankle. Considering 

the length of time William worked on his bothersome ankle, it is reasonable to 

conclude that William’s ankle was merely a factor in his otherwise voluntary 

decision to retire. This conclusion is supported by William’s testimony that he 

would have continued working at GM had he not been offered early retirement. 

Bearing this in mind, and the fact that there was no evidence that William was 

incapable of securing gainful employment after retirement, we find that the trial 

court did not abuse its discretion in finding that William was voluntarily 

unemployed. 

{¶35} Accordingly, we overrule William’s third assignment of error. 
Case No. 12-11-10 

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Shirley’s Assignment of Error No. I 

{¶36} In her first assignment of error, Shirley contends that the trial court 

erred in determining that she failed to establish the existence of a common law 

marriage. Specifically, Shirley contends that she offered evidence that clearly and 

convincingly established that she and William had been in a common law 

marriage since October 1988. Based on the following, we disagree. 

{¶37} In reviewing the trial court’s decision concerning the existence of a 

common law marriage, the standard of review is whether the decision was against 

the manifest weight of the evidence. In re Estate of Shepherd, 97 Ohio App.3d 

280, 283 (3d Dist. 1994). As previously mentioned, judgments supported by some 

competent, credible evidence going to all the essential elements of the case will 

not be reversed by a reviewing court as being against the manifest weight of the 

evidence. C.E. Morris Co., 54 Ohio St.2d at syllabus. When reviewing a 

judgment under a manifest-weight-of-the-evidence standard, a court has an 

obligation to presume that the findings of the trier of fact are correct. Seasons 

Coal Co., Inc., 10 Ohio St.3d at 79-80. Mere disagreement over the credibility of 

witnesses or evidence is not sufficient reason to reverse a judgment. Wilson, 113 

Ohio St.3d 382, 2007-Ohio-2202, at ¶ 40. 

{¶38} We begin by noting that common law marriages have never been 

favored in Ohio. Nestor v. Nestor, 15 Ohio St.3d 143, 145 (1984). In fact, 
Case No. 12-11-10 

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common law marriages occurring after October 10, 1991, are not recognized in 

Ohio. R.C 3105.12(B)(1). However, relationships between a man and woman 

that attained common law marriage status prior to October 10, 1991 are 

recognized as valid and remain valid until terminated by death, dissolution, 

divorce, or annulment. R.C. 3105.12(B)(2). 

{¶39} In order to establish the existence of a common law marriage, the 

party alleging a common law marriage must establish each of the following 

elements by clear and convincing evidence: (1) an agreement to marry in praesenti 

by parties competent to contract; (2) cohabitation as husband and wife; (3) the 

parties must hold themselves out as husband and wife; and, (4) the parties are 

treated and reputed as husband and wife by the community. See Nestor at 145. 

{¶40} The first element of the test, a meeting of the minds to marry in 

praesenti, is the essential element of a common law marriage. Id. at 146. “Its 

absence precludes the establishment of such a relationship even though the parties 

live together and openly engage in cohabitation.” Id. An agreement to marry in 

praesenti may be proven either by direct evidence which establishes agreement, or 

by proof of cohabitation, acts, declarations, and conduct of the parties and their 

recognized status in the community in which they reside. Id. “Where there is no 

direct proof in reference to the formation of the contract of marriage in praesenti,

testimony regarding cohabitation and community reputation tends to raise an 
Case No. 12-11-10 

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inference of the marriage. This inference is given more or less strength according 

to the circumstances of the particular case. The inference is generally 

strengthened with the lapse of time during which the parties are living together 

and cohabitating as man and wife.” Id. 

{¶41} As for the final two elements,6

 the Supreme Court of Ohio explained 

that, “in order to establish a common law marriage it is not necessary that [the man 

and woman] disseminate information to all society generally, or to all of the 

community in which they reside. Rather, there must be a holding out to those with 

whom they normally come in contact. A common law marriage will not 

necessarily be defeated by the fact that all persons in the community within which 

the parties reside are not aware of the marital arrangement, nor by the fact that all 

persons with whom they normally come in contact are also unaware of the 

arrangement.” Id. 

{¶42} Although there was no written agreement to marry in praesenti, 

Shirley cites three excerpts from the hearing contending that they represent direct 

evidence that William considered Shirley as his wife prior to their marriage. The 

first excerpt Shirley cites reads: 

 

6

 On appeal, William does not challenge the existence of the second element, i.e., cohabitation. 

Accordingly, there is no need to discuss that element in this opinion. 
Case No. 12-11-10 

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Q: And during, * * * this time between 1988 and 1994, you and 

Shirley went ahead and bought personal property and other items 

together; is that correct? 

A: Yes. 

Q: Okay. So every decision that was made whether to buy 

something was you did it jointly between you and her? 

A: Most of the time, not always. Hearing Tr., p. 18-19. 

The second excerpt Shirley cites reads: 

Q: All right. And from * * * October of 1988 until ’94, you and 

Shirley were a couple and you were making marital decisions 

together; is that right? 

A: In our eyes probably would have been maybe considered a 

couple; but, however, with the community, they, nobody knowed 

(sic) we was married or everybody knowed (sic) we wasn’t married. 

Hearing Tr., p. 20. 

The last excerpt Shirley cites reads: 

Q: We’ve heard some testimony here today and I think Mr. 

Cunningham has asked you some questions about the time frame 

between 1989 and ’94 and about holding yourself out [as] being 

married. Did you consider yourself married to Shirley Drummer 

during that period of time? 

A: We was very close, yes. Hearing Tr., p. 120. 

Upon consideration of the foregoing testimony, we are not convinced that 

William’s responses constitute direct evidence of an agreement to marry in 

praesenti. At best, the testimony demonstrates that William and Shirley were a 
Case No. 12-11-10 

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close couple, but not husband and wife. Moreover, William testified that there 

was no agreement to be or get married. 

Q: All right. Now, when you and Shirley moved in together at the 

State Route 15 house in 1988, you two were in agreement to getting 

married; is that correct? 

A: I would say that was definitely not true, no. 

Q: And at that time * * * for those years of 1989, 1990, 1991, 1992, 

1993, your attitude toward marriage was that you two were already 

married. Is that right? 

A: No. Hearing Tr., p. 17. 

Based on William’s testimony and the fact that there was no written agreement to 

be married in praesenti, we, like the trial court, find that Shirley did not establish 

the existence of an agreement to marry in praesenti via direct evidence. 

{¶43} Notwithstanding the absence of direct evidence of an agreement to 

marry in praesenti, Shirley contends that the first common law marriage element is 

met via the parties’ cohabitation, acts, declarations, conduct, and their recognized 

status in the community in which they resided. See Nestor, 15 Ohio St.3d at 146. 

In particular, Shirley highlights the following evidence: the establishment of joint 

checking account in October 1988; joint contribution to household expenses; filing 

joint tax returns with William from 1988 through 1994; her designation as 
Case No. 12-11-10 

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beneficiary of William’s life insurance policy in 1988; and, their many years of 

cohabitation prior to the marriage. 

{¶44} While the things highlighted by Shirley may arguably be indicative 

of an agreement to marry in praesenti, many of these things are also common 

among unmarried couples. For instance, it is not uncommon for unmarried 

couples to cohabitate, have a joint checking account, and jointly contribute to 

household expenses. However, one thing that a married couple can do that an 

unmarried coupled cannot is file a joint federal tax return. Consequently, an 

unmarried couple filing joint tax returns, while not legally appropriate, may be 

more indicative of a shared intent to be married than other activities. Here, Shirley 

testified that she and William have filed joint federal tax returns since 1988. 

William, however, denied filing joint tax returns prior to their marriage, and 

Shirley was unable to produce tax returns for the years 1988, 1989, 1990, 1991, 

1992, and 1993. Without these tax returns it is reasonable to find that Shirley did 

not provide clear and convincing evidence that she and William filed jointly prior 

to their marriage. Given the foregoing, we find that the trial court did not err in 

finding that the first common law marriage element was not established by clear 

and convincing evidence. 
Case No. 12-11-10 

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{¶45} Assuming, arguendo, Shirley established the first common law 

marriage element, we find that she failed to establish the final two elements by 

clear and convincing evidence. 

{¶46} The trial court heard little testimony relevant to the final two 

common law marriage elements. Shirley testified that she introduced William as 

her husband and that he introduced her as his wife prior to their marriage. Shirley 

also testified that their families and friends viewed them as a married couple prior 

to their marriage. In support, Shirley called her cousin, Jackie Killion (“Killion”), 

to testify. Killion testified that she thought William and Shirley were married 

prior to moving into the marital residence. Killion explained that she assumed 

William and Shirley were married because she always saw them together and they 

lived together. William, on the other hand, testified that he never told anyone that 

he was married to Shirley prior to their marriage. Coincidently, Killion testified 

that William and Shirley never told her that they were married. Finally, William 

testified that neighbors, friends, and family did not view him and Shirley as 

husband and wife prior to their marriage. 

{¶47} Clearly, the trial court was presented with conflicting testimony. It is 

evident that the trial court determined that Shirley did not present clear and 

convincing evidence establishing the final two common law marriage elements. 

There was competent, credible testimony that William and Shirley did not hold 
Case No. 12-11-10 

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themselves out as husband and wife and the community did not view William and 

Shirley as husband and wife. Because the trial court was in the best position to 

weigh the credibility of the testimony, we find that the trial court’s decision was 

not against the manifest weight of the evidence. 

{¶48} Accordingly, we overrule Shirley’s first assignment of error. 

Shirley’s Assignment of Error No. II 

{¶49} In her second assignment of error, Shirley contends that the trial 

court erred when it did not find, for purposes of property division, that the 

equitable beginning date of the marriage was October 1988. Based on the 

following, we disagree. 

{¶50} A trial court’s decision to select beginning and termination dates of a 

marriage other than those provided for in R.C. 3105.171(A)(2)(a) is a question of 

fact and will not be disturbed on appeal absent an abuse of discretion. Renz v. 

Renz, 12th Dist. No. CA2010-05-034, 2011-Ohio-1634, ¶ 7. As previously 

mentioned, a trial court will be found to have abused its discretion when its 

decision is contrary to law, unreasonable, not supported by the evidence, or 

grossly unsound. See Boles, 2d Dist. No. 23037, 2010-Ohio-278, at ¶ 17-18, citing 

Black’s Law Dictionary 11 (8th Ed.Rev.2004). When applying the abuse of 

discretion standard, a reviewing court may not simply substitute its judgment for 

that of the trial court. Blakemore, 5 Ohio St.3d at 219. 
Case No. 12-11-10 

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{¶51} There is a statutory presumption that the duration of a marriage runs 

from the date of the marriage through the date of the final divorce hearing. R.C. 

3105.171(A)(2)(a). However, if the trial court determines that “the use of either or 

both of the dates * * * would be inequitable, the court may select dates that it 

considers equitable in determining marital property.” R.C. 3105.171(A)(2)(b). 

{¶52} Shirley contends that this court should follow the holding in Bradley 

v. Bradley, 8th Dist. No. 78400 (July 5, 2001). In Bradley, the parties became 

romantically involved in 1979, which resulted in the birth of their son in 1980. 

After the birth of their son, Mrs. Bradley remained at home to raise the parties’ 

son instead of pursuing gainful employment. On June 22, 1991, the parties had a 

ceremonial marriage, but never obtained a marriage license. In 1995, Mrs. 

Bradley filed for divorce. Based on the evidence adduced during trial, the trial 

court determined that the parties were married at common law on June 22, 1991, 

and that the duration of the marriage spanned from 1979 to 1995. Mr. Bradley 

appealed the trial court’s decision. On appeal, the court of appeals, noting the trial 

court’s broad discretion on the matter, focused on length of time the parties had 

been together and the fact that Mrs. Bradley was financially dependent on Mr. 

Bradley. Based on these facts, the court of appeals determined that the trial court 

did not abuse its discretion. 
Case No. 12-11-10 

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{¶53} Having considered Bradley, we find that it is distinguishable from 

the present case. In Bradley, the parties cohabitated for approximately thirteen 

years before their common law marriage. Here, William and Shirley cohabitated 

for approximately six years. In Bradley, the parties had a son shortly after they 

began a relationship and well before their common law marriage. Here, William 

and Shirley had their first and only child in 1998, nearly four years after their 

marriage. Last, Mrs. Bradley was financially dependent on Mr. Bradley because 

she stayed home to raise their son. Here, Shirley was gainfully employed at Taco 

Bell between 1988 and 1995, and there was no evidence that she was financially 

dependent on William to the degree Mrs. Bradley was financially dependent on 

Mr. Bradley. Given these differences, we decline to follow Bradley. 

{¶54} Certainly, the record in the instant case contains evidence that could 

persuade a trial court that, for purposes of property division, the beginning date of 

the marriage was prior to July 1994. However, the trial court did not reach that 

conclusion, finding that William and Shirley married on July 28, 1994. Having 

considered the record and being mindful of the trial court’s broad discretion in 

determining whether the beginning and ending dates of the marriage are 

inequitable, we find that the trial court did not abuse its discretion when it did not 

select October 1988 as the equitable beginning date of the marriage. 

{¶55} Accordingly, we overrule Shirley’s second assignment of error.
Case No. 12-11-10 

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Shirley’s Assignment of Error No. III 

{¶56} In her third assignment of error, Shirley contends that the trial court 

erred in finding that the marital portion of William’s pension was 144 months and 

not 214 months. Based on the following, we disagree. 

{¶57} In light of our disposition of Shirley’s first and second assignments 

of error, we find that the trial court did not err in classifying only 144 months of 

William’s pension as marital property. Shirley’s figure of 214 months represents 

the number of months between the date Shirley contends is the first month of their 

marriage, October 1988, and the final month of William’s employment at GM, 

July 2006. Consequently, the success of Shirley’s third assignment of error 

depends on whether we sustained either her first or second assignments of error, in 

which she argued that October 1988 should be considered the first month of the 

marriage. Since we overruled Shirley’s first and second assignments of error, it 

follows that the trial court did not err in classifying only 144 months of William’s 

pension as marital property. 

{¶58} Accordingly, we overrule Shirley’s third assignment of error. 

{¶59} Having found no error prejudicial to William or Shirley herein, in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON and WILLAMOWSKI, J.J., concur.