[Cite as Wurm v. Wurm, 2017-Ohio-861.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 HURON COUNTY 

Courtney C. Wurm Court of Appeals No. H-15-018 

 

 Appellee Trial Court No. DR 2012 0269 

v. 

Randall L. Wurm DECISION AND JUDGMENT

Appellant Decided: March 10, 2017 

* * * * * 

 Shelly L. Kennedy, for appellant. 

* * * * * 

JENSEN, P.J. 

{¶ 1} This is an appeal from the judgment of the Huron County Court of Common 

Pleas. Appellant, Randall Wurm, appeals the trial court’s determination that the marital 

residence is entirely marital property, and that he did not sufficiently trace his separate 

property used for its construction. For the reasons that follow, we reverse. 
2.

I. Facts and Procedural Background 

{¶ 2} Appellant and appellee, Courtney Wurm, were married on July 3, 1999. 

They have four children born of the marriage. On March 26, 2012, appellee filed a 

complaint for a divorce. Appellant also counterclaimed for a divorce. The parties have 

resolved the other issues, and the only matter before us is whether appellant sufficiently 

traced his separate property used to build their marital residence. 

{¶ 3} Relative to that issue, the court held a hearing before a magistrate on 

November 7, 2013. At the hearing, the testimony revealed that the parties purchased 10 

acres of land shortly after their marriage in 1999. The purchase price of the land was 

$31,000. Appellant testified that he purchased the land by selling $9,818 in Sprint stock, 

$6,412 in Gateway stock, and an additional $13,500 from a Fidelity Utilities mutual fund, 

thereby raising a total of $29,730 from his pre-marital assets. Appellant submitted 

financial statements and tax returns evidencing these transactions. 

{¶ 4} The parties then began construction of their marital residence, which was 

completed around November 2000. Appellant testified that the cost to build the house 

was approximately $215,000, and appellee testified that she agreed with that amount. 

However, appellant was only able to produce receipts and other documentation indicating 

that the total cost was $161,716.09. 

{¶ 5} It is undisputed that there were three sources of financing for the 

construction of the home: (1) sales from appellant’s pre-marital investment accounts, (2) 

gifts and/or loans from appellant’s parents, and (3) an $85,000 mortgage taken out in 
3.

April 2000. As to appellant’s pre-marital investment accounts, appellant testified that in 

February 2000 he sold $12,678 worth of shares in a Fidelity Dividend Growth Exchange 

fund, in May 2000 he sold $13,572 worth of shares in a First Citizens Dividend 

Reinvestment fund and $8,739 in Cedar Fair stock, in June 2000 he sold $35,000 worth 

of shares in his Fidelity Utilities mutual fund, and in October 2000 he sold another 

$37,000 worth of shares from that same fund. Again, appellant submitted financial 

statements and tax returns evidencing these transactions. The total amount raised by 

appellant through the sales of his pre-marital stock was $106,989. 

{¶ 6} Following the hearing, the magistrate issued his decision, in which he found 

that appellant had not sufficiently traced his separate property. Specifically, as it relates 

to the $29,730 used to purchase the land, the magistrate found that marital debt in the 

form of the $85,000 mortgage taken out in April 2000 eliminated all of the equity in the 

land, and thus ended the traceability of appellant’s separate property. As to the $106,989 

used for building the house, the magistrate found that appellant credibly proved that he 

raised those funds from his pre-marital separate property. However, the magistrate found 

that appellant did not provide any evidence showing the value of the marital residence at 

the time, and found it unreasonable that appellant was requesting a dollar-for-dollar 

reimbursement of his separate property. In addition, the magistrate found that the 

receipts and documentation regarding the cost of building the home was “almost 

completely unreliable” because it included documents labeled “estimates,” bills to 

contractors, subcontractors, and appellant’s father, and no indication of the source of 
4.

funds used to pay said bills. Therefore, the magistrate found that the residence was 

marital property subject to an equitable division. 

{¶ 7} Appellant timely filed objections to the magistrate’s decision. On July 2, 

2014, the trial court remanded the matter to the magistrate to “take additional evidence on 

the separate property claims of [appellant] in the [marital residence].” 

{¶ 8} At the subsequent hearing on October 7, 2014, appellant submitted the 

auditor’s valuation of the land in 2001 after the house was built, which was $278,600. 

Appellant also submitted letters from his banks stating that the banks no longer had 

records of his financial transactions from 1999 and 2000 because those records are 

beyond the banks’ seven-year retention policy. Finally, appellant testified that appellee 

was in school, and was not working when the land was purchased and the house was 

built. 

{¶ 9} Thereafter, the magistrate entered his decision on April 6, 2015, again 

finding that appellant had not sufficiently traced his separate property. In his decision, 

the magistrate reasoned that none of the additional evidence addressed his findings that 

the money for the real estate was not traceable and that appellant’s documentation for the 

building costs of the house was unreliable. Appellant timely filed objections to the 

magistrate’s decision, which the trial court overruled on August 31, 2015. In its August 

31, 2015 judgment entry, the trial court granted the divorce and divided the marital 

property evenly, awarding the marital residence to appellant, but ordering that he pay 

appellee $80,848.50, which represented an even split of the equity in the home less an 

unrelated offset. 
5.

II. Assignment of Error

{¶ 10} Appellant has timely appealed the trial court’s August 31, 2015 judgment, 

and now asserts one assignment of error for our review: 

I. The trial court erred in classifying appellant’s separate property, 

owned prior to the marriage and traced by a preponderance of the evidence, 

as marital property. 

III. Analysis

{¶ 11} “Appellate review of a trial court’s classification of property as marital or 

separate is based upon a determination of whether the classification is against the 

manifest weight of the evidence.” Bigelow v. Bigelow, 6th Dist. Lucas No. L-13-1018, 

2014-Ohio-994, ¶ 22, citing James v. James, 101 Ohio App.3d 668, 684, 656 N.E.2d 399 

(2d Dist.1995). “Where a classification is supported by some competent credible 

evidence in the record, it will not be reversed as against the manifest weight of the 

evidence.” Id., citing C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279, 376 

N.E.2d 578 (1978), syllabus. 

{¶ 12} Relevant here, R.C. 3105.171(A)(6) provides, 

(a) “Separate property” means all real and personal property and 

any interest in real or personal property that is found by the court to be any 

of the following: 

* * * 

(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; 
6.

(iii) Passive income and appreciation acquired from separate 

property by one spouse during the marriage; 

* * * 

(b) 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. 

“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.” Peck v. Peck, 96 Ohio App.3d 731, 734, 645 N.E.2d 1300 (12th Dist.1994). 

{¶ 13} In his brief, appellant argues that the only reasonable explanation for how a 

young couple with limited income built a house valued at $278,600 is that the proceeds 

from the sale of appellant’s pre-marital stocks were used to finance the construction. 

{¶ 14} As support for his argument, appellant cites Riley v. Riley, 6th Dist. Huron 

No. H-08-019, 2009-Ohio-2764, in which we held that the trial court erred in determining 

that the appellant wife had failed to trace her separate property. In that case, the parties 

agreed that the wife had a pre-marital home, that she sold the home and received $46,388 

in proceeds, and that the $46,388 in proceeds was used towards a $47,761 deposit on the 

construction of their marital home. Furthermore, the appellee husband acknowledged 

that he had no other funds or assets from which the construction loan deposit could have 

been drawn. In reversing the trial court, we reasoned that “[s]ince the parties agreed on 

the ultimate use and destination of the separate property proceeds, written documentation 
7.

of the temporary deposit of the [pre-marital] proceeds was unnecessary to trace those 

funds.” Id. at ¶ 17. Further, “the inference that the proceeds from the sale of one 

property were applied to the construction loan just three months later, does not require a 

‘leap of faith’ or any other speculation. Rather, it is based on logic, common sense, and 

the parties’ own testimony which provided the necessary verification.” Id.

{¶ 15} We find the present situation to be analogous. Here, the parties do not 

dispute that the stock owned by appellant was his separate property. The parties also 

agree that the cost to purchase the land was $31,000, and the cost to build the home was 

$215,000. Relative to the land purchase, appellant produced financial statements 

showing that he sold $29,730 of his pre-marital stock within a few months prior to the 

purchase, and he testified that the proceeds were used to buy the land. Relative to the 

cost of building the home, appellant testified that it was financed through an $85,000 

mortgage, gifts and/or loans from his parents, and the sale of his pre-marital stock. 

Again, appellant provided financial statements evidencing that he sold $106,989 worth of 

his stock during the construction period, and he testified that those proceeds were used to 

build the home. Notably, appellee testified that she did not bring any funds or assets into 

the marriage, and her trial counsel even acknowledged: “I agree that this house did not 

just magically appear. I agree that it’s probably likely that a good amount of [appellant’s] 

or some amount of [appellant’s] separate property went into that house, but as the Court 

knows the issue becomes one of traceability.” 

{¶ 16} As was the case in Riley, the conclusion that appellant’s separate property 

was used to build the marital residence is grounded in logic, common sense, and the 
8.

parties’ own testimony. Appellant has demonstrated that he sold his pre-marital stocks to 

build the house, and appellee has not challenged that demonstration or provided any 

alternate explanation of how they paid for the house. Therefore, we hold that the trial 

court’s conclusion that appellant failed to trace his separate property in the marital 

residence is against the manifest weight of the evidence. 

{¶ 17} Accordingly, appellant’s assignment of error is well-taken.

{¶ 18} The next question we must resolve is the present value of appellant’s 

separate property interest in the marital home. In Munroe v. Munroe, 119 Ohio App.3d 

530, 536-538, 695 N.E.2d 1155 (8th Dist.1997), the Eighth District provided a formula 

which multiplied the percentage of separate property initially invested in the home by the 

change in value of the home during the course of the marriage. Here, appellant testified, 

and appellee agreed, that the cost to purchase the land was $31,000, and the cost to build 

the home was $215,000, for a total of $246,000. Appellant contributed $136,719 of his 

separate property ($29,730 for the land, and $106,989 for the construction), or 55.6 

percent of the total cost. As to the change in value, the evidence shows that the home 

was initially valued at $278,600 in 2001,1

 and the parties stipulated that the current value 

was $248,500, for a net loss in value of $30,100. Appellant must bear 55.6 percent of 

 

1

 While appellee stipulated to the admission of the 2001 auditor’s report, appellee did not 

necessarily stipulate that the then value of the home was $278,600. Nevertheless, 

because the valuation proposed by appellant was $32,600 higher than the actual cost of 

$246,000, and because a higher valuation benefits appellee because appellant must 

therefore recognize a higher loss, we do not find it prejudicial to appellee to use the 

auditor’s 2001 valuation. 
9.

that loss, thereby reducing the value of his separate property contribution by $16,736. 

Thus, the total present value of appellant’s separate property interest in the marital home 

is $119,983. 

IV. Conclusion

{¶ 19} For the foregoing reasons, the judgment of the Huron County Court of 

Common Pleas is reversed. The matter is remanded to the trial court for an equitable 

division of property consistent with this decision recognizing that appellant has a separate 

property interest of $119,983 in the marital home. Appellee is ordered to pay the costs of 

this appeal pursuant to App.R. 24. 

Judgment reversed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See, also, 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

James D. Jensen, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE