[Cite as Brandon v. Brandon, 2009-Ohio-3818.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MERCER COUNTY 

 

JODI LYNN BRANDON, 

 PLAINTIFF-APPELLANT, CASE NO. 10-08-13 

 v. 

STEVEN HERBERT BRANDON, 

 O P I N I O N 

 DEFENDANT-APPELLEE. 

 

Appeal from Mercer County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 07-DIV-045 

Judgment Affirmed 

Date of Decision: August 3, 2009 

 

APPEARANCES: 

John A. Poppe for Appellant 

Thomas E. Luth for Appellee 
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SHAW, J. 

{¶1} Plaintiff-Appellant Jodi Lynn Brandon (“Jodi”) appeals from the 

October 22, 2008 Judgment Entry of the Court of Common Pleas, Mercer County, 

Ohio, Domestic Relations Division granting a divorce between Jodi and Steven 

Herbert Brandon (“Steven”) and articulating the terms of the divorce. 

{¶2} Jodi and Steven married on October 21, 2000. There was one minor 

child born of the marriage, Garret Brandon, DOB 10/30/2002. Taylor Brandon, 

DOB 6/10/1992 was Jodi’s daughter, who was adopted by Steven and treated as 

Steven’s own. 

{¶3} After Jodi and Steven married, they lived in a house on Steven’s 

mother’s farm property, which they rented for a small payment each month. 

During this time, Steven was employed by Crown Equipment, Inc. and as a 

farmer. Jodi worked part-time as an educational aide for the local school. Both 

parties had pensions from their employment. 

{¶4} Steven farmed several plots of land during the course of the 

marriage, including two forty acre parcels that he owned prior to the marriage and 

a twenty acre parcel that was sold during the course of the marriage. 

{¶5} The twenty acre parcel of land was sold to acquire a down payment 

for a new house, away from Steven’s mother’s farm. The sale of the parcel 
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resulted in a profit of $110,000; $90,890 of that profit was used as a down 

payment on a home located on Fleetfoot Road. 

{¶6} It appears that in July 2007, Jodi, Steven, and their children moved 

into the Fleetfoot Road home. Approximately a week after moving in, Steven 

moved out of the residence. After moving out of the Fleetfoot Road home, Steven 

moved back into the home that they had been renting from his mother. Steven 

never returned to the Fleetfoot Road home. 

{¶7} On July 20, 2007 Jodi filed a complaint for divorce. A hearing was 

held on the matter on April 14-15, 2008. A magistrate’s decision was issued on 

June 3, 2008. On June 16, 2008 both Jodi and Steven filed objections to the 

magistrate’s decision. On June 24, 2008 an amended magistrate’s decision was 

entered which modified the parenting time allocation due to confusion in the 

original decision. On August 18, 2008 Jodi filed supplemental objections to the 

magistrate’s decision. 

{¶8} On October 9, 2008 the trial court adopted the magistrate’s decision 

of June 3, 2008 with the June 24, 2008 amendment. The trial court then entered 

the October 20, 2008 Judgment Entry which essentially reiterated the orders of the 

magistrate’s decision. 

{¶9} Jodi now appeals, asserting three assignments of error. 
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ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE 

THAT THE SEPARATE PROPERTY, REAL ESTATE AND 

FARM EQUIPMENT HAD BECOME MARITAL PROPERTY 

AND MIXED MARITAL AND SEPARATE PROPERTY. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN NOT UNDERTAKING TO 

DO AN INDEPENDENT REVIEW AS TO THE OBJECTED 

MATTER TO ASCERTAIN THAT THE MAGISTRATE HAD 

PROPERLY DETERMINED THE FACTUAL ISSUES. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN NOT ALLOCATING 

BETWEEN THE PARTIES THE DEFENDANT’S DEFINED 

BENEFIT PENSION FROM HIS EMPLOYER. 

First Assignment of Error 

{¶10} In her first assignment of error, Jodi argues that the trial court erred 

in allocating certain property. Specifically, Jodi argues that some of the property 

identified by the trial court as separate property is actually marital property. 

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

property is marital or separate property. Gibson v. Gibson, 3rd Dist. No. 9-07-06, 

2007-Ohio-6965, ¶ 29 citing R.C. 3105.171(B), (D). This court reviews the trial 

court’s classification of property as marital or separate property under a manifest 

weight of the evidence standard. Gibson, 3rd Dist. No. 9-07-06, at ¶26, quoting 

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

Henderson v. Henderson, 3rd Dist. No. 10-01-17, 2002-Ohio-2720, ¶28. 

Accordingly, the trial court’s judgment will not be reversed if the decision is 
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supported by some competent, credible evidence. Eggeman, 2004-Ohio-6050, at 

¶14 citing DeWitt v. DeWitt, 3rd Dist. No. 9-02-42, 2003-Ohio-851, ¶10. 

{¶12} In determining whether competent, credible evidence exists, “[a] 

reviewing court should be guided by a presumption that the findings of a trial 

court are correct, since the trial judge is best able to view the witnesses and 

observe their demeanor, gestures, and voice inflections, and use those observations 

in weighing the credibility of the testimony.” Barkley v. Barkley (1997), 119 Ohio 

App.3d 155, 159, 694 N.E.2d 989 citing In re Jane Doe I (1991), 57 Ohio St.3d 

135, 566 N.E.2d 1181. 

{¶13} Marital property is defined by R.C. 3105.171(A)(3)(a) as follows: 

(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 in-kind contribution of either or both of the spouses that 

occurred during the marriage; 

(iv) A participant account, as defined in section 148.01 of the 

Revised Code, of either of the spouses, to the extent of the 

following: the moneys that have been deferred by a continuing 

member or participating employee, as defined in that section, 

and that have been transmitted to the Ohio public employees 
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deferred compensation board during the marriage and any 

income that is derived from the investment of those moneys 

during the marriage; the moneys that have been deferred by an 

officer or employee of a municipal corporation and that have 

been transmitted to the governing board, administrator, 

depository, or trustee of the deferred compensation program of 

the municipal corporation during the marriage and any income 

that is derived from the investment of those moneys during the 

marriage; or the moneys that have been deferred by an officer 

or employee of a government unit, as defined in section 148.06 of 

the Revised Code, and that have been transmitted to the 

governing board, as defined in that section, during the marriage 

and any income that is derived from the investment of those 

moneys during the marriage. 

{¶14} However, marital property does not include any separate property. 

R.C. 3105.171(A)(3)(b). Separate property is defined by R.C. 3105.171(A)(6)(a) 

which provides in pertinent part as follows: 

(i) An inheritance by one spouse by bequest, devise, or descent 

during the course of the marriage; 

(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; 

(iv) Any real or personal property or interest in real or personal 

property acquired by one spouse after a decree of legal 

separation issued under section 3105.17 of the Revised Code; 

(v) Any real or personal property or interest in real or personal 

property that is excluded by a valid antenuptial agreement; 

(vi) Compensation to a spouse for the spouse's personal injury, 
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except for loss of marital earnings and compensation for 

expenses paid from marital assets; 

(vii) Any gift of any real or personal property or of an interest in 

real or personal property that is made after the date of the 

marriage and that is proven by clear and convincing evidence to 

have been given to only one spouse. 

{¶15} In addition to the statutory definitions of marital and separate 

property, we note that “[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). Therefore, traceability is the main issue in determining whether 

separate property has become marital property due to commingling. Earnest v. 

Earnest, 151 Ohio App.3d 682, 785 N.E.2d 766, 2003-Ohio-704, ¶38, citing Peck 

v. Peck (1994), 96 Ohio App.3d 731, 734, 645 N.E.2d 1300. Further, “the party 

seeking to establish an asset as separate property * * * has the burden of proof, by 

a preponderance of the evidence, to trace the asset to separate property.” Id. 

{¶16} It appears that Jodi’s argument concerns three separate pieces of 

property that the trial court determined to be separate property belonging to 

Steven: two forty acre parcels of farmland that belonged to Steven prior to the 

marriage; the down payment on a home that resulted from the sale of twenty acres 

of farmland belonging to Seven before the marriage; and a grain bin and grain drill 

acquired during the marriage. 
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{¶17} The two forty acre parcels of land belonged to Steven prior to the 

marriage. At the time the parties were married, it appears that Steven owned one 

forty acre parcel of land free and clear of any mortgages or other encumbrances. 

The second forty acre parcel was encumbered by a mortgage at the time Jodi and 

Steven were married. It appears that on August 5, 2004 the mortgage on the 

encumbered forty acres was refinanced in the amount of $91,225.00 in both Jodi 

and Steven’s names. The record indicates that the refinancing occurred to remove 

Steven’s ex-wife’s name from the mortgage. 

{¶18} The balance on the mortgage at the time of the divorce was 

approximately $84,000.00. It further appears that both the forty acre properties 

were used to secure a $35,000 equity line of credit. It appears that during the 

course of the marriage, the equity line of credit was maxed out. However, Steven 

testified that he never spent anything using the equity line of credit. 

{¶19} The trial court concluded that both forty acre parcels of land were 

separate property belonging to Steven, as he owned the property prior to the 

marriage and it appears that the mortgage was paid out of the farm account. The 

trial court also concluded that “[Steven] shall be responsible to pay the equity line 

of credit on said real estate of approximately $35,000 and hold Plaintiff harmless 

in regard thereto. Further [Steven] shall pay the $84,000 mortgage on the real 

estate, and he shall hold Plaintiff harmless in regard thereto.” 
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{¶20} Jodi argues that because the mortgage on the property was paid with 

marital funds she is entitled to receive appreciation on the property or the value of 

mortgage payments made. In support of her argument, Jodi relies on Middendorf 

v. Middendorf, 82 Ohio St.3d 397, 696 N.E.2d 575, 1998-Ohio-403. In 

Middendorf, the Ohio Supreme Court considered whether the appreciation in value 

on a stockyard that occurred during a marriage, was separate or marital property. 

The Court noted that the stockyard itself was separate property, but then 

considered the classification of the appreciation that occurred during the marriage. 

The court concluded that the appreciation was marital property. In reaching this 

conclusion, the Middendorf Court relied on a finding that the increase in the value 

of the stockyard was due to the labor, money, or in-kind contributions. See R.C. 

R.C. 3105.171(A)(3)(a)(iii). Specifically, the court in Middendorf found that the 

husband’s labor made the appreciation that occurred during the marriage marital 

property. However, the Middendorf Court specifically noted that appreciation due 

to labor, money, or in-kind contributions of either spouse was to be distinguished 

from passive appreciation. Passive appreciation value remains separate property. 

See, R.C. 3105.171(A)(6)(a)(iii). In Middendorf, the wife was not entitled to a 

part of the pre-marital business, nor the income in the business. Instead the wife 

was entitled to part of the appreciation of the business. 
Case No. 10-08-13 

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{¶21} In the present case, it appears that the property is under greater 

mortgage encumbrance now, than at the start of the marriage. Therefore, it 

appears that there was no increase in the value of the property due to mortgage 

payments. Moreover, we note that the mortgage payments on the land came from 

a separate farm account, not the family account. 

{¶22} Here, contrary to Jodi’s assertions, all of the farm income was not 

marital income, only farm income transferred into the family account was marital 

income. Moreover, no testimony was given at trial that would indicate that Jodi 

was entitled to any Middendorf appreciation on the property, as there was no 

evidence introduced of any increase in value to the properties “due to the labor, 

money, or in-kind contributions,” and any appreciation on the property over time 

would be passive. Therefore, we find that the trial court correctly determined that 

the two forty acre parcels were separate property belonging to Steven. 

{¶23} Jodi also argues that the down payment for the house was marital 

property. Specifically, although Jodi appears to concede that the down payment 

amount was gained through the sale of separate property she argues that it was 

converted to marital property through a gift and also argues that she is entitled to 

equity in the home. Relying on Deitrich v. Dietrich, 8th Dist. No. 90565, 2008-

Ohio-5740, Jodi argues that the equity in the property is subject to equal division. 

However, although the down payment on the home, made from Steven’s separate 
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property was $90,890.04, the current equity in the home is $85,195. The only 

equity in the home was the result of the down payment, which was Steven’s 

separate property. Therefore, there was no equity which was the result of the 

expense of marital property to be divided. 

{¶24} Jodi also argues that once the down payment was made on a house 

titled in the names of both parties, with a right of survivorship, the property was 

converted to marital property by inter vivos gift. R.C. 3105.171(H) specifically 

provides that “(e)xcept as otherwise provided in this section, the holding of title to 

property by one spouse individually or by both spouses in a form of co-ownership 

does not determine whether the property is marital property or separate property.” 

Therefore, we agree with the trial court that the deed itself is not wholly 

determinative of whether the down payment remains separate property. 

{¶25} Separate property may be converted to marital property by inter 

vivos gift. Helton v. Helton (1996), 114 Ohio App.3d 683, 685, 683 N.E.2d 1157. 

The elements of an inter vivos gift are “‘(1) an intention on the part of the donor to 

transfer the title and right of possession of the particular property to the donee then 

and there and (2), in pursuance of such intention, a delivery by the donor to the 

donee of the subject-matter of the gift to the extent practicable or possible, 

considering its nature, with relinquishment of ownership, dominion and control 

over it.’” Helton, 114 Ohio App.3d at 685-686, quoting Bolles v. Toledo Trust Co.
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(1936), 132 Ohio St. 21, 4 N.E.2d 917 at syllabus. Additionally, “‘[a]n inter vivos 

gift is an immediate, voluntary, gratuitous and irrevocable transfer of property by a 

competent donor to another.’” Helton, 114 Ohio App.3d at 685-686, quoting Smith 

v. Shafer (1993), 89 Ohio App.3d 181, 183, 623 N.E.2d 1261. 

{¶26} The party claiming an inter vivos gift bears the burden of showing by 

clear and convincing evidence that such a gift was made. Id. Moreover, the 

existence of a deed in the names of both parties does not shift the burden away 

from the donee spouse to prove that an inter vivos gift occurred. See Jones v. 

Jones 4th Dist. No. 07CA25, 2008-Ohio-2476; Brady v. Brady, 11th Dist. No. 2007-

P-0059, 2008-Ohio-1657; Gibson v. Gibson 5th Dist No. 2006 AP 01 0009, 2007-

Ohio-2087; Ardrey v. Ardrey, 3rd Dist. No. 14-03-41, 2004-Ohio-2471. 

{¶27} In the present case, although Jodi’s name was on the deed, no 

evidence was adduced at trial that would indicate that Steven intended the down 

payment to be a gift. Steven did not testify that he intended the down payment to 

be a gift. Moreover, Jodi was unable to point to any evidence that the down 

payment was a gift. Accordingly, we cannot conclude that the trial court finding 

of no donative intent was against the weight of the evidence. 

{¶28} Finally, Jodi argues that a grain drill and grain bin purchased during 

the course of the marriage were marital property. The trial court found that 

[w]ith regards to farm equipment, there are two items that were 

purchased during the marriage. However, the same shall be 
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considered separate property of the Defendant since the 

equipment purchases were from the farm account which is 

separate property belonging to the Defendant. Further, they 

were purchased for the farm. This is clearly traceable. There 

are mortgage balances on each of them and Defendant will also 

be responsible for any monies due and owing. This is a separate 

obligation of the Defendant for which Plaintiff has no 

responsibility. 

{¶29} The grain bin and drill were purchased with farm funds. As the trial 

court determined, the farm funds were not marital property as the farm funds were 

kept in a separate checking account, which had been established prior to the 

marriage and were used to fund the farm business. Moreover, Jodi did not 

contribute to the farming business, through labor or monetary contributions, 

during the course of the marriage. Farm funds were not converted to marital 

property until transferred to the family checking account. Therefore, although 

some farm income was converted to marital property when Steven treated it as 

income from the farm and transferred it to the family checking account, all farm 

income was not automatically marital property and the grain drill and grain bin 

were purchased with separate property and remain separate property. 

Accordingly, Jodi’s first assignment of error is overruled. 

Second Assignment of Error 

{¶30} In her second assignment of error, Jodi argues that the trial court 

erred by not thoroughly reviewing the magistrate’s decision. Specifically, Jodi 

argues that the trial court erred by not specifically addressing each one of her 
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objections to the magistrate’s decision. Civil R. 53(4)(d) provides the procedure 

for the trial court when ruling on objections to a magistrate’s decision as follows: 

(d) Action on objections. If one or more objections to a 

magistrate's decision are timely filed, the court shall rule on 

those objections. In ruling on objections, the court shall 

undertake an independent review as to the objected matters to 

ascertain that the magistrate has properly determined the 

factual issues and appropriately applied the law. Before so 

ruling, the court may hear additional evidence but may refuse to 

do so unless the objecting party demonstrates that the party 

could not, with reasonable diligence, have produced that 

evidence for consideration by the magistrate. 

{¶31} In ruling on a magistrate’s decision, a trial court is free to adopt or 

reject a magistrate's decision in whole or in part, with or without modification. 

Civ. R. 53(4)(b). However, this Court has previously held that “Civ.R.53 still 

requires a trial court to conduct an independent review when a party files 

objections to the decision of the magistrate.” Reese v. Reese, 3rd Dist. No. 14-03-

42, 2004-Ohio-1395. On appellate review, an appellate court will not reverse the 

trial court's decision if it is supported by some competent, credible evidence. 

Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. 

We recognize, moreover, that a trial court has broad discretion in determining an 

equitable distribution of property in divorce cases. Lust v. Lust, Wyandot App. No. 

16-02-04, 2002-Ohio-3629, at ¶ 25, quoting Bisker v. Bisker (1994), 69 Ohio St.3d 

608, 609, 635 N.E.2d 308, 1994-Ohio-307. 
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{¶32} In the present case, Jodi filed a lengthy objection to the magistrate’s 

decision, as well as a set of supplemental objections to the magistrate’s decision. 

However, we recognize that many of those objections did not concern the 

magistrate’s recommended orders, but instead concerned Jodi’s objections to 

“characterizations” made by the magistrate. The trial court made a similar 

observation when it reviewed the magistrate’s decision as follows: 

The court does not deem it appropriate or necessary to address 

each of the objections of the plaintiff contained in her Objection 

to the Magistrate’s Decision or her supplement thereto. Rather, 

the court concludes that plaintiff’s objections state her 

disagreement with the Magistrate’s interpretation of the 

evidence. 

As the finder of fact, it is the Magistrate’s responsibility to 

weigh the evidence which requires the Magistrate to determine 

the credibility of the witnesses. The court finds and concludes 

that the Magistrate has done so and that the transcript of the 

evidence supports the findings of fact made by the Magistrate in 

her decision filed June 6, 2008, as amended June 24, 2008. 

Further, the court finds and concludes that the Magistrate has 

addressed the specific findings of fact the court must consider 

concerning the allocation of parental rights and responsibilities 

and parenting time for the care of the children, child support, 

income tax exemptions, spousal support and division of property 

and debt, both marital and non-marital, and that the Magistrate 

properly applied the law. 

{¶33} Moreover, although Jodi contends that the trial court has not 

conducted an independent review of the record, she is unable to point to any 

evidence contradicting the trial court’s assertion that it did undertake an 
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independent review of the evidence, other than her dissatisfaction with both the 

magistrate’s and trial court’s conclusions. 

{¶34} As this Court found in the first assignment of error, many of Jodi’s 

objections that she argues were not properly reviewed were based on incorrect 

assertions of law or were merely disagreements with the magistrate’s 

characterizations of the evidence. For example, Jodi made the following 

objections: 

In the Magistrate’s Findings of Fact Two and Three, the 

inference of the Magistrate is that the Plaintiff has somehow or 

another been negligent in her earning when the testimony 

indicated that she had been totally involved in raising the 

children and maintaining the household. The testimony 

indicated that Plaintiff’s limited employment was not due to 

lack of interest, but rather recognizing priorities which were 

important to the Father and Mother of these two children. 

*** 

The Magistrate in paragraph Five of her Findings of Fact 

inserts part of the blame on the Plaintiff because at the time that 

the Defendant was acting very strangely and totally irrationally 

as previously indicated, Taylor was needing to be away from 

him as most teenage girls would be afraid of a Father who is 

acting irrational and abnormal. 

{¶35} Although this Court might have preferred to see the trial court 

undertake a more itemized review of Jodi’s objections, objections based on 

characterizations of evidence, such as those set forth above, do not require more 

analysis by the trial court. Accordingly, we cannot find that the trial court did not 
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conduct an independent review simply because it failed to analyze each meritless 

objection in detail or discuss every conceivable characterization of the evidence. 

Therefore, Jodi’s second assignment of error is overruled. 

Third Assignment of Error 

{¶36} In her third assignment of error, Jodi argues that the trial court erred 

by not allocating, to her, a portion of Steven’s “defined benefit pension.” As an 

initial matter, we note that the division of the defined benefit pension was not 

raised in Jodi’s objections to the magistrate’s decision. Civil Rule 53(D)(3)(b)(iv) 

provides that if a party fails to file a timely objection to the magistrate’s decision, 

“[e]xcept for a claim of plain error, a party shall not assign as error on appeal the 

court’s adoption of any factual finding or legal conclusion, whether or not 

specifically designated as a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as 

required by Civ.R. 53(D)(3)(b).” 

{¶37} The Ohio Supreme Court has discussed the application of the plain 

error doctrine in civil cases, finding that, “[i]n appeals of civil cases, the plain 

error doctrine is not favored and may be applied only in the extremely rare case 

involving exceptional circumstances where error, to which no objection was made 

at the trial court, seriously affects the basic fairness, integrity, or public reputation 

of the judicial process, thereby challenging the legitimacy of the underlying 
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judicial process itself.” Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 679 

N.E.2d 1099, 1997-Ohio-401, at syllabus. 

{¶38} “A ‘plain error’ is obvious and prejudicial although neither objected 

to nor affirmatively waived which, if permitted, would have a material adverse 

affect on the character and public confidence in judicial proceedings.” Schade v. 

Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209, 436 N.E.2d 1001. A trial 

court may adopt a magistrate’s decision in the absence of objections, “unless it 

determines that there is an error of law or other defect on [its] face.” Civ.R. 

53(E)(4)(a). Review under the plain error standard is limited on appeal to review 

of “the trial court's adoption for failure to correct an obvious error of law or other 

such defect in the decision.” Timbercreek Village Apts. v. Myles (May 28, 1999), 

Montgomery App. No. 17422 citing Divens v. Divens (Oct. 2, 1998), Clark App. 

No. 97 CA 0112. 

{¶39} Although not specifically articulated in Jodi’s brief, it appears that 

her argument concerns Steven’s Corporate Retirement Plan from his employment 

with Crown Equipment. In an exhibit dated September 21, 2007, the value of this 

plan is stated to be $14,700.00. It appears, however, from our review of the 

allocation of the assets, that Jodi suffered no prejudice from the trial court’s 

allocation of the assets. Even if we were to conclude that the trial court considered 

the pension, allocated it to Steven, and simply failed to mention it, it is apparent 
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that, when balanced against the marital debts, Jodi still received more than half of 

the marital assets. As a result, we cannot find that the trial court’s failure to 

specifically mention the pension in its allocation effects the “basic fairness, 

integrity, or public reputation of the judicial process” as required under a plain 

error analysis. Accordingly, Jodi’s third assignment of error is overruled. 

{¶40} Based on the foregoing, the October 22, 2008 Judgment Entry of the 

Court of Common Pleas, Mercer County, Ohio, Domestic Relations Division is 

affirmed. 

Judgment Affirmed 

PRESTON, P.J., concurs. 

/jlr 

ROGERS, J., Concurring in Part and Dissenting in Part. 

{¶41} I concur in the majority’s disposition of the second and third 

assignments of error; however, I respectfully dissent from the majority’s finding in 

the first assignment of error that the home was Steven’s separate property for the 

reasons set forth in Neville v. Neville, 3d Dist. No. 9-08-37.