CourtListener opinion 3729533

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OPINION 
This is an appeal and cross-appeal from the judgment entry and decree of divorce of the Hancock County Court of Common Pleas, Domestic Relations Division, in which the court ordered the division and distribution of the parties' marital and separate property and awarded spousal support. 
 Appellant/cross-appellee, Lawrence Pudlo, and appellee/cross-appellant, Sandra Pudlo, were married in 1973. Two emancipated children were born as issue of the marriage. On May 10, 1999, Sandra filed a complaint for divorce, and later, amended her complaint on September 10, 1999. The matter was heard on February 14, 16, and 22, 2000. On June 23, 2000, the trial court issued a decision and order setting forth findings and conclusions, and on September 14, 2000, the entry of divorce was journalized. Lawrence now appeals to this court and raises the following four assignments of error: 
 The trial court erred in finding the gifts between the parties paid for with marital funds to be separate property. 
 The trial court erred in the establishment of the duration of marriage. 
 The trial court erred in the division of property regarding tax consequences and distribution of unevaluated personal property. 
 The trial court erred in awarding appellee spousal support. 
 In Sandra's cross-appeal, she raises the following three cross-assignments of error: 
 The trial court erred by failing to award appellee/cross-appellant $50,000 of the value of the parties' Florida real estate as her separate property. 
 The trial court erred in failing to award appellee adequate spousal support. 
 The trial court erred in disregarding the uncontradicted appraisal values of personal property placed in evidence by appellee. 
 We will first discuss Lawrence's assignments of error in the order asserted and together with Sandra's cross-assignments of error where appropriate. Turning to Lawrence's first assignment of error, Lawrence argues the trial court improperly found that the gifts of jewelry between the parties during their marriage were separate rather than marital property. 
 In its decision, the trial court states it applied the preponderance of evidence standard in determining the items of jewelry were unconditional gifts, thus awarding the jewelry to Sandra or Lawrence individually as her or his separate property. However, under R.C. 3105.171 (A)(6)(a)(vii), a gift made after the date of the marriage will be classified as separate property only if there is clear and convincing evidence that such gift was given to only one spouse. 
 In reviewing the record, there was unequivocal testimony that the jewelry the parties purchased and gave to each other was intended as a gift. There was also testimony that nothing was said about it being given as conditional gifts. We view that to be clear and convincing evidence that this jewelry was given as a gift as required by R.C. 3105.171 (A)(6)(a)(vii). Based upon the record, we find the jewelry was properly awarded to Lawrence and Sandra as his or her separate property. Lawrence's first assignment of error is overruled. 
 In his second assignment of error, Lawrence asserts that the trial court abused its discretion in using the date of the final divorce hearing, February 22, 2000, as the termination date of the marriage. R.C. 3105.171 (A)(2) provides that, except when the court determines that it would be inequitable, the date of the final hearing is usually the date of termination of the marriage. The trial court's decision whether or not to use an alternative date is subject to the discretion of the court and will not be reversed on appeal absent an abuse of discretion. Berish v. Berish (1982), 69 Ohio St.2d 318 ; Glick v. Glick (1999), 133 Ohio App.3d 821 , 828 . A basis for using a de facto termination date can be established where one party leaves the marital home, the parties have separate bank accounts and business activities, the parties are separated for six years, and a substantial amount of assets are accumulated during the separation. See Gullia v. Gullia (1994), 93 Ohio App.3d 653 . 
 At the final hearing held in February 2000, the parties stipulated to the value of most of their marital property. The only items not stipulated which are at issue herein were the parties' checking and savings accounts. Lawrence argues that using the February 22 hearing date results in an inequity in the valuation and division of those accounts. Our review of the record reveals that although Sandra withdrew funds from the parties' joint accounts in January 1999, the parties did not separate until mid December 1999. In addition, the parties had a joint checking account into which Sandra continued to deposit funds, as well as had personal expenses paid out of this account, until in June 1999. From this account, Lawrence wrote checks for the monthly mortgage payments and household bills until the end of November when it was changed to his individual account. While it is true that the parties separated approximately two months before the final hearing date and Sandra spent money towards establishing a separate residence at that time, these facts would not necessarily be controlling so as to deprive the trial court of its discretion in determining that the termination of the marriage between the parties was the date of the final hearing. Moreover, it was not inequitable to do so in this case simply because the balance provided of Lawrence's checking account was as of December 31, 1999. 
 Therefore, upon reviewing the record, we are unable to conclude that the trial court abused its discretion in using the date of the final divorce hearing as the date of termination of the marriage. Accordingly, Lawrence's second assignment of error is overruled. 
 In his third assignment of error, Lawrence argues that the trial court erred in its division of marital property by requiring him to share the tax consequences on the award to Sandra made from his deferred funds, thereby rendering that division unequal and leaving the parties' financial affairs entangled. In order to equalize the division of marital property, the trial court ordered Lawrence to transfer $201,417.79 to Sandra by way of qualified domestic relations order, or any other necessary method, from either his Prudential IRA account or his GROB profit sharing account. The court, in its judgment entry, then stated that \[Lawrence] shall be responsible for one-half of any taxes and/or early withdrawal penalties as a result of this equalization.\"