Johnson v. Johnson

2021 Ohio 16

• Court: Ohio Court of Appeals
• Decided: January 8, 2021
• Docket: 2020-CA-25
• Status: Published

Opinion

[Cite as Johnson v. Johnson, 2021-Ohio-16.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

TONYA C. JOHNSON : : Plaintiff-Appellant : Appellate Case No. 2020-CA-25 : v. : Trial Court Case No. 2018-DR-783 : DONALD W. JOHNSON : (Domestic Relations Appeal from : Common Pleas Court) Defendant-Appellee : :

...........

OPINION

Rendered on the 8th day of January, 2021.

VALERIE JUERGENS WILT, Atty. Reg. No. 0040413, 333 North Limestone Street, Suite 202A, Springfield, Ohio 45503 Attorney for Plaintiff-Appellant

REGINA ROSEMARY RICHARDS, Atty. Reg. No. 0079457, 202 Scioto Street, Urbana, Ohio 43078 Attorney for Defendant-Appellee

.............

DONOVAN, J. -2-

{¶ 1} Tonya C. Johnson appeals from the trial court’s final judgment granting her

a divorce from Donald W. Johnson. Specifically, she argues that the trial court erred in

failing to address Donald’s retirement benefits in its division of marital property, in its

failure to award her spousal support, and in issuing a vague order for Donald to “be

responsible for all outstanding bills associated with the prior marital residence.” Because

we find that these arguments have merit, we reverse the trial court’s judgment and

remand for it to address Donald’s retirement benefits, reconsider spousal support in light

of its distribution of the retirement benefits, and clarify its order with respect to the

outstanding bills.

{¶ 2} Donald and Tonya Johnson were married on August 24, 1996, and two

children were born of the marriage; one of the children was emancipated by the time of

the parties’ divorce. On September 5, 2018, Tonya filed a complaint for divorce, a motion

for a “temporary mutual restraining order” (TMRO), and a motion for other temporary

orders. The court granted the TMRO on September 7, 2018.

{¶ 3} On October 15, 2018, the magistrate issued temporary orders after a hearing.

The magistrate designated Tonya as the sole residential parent of the minor child and

granted Donald parenting time “as the parties agree.” The magistrate also gave Tonya

exclusive use of the marital residence, ordered Donald to pay the mortgage and utilities

for the marital residence each month, and ordered Donald to pay monthly child support

of $638.39. The child support worksheet on which the child support calculation was

attached to the order; it listed Donald’s income as $58,551.67 and Tonya’s income as

zero.

{¶ 4} On November 1, 2018 Donald filed a motion for leave to file an answer to the -3-

complaint for divorce and an answer. On November 6, 2018, he filed a motion for

modified temporary orders, and on November 7, he filed an affidavit in support of modified

temporary orders. In his affidavit, Donald asserted that Tonya had “(mistakenly) omitted

her gross income” in her filings with the court, specifically her schedule C income for

fostering children, which annually averaged $50,658.33, based on the Schedule C

attached to the parties’ joint 2015-2017 tax returns. Donald argued that the inclusion of

Tonya’s income for purposes of calculating child support would decrease the previously

ordered temporary child support from $638.39 to $418.62 per month, plus the processing

fee. Donald further asserted that Tonya had not been agreeing to any parenting time for

him and that she had been discussing the parties’ marital problems with the minor child.

Donald requested an order of temporary shared parenting.

{¶ 5} On November 29, 2018, Tonya filed a motion to find Donald in contempt,

which asserted that Donald had failed to pay the mortgage and utilities for the marital

residence and to pay child support.

{¶ 6} On December 11, 2018, Donald filed a counterclaim for divorce and custody.

His attached an Affidavit of Property, which listed, under “Pensions and Retirement

Plans”: State of Ohio/OPERS, value “unknown.”

{¶ 7} On February 12, 2019, Donald filed a motion for a continuance of the

evidentiary hearing, asserting that Tonya had not fully responded to his discovery

requests and that he had “a significant health concern” that would likely result in “a

substantial change of circumstances” before the divorce could be finalized. On the same

day, he filed a motion to compel, which asserted that Tonya had failed to comply with his

requests for “all charge account statements” for the past 12 months, for copies of all bank -4-

account statements, and for responses to his interrogatories requesting the identity of her

witnesses for trial and copies of any exhibits she intended to introduce. Donald attached

an email and written correspondence from his attorney to Tonya’s attorney, dated January

31, 2019, which stated that Tonya’s discovery responses had been due on January 4,

2019.

{¶ 8} On February 12, 2019, Donald also filed a motion for an in camera interview

the parties’ minor child regarding the child’s wishes with respect to the allocation of

parental rights. Additionally, Donald filed a motion for contempt, with an affidavit and

multiple exhibits. The motion for contempt asserted that Tonya had violated the TMRO

by selling property from the marital residence, that she had “attempted to force the sale”

of the marital residence, that she had repeatedly harassed him by phone and at his

residence, that she had alienated the minor child from him, and that she had failed to

disclose her full income.

{¶ 9} On February 15, 2019, a magistrate indicated that Donald’s motion for an in

camera hearing would be “held under advisement” until after the hearing.

{¶ 10} On April 9, 2019, Donald filed a “Notice of Change of Circumstances,” in

which he asserted that was receiving daily radiation and weekly chemotherapy for cancer

and was on a feeding tube. Donald asserted that his income would “change immediately

to 70% of his regular income.” An April 9, 2019 correspondence from Jennifer Miller,

Human Capital Management Analyst from Martin and Richards Co., L.P.A., was attached

to the notice; the correspondence stated that Donald went on disability leave beginning

on April 8, 2019, that his normal hourly wage was $22.00, and that he would earn $15.40

per hour while on disability leave. -5-

{¶ 11} On April 26, 2019, the magistrate scheduled a hearing on the complaint and

all pending motions on June 7, 2019.

{¶ 12} On June 3, 2019, Donald filed another request for a continuance, asserting

that his oncologist wanted him to “rest for at least thirty days.” Donald also renewed his

prior request to reduce his support obligation due to a significant change in

circumstances; he asserted that he still was not working due to cancer and only received

60% of his income. The magistrate granted the motion to continue the hearing and

scheduled an in camera interview with the minor child.

{¶ 13} The evidentiary hearing occurred on October 7, 2019. The following

evidence was presented at the hearing:

{¶ 14} Tonya testified that she was employed by South Community, Inc., as a

foster parent and had one foster child; she earned $1,500 per month. She stated that

she had had “quite a few” foster children over 13 years, and that when Donald resided

with her she had three foster children in their home. She stated that, at that time, she

had received $1,500 for two of the children and $1,800 for the third child. Tonya stated

that two of the children had been removed from her care “in September.” According to

Tonya, Donald had tried to work things out with her several times, and on the last

occasion, there was “a big incident.” She stated that she had “discovered about five to

seven bottles of steroids, that Donald had received phone calls from his live-in girlfriend,

and that he “got outraged, put his hands on” her, and “took off.” Tonya stated that the

two foster children were removed from her care because Donald called the police on her,

his girlfriend called Children’s Services, and Donald called her supervisor. The third

foster child was from a different county, which “did not believe the history,” and therefore -6-

was not removed. Thus, Tonya asserted that Donald had caused her “to lose $3,000 a

month.”

{¶ 15} Tonya stated that Donald was employed as a corrections officer at Madison

Correctional Institution and earned about $50,000 a year. Tonya stated that Donald had

been unable to work for some time, but that he was working full time plus a lot of overtime

at the time of the hearing. She stated that she received $334 from Donald every two

weeks in child support.

{¶ 16} Tonya stated that she had prepared a proposed settlement and that she

wanted sole residential custody of the minor child. She also wanted “full medical for [the

child], dental and vision, [and] for myself as well.” Tonya was receiving full benefits

through Donald’s employment at the time of the hearing, and she wanted that

arrangement to continue so that she could “continue therapy for the mental, extreme cruel

mental abuse and physical abuse that I have had.”

{¶ 17} Further, Tonya stated that she wanted to claim the minor child for tax

purposes, because she planned to go back to school and would need “all the help that

[she] can get.” Tonya testified that Donald had been ordered to make the house

payments and pay the utilities, but that he “did absolutely nothing of that.” She stated

that the marital residence went into foreclosure, that she sold it by herself, that they made

no money off of it, and both “had to bring money to closing.” Tonya stated that she had

to pay approximately $800 to close the sale.

{¶ 18} Tonya testified that she had moved to her mom’s basement so she could

stay in the same school district. She asked that the marital debt, her attorney fees, and

court costs be paid by Donald. Tonya also asked for 60 percent of Donald’s retirement -7-

account and child support.

{¶ 19} Tonya testified that her monthly expenses were as follows: she paid $600

per month to her mom, $389 for her car payment, $335 for car insurance for herself and

her daughter, roughly $ 300 for utilities, $300 for food, approximately $300 for dental, and

$300 for credit cards. Tonya stated her monthly expenses totaled $2,659. With respect

to student loans, Tonya stated that she was “on a program,” but that it would change in

the next four months and she did not know how much the payment would be. She stated

that she could not re-enroll in school until her loan was caught up.

{¶ 20} Tonya stated that the parties’ minor child began visiting with Donald after

he became ill with cancer, but that she rarely had done so before then. She stated that

Donald “never paid one dime” of what he was ordered to pay from the court’s first order.

These included the water bill “from August of when he left until I sold the property,” for a

total of $1,335; a gas bill from Columbia Gas of $1,758.43; Spectrum cable, internet,

phone, “everything in one,” for $2,019.26; a trash bill for $165.75; and $800 for two cell

phone bills. Further, Tonya testified that Donald never made a house payment, and that

if he had done so, they “would have made money off the house” and she would not have

had to move in with her mom. Tonya stated that Donald “took a hammer” to a door from

the garage to the home and never fixed it, “rammed his forehead” through her bedroom

wall, “shattered” her TV, broke a door, broke her bed, and “kicked out the bannister on

the way out.” Tonya testified that she spent $300 on home repairs. Tonya stated that

she wanted Donald to pay her expenses and for their lost income on the sale of the house.

Finally, Tonya testified that she was 46 years old, that she and Donald had separated on

August 10, 2018, and that they had been married for 23 years. -8-

{¶ 21} On cross-examination, Tonya testified that she complied with all discovery

requests and was unaware of Donald’s contempt motion. Tonya stated that the marital

home went into foreclosure because Donald failed to make the house payments. Tonya

stated that she knew Donald was on disability for cancer treatment between April and

July 2019. When asked if she recently had received some money for cashing in one of

Donald’s retirement benefits,” Tonya responded that she did not cash it in, Donald did,

and that it was “deferred comp, * * * like a savings account,” not a retirement account.

Tonya stated that she and Donald each received $5,500 after he cashed in the deferred

compensation. Tonya acknowledged that she also received $1,200 from Donald to pay

for the minor child’s braces while he was receiving cancer treatment.

{¶ 22} Tonya stated that she and Donald had both been foster parents, but the

foster care income had been “in Donald’s name only.” When shown her 2017 tax returns

and asked whose names appeared thereon, Tonya responded, “Donald and Tonya

Johnson,” but that “is not my income.” She testified that the foster care income had never

been in her name until September 2018. When asked if she could prove that the two

foster children were removed from her care due to Donald’s conduct, Tonya responded

affirmatively and explained that Donald had contacted her supervisor, who was a director

of the foster care agency, and then she lost two of the kids. She also stated that her

home was investigated. Tonya testified that the house payment had been $1,460 per

month.

{¶ 23} Donald testified that he was cancer free and receiving full pay at the time of

the hearing, but that from April until July 2019, he had received only 70% of his income

due to cancer treatment. He stated that, during that time, he had radiation five days a -9-

week, underwent chemotherapy, and got “fluids on the weekends” for throat cancer. He

requested that the court modify his support order based on the change in circumstances

during that period. Donald testified that Tonya had failed to disclose her foster care

income, and he requested that his support order also be modified based on Tonya’s foster

care income. He stated that Tonya became eligible for additional foster children after he

attended foster care classes. Donald testified that Tonya was not honest about her

“alcohol issues” and that she sounded intoxicated in some of her voice messages to him.

Donald acknowledged breaking a door at the marital home when the parties could not get

inside. Donald testified that he wanted the court to give him “an offset” from his

retirement money for the $5,500 that Tonya received from his deferred compensation; he

also noted that he had paid $1,500 toward the minor child’s braces, which Tonya did not

split with him. He wanted the court to recognize that Tonya had already received some

money. Donald acknowledged that Tonya was entitled to half of his retirement accounts.

{¶ 24} Donald testified that he had close to a dozen messages on his phone and

at work from Tonya threatening to sell the house; he provided a disk of the messages,

but counsel was unable to play the messages for the court. Donald testified that he

worked from 6:00 a.m. to 2:00 p.m. Monday through Friday, and that he refrained from

working overtime because he tired easily and his immune system was “very low.”

Donald testified that he suffered from “chemo brain” and could be forgetful. He stated

that his home was appropriate for the minor child to visit and that he would like to see her

every day. He asked the court to order specific parenting time for him. Donald stated

that he had weekends off, but he would also like to see the child during the week after

work. He testified that he had never been convicted of domestic violence. Donald -10-

testified that Tonya once showed up at his work and chased him in his car when he left,

that she had been violent toward him, and that she once threw a candle at him. When

asked if he had ever injured Tonya, he responded, “[o]nly in self-defense,” when he

attempted to push her away from him. Donald stated that Tonya had struck him in his

“[f]ace, back of the head, [and] mouth” over his “cheating.” He stated that once Tonya

came to his home uninvited, and he identified a police report from that incident.

{¶ 25} On cross-examination, Donald stated that he had lived with Brook Terry for

eight months and paid no rent during that time, but he “bought groceries.” He stated that

he and Tonya had both put holes in the walls of their home. Donald asked for custody

of their child. He stated that his current rent was $715 per month, and he made $45,000

per year. Donald stated that he had been employed at Madison Correctional Institution

for almost 23 years. When asked if he was satisfied that all the mortgage payments were

made while he was ill, Donald responded, “I assumed they did. * * * I wasn’t the one

paying the bills.”

{¶ 26} Shortly after the hearing was held, Donald filed a motion to admit the

exhibits introduced at the evidentiary hearing, which he filed under seal. The motion

stated:

Now comes Defendant, Donald W. Johnson, through undersigned counsel,

and hereby moves this Court to admit Joint Exhibits 1-8 and Defendant’s

Exhibits A, B, F, I, U, T, W1-5, X, Y, which were introduced at the evidentiary

hearing on 7 October 2019. Plaintiff stipulated to Exhibits 1-8. Plaintiff did

not object during the evidentiary hearing to the introduction of Defendant’s

proffered exhibits. The Court appeared to have recessed but adjourned. -11-

Plaintiff did not move to admit before the Court adjourned. Defendant

attempted to admit after the Court adjourned while Plaintiff was still present.

Plaintiff objected. The Court refused. Defendant moves to admit the

attached exhibits (filed under seal).

{¶ 27} On January 16, 2020, the magistrate’s decision was filed.1 In the findings

of fact and conclusions of law, the magistrate referenced the attached child support

calculation sheet, which it had based on “the testimony of the parties as to their respective

incomes and appropriate deductions.” The worksheet stated annual income in the

amount of $57,979.67 for Donald and $18,000 for Tonya. The magistrate observed that

the parties had sold their marital residence and that Tonya had testified that she had to

bring $700-$800 to the closing as a result of Donald’s failure to pay the mortgage as

ordered. The magistrate also noted that Tonya alleged that Donald had not paid the

water, gas, trash, or Spectrum bills as ordered.

{¶ 28} With respect to Tonya’s request for spousal support, the magistrate found

that Tonya and Donald had “relatively similar earning ability and earned substantially

similar salaries during the marriage,” that the parties were the same age, and that Donald

had been through a significant illness but had recovered and returned to work. The

magistrate stated that the “retirement benefits of the parties were not offered” and that it

would not be “inappropriate” for Tonya to work outside the home if she were the custodial

parent.

{¶ 29} According to the magistrate, there was little evidence of the parties’

1 This journal entry provided: “The magistrate’s Decision and Order attached herewith is adopted and ratified by this Court in its entirety and therefore made an Order of this Court.” -12-

standard of living during the marriage, and information about their respective educations

was not offered. The magistrate noted that Donald had a child support obligation of

$584.67 per month and was also being assessed much of the marital debt. The

magistrate found no evidence of any significant contribution by either party to the

education, training, or earning ability of the other party and found that Tonya did not

require additional training to earn a salary comparable to Donald’s. The magistrate

found no evidence that Tonya “lost a significant remunerative skill as a result of marital

responsibilities.” After considering the parties’ need for and ability to pay spousal

support, their relative assets, liabilities, and incomes, the need to avoid drastic or abrupt

changes in lifestyle, and the need for each party to have a reasonable standard of living

in relation to the standard maintained during the marriage, the magistrate found that an

award of spousal support was not appropriate in the Johnsons’ case. The court did not

retain jurisdiction over the issue of spousal support.

{¶ 30} With respect to child custody, an in camera interview was conducted with

the minor child and the child’s wishes were considered. The magistrate noted that Tonya

testified that she had no problem with Donald having parenting time and Donald testified

that he had been denied parenting time, although there was no evidence to substantiate

the denial of parenting time. The magistrate found that custody to Tonya with parenting

time for Donald in accordance with the court’s standard order was in the child’s best

interest.

{¶ 31} Financially, the magistrate noted that the parties each had accounts in their

own name and found it equitable that each party be awarded the accounts in their own

name. With respect to their various debts, the magistrate found that each party should -13-

be responsible for the debts in his or her own name, except the debts associated with the

prior marital residence. The magistrate found that the debts associated with the marital

residence, which accrued as a result of Donald’s failure to pay them as required in the

temporary order, would be solely Donald’s responsibility.

{¶ 32} The magistrate awarded each party the personal property in his or her

possession and all accounts, including retirement accounts, “in their sole name free and

clear of the other.” The magistrate ordered that Donald would be responsible for all

outstanding bills associated with the prior marital residence; other than those debts, the

parties would be responsible for any debts in their own name. Finally, the court ordered

Donald to continue to pay child support in the amount of $584.67 per month, and cash

medical support and processing fees, plus an additional $58.00 per month toward the

arrearage.

{¶ 33} Tonya filed objections to the magistrate’s decision on January 24, 2020.

Specifically, she argued that, after 26 years of marriage, it was inappropriate for her to be

denied spousal support, any portion of Donald’s retirement, help with the payment of

marital bills, and health insurance (which Donald had allegedly cancelled). She also

objected to the fact that Donald was not ordered to maintain health insurance on their

minor child.

{¶ 34} On February 4, 2020, Donald also filed objections to the magistrate’s

decision. Donald asserted that the magistrate erred in not “tak[ing] exhibits at the closing

of the evidentiary hearing,” not designating which party could claim the minor child for tax

purposes in which year(s), and not taking into account his reduced income during the

divorce proceedings when he was being treated for cancer and was unable to work. In -14-

response to Tonya’s objections, Donald also made the following arguments and

corrections: 1) the parties were married for 23 years, not 26 years; 2) Tonya received

over $5,500 from Donald’s deferred compensation while the divorce proceedings were

pending and other miscellaneous funds from the sale of the martial property, including,

without limitation, the house and the furnishings within it; 3) Donald did not remove Tonya

from his health insurance; and 4) Donald was ordered to maintain health insurance on

the minor child pursuant to the magistrate’s order.

{¶ 35} On June 11, 2020, the court held a hearing on the parties’ objections. At

the start of the hearing, the court indicated that the parties could address any issues that,

in their opinion, had not been adequately addressed in the pleadings they had filed, could

supplement the record, and could respond to the other party’s objections or clarify their

own objections, with the caveat that they could not add to the objections. Tonya’s

attorney indicated that they had nothing to add.

{¶ 36} Donald’s attorney requested that the court admit the exhibits he had filed

under seal; he also noted the magistrate’s failure to designate which party should claim

the minor child for tax purposes in which years and the magistrate’s failure to find that

Donald’s income had been substantially reduced during the divorce proceedings while he

was receiving cancer treatment. Additionally, Donald’s attorney noted that Donald

sought a reduction of child support based on his substantial change of circumstances due

to cancer treatment, which had included treatment by multiple doctors, a feeding tube,

and temporarily relocating to Columbus for treatment; during that period, he had earned

only 60% of his pay. Donald also refuted Tonya’s allegations that she had paid all the

bills, noting that she had only proved that she paid one mortgage payment, and she had -15-

been late and uncooperative with discovery. Donald asked for attorney fees based on

his motion for contempt, motion to compel, and motion to modify. He also asserted that

he had already divided some of his assets with Tonya while the divorce proceedings were

pending. Donald asked the Court to find that Tonya lacked credibility with respect to any

alleged loss of income due to her own misconduct.

{¶ 37} Donald also raised questions about Tonya’s drinking, her selling furniture

from the house and “nagging him to sell the house,” notwithstanding the TMRO, and her

failing to pay the mortgage. Donald pointed out that he had admitted to “being unfaithful”

and to causing some damage to the house, partly due to frustration and partly because

the parties had locked themselves out. He asked the court to find that his testimony was

credible, and he opposed paying any further moneys to Tonya. He also pointed out that

the minor child was 17 years old, so any issues related to income taxes would soon be

moot.

{¶ 38} The court asked Donald’s attorney to clarify whether he was asserting that

there were no proceeds left in Donald’s pension, and counsel responded by pointing to

testimony that the parties “had taken so many loans against it during the marriage.” He

acknowledged that Tonya seemed to believe “there was something else left,” but counsel

thought she was referring to deferred compensation. Donald’s attorney stated there was

no evidence of how much money was in deferred compensation. Donald also pointed

out, through his attorney and the parties’ tax returns, that Tonya had been able to “make

plenty of money” from fostering children, and that she “was able to, in fact, [earn] more

than he did as a security guard for the State of Ohio.”

{¶ 39} An additional exchange about Donald’s pension occurred, as follows: -16-

[COUNSEL FOR TONYA]: Your Honor, to answer your question,

there was a pension.

THE COURT: There was a pension?

[COUNSEL FOR TONYA]: Yes, sir.

THE COURT: And your contention, [Counsel for Donald], is there

wasn’t sufficient evidence to identify what was in it?

[COUNSEL FOR DONALD]: Right. Right.

THE COURT: Okay. All right. I’ll look it over. I’ll provide you all

with a written decision as quickly as I can. * * *

{¶ 40} The trial court filed its Decision and Final Judgment Entry on June 18, 2020.

The court indicated that it had reviewed all of the prior pleadings and orders in the case,

the transcript of the proceedings before the magistrate on October 7, 2019, and the

arguments made by counsel.

{¶ 41} The trial court overruled all of Tonya’s objections. With respect to Tonya’s

objection to not receiving spousal support, the court determined that Tonya had not

“articulate[d] within any degree of specificity” how the magistrate erred in not awarding

her spousal support, other than stating that the parties had been married for 26 years

(which the court found not to be accurate). With respect to not receiving a portion of

Donald’s retirement benefits, the court also found that Tonya did not “sufficiently

particularize” how the magistrate allegedly erred in failing to award her any portion of

Donald’s retirement. The court noted that at the October 7, 2019 hearing, Tonya

acknowledged that Donald “liquidated his deferred compensation account” and the

parties divided it, with each one receiving approximately $5,500. The court found that it -17-

was not provided with sufficient evidence that additional retirement benefits existed “with

anything other than nominal equity.”

{¶ 42} Regarding Tonya’s objection that she “received no help” from Donald in

paying the marital bills, the court again found that she had not sufficiently articulated how

the magistrate had allegedly erred relative to the issue of marital bills and had not

proposed a remedy, even if the non-payment were proven to be accurate. With respect

to the magistrate’s not ordering Donald to provide Tonya with health insurance, the court

found that her argument lacked the specificity required by Civ.R. 53 and that Tonya failed

to set forth what relief she requested, even if her claim were true. Finally, regarding

Tonya’s objection that Donald was not ordered to maintain health insurance on the

parties’ minor child, the court found that that Donald was, in fact, obligated to secure and

maintain health insurance for the child, providing it was available at reasonable cost.

{¶ 43} The trial court also overruled all of Donald’s objections. Regarding

Donald’s objection to the magistrate’s failure to exhibits at the end of the evidentiary

hearing, which led to Donald’s motion to file the exhibits under seal, the court concluded:

Upon conducting a de novo review of the transcript of the

proceedings which took place before the magistrate on October 7, 2019,

this Court finds that the hearing itself did not end abruptly, as insinuated by

[Donald]. * * * [C]ounsel for both parties had more than ample opportunity

to seek the admission of their respective exhibits before the conclusion of

the hearing on October 7, 2019. Neither attorney sought the admission of

their respective exhibits at that time.

Two days after the conclusion of the hearing on October 7, 2019, -18-

counsel for Mr. Johnson filed a Motion to admit certain exhibits on his

behalf. * * *

***

This Court has witnessed on many occasions situations wherein

attorneys have marked exhibits during the course of a hearing and yet not

sought to admit them into evidence. In the case at hand, once the

evidentiary hearing concluded, both parties were precluded from seeking to

admit exhibits which were not otherwise admitted during the course of the

hearing herein. * * *

Thus, the trial court overruled Donald’s objection with respect to the admission of exhibits.

{¶ 44} Regarding Donald’s objection that the magistrate had not designated which

party could claim the minor child for tax purposes in which year, the court found that it

had not been provided with sufficient evidence “to establish any net tax savings of the

parties concerning utilizing the child for tax purposes,” evidence relative to the financial

circumstances and needs of the parents related to the tax issue, or evidence concerning

the eligibility of either or both of the parties for federal earned income tax credits or other

state or federal tax credits. The court concluded that R.C. 3119.82 required it to consider

the foregoing factors before addressing the tax issue, and because the parties had not

provided the magistrate with sufficient evidence related to the tax issue, Donald’s

objection was overruled.

{¶ 45} Regarding the magistrate’s failure to find that Donald’s income had been

substantially reduced during the divorce proceedings, the court noted that Donald had

testified that his income was reduced to approximately 70% of its normal amount for a -19-

four-month period, but that he did not provide sufficient corroborating evidence.

Moreover, the court found that, even if Donald’s testimony that he experienced a 30%

reduction in his income for four months was accurate, he had also worked overtime

throughout the course of the year. Thus, the court concluded that the magistrate’s

calculation of Donald’s gross annual income as $57,979.67 was consistent with the

evidence presented, and the objection was without merit.

{¶ 46} Finally, the court ordered that each of the parties pay their own attorney

fees and ordered all court costs to be paid by Donald.

{¶ 47} Tonya appeals form the trial court’s judgment, raising three assignments of

error. Her first assignment of error states:

THE COURT ERRED IN FAILING TO AWARD TONYA JOHNSON

[A] PORTION OF DONALD JOHNSON’S OPERS RETIREMENT

BENEFIT.

{¶ 48} Tonya s that the trial court erred in failing to address Donald’s Ohio Public

Employees Retirement System (OPERS) account and in failing to award her a marital

portion of the OPERS retirement account. Tonya contends that her “objection to

receiving no portion of a marital asset, especially such a significant asset as a retirement

benefit,” was sufficiently specific to identify the error of which she complained. She also

argues that the court’s finding that there was no evidence of additional retirement benefits

other than the deferred compensation account was “simply incorrect” and overlooked

evidence concerning Donald’s additional retirement benefits. Tonya asserts that, while

“no exhibits were admitted at trial specifically identifying the additional retirement

account,” there was clearly evidence in the record that Donald had another retirement -20-

account, specifically an OPERS account through the State of Ohio, because that account

was identified in his property affidavit.

{¶ 49} Tonya argues that Donald’s participation in OPERS was “a statutorily

conferred asset” and that he was “mandated to participate in OPERS as an employee of

the State of Ohio, Department of Rehabilitation and Correction.” She argues that, as

such, the court should have ordered the parties submit additional evidence about the

account pursuant to Civ.R. 53(D)(4)(d). Tonya asserts that, when “specific evidence is

absent, due to the vague testimony of the parties, there is insufficient evidence to support

a trial court’s division of property. Such property division must be reversed as an abuse

of discretion.”

{¶ 50} Tonya argues that, even if the court’s “generalized order” on page 9 of it

judgment -- which awarded each of the parties his or her own retirement accounts -- were

construed as a disposition of the OPERS retirement, such a disposition would be

inconsistent with pages 3 and 4 of its judgment, which failed to recognize the existence

of that asset. Therefore, Tonya asserts that this case must be remanded for additional

evidence concerning the pension.

{¶ 51} Finally, Tonya asserts that even if her objection “lacked adequate

specificity,” the court committed plain error in failing to divide a significant marital asset to

which both parties referred at trial and in deviating from its responsibility to divide all

marital property equitably.

{¶ 52} Donald responds that it was not an abuse of discretion for the trial court to

not address or divide the OPERS retirement benefit. In reply, Tonya argues that

Donald’s argument underscores the trial court’s error, because he admits “no less than -21-

five times in his brief” that such a retirement account existed.

{¶ 53} As noted above, the court ordered that each of the parties would be

“awarded as their own, free and clear of any claims or interests of the other, all * * *

retirement accounts * * *.”

{¶ 54} As this Court has noted:

A trial court has broad discretion regarding the division of marital

property, and its judgment will not be disturbed absent an abuse of that

discretion. Mathews v. Mathews, 2d Dist. Clark No. 2012-CA-79, 2013-

Ohio-2471, ¶ 8, citing Bisker v. Bisker, 69 Ohio St.3d 608, 609, 635 N.E.2d

308 (1994). A trial court abuses its discretion when the court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “It is to be expected that

most instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.”

AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp.,

50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is

unreasonable if there is no sound reasoning process that would support that

decision.” Id.

The classification of property as marital or separate must be

supported by competent, credible evidence. Mays v. Mays, 2d Dist. Miami

No. 2000-CA-54, 2001 WL 1219345, *3. The factors set forth in R.C.

3105.171(A) determine the marital or separate classification of property. -22-

Jones v. Jones, 2019-Ohio-2355, 138 N.E.3d 634, ¶ 16, 18 (2d Dist.).

{¶ 55} Marital property includes 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.” R.C. 3105.171(A)(3)(a)(i).

{¶ 56} As noted by the Supreme Court of Ohio:

The rights and obligations associated with pension and retirement

funds are contractual in nature. Pension and retirement plans are diverse

since they may (1) be derived from public or private employment; (2) be

vested or nonvested; (3) consist of contributions from employee only,

employer only, both or neither; (4) include contingencies for payment; (5)

and be subject to garnishment and execution. In some instances, the

parties’ pension and retirement funds may be the most significant marital

asset of one or both spouses. Thus the trial court must understand the

intricacies and terms of any given plan and, if necessary, require both of the

parties to submit evidence on the matter in order to make an informed

decision. See Willis v. Willis (1984), 19 Ohio App.3d 45, 48, 19 OBR 112,

115, 482 N.E.2d 1274, 1277.

Hoyt v. Hoyt, 53 Ohio St.3d 177, 180-181, 559 N.E.2d 1292 (1990).

{¶ 57} In Bisker, the Ohio Supreme Court noted that “a vested pension plan

accumulated during marriage is a marital asset that must be considered in arriving at an

equitable division of property.” Bisker at 609, citing Holcomb v. Holcomb, 44 Ohio St.3d

128, 541 N.E.2d 597 (1989). It is undisputed that Donald participated in OPERS during -23-

the course of his marriage as a full-time State of Ohio employee. He testified that he

had been employed at the Madison Correctional Institution for approximately 23 years, a

substantial period of time. Donald also acknowledged that Tonya was entitled to half of

his retirement benefits. The fact that Donald requested an offset against his retirement

account based upon Tonya’s retention of half of his deferred compensation did not excuse

or justify the trial court’s failure to properly divide his OPERS retirement account. While

counsel for Donald represented to the court that the parties “had taken so many loans

against” the retirement benefits, no such testimony was presented, and no evidence of

the value of the retirement benefits, which were potentially a major marital asset, was

presented. Furthermore, the future payment of OPERS benefits is statutorily

predictable. Thus, we conclude that the court abused its discretion in failing to value

Donald’s retirement benefits, and in doing so, in effectively treating them as Donald’s

separate property.

{¶ 58} Tonya’s first assignment of error is sustained.

{¶ 59} Tonya’s second assignment of error is:

THE TRIAL COURT ERRED IN THE MANNER IN WHICH IT

ALLOCATED THE MARITAL DEBTS.

{¶ 60} Tonya asserts that the court “restated, verbatim, the magistrate’s Orders

concerning the bills and debts,” and therefore “failed to comply with the requirements of

this Appellate Court for a final appealable order,” which constitutes error. She directs

our attention to Bennett v. Bennett, 2012-Ohio-501, 969 N.E.2d 344 (2d Dist.). Tonya

argues that a “court order must be adequately specific for the parties to know what their

rights and duties are without reference to other things.” Tonya argues that the court’s -24-

order that Donald be responsible “for all outstanding bills associated with the prior marital

residence” is vague and nonspecific. According to Tonya, it was impossible for the

parties to determine their rights and obligations “without reference to some other

instrument,” and there was no instrument that identified the rights and obligations, “other

than the transcript.” Tonya asserts that there was ample evidence in the record for the

court to issue a proper order specifying Donald’s obligations, based on her own

undisputed testimony enumerating the outstanding debts and costs. She argues that the

court’s order was vague as to what bills it considered to be outstanding and as to whom

Donald was supposed to pay, and that the court must be required to issue a more specific

order.

{¶ 61} Donald responds that the trial court’s order that he pay outstanding debts

for the marital residence was sufficiently specific and that, even if there were error in this

regard, Tonya either invited the error by refusing to cooperate during the divorce

proceedings or waived it “for want of specificity and particularity under Civ.R. 53.”

{¶ 62} In Waxman v. Link, 2d Dist. Montgomery No. 28415, 2020-Ohio-47, this

Court discussed Bennett and final orders as follows:

Under Ohio Constitution, Article IV, Section 3(B)(2), we have

appellate jurisdiction only over final and appealable orders. “When a trial

court refers a matter to a magistrate for a decision, the magistrate's decision

is not a final appealable order. * * * The trial court's resolution of a referred

matter, upon review of the magistrate’s decision, must satisfy several

requirements to be considered a final appealable order.” Keeney v.

Keeney, 2d Dist. Clark No. 19-CA-0037, 2019-Ohio-4098, ¶ 3. “First, the -25-

trial court's judgment entry must contain the trial court's own judgment and

order on the underlying matter; it is insufficient for the trial court to simply

adopt the magistrate's decision as its own order.” Id. at ¶ 4, citing State ex

rel. Boddie v. Franklin Cty. 911 Admr., 135 Ohio St.3d 248, 2013-Ohio-401,

985 N.E.2d 1263, ¶ 2, Harkai v. Scherba Industries, Inc., 136 Ohio App.3d

211, 218, 736 N.E.2d 101 (9th Dist.2000), and Civ.R. 53(D)(4)(e).

In addition, “[t]he trial court's entry must sufficiently address the

pending issues ‘so that the parties may know of their rights and obligations

by referring only to that document known as the judgment entry,’ ” the court

must rule on pending objections if they have been made, and “the judgment

entry must ‘be a document separate from the magistrate's decision.’ ”

[Keeney] at ¶ 7, quoting Kendall v. Kendall, 6th Dist. Ottawa No. OT-13-

019, 2014-Ohio-4730, ¶ 15. (Other citations omitted.) See also Bennett v.

Bennett, 2012-Ohio-501, 969 N.E.2d 344, ¶ 20 (“ ‘Civil Rule 54(A) provides

that “[a] judgment entry shall not contain a recital of pleadings, the

magistrate's decision in a referred matter, or the record of prior

proceedings.” A trial court must render its own separate judgment and may

not simply state that it approves, adopts, or incorporates a magistrate's

decision.’ ”).

With respect to the requirement of separate documents for a

magistrate's decision and a judgment entry, both [Keeney] and Bennett

relied on the provision in Civ.R. 54(A) that “ ‘[a] judgment shall not contain

* * * the magistrate's decision in a referred matter.’ ” [Keeney] at ¶ 7; -26-

Bennett at ¶ 20. However, Civ.R. 54(A) was amended, effective July 1,

2019, to eliminate that language. After the amendment, the rule states only

that “ ‘Judgment’ as used in these rules means a written entry ordering or

declining to order a form of relief, signed by a judge, and journalized on the

docket of the court.”

Waxman at ¶ 20-22.

{¶ 63} As noted above, the court ordered Donald to “be responsible for all

outstanding bills associated with the prior marital residence.” We agree with Tonya that

the trial court failed to address the issue of “all outstanding bills” with particularity so that

the parties would know of their rights and responsibilities. We further agree that the

order lacked clarity and was vague as to what exactly Donald was required to pay. The

temporary orders required Donald to make the house payment and pay for the utilities

each month. Tonya enumerated multiple bills and costs that she indicated had been

Donald’s responsibility, but it is unclear from the court’s order which, if any, of these he

was required to pay.

{¶ 64} Tonya’s second assignment of error is sustained.

{¶ 65} Tonya’s third assignment of error states:

THE TRIAL COURT ERRED IN FAILING TO AWARD TONYA

JOHNSON ANY SPOUSAL SUPPORT.

{¶ 66} Tonya asserts that her objection to the magistrate’s decision on the issue

of spousal support “was adequately specific” and that the trial court acted arbitrarily and

unreasonably in failing to award spousal support under the facts of this case.

{¶ 67} As this Court has noted: -27-

* * * “A trial court has broad discretion in establishing and modifying

a spousal support award.” Dingess v. Smith, Washington App. No. 09-CA-

18, 2010-Ohio-343, citing Cassidy v. Cassidy, Pike App. No. 03CA721,

2005-Ohio-3199, at ¶ 27. “Thus, we will not reverse a spousal support

award absent an abuse of discretion.” Id. In determining whether spousal

support is appropriate and reasonable, and in determining the nature,

amount, and terms of payment, and duration of spousal support, which is

payable either in gross or in installments, the court shall consider fourteen

factors expressed in R.C. 3105.18(C)(1)(a)-(n), which governs awards of

spousal support. “In allocating property between the parties to a divorce

and in making an award of [spousal support], the trial court must indicate

the basis for its award in sufficient detail to enable a reviewing court to

determine that the award is fair, equitable, and in accordance with the law.”

(Citations omitted.) Burke v. Burke, 2d Dist. Champaign No. 2011-CA-2, 2011-Ohio-3723,

¶ 24.

{¶ 68} R.C. 3105.171(C)(3) provides: “The court shall provide for an equitable

division of marital property under this section prior to making any award of spousal

support to either spouse under [R.C. 3105.18] and without regard to any spousal support

so awarded.” R.C. 3105.18 provides in relevant part:

(A) As used in this section, “spousal support” means any payment or

payments to be made to a spouse or former spouse, * * * for the benefit of

a spouse or a former spouse, that is both for sustenance and for support of

the spouse or former spouse. * * * -28-

(B) In divorce and legal separation proceedings, upon the request of

either party and after the court determines the division or disbursement of

property under section 3105.171 of the Revised Code, the court of common

pleas may award reasonable spousal support to either party. * * *

(C)(1) In determining whether spousal support is appropriate and

reasonable, and in determining the nature, amount, and terms of payment,

and duration of spousal support, which is payable either in gross or in

installments, the court shall consider all of the following factors:

(d) The retirement benefits of the parties[.]

(Emphasis added.)

{¶ 69} Consistent with our disposition of the first assignment of error, we conclude

that, because the trial court abused its discretion in failing to address Donald’s retirement

account, the court further abused its discretion in deciding the issue of spousal support

without considering Donald’s retirement benefits and how they would be distributed

between the parties.

{¶ 70} Tonya’s third assignment of error is sustained.

{¶ 71} Having sustained Tonya’s assignments of error, the judgment of the trial

court is reversed. The matter is remanded for the trial court to address Donald’s OPERS

retirement account in its division of the parties’ marital property, to address Tonya’s

request for spousal support after dividing all of the marital assets, and to clarify its order

regarding Donald’s responsibility for “all outstanding bills associated with the prior marital -29-

residence.”

HALL, J., concurs.

TUCKER, P.J., concurs:

{¶ 72} Though I concur in the majority opinion, I write separately to note that our

reversal of the spousal support decision is not an indication concerning the merits of this

issue. The reversal is premised upon the R.C. 3105.171(C)(3) requirement that the trial

court make an equitable division of the parties’ property “prior * * * and without regard to

any spousal support * * * award[ ].” Since there must be a reexamination of the OPERS

retirement account, a separate, distinct reexamination of the spousal support issue is also

required. Consistent with Civ.R. 53(D)(4)(d), the fresh look requires the trial court upon

remand to “undertake an independent review [of the spousal support issue] to ascertain

that the magistrate has properly determined the factual issues and appropriately followed

the law.”

Copies sent to:

Valerie Juergens Wilt Regina Rosemary Richards Hon. Thomas J. Capper