Lemon v. Lemon

537 N.E.2d 246, 42 Ohio App. 3d 142, 1988 Ohio App. LEXIS 2969

• Court: Ohio Court of Appeals
• Decided: July 20, 1988
• Docket: 87 CA 17
• Status: Published

Opinions

Grey, P. J.

This is an appeal from a judgment of the Hocking County Common Pleas Court granting the parties a divorce and dividing the marital assets between the parties. We reverse.

The record reveals the following facts. On August 25, 1986, Larry Lemon filed a complaint for divorce against Linda Lemon. On September 2, 1986, not yet having received Mr. Lemon’s complaint, Linda Lemon filed a similar complaint against Mr. Lemon. 1 Each of the complaints alleged gross neglect of duty and extreme cruelty, sought custody of the one unemancipated child and a division of the marital assets and financial obligations.

The trial court held a hearing on the matter on January 12, 1987. One major area of dispute was the disposition of Mr. Lemon’s not yet vested pension. On February 27, 1987, the trial court issued a memorandum opinion. On March 6,1987, Mrs. Lemon requested that the court issue its Findings of Fact and Conclusions of Law. The court denied Mrs. Lemon’s request stating that the memorandum opinion contained sufficient findings of fact and conclusions of law pursuant to Civ. R. 52. On June 9, 1987, the trial court filed its formal judgment entry granting a decree of divorce.

In the decree, the court granted both Mr. and Mrs. Lemon a divorce on the grounds of gross neglect. The court divided the personal property of the parties according to their respective requests during the hearing, and ordered the marital home sold for not less than $35,000. If the home did not sell within the time specified by the court, Mr. Lemon was ordered to file a partition action. The court further ordered that the marital obligations of the parties be paid from the proceeds of the sale and that the remaining net balance be equally divided between the parties.

The court granted custody of the minor child to Mrs. Lemon, ordered that Mr. Lemon pay thirty-five dollars per week in child support, and granted him reasonable and liberal visitation rights. The court further ordered that Mr. Lemon pay thirty-five dollars per week to Mrs. Lemon until two years from September 24, 1986. In its memorandum opinion the trial court expressly found that Mr. Lemon’s pen sion had no present value. Mrs. Lemon appeals the trial court’s judgment and assigns four errors.

First Assignment of Error:

“The trial court erred to the prejudice of the Defendant in granting judgment for divorce to Plaintiff on grounds of gross neglect of duty, said decision being against the manifest weight of the evidence and an abuse of discretion.”

R.C. 3105.01(G) empowers a court of common pleas to grant divorces on the grounds of gross neglect of duty. Mrs. Lemon asserts that the trial court erred and abused its discretion in granting a divorce to Mr. Lemon as based upon that ground. We disagree.

Clearly, it is within the discretion of the court, based on the evidence presented, to decide whether it will grant a divorce to a party or parties and on what grounds that divorce will be granted. An “abuse of discretion” connotes more than just an error in judgment. It implies that the court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 5 OBR 481, 450 N.E. 2d 1140; Teeter v. Teeter (1985), 18 Ohio St. 3d 76, 18 OBR 106, 479 N.E. 2d 890.

The record reveals adequate evidence presented by both Mr. and Mrs. Lemon to support the court’s decision to grant each a divorce on the ground of gross neglect of duty. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Ross v. Ross (1980), 64 Ohio St. 2d 203, 18 O.O. 3d 414, 414 N.E. 2d 426. A review of the record indicates sufficient evidence to support the trial court’s granting of a divorce to each party and the trial court did not abuse its discretion in doing so. Mrs. Lemon’s first assignment of error is without merit and is overruled.

Second Assignment of Error:

“The trial court’s failure to consider plaintiff’s pension plan as a marital asset was against the manifest weight of the evidence and an abuse of discretion and thus constitutes reversible error.”

Specifically, Mrs. Lemon asserts that the trial court erred in failing to consider her husband’s unvested pension plan a marital asset subject to division upon the parties’ divorce. We agree.

The starting point for any court division of marital property or award of alimony is R.C. 3105.18, which provides in pertinent part: 1

“(A) In divorce, dissolution of marriage, or alimony proceedings, the court of common pleas may allow alimony it considers reasonable to either party.

“The alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court considers equitable.

“(B) In determining whether alimony is necessary, and in determining the nature, amount, and manner of payment of alimony, the court shall consider all relevant factors, including, but not limited to, the following:

“(1) The relative earñing abilities of the parties;

“(2) The ages, and the physical and emotional conditions of the parties;

“(3) The retirement benefits of the parties;

“(4) The expectancies and inheritances of the parties;

“(5) The duration of the marriage;

“(6) The extent to which it would be inappropriate for a party, because he will be custodian of a minor child of the marriage, to seek employment outside the home;

“(7) The standard of living of the parties established during the marriage;

“(8) The relative extent of education of the parties;

“(9) The relative assets and liabilities of the parties;

‘ ‘(10) The property brought to the marriage by either party;

“(11) The contribution of a spouse as homemaker.”

Mrs. Lemon asserts that R.C. 3105.18(B)(3) required the court to consider Mr. Lemon’s unvested pension plan when dividing the parties’ marital assets. Clearly, vested pension plans are marital assets subject to division upon divorce. Teeter v. Teeter, supra; Briganti v. Briganti (1984), 9 Ohio St. 3d 220, 9 OBR 529, 459 N.E. 2d 896; Blair v. Blair (1983), 11 Ohio App. 3d 117, 11 OBR 171, 463 N.E. 2d 423; and Moser v. Moser (1982), 5 Ohio App. 3d 193, 5 OBR 427, 450 N.E. 2d 741. There is, however, no current Ohio case law on whether an unvested pension plan is a divisible marital

R.C. 3105.18(B)(3) does not distinguish between vested and unvested pension plans. The language of R.C. 3105.18, though, is quite broad. A reasonable construction is that- the legislature intended courts to consider factors not presently within the possession of the parties, for example, expectancies or inheritances. An expert witness, an economics professor, testified that Mr. Lemon’s pension plan had no present value from an accounting or economic point of view. While we find such a view professionally accurate, we do not believe the legislature intended to adopt such a narrow view.

An unvested pension plan has value. It is the trial court’s responsibility to determine, as best it can, the value of an unvested pension plan as a marital asset. For example, the court should take into consideration the time left before the pension becomes vested, the length of the marriage between the parties, and the contributions of the parties both primarily and secondarily to the pension plan.

This is, of course, likely to be difficult for the trial court because vesting is a contingent event. Nonetheless, contingent events do happen. The trial court found that the pension had “no market value at the present time.” However, the unvested pension had some value. Social Security, great unfunded and unvested scheme that it is, provides some benefits and a court must take Social Security benefits into account. Beyer v. Beyer (1979), 64 Ohio App. 2d 280, 18 O.O. 3d 267, 413 N.E. 2d 844.

Perhaps the most telling proof that this unvested pension had at least some value is Mr. Lemon’s introduction of expert testimony on the issue for the purpose of obtaining the pension benefit for himself alone. There is a discussion of how other states have treated this issue in Annotation (1979), 94 A.L.R. 3d 176. While the treatment of this issue by other states is informative, we believe that the language in R.C. 3105.18 is clear, and that an unvested pension may be a marital asset subject to the division of property in a divorce action.

We do not hold that Mrs. Lemon is entitled to division of this unvested pension. We do hold that, in light of the fact that this was a marriage of twenty-five years, that both parties contributed income to the household, that the wife contributed as a homemaker, and that the pension will vest in two and one-half years, the court erred in refusing to consider the unvested pension as a marital asset because it has no present value.

Thus, the trial court erred in not considering the value of Mr. Lemon’s pension plan in its division of the marital assets. Mrs. Lemon’s second assignment of error is sustained.

Third Assignment of Error:

“The trial court committed prejudicial error and abused its discretion in that the division of property and award of alimony to the defendant is grossly inadequate and against the manifest weight of the evidence.”

Trial courts are given broad discretion in matters involving the division of marital assets or the award of alimony. A potentially equal division should be the starting point of analysis for the trial court. Cherry v. Cherry (1981), 66 Ohio St. 2d 348, 20 O.O. 3d 318, 421 N.E. 2d 1293. However, equitable need not mean equal. Id. In an effort to arrive at such a division a trial court must consider all the relevant factors as set forth in R.C. 3105.18(B), supra. A review of the record reveals that with the exception of the trial court’s failure to consider that Mr. Lemon’s pension plan had a divisible value, the trial court carefully considered R.C. 3105.18(B) factors. Thus, the trial court did not abuse its discretion in its division of the remaining marital property or its award of temporary alimony to Mrs. Lemon. Assignment of error three is overruled.

Fourth Assignment of Error:

“The trial court erred in its division of the marital assets in failing to consider the element of aggression of the plaintiff in the break up of the marital relationship.”

R.C. 3105.18 does not require a trial court to consider fault or marital aggression in its division of marital assets or award of alimony. It appears from that language that the legislature did not intend marital misconduct to be a definitive factor in the division of marital assets. Absent an abuse of discretion on the part of the trial court, we, as a reviewing court, may not reverse a trial court’s decision. Blakemore, supra; Teeter, supra. The trial court did not abuse its discretion in failing to consider marital fault or aggression in determining the division of property and alimony award between the parties. Mrs. Lemon’s fourth assignment of error is wholly without merit and is overruled.

Based on this court’s ruling on Mrs. Lemon’s second assignment of error, we reverse the decision of the trial court on the issue of Mr. Lemon’s unvested pension plan and remand the matter for proceedings consistent with this opinion.

Judgment reversed and cause remanded.

Abele, J., concurs. Stephenson, J., dissents.

1 Mrs. Lemon filed a motion to consolidate the two complaints which appears to be implicitly granted by the court’s actions in this matter.