[Cite as Mann v. Mann, 2011-Ohio-1646.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
DOUGLAS D. MANN, :
Plaintiff-Appellee, : Case No. 09CA38
vs. :
MARY PAT MANN nka LYNCH, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. : _________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: K. Robert Toy, 50 ½ South Court Street, Athens, Ohio 45701
COUNSEL FOR APPELLEE: Thomas E. Eslocker, 16 West State Street, Athens, Ohio 45701 _________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 3-28-11
PER CURIAM.
{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment that
terminated the marriage between Douglas Mann, plaintiff below and appellee herein, and Mary
Pat Mann nka Lynch, defendant below and appellant herein.
{¶ 2} Appellant raises the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT WHEN IT FAILED TO USE AN ENFORCEABLE AND FINAL DECISION SEPARATING ATHENS, 09CA38 2
APPELLEE’S RETIREMENT PENSION AS MARITAL PROPERTY.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT WHEN IT FOUND APPELLANT’S DISABILITY INCOME TRANSMUTES TO RETIREMENT INCOME WHICH IS AGAINST PREVAILING LAW.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT WHEN THE TRIAL COURT LIMITED SPOUSAL SUPPORT TO TEN YEARS AND DECREASING SPOUSAL SUPPORT OVER THE TERM OF THAT PERIOD.”
FOURTH ASSIGNMENT OF ERROR:
“[THE] TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT WHEN IT FOUND THAT APPELLANT ‘MAY BE’ PERMANENTLY DISABLED AND THERE WAS POTENTIAL IMPROVEMENT IN APPELLANT’S PHYSICAL CONDITION.”
FIFTH ASSIGNMENT OF ERROR:
“THE COURT ABUSED ITS DISCRETION BY IGNORING A STIPULATION OF THE PARTIES AS TO APPELLEE’S CONTRIBUTION TO APPELLANT’S LEGAL FEES.”
{¶ 3} The parties married in 1984. They had two children, both now emancipated.
Appellee is employed at Ohio University and contributes to the State Teachers Retirement
System and the Ohio Public Employees Retirement System (OPERS). Appellant worked for
Ohio University until June 1, 1996, when she could no longer work due to a diagnosis of
rheumatoid arthritis. At that time, she began to receive OPERS disability pay. Appellant
currently receives a $3,458.98 monthly disability allowance. ATHENS, 09CA38 3
{¶ 4} In May 2008, appellee filed a complaint for divorce. Before trial, the parties
entered into certain stipulations regarding the division of personal property. The parties
primarily disputed the division of the retirement assets and appellant’s entitlement to spousal
support. At the final hearing both parties presented expert testimony concerning the valuation of
the parties’ retirement benefits. Appellant’s expert, Mark Snider, testified that he evaluated both
parties’ retirement benefits and projected appellee’s monthly pension benefit to be $3,852 if he
retires at age sixty. The marital portion of this amount would be 95.35% (24 years married /
25.17 employed). His present value figure averaged out to be $548,638. Snider stated that
appellant is projected to receive a monthly pension benefit of $902 at age 60, of which 98.6% is
marital property. He stated that the present value of appellant’s pension is $167,002, using a life
expectancy of 85, and $88,074, using a life expectancy of 71.
{¶ 5} Appellee’s expert, Heather Stoll, testified that the present value of appellant’s
pension is $430,996.83, and that appellee’s is $378,103.46. Stoll admitted, however, that in
October 2007 she found that the marital present value of appellant’s pension was $152,035.70.
Stoll explained that the difference in the present values was based upon the assumptions that the
requesting attorneys told her to use when calculating the present value.
{¶ 6} Stoll’s report also explained the various scenarios for dividing pension benefits
and noted that the present value “may differ markedly from the ‘Account Value’” as stated on the
employee’s annual statements. For example, as of December 31, 2006, appellee’s account value
was $248,810.11. However, Stoll’s analysis determined that the present value was
approximately $130,000 more than the stated “account value.” Stoll noted that an employee
could choose to cash out the account and that the cash out amount increased with the number of ATHENS, 09CA38 4
years of service. She explained that obviously, whether to use the actuarial present value or the
cash out value is a matter for the court. Stoll’s report then stated:
“[I]f the ‘account value’ is greater than the actuarial present value, the non-participant may feel reluctant to accept the lower value of the actuarial present value unless the judgment entry reserves jurisdiction to divide the greater value of the pension in the event that the participant does, indeed, cash-out their interest in the plan. An open minded look at the issue clearly demonstrates the danger to the non-participant because the participant, in such a case, could access the higher value soon after the divorce without being encumbered to share that value with a former spouse. Similarly, if it is clear that the participant is not likely to terminate employment and the actuarial present value is less than the ‘account value’ there may be a well-founded reluctance to accept the higher cash-out value.”
Stoll’s report also offered “Reasons for the Non-Participant to Accept a Present Value”:
“Assessing a present value for a pension and then receiving a lump sum in offsetting assets or a series of periodic payments offers at least three possible advantages to the non-participant in the pension plan. First, the parties disentangle their economic affairs bringing a finality to this component of their relationship. Second, if the non-participant spouse elects to share the pension at a future date and the participant dies prior to benefit commencement, the non-participant may receive nothing at all from the pension. Third, if the non-participant dies, either before or after pension commencement, nothing may accrue to their estate. Relatively few traditional defined benefit pension plans allow a lump sum distribution and far fewer allow survivorship benefits on the alternate payee’s portion of a pension or the pre-retirement survivorship annuity. By choosing a lump sum distribution, from the plan (if allowed) or as an offset for an asset that they control, an individual can protect their ownership portion of a pension for their designated dependents or beneficiaries. However, once taken, there will be no future benefits due from the plan. An individual may fare better by investing their lump sum into their own retirement account. However, even if invested for the future, there are no guarantees of a better return or even that the original principal will be preserved.”
Stoll's report further presented “Reasons for the Non-Participant to Reject a Present Value in
Favor of a Deferred Distribution”:
“Present value reports are snapshots frozen in time. The value of a pension, as measured by a present value report, may change dramatically in a short period of time. Fluctuations in interest rates are the best known cause for these changes. As interest rates increase, the present value of the pension drops; conversely, as interest rates ATHENS, 09CA38 5
decrease, present values increase. Less well known is the impact of plan design on present values. High final n-year average salary based benefit formulas usually cause the benefit to increase faster in later years of employment. Even more dramatic is the effect of retirement age. Some plans allow earlier retirement at a highly subsidized, or even unreduced, level after certain age and service qualifications are met. Some plans may pay these benefits for life or as a temporary supplemental benefit to younger but long service employees. Once a participant becomes eligible to choose a younger retirement age where benefits are not actuarially adjusted, the present value of the benefit can increase substantially. Ex-spouses are considered to have a right to share in subsidized enhancements in most courts. * * * *.”
{¶ 7} Regarding the spousal support issue, appellee testified that appellant “is capable
of doing a number of physical and mental activities.” He stated that he has “watched her
improve slowly but steadily over the years since the time she went on disability, taking long
walks, gardening, lifting gardening materials, using the lawn tractor, cleaning the house.”
{¶ 8} Appellant also requested that appellee pay part of her attorney fees. Appellee’s
counsel stipulated that $5,000 is a reasonable fee for an attorney in a divorce case.
{¶ 9} In September 2009, the trial court issued a divorce decree. Concerning spousal
support, the court stated: “[Appellant’s medical] condition may be permanent, although in recent
times there have been some developments raising the prospect of an improvement in her physical
abilities.” The court recognized that both parties’ economic conditions would likely change in
the next five to ten years. The court stated that if appellee retires, then appellant “can re-open
the case and request a lump sum payment from [appellee] consistent with a present value
calculation. If [appellee] takes retirement from STRS after ten years then [appellant] shall share
in his monthly and/or lump sum benefits by appropriate division order (DOPO) in proportion to
the number of years the marriage represents to the years he has been a member of the system.
The Court is retaining jurisdiction for that period to consider or reconsider this retirement issue, ATHENS, 09CA38 6
if necessary. The Court accepts [appellee’s] expert’s analysis of disability income as
replacement income until it transmutes into retirement income.” The court found that the
parties’ pension benefits constitute marital property. The court ordered that appellant retain her
pension and acquire part of appellee’s to help balance and/or equalize marital assets “post
divorce.” The court awarded appellant spousal support that would slowly decrease over the
course of ten years and retained jurisdiction over the spousal support issue. The court ordered
appellee to pay appellant spousal support in the amount of: (1) $600 for the first twenty-four
months; (2) $500 for the next thirty-six months; and (3) $400 for the remaining five years. The
court further ordered appellee to pay $3,000 toward appellant’s attorney fees. This appeal
followed.
I
{¶ 10} In her first assignment of error, appellant argues that the trial court erred by failing
to equitably divide appellee’s retirement benefits. Appellant contends that the trial court must
determine the value of appellee’s retirement benefits and divide them in an equitable manner,
rather than deferring distribution of these marital assets and retaining jurisdiction to divide
appellee’s retirement benefits upon his retirement. Appellant also asserts that the trial court
abused its discretion by crediting Stoll’s testimony. She complains that the court failed to
provide a rationale for its decision and that in any event, the record does not support a basis to
accept Stoll’s testimony over Snider’s.
A
FINDINGS OF FACT AND CONCLUSIONS OF LAW
{¶ 11} Initially, we note that appellant did not file a Civ.R. 52 request for findings of fact ATHENS, 09CA38 7
and conclusions of law. Civ.R. 52 states: “When questions of fact are tried by a court without a
jury, judgment may be general for the prevailing party unless one of the parties in writing
requests otherwise * * * in which case, the court shall state in writing the conclusions of fact
found separately from the conclusions of law.” The failure to request findings of fact and
conclusions of law ordinarily results in a waiver of the right to challenge the trial court’s lack of
an explicit finding concerning an issue. See Pawlus v. Bartrug (1996), 109 Ohio App.3d 796,
801, 673 N.E.2d 188; Wangugi v. Wangugi (Apr. 12, 2000), Ross App. No. 2531; Ruby v. Ruby
(Aug. 11, 1999), Coshocton App. No. 99CA4. When a party fails to request findings of fact and
conclusions of law, we must presume the regularity of the trial court proceedings. See, e.g.,
Bunten v. Bunten (1998), 126 Ohio App.3d 443, 447, 710 N.E.2d 757; see, also, Cherry v.
Cherry (1981), 66 Ohio St.2d 348, 356, 421 N.E.2d 1293; Security Nat. Bank and Trust Co. v.
Springfield City Sch. Dist. Bd. of Educ. (Sept. 17, 1999), Clark App. No. 98-CA-104; Donese v.
Donese (April 10, 1998), Greene App. No. 97-CA-70. In the absence of findings of fact and
conclusions of law, we must presume the trial court applied the law correctly and must affirm if
there is some evidence in the record to support its judgment. See, e.g., Bugg v. Fancher,
Highland App. No. 06CA12, 2007-Ohio-2019, at ¶10, citing Allstate Financial Corp. v.
Westfield Serv. Mgt. Co. (1989), 62 Ohio App.3d 657, 577 N.E.2d 383; see, also, Yocum v.
Means, Darke App. No. 1576, 2002-Ohio-3803, at ¶7 (“The lack of findings obviously
circumscribes our review.”). As the court explained in Pettet v. Pettet (1988), 55 Ohio App.3d
128, 130, 562 N.E.2d 929:
“[W]hen separate facts are not requested by counsel and/or supplied by the court the challenger is not entitled to be elevated to a position superior to that he would have enjoyed had he made his request. Thus, if from an examination of ATHENS, 09CA38 8
the record as a whole in the trial court there is some evidence from which the court could have reached the ultimate conclusions of fact which are consistent with [its] judgment the appellate court is bound to affirm on the weight and sufficiency of the evidence. The message is clear: If a party wishes to challenge the* * * judgment as being against the manifest weight of the evidence he had best secure separate findings of fact and conclusions of law. Otherwise his already ‘uphill’ burden of demonstrating error becomes an almost insurmountable ‘mountain.’”
See, also, Bugg; McClead v. McClead, Washington App. No. 06CA67, 2007-Ohio-4624.
{¶ 12} In the case at bar, the trial court did not enter detailed factual findings or legal
conclusions. However, in the absence of a Civ.R. 52 request, it was not required to do so.
Because appellant did not request findings of fact and conclusions of law, we will presume the
regularity of the trial court proceedings, in the absence of evidence to the contrary.
B
STANDARD OF REVIEW
{¶ 13} A domestic relations court enjoys broad discretion in fashioning a division of
marital property, and consequently, we will not reverse its decision absent an abuse of discretion.
Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 95, 518 N.E.2d 1197. The term “abuse of
discretion” connotes more than an error of law or judgment; rather, it implies that the court’s
attitude was unreasonable, arbitrary or capricious. See, e.g., Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 219, 450 N.E.2d 1140. Furthermore, we will not disturb a trial court’s factual
finding unless it is against the manifest weight of the evidence. See, e.g., C.E. Morris Co. v.
Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. A finding is not against
the manifest weight of the evidence as long as the record contains some competent, credible
evidence to support it. Id. “This standard of review is highly deferential and even ‘some’ ATHENS, 09CA38 9
evidence is sufficient to sustain the finding and prevent a reversal.” Barkley v. Barkley (1997),
119 Ohio App.3d 155, 159, 694 N.E.2d 989. “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 proffered testimony.” Id., citing In re Jane Doe I
(1991), 57 Ohio St.3d 135, 566 N.E.2d 1181; see, also, Seasons Coal Co. v. Cleveland (1984), 10
Ohio St.3d 77, 461 N.E.2d 1273.
C
DIVISION OF RETIREMENT BENEFITS
{¶ 14} Retirement benefits acquired during a marriage are marital assets that a trial court
must consider when equitably dividing the marital property between divorcing spouses. See
R.C. 3105.171(A)(3)(a)(i) and (B); Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 178, 559 N.E.2d
1292. A trial court possesses discretion when determining how to equitably distribute retirement
benefits and “must apply its discretion based upon the circumstances of the case, the status of the
parties, the nature, terms and conditions of the pension or retirement plan, and the reasonableness
of the result.” Hoyt at paragraph one of the syllabus.
{¶ 15} A retirement asset “is not necessarily subject to direct division but is subject to
evaluation and consideration in making an equitable distribution of both parties’ marital assets.”
Id. at 180. Furthermore, when dividing retirement benefits, “[t]he trial court should attempt to
preserve the * * * retirement asset in order that each party can procure the most benefit, and
should attempt to disentangle the parties’ economic partnership so as to create a conclusion and
finality to their marriage.” Id. at paragraph two of the syllabus. ATHENS, 09CA38 10
{¶ 16} In Hoyt, as in the case sub judice, the trial court did not assign a present value to
the husband’s retirement asset, but instead ordered a deferred distribution of the husband's future
retirement benefits. On appeal, the husband argued that the trial court erred by failing to assign
a present value to his retirement asset. The Ohio Supreme Court explained the options available
when a trial court considers the parties’ retirement assets:
“[The court] must obtain a result which will preserve the asset so that each party can procure the most benefit. Thus, the trial court must have evidence before it detailing the intricacies and terms of the particular plan. Then, the trial court must make an equitable determination based upon the parties’ overall financial situation, whether a direct division, or some other alternative, would be most appropriate to preserve the pension or retirement asset so that each party may derive the most benefit. There are several alternatives to a direct * * * division, such as an immediate offset of a current assignment of proportionate shares, with either a current distribution or a deferred distribution. A deferred distribution may consist of either a current assignment or a division of the asset at such time that the plan directs distribution based upon the employee’s eligibility.”
Id. at 181.
{¶ 17} The Hoyt court further noted that a trial court may tailor its decision regarding an
equitable division of retirement benefits according to whether the benefits are matured or
unmatured. When the benefits are unmatured, as they are in the case sub judice, then the trial
court:
“may reserve jurisdiction and either determine the parties’ proportionate shares at the time of the divorce or determine proportionality when the benefits become vested and matured. In determining the proportionality of the pension or retirement benefits, the non-employed spouse, in most instances, is only entitled to share in the actual marital asset. The value of this asset would be determined by computing the ratio of the number of years of employment of the employed spouse during the marriage to the total years of his or her employment. When a trial court decides that a pension or retirement asset shall be paid by deferred distribution, it has created a situation where the parties’ affairs are not concluded. The non-employed spouse may be placed in a position where he or ATHENS, 09CA38 11
she must monitor the fund, which may also create problems for the plan administrator. Although this alternative divides the risk between the parties that the benefits will fail to vest or mature, as an example, there is nothing to prevent an employed spouse, for whatever reason, from quitting his or her employment and becoming employed elsewhere. Likewise, the nonemployed spouse bears the risk that the employed spouse will die and the expected benefits, before being vested or matured, will terminate.”
Hoyt at 182.
{¶ 18} The Hoyt court did recommend that trial courts endeavor to disentangle the
parties’ financial relationship. The court explained that trial courts should:
“strive to resolve the issues between the parties so as to disassociate the parties from one another or at least minimize their economic partnership. Certainly, some circumstances may warrant joint ownership after a divorce and situations may evolve where joint decisions must be made. In these matters, trial courts must exercise their fullest discretion. But, realistically, due to the nature of divorce, the circumstances usually are not conducive to joint decisionmaking by the parties. Therefore, some effort should be made to disentangle the parties’ economic affairs.” Id. at 182-183.
{¶ 19} The Hoyt court additionally suggested that trial courts “attempt to ascertain the
optimum value the pension or retirement benefit has to the parties as a couple, based upon the
nature and terms of the plan. The trial court should structure a division which will best preserve
the fund and procure the most benefit to each party.” Id. at 183.
{¶ 20} Ultimately, the Hoyt court determined that using the present value of $439.74 on
the date of journalization of the divorce decree would be “unfair and inequitable” and would not
“comport with the notion that this asset, the most significant marital asset of these parties, be
divided to ensure each party the most benefit.” Id. at 183-184. The court thus remanded the
matter to the trial court to redistribute the husband’s retirement benefits according to its
guidelines. Accordingly, under Hoyt: ATHENS, 09CA38 12
“[A] trial court may divide a pension fund using the ‘present value method’ or the ‘deferred distribution method.’ [Id. At 181]. Under the ‘present value method,’ the court first determines the amount the non-employee spouse is to receive. Secondly, the court: (1) orders that amount withdrawn from the pension fund; or (2) offsets that amount with installment payments or other marital property. Baldwin’s Ohio Domestic Relations Law (1990), 274, Section 25.05(E)(3). Under the ‘deferred distribution method,’ the trial court orders that a percentage of the future benefits be paid from the pension fund to the non-employee spouse if and when the pension matures.”
Newell v. White, Pickaway App. No. 05CA27, 2006-Ohio-637, at ¶7.
{¶ 21} In the case sub judice we believe that Hoyt validates the trial court’s approach.
Here, the trial court, in essence, ordered a deferred distribution. The court stated that if appellee
retires within the next ten years, then appellant can re-open the case and request a lump sum
payment from appellee consistent with a present value calculation. The court specified that if
appellee1 retires after ten years, then appellant “shall share in his monthly and/or lump sum
benefits by appropriate division order (DOPO) in proportion to the number of years the marriage
represents to the years he has been a member of the system.” The court further retained
jurisdiction over the division of retirement benefits and ordered appellant’s attorney to prepare a
DOPO that anticipates appellee’s retirement after ten years and specifies the coverture formula.
After our review of the record, we do not believe that the trial court abused its discretion by
deferring distribution of appellee’s retirement benefits. The trial court heard extensive
1 The trial court’s judgment states that “If Defendant takes retirement from STRS after ten years then Defendant shall share in his monthly and/or lump sum benefits by appropriate division order (DOPO) in proportion to the number of years the marriage represents to the years he has been a member of the system.” We believe that the trial court’s first use of “Defendant” in the preceding sentence is a clerical error and that the court meant to use “Plaintiff,” which would be appellee. Moreover, neither party has disputed that this is the meaning of the trial court’s decision. ATHENS, 09CA38 13
testimony from both appellant’s and appellee’s experts regarding the present value of appellee’s
retirement benefits. The trial court also had evidence before it regarding appellee’s expected
monthly retirement income. A trial court is entitled to exercise its discretion to determine that a
deferred distribution may better preserve a retirement asset. Even though the court deferred the
distribution of appellee’s retirement benefits in the case at bar, and may not have disentangled the
parties’ financial affairs, its failure to do so does not constitute an abuse of discretion. See
Haynes v. Haynes (Mar. 4, 1998), Summit App. No. 18487 (stating that “disentangling the
parties’ affairs as quickly as possible is a favorable result, but facilitating financial disassociation
is not the only factor to consider”). Moreover, “there is no requirement that the court must, as a
matter of law, divide marital pension benefits. It must simply consider the pension plan as a
marital asset in reaching an equitable division of marital property.” Soulsby v. Soulsby, Meigs
App. No. 07CA1, 2008-Ohio-1019, at ¶13.
{¶ 22} Other Ohio courts have endorsed the trial court's approach used in this case,
noting that with a defined benefit plan, such as appellee’s, the actual value subject to equitable
distribution “can be determined only by future contingencies such as the participant’s age and
pension service credits at retirement.” Pruitt v. Pruitt, Cuyahoga App. No. 84335,
2005-Ohio-4424, at ¶53. Courts have thus concluded that “[w]hen the amount to be paid can
only be determined at a later point of maturity at retirement, a current order should divide and
distribute only the right to receive a share of the unmatured pension benefit, reserving
determination of exact amounts to the later time when they are known. This method serves both
objectives of an equitable division; it disentangles the affairs of the parties while producing an
optimum value for each.” Layne v. Layne (1992), 83 Ohio App.3d 559, 566, 615 N.E.2d 332; ATHENS, 09CA38 14
see, also, Pruitt at ¶56; Reynolds v. Reynolds (July 21, 1999), Wayne App. No. 98CA40 (stating
that “courts have the option of retaining jurisdiction to order the distribution of benefits upon
either their maturity, or upon the employee’s application for withdrawal of those funds”);
Sprankle v. Sprankle (1993), 87 Ohio App.3d 129, 134, 621 N.E.2d 1310 (When a trial court is
not going to immediately liquidate a pension, but instead orders the benefits to be divided and
paid when they are ultimately paid by the pension plan, it need not determine the present value of
the benefits at the time of the judgment.).
{¶ 23} Furthermore, in the case sub judice the trial court had before it Stoll’s report that
detailed the various options for dividing a pension. Her report offered various scenarios and
rationales to support each option. The trial court rationally could have concluded, based upon
Stoll’s report, that a deferred distribution will better preserve the retirement asset and may even
benefit appellant into the future, although not as immediately as an outright division.
Consequently, we are unable to conclude in the case sub judice that the trial court abused its
discretion when it fashioned the division of appellee’s retirement assets.
{¶ 24} We turn now to appellant’s claim that the trial court’s decision to credit Stoll’s
testimony is against the manifest weight of the evidence. First, as we noted earlier, appellant
failed to request findings of fact and conclusions of law. As such, she has waived the right to
challenge the trial court’s factual findings, or lack thereof, and more specifically, her complaint
that the trial court failed to offer a rationale for crediting Stoll’s testimony. In any event, we also
observe that the trial court did not explicitly credit Stoll’s testimony in its entirety. Rather, the
court simply stated that it accepted Stoll’s “analysis of disability income as replacement income
until it transmutes into retirement income.” Appellant’s argument appears to be directed at ATHENS, 09CA38 15
Stoll’s testimony regarding present value. The trial court, however, did not make any credibility
determination regarding the experts’ present value testimonies. Indeed, apparently because of
the widely conflicting present value figures, the court declined to assign a present value to the
assets, but instead left it for future determination upon future distribution. We find the trial
court’s explicit credibility determination regarding disability income as replacement income to be
largely irrelevant to the issue regarding the present value of appellee’s retirement assets. Thus,
we find appellant’s credibility argument misplaced. Moreover, we note that credibility
determinations rest primarily with the trial court. A trial court’s function, as the trier of fact, is
to resolve disputes of fact and weigh the credibility of the testimony and documentary evidence.
Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23. We must defer to a trial court’s credibility
determinations because “the trial judge is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the credibility
of the proffered testimony.” Seasons Coal Co.
{¶ 25} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
first assignment of error.
II
{¶ 26} In her second assignment of error, appellant challenges the trial court’s conclusion
that her disability income transmutes into retirement income, and thus marital property, upon her
attaining retirement age. Appellant essentially argues that the disability income she receives is,
and forever will be, her separate income and property.
{¶ 27} Ordinarily, the classification of property as marital or separate constitutes a ATHENS, 09CA38 16
question of fact. See Wigal v. Wigal, Washington App. Nos. 06CA70 and 07CA10,
2008-Ohio-747, at ¶35. Thus, appellate courts generally review the classification of property as
marital or separate under a manifest-weight-of-the evidence standard and will affirm if the
classification is supported by some competent, credible evidence. See id.
{¶ 28} R.C. 3105.171(C) and (D) require a court to equitably divide marital property
between the spouses. “Marital property” includes retirement benefits of the spouses. R.C.
3105.171(A)(3)(a)(i). It does not, however, include any “separate property,” which includes
“[c]ompensation to a spouse for the spouse’s personal injury.” R.C. 3105.171(A)(3)(b) and
(6)(a)(vi). Disability benefits constitute compensation received for personal injury. Bakle v.
Bakle, Greene App. No.2009 CA 9, 2009-Ohio-6003, at ¶13, citing Ockunzzi v. Ockunzzi,
Cuyahoga App. No. 86785, 2006-Ohio-5741, at ¶64; see, also, Arkley v. Arkley, Jefferson App.
No. 03 JE 10, 2003-Ohio-7021, at ¶14, citing Bauser v. Bauser (1997), 118 Ohio App.3d 831,
835, 694 N.E.2d 136. Thus, disability benefits do not constitute marital property unless “they
are accepted by the retiree in lieu of retirement pay, [in which case] they are marital property to
the extent that retirement pay value is included therein.” Elsass v. Elsass (Dec. 29, 1993),
Greene App. Nos. 93-CA-0005, 93-CA-0016, citing Principles and Guidelines for the Division of
Property in Actions for Divorce in Ohio (Mar.1981), 54 Ohio Bar 491. The Elsass court
reasoned that “disability benefits * * * are a form of wage continuation designed to compensate
the recipient for wages that he would otherwise receive but for the disability.” Id. It held,
therefore, that disability retirement benefits are not marital property subject to division unless the
recipient spouse has accepted them in lieu of old-age retirement pay, and then only to the extent
that such retirement pay value is included in the disability pension benefit. Id. When disability ATHENS, 09CA38 17
benefits are accepted in lieu of retirement pay, “they are marital property to the extent that the
disability benefit includes the retirement pay value.” Messer v. Messer, Darke App. No. 1570,
2002-Ohio-4196, at ¶8. “On the date a spouse becomes eligible for retirement, the disability
benefits being received, though not marital property per se, begin to represent retirement benefits
to the extent that they equal the retirement benefits the spouse would receive but for his
disability.” Young v. Young, Clark App. Nos. 08CA59 and 08CA61, 2009-Ohio-3504, at ¶31,
citing Motter v. Motter (July 27, 2000), Wyandot App. No 16-99-14.
{¶ 29} In the case sub judice, the trial court stated that it “accepts [Stoll’s] analysis of
disability income as replacement income until it transmutes into retirement income.” The above
cited cases are in accord with the trial court’s finding. When appellant reaches retirement age,
her disability benefits will represent retirement benefits to the extent that they equal the
retirement benefits appellant would have received but for her disability. See Young at ¶31.
Consequently, we do not believe that the trial court’s finding is against the manifest weight of the
evidence.2
{¶ 30} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
second assignment of error.
III
{¶ 31} In her third assignment of error, appellant contends that the trial court's decision to
award her ten years of declining spousal support constitutes an abuse of discretion.
{¶ 32} “It is well-settled that trial courts enjoy broad discretion in awarding spousal
2 We note that the trial court’s divorce decree does not specifically award appellee any interest in appellant’s retirement or disability benefits beyond stating that appellant’s pension constitutes marital property. ATHENS, 09CA38 18
support.” Breedlove v. Breedlove, Washington App. No. 08CA10, 2008-Ohio-4887, at ¶9,
citing Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E.2d 83. Trial courts are given
“wide latitude in determining the appropriateness, as well as the amount,” of spousal support.
Bolinger v. Bolinger (1990), 49 Ohio St.3d 120, 122, 551 N.E.2d 157. A court’s decision to
award spousal support will not be reversed on appeal absent an abuse of discretion. See
Bechtol. Under the abuse of discretion standard of review, we must affirm the trial court’s
decision unless it is unreasonable, arbitrary, or unconscionable. Blakemore. Under this highly
deferential standard of review, we may not simply substitute our judgment for that of the trial
court. In re Jane Doe I. Rather, we are limited to determining whether the trial court acted
unreasonably, arbitrarily or unconscionably. Briganti v. Briganti (1984), 9 Ohio St.3d 220, 222,
459 N.E.2d 896, citing Blakemore, 5 Ohio St.3d at 218-20.
{¶ 33} R.C. 3105.18(C)(1) provides that, in determining whether spousal support is
“appropriate and reasonable, and in determining the nature, amount, and terms of payment, and
duration of spousal support,” a court must consider the following factors:
(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; ATHENS, 09CA38 19
(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable.
{¶ 34} When making a spousal support award, a trial court must consider all statutory
factors and not base its determination upon any one of those factors taken in isolation. Kaechele
at paragraph one of the syllabus. While a trial court possesses broad discretion regarding the
determination of the appropriateness and reasonableness of an award of spousal support, it must
consider the statutory factors enumerated above and must indicate the basis for a spousal support
award in sufficient detail to enable a reviewing court to determine that the award complies with
the law. Kaechele at paragraph two of the syllabus. In the absence of a request for findings of
fact and conclusions of law, however, Kaechele does not require the trial court to list and
comment on each factor. Brown v. Brown, Pike App. No. 02AP689, 2003-Ohio-304, at ¶10.
Rather, Kaechele and R.C. 3105.18(C) only require a trial court to reveal the basis for its award
in either its judgment or the record. Id.; see, also, Carman v. Carman (1996), 109 Ohio App.3d
698, 704, 672 N.E.2d 1093.
{¶ 35} In the case sub judice, we do not believe that the trial court abused its discretion
when it entered its spousal support award. First, with respect to appellant’s argument that the
trial court failed to articulate its reason underlying the spousal support award, we again observe ATHENS, 09CA38 20
that appellant did not request findings of fact and conclusions of law. In the absence of that
request, the trial court was not required to engage in a lengthy statutory analysis regarding its
spousal support award. Second, the record contains sufficient evidence to support the trial
court’s spousal support award. Although appellee earns more money than appellant, appellant
receives disability income. The trial court had no obligation to award appellant an amount of
spousal support to equalize the parties’ incomes or to equal an amount that would enable her to
maintain the same lifestyle level that the parties enjoyed during their marriage. See Leopold v.
Leopold, Washington 04CA14, 2005-Ohio-214, at ¶20. The trial court could have rationally
concluded that appellant’s disability income, coupled with the spousal support, would be
adequate in order for appellant to maintain an appropriate and reasonable standard of living.
Moreover, appellee presented at least some evidence that appellant, who, like appellee, is
highly-educated, might be capable of seeking at least part-time employment. Both parties have
pension benefits to provide a means of support upon attaining retirement age. Thus, appellant
will continue to have a source of income throughout her life. Although the parties had a
long-term marriage, which could arguably justify an indefinite spousal support award,3 the trial
court was not required to award appellant an indefinite spousal support award or a larger award.
Instead, the trial court may exercise its discretion to determine an appropriate and reasonable
amount of spousal support and need not follow any bright-line rule that a long-term marriage
automatically results in an indefinite award.
3 See Vanke v. Vanke (1994), 93 Ohio App.3d 373, 377, quoting Corpac v. Corpac (Feb. 27, 1992), Franklin App. No. 91AP-1036 (“[A] marriage of long duration ‘in and of itself would permit a trial court to award spousal support of indefinite duration without abusing its discretion or running afoul of the mandates of Kunkle.’”); see, also, Handschumaker v. Handschumaker, Washington App. No. 08CA19, 2009-Ohio-2239, at ¶21. ATHENS, 09CA38 21
{¶ 36} In sum, we cannot conclude that the trial court abused its discretion by awarding
appellant ten years of spousal support on a declining scale. Additionally, we note that the trial
court retained jurisdiction to modify spousal support, if necessary.
{¶ 37} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
third assignment of error.
IV
{¶ 38} In her fourth assignment of error, appellant asserts that the trial court erred by
finding that appellant’s condition “may be permanent” and that her physical condition might
improve. She contends that the record does not contain credible, competent evidence to support
the trial court’s finding.
{¶ 39} An appellate court “‘has an obligation to presume that the findings of the trier of
fact are correct. * * * This presumption arises because the trial judge had an opportunity “‘to
view the witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.’”’” Corrigan v. Illuminating
Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, at ¶34, quoting State v. Wilson,
113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, at ¶24, quoting Seasons Coal Co..
Furthermore, a reviewing court “‘must not substitute its judgment for that of the trial court where
there exists some competent and credible evidence supporting the findings of fact and
conclusions of law rendered by the trial court.’” Id., quoting Myers v. Garson (1993), 66 Ohio
St.3d 610, 616, 614 N.E.2d 742. Thus, we will not reverse a finding of fact so long as some
competent, credible evidence supports the trial court’s finding. See, e.g., Lovett v. Carlisle, 179
Ohio App.3d 182, 2008-Ohio-5852, 901 N.E.2d 255, at ¶16, citing Sec. Pacific Natl. Bank v. ATHENS, 09CA38 22
Roulette (1986), 24 Ohio St.3d 17, 20, 24 OBR 14, 492 N.E.2d 438.
{¶ 40} In the case at bar, we believe that the record contains some competent, credible
evidence supports the trial court’s finding that appellant’s condition might improve. Some
evidence also exists that appellant continues to enjoy an active lifestyle, despite her disability.
She maintained the parties’ former seven-acre marital residence and traveled on vacations.
Furthermore, even assuming arguendo that the trial court’s finding is against the manifest weight
of the evidence as appellant asserts, appellant has not demonstrated how this allegedly erroneous
finding affected the outcome of the trial court proceedings. She cannot demonstrate that a
contrary finding would have resulted in the trial court entering any different decision regarding
spousal support or the division of marital assets. Consequently, any error with this finding
constitutes harmless error that we must disregard. See Civ.R. 61.
{¶ 41} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
fourth assignment of error.
V
{¶ 42} In her fifth assignment of error, appellant asserts that the trial court erred by
awarding her only $3,000 in attorney fees when appellee stipulated that $5,000 was a reasonable
contribution toward payment of her fees.
{¶ 43} R.C. 3105.73(A) authorizes a trial court in a divorce action to “award all or part of
reasonable attorney’s fees and litigation expenses to either party if the court finds the award
equitable. In determining whether an award is equitable, a court may consider the parties’ ATHENS, 09CA38 23
marital assets and income, any award of temporary spousal support, the conduct of the parties,
and any other relevant factors the court deems appropriate.”
{¶ 44} An attorney fee award under this statute lies within the sound discretion of the
trial court and, thus, its decision should not be reversed absent an abuse of discretion. See
Basham v. Basham, Scioto App. No. 06CA3085, 2007-Ohio-3941, at ¶28.
{¶ 45} In the case at bar, we do not believe that the trial court abused its discretion by
ordering appellee to pay $3,000, rather than $5,000, towards appellant’s attorney fees. The trial
court could have rationally concluded that the equitable result would be to order appellee to
contribute $3,000 towards appellant’s attorney fees. We believe that appellant’s assertion that
“[i]t was [s]tipulated that $5,000.00 was a reasonable contribution to [her] attorney’s fees,” does
not accurately portray appellee’s stipulation. During the final hearing, appellee did not stipulate
that he would pay $5,000 towards appellant’s attorney fees, but rather appellee’s counsel
stipulated that, as a general matter, $5,000 in a divorce case is not an unreasonable fee.
Consequently, the trial court’s $3,000 attorney fee award is not contrary to any purported
stipulation that the parties entered.
{¶ 46} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
fifth assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal. ATHENS, 09CA38 24
It is ordered that a special mandate issue out of this Court directing the Athens County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Abele, J., Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY: Peter B. Abele, Judge
BY: Roger L. Kline, Judge
BY: Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.