[Cite as Toki v. Toki, 2020-Ohio-130.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
SUE E. TOKI JUDGES: Hon. William B. Hoffman, P.J Plaintiff-Appellant Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 19-CA-00009 LARRY E. TOKI
Defendant-Appellee O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of Common Pleas, Case No. 22480
JUDGMENT: Affirmed in part and Reversed and Remanded in part
DATE OF JUDGMENT ENTRY: January 15, 2020
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
RYAN SHEPLER RICHARD A. L. PIATT Kernen & Shepler, LLC MEGAN M. GIBSON 158 East Main Street Saia & Piatt, Inc. P.O. Box 388 713 South Front Street Logan, Ohio 43138-0388 Columbus, Ohio 43206 Perry County, Case No. 19-CA-00009 2
Hoffman, P.J. {¶1} Plaintiff-appellant Sue Toki appeals the August 10, 2018 Judgment Entry
entered by the Perry County Court of Common Pleas, which denied her Amended Motion
to Construe Decree of Divorce, following this Court’s remand order in Toki v. Toki, 5th
Dist. Perry App. No. 18-CA-00014, 2019-Ohio-817. Defendant-appellee is Larry E. Toki.
STATEMENT OF THE FACTS AND CASE
{¶2} The parties were married on March 29, 1969. Appellant filed a Complaint
for Divorce on December 9, 1992. The matter came on for final hearing before the referee
on April 12, 1994. The referee filed a Journal Entry: Referee's Report on August 16, 1994,
from which both parties filed objections. The trial court adopted the referee's report except
for the determination of child support and the division of Appellee's P.E.R.S. pension.
{¶3} In an Amended Referee's Report filed November 7, 1994, the referee
determined Appellant's interest in Appellee's pension was $53,531.48. The referee
recommended Appellant have the right to withdraw said amount once Appellee began to
draw on his pension. Appellant objected to the report, arguing the language was unclear
as to whether the $53,531.48 amount awarded to her from Appellee's pension was a fixed
amount, and the referee failed to consider interest earned on those funds in the years
prior to Appellee's retirement.
{¶4} Via Entry filed December 1, 1994, the trial court adopted the referee's
Amended Report except for the division of Appellee's P.E.R.S. pension. The trial court
ordered:
[Appellant] is to receive $53,531.48 from the Pension Plan of
[Appellee]. [Appellant] shall receive her funds by means of a formula for Perry County, Case No. 19-CA-00009 3
division of any moneys received by [Appellee] which formula grants
[Appellant] half of the pension that existed at the time of the divorce, plus
income earned by her share, but no additional increase of years of service
earned by [Appellee]. This Court orders [Appellee] to pay [Appellant] a
portion of any and all P.E.R.S. funds received by him or his estate based
on the following formula. The formula is:
½ x 23 years
Total Number of Years of P.E.R.S. Employment at Time the Funds
are Received.
This formula will apply to any lump sum distributions received by
[Appellee] as well as monthly payments received by [Appellee]. No
payments shall be due from [Appellee] to [Appellant] until such time as
pension benefits are received by [Appellee] from the Public Employees
Retirement System of Ohio.
{¶5} Appellee retired in 2002, with 32.5 years of service credit from the state of
Ohio. On or about June 21, 2002, Appellee paid Appellant $20,000, via personal check,
as “Partial Divorce Settlement/Retirement Funds”. It is undisputed Appellee made no
further payments to Appellant.
{¶6} On April 12, 2017, Appellant filed a Charge in Contempt based upon
Appellee's failure to pay the remaining funds due her. Contemporaneously therewith,
Appellant filed a Motion to Construe Decree of Divorce. The magistrate conducted a
hearing on the motions on October 25, 2017. Via Magistrate's Decision and Order filed Perry County, Case No. 19-CA-00009 4
October 26, 2017, the magistrate denied both motions, finding Appellant was barred by
the doctrine of laches. Appellant filed a timely request for findings of fact and conclusions
of law. The magistrate issued a Decision and Order on May 25, 2018, which included
findings of fact and conclusions of law. Appellant filed timely objections to the magistrate's
decision.
{¶7} Via Judgment Entry filed August 10, 2018, the trial court overruled
Appellant's Charge in Contempt, finding laches barred her action for contempt. The trial
court noted the delay of 15 years before asserting her right, finding the delay was
unreasonable and there was no excuse for it. Appellant appealed the decision to this
Court. Therein, Appellant raised two assignments of error, to wit: The trial court erred by
relying on laches to bar division of the pension; and (II) the trial court erred by failing to
address the amended motion to construe decree of divorce.
{¶8} We overruled Appellant’s first assignment of error, finding the trial court did
not abuse its discretion in applying laches as it related to Appellant’s contempt charge.
Toki v. Toki, 5th Dist. Perry App. No. 18-CA-00014, 2019-Ohio-817. However, we
sustained Appellant’s second assignment of error, finding “the trial court did not
specifically rule on Appellant's Amended Motion to Construe Decree of Divorce” and it
was “unclear whether the trial court also intended to deny the motion to construe based
upon laches.” Id. at para. 16.
{¶9} We remanded the matter to the trial court to specifically rule on Appellant's
Amended Motion to Construe, stating: Perry County, Case No. 19-CA-00009 5
Issues remain as to whether Appellant is entitled to $53,531.48 plus
interest, adjusted down by the $20,000 payment received, based upon a
collection formula or entitled to application of the formula to all monthly
benefits Appellee has received or will receive in the future. It would seem
while laches does not bar collection of the original definite amount set forth
in the 1994 judgment, it is arguable whether it is available if the formula is
applied to all retirement benefits Appellee has already received and/or will
receive in the future. Perhaps laches may well apply to such formula
application up to the date Appellant filed her original motion to construe the
1994 entry. Perhaps not. We feel these issues need further consideration
by the trial court. Id. at para. 17.
{¶10} Pursuant to this Court’s remand order, the trial court ruled on Appellant’s
Amended Motion to Construe, denying the same via Judgment Entry filed August 10,
2018. The trial court found laches was a defense to Appellant’s Amended Motion to
Construe. The trial court further found requiring Appellee to make monthly payments of
a portion of his retirement benefits to Appellant would create a financial hardship for him;
therefore, was prejudicial.
{¶11} It is from this judgment entry Appellant appeals, raising as her sole
assignment of error: Perry County, Case No. 19-CA-00009 6
I. THE TRIAL COURT ERRED BY DENYING THE AMENDED
MOTION TO CONSTRUE DECREE OF DIVORCE RATHER THAN
APPROPRIATELY INTERPRETING THE DECREE.
{¶12} In her sole assignment of error, Appellant maintains the trial court erred in
denying her Amended Motion to Construe.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Toki v. Toki, 2020-Ohio-130.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
SUE E. TOKI JUDGES: Hon. William B. Hoffman, P.J Plaintiff-Appellant Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 19-CA-00009 LARRY E. TOKI
Defendant-Appellee O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Perry County Court of Common Pleas, Case No. 22480
JUDGMENT: Affirmed in part and Reversed and Remanded in part
DATE OF JUDGMENT ENTRY: January 15, 2020
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
RYAN SHEPLER RICHARD A. L. PIATT Kernen & Shepler, LLC MEGAN M. GIBSON 158 East Main Street Saia & Piatt, Inc. P.O. Box 388 713 South Front Street Logan, Ohio 43138-0388 Columbus, Ohio 43206 Perry County, Case No. 19-CA-00009 2
Hoffman, P.J. {¶1} Plaintiff-appellant Sue Toki appeals the August 10, 2018 Judgment Entry
entered by the Perry County Court of Common Pleas, which denied her Amended Motion
to Construe Decree of Divorce, following this Court’s remand order in Toki v. Toki, 5th
Dist. Perry App. No. 18-CA-00014, 2019-Ohio-817. Defendant-appellee is Larry E. Toki.
STATEMENT OF THE FACTS AND CASE
{¶2} The parties were married on March 29, 1969. Appellant filed a Complaint
for Divorce on December 9, 1992. The matter came on for final hearing before the referee
on April 12, 1994. The referee filed a Journal Entry: Referee's Report on August 16, 1994,
from which both parties filed objections. The trial court adopted the referee's report except
for the determination of child support and the division of Appellee's P.E.R.S. pension.
{¶3} In an Amended Referee's Report filed November 7, 1994, the referee
determined Appellant's interest in Appellee's pension was $53,531.48. The referee
recommended Appellant have the right to withdraw said amount once Appellee began to
draw on his pension. Appellant objected to the report, arguing the language was unclear
as to whether the $53,531.48 amount awarded to her from Appellee's pension was a fixed
amount, and the referee failed to consider interest earned on those funds in the years
prior to Appellee's retirement.
{¶4} Via Entry filed December 1, 1994, the trial court adopted the referee's
Amended Report except for the division of Appellee's P.E.R.S. pension. The trial court
ordered:
[Appellant] is to receive $53,531.48 from the Pension Plan of
[Appellee]. [Appellant] shall receive her funds by means of a formula for Perry County, Case No. 19-CA-00009 3
division of any moneys received by [Appellee] which formula grants
[Appellant] half of the pension that existed at the time of the divorce, plus
income earned by her share, but no additional increase of years of service
earned by [Appellee]. This Court orders [Appellee] to pay [Appellant] a
portion of any and all P.E.R.S. funds received by him or his estate based
on the following formula. The formula is:
½ x 23 years
Total Number of Years of P.E.R.S. Employment at Time the Funds
are Received.
This formula will apply to any lump sum distributions received by
[Appellee] as well as monthly payments received by [Appellee]. No
payments shall be due from [Appellee] to [Appellant] until such time as
pension benefits are received by [Appellee] from the Public Employees
Retirement System of Ohio.
{¶5} Appellee retired in 2002, with 32.5 years of service credit from the state of
Ohio. On or about June 21, 2002, Appellee paid Appellant $20,000, via personal check,
as “Partial Divorce Settlement/Retirement Funds”. It is undisputed Appellee made no
further payments to Appellant.
{¶6} On April 12, 2017, Appellant filed a Charge in Contempt based upon
Appellee's failure to pay the remaining funds due her. Contemporaneously therewith,
Appellant filed a Motion to Construe Decree of Divorce. The magistrate conducted a
hearing on the motions on October 25, 2017. Via Magistrate's Decision and Order filed Perry County, Case No. 19-CA-00009 4
October 26, 2017, the magistrate denied both motions, finding Appellant was barred by
the doctrine of laches. Appellant filed a timely request for findings of fact and conclusions
of law. The magistrate issued a Decision and Order on May 25, 2018, which included
findings of fact and conclusions of law. Appellant filed timely objections to the magistrate's
decision.
{¶7} Via Judgment Entry filed August 10, 2018, the trial court overruled
Appellant's Charge in Contempt, finding laches barred her action for contempt. The trial
court noted the delay of 15 years before asserting her right, finding the delay was
unreasonable and there was no excuse for it. Appellant appealed the decision to this
Court. Therein, Appellant raised two assignments of error, to wit: The trial court erred by
relying on laches to bar division of the pension; and (II) the trial court erred by failing to
address the amended motion to construe decree of divorce.
{¶8} We overruled Appellant’s first assignment of error, finding the trial court did
not abuse its discretion in applying laches as it related to Appellant’s contempt charge.
Toki v. Toki, 5th Dist. Perry App. No. 18-CA-00014, 2019-Ohio-817. However, we
sustained Appellant’s second assignment of error, finding “the trial court did not
specifically rule on Appellant's Amended Motion to Construe Decree of Divorce” and it
was “unclear whether the trial court also intended to deny the motion to construe based
upon laches.” Id. at para. 16.
{¶9} We remanded the matter to the trial court to specifically rule on Appellant's
Amended Motion to Construe, stating: Perry County, Case No. 19-CA-00009 5
Issues remain as to whether Appellant is entitled to $53,531.48 plus
interest, adjusted down by the $20,000 payment received, based upon a
collection formula or entitled to application of the formula to all monthly
benefits Appellee has received or will receive in the future. It would seem
while laches does not bar collection of the original definite amount set forth
in the 1994 judgment, it is arguable whether it is available if the formula is
applied to all retirement benefits Appellee has already received and/or will
receive in the future. Perhaps laches may well apply to such formula
application up to the date Appellant filed her original motion to construe the
1994 entry. Perhaps not. We feel these issues need further consideration
by the trial court. Id. at para. 17.
{¶10} Pursuant to this Court’s remand order, the trial court ruled on Appellant’s
Amended Motion to Construe, denying the same via Judgment Entry filed August 10,
2018. The trial court found laches was a defense to Appellant’s Amended Motion to
Construe. The trial court further found requiring Appellee to make monthly payments of
a portion of his retirement benefits to Appellant would create a financial hardship for him;
therefore, was prejudicial.
{¶11} It is from this judgment entry Appellant appeals, raising as her sole
assignment of error: Perry County, Case No. 19-CA-00009 6
I. THE TRIAL COURT ERRED BY DENYING THE AMENDED
MOTION TO CONSTRUE DECREE OF DIVORCE RATHER THAN
APPROPRIATELY INTERPRETING THE DECREE.
{¶12} In her sole assignment of error, Appellant maintains the trial court erred in
denying her Amended Motion to Construe. Appellant submits the trial court’s cursory
denial of her motion was inconsistent with this Court’s remand order.
{¶13} Laches has been defined by the Ohio Supreme Court as “an omission to
assert a right for an unreasonable and unexplained length of time, under circumstances
prejudicial to the adverse party.” Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 472
N.E.2d 328, quoting Smith v. Smith (1959), 168 Ohio St. 447, 156 N.E.2d 113. In order
to successfully invoke the doctrine, the following four elements must be establish, by a
preponderance of the evidence: (1) unreasonable delay or lapse of time in asserting a
right; (2) absence of an excuse for the delay; (3) knowledge, actual or constructive, of the
injury or wrong; and (4) prejudice to the other party. See, State ex rel. Meyers v. Columbus
(1995), 71 Ohio St.3d 603, 605, 646 N.E.2d 173. Delay in asserting a right does not,
without more, establish laches. Rather, the person invoking the doctrine must show the
delay caused material prejudice. Connin, 15 Ohio St.3d at 35-36, 472 N.E.2d 328; Smith,
paragraph three of the syllabus.
{¶14} A party's assertion of financial prejudice does not, as a matter of law,
sufficiently demonstrate “material prejudice.” Smith v. Smith, 168 Ohio St. 447, 156
N.E.2d 113 (1959). “The mere inconvenience of having to meet an existing obligation
imposed * * * by an order or judgment of a court of record at a time later than that specified Perry County, Case No. 19-CA-00009 7
in such * * * order cannot be called material prejudice.” Id.; State ex rel. Donovan v. Zajac,
125 Ohio App.3d 245, 250, 708 N.E.2d 254 (1998). Instead, to establish “material
prejudice,” the party invoking the laches doctrine must show either: (1) the loss of
evidence helpful to the case; or (2) a change in position which would not have occurred
if the right had been promptly asserted. Donovan, 125 Ohio App.3d at 250, 708 N.E.2d
254. See, also, Weber v. Weber, 4th Dist. Jackson App. No. 01CA7, 2001-Ohio-2648.
{¶15} Pursuant to the December 1, 1994 Entry, Appellee was legally obligated to
pay Appellant $53,531.48, plus interest. Appellee paid Appellant a lump sum payment of
$20,000, on or about June 21, 2002, as “Partial Divorce Settlement/Retirement Funds”.
Appellee made no further payments to Appellant.
{¶16} We find Appellee’s original legal obligation to Appellant as set forth in the
trial court’s December 1, 1994 Entry is not barred by laches. To find otherwise would not
be reflective of the trial court’s intent. Pursuant to the original decree, Appellant was
awarded earned interest on the $53,531.48 as of the date of Appellee’s retirement.
Accordingly, Appellant is entitled to $53,531.48 plus the annual legal rate of simple
interest on $53,531.48, not compounded, less the $20,000.00 payment. Appellant is not
entitled to any potential accrual of interest after 2002, as the same is barred by laches.
{¶17} Our ruling today merely calls upon Appellee to comply with an obligation
imposed upon him by an existing court order. While Appellee may have changed his
financial position in reliance upon his belief Appellant would not seek to enforce the order,
this prejudice is insufficient as a matter of law to support a defense of laches. Perry County, Case No. 19-CA-00009 8
{¶18} Based upon the foregoing, we reverse the trial court’s finding laches applies
to the entire amount which remains due to Appellant, but affirm its finding laches applies
to any growth on the amount after June, 2002.
{¶19} The judgment of the Perry County Court of Common Pleas is affirmed in
part, and reversed and remanded in part, and the matter remanded to the trial court to
determine the amount Appellee owes Appellant in accordance with this Opinion and enter
judgment accordingly.
By: Hoffman, P.J. Wise, John, J. and Delaney, J. concur