Witten v. Witten

2024 Ohio 5631

• Court: Ohio Court of Appeals
• Decided: December 2, 2024
• Docket: 24CA012069
• Status: Published

Opinion

[Cite as Witten v. Witten, 2024-Ohio-5631.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

THOMAS G. WITTEN C.A. No. 24CA012069

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE BARBARA WITTEN COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 17 DR 083740

DECISION AND JOURNAL ENTRY

Dated: December 2, 2024

STEVENSON, Presiding Judge.

{¶1} Barbara Witten appeals from the judgment of Lorain County Court of Common

Pleas, Domestic Relations Division, which adopted a magistrate’s decision denying her motion to

show cause and motion to continue spousal support. This Court affirms.

I.

{¶2} Ms. Witten (“Wife”) and Thomas G. Witten (“Husband”) married at common law

in 1982 and divorced in 2018. The divorce decree approved and incorporated the parties’

separation agreement.

{¶3} Section five of the parties’ separation agreement addresses Husband’s pension (“the

Pension”). Husband agreed in section five that, when he retires, Wife is entitled to one-half of the

Pension for the years the parties were married. Husband and Wife agreed to have a qualified

domestic relations order (“QDRO”) prepared to reflect this agreement. 2

{¶4} Section six of the separation agreement addresses spousal support and is at issue in

this appeal. Husband agreed in this section to pay Wife $2,300 per month in spousal support,

commencing in January 2019, “until [he] receives his pension.” Section six states in relevant part:

Husband agrees to pay Wife, as and for spousal support, the sum of $2,300.00 per month . . . commencing January 15, 2019 and shall continue until Husband receives his pension.

Notwithstanding the forgoing, the Court shall retain jurisdiction over both the amount and duration of spousal support, which shall terminate upon the happening of the earliest of the following events.

A. Death of either party; B. [Wife’s] remarriage or cohabitation with an unrelated (non-family) member.

Furthermore, the amount and/or duration of spousal support may be changed or terminated, based upon changed financial or health circumstances of one or both of the parties which make it equitable to do so.

... Each party shall notify the Court, and the other party, of any change in marital status or income until there is no longer a duty to pay spousal support. . . .

(Emphasis added.)

{¶5} Husband applied for the Pension in April 2019, and he began receiving his portion

of the Pension in July 2020. The Pension administrator held Wife’s portion of the Pension in

escrow until the QDRO was approved in December 2021. Wife started to receive her portion of

the Pension in January 2022. Wife’s portion of the Pension that was held in escrow, pending

QDRO approval, was released to Husband.

{¶6} In February 2022, Wife moved to show cause asserting Husband should be held in

contempt for failure to pay spousal support. Wife argued that Husband had to continue paying

spousal support until he moved the trial court to modify or terminate his spousal support obligation.

Wife also asserted that she was entitled to the escrowed Pension benefits. 3

{¶7} Husband argued that, pursuant to the express terms of the parties’ separation

agreement, his spousal support obligation terminated once he started to receive the Pension in July

2020. Because a QDRO had not been prepared prior to Husband’s retirement, Wife did not start

to receive her portion of the Pension until 18 months later, in January 2022. Recognizing the

financial hardship Wife would endure with no spousal support or Pension benefits, Husband

voluntarily continued to make monthly payments up to the time Wife started receiving her portion

of the Pension. Because he continued to make these payments without an obligation to do so,

Husband argued that he was entitled to the escrowed Pension benefits or Wife would receive a

significant windfall if she received both spousal support from July 2020 to January 2022 and any

portion of the escrowed Pension.

{¶8} The magistrate denied Wife’s motion to show cause and her request for continued

spousal support. The magistrate relied upon the language of the parties’ separation agreement and

found that Husband’s spousal support obligation automatically terminated once Husband started

to receive the Pension. The magistrate found that, “[b]y continuing to pay the spousal support

obligation until [Wife] actually started receiving her benefit, [Husband] was going beyond his

Court-ordered obligation[]” and that Husband was entitled to the escrowed Pension funds. The

magistrate further found that Wife “failed to demonstrate any changed financial or health

circumstances” and he denied Wife’s request for continued spousal support payments. The trial

court adopted the magistrate’s decision and entered judgment that same day.

{¶9} Wife objected to the magistrate’s decision, arguing that the magistrate erred and

abused his discretion in finding monthly spousal support terminated when Husband began to

receive his portion of the Pension. Wife also argued that the magistrate erred when he determined

that Husband was entitled to the escrowed Pension benefits. Wife argued that she was entitled to 4

the escrowed Pension benefits even though Husband continued to pay spousal support during this

time. Husband did not file a written response to Wife’s objections.

{¶10} The trial court held an oral hearing on Wife’s objections to the magistrate’s

decision, giving counsel for each party time to argue their respective position. The trial court

overruled Wife’s objections and adopted the magistrate’s decision. Wife has appealed, raising two

assignments of errors for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BOTH FACTUALLY AND AS A MATTER OF LAW WHEN IT RULED THAT THE OBLIGATION OF [HUSBAND] TO PAY SPOUSAL SUPPORT TO [WIFE] TERMINATED OR WAS SUSPENDED WHEN [WIFE] BEGAN RECEIVING HER PORTION OF [HUSBAND’S] PENSION FROM THE CENTRAL STATES PENSION PLAN.

{¶11} Wife argues in her first assignment of error that the trial court erred when it ruled

that Husband’s spousal support obligation terminated when Wife began receiving her portion of

Husband’s pension. We disagree.

Standard of Review

{¶12} The trial court overruled Wife’s objections and adopted the magistrate’s decision.

“Although the trial court must conduct an independent review of objections to a magistrate’s

decision, see Civ.R. 53(D)(4)(d), this Court’s standard of review is more deferential.” Wilson v.

Wilson, 2008-Ohio-6431, ¶ 12 (9th Dist.). This Court reviews the trial court’s ruling on objections,

and its decision to adopt the magistrate’s decision, for an abuse of discretion. Id.; Barlow v.

Barlow, 2009-Ohio-3788, ¶ 5 (9th Dist.). However, we do so “with reference to the nature of the

underlying matter.” Tabatabai v. Tabatabai, 2009-Ohio-3139, ¶ 18 (9th Dist.). 5

{¶13} An abuse of discretion is something more than an error of law or in the exercise of

judgment; “it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

(Emphasis added.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying this

standard, a reviewing court is precluded from simply substituting its judgment for that of the trial

court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

{¶14} Although Blakemore is often cited as the general standard for reviewing

discretionary decisions, the Ohio Supreme Court has provided additional guidance about the nature

of an abuse of discretion:

Stated differently, an abuse of discretion involves more than a difference in opinion: the “‘term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations.’” State v. Jenkins, 15 Ohio St.3d 164, 222 (1984), quoting Spalding v. Spalding, 355 Mich. 382, 384 (1959). For a court of appeals to reach an abuse-of-discretion determination, the trial court’s judgment must be so profoundly and wholly violative of fact and reason that “‘it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’” Id., quoting Spalding at 384-385.

State v. Weaver, 2022-Ohio-4371, ¶ 24.

Separation Agreements

{¶15} The parties’ separation agreement, incorporated into the divorce decree, is a

contract between the parties. Quester v. Quester, 2024-Ohio-1456, ¶ 44 (9th Dist.). The separation

agreement is “subject to the same rules of construction as other contracts, to be interpreted so as

to carry out the intent of the parties.” Musci v. Musci, 2006-Ohio-5882, ¶ 42 (9th Dist.); Quester

at ¶ 44. “The intent of the parties is presumed to reside in the language they chose to use in their

agreement.” Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 313 (1996); Hare v. Isley, 2012-

Ohio-3668, ¶ 9 (9th Dist.). 6

{¶16} “The interpretation of any terms of a separation agreement is a question of law, as

is the determination of whether a contract is ambiguous.” Roxburgh v. Richardson, 2021-Ohio-

2229, ¶ 14 (9th Dist.). As stated in Roxburgh, “[t]his Court reviews both propositions de novo.”

Id. at ¶ 14.

{¶17} “If the separation agreement is not ambiguous, ‘the trial court may not construe,

clarify or interpret the parties’ agreement to mean anything outside of that which it specifically

states.’” Quester at ¶ 44, quoting Wiseman v. Wiseman, 2014-Ohio-2002, ¶ 8 (9th Dist.).

Accordingly, if a separation agreement is unambiguous, “‘the trial court must defer to the express

terms of the contract and interpret it according to its plain, ordinary, and common meaning[,]’”

and this Court reviews that application de novo. Wiseman at ¶ 8, quoting Hyder v. Pizer, 2002 WL

570256, *2 (9th Dist. Apr. 17, 2002); see also Roxburgh at ¶ 14.

Analysis

{¶18} Wife does not dispute that, pursuant to the separation agreement, Husband was

obligated to pay spousal support “until [he] receives his pension” and that “[Husband] had begun

receiving his pension.” It is Wife’s position that the termination of Husband’s spousal support

obligation was not automatic. According to Wife, Husband was required to file a motion with the

trial court notifying herself and the court as to why his spousal support obligation terminated.

Husband argues that his spousal support obligation automatically terminated on the date that he

began receiving the Pension.

{¶19} In this case, the trial court did not find that the terms of the parties’ agreement

regarding spousal support were ambiguous. The trial court was, therefore, required to apply the

language as written and this Court reviews that application de novo. Wiseman at ¶ 8; Roxburgh at

¶ 14. 7

{¶20} The trial court found that, pursuant to the terms of the separation agreement,

Husband’s spousal support obligation automatically terminated once Husband started to receive

the Pension. Accordingly, the separation agreement did not require Husband to file a motion to

terminate his spousal support obligation when he started to receive the Pension. The magistrate

found that a motion to modify or terminate spousal support was required only if either party found

that a modification or termination was otherwise equitable due to changed financial or health

circumstances and the trial court adopted this decision.

{¶21} We agree with the trial court that the separation agreement is not ambiguous. The

parties’ separation agreement provides that Husband’s spousal support obligation continued “until

Husband receive[d] his pension.” The parties’ agreement that Husband’s obligation to pay spousal

support ended when he received his pension set a definite end date to his obligation of spousal

support. Laughner v. Laughner, 2011-Ohio-867, ¶¶ 34, 36 (11th Dist.) (husband’s spousal support

obligation automatically terminated “upon [husband’s] retirement”). When parties set a definite

period for support, the obligor is not required to move to modify support to terminate the obligation

when the period ends. In this case, Husband started receiving the Pension in July 2020 and this

ended his spousal support obligation pursuant to the clear terms of the agreement.

{¶22} We conclude that the trial court did not err in finding that, based on the clear

language of the separation agreement, Husband’s spousal support obligation automatically

terminated once he started to receive the Pension. While the remainder of the spousal support

provision addresses changed circumstances and notification requirements, it is inapplicable as

Husband had started to receive the Pension and “there [was] no longer a duty to pay spousal

support.” The remainder of the spousal support provision applied if either party sought

modification of spousal support during the definite period “until Husband receive[d] his pension.” 8

{¶23} Accordingly, based on the above analysis, Wife’s first assignment of error is

overruled.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED BOTH FACTUALLY AND AS A MATTER OF LAW WHEN IT RULED THAT [HUSBAND] WAS ENTITLED TO COLLECT AND KEEP THE ESCROW AMOUNTS HELD BY THE CENTRAL STATES PENSION ON [WIFE’S] BEHALF TOTALING $33,296.22.

{¶24} Wife argues in her second assignment of error that the trial court erred when it

adopted the magistrate’s decision and ruled that Husband was entitled to keep the escrowed

Pension funds. Wife does not cite any case law or statute to support her position that the trial court

erred in making this finding. See App.R. 16(A)(7) (an appellant’s brief must include “[a]n

argument containing the contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with citations to the authorities,

statutes, and parts of the record on which appellant relies.”). We exercise our discretion to further

consider and review this assignment of error notwithstanding Wife’s failure to cite supporting

authority. For the reasons set forth below, we overrule Wife’s second assignment of error.

{¶25} The trial court’s decision approving the magistrate’s decision that Husband was

entitled to the escrowed Pension funds was a discretionary decision that this Court reviews for an

abuse of discretion. Wilson, 2008-Ohio-6431, at ¶ 12 (9th Dist.). Abuse of discretion, as previously

set forth, means that the trial court was unreasonable, arbitrary, or unconscionable in this ruling.

Blakemore, 5 Ohio St.3d at 219.

{¶26} This Court concluded in the first assignment of error that the trial court did not err

when it found Husband’s spousal support obligation automatically terminated once Husband

started to receive the Pension in July 2020. The separation agreement seemed to only contemplate 9

that the parties would complete a QDRO before Husband began receiving his pension so that Wife

would receive her portion of the Pension at the same time as Husband. The QDRO was not

approved in time and Husband began receiving his full Pension. He recognized the potential

financial hardship Wife would endure if spousal support ended without her receiving her portion

of the Pension, so, even though he was under no court-ordered obligation to continue paying

spousal support, Husband paid Wife for an additional 18 months until Wife started to receive her

portion of the Pension in January 2022. Pursuant to the record in this case, including Husband’s

affidavit, the amount of monthly payments Husband paid during this 18-month period was more

than the monthly Pension benefits Wife would have received. Thus, Husband ensured that Wife

received at least as much in payments as she would have received if the QDRO had been prepared

prior to his retirement as contemplated in the separation agreement. Accordingly, Wife would have

received a clear windfall had the trial court ordered that she receive the escrowed Pension as well

as keep the payments she received from July 2020 through December 2021.

{¶27} This Court concludes that the trial court did not abuse its discretion in finding that,

as Husband paid Wife beyond his court-ordered obligation to do so, he was entitled to the escrowed

Pension funds. Wife’s second assignment of error is, accordingly, overruled.

III.

{¶28} For the reasons set forth above, Wife’s assignments of error are overruled. The

judgment of the Lorain County Court of Common Pleas, Domestic Relations Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 10

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

SCOT STEVENSON FOR THE COURT

HENSAL, J. CONCURS.

CARR, J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

DAVID J. BERTA, Attorney at Law, for Appellant.

BRENT L. ENGLISH, Attorney at Law, for Appellee.