Mustard v. Mustard
2010-Ohio-2175
Twelfth Appellate District
Warren County
-Spousal Support
Consideration of Current Spouses Income When Determining Support for Ex-Spouse
Anthony and Barbara Mustard were married in 1984. Their divorce was finalized in February of 2008. As part of the divorce decree, Anthony agreed to pay $500 per month in child support until the youngest child was emancipated, as well as $750 per month in spousal support for 72 months.
A year after the divorce, Anthony filed a motion to modify spousal support, citing a change in circumstances due to his decreased salary. Anthony, who was previously self-employed, closed his business and accepted employment at a company where he earned considerably less than he did while self-employed.
After a hearing on the issue, the magistrate decreased Anthony’s spousal support obligation to $500 after finding the requisite change in circumstances. Anthony appeals on several grounds, but for the purposes of this discussion, we will discuss the second Assignment of Error, that the trial court abused its discretion when it considered Anthony’s new spouses income for spousal support purposes. After distinguishing authority cited by Anthony, the appellate court found no merit to Anthony’s arguments when it upheld the trial court. The trial court held it was proper to consider the new spouses income “since Anthony is remarried and Barbara is not, he has help with the basic living expenses, whereas Barbara does not.”
From the Opinion:
{¶17} Essentially, Anthony argues that because the trial court considered his wife's earnings, his income was considered much greater than it actually is. However, the trial court never imputed the $45,000 salary to Anthony, and instead considered the fact that due to Angela's salary, he has help with his living expenses whereas Barbara does not.
{¶18} Anthony relies on Leopold v. Leopold, Washington App. No. 04CA14, 2005-Ohio-214, in which the Fourth District Court of Appeals upheld the trial court's decision not to consider the annual income of the appellant's live-in girlfriend when determining the proper amount of spousal support he owed his ex-wife. In determining that the girlfriend's income was not relevant, the court considered that appellant paid $500 per month in fixed living expenses and that his share of the expenses was the same regardless of how much his live-in girlfriend made. The court also refused to consider the girlfriend's earnings because there was no evidence to establish that
appellant and his girlfriend shared checking accounts or commingled their funds in anyway.
{¶19} While Anthony asks this court to apply the same logic as that applied by the Fourth District, the case at bar is readily distinguishable from Leopold. The trial court heard evidence that rather than having a live-in girlfriend who holds no legal status, Anthony has remarried and permanently resides with his new wife. Instead of trying to keep the evidence out of court as the appellant did in Leopold, Anthony testified on direct examination that his wife earned $45,000 per year. Unlike the girlfriend in Leopold who did not commingle funds with the appellant, Anthony verified on crossexamination that he deposits his earnings into a joint account with Angela and that their funds are commingled for purposes of paying household bills and expenses. The trial court's determination that Angela's income helps reduce Anthony's living expenses is markedly different than a trial court considering the income of a live-in girlfriend, and Anthony's reliance on Leopold is misplaced.
{¶20} The trial court considered Angela's earnings, as introduced by Anthony during the hearing, when considering the R.C. 3105.18 factors. However, the trial court did not include Angela's salary in Anthony's annual earnings, but rather determined that because of his wife's salary, Anthony's living expenses are reduced. See Manzella v. Manzella, Montgomery App. No. 20618, 2005-Ohio-4519, ¶12 (upholding trial court's decision to consider that an "obligor directly benefits from sharing living expenses with his new spouse," and such consideration is properly considered "as part of the 'any other factor' section of R.C. 3105.18[C][1][n]"); and Fisher v. Fisher, Fairfield App. No. 2008CA00049, 2009-Ohio-4739, ¶36, (finding no abuse of discretion where trial court considered the fact that appellant directly benefited from sharing living expenses because his new wife's income was "available for living expenses").
{¶21} Having found that the trial court did not abuse its discretion by considering the impact Angela's income has on Anthony, Anthony's second assignment of error is overruled.
Monday, June 14, 2010
60(B) - Fraud adn Misrepresentation
Rettig v. Rettig
2010-Ohio-2122
Sixth Appellate District
Wood County
Rule 60(B) - Fraud and Misrepresentation
Appellant, J. Rettig, and appellee, C. Rettig were married in 1999 and have one minor child. On June 12, 2006, appellant and appellee filed a joint petition for the dissolution of their marriage. According to the separation agreement, appellant earned approximately $160,000 per year as the Chief Operating Officer of Greenline Foods, Inc. (“Greenline”) and appellee earned an actual $11,600 per year plus, $50,000 in spousal support.
On July 17, 2007 appellee filed a Civ. R. 60(B) motion for relief from judgment premised upon newly discovered evidence, fraud, misrepresentation, and other misconduct of appellant. Appellee averred that based upon recently learned facts, it appeared that at the time of the dissolution appellant held and interest, specifically, stock appreciation rights (“SARS”) in Greenline and an interest in the condominium in which he was residing.
The Court fo Appeals held that appellee proved, by a preponderance of the evidence that appellant perpetuated a fraud during the course of the parties’ dissolution in order to deprive appellee of her share of his SARS. The appellee was awarded her undivided one half interest in the SARS which amounted to $2,349,600.
From the opinion:
{¶ 8} Over the next few years, appellant was promoted to the positions of General Manager, Chief Financial Officer, and, finally, Chief Operations Officer. In May 2005, appellant received an additional 47 SARS. A few months later, appellant and appellee separated. Upon learning that appellant was residing in accommodations that he did not consider suitable, Twyman created a limited liability corporation ("LLC") for the sole purpose of purchasing a condominium and leasing it to appellant. Appellant later purchased the condominium from the LLC.
{¶ 9} According to Twyman he terminated the SARS Plan in December 2005 upon the advice of counsel, Victor Ten Brink. While appellant stated that he may have known as early as May 2005 that this plan would be terminated, Ten Brink testified that he first spoke with Twyman in October 2004. Ten Brink asserted that he informed Twyman of the fact that due to newly enacted federal tax laws, several changes would have to be made to Greenline's SARS Plan in order to comply with interim guidelines issued by the Internal Revenue Service. Twyman and Ten Brink then discussed the problem and the development of a new SARS plan over the next several months. In his testimony at trial, Ten Brink stated that appellant's SARS had no value at that point, therefore, terminating the SARS Plan would have no adverse effect. It is undisputed that Greenline was not performing well financially during this period, and Twyman wasseeking a purchaser of the company.
{¶ 10} Richard Ritter, who was hired to head the company in 2000, was the only other executive employee at Greenline. Ritter was also awarded SARS, but had a clause in his separate "Stock Appreciation Rights Grant and Agreement" stating that if the SARS Plan was terminated, that plan would be incorporated into the grant "so as to give effect to the Plan and Grant with respect to Ritter." This document and a second document captioned "Deferred Compensation Agreement" were both generated on March 1, 2000. When Ritter was fired, without cause, by Twyman on March 10, 2006, he was not only granted a promissory note for the amount due from Greenline as deferred compensation, but also provided with a separate "Incentive Fee Agreement." Pursuant to this agreement, Ritter would, upon the sale of Greenline, receive a fee in lieu of the value of his SARS. Ritter signed the fee agreement on June 29, 2006.
{¶ 11} At the hearing on appellee's motion for relief from judgment, Ritter testified that he was aware of the fact that Twyman was in negotiations for the sale of Greenline to
The Riverside Company ("Riverside") and that a company named Apio also expressed an
interest in buying Greenline. After the sale of Greenline to Riverside, Ritter received
over two million dollars pursuant to the terms of that agreement. He also became a consultant for Greenline.
{¶ 12} On May 23, 2006, Twyman, along with appellant, met with representatives of Riverside, a private equity buyer, which subsequently sought to purchase 100 percent of Greenline's issued and outstanding stock. A June 14, 2006 "Letter of Interest" sent to Greenline by Riverside, sets forth the "general terms under which we [Riverside] would acquire the Company [Greenline] from you [Twyman] subject to [Riverside's] due diligence."
{¶ 13} On June 16, 2006, David Gesmondi, a Keybank officer who apparently brokered the sale of Greenline, sent an e-mail to Riverside stating: "I spoke to Jeff Twyman and Jeff Rettig this morning, and we have a deal at cash closing * * *. Jeff is viewing this as a partnership * * * and will be prepared to execute this Monday. * * * He views this as a deal that both of us will work hard to close over the next 75 days. * * * As far as the next steps go, if you guys can get us a due diligence list and a proposed timetable, we will begin work on it immediately." On June 20, 2006, Riverside sent Twyman a "Letter of Interest" stating it would be able to issue a "formal" letter of intent and to close the transaction by August 30, 2006.
{¶ 14} On August 1, 2006, 12 days after the parties' dissolution was final, Twyman reinstated the SARS Plan, awarding appellant 109.3 SARS. One of the provisions in the SARS plan provided that the plan was fully vested upon the change in the control of Greenline. Riverside submitted its letter of intent to purchase 100 percent of the issued and capital stock of Greenline on August 14, 2006. According to Twyman, he did not decide to accept Riverside's offer until the Labor Day weekend. The closing on the actual
purchase occurred on September 21, 2006. On that date, appellant received $6,238,582.04 in exchange for his SARS.
{¶ 15} After the hearing, both parties filed proposed findings of fact and conclusions of law. On October 23, 2008, the magistrate issued a 28 page decision in which she determined that Twyman's and appellant's actions constituted fraud and misrepresentation. Thus, she granted appellee's motion for relief from judgment and determined that the $6,238,582.04 was marital property. She therefore ordered appellant to, among other things, transfer $2,349,600 of those funds to appellee as a division of property.
2010-Ohio-2122
Sixth Appellate District
Wood County
Rule 60(B) - Fraud and Misrepresentation
Appellant, J. Rettig, and appellee, C. Rettig were married in 1999 and have one minor child. On June 12, 2006, appellant and appellee filed a joint petition for the dissolution of their marriage. According to the separation agreement, appellant earned approximately $160,000 per year as the Chief Operating Officer of Greenline Foods, Inc. (“Greenline”) and appellee earned an actual $11,600 per year plus, $50,000 in spousal support.
On July 17, 2007 appellee filed a Civ. R. 60(B) motion for relief from judgment premised upon newly discovered evidence, fraud, misrepresentation, and other misconduct of appellant. Appellee averred that based upon recently learned facts, it appeared that at the time of the dissolution appellant held and interest, specifically, stock appreciation rights (“SARS”) in Greenline and an interest in the condominium in which he was residing.
The Court fo Appeals held that appellee proved, by a preponderance of the evidence that appellant perpetuated a fraud during the course of the parties’ dissolution in order to deprive appellee of her share of his SARS. The appellee was awarded her undivided one half interest in the SARS which amounted to $2,349,600.
From the opinion:
{¶ 8} Over the next few years, appellant was promoted to the positions of General Manager, Chief Financial Officer, and, finally, Chief Operations Officer. In May 2005, appellant received an additional 47 SARS. A few months later, appellant and appellee separated. Upon learning that appellant was residing in accommodations that he did not consider suitable, Twyman created a limited liability corporation ("LLC") for the sole purpose of purchasing a condominium and leasing it to appellant. Appellant later purchased the condominium from the LLC.
{¶ 9} According to Twyman he terminated the SARS Plan in December 2005 upon the advice of counsel, Victor Ten Brink. While appellant stated that he may have known as early as May 2005 that this plan would be terminated, Ten Brink testified that he first spoke with Twyman in October 2004. Ten Brink asserted that he informed Twyman of the fact that due to newly enacted federal tax laws, several changes would have to be made to Greenline's SARS Plan in order to comply with interim guidelines issued by the Internal Revenue Service. Twyman and Ten Brink then discussed the problem and the development of a new SARS plan over the next several months. In his testimony at trial, Ten Brink stated that appellant's SARS had no value at that point, therefore, terminating the SARS Plan would have no adverse effect. It is undisputed that Greenline was not performing well financially during this period, and Twyman wasseeking a purchaser of the company.
{¶ 10} Richard Ritter, who was hired to head the company in 2000, was the only other executive employee at Greenline. Ritter was also awarded SARS, but had a clause in his separate "Stock Appreciation Rights Grant and Agreement" stating that if the SARS Plan was terminated, that plan would be incorporated into the grant "so as to give effect to the Plan and Grant with respect to Ritter." This document and a second document captioned "Deferred Compensation Agreement" were both generated on March 1, 2000. When Ritter was fired, without cause, by Twyman on March 10, 2006, he was not only granted a promissory note for the amount due from Greenline as deferred compensation, but also provided with a separate "Incentive Fee Agreement." Pursuant to this agreement, Ritter would, upon the sale of Greenline, receive a fee in lieu of the value of his SARS. Ritter signed the fee agreement on June 29, 2006.
{¶ 11} At the hearing on appellee's motion for relief from judgment, Ritter testified that he was aware of the fact that Twyman was in negotiations for the sale of Greenline to
The Riverside Company ("Riverside") and that a company named Apio also expressed an
interest in buying Greenline. After the sale of Greenline to Riverside, Ritter received
over two million dollars pursuant to the terms of that agreement. He also became a consultant for Greenline.
{¶ 12} On May 23, 2006, Twyman, along with appellant, met with representatives of Riverside, a private equity buyer, which subsequently sought to purchase 100 percent of Greenline's issued and outstanding stock. A June 14, 2006 "Letter of Interest" sent to Greenline by Riverside, sets forth the "general terms under which we [Riverside] would acquire the Company [Greenline] from you [Twyman] subject to [Riverside's] due diligence."
{¶ 13} On June 16, 2006, David Gesmondi, a Keybank officer who apparently brokered the sale of Greenline, sent an e-mail to Riverside stating: "I spoke to Jeff Twyman and Jeff Rettig this morning, and we have a deal at cash closing * * *. Jeff is viewing this as a partnership * * * and will be prepared to execute this Monday. * * * He views this as a deal that both of us will work hard to close over the next 75 days. * * * As far as the next steps go, if you guys can get us a due diligence list and a proposed timetable, we will begin work on it immediately." On June 20, 2006, Riverside sent Twyman a "Letter of Interest" stating it would be able to issue a "formal" letter of intent and to close the transaction by August 30, 2006.
{¶ 14} On August 1, 2006, 12 days after the parties' dissolution was final, Twyman reinstated the SARS Plan, awarding appellant 109.3 SARS. One of the provisions in the SARS plan provided that the plan was fully vested upon the change in the control of Greenline. Riverside submitted its letter of intent to purchase 100 percent of the issued and capital stock of Greenline on August 14, 2006. According to Twyman, he did not decide to accept Riverside's offer until the Labor Day weekend. The closing on the actual
purchase occurred on September 21, 2006. On that date, appellant received $6,238,582.04 in exchange for his SARS.
{¶ 15} After the hearing, both parties filed proposed findings of fact and conclusions of law. On October 23, 2008, the magistrate issued a 28 page decision in which she determined that Twyman's and appellant's actions constituted fraud and misrepresentation. Thus, she granted appellee's motion for relief from judgment and determined that the $6,238,582.04 was marital property. She therefore ordered appellant to, among other things, transfer $2,349,600 of those funds to appellee as a division of property.
Sunday, May 2, 2010
Modification of Separation Agreement on Silent Issue
Morgan v. Morgan
2010-Ohio-1685
Montgomery County Court of Appeals
-Modification of Separation Agreement
David and Connie Morgan had their marriage terminated by Decree of Dissolution on October 11, 2002. The Decree incorporated the parties’ Amended Separation Agreement in which they divided their joint business interests. The parties’ owned several businesses. Connie’s appeal is in regards to the assets of D.C. Investments, specifically 714 Albany Street.
The Decree of Dissolution stated the property at 714 Albany Street will go to wife and she shall be solely responsible for the mortgage on said property. The Decree also stated the parties shall equally divide all remaining assets and debts of this partnership.
Connie sold the 714 Albany property, paid the balance due on the first mortgage and paid the remaining balance of $46,215.16 due on the second mortgage. Connie contended that the parties’ wholly forgot about the second mortgage on the property and argued that David should be responsible for that obligation because the proceeds of the loan secured by the second mortgage had been used to benefit a company David was awarded.
Connie filed a 60(B) motion asking the court to order David to reimburse her the amount paid on the second mortgage. After a hearing, the court ordered David to reimburse Connie $46,215.16. David objected to the Magistrate’s decision and ultimately appealed.
The appellate court reversed the Trial Court on the grounds there were provisions in the Decree that resolved issues like the one presented and was, therefore, not ambiguous.
From the Opinion:
{¶ 14} R.C. 3105.171(B) requires a court that grants a decree of divorce to divide the parties’ marital property equitably between them. "Marital property" is any real or personal property or any interest therein that either or both spouses currently owns. R.C. 3105.171(A)(3)(a)(i), (ii). R.C. 3105.171 is silent with respect to debts. Generally, when an asset is awarded to one of
the spouses in a division of marital property, a debt obligation that encumbers the asset follows the property award. Therefore, as between the parties to a divorce action, the debt becomes an
obligation of the party who is awarded the asset, to the extent that the debt is secured by the asset. The decree may create an exception by ordering a distributive award requiring the other
party to pay some or all of the debt obligation.
{¶ 15} The Amended Separation Agreement incorporated into the final decree of dissolution provided that D.C. Investments would be dissolved, that Connie would be responsible for the mortgage to the National City Bank on the property at 714 Albany Street, and that the parties would equally divide the remaining debts of D.C. Investments. Connie asked the court to order David to reimburse her for the $46,215.16 balance remaining on the second mortgage obligation that Connie paid when she sold the property. The second mortgage on the property at 714 Albany Street was a debt on an asset of D.C. Investments which the court found was not specifically identified in the Amended Separation Agreement. The trial court relied on Civ.R. 60(B) to modify the provision of the Amended Separation Agreement regarding the debt obligation on the
mortgage to National City Bank, requiring David to be responsible for the entire debt obligation on the second mortgage. We believe the court erred in so doing.
{¶ 16} R.C. 3105.65(B) provides:
{¶ 17} "A decree of dissolution of marriage has the same effect upon the property rights of the parties, including rights of dower and inheritance, as a decree of divorce. The court has full power to enforce its decree and retains jurisdiction to modify all matters pertaining to the allocation of parental rights and responsibilities for the care of the children, to the designation
of a residential parent and legal custodian of the children, to child support, to parenting time of parents with the children, and to visitation for persons who are not the children’s parents. The court, only in accordance with division (E)(2) of section 3105.18 of the Revised Code, may modify the amount or terms of spousal support."
{¶ 18} R.C. 3105.65(B) impacts Connie’s request and the court’s order in two ways. First, the provision in that section stating that a court that grants a decree of dissolution "has full power
to enforce its decree" has been applied to permit the court to construe a term of a separation agreement which is ambiguous, when there is good faith confusion concerning its requirements. In re dissolution of Marriage of Seders (1987), 42 Ohio App.3d 155; Saeks v. Saeks (1985), 24 Ohio App.2d 67; Bond v. Bond (1990), 69 Ohio App.3d 225; Smith v. Smith, Darke App. No. 09CA06, 2010-Ohio-31.
{¶ 19} Second, because per R.C. 3105.65(B) a decree of dissolution has the same effect on the property rights of the parties as a decree of divorce, the decree of dissolution is likewise subject to the limitation regarding property divisions in divorce actions that appears in R.C. 3105.171(I), which states: "A division or disbursement of property or a distributive award made under this section is not subject to future modification by the courts."
{¶ 20} There may be good faith confusion in this instance: the parties had extensive and intertwining financial interests which they made a good faith effort to divide between them. However, the Amended Separation Agreement, to the extent that it expressly dealt with any mortgage to National City Bank, imposed no obligation on David. The only obligation in that regard was imposed on Connie. Therefore, the court did not construe a term of its decree that was ambiguous. Indeed, the catch-all provision of the Amended Separation Agreement unambiguously requires the parties to equally divide debt obligations not specifically identified. Rather than following that course, the court modified the decree to impose an obligation on David that the Amended Separation Agreement did not. In doing so, the court ordered a distributive award requiring David to reimburse Connie, and thereby modified a property division order, relief which is specifically prohibited by R.C. 3105.171(I).
{¶ 21} Though a property division award may not be modified, a decree in which the award is made may be vacated pursuant to Civ.R. 60(B). Ordinarily, granting Civ.R. 60(B) relief requires that the entire judgment be vacated. However, the Supreme Court has held that a single provision of a decree of dissolution may be vacated pursuant to Civ.R. 60(B) when the incorporated separation agreement provides for future modifications by the court. In re Whitman (1998), 81 Ohio St.3d 239.
{¶ 22} "While the General Assembly has given courts continuing jurisdiction to modify those sections of a separation agreement that pertain to parental rights and responsibilities, R.C. 3105.63 and 3105.65 do not create continuing jurisdiction for a trial court to modify property divisions in separation agreements. However, nothing in the statutes suggest that parties are precluded from voluntarily including a provision for continuing jurisdiction in their separation agreement. . . .
{¶ 23} "Therefore, in a dissolution proceeding, if the parties have incorporated into the separation agreement a clause that allows the court to modify the agreement by court order, and the court has approved this agreement and incorporated it into the decree of dissolution, the court has continuing jurisdiction to enforce this clause. If the parties both consent to a modification of the agreement or actually incorporate a means for modification into their settlement agreement, the element of mutual consent has not been lost, and there is no reason to require vacation of the entire decree in order to grant relief under a Civ.R. 60(B) motion. Consequently, a trial court may grant relief from judgment under Civ.R. 60(B)(1), (2), or (3) as to the property division in the separation agreement without vacating the decree of dissolution where the parties to a dissolution have expressly agreed in a separation agreement that the agreement may be modified by court order and the agreement has been incorporated into the decree." Id. at 244.
{¶ 24} The trial court relied on Civ.R. 60(B)(5). The court could not rely on Civ.R. 60(B)(1), (2) or (3) because more than one year had passed since the decree of dissolution was granted. Civ.R. 60(B)(5), if it applies, permits relief on broader equitable grounds. Nevertheless, we believe its application is subject to the same constraint announced in Whitman regarding modifications of property division provisions in a separation agreement incorporated in a decree of dissolution.
{¶ 25} Article X of the Amended Separation Agreement is entitled "MODIFICATION BY PARTIES," and states: "Except as herein otherwise provided, this agreement shall not be altered, or modified unless it be done in writing signed by both parties." This provision does not allow the court to modify the terms of the Amended Separation Agreement. Rather, only through a subsequent agreement of the parties may the court modify the terms of the Amended Separation Agreement. Clearly, these parties never came to an agreement on an acceptable modification. Therefore, the trial court erred when it relied on Civ.R. 60(B) to modify the terms of the Amended Separation Agreement. In re Whitman.
2010-Ohio-1685
Montgomery County Court of Appeals
-Modification of Separation Agreement
David and Connie Morgan had their marriage terminated by Decree of Dissolution on October 11, 2002. The Decree incorporated the parties’ Amended Separation Agreement in which they divided their joint business interests. The parties’ owned several businesses. Connie’s appeal is in regards to the assets of D.C. Investments, specifically 714 Albany Street.
The Decree of Dissolution stated the property at 714 Albany Street will go to wife and she shall be solely responsible for the mortgage on said property. The Decree also stated the parties shall equally divide all remaining assets and debts of this partnership.
Connie sold the 714 Albany property, paid the balance due on the first mortgage and paid the remaining balance of $46,215.16 due on the second mortgage. Connie contended that the parties’ wholly forgot about the second mortgage on the property and argued that David should be responsible for that obligation because the proceeds of the loan secured by the second mortgage had been used to benefit a company David was awarded.
Connie filed a 60(B) motion asking the court to order David to reimburse her the amount paid on the second mortgage. After a hearing, the court ordered David to reimburse Connie $46,215.16. David objected to the Magistrate’s decision and ultimately appealed.
The appellate court reversed the Trial Court on the grounds there were provisions in the Decree that resolved issues like the one presented and was, therefore, not ambiguous.
From the Opinion:
{¶ 14} R.C. 3105.171(B) requires a court that grants a decree of divorce to divide the parties’ marital property equitably between them. "Marital property" is any real or personal property or any interest therein that either or both spouses currently owns. R.C. 3105.171(A)(3)(a)(i), (ii). R.C. 3105.171 is silent with respect to debts. Generally, when an asset is awarded to one of
the spouses in a division of marital property, a debt obligation that encumbers the asset follows the property award. Therefore, as between the parties to a divorce action, the debt becomes an
obligation of the party who is awarded the asset, to the extent that the debt is secured by the asset. The decree may create an exception by ordering a distributive award requiring the other
party to pay some or all of the debt obligation.
{¶ 15} The Amended Separation Agreement incorporated into the final decree of dissolution provided that D.C. Investments would be dissolved, that Connie would be responsible for the mortgage to the National City Bank on the property at 714 Albany Street, and that the parties would equally divide the remaining debts of D.C. Investments. Connie asked the court to order David to reimburse her for the $46,215.16 balance remaining on the second mortgage obligation that Connie paid when she sold the property. The second mortgage on the property at 714 Albany Street was a debt on an asset of D.C. Investments which the court found was not specifically identified in the Amended Separation Agreement. The trial court relied on Civ.R. 60(B) to modify the provision of the Amended Separation Agreement regarding the debt obligation on the
mortgage to National City Bank, requiring David to be responsible for the entire debt obligation on the second mortgage. We believe the court erred in so doing.
{¶ 16} R.C. 3105.65(B) provides:
{¶ 17} "A decree of dissolution of marriage has the same effect upon the property rights of the parties, including rights of dower and inheritance, as a decree of divorce. The court has full power to enforce its decree and retains jurisdiction to modify all matters pertaining to the allocation of parental rights and responsibilities for the care of the children, to the designation
of a residential parent and legal custodian of the children, to child support, to parenting time of parents with the children, and to visitation for persons who are not the children’s parents. The court, only in accordance with division (E)(2) of section 3105.18 of the Revised Code, may modify the amount or terms of spousal support."
{¶ 18} R.C. 3105.65(B) impacts Connie’s request and the court’s order in two ways. First, the provision in that section stating that a court that grants a decree of dissolution "has full power
to enforce its decree" has been applied to permit the court to construe a term of a separation agreement which is ambiguous, when there is good faith confusion concerning its requirements. In re dissolution of Marriage of Seders (1987), 42 Ohio App.3d 155; Saeks v. Saeks (1985), 24 Ohio App.2d 67; Bond v. Bond (1990), 69 Ohio App.3d 225; Smith v. Smith, Darke App. No. 09CA06, 2010-Ohio-31.
{¶ 19} Second, because per R.C. 3105.65(B) a decree of dissolution has the same effect on the property rights of the parties as a decree of divorce, the decree of dissolution is likewise subject to the limitation regarding property divisions in divorce actions that appears in R.C. 3105.171(I), which states: "A division or disbursement of property or a distributive award made under this section is not subject to future modification by the courts."
{¶ 20} There may be good faith confusion in this instance: the parties had extensive and intertwining financial interests which they made a good faith effort to divide between them. However, the Amended Separation Agreement, to the extent that it expressly dealt with any mortgage to National City Bank, imposed no obligation on David. The only obligation in that regard was imposed on Connie. Therefore, the court did not construe a term of its decree that was ambiguous. Indeed, the catch-all provision of the Amended Separation Agreement unambiguously requires the parties to equally divide debt obligations not specifically identified. Rather than following that course, the court modified the decree to impose an obligation on David that the Amended Separation Agreement did not. In doing so, the court ordered a distributive award requiring David to reimburse Connie, and thereby modified a property division order, relief which is specifically prohibited by R.C. 3105.171(I).
{¶ 21} Though a property division award may not be modified, a decree in which the award is made may be vacated pursuant to Civ.R. 60(B). Ordinarily, granting Civ.R. 60(B) relief requires that the entire judgment be vacated. However, the Supreme Court has held that a single provision of a decree of dissolution may be vacated pursuant to Civ.R. 60(B) when the incorporated separation agreement provides for future modifications by the court. In re Whitman (1998), 81 Ohio St.3d 239.
{¶ 22} "While the General Assembly has given courts continuing jurisdiction to modify those sections of a separation agreement that pertain to parental rights and responsibilities, R.C. 3105.63 and 3105.65 do not create continuing jurisdiction for a trial court to modify property divisions in separation agreements. However, nothing in the statutes suggest that parties are precluded from voluntarily including a provision for continuing jurisdiction in their separation agreement. . . .
{¶ 23} "Therefore, in a dissolution proceeding, if the parties have incorporated into the separation agreement a clause that allows the court to modify the agreement by court order, and the court has approved this agreement and incorporated it into the decree of dissolution, the court has continuing jurisdiction to enforce this clause. If the parties both consent to a modification of the agreement or actually incorporate a means for modification into their settlement agreement, the element of mutual consent has not been lost, and there is no reason to require vacation of the entire decree in order to grant relief under a Civ.R. 60(B) motion. Consequently, a trial court may grant relief from judgment under Civ.R. 60(B)(1), (2), or (3) as to the property division in the separation agreement without vacating the decree of dissolution where the parties to a dissolution have expressly agreed in a separation agreement that the agreement may be modified by court order and the agreement has been incorporated into the decree." Id. at 244.
{¶ 24} The trial court relied on Civ.R. 60(B)(5). The court could not rely on Civ.R. 60(B)(1), (2) or (3) because more than one year had passed since the decree of dissolution was granted. Civ.R. 60(B)(5), if it applies, permits relief on broader equitable grounds. Nevertheless, we believe its application is subject to the same constraint announced in Whitman regarding modifications of property division provisions in a separation agreement incorporated in a decree of dissolution.
{¶ 25} Article X of the Amended Separation Agreement is entitled "MODIFICATION BY PARTIES," and states: "Except as herein otherwise provided, this agreement shall not be altered, or modified unless it be done in writing signed by both parties." This provision does not allow the court to modify the terms of the Amended Separation Agreement. Rather, only through a subsequent agreement of the parties may the court modify the terms of the Amended Separation Agreement. Clearly, these parties never came to an agreement on an acceptable modification. Therefore, the trial court erred when it relied on Civ.R. 60(B) to modify the terms of the Amended Separation Agreement. In re Whitman.
Monday, April 26, 2010
Duration of Spousal Support Award - "Tacking" of Previous Marriage
Tyler v. Tyler
2010-Ohio-1428
Eighth Appellate District
Cuyahoga County
-Spousal Support - "Tacking" of previous marriage
Plaintiff-appellant Kenneth Tyler appeals the portion of his divorce decree dividing property and awarding spousal support to Diana Tyler. Specifically, Kenneth objects to the lifetime award of spousal support.
Kenneth and Diana were first married in February 1989 and divorced in 1993. They reunited, began living together again in 1996 and were remarried in July of 2002. The couple separated in 2008. At the time of their second divorce, Diana was receiving permanent disability in the amount of $753 per month while Kenneth anticipated earning $74,000 in that respective calendar year.
After a hearing, the trial court determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court. Kenneth asserts that the trial court erred when it ordered him to pay "lifetime spousal support for a marriage lasting 6.5 years." The appellate court affirmed.
From the Opinion:
{¶ 13} Specifically, Kenneth argues that the trial court’s decision — making the spousal support indefinite — was not consistent with the Ohio Supreme Court’s holding in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 554 N.E.2d 83. in Kunkle, the Ohio Supreme Court held, at paragraph one of the syllabus:"Except in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has the resources, ability and potential to be self-supporting, an award of sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties’ rights and responsibilities."
{¶ 14} Notably, however, the Kunkle court also recognized that "providing a termination date is not legally mandated and, in some situations, it could work a hardship on either the payor or payee. " Id. at 68, quoting Koepke v. Koepke (1983), 12 Ohio App.3d 80, 81, 466 N.E.2d 570. The high court further pointed out that "if under reasonable circumstances a divorced spouse does not have the resources, ability or potential to become self-supporting, then an award of
sustenance alimony for life would be proper." (Emphasis sic.) Id. at 69.
{¶ 15} In the present case, the trial court found that Diana suffered from obsessive compulsive disorder with depression and "has been deemed by the Social Security Administration to be permanently disabled." The court further found that Diana’s disability prevents her from seeking gainful employment and that she "cannot complete her daily activities of life." And based on a report from the SSA, the court also determined that Diana "cannot maintain employment," and that her income from Social Security disability was $9,036 per year.
{¶ 16} The trial court considered that Kenneth’s income was $74,000 per year and that he was "gainfully employed in an area that is highly specialized."
{¶ 17} The trial court then determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court.
{¶ 19} Although the trial court in this case found the duration of the marriage to be 6.5 years, it also heard evidence that the parties were previously married and that they lived together all but three years since they were first married in 1989 (thus, all but three out of 20 years). Under similar circumstances, the Ninth District upheld an indefinite spousal support. See Moore v. Moore (1992), 83 Ohio App.3d 75, 613 N.E.2d 1097. In Moore, the parties were married twice, with the second marriage lasting only four years. The court found that "the previous legal, marital relationship [was] relevant to the trial court’s decision to award spousal support" under R.C. 3105.18(C)(1)(n) ("any other factor that the court *** finds to be relevant and equitable"). See, also, Jernigan v. Jernigan (July 2, 1998), 8th Dist. No. 72899 (recognizing the principle set forth in Moore that the parties’ first marriage may be considered in determining spousal support for the second marriage); Swartz v. Swartz (Feb. 24, 1997), 12th Dist. No. CA96-07-063 (parties’ first marriage may be relevant to a spousal support determination).
{¶ 20} Moreover, the trial court (unlike the trial court in Kunkle) reserved jurisdiction to modify the amount and the term of the spousal support award pursuant to R.C. 3105.18(E). The failure to assign a termination date is not a lifetime award where the court retains continuing jurisdiction to decrease or terminate the spousal support based on a change in either party’s circumstances. Donese v. Donese (Apr. 10, 1998), 2d Dist. No. 97CA70. And at a modification hearing, the court can once again determine if it is appropriate to set a termination date. See Vanke v. Vanke (1992), 80 Ohio App.3d 576, 581, 609 N.E.2d 1328. Accordingly, appellant is not without a remedy should future facts demonstrate a modification is warranted.
2010-Ohio-1428
Eighth Appellate District
Cuyahoga County
-Spousal Support - "Tacking" of previous marriage
Plaintiff-appellant Kenneth Tyler appeals the portion of his divorce decree dividing property and awarding spousal support to Diana Tyler. Specifically, Kenneth objects to the lifetime award of spousal support.
Kenneth and Diana were first married in February 1989 and divorced in 1993. They reunited, began living together again in 1996 and were remarried in July of 2002. The couple separated in 2008. At the time of their second divorce, Diana was receiving permanent disability in the amount of $753 per month while Kenneth anticipated earning $74,000 in that respective calendar year.
After a hearing, the trial court determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court. Kenneth asserts that the trial court erred when it ordered him to pay "lifetime spousal support for a marriage lasting 6.5 years." The appellate court affirmed.
From the Opinion:
{¶ 13} Specifically, Kenneth argues that the trial court’s decision — making the spousal support indefinite — was not consistent with the Ohio Supreme Court’s holding in Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 554 N.E.2d 83. in Kunkle, the Ohio Supreme Court held, at paragraph one of the syllabus:"Except in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside the home, where a payee spouse has the resources, ability and potential to be self-supporting, an award of sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties’ rights and responsibilities."
{¶ 14} Notably, however, the Kunkle court also recognized that "providing a termination date is not legally mandated and, in some situations, it could work a hardship on either the payor or payee. " Id. at 68, quoting Koepke v. Koepke (1983), 12 Ohio App.3d 80, 81, 466 N.E.2d 570. The high court further pointed out that "if under reasonable circumstances a divorced spouse does not have the resources, ability or potential to become self-supporting, then an award of
sustenance alimony for life would be proper." (Emphasis sic.) Id. at 69.
{¶ 15} In the present case, the trial court found that Diana suffered from obsessive compulsive disorder with depression and "has been deemed by the Social Security Administration to be permanently disabled." The court further found that Diana’s disability prevents her from seeking gainful employment and that she "cannot complete her daily activities of life." And based on a report from the SSA, the court also determined that Diana "cannot maintain employment," and that her income from Social Security disability was $9,036 per year.
{¶ 16} The trial court considered that Kenneth’s income was $74,000 per year and that he was "gainfully employed in an area that is highly specialized."
{¶ 17} The trial court then determined that Diana was entitled to lifetime spousal support of $1,100 per month, subject to modification by the court.
{¶ 19} Although the trial court in this case found the duration of the marriage to be 6.5 years, it also heard evidence that the parties were previously married and that they lived together all but three years since they were first married in 1989 (thus, all but three out of 20 years). Under similar circumstances, the Ninth District upheld an indefinite spousal support. See Moore v. Moore (1992), 83 Ohio App.3d 75, 613 N.E.2d 1097. In Moore, the parties were married twice, with the second marriage lasting only four years. The court found that "the previous legal, marital relationship [was] relevant to the trial court’s decision to award spousal support" under R.C. 3105.18(C)(1)(n) ("any other factor that the court *** finds to be relevant and equitable"). See, also, Jernigan v. Jernigan (July 2, 1998), 8th Dist. No. 72899 (recognizing the principle set forth in Moore that the parties’ first marriage may be considered in determining spousal support for the second marriage); Swartz v. Swartz (Feb. 24, 1997), 12th Dist. No. CA96-07-063 (parties’ first marriage may be relevant to a spousal support determination).
{¶ 20} Moreover, the trial court (unlike the trial court in Kunkle) reserved jurisdiction to modify the amount and the term of the spousal support award pursuant to R.C. 3105.18(E). The failure to assign a termination date is not a lifetime award where the court retains continuing jurisdiction to decrease or terminate the spousal support based on a change in either party’s circumstances. Donese v. Donese (Apr. 10, 1998), 2d Dist. No. 97CA70. And at a modification hearing, the court can once again determine if it is appropriate to set a termination date. See Vanke v. Vanke (1992), 80 Ohio App.3d 576, 581, 609 N.E.2d 1328. Accordingly, appellant is not without a remedy should future facts demonstrate a modification is warranted.
Termination of Parenting Time (Juvenile Visitation)
Dubec v. Pochiro
2010-Ohio-1293
Seventh District Court of Appeals
Mahoning County
Juvenile Visitation
Defendant-appellant Christopher Pochiro appeals a decision terminating visitation with his fourteen-year-old daughter (Lana) and reducing his contact to weekly phone calls. The parties were never married. Several years of battling and one relocation resulted in Pochiro being granted the Standard Order of Visitation with visitation to take place at the paternal grandmother’s residence. The Order was effective September 15, 2008.
On October 8, 2008, less than a month after the Order took effect, Pochiro’s mother died. Pochiro exercised his regularly scheduled visitation the weekend of the funeral. During the weekend, the police were called to Pochiro’s residence. After Lana expressed concerns regarding her safety, the police decided to remove her from Pochiro’s care and placed her in the temporary custody of her maternal aunt. Venuto (Plaintiff-appellee) filed a motion to suspend visitation. After a hearing the court terminated Pochiro’s physical visitation with Lana, but did allow weekly telephone contact. On appeal, Pochiro asserted three assignments of error. All of which were found to have merit.
From the Opinion:
{¶23} Generally, the trial court looks only to the factors enumerated in R.C. 3109.051(D) and determines if modification of visitation is in the best interest of the child. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45, 706 N.E.2d 1218. However, in some cases, the foregoing statute does not stand in isolation. In re Kaiser, 7th Dist. No. 04 CO 9, 2004-Ohio-7208, ¶10. It must be read and interpreted in conjunction with other factors derived from caselaw to protect against infringement upon an individual’s constitutional rights. Id.
{¶24} This court has specifically held that "[t]he nonresidential parent has a fundamental and natural right to visitation." Anderson v. Anderson (2002), 147 Ohio App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, ¶22 (7th Dist.), citing Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200, and Pettry v. Pettry (1984), 20 Ohio App.3d 350, 486 N.E.2d 213. "The child also has a fundamental right to visitation with the nonresidential parent." Id., citing Porter v. Porter (1971), 25 Ohio St.2d 123, 54 O.O. 260, 267 N.E.2d 299, paragraph three of the syllabus.
{¶25} Concerning this fundamental right of the nonresidential parent to visitation with their child, this court has also noted that the right should be denied only under extraordinary circumstances. Hoppel v. Hoppel, 7th Dist. No. 03 CO 56, 2004-Ohio-1574, ¶44, citing Pettry, supra, paragraph one of the syllabus. The burden of proof is on the one contesting visitation to demonstrate extraordinary circumstances by clear and convincing evidence. Pettry, 20 Ohio App.3d at 352-353, 486 N.E.2d 213.
{¶26} Pettry identified two extraordinary circumstances that would qualify: (1) if the noncustodial parent was unfit; or (2) if visitation would cause harm to the child. Another court has held that it would be an extraordinary circumstance if the noncustodial parent were imprisoned for a term of years for a crime of violence. In re Hall (1989), 65 Ohio App.3d 88, 90, 582 N.E.2d 1055. The examples listed in Pettry and Hall are not meant to provide an exclusive list of possible extraordinary circumstances. Hoppel, supra (involving nonresidential parent’s conviction for sexual battery against subject child’s stepsister). Once the custodial parent proves the existence of an extraordinary circumstance, the burden shifts back to the noncustodial parent to prove that any visitation would be in the best interests of the child. Id.
{¶30} Given that the trial court terminated Pochiro’s constitutionally protected visitation rights, we must now review the court’s judgment based on the standard elucidated above. The trial court did review Lana’s best interests under the factors enumerated in R.C. 3109.051(D). The court gave particular attention to: Lana’s prior interrelationship with Pochiro, R.C. 3109.051(D)(1); her age, R.C. 3109.051(D)(4); her adjustment to home, school, and community; R.C.3109.051(D)(5); her wish to not spend time with Pochiro, R.C. 3109.051(D)(6); and the "perceived safety of the child," R.C. 3109.051(D)(7). However, a thorough review of the trial court’s judgment entry reveals that it did not make the required initial finding that there was clear and convincing evidence of extraordinary circumstances that would justify terminating Pochiro’s visitation rights. The trial court skipped that step and instead limited its review to R.C. 3109.051(D)’s best interests of the child factors.
2010-Ohio-1293
Seventh District Court of Appeals
Mahoning County
Juvenile Visitation
Defendant-appellant Christopher Pochiro appeals a decision terminating visitation with his fourteen-year-old daughter (Lana) and reducing his contact to weekly phone calls. The parties were never married. Several years of battling and one relocation resulted in Pochiro being granted the Standard Order of Visitation with visitation to take place at the paternal grandmother’s residence. The Order was effective September 15, 2008.
On October 8, 2008, less than a month after the Order took effect, Pochiro’s mother died. Pochiro exercised his regularly scheduled visitation the weekend of the funeral. During the weekend, the police were called to Pochiro’s residence. After Lana expressed concerns regarding her safety, the police decided to remove her from Pochiro’s care and placed her in the temporary custody of her maternal aunt. Venuto (Plaintiff-appellee) filed a motion to suspend visitation. After a hearing the court terminated Pochiro’s physical visitation with Lana, but did allow weekly telephone contact. On appeal, Pochiro asserted three assignments of error. All of which were found to have merit.
From the Opinion:
{¶23} Generally, the trial court looks only to the factors enumerated in R.C. 3109.051(D) and determines if modification of visitation is in the best interest of the child. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45, 706 N.E.2d 1218. However, in some cases, the foregoing statute does not stand in isolation. In re Kaiser, 7th Dist. No. 04 CO 9, 2004-Ohio-7208, ¶10. It must be read and interpreted in conjunction with other factors derived from caselaw to protect against infringement upon an individual’s constitutional rights. Id.
{¶24} This court has specifically held that "[t]he nonresidential parent has a fundamental and natural right to visitation." Anderson v. Anderson (2002), 147 Ohio App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, ¶22 (7th Dist.), citing Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200, and Pettry v. Pettry (1984), 20 Ohio App.3d 350, 486 N.E.2d 213. "The child also has a fundamental right to visitation with the nonresidential parent." Id., citing Porter v. Porter (1971), 25 Ohio St.2d 123, 54 O.O. 260, 267 N.E.2d 299, paragraph three of the syllabus.
{¶25} Concerning this fundamental right of the nonresidential parent to visitation with their child, this court has also noted that the right should be denied only under extraordinary circumstances. Hoppel v. Hoppel, 7th Dist. No. 03 CO 56, 2004-Ohio-1574, ¶44, citing Pettry, supra, paragraph one of the syllabus. The burden of proof is on the one contesting visitation to demonstrate extraordinary circumstances by clear and convincing evidence. Pettry, 20 Ohio App.3d at 352-353, 486 N.E.2d 213.
{¶26} Pettry identified two extraordinary circumstances that would qualify: (1) if the noncustodial parent was unfit; or (2) if visitation would cause harm to the child. Another court has held that it would be an extraordinary circumstance if the noncustodial parent were imprisoned for a term of years for a crime of violence. In re Hall (1989), 65 Ohio App.3d 88, 90, 582 N.E.2d 1055. The examples listed in Pettry and Hall are not meant to provide an exclusive list of possible extraordinary circumstances. Hoppel, supra (involving nonresidential parent’s conviction for sexual battery against subject child’s stepsister). Once the custodial parent proves the existence of an extraordinary circumstance, the burden shifts back to the noncustodial parent to prove that any visitation would be in the best interests of the child. Id.
{¶30} Given that the trial court terminated Pochiro’s constitutionally protected visitation rights, we must now review the court’s judgment based on the standard elucidated above. The trial court did review Lana’s best interests under the factors enumerated in R.C. 3109.051(D). The court gave particular attention to: Lana’s prior interrelationship with Pochiro, R.C. 3109.051(D)(1); her age, R.C. 3109.051(D)(4); her adjustment to home, school, and community; R.C.3109.051(D)(5); her wish to not spend time with Pochiro, R.C. 3109.051(D)(6); and the "perceived safety of the child," R.C. 3109.051(D)(7). However, a thorough review of the trial court’s judgment entry reveals that it did not make the required initial finding that there was clear and convincing evidence of extraordinary circumstances that would justify terminating Pochiro’s visitation rights. The trial court skipped that step and instead limited its review to R.C. 3109.051(D)’s best interests of the child factors.
Thursday, April 8, 2010
Social Security Benefits to Offset Public Pension
Obar v. Obar
2010-Ohio-1333
Fifth District
Ashland County
-Social security benefits evaluated in relation to the other party’s interest in a public pension
Plaintiff-Appellant, Richard Don Obar appeals from the Decree of Divorce entered by the Ashland County DR Court. The appellant raised two assignments of error, but for the purposes of this review, we will only discuss the social security offset.
Appellant argues that the trial court erred by not considering the hypothetical Social Security offset against appellants PERS pension. Specifically, appellant argues that because appellee’s social security retirement benefits are not subject to division then the fact that appellant’s PERS is subject to division, and was, in fact, divided by the trial court, such division would obviously be unfair unless the PERS value is adjusted for the discrepancy.
After determining that "illumination of this issue is warranted," the court examines several approaches to considering social security benefits when dividing a public pension. The court examined Cornbleth v. Cornbleth, 580 A.2d 369, 372 (calculation of a hypothetical social security benefit to deduct from the public pension), Neville v. Neville, 791 N.E.2d 434 (the trial court may consider the parties’ future Social Security benefits in relation to all marital assets) and R.C. 3105.171(F)(9).
The trial court’s decision was upheld on the basis of R.C. 3105.171(F)(9) which, when enacted in April of 2009, made it clear that the trial court has discretion as to whether to consider social security benefits in dividing a public pension.
From the Opinion:
{¶18} "In the leading case of Cornbleth v. Cornbleth (1990), 397 Pa.Super. 421, 427, 580 A.2d 369, 372, the court stated:
{¶19} "’To facilitate a process of equating [public pension participants] and Social Security participants we believe it will be necessary to compute the present value of a Social Security benefit had the [public plan] participant been participating in the Social Security system. This present value should then be deducted from the present value of the [public pension] at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes. This process should result in equating, as near as possible, the two classes of individuals for equitable distribution purposes.'
{¶20} "This formula, which calculates a ‘hypothetical Social Security benefit’ for a party who has, in reality, participated in a public retirement plan, not Social Security, and then deducts that hypothetical amount from the public pension, has been adopted by several appellate districts in Ohio.
{¶21} "[T]he Cornbleth method seems to be both the most thorough and the most equitable under the circumstances presented herein. Specifically, this method appears to give both parties comparable credit in terms of the years of participation in their respective programs, whereas, in practice, the other methods may well penalize the PERS participant by subjecting a larger proportionate share of that spouse's retirement to division as a marital asset. On remand, the trial court should apply the Cornbleth formula of calculation* * *." Id. at 30-32.
{¶25} "However, as appellant concedes, the Ohio Supreme Court has not mandated the Cornbleth approach as the preferred method of addressing these types of private/public retirement benefit scenarios. Moreover, our most recent ruling in this realm can be found in Back v. Back (Dec. 29, 1999), Richland App. No. 99 CA 46, unreported. In that case, appellant wife was employed by the City of Mansfield and participated in PERS, the public employees' retirement plan. Appellee husband worked for a waste management company, participating in social security but not in any pension plans. We held: Upon reconsideration, we find the trial court did not abuse its discretion in calculating the division of retirement benefits on remand even though the trial court did not follow the mandate of this court. We conclude, as did the trial court, the proper division of retirement benefits is to subtract appellee's potential social security benefit from appellant's potential PERS benefit and divide the remaining portion of the potential monthly PERS benefit equally between the parties. Id. at 2." Id at 2.
{¶27} The cases appellant cites pre-date the Ohio Supreme Court's decision in Neville. In Neville, the Court held that "to make an equitable distribution of marital property, [the trial court] may consider the parties' future Social Security benefits in relation to all marital assets." (Emphasis added.) Id at paragraph 11. As noted by the court in Rorick v. Rorick, Lorain App. No. 09CA009533, 2009-Ohio-3173. "Neville clearly does not mandate that the trial court consider Social Security benefits when equitably dividing marital assets." Id at paragraph 12.
{¶28} Subsequent to Neville, R.C. 3105.171(F)(9) was adopted, effective April 7, 2009. It states, "In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors: …. (9) Any retirement benefits of the spouse, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension,…" While Neville allowed social security benefits to be considered against all martial assets, this section limits social security benefits to be considered "as may be relevant" in dividing public pensions. This statute took effect only days before the decree in this case. And this statute still seems to leave it to the
discretion of the trial court as to whether to consider said benefits in dividing a public pension. In addition, the statement of this assignment of error by the appellant specifically argues for the Cornbleth method, not the procedure set forth by us in Bourjaily or by the Ohio Supreme Court in Neville or by R.C. 3105.171(F)(9).
{¶29} We find, therefore, that the trial court did not err in refusing to consider appellant’s ypothetical social security offset against appellant’s PERS pension.
2010-Ohio-1333
Fifth District
Ashland County
-Social security benefits evaluated in relation to the other party’s interest in a public pension
Plaintiff-Appellant, Richard Don Obar appeals from the Decree of Divorce entered by the Ashland County DR Court. The appellant raised two assignments of error, but for the purposes of this review, we will only discuss the social security offset.
Appellant argues that the trial court erred by not considering the hypothetical Social Security offset against appellants PERS pension. Specifically, appellant argues that because appellee’s social security retirement benefits are not subject to division then the fact that appellant’s PERS is subject to division, and was, in fact, divided by the trial court, such division would obviously be unfair unless the PERS value is adjusted for the discrepancy.
After determining that "illumination of this issue is warranted," the court examines several approaches to considering social security benefits when dividing a public pension. The court examined Cornbleth v. Cornbleth, 580 A.2d 369, 372 (calculation of a hypothetical social security benefit to deduct from the public pension), Neville v. Neville, 791 N.E.2d 434 (the trial court may consider the parties’ future Social Security benefits in relation to all marital assets) and R.C. 3105.171(F)(9).
The trial court’s decision was upheld on the basis of R.C. 3105.171(F)(9) which, when enacted in April of 2009, made it clear that the trial court has discretion as to whether to consider social security benefits in dividing a public pension.
From the Opinion:
{¶18} "In the leading case of Cornbleth v. Cornbleth (1990), 397 Pa.Super. 421, 427, 580 A.2d 369, 372, the court stated:
{¶19} "’To facilitate a process of equating [public pension participants] and Social Security participants we believe it will be necessary to compute the present value of a Social Security benefit had the [public plan] participant been participating in the Social Security system. This present value should then be deducted from the present value of the [public pension] at which time a figure for the marital portion of the pension could be derived and included in the marital estate for distribution purposes. This process should result in equating, as near as possible, the two classes of individuals for equitable distribution purposes.'
{¶20} "This formula, which calculates a ‘hypothetical Social Security benefit’ for a party who has, in reality, participated in a public retirement plan, not Social Security, and then deducts that hypothetical amount from the public pension, has been adopted by several appellate districts in Ohio.
{¶21} "[T]he Cornbleth method seems to be both the most thorough and the most equitable under the circumstances presented herein. Specifically, this method appears to give both parties comparable credit in terms of the years of participation in their respective programs, whereas, in practice, the other methods may well penalize the PERS participant by subjecting a larger proportionate share of that spouse's retirement to division as a marital asset. On remand, the trial court should apply the Cornbleth formula of calculation* * *." Id. at 30-32.
{¶25} "However, as appellant concedes, the Ohio Supreme Court has not mandated the Cornbleth approach as the preferred method of addressing these types of private/public retirement benefit scenarios. Moreover, our most recent ruling in this realm can be found in Back v. Back (Dec. 29, 1999), Richland App. No. 99 CA 46, unreported. In that case, appellant wife was employed by the City of Mansfield and participated in PERS, the public employees' retirement plan. Appellee husband worked for a waste management company, participating in social security but not in any pension plans. We held: Upon reconsideration, we find the trial court did not abuse its discretion in calculating the division of retirement benefits on remand even though the trial court did not follow the mandate of this court. We conclude, as did the trial court, the proper division of retirement benefits is to subtract appellee's potential social security benefit from appellant's potential PERS benefit and divide the remaining portion of the potential monthly PERS benefit equally between the parties. Id. at 2." Id at 2.
{¶27} The cases appellant cites pre-date the Ohio Supreme Court's decision in Neville. In Neville, the Court held that "to make an equitable distribution of marital property, [the trial court] may consider the parties' future Social Security benefits in relation to all marital assets." (Emphasis added.) Id at paragraph 11. As noted by the court in Rorick v. Rorick, Lorain App. No. 09CA009533, 2009-Ohio-3173. "Neville clearly does not mandate that the trial court consider Social Security benefits when equitably dividing marital assets." Id at paragraph 12.
{¶28} Subsequent to Neville, R.C. 3105.171(F)(9) was adopted, effective April 7, 2009. It states, "In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors: …. (9) Any retirement benefits of the spouse, excluding the social security benefits of a spouse except as may be relevant for purposes of dividing a public pension,…" While Neville allowed social security benefits to be considered against all martial assets, this section limits social security benefits to be considered "as may be relevant" in dividing public pensions. This statute took effect only days before the decree in this case. And this statute still seems to leave it to the
discretion of the trial court as to whether to consider said benefits in dividing a public pension. In addition, the statement of this assignment of error by the appellant specifically argues for the Cornbleth method, not the procedure set forth by us in Bourjaily or by the Ohio Supreme Court in Neville or by R.C. 3105.171(F)(9).
{¶29} We find, therefore, that the trial court did not err in refusing to consider appellant’s ypothetical social security offset against appellant’s PERS pension.
Sunday, March 28, 2010
Relocation of the Custodial Parent - What is the Trial Court Supposed to Determine?
Acus v. Acus
2010-Ohio-856
Twelfth District Court of Appeals
Madison County
-Custody: Relocation of Custodial Parent
Appellant-Mother appeals from the decision of the Madison County DR Court denying her request to relocate to Cleveland with her daughter following her divorce from Appellee-Father. Mother, as residential parent argues that pursuant to R.C. 3109.051, the DR Court erred in its decision preventing her from relocating.
The Appellate Court, after reviewing R.C. 3109.051 reversed and remanded finding that the DR Court did not comply with the required statute. In short, the statute gives the DR Court the authority to determine, at a hearing, whether it is in the best interest of the child to revise the parenting time schedule for the child. The statute does not give the DR Court the authority to prevent the residential parent from relocating with the child.
From the Opinion:
{¶12} R.C. 3109.051(G)(1), which deals with the requirements of a residential parent intending to relocate, states, in pertinent part:
{¶13} "If the residential parent intends to move to a residence other than the residence specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. * * * Upon receipt of the notice, the court, on its own motion or the motion of the parent who is not the residential parent, may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the parenting time schedule for the child." (Emphasis added.)
{¶14} In turn, while the express terms of R.C. 3109.051(G)(1) permit the trial court to schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child," the statute "does not give the trial court the authority to prevent the residential parent from relocating with the child."[citations omitted].
{¶15} In this case, there were no prior agreements preventing Mother from relocating, nor were there any provisions in the dispositional order regarding her ability to relocate.2 See In re T.M. at ¶13, citing Williams v. Williams, Trumball App. No. 2002- T-0101, 2004-Ohio-3992; Kassavei, 2001 WL 589392 at *2; see, also, Zimmer v. Zimmer, Franklin App. No. 00AP-383, 2001-Ohio-4226, 2001 WL 185356, at *2-*4. As a result, and under the facts of this case, the trial court did not have the authority to prevent Mother from relocating to Cleveland with her minor daughter. Instead, pursuant to R.C. 3109.051(G)(1), the court could merely schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child."3 See In re Noble, 2001 WL 314889 at *2; Kassavei, 2001 WL 589392 at *2; Spain, 1995 WL 380067 at *2. Therefore, because the trial court's decision preventing Mother from relocating with her daughter outside of the "Madison County area" was contrary to law, appellant's assignments of error are sustained and this matter is remanded for further proceedings. Kassavei, 2001 WL 589392 at *2.
2010-Ohio-856
Twelfth District Court of Appeals
Madison County
-Custody: Relocation of Custodial Parent
Appellant-Mother appeals from the decision of the Madison County DR Court denying her request to relocate to Cleveland with her daughter following her divorce from Appellee-Father. Mother, as residential parent argues that pursuant to R.C. 3109.051, the DR Court erred in its decision preventing her from relocating.
The Appellate Court, after reviewing R.C. 3109.051 reversed and remanded finding that the DR Court did not comply with the required statute. In short, the statute gives the DR Court the authority to determine, at a hearing, whether it is in the best interest of the child to revise the parenting time schedule for the child. The statute does not give the DR Court the authority to prevent the residential parent from relocating with the child.
From the Opinion:
{¶12} R.C. 3109.051(G)(1), which deals with the requirements of a residential parent intending to relocate, states, in pertinent part:
{¶13} "If the residential parent intends to move to a residence other than the residence specified in the parenting time order or decree of the court, the parent shall file a notice of intent to relocate with the court that issued the order or decree. * * * Upon receipt of the notice, the court, on its own motion or the motion of the parent who is not the residential parent, may schedule a hearing with notice to both parents to determine whether it is in the best interest of the child to revise the parenting time schedule for the child." (Emphasis added.)
{¶14} In turn, while the express terms of R.C. 3109.051(G)(1) permit the trial court to schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child," the statute "does not give the trial court the authority to prevent the residential parent from relocating with the child."[citations omitted].
{¶15} In this case, there were no prior agreements preventing Mother from relocating, nor were there any provisions in the dispositional order regarding her ability to relocate.2 See In re T.M. at ¶13, citing Williams v. Williams, Trumball App. No. 2002- T-0101, 2004-Ohio-3992; Kassavei, 2001 WL 589392 at *2; see, also, Zimmer v. Zimmer, Franklin App. No. 00AP-383, 2001-Ohio-4226, 2001 WL 185356, at *2-*4. As a result, and under the facts of this case, the trial court did not have the authority to prevent Mother from relocating to Cleveland with her minor daughter. Instead, pursuant to R.C. 3109.051(G)(1), the court could merely schedule a hearing "to determine whether it is in the best interest of the child to revise the parenting time schedule for the child."3 See In re Noble, 2001 WL 314889 at *2; Kassavei, 2001 WL 589392 at *2; Spain, 1995 WL 380067 at *2. Therefore, because the trial court's decision preventing Mother from relocating with her daughter outside of the "Madison County area" was contrary to law, appellant's assignments of error are sustained and this matter is remanded for further proceedings. Kassavei, 2001 WL 589392 at *2.
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