Ohio Case Law Review by Topic: June 1, 2021 through July 31, 2021

Ohio counties by concentration of Wendy’s restaurants.

Christ v. Christ, 7th Dist. Noble No. 216-0080, 20 No 0472, 2021-Ohio-2016

Marital Property: equitable division, de facto date (termination of marriage), debts
RC 3105.171(I): reservation of jurisdiction
Spousal Support

Dated: June 11, 2021
Reversing and Remanding

The parties married in June, 2001, and throughout the marriage acquired various properties, holdings, and liabilities through Husband’s business interests and investments. Wife filed a complaint for divorce in July, 2016, Husband filed an answer and motion for conciliation, and a significant number of motions, cross-motions, findings of contempt, etc., followed through the parties’ divorce trial in September 2019, and the trial court’s decree in January, 2020.

In his appeal, Husband raised two assignments of error: (1) that the trial court erred and abused its discretion in its allocation of marital property and liabilities; and (2) that the trial court erred and abused its discretion in its award of spousal support to Wife.

In support of his first argument, Husband argued the trial court improperly set a ‘de facto’ termination date for the marriage when it utilized the date Wife filed her complaint for divorce, rather than the date of final hearing. Noting that the latter should be presumed by any trial court to be the default termination date for any marriage, the Court noted that facts and circumstances supporting the deviation from such date can be considered, but in reversing continued:

Neither party requested a de facto termination of marriage. Neither party prepared their case nor presented evidence and testimony with a de facto termination date in mind. There was no evidence presented with respect to a valuation of assets or liabilities for July 22, 2016, the de facto termination date. Therefore, because the trial court utilized a de facto termination date, it abused its discretion by then utilizing present values for some of the parties’ assets and liabilities instead of values for the identified de facto termination date… The [trial court] did not offer any reasoning for using different dates of valuation.

The Court similarly found Husband’s second argument well taken, that the trial court did not make sufficient findings of fact to support its conclusions regarding the division of marital property.

The trial court’s judgment entry which terminates the parties’ marriage totals three pages in length… The [trial court] made no express finding in sufficient detail to enable this [C]ourt to determine that the division of property is fair, equitable, and in accordance with the law.

In his third argument, Husband asserted that the trial court had improperly reserved jurisdiction over the division of marital property and liabilities. Because such reservation had not been sought by either party, the trial court’s doing so violated ORC 3105.171(I), the Court found.

In reversing and remanding for Husband’s second assignment of error, the Court found that the trial court had failed to support its award of spousal support to Wife, writing: “the foregoing judgment entry suffers from the same ‘paucity of findings regarding spousal support’ as in Boney, where this [C]ourt found error and remanded.”

E.O.W. v. L.M.W., 8th Dist. Cuyahoga No. DR-16-360863, 109713, 2021-Ohio-2040

Marital Property: deferred distribution
QDRO: attorney fees

Dated: June 17, 20201
Affirming

This decision follows the Court’s prior affirming in part, reversing in part, and remanding of this case to the trial court. The trial court’s modified judgment entry of divorce is the subject of Wife’s appeal and Husband’s cross-appeal.

In her appeal, Wife argued the trial court had erred in not following the Court’s remand instructions concerning child support, nor the requirements set forth in ORC 3119.04(B). Quoting that trial court’s “have more discretion in computing child support when the parents’ combined income is greater than $150,000,” and noting (while it ultimately awarded her the same amount) the trial court had provided more detail and case-by-case analysis in reaching its child support decision on remand, the Court affirmed.

In his cross-appeal, Husband argued the trial court had erred when it: (1) set a deadline for the distribution of Wife’s share of a capital account through his employer; and (2) did not impose sanctions related to Wife’s objecting to entry of a QDRO.

In rejecting his first assignment, the Court found that trial court’s have broad discretion to set forth deadlines for equalization in determining marital property rights. In this case, Husband had a capital account with his law firm that could not be paid directly to Wife by the firm, but rather could presumably only be paid to Husband. To ensure Wife received her share, the trial court ordered Husband to pay a fixed sum by a certain date (Wife first appeal had successfully reversed the trial court’s initial order that such payments be made over an indefinite term) prior to the date he would receive such payments, himself.

Husband claimed inability to make the required payment representing Wife’s share of his capital account, and that he had been prevented from borrowing money from his separate retirement account to do so. Husband attributed this delay to Wife’s objections to the QDRO, but the Court did not find his claims were sufficiently supported.

While it may be ideal for Husband to be able to borrow from his own retirement plan and therefore pay interest to himself, as he suggests, we are unable to conclude the trial court abused its discretion in following the mandate of this [C]ourt and setting a date -more than eight months from the judgment- for him to fulfill his obligation to pay Wife’s share in his capital account.

In his second assignment of error, Husband argued the trial court abused its discretion when it failed to sanction Wife’s counsel for objecting to his proposed QDRO. Wife’s counsel had argued the trial court lacked jurisdiction while an appeal was pending, but (Husband noted) Wife’s counsel had also represented another party in another appeal before the Court and would have known from such appeal that “the trial court could exercise jurisdiction regarding the QDRO while [an appeal] was pending.” Husband argued Wife’s counsel had made a false statement of law, and failed to disclose legal authority known to counsel.

While the Court acknowledged Wife’s attorney should have been candid with the trial court, it further noted that -even if they had- the trial court’s broad, standing order to decline hearing future motions for sanctions in this highly contentious matter was valid and enforceable. Moreover, the Court noted that Husband had failed to bring the case law authority to the attention of the trial court, so that the trial court never had the opportunity to decide on the issue of sanctions in full consideration thereof.

Reynolds v. Reynolds, 6th Dist. Lucas No. DR2017-0867, L-20-1098, 2021-Ohio-2140

Marital Property: debts, loan (401(k))

Dated: June 25, 2021
Affirming

In its decision on several assignments of error from the parties’ respective appeal and cross-appeal, the Court affirmed the trial court’s apportionment of debt including a $25,000 loan from Husband’s 401(k). Wife argued the loan should not have been considered in the overall allocation of debt, of which the trial court assigned $95,000 to Husband and $61,365 to Wife, since “[Husband] in repaying that debt, will be paying himself.”

Noting the debt allocated to Husband still exceeded the amount assigned to Wife, were the loan amount excluded, the Court found that the trial court retained and did not abuse its discretion to allocate debt, including the loan from Husband’s 401(k).

Roxburgh v. Richardson, 9th Dist. Summit No. DR-1999-09-2311, 29629, 2021-Ohio-2229

DOPO: abuse of discretion, ambiguity, contempt, merely implements the decree, SERS, social security
Marital Property: disability, retirement benefits

Dated: June 30, 2021
Affirming

At the time of the parties’ 07/18/2000 divorce, Wife was awarded her interest in Husband’s SERS benefits accumulated during the marriage “offset by the Social Security retirement that [Wife] shall be entitled to recover from her own employment.” Because no mechanism for division of Ohio public retirement systems existed at the time, the trial court retained jurisdiction “to ensure that [Wife] receives the amount that she is entitled to receive…” As Husband neared retirement in 2018, he requested the amount of Wife’s (disability) social security benefit, and provided her with a proposed DOPO for her signature.

Wife, however, refused to sign the order because it included an offset for her disability benefit, and Husband filed a motion for contempt. Prior to the hearing, Wife signed the DOPO, though following the hearing she was made aware by the trial court that a handwritten change had been added to the order. Wife alleged this occurred after she had signed the document, and that she would not have agreed to the full offset which had been added. The magistrate held Husband’s motion in abeyance, and instructed Husband’s counsel to type, rather than handwrite, the edit and submit the order to Wife for her signature.

Editor’s Note: ORC 3105.82 requires the use of Ohio’s statutory DOPO form, which is non-modifiable.

Wife filed a motion for relief, and asked the trial court to set aside the decree provision concerning the offset. At a hearing for both parties’ motions, the trial court stated “the problem with the situation that you’re in is that at the time of your divorce decree, the law was not clear as to how these pensions should be divided,” and suggested they retain assistance from a third party for both the DOPO and calculation of the offset. The parties agreed, and a DOPO was prepared with an offset for Wife’s marital retirement social security benefits. Wife filed a motion to approve the DOPO, and at the hearing on the matter, Husband’s counsel argued that the decree had no reference to “any sort of fractional share of the social security benefits,” and that the pension should be offset by Wife’s full social security benefit. The trial court sustained Wife’s motion, and the DOPO was submitted to and approved by SERS.

In his appeal, Husband argued that the trial court “erred in finding the Social Security offset provision of the parties’ separate agreement to be ambiguous and therefore subject to interpretation.” He argued that the language of the decree clearly entitled him to offset the full amount of Wife’s social security benefits (including her disability benefit), and that the trial court had no basis to otherwise interpret it otherwise. The Court disagreed, and noted: (1) that DOPO division did not exist as of the date of decree, and that the trial court had, at that time, expressly reserved jurisdiction for this reason; (2) that the agreement failed to specify how the offset would apply to Wife’s social security benefits; and (3) that the parties (at the suggestion of the trial court), of their own accord, hired the third party for the DOPO and the calculation offset.

The Court affirmed, finding that the trial court had discretion to clarify ambiguities in the decree, and that the trial court did not err by applying a social security offset based on only the marital portion of the social security retirement benefit of the non-SERS spouse, versus the entirety of her social security benefit.

In a single dissent, a member of the Court argued instead that the agreement language was not ambiguous and therefore not subject to interpretation: “While the trial court may have been trying to effectuate what it viewed as more equitable than the plain language of the separation agreement, such was not its role given the circumstances.”

Ostry v. McCarthy, 9th Dist. Summit No. DR2018-07-1830, 29753, 2021-Ohio-2228

Marital Property: gift, separate property, tracing

Dated: June 30, 2021
Affirming

During their 2019 divorce, Husband and Wife disputed whether $42,000 provided by Husband’s mother in 2004 (used for a home purchase) was his separate property. The trial court ultimately found that it was, and Wife appealed this decision in two of three assignments of error.

Wife argued firstly that the trial court erred when it found the money was Husband’s separate property, and secondly when it found that the money had been traced with sufficient documentary evidence. The Court wrote:

“The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable.” R.C. 3105.171(A)(6)(a)(vii)… “The burden to prove the separate identity of property can be met with documents or testimony…”

Wife argued that Husband had failed to provide sufficient evidence to support his claim, and that the trial court had erred in accepting testimony/affidavits from Husband’s mother and other family members as sufficient proof of his claim. In Wife’s appeal, however, the Court noted little was put forth to dispute Husband’s claim. The Court found that it was not enough for Wife merely to argue that Husband had not provided sufficient documentary evidence, but that she failed to meet her own evidentiary burden to overcome the testimony provided by Husband. In tracing separate property, a trial court may rely on documents or testimony.

After considering all the evidence presented, we cannot say that [Wife] demonstrated that the trial court’s finding that the $42,000 from [Husband’s] mother was [Husband’s] separate property is against the manifest weight of the evidence. [Wife] focuses on the paragraph of the affidavit that indicates that the money was used by both [Husband] and [Wife] to purchase a house, which they could not afford to purchase without that money. However, this ignores the prior paragraph of the affidavit which specifically states that [Husband’s] mother gave the money to her children, not to her children and their spouses. Further, there was testimony that [Husband’s] mother wrote the checks only to [Husband] and did not tell [Wife] about the gift. While there is evidence that both [Husband] and [Wife] benefited from the gift, we cannot say that [Wife] has demonstrated that the weight of the evidence supports that [Husband’s] mother intended to give the gift to both [Husband] and [Wife]. Nor has [Wife] pointed to any evidence that [Husband] made an inter vivos gift of his separate property interest to [Wife]. See Salmon, 2006-Ohio-1557 at ¶ 19. Further, [Wife] has not demonstrated that the evidence was insufficient to trace the property. [Wife] points to the lack of documentary evidence, such as cancelled checks; however, this Court has concluded that the proponent’s burden can be met with documents or testimony. Kolar, 2018-Ohio-2559, at ¶ 29.

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Additional Reading for Those That Need Just a Little More QDRO Bell:

Check out this fun article for a reminder that, at least in Colorado, state domestic relations law is preempted by ERISA. Always make sure to follow plan rules when it comes to designating and revoking beneficiaries.

This summary of a 9th Circuit decision provides a brief but precise synopsis of a fascinating case involving third-party administrators, miscalculated pension benefits, and more.

Blog Posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. Please consult with counsel of your choice regarding any specific questions you may have.