Ohio Case Law Review by Topic: December 1, 2022 through February 28, 2023

Gupta v. Sharan, 10th Dist. Franklin No.19DR-3788, 22AP-81, 2022-Ohio-4479

Attorney Fees
Marital Property: equitable division (unequal division)

Dated: December 13, 2022
Affirming

The parties’ 2019 divorce was encumbered and slowed by a series of motions and countermotions related to the COVID pandemic, and Wife’s relocation back to India. Following a series of hearings in the fall of 2021, Wife moved that she be allowed to attend the November 2021 final hearing via Zoom; the trial court denied Wife’s request, citing her non-attendance at prior hearings and her prior agreement to the hearing date. The trial court granted, however, Wife’s request for an interpreter. When the hearing date arrived, Wife’s counsel appeared without her.

At the November 2021 hearing, Wife’s counsel argued for a motion for another continuance, alleging the GAL had failed to file her report in the appropriate timeframe, among other grounds. Wife’s counsel acknowledged he had previously agreed to the November final hearing date, but stated that Wife had subsequently advised she could travel from India to attend. Following a recess, Wife’s attorney advised the trial court that Wife had dismissed his representation, and moved for a continuance for Wife to obtain new counsel, which the trial court denied. As the hearing proceeded, Husband testified as to his care and sole custody of the parties’ children since Wife’s move to India, some of the circumstances of their divorce, and Wife’s non-cooperation with discovery.

As part of the trial court’s January 2022 ruling, Husband was awarded full custody of the parties’ children, and Wife was awarded a share of the parties’ assets, reduced by attorney fees the trial court had awarded to Husband. Wife’s appeal followed, and this case review relates to her third and fifth assignments of error.

In her third assignment of error, Wife argued the trial court abused its discretion when it reduced her share of marital property by Husband’s attorney fees. Noting Wife’s failure to refer to any legal authority in her appeal, and that she had not previously objected to Husband’s request for fees (nor offered any argument as to their reasonableness), the Court limited its review to the level of plain error, and affirmed the trial court’s decision to offset Husband’s attorney fees against Wife’s marital property award.

Upon review of the record, we find no error in the trial court’s analysis or conclusion on the issue. The trial court was in the best position to assess the impact of [Wife’s] conduct on the case and the extent to which her conduct disrupted or delayed the matter.

In her fifth assignment of error, Wife argued that the trial court failed to equitably divide the marital property (and again failed to offer a specific argument). Limiting its review to the level of plain error, the Court cited ORC 3105.171 and the obligations therefrom on trial courts in the division of marital property. Affirming, the Court wrote:

The [trial] court stated that “the disproportionate award of liquid marital assets is appropriate due to the deduction of the attorney fees ordered to be paid to [Husband] and deduction for the guardian ad litem fees paid by [Husband], and [Husband] solely having the burden of caring for the minor children for the past two (2) years…”
While the trial court did not specifically cite to R.C. 3105.171, it is clear from the [trial] court’s written findings that it considered the applicable provisions of the statute… [Wife] does not direct this [C]ourt to any specific error made by the trial court in dividing the marital property; rather, [Wife] only broadly claims that the division was unfair and inequitable.

Lepsky v. Lepsky, 5th Dist. Stark No. 2020 DR 00799, 2021 CA 00155, 2022-Ohio-4710

Civ. R. 60(B): (void)
Marital Property: ambiguity, appreciation, separate property, tracing
QDRO: valuation
Witness: expert

Dated: December 27, 2022
Affirming

The parties’ divorce was preceded by a series of aborted divorce actions and legal separation decrees, under one of which in 2016 a separation agreement was reached. In response to Husband’s fourth and final complaint for divorce, Wife filed an answer and counterclaim, a third-party complaint against his medical practice, and a motion to deem the separation agreement invalid. Following a hearing on the matter, the agreement was found valid, and Wife was ordered to pay attorney fees to Husband.

Wife subsequently sought relief under Civ. R. 60(B)(2), alleging the 2016 separation agreement was invalidated by evidence in the parties’ 2020 marital counseling records showing they had reconciled. Husband argued Wife could not use Civ. R. 60(B), because the trial court’s 2021 judgment entry was an interlocutory order. The trial court agreed, and denied Wife’s motion. A decree of divorce was filed in November 2021, Wife appealed raising seven assignments of error, and Husband appealed raising two cross-assignments of error. This summary relates to Wife’s seventh assignment of error and Husband’s second cross-assignment of error.

In Wife’s seventh assignment of error, she argued that the trial court erred when it applied passive growth analysis to the parties’ respective retirement accounts, despite no such provisioning in the parties’ separation agreement, which stated:

The parties shall equally divide only the marital portion of the Wife’s MedAdmin Service LLC 401K and only the marital portion of the Husband’s Jackson Emergency Physicians LLC 401K by a Qualified Domestic Relations Order… based upon the following formula:
Value of Husband’s 401(K) as of the date of final order of divorce; minus Premarital value of Husband’s 401(K) as of December 12, 2009; divided by two
Value of Wife’s 401(K) as of the date of the final order of divorce; minus Premarital value of Wife’s 401(K) as of December 12, 2009; divided by two

As part of the trial court’s proceedings, both parties conceded passive growth on their respective premarital shares had not been expressly provided for in the separation agreement, but Husband’s expert witness -whose company conducted the passive growth analysis- testified that such analysis was implicit in his company’s very hiring, which itself was stipulated in the separation agreement. Finding such analysis consistent with its considerations under ORC 3105.171, and noting the parties’ retainment of expert assistance presumably for such calculation, the trial court applied passive growth to the premarital shares.

The Court in its findings agreed, writing:

We find the trial court properly resolved the ambiguity in the Separation Agreement. Pursuant to the agreed terms of Section 2.6 of the Separation Agreement, the parties specifically request that QDRO Consultants, Inc. complete the analysis of the parties’ retirement accounts to determine the marital portion… [I]f passive growth was not a consideration, there would be no purpose for QDRO Consultants, Inc. to conduct an analysis of the data.
In dividing property in a divorce proceeding, a trial court must first “determine what constitutes marital property and what constitutes separate property.” Grow v. Grow, 12th Dist. Butler Nos. CA2010–08–209, CA2010–08–218, and CA2010– 11–301, 2012-Ohio-1680, 2012 WL 1269118, ¶ 11, quoting R.C. 3105.171(B). R.C. 3105.171(A)(6)(a)(iii) states that separate property is “[p]assive income and appreciation acquired from separate property by one spouse during the marriage.”

In his second cross-assignment of error, Husband argued the trial court erred when it divided a brokerage account allegedly funded by deposits from his medical practice, which was separately assigned to him under the parties’ separation agreement. Noting its abuse of discretion standard, the Court disagreed, writing simply: “Husband did not establish by a preponderance of the evidence that the Fidelity account in question was a separate asset. We find no abuse of discretion for the trial court to designate the Fidelity account as marital property to be equitably divided between the parties.”

Karabogias v. Zoltanski, 8th Dist. Cuyahoga No. 16-DR-364810, 111062, 2023-Ohio-227

Marital Property: equitable division, de facto date (termination of marriage)
ORC 3105.171(I)
QDRO: abuse of discretion, impermissible modification, valuation date

Dated: January 26, 2023
Affirming

Editor’s Note: Read our prior case summary here, for the mostly identical but subsequently vacated opinion in this matter.

ON RECONSIDERATION

This opinion vacated the Court’s prior opinion in the same matter and appeal, reaching the same conclusions and adapting the same opinion text, with very few changes. Wife’s appeal stemmed from the trial court’s decision to utilize a date subsequent to the date of termination of the marriage, for the valuation of Husband’s QDRO assignment from her pension. Noting the trial court’s broad discretion in the valuation of marital assets, and Wife’s failure to provide benefit information prior to the date the trial court used, the Court rejected Wife’s arguments and affirmed the trial court’s decision.

Because this opinion is mostly identical to the opinion it vacated, this case law summary focuses on the text and citations which were added to the newer opinion’s analysis.

In affirming the trial court’s discretion to utilize alternative dates to produce an equitable result, the Court wrote (underlined for revised, added, or corrected -in the case of the year- text):

“It is well settled that a trial court has the discretion to interpret or to clarify its own orders and that such an interpretation will not be reversed absent an abuse of discretion.” Bohannon v. Cincinnati, 1st Dist. Hamilton No. C020629, 2003-Ohio-2334, ¶ 9. See also Tekamp v. Tekamp, 12th Dist. Warren No. CA2018-08-092, 2019-Ohio-2382, ¶ 26 (trial courts have the right to interpret and explain their own entries), and Reising v. Reising, 2d Dist. Clark No. 2010 CA 92, 2012-Ohio-1097, ¶ 14-16 and ¶ 27 (while a QDRO could not modify a divorce decree, it could clarify the divorce decree; the QDRO at issue was proper because it constituted a clarification and not a modification). Here, in the October 29, 2021 judgment entry adopting the amended QDRO, the trial court clarified and confirmed that the divorce decree used an alternative date — July 23, 2019 — for the division of [W]ife’s pension because it could only rely on the valuation evidence before it.

The Court also substantially revised its footnote for the above section, now stating:

At oral argument in the instant case, [W]ife argued that documentation regarding the valuation of the pension was not necessary because the pension is a “defined benefits plan.” However, the issue of whether valuation evidence was necessary for the distribution of the pension was neither raised at the trial court nor argued in [W]ife’s brief on appeal. It is well established that “‘[a]n issue raised during oral argument for the first time and not assigned as error in an appellate brief is waived.’” D.H. v. J.C., 8th Dist. Cuyahoga No. 108553, 2020-Ohio-112, ¶ 25, quoting Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 20 (1st Dist.), citing Watkins v. Ohio Dept. of Human Servs., 10th Dist. Franklin No. 00AP-224, 2000 Ohio App. LEXIS 5018 (Oct. 31, 2000). Because the issue has not been properly raised for our review, we decline to consider [W]ife’s argument that valuation evidence was not necessary for the trial court’s distribution of the pension.

In rejecting Wife’s interpretation of ORC 3105.171 as limiting marital property to that which was acquired prior to the date of termination of the marriage, instead of encompassing property which was acquired during the marriage, the Court continued (underlining for added or revised text, including discussion of some favorite case law on this blog):

The choice of the term “marital portion” in the [trial] court’s statement does not have the significance claimed by [W]ife… In Hoyt v. Hoyt, 53 Ohio St.3d 177, 182, 559 N.E.2d 1292 (1990), the court explained that “in determining the proportionality of the pension or retirement benefits, the non-employed spouse, in most instances, is only entitled to share in the actual marital asset.” Moreover, [t]he value of this asset would be determined by computing the ratio of the number of years of employment of the employed spouse during the marriage to the total years of his or her employment.” (Emphasis sic.) Id. Regarding what “during the marriage” means, R.C. 3105.171(A)(2)(b) specifically permits the trial court to “select dates that it considers equitable in determining marital property.”

In its final substantive addition to its vacated opinion, the Court wrote: “As the court in Hoyt emphasized, when considering pension or retirement benefits, a trial court must be given discretion and flat rules have no place in determining a property division.”

State ex rel. Heyside v. Calabrese, 8th Dist. Cuyahoga No. CV-21-954944, 2022-Ohio-1245, Slip Opinion No. 2023-Ohio-406

Marital Property: subject matter jurisdiction

Dated: February 15, 2023
Affirming

Following Appellant’s divorce, his ex-wife sued him in the general division of the common pleas court for unpaid spousal support and property assigned to her under the divorce decree. Appellant sought to dismiss the suit, based on the domestic relation court’s jurisdiction, and the trial court denied his motion. Several months later, Appellant filed a complaint for a writ of prohibition in the court of appeals, attempting to bar the trial court judge from presiding over the suit. The court of appeals subsequently granted the trial court judge’s motion to dismiss Appellant’s complaint, and Appellant appealed.

Noting that the sole question for Appellant’s claim was whether the general division of the common pleas court lacked jurisdiction over his ex-wife’s suit, the Supreme Court of Ohio disagreed. “No statute plainly deprives the general division of the [trial court] jurisdiction over [ex-wife’s] suit, and [Appellant] has an adequate remedy by way of a direct appeal from a final disposition of that suit by [the trial court judge].”

Additional Reading: Check out this rundown of a U.S. District Court/Northern District of California ruling, considering whether a prior separation agreement can be deemed a QDRO and/or supersede a current spouse’s claim to life insurance proceeds (or click this link to read the Opinion yourself).

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.