Dilley v. Dilley , 2013 Ohio 994 ( 2013 )

[Cite as Dilley v. Dilley, 2013-Ohio-994.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
WILLIAM DILLEY, : OPINION
Plaintiff-Appellant, :
CASE NO. 2012-G-3091
- vs - :
TATIANA DILLEY, :
Defendant-Appellee. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 08 DC
000591.
Judgment: Affirmed.
Joyce E. Barrett, 800 Standard Building, 1370 Ontario Street, Cleveland, OH 44113-
1752 (For Plaintiff-Appellant).
Heidi M. Cisan, Thrasher, Dinsmore & Dolan Co., L.P.A., 100 Seventh Avenue, Suite
150, Chardon, OH 44024-1079 (For Defendant-Appellee).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, William Dilley, appeals the judgment of the Geauga County
Court of Common Pleas awarding half of a retirement plan to appellee, Tatiana Dilley,
as spousal support and awarding appellee a greater award of marital assets based on a
finding of appellant’s financial misconduct. Based on the following, we affirm.
{¶2} The trial court entered its final judgment of divorce on March 10, 2010.1 In
Dilley v. Dilley, this court reversed, in part, the judgment of the trial court and remanded
the matter to the trial court. Id. at ¶91. Upon remand, we instructed the trial court as
follows:
{¶3} [T]he trial court should clarify whether the Shearson plan was
awarded to appellee as spousal support or as a division of marital
property. If it was awarded as marital property, there must be some
present value attributed to this asset. The trial court is further
ordered to dispose of the marital home. With respect to the
distributive award, the trial court should determine whether such an
award is appropriate based on the valuation of appellant’s separate
property. If such an award is inappropriate, then the trial court
should decide if it needs to give further consideration to a division
of the marital assets. Id.
{¶4} On remand, the parties briefed the issues and, through counsel, reached,
inter alia, the following stipulations:
{¶5} “1. The value of the Shearson retirement plan is $181,446.
{¶6} “2. The parties agree that [appellant] should be awarded the former marital
home and that [appellee] will execute a quit-claim deed with regard to the property.”
{¶7} The magistrate then found that the following two issues remained:
{¶8} 1. Whether [appellant’s] share of the Shearson retirement plan that
was awarded to Mrs. Dilley was spousal support or property
1. For a complete factual history, see this court’s opinion in Dilley v. Dilley, 11th Dist. No. 2010-G-2957,
2011-Ohio-2093.
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division, and if it was awarded as property division, what the
present value of the plan was as of the date of trial.
{¶9} 2. Whether the distributive award to [appellee] was appropriate,
given the value of the husband’s separate assets, and if not,
whether the trial court should reexamine the division of marital
assets.
{¶10} The magistrate determined that the entire Shearson Plan was awarded to
appellee; one-half of the income stream from the Plan, $486.70, was appellee’s share
as a marital asset, and the other half of the income stream was awarded as spousal
support. The magistrate further decided, “the distributive award of $20,000 to [appellee]
was not appropriate given the value of [appellant’s] separate assets, however the Court
should reexamine the division of marital assets, and give [appellee] $20,000 in
additional marital funds from the Citigroup plan after payment by [appellant] of any taxes
thereon.”
{¶11} Appellant filed timely objections. The trial court, however, affirmed the
decision of the magistrate. The trial court noted the Shearson Plan, which was in
payout status, was awarded to appellee in the nature of property division and spousal
support. With respect to the $20,000 award to appellee from the Citigroup plan, the trial
court found:
{¶12} [T]he distributive award of $20,000 to [appellee] to compensate her
for [appellant’s] financial misconduct during the divorce, was not
appropriate given the value of [appellant’s] separate property. After
re-examining the division of marital property, the Court hereby
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awards [appellee] $20,000 in additional marital funds from the
Citigroup plan after payment by [appellant] of any taxes thereon.
{¶13} Appellant filed a timely appeal and asserts two assignments of error. As
his first assignment of error, appellant alleges:
{¶14} “The trial court erred and abused its discretion in awarding the entire
Shearson Plan with a present value of $181,746 to the appellee as spousal support.”
{¶15} Preliminarily, we note the trial court did not award the entire Shearson
Plan to appellee as spousal support, but awarded one-half of the income stream to
appellee as marital property and the other half of the income stream as spousal support.
{¶16} On appeal, we determined the trial court had properly reviewed all of the
statutory factors in awarding appellee “at least $2,000 per month” in spousal support
beginning December 1, 2009, for eight years and three months. Id. at ¶42-65. We
observed, however, that based upon the magistrate’s decision, we were unable to
determine whether the Shearson Plan was awarded as spousal support or as a division
of marital property. Id. at ¶25. Upon remand, the parties stipulated to the value of the
plan. The trial court then clarified that in addition to the $2,000 spousal support award,
one-half of the income stream of the Shearson Plan was awarded to appellee as
additional spousal support.
{¶17} The trial court did not err in first dividing the marital asset equally and then
making an award of spousal support. See R.C. 3105.171(C)(1) & (C)(3).
{¶18} Appellant’s first assignment of error is without merit.
{¶19} As his second assignment of error, appellant alleges:
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{¶20} “The trial court erred and abused its discretion in awarding the appellee an
additional $20,000 from the appellant’s share of the Citigroup retirement benefit.”
{¶21} On appeal, appellant does not allege error in the trial court’s finding that
he engaged in financial misconduct. Instead, appellant argues the trial court erred in
awarding $20,000 of the Citigroup retirement benefit, as the trial court had originally
divided this plan equally between the parties.
{¶22} In Dilley, we recognized the trial court found that appellant engaged in
financial misconduct. Id. at ¶30. In discussing its decision to make a distributive award,
the magistrate stated:
{¶23} [Appellant’s] excessive spending after the parties separated is
financial misconduct. He spent extravagant amounts on himself for
clothing, jewelry, restaurants, fitness clubs and dance lessons
instead of spending it for [its] intended use (mortgage, car
payments). He entered into an expensive lease/option to buy when
the parties could not afford it. The repossession of [appellee’s]
vehicle in October, 2008 is the direct result of Husband’s failure to
pay her support.
{¶24} We also stated in Dilley, supra:
{¶25} [A] trial court may also consider whether one party had engaged in
financial misconduct in determining whether an equal division of the
marital assets would be inequitable. When a finding of financial
misconduct has been made and there is no separate property, the
proper remedy is not to compensate the offended spouse with a
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distributive award but to compensate the offended spouse with a
greater award of marital property. Id. at ¶35, citing R.C.
3105.171(E)(4).
{¶26} On remand, although the trial court determined that appellant did not have
separate property from which to compensate appellee for his financial misconduct, it
awarded appellee—the offended spouse—a greater award of marital assets, i.e, the
Citigroup retirement benefit. Based on the foregoing, it was not error for the trial court
to award appellee a greater share of the marital assets based on a finding of appellant’s
financial misconduct.
{¶27} Appellant’s second assignment of error is without merit.
{¶28} The judgment of the Geauga County Court of Common Pleas is hereby
affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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