Karabogias v. Zoltanski

[Cite as Karabogias v. Zoltanski, 2022-Ohio-3548.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CONSTANTINE KARABOGIAS, :
Plaintiff-Appellee, :
No. 111062
v. :
JOAN ZOLTANSKI, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 6, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-16-364810
Appearances:
John D. Zoller and B. Nicole Bush, for appellee.
Stafford Law Co., LPA, Joseph G. Stafford, and Nicole A.
Cruz, for appellant.
MICHELLE J. SHEEHAN, P.J.:
Plaintiff-appellee Constantine Karabogias (“husband”) and defendant-
appellant Joan Zoltanski (“wife”) were married in 2000. In 2016, husband filed a
complaint for divorce. Wife is an executive at University Hospitals, and there are
significant assets in her retirement accounts, including a 401(K) account, a 403(b)
account, a 457(f) Supplemental Executive Retirement Plan (“SERP”) account, and
her pension with University Hospitals. This appeal concerns her pension only. The
trial court awarded husband 50% of wife’s vested accrued benefit as of July 23, 2019,
although it found the marriage to have terminated on January 8, 2018, the first day
of the divorce trial. The trial court subsequently issued a Qualified Domestic
Relations Order (“QDRO”) regarding the pension. Wife now appeals from that order
and argues the trial court abused its discretion in improperly modifying the
judgment entry of divorce by using a date for the pension that varies from the date
of the termination of the marriage.
Our review of pertinent case law authority indicates that it is within the
trial court’s discretion to select a date for distribution purposes regarding each
marital asset in order to achieve an equitable division of marital property. We also
find no merit to wife’s claim that the QDRO adopted by the trial court improperly
modified the terms of the judgment entry of divorce. Accordingly, we affirm the
QDRO issued by the trial court.
Background
The trial for the divorce complaint commenced on January 8, 2018.
It was eventually concluded on May 22, 2019. On October 31, 2019, the trial court
issued a judgment entry of divorce, which provided a very lengthy analysis and
reasoning for its division of marital property, award of child support, and a decision
not to award spousal support to husband.
The trial court found the duration of the marriage to be from August 5,
2000 (the day the parties were married), to January 8, 2018, which is the date the
divorce trial commenced and is the presumptive date of the termination of the
marriage. Notably, immediately after determining the duration of the marriage, the
court stated that each item of marital property “will not be valued as of January 8,
2018.” The court observed that neither party provided balances as of January 8,
2018, knowing that it would be the presumed date for the end of the financial
marriage and that evidence submitted by the parties did not coincide with
January 8, 2018. The trial court specifically noted that it “has discretion to
determine the date of valuation which date may vary from asset to asset,” citing
Berish v. Berish, 69 Ohio St.2d 318, 432 N.E.2d 183 (1982), and that, under the facts
of this case, it would be equitable to exercise flexibility as to the valuation dates,
citing Bartley v. Bartley, 3d Dist. Seneca No. 13-92-7, 1992 Ohio App. LEXIS 6570(Dec. 29, 1992). The court found the exercise of flexibility especially pertinent for
wife’s retirement assets where the values of the assets had been provided by wife.
The judgment entry of divorce includes a chart of wife’s retirement
accounts with a valuation date of July 23, 2019. It lists her (1) University Hospitals
401(K) account (valued at $18,642.49 as of July 23, 2019), (2) University Hospitals
403(b) account, valued at $541,374.89 as of July 23, 2019, (3) “457(f) SERP” account
(valued at $119,357.10 as of July 23, 2019), and (4) University Hospitals Retirement
Plan (“pension”) (valued at $37,012.88 as of July 23, 2019). The court noted it was
using wife’s own documentation to determine the value of the accounts, explaining
that during the trial in May 2018, it had asked wife to provide the valuation of the
accounts through 2017, yet she only submitted documents regarding the accounts
from 2019. The judgment entry of divorce awarded husband “one half” of her
pension “as the equalizing sum for the [parties’] assets” and ordered husband to
prepare the QDRO.
After the trial court issued the divorce decree on October 31, 2019,
husband’s counsel filed a motion to adopt a QDRO regarding wife’s pension, which
assigned to husband 50% of wife’s “vested accrued benefit” as of October 31, 2019.
Wife filed an opposition, arguing that the date should be January 8, 2018, and that
the proposed QDRO improperly modified the judgment entry of divorce. The trial
court adopted the QDRO proposed by husband. Wife then appealed from the trial
court’s order in 8th Dist. Cuyahoga No. 110353. During the pendency of the appeal,
husband’s counsel submitted to wife a revised QDRO using a “vested accrued
benefit” date of July 23, 2019, which is the date the trial court used in valuating wife’s
retirement assets in the divorce decree based on the valuation information she
provided. Husband then moved this court for a limited remand to the trial court for
the purpose of allowing the trial court to issue a corrected QDRO using July 23,
2019, as the vested accrued benefit date for the pension. This court granted the
limited remand requested. Wife then filed an opposition with the trial court to the
revised QDRO, arguing the employment of the date of July 23, 2019, in the QDRO
was inconsistent with the terms of the divorce decree.
Upon remand, on October 29, 2021, the trial court vacated the prior
QDRO utilizing the date of October 31, 2019, and adopted the amended QDRO,
which utilized the date of July 23, 2019, for husband’s vested accrued benefit portion
of the pension. The trial court explained that although it had found the duration of
the marriage to be from August 5, 2000, to January 8, 2018, its judgment entry of
divorce clearly stated that these dates would not be used for valuing the marital
property, because the court was not provided with valuation information as of
January 8, 2018. The court quoted its own statement in the judgment entry of
divorce that the evidence of valuation did not coincide with January 8, 2018, and it
would be equitable for the court to exercise flexibility as to the valuation dates.
The trial court noted further that wife did not provide valuation of her
pension other than a statement dated July 23, 2019, which was the only evidence
the court could rely on. The court stressed that the employment of the date of
July 23, 2019, for wife’s pension “is correct as to what was used to reach a fair and
equitable distribution of the assets of this marriage” and that it “went through all of
the parties’ marital assets and found that the division of property that it ordered
constituted an equal division of the property.” The court expressly found that “it is
appropriate and consistent with the terms of the Judgment Entry of Decree that
[husband] is awarded 50% of [wife’s] vested accrued benefit as of July 23, 2019.”
Wife now appeals from the trial court’s October 29, 2021 judgment
adopting the revised QDRO, raising the following assignment of error:
I. The trial court erred as a matter of law and abused its discretion by
issuing a QDRO which is inconsistent with the terms and conditions of
the October 31, 2019 entry of divorce.
Wife claims that the trial court abused its discretion in awarding
husband 50% of wife’s vested accrued benefit as of July 23, 2019, which she claims
constituted a modification of the judgment entry of divorce. The question on appeal
is whether the trial court abused its discretion in awarding husband wife’s vested
accrued benefit in the pension as of July 23, 2019, a date different from the
termination date of the marriage, to achieve equalization of the marital property.
Law
Upon granting a divorce, the trial court is required to divide and
distribute the marital assets in an equitable manner. R.C. 3105.171(B). Regarding
the date to be used for valuating the marital assets, R.C. 3105.171(A)(2) provides the
following:
(2) “During the marriage” means whichever of the following is
applicable:
(a) Except as provided in division (A)(2)(b) of this section, the period
of time from the date of the marriage through the date of the final
hearing in an action for divorce or in an action for legal separation;
(b) If the court determines that the use of either or both of the dates
specified in division (A)(2)(a) of this section would be inequitable, the
court may select dates that it considers equitable in determining
marital property. If the court selects dates that it considers equitable
in determining marital property, “during the marriage” means the
period of time between those dates selected and specified by the court.
(Emphasis added.)
The phrase “during the marriage” is statutorily presumed to run from
the date of the marriage through the date of the final hearing.
R.C. 3105.171(A)(2)(a). The final hearing date is the presumptive termination date
of the marriage. Bowen v. Bowen, 132 Ohio App.3d 616, 630, 725 N.E.2d 1165 (9th
Dist.1999). More specifically, the presumptive date for the termination of a
marriage is the first day of trial pursuant to R.C. 3105.171(A)(2). Carreker v.
Carreker, 8th Dist. Cuyahoga No. 93313, 2010-Ohio-3411, ¶ 19.
However, as this court has recognized, “‘[i]n order to achieve an
equitable distribution of property, the trial court must be allowed to use alternative
valuation dates where reasonable under the particular facts and circumstances of
the case.’” Abernethy v. Abernethy, 8th Dist. Cuyahoga No. 80406, 2002-Ohio-
4193, ¶ 19, quoting Glick v. Glick, 133 Ohio App.3d 821, 828, 729 N.E.2d 1244 (8th
Dist.1999). See also Keating v. Keating, 8th Dist. Cuyahoga No. 90611, 2008-Ohio-
5345, ¶ 23; Weller v. Weller, 11th Dist. Geauga Nos. 2006-G-2723 and 2006-G-
2724, 2007-Ohio-4964, ¶ 29 (while generally the trial court should consistently
apply the same set of dates when valuing marital property, circumstances of some
cases may require the use of different dates for valuation purposes).
Furthermore, “[t]he choice of a date as of which assets available for
equitable distribution should be identified and valued must be dictated largely by
pragmatic considerations.” Berish, 69 Ohio St.2d at 319, 432 N.E.2d 183. “The trial
court has discretion to determine the date of valuation, and this date may vary from
asset to asset.” Wei v. Jie Shen, 12th Dist. Butler No. CA2002-12-300, 2003-Ohio-
6253, ¶ 21, citing Berish. The trial court, however, “must adequately explain its
reasons for choosing a different valuation date for certain marital assets.” Coble v.
Gilanyi, 11th Dist. Trumbull No. 97-T-0196, 1999 Ohio App. LEXIS 6267, 9 (Dec. 23,
1999).
“‘“The determination as to when to apply a valuation date other than
the actual date of divorce is within the discretion of the trial court and cannot be
disturbed on appeal absent a demonstration of an abuse of discretion.”’” Abernethy
at ¶ 19, quoting Glick at 828, quoting Gullia v. Gullia, 93 Ohio App.3d 653, 666, 639
N.E.2d 822 (8th Dist.1994) See also Hissa v. Hissa, 8th Dist. Cuyahoga Nos. 93575
and 93606, 2010-Ohio-3087, ¶ 17 (as long as the trial court adequately explains its
reasoning for choosing the date it does for valuing property, a reviewing court will
give deference to its decision); Pearlstein v. Pearlstein, 11th Dist. Geauga No. 2008-
G-2837, 2009-Ohio-2191, ¶ 87-88 (the trial court may use a different valuation date
for certain marital assets provided it adequately explains the reasons); Kramer v.
Kramer, 8th Dist. Cuyahoga No. 74166, 1999 Ohio App. LEXIS 3491, 7 (July 29,
1999) (the trial court did not abuse its discretion when it explained the deviation in
valuation dates, which were selected to promote equity and were logically related to
the facts of the case). While the trial court should consistently apply the same set of
dates when evaluating all marital property, the trial court has the discretion to use
different valuation dates where the valuation at a certain date was the only evidence
before the trial court. Homme v. Homme, 12th Dist. Butler No. CA2010-04-093,
2010-Ohio-6080, ¶ 62.
Analysis
Here, the judgment entry of divorce includes a chart of the values of
wife’s retirement accounts as of July 23, 2019, based on the documents provided by
wife. When addressing the termination date of the marriage, the court found the
marriage to terminate on January 8, 2018, the first date of the final hearing, but
specifically stated that “each item of marital property will not be valued as of
January 8, 2018,” because wife had not provided valuation of her retirement assets
as of the trial date, even though the court had requested it. The court also stated
that it could consider the lack of temporary support to husband in calculating the
valuation date. In addition, the court made ten findings in the judgment entry of
divorce to support its division of all marital assets. Regarding the couple’s
retirement benefits, the trial court found that “[husband] has depleted all of his
retirement assets, while [wife] has most of hers intact with the exception of a loan
for the children’s private school tuition.” Regarding wife’s pension, the court relied
on the only valuation in evidence; after a lengthy analysis, the trial court awarded
husband “one half” of wife’s pension (valued at $37,012.88 as of July 23, 2019, based
on documentation submitted by wife) without expressly stating the award was one
half of wife’s pension as of July 23, 2019. Subsequently, on October 29, 2021, the
trial court issued a judgment entry stating that the date of July 23, 2019, was
correctly used to reach a fair and equitable distribution of the marital assets.
“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. C-020629,
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). 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, 3019 — for the division of wife’s pension because wife
failed to submit evidence of value as of the date of the trial, and the trial court also
affirmed that the utilization of the alternative date would achieve an equitable
division.1
For her claim that the trial court modified the judgment entry of
divorce, wife focuses on the trial court’s use of the words “marital portion” when it
stated in the judgment that husband was awarded the “marital portion” of wife’s
retirement assets: $210,433.24 of the University Hospitals 403(b) and “one half” of
1 In Rief v. Rief, 2d Dist. Miami No. 06-CA-47, 2008-Ohio-266, ¶ 10-14, the Second
District considered the issue waived if the valuation evidence was not offered. In that
case, the husband claimed the marital assets should be valued as of the date of the parties’
separation. The Second District concluded that because the husband failed to offer
sufficient evidence showing the value of the assets as of the separation date, he waived
any error in the trial court’s adoption of different values based on evidence that was
offered.
At oral argument in the instant case, wife emphasized that documentation regarding the
valuation of the pension was not necessary because the pension is a “defined benefits
plan.” Wife’s claim is not supported by the case law authority. “[A]n assigned value for
pension funds is necessary for adequate appellate review” and “[a] court’s decision to
simply divide the marital portion of a pension equally between the two parties, without
designating a specific dollar value to the marital portion of the pension, represents an
abuse of discretion.” Derrit v. Derrit, 163 Ohio App.3d 52, 2005-Ohio-4777, 836 N.E.2d
39, ¶ 40 (11th Dist.). See also Willis v. Willis, 19 Ohio App.3d 45, 48, 482 N.E.2d 1274(11th Dist.1984).
University Hospitals Pension. She argues that by using the term “marital portion,”
the court awarded husband only the benefits earned before January 8, 2019, the date
of the termination of the marriage. The choice of the term “marital portion” in the
court’s statement does not have the significance claimed by wife. She cites
R.C. 3105.171 in support of her claim, but that statute only defines “marital
property,” which is all property currently owned by either or both spouses, including
the retirement benefits, that was acquired by either or both spouses during the
marriage. R.C. 3105.171(A)(3)(a)(i). Furthermore, regarding what “during the
marriage” means, the statute specifically permits the trial court to “select dates that
it considers equitable in determining marital property.” R.C. 3105.171(A)(2)(b).
Wife’s claim in reliance of the purported significance of the trial court’s use of the
term “marital portion” is not well taken.2
The courts have long recognized that the trial court has broad
discretion in determining the date of valuation to arrive at an equitable division of
marital assets. The record here reflects that the trial court adequately explained its
reasons for utilizing an alternative valuation date to achieve equity. Accordingly, we
find no abuse of discretion. The sole assignment of error is without merit. The trial
court’s judgment is affirmed.
2While we recognize that the trial court employed a date for husband’s entitlement to
wife’s pension beyond the termination date of the marriage, we note R.C. 3105.171(A)(2)
allows an alternative date and does not expressly prohibit the use of such a date to achieve
an equitable distribution. See, e.g., Metz v. Metz, 1st Dist. Hamilton No. C-050463, 2007-
Ohio-549, ¶ 19 (the trial court is within its discretion to include income earned beyond
the termination date of the marriage for an equitable distribution of marital property).
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, domestic relations division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
LISA B. FORBES, J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR