Jenkins v. Jenkins

[Cite as Jenkins v. Jenkins, 2021-Ohio-153.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
JENNIFER JENKINS, :
Plaintiff-Appellant/
Cross-Appellee, : Case No. 19CA19
vs. :
RICK JENKINS,
: DECISION AND JUDGMENT ENTRY
Defendant-Appellee/
Cross-Appellant. :
APPEARANCES:
John W. Judkins, Greenfield, Ohio, for appellant.
Adam S. Eliot, Columbus, Ohio, for appellee.
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 1-14-21
ABELE, J.
{¶ 1} This is an appeal from a Highland County Common Pleas Court judgment that
granted a divorce to Jennifer Jenkins, plaintiff below and appellant/cross-appellee (appellant
herein), and Rick Jenkins, defendant below and appellee/cross-appellant (appellee herein).
Appellant assigns two errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ARBITRARILY AND CAPRICIOUSLY
AWARDED APPELLEE THE EXCLUSIVE RIGHT TO
PURCHASE THE REAL PROPERTY FROM THE MARITAL
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ESTATE.”
SECOND ASSIGNMENT OF ERROR:
“THE ULTIMATE DIVISION OF PROPERTY AND DEBT IN
THIS MATTER WAS INEQUITABLE.”
{¶ 2} Appellee also raises two assignments of error:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY MISCHARACTERIZING,
INCORRECTLY VALUING, AND OFFSETTING AGAINST
OTHER PROPERTY APPELLEE/CROSS-APPELLANT’S OHIO
PERS BENEFITS.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN ORDERING
APPELLEE/CROSS-APPELLANT TO CONVERT HIS
DISABILITY BENEFIT TO A SURVIVORSHIP ANNUITY
RETIREMENT BENEFIT.”
{¶ 3} The parties married in December 1987. Throughout most of the marriage, appellee
was employed with the State of Ohio as a corrections officer and participated in the Ohio Public
Employees Retirement System (PERS). In 2009, appellee sustained an injury, stopped working
and began to receive disability benefits.
{¶ 4} In 2016, the parties purchased property located on State Route 72 in Leesburg.
The property totals 13.52 acres and contains a 3,520 square-foot home and a pole barn. The
parties used the home as their marital residence.
{¶ 5} The following year, the parties purchased a second residence, located on Chestnut
Road, for $175,000 using funds from a home equity line of credit attached to their marital
residence. The parties agreed that appellant’s sister and brother-in-law, the Taylors, could live
HIGHLAND, 19CA19 3
in the home and attempt to purchase it.
{¶ 6} On March 27, 2018, appellant filed a complaint for divorce. Appellee answered
and filed a counterclaim for divorce. At the final hearing, the parties presented a substantial
amount of evidence regarding their property, as well as appellee’s PERS benefits.
{¶ 7} With respect to the State Route 72 marital residence, the parties agreed to a
$400,000 value. Appellant continued to live in the marital residence through the final hearing
and wished to keep the property. Appellant also testified that the marital residence is subject to
a $263,000 home equity line of credit. Appellant stated that the parties used $175,000 from the
home equity line of credit to purchase the Chestnut Road property.
{¶ 8} Appellant explained that she and appellee purchased the Chestnut Road property
and intended to allow appellant’s sister and brother-in-law (the Taylors) to purchase the home.
Appellant stated that the parties agreed to give the Taylors through September or October 2019 to
obtain the means necessary to purchase the property for $175,000. Appellant asked the court to
award her the marital residence and to apply the proceeds from the sale of the Chestnut Road
property to the home equity line of credit so that appellant could refinance the home equity line
of credit into her name alone.
{¶ 9} David Kelley testified on appellant’s behalf as a pension evaluation expert witness.
Kelley explained that appellee receives “the original OPERS disability retirement.” Kelley
stated that under the original plan, appellee receives benefits based upon the accrued years of
service and the number of years needed to reach age 60. Kelley related that in appellee’s case,
appellee had 22 years of service and 17 years remaining until he reached the age of 60. Kelley
stated that the disability benefit system thus gave appellee 39 years of service credit. Kelly
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indicated that appellee’s initial monthly benefit was $2,800, and with cost-of-living adjustments
appellee now receives $3,556.73.
{¶ 10} Kelley stated that he believed that the court had two options to determine
appellee’s PERS benefits valuation. Kelley explained that because appellee receives his benefit
under the original plan, his benefit is considered a disability retirement benefit. Under the
revised plan, an individual in appellee’s position would not receive disability benefits upon
reaching the age of 65, but instead, would receive a retirement benefit. Kelley thus indicated
that in a situation that involves disability retirement benefits under the original plan, the court
would need to make a “philosophical distinction” as to when disability ends and retirement
begins.
{¶ 11} Kelley explained that he evaluated appellee’s PERS account present value as of
September 26, 2018. In seven years, once appellee reaches age 60, appellee would receive
$3,948.80, presuming a 2% COLA. Kelley testified that presuming the disability benefit
transmutes to a retirement benefit at age 60 means that the present value of the marital portion of
appellee’s PERS account is $596,855.97.
{¶ 12} Appellee did not present an expert witness to counter Kelley’s testimony, but
instead introduced an affidavit from Allen Foster, PERS Director of Benefits Administration.
Foster’s affidavit states that “assuming [appellee’s] disability benefit is terminated, assuming he
applies for retirement at earliest eligibility at age 60, assuming he has no further service as of
May 31, 2009 which is the last date on which OPERS received contributions for him, and
assuming he selects the Single Life Benefit, without the partial lump sum option payment
(PLOP), at retirement from this System, his gross monthly benefit is estimated to be $986.91
HIGHLAND, 19CA19 5
nothing remaining on his account payable to his beneficiary following his death.” Appellee
testified that this document indicated that if his disability terminated at age 60, then his monthly
benefit would be $986.91.
{¶ 13} After the parties presented evidence, appellant submitted a written closing
argument and asserted that she is entitled to $213,518.50 of appellee’s PERS account.
Appellant requested, however, that the court not award her $213,518.50 of appellee’s PERS
account, but instead award her the marital residence, the $175,000 that will be received upon the
sale of the Chestnut Road property, the parties’ vast antique collection, the tax refund, and the
sales proceeds remaining from a third property that the parties recently sold.
{¶ 14} Appellee did not submit a written closing argument, but instead submitted
proposed findings of fact and conclusions of law. Appellee proposed that the court find that
appellee’s retirement benefit at age 60 would be $986.91 per month and appellee is entitled to
retain all his PERS benefits without any distribution to appellant. Appellee asserted that his
monthly retirement benefit at age 60 ($986.91) represents approximately .2499 of his total
monthly disability retirement benefit at age 60 ($3,948.80). Appellee thus claimed that
appellant would be entitled to .2499 of the present value of the marital portion of his PERS
account ($596,855.97). Appellee proposed that appellant’s share would total $149,154.31. He
alleged that appellant’s share of his PERS account is less than the amount of appellant’s Social
Security offset and, thus, appellant is not entitled to any portion of his PERS account.
{¶ 15} On March 8, 2019, the magistrate entered a decision to grant the parties a divorce
and divide the property. The magistrate awarded appellant the SR 72 property, valued at
$400,000, and ordered appellant to remain responsible for the home equity line of credit. The
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magistrate noted that appellant claimed that the home equity line of credit had a balance around
$263,000, but the magistrate found that the evidence presented at trial demonstrated that
$260,282.40 was the balance owed. After accounting for the home equity line of credit,
appellant would have $139,707.60 equity in the home. The magistrate ordered appellant to
refinance the home equity line of credit so that it is in her name only, but if appellant is unable to
refinance the credit in her name only, the property shall be sold and appellant will receive all of
the proceeds.
{¶ 16} The magistrate also noted that neither party desired to keep the Chestnut Road
property and the Taylors should have the opportunity to purchase the property for $175,000, as
long as the sale closes by September 10, 2019. The magistrate further ordered that if the Taylors
do not purchase the property, the parties must sell the property and equally divide the proceeds.
{¶ 17} The magistrate also determined that appellant is entitled to a share of appellee’s
PERS account. The magistrate found that the fair market value of the marital portion of
appellee’s PERS account is $596,855.97. The magistrate also decided that surrendering the
marital retirement portion of appellee’s pension to the disability portion would not be equitable
given the parties’ 31-year marriage. The magistrate further noted that while receiving disability
benefits, appellee operated a cattle farm and engaged in other work.
{¶ 18} The magistrate determined that appellee’s monthly benefit at age 60 would be
$3,948.80 and the amount received once appellee reached age 60 would represent retirement
income, not disability income. The magistrate stated that once appellee reaches retirement age,
his “benefit payment no longer represents wages and it transmutes into retirement and both
parties should share in the awarded benefit.” The magistrate found that appellant would be
HIGHLAND, 19CA19 7
entitled to $213,518.80 after a set off of appellant’s social security amount. The magistrate
additionally reduced the amount to equalize the property division. Thus, the magistrate
determined that appellant is entitled to $160,773.40 of appellee’s PERS account. The magistrate
also ordered appellee “to elect this retirement component at age 60" and to “elect a
post-retirement joint and survivor annuity at retirement” in order to provide appellant “with
survivor benefits to the extent of her assigned interest.”
{¶ 19} The magistrate also divided the parties’ marital property as follows:
Appellee/Cross-Appella Appellant/Cross-Appelle
nt e
Yamaha Viking $7,500 11728 SR 72 $139,707.60
½ Chestnut Road ½ Chestnut Road
Antiques $32,295 Antiques $33,334
Personal Property $6,298 Personal Property $9,966
Hustler Mower $0 X Mark Mower $1,500
Large Stone $0 Marlin gun $0
Deer Chandelier, $7,600 2006 Mercedes $6,588
Mounts, and Targets
Honda Accord $0 2006 Honda Civic $2,990
2012 Chevy Truck $22,033 Social Security $169,818.97
Term Life Policy $0 Term Life Policy $0
Account #7960 $20,376.01 Account #8948 $10,554.82
Account #1442 $6,230.89 Account #4842 $3,182.69
½ 2018 tax return ½ 2018 tax return
OPERS $436,082.57 OPERS $160,773.40
IOLTA Funds $38,841.11 IOLTA FUNDS $38,841.10
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TOTAL $577,256.58 TOTAL $577,256.58
{¶ 20} Both parties filed objections to the magistrate’s decision.
{¶ 21} Appellee objected regarding his PERS benefits and argued that the evidence does
not show that his retirement benefit will be $3,948.80 at age 60. Instead, appellee asserted that
the value of his monthly retirement benefit at age 60 will be $986.91 and appellant is not entitled
to any interest in his PERS benefits.
{¶ 22} Appellee additionally objected to the magistrate’s decision that he convert his
PERS disability benefit into a retirement benefit with a joint survivorship election. Appellee
argued that the magistrate’s requirement that he convert his $3,948.80 per month PERS disability
benefit to a $986.91 retirement benefit will reduce the value of his benefit by approximately
75%.
{¶ 23} Appellant also objected to the magistrate’s division of marital property and debt
and alleged that the decision does not equitably divide the marital property and debt. She noted
that the magistrate awarded her the marital residence and the marital residence has a balance of
$260,292.40 for the home equity line of credit. Appellant pointed out that $175,000 of the
$260,292.40 owed on the home equity line of credit was used to purchase the Chestnut Road
property and awarding appellant the marital residence and debt associated with the home equity
line of credit is not an equitable division of the parties’ marital debt.
{¶ 24} Appellant also objected to the magistrate’s decision regarding the allocation of
proceeds from the Chestnut Road property once it is sold. Appellant asserted that the proceeds
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from the Chestnut Road property should be used to reduce the balance of the home equity line of
credit on the marital residence. Appellant again noted that the parties used $175,000 from the
home equity line of credit on the marital residence to purchase the Chestnut Road property.
Appellant claimed that “[i]t is fundamentally inequitable to saddle [appellant] with a significant
debt burden that is directly related to real property which will not be owned by [appellant].”
Appellant argued that requiring her to be responsible for paying the $175,000 used to purchase
the Chestnut Road property but awarding her only one-half the value of the property is
inequitable. Appellant asserted that it would be more equitable to award her the entire proceeds
realized from the eventual sale of the Chestnut Road property and to award appellee a greater
share of his PERS benefits.
{¶ 25} Appellant also objected to the magistrate’s decision that she attempt to refinance
the home equity line of credit in her name alone. She contended that financing “the debt into her
name alone is essentially an impossibility.” Appellant noted that she works at a furniture store,
has “limited income,” and it is not reasonable to think that she could finance the $260,000 debt
into her name alone. Appellant thus asserted that the magistrate’s decision will, in effect,
require her to sell the property. Appellant contended that the magistrate failed to take into
consideration the economic desirability of keeping the asset intact. Consequently, appellant
asked the trial court to award her a greater share of the parties’ liquid assets so that she could
either pay off the home equity line of credit or reduce the balance to an amount to allow her to
refinance the debt into her name alone.
{¶ 26} Appellee responded that appellant’s proposal would take nearly all of the parties’
liquid assets so that she could retain the $400,000 residence and appellant’s proposal is not
HIGHLAND, 19CA19 10
equitable. Appellee also asked the court to grant him the opportunity to buy the Chestnut Road
property if the Taylors are unable to do so.
{¶ 27} Appellee additionally asserted that if he had not received a disability benefit, he
would not receive $3,948.80 at age 60. He claimed that he “would not receive anything close to
the disability benefit if he were to receive a retirement benefit.” Appellee thus claimed that he
will continue to receive a disability benefit until his death, unless he is deemed to no longer be
disabled. If appellee is deemed to no longer be disabled, then he would qualify for an age and
service retirement benefit at age 60, but at a much lower rate.
{¶ 28} On September 4, 2019, the trial court overruled appellee’s objection regarding the
division of his PERS benefits. The court determined that the magistrate properly applied the law
and found that appellee’s disability benefit transmutes to retirement income at age 60. The court
also overruled appellee’s objection to the magistrate’s order that he convert his disability benefit
into a retirement benefit with a joint survivor election. The court determined that appellee’s
objection “is not supported by the evidence.” The court also overruled appellant’s objection to
the magistrate’s decision that the parties should equally divide the proceeds from the sale of the
Chestnut Road property. With respect to the Chestnut Road property, the court granted appellee
the opportunity to purchase the property for $175,000, if the Taylors do not purchase the
property. The court further ordered that appellant would receive one-half of the sale price.
{¶ 29} Later, the trial court entered a decree of divorce that largely adopted the
magistrate’s decision. The court ordered appellant to draft a Division of Property Order
(DOPO) to effectuate the division of her share of appellee’s pension ($160,773.40). The court
additionally stated that appellant could require appellee to obtain term life insurance until he
HIGHLAND, 19CA19 11
reaches age 60 in order to protect her interest in appellee’s pension. The court also ordered
appellee to “elect this retirement component at age 60" and “elect a post-retirement joint and
survivor annuity at retirement,” because doing so “will provide [appellant] with survivor benefits
to the extent of her assigned interest.”
{¶ 30} This appeal followed.
I
{¶ 31} Appellant’s assignments of error and appellee’s cross-assignments of error
challenge the trial court’s division of property. Before we discuss the assignments of error
individually, we first set forth the principles that govern our review of the trial court’s decision.
{¶ 32} Trial courts enjoy broad discretion when dividing marital property in a divorce
proceeding. E.g., Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989); Elliott
v. Elliott, 4th Dist. Ross No. 05CA2823, 2005–Ohio–5405, ¶ 17. Accordingly, an appellate
court will not reverse a trial court’s decision regarding the allocation of marital property absent
an abuse of that discretion. Elliott at ¶ 17. An “abuse of discretion” means that the court acted
in an “‘unreasonable, arbitrary, or unconscionable’” manner or employed “‘a view or action that
no conscientious judge could honestly have taken.’” State v. Kirkland, 140 Ohio St.3d 73,
2014–Ohio–1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375,
2008–Ohio–4493, 894 N.E.2d 671, ¶ 23. Moreover, a trial court generally abuses its discretion
when it fails to engage in a “‘sound reasoning process.’” State v. Morris, 132 Ohio St.3d 337,
2012–Ohio–2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Additionally,
“[a]buse-of-discretion review is deferential and does not permit an appellate court to simply
HIGHLAND, 19CA19 12
substitute its judgment for that of the trial court.” State v. Darmond, 135 Ohio St.3d 343,
2013–Ohio–966, 986 N.E.2d 971, ¶ 34. Moreover, a court that is reviewing whether a trial court
abused its discretion when dividing marital property must view the property division in its
entirety and consider the totality of the circumstances. Briganti v. Briganti, 9 Ohio St.3d 220,
222, 459 N.E.2d 896 (1984); accord Byers v. Byers, 4th Dist. Ross No. 09CA3124,
2010–Ohio–4424, ¶ 19; Elliott at ¶ 17.
{¶ 33} Although trial courts possess broad discretion to divide marital property, the Ohio
Revised Code requires trial courts to divide marital and separate property equitably between the
parties. R.C. 3105.171(B). In most cases, this requires the court to divide the marital property
equally. R.C. 3105.171(C)(1). If, however, an equal division would produce an inequitable
result, the court must divide the property equitably. Id. Additionally, “[a]lthough R.C. 3105.171
does not explicitly address the division of marital debt * * * marital debt is subject to allocation
as part of the property distribution and that debt allocation is guided by the same equitable factors
contained in R.C. 3105.171.” Polacheck v. Polacheck, 9th Dist. Summit No. 26551,
2013–Ohio–5788, ¶ 18; accord Machesky v. Machesky, 4th Dist. Ross No. 10CA3172,
2011–Ohio–862, ¶ 10, quoting Smith v. Emery–Smith, 11th Dist. Geauga No.2009–G–2941,
2010–Ohio–5302, ¶ 45 (stating that “‘[a] trial court must take into account marital debt when
dividing marital property’”); Elliott at ¶ 25; Samples v. Samples, 4th Dist. Washington No.
02CA21, 2002–Ohio–544. Thus, a trial court should equally divide marital debt, unless an
equal division would be inequitable.
{¶ 34} R.C. 3105.171(F) sets forth a list of factors that a trial court shall consider in order
to ensure an equitable division of the parties’ marital property:
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(1) The duration of the marriage;
(2) The assets and liabilities of the spouses;
(3) The desirability of awarding the family home, or the right to reside in
the family home for reasonable periods of time, to the spouse with custody of the
children of the marriage;
(4) The liquidity of the property to be distributed;
(5) The economic desirability of retaining intact an asset or an interest in
an asset;
(6) The tax consequences of the property division upon the respective
awards to be made to each spouse;
(7) The costs of sale, if it is necessary that an asset be sold to effectuate an
equitable distribution of property;
(8) Any division or disbursement of property made in a separation
agreement that was voluntarily entered into by the spouses;
(9) Any retirement benefits of the spouses, excluding the social security
benefits of a spouse except as may be relevant for purposes of dividing a public
pension;
(10) Any other factor that the court expressly finds to be relevant and
equitable.
{¶ 35} We again note that when an appellate court reviews a trial court’s property
division, the appellate court must not consider any items in isolation, but rather, must consider
the property division as a whole. Briganti, 9 Ohio St.3d at 222; accord Sinkovitz v. Sinkovitz,
4th Dist. Hocking No. 15CA18, 2016–Ohio–2861, ¶ 35. “The appropriate consideration is
whether the trial court’s disposition of these items resulted in a property division, which, viewed
in its entirety, was an abuse of discretion.” Briganti, 9 Ohio St.3d at 222.
II
A
{¶ 36} In her first assignment of error, appellant asserts that the trial court’s decision to
allow appellee the exclusive right to purchase the Chestnut Road property for $175,000 without
granting appellant a similar right constitutes an abuse of discretion. Appellant contends that the
trial court’s decision devalues the marital estate by not allowing for a maximum sale price of the
HIGHLAND, 19CA19 14
real estate and that it “arbitrarily prohibits Appellant from purchasing the real property through
the grant of an exclusive right to Appellee.” Appellant further notes that granting appellee the
exclusive right to purchase the property contradicts the court’s finding that neither party wished
to keep the real estate.
{¶ 37} Appellee argues that the trial court did not abuse its discretion by giving him the
right to purchase the Chestnut Road property. Appellee observes that the court awarded
appellant the larger, former marital home and that the court’s decision to give him the option to
purchase the other property is fair and equitable. Appellee also points out that he informed the
trial court in his objections to the magistrate’s decision that he “would be willing to take the
Chestnut Road property” and pay appellant her share of the equity.
{¶ 38} Once again, we emphasize that appellate courts that review a property division
must consider the property division in its entirety and not consider any one aspect of the property
division in isolation. Sokolowski v. Sokolowski, 7th Dist. No. 16 JE 0028, 2017-Ohio-9216, 101
N.E.3d 1105, 2017 WL 6550616, ¶ 27, quoting Hawkins v. Hawkins, 2d Dist. No. 2016-CA-26,
2017-Ohio-4201, ¶ 24, 2017 WL 2492786 (stating that “‘a reviewing court should not review
discrete aspects of the property division out of the context of the entire award, but should
consider the distribution within the context of the entire award’”). “In determining whether the
trial court abused its discretion, a reviewing court should not examine the valuation and division
of a particular marital asset or liability in isolation.” Harris v. Harris, 6th Dist. Lucas No.
L-02-1369, 2004-Ohio-683, ¶ 19, citing Briganti v. Briganti, 9 Ohio St.3d 220, 222, 459 N.E.2d
896 (1984). Rather, a reviewing court must “view the property division under the totality of the
circumstances to determine whether the property division reflects an unreasonable, arbitrary or
HIGHLAND, 19CA19 15
unconscionable attitude on the part of the domestic relations court.” Id., citing Briganti at 222.
{¶ 39} In the case sub judice, we do not agree with appellant that the trial court abused its
discretion by granting appellee the right to purchase the Chestnut Road property for $175,000.
The trial court could have rationally determined that giving each party the opportunity to
purchase one of the two residential properties acquired during the marriage was fair and equitable
given the totality of the property division.
{¶ 40} Moreover, appellant’s argument considers the trial court’s decision to grant
appellee the right to purchase the Chestnut Road property for $175,000 completely out of context
of the entire property division. If considered in isolation, as appellant argues, the court’s
decision to grant appellee the right to purchase the property, if appellant’s sister and
brother-in-law do not, may appear to be unreasonable or arbitrary. However, considering the
court’s decision in light of the totality of its property division, the court’s decision is not
unreasonable or arbitrary. The trial court granted appellant the marital residence, valued at
$400,000, and gave her the option to refinance the existing home equity line of credit so as to be
in her name alone. Appellant did not give the trial court any indication that she wished to have
the opportunity to purchase the Chestnut Road property in addition to, or in lieu of, the marital
residence. Instead, appellant continually maintained the position that she wanted to keep the
marital residence along with all of the money realized upon a sale of the Chestnut Road property.
Thus, the trial court’s decision to grant appellee the right to purchase the Chestnut Road
property is not unreasonable, when considered in light of the entire property division. The court
detailed its findings in a lengthy decision that exceeded eighty pages. The court gave each party
a near-equal share of the net marital assets. The court awarded appellant the property with a
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higher overall value and afforded appellee the opportunity to obtain the second property as long
as he paid appellant her one-half share of the equity. Under these circumstances, we are unable
to conclude that the trial court abused its discretion.
{¶ 41} Accordingly, based upon the foregoing reasons, we overrule appellant’s first
assignment of error.
B
{¶ 42} In her second assignment of error, appellant asserts that the trial court abused its
discretion when it divided the parties’ marital property and debt. Appellant argues that the court
did not equitably divide the parties’ martial property and debt and did not consider “the economic
desirability of keeping assets in tact [sic] in lieu of division, the costs of sale, and the costs of the
assumption of debt.”
{¶ 43} Appellant points out that the trial court ordered appellant to be responsible for the
home equity line of credit attached to the marital residence and the parties used $175,000 of the
home equity line of credit to purchase the Chestnut Road property. Appellant contends that
fairness dictates that all proceeds from the sale of the Chestnut Road property be used to pay the
home equity line of credit, rather than requiring her to be responsible for the entire $175,000.
Appellant additionally contends that the court’s decision to require her to be responsible for the
entire home equity line of credit is inequitable. Appellant alleges that her income is not
sufficient to qualify for a loan to refinance the home equity line of credit and that she will be
forced to sell the marital residence.
{¶ 44} Thus, appellant argues that “the most equitable division of the real property would
be to order the sale of the Chestnut Road property * * * [and] to apply the entire proceeds of such
HIGHLAND, 19CA19 17
sale to the equity line of credit and to grant to Appellee his entire interest in the OPERS
pension/disability account to compensate for this division.”
{¶ 45} Once again, we note that trial courts enjoy broad discretion when equitably
dividing marital property. In the case sub judice, we do not believe that the trial court abused its
discretion by requiring appellant to be responsible for the entire debt attached to the marital
residence. Other courts have considered similar arguments when one party in a divorce takes an
encumbered marital asset and determined that a trial court does not abuse its discretion by
ordering the party awarded the encumbered asset to assume the liability attached to it. Downs v.
Downs, 4th Dist. Ross No. 07CA2998, 2008-Ohio-3702, 2008 WL 2853675, ¶ 11 (determining
that trial court did not abuse its discretion by requiring husband to be responsible for mortgage
on marital residence when he retained the asset); Wolfe v. Wolfe, 4th Dist. Scioto No. 97CA2526,
1998 WL 472618 (July 30, 1998) (concluding that requiring husband to be responsible for debts
secured by the marital residence was “perfectly logical” considering husband’s desire to keep
marital residence); see Harrison v. Harrison, 11th Dist. Ashtabula No. 2004-A-0003,
2005-Ohio-6293, 2005 WL 3150255, ¶ 19 (rejecting husband’s argument that spousal support
award too high given his responsibility for paying debt associated with the mortgage and home
equity loan and noting that if husband “believe[d] the costs associated with living in the marital
residence are too high, he could sell the house, pay off the mortgage, and find less expensive
housing”).
{¶ 46} Likewise, in the case sub judice we do not believe that the trial court abused its
discretion by requiring appellant to be responsible for the debt attached to the marital residence.
Here, appellant made it clear that she wanted to keep the marital residence. The trial court
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recognized that appellant may have difficulty attempting to refinance the home equity line of
credit into her name alone in view of her limited income. The court noted, however, that it
awarded appellant a sizeable share of liquid assets in order to help her reduce the balance on the
home equity line of credit so that she may be more likely to qualify for financing. The court
awarded appellant approximately $38,000 in cash from the IOLTA funds along with one-half the
proceeds from the sale of the Chestnut Road property. The court entered orders so that appellant
would receive the proceeds of the Chestnut Road sale before she would be required to refinance
the home equity line of credit on the marital residence. Thus, it appears that the court took steps
to attempt to preserve appellant’s ability to remain in the marital residence.
{¶ 47} We therefore do not agree with appellant that the trial court abused its discretion
when it divided the parties’ marital property and required appellant to be responsible for the
home equity line of credit. Instead, the trial court’s decision shows that it acted reasonably by
giving appellant time, as well as liquid assets, in order to attempt to refinance the home equity
line of credit so that appellant could continue to live in the home.
{¶ 48} Further, we do not believe that appellant’s “arguments regarding the different
ways the trial court could have structured” the property division establishes an abuse of
discretion. Zimmerman v. Zimmerman, 12th Dist. Butler No. CA2014-06-127, 2015-Ohio-1700,
2015 WL 1976430, ¶ 63. Moreover, as appellee observes, appellant’s proposal would give her
nearly all of the parties’ liquid assets. The trial court could have reasonably determined that
attempting to award each party a sizeable share of the liquid assets would be more equitable than
to award nearly all liquid assets to appellant. Thus, while we recognize that the trial court could
have structured the property division in a number of ways, we cannot conclude that the trial court
HIGHLAND, 19CA19 19
abused its discretion by dividing the parties’ marital property in the manner that it did.
{¶ 49} Accordingly, based upon the foregoing reasons, we overrule appellant’s second
assignment of error.
III
A
{¶ 50} In his first cross-assignment of error, appellee asserts that the trial court incorrectly
characterized, valued, and offset his PERS benefits. Appellee first claims that the court
incorrectly characterized the entire amount of his PERS benefits received upon retirement age as
marital property. Appellee contends that if he continued to receive disability retirement benefits
after age 60, then only $986.91 of the monthly benefit represents retirement income. Appellee
thus claims that the remaining amount represents disability income and remains his separate
property.
{¶ 51} Appellee next asserts that the trial court incorrectly valued his pension. Appellee
contends that the retirement portion of his benefit, $986.91, represents 24.99% of his disability
benefit. Thus, appellant would only be entitled to 24.99% of the present value of the marital
portion of his pension, or $149,154.31. Appellee asserts that because the amount is less than the
present value of the marital portion of appellant’s social security retirement benefits, the court
should have awarded appellee the entire value of his pension without any offset.
{¶ 52} Appellee further disputes the trial court’s decision to offset appellant’s share of the
pension against the property division. Appellee contends that his pension benefit “is not
guaranteed” and that the trial court, therefore, should have entered a Division of Property Order
rather than offsetting the amount from the property division.
HIGHLAND, 19CA19 20
{¶ 53} We initially note that the classification of property as marital or separate generally
constitutes a question of fact. See Wigal v. Wigal, 4th Dist. Washington Nos. 06CA70 and
07CA10, 2008–Ohio–747, at ¶ 35. Thus, appellate courts ordinarily review the classification of
property as marital or separate under a manifest-weight-of-the evidence standard and will affirm
if some competent, credible evidence supports the classification. See id.{¶ 54} “Marital property” includes retirement benefits of the spouses. R.C.
3105.171(A)(3)(a)(i). It does not, however, include any “separate property,” which includes
“[c]ompensation to a spouse for the spouse’s personal injury.” R.C. 3105.171(A)(3)(b) and
(6)(a)(vi). Disability benefits constitute compensation received for personal injury. Bakle v.
Bakle, 2d Dist. Greene No.2009 CA 9, 2009–Ohio–6003, at ¶ 13, citing Ockunzzi v. Ockunzzi, 8th
Dist. Cuyahoga No. 86785, 2006–Ohio–5741, at ¶ 64; see, also, Arkley v. Arkley, 7th Dist.
Jefferson No. 03 JE 10, 2003–Ohio–7021, at ¶ 14, citing Bauser v. Bauser, 118 Ohio App.3d
831, 835, 694 N.E.2d 136 (2nd Dist. 1997). “[D]isability benefits * * * are a form of wage
continuation designed to compensate the recipient for wages that he would otherwise receive but
for the disability.” Elsass v. Elsass, 2nd Dist. Greene Nos. 93–CA–0005, 93–CA–0016, *5 (Dec.
29, 1993). Thus, disability benefits do not constitute marital property unless “‘they are accepted
by the retiree in lieu of retirement pay.’” Id., quoting Principles and Guidelines for the Division
of Property in Actions for Divorce in Ohio (Mar.1981), 54 Ohio Bar 491. When disability
benefits are accepted in lieu of retirement pay, “they are marital property to the extent that the
disability benefit includes the retirement pay value.” Messer v. Messer, 2nd Dist. Darke No.
1570, 2002–Ohio–4196, at ¶ 8. “At that time, the benefits should be considered a marital asset
to be given a value based upon the benefits accrued as of the date set for valuation of marital
HIGHLAND, 19CA19 21
property.” Mueller v. Mueller, 2nd Dist. Montgomery No. 20847, 2005-Ohio-5915, 2005 WL
2978947, ¶ 14, citing Potter v. Potter, 9th Dist. Wayne No. 01CA0033, 2001–Ohio–1770 (“While
Mrs. Potter’s disability benefits are not a marital asset, the benefits certainly represent either a
retirement benefit or a payment in lieu of old-age retirement pay as of Mrs. Potter’s retirement
date”); Motter v. Motter, 3rd Dist. Wyandot No. 16–99–14, 2000–Ohio–1714 (explaining that
until husband “reached the age to be eligible for retirement, his disability benefits were wage
replacement and therefore his separate property,” but at the first retirement date set forth in his
plan, the gross amount of the benefit “shall be divided and paid equally to the parties as any
marital asset.”).
{¶ 55} “* * * [T]o be entitled to the marital portion of retirement benefits in this
situation, the non-participant spouse has the burden to prove that the disability benefits are being
received in lieu of retirement benefits or that the retirement benefits the participant spouse would
otherwise be entitled to receive are being reduced by the receipt of disability benefits.” Young v.
Young, 2nd Dist. Clark Nos. 08CA59 and 08CA61, 2009-Ohio-3504, 2009 WL 2096291, ¶ 29.
{¶ 56} In Mann v. Mann, 4th Dist. Athens No. 09CA38, 2011-Ohio-1646, 2011 WL
1233325, this court upheld the trial court’s finding that the wife’s disability benefit transmuted
into a retirement benefit. At the time of the parties’ divorce, the wife had been receiving a
$3,458.98 monthly disability allowance. The wife’s expert witness testified that the wife “is
projected to receive a monthly pension benefit of $902 at age 60, of which 98.6% is marital
property.” Id. at ¶ 4. The expert stated that the present value of the wife’s pension is $167,002,
using a life expectancy of 85, and $88,074, using a life expectancy of 71.
{¶ 57} The husband’s expert witness testified that the present value of the wife’s pension
HIGHLAND, 19CA19 22
was $430,996.83. The husband’s expert further stated that the wife’s disability income was
“replacement income until it transmutes into retirement income.” Id.
{¶ 58} The trial court subsequently entered a divorce decree and credited the husband’s
expert’s testimony that the wife’s disability income was “replacement income until it transmutes
into retirement income.” Id. at ¶ 29. The wife appealed and asserted that the trial court erred
by determining that her separate-property disability-benefit transmutes to a marital-property
retirement-benefit when she reaches retirement age. We, however, rejected the wife’s argument.
We noted that case authority supported the trial court’s finding and that the trial court was
entitled to credit the husband’s expert witness’s testimony. We therefore upheld the trial court’s
finding that the wife’s disability income is separate-property replacement income until it
transmutes into marital-property retirement income.
{¶ 59} Similarly, in the case sub judice appellant presented evidence and testimony from
an expert witness, Kelley, who stated that appellee’s disability benefit transmutes into a
retirement benefit at age 60. Kelly recognized that experts do not agree on this issue, however.
Kelly nevertheless explained the reasoning behind his opinion, and the trial court obviously
found a rational basis to credit Kelly’s opinion that appellee’s disability benefit transmutes into a
retirement benefit at age 60.
{¶ 60} We further note that appellant submitted into evidence a chapter from a book that
Kelley co-authored, Dividing Pensions in Divorce: Negotiating and Drafting Safe Settlements
with QDROS and Present Values. Section 9.02[B][1] discusses the transmutation argument as
follows:
The argument that the full disability pension beginning at the age of
HIGHLAND, 19CA19 23
retirement is the retirement component is based on two basic arguments. First,
once the retirement age is reached the payments no longer represent wages, but
instead transmute into the retirement plan. How many 65-year-old firefighters
are there? The fact that the plan may have a more generous benefit than the
accrued pension is just a windfall that should be shared by both parties because it
was awarded during the marriage. Second, the windfall nature of the benefit has
been tacitly acknowledged by many public pensions in moving to less generous
disability programs. Shouldn’t both parties share in an especially generous
award, given during the marriage that no longer represents income replacement?
Gary A. Shulman, David I. Kelley, and Daniel E. Kelley, Dividing Pensions in Divorce:
Negotiating and Drafting Safe Settlements with QDROS and Present Values, Section 9.02[B][1]
(3d Ed. 2019).
{¶ 61} Additionally, the trial court entered a detailed decision that outlined the reasons
for its finding that part of appellee’s PERS pension is marital property. The court explained as
follows:
The Court finds that [appellee] had to give up retirement pension to obtain
disability payments and the amount of the marital retirement pension surrendered
to the plan still exists as a marital asset within the disability pension. In essence
the Court must distinguish between the income replacement function of a
disability pension and the retirement component of the pension. Further the
Court is considering the amount of retirement [appellee] is giving up to get this
disability. It is not fair or equitable to say that [appellee] can give up all of his
retirement asset to get something that becomes separate property.
The parties herein were married for 31 years. [Appellee] earned 22.667
years of service credit at the prison of which 21.5 years was during the marriage.
So, 84.85% of his benefit was earned during the marriage. [Appellee’s] disability
benefit through OPERS is through the Original Plan wherein the participant was
not required to convert his disability benefit to retirement at age 60 (earliest
possible retirement age). Under the Revised plan it is very clear that Rick
Jenkins would go off disability at age 65 and begin to receive the service pension.
So, the revised plan is clear that disability ends, and retirement begins.
The Original Disability Plan that [appellee] is actually under does not
mandate that the disability end. Further, under the Original Disability Plan, the
pension that [appellee] would receive at retirement age, and for life, thereafter,
may be far greater than the earned retirement benefit at the time of the disability
because service is calculated assuming that [appellee] actually worked to age 60.
HIGHLAND, 19CA19 24
The Court further finds that under the Original plan the projected retirement age is
60.
{¶ 62} The court also emphasized that its decision to award appellant a share of
appellee’s PERS benefits was equitable considering the parties’ lengthy marriage. The court
stated:
The Court finds i[t] i[s] not fair and equitable in a 31-year marriage to
surrender the marital retirement portion of the pension to the disability pension
especially since [appellee] has been able to perform operations in a cattle farm
without any help * * * and perform various other activities and work duties for
other people.
{¶ 63} Here, the trial court had two viable options from which to choose, and we see
nothing in the record that requires us to disturb the court’s finding that appellee’s disability
benefit transmutes into a retirement benefit at age 60.
{¶ 64} Appellee next asserts that the trial court incorrectly valued his pension. Appellee
contends that the retirement portion of his benefit, $986.91, represents 24.99% of his disability
benefit. He thus claims that appellant would only be entitled to 24.99% of the present value of
the marital portion of his pension, or $149,154.31. Appellee then asserts that because that
amount is less than the present value of the marital portion of appellant’s social security
retirement benefits, the court should have awarded appellee the entire value of his pension
without any offset.
{¶ 65} We initially observe that the valuation of marital assets involves a factual inquiry.
Wright v. Wright, 4th Dist. Hocking No. 94CA02, 1994 WL 649271, *4, overruled on other
grounds by Liming v. Liming, 4th Dist. Athens No. 05CA3, 2005-Ohio-2228, 2005 WL 1056263.
Accordingly, reviewing courts will not disturb a trial court’s valuation of a marital asset unless
HIGHLAND, 19CA19 25
the valuation is against the manifest weight of the evidence. Baum v. Perry-Baum, 6th Dist.
Wood No. WD-18-085, 2019-Ohio-3923, 2019 WL 4733119, ¶ 15.
{¶ 66} In the case at bar, the trial court credited Kelley’s testimony regarding the
valuation of appellee’s pension. The court noted that Kelley valued the marital portion of the
pension at $596,855.97, based upon appellee choosing the retirement option at age 60, and that
Kelley did “not apply the frozen benefit earned at the time of disability as discussed above.”
The record does not contain anything to suggest that the court’s valuation of the martial portion
of the pension is against the manifest weight of the evidence.
{¶ 67} Appellee next disputes the trial court’s decision to offset appellant’s share of the
pension against the property division. Appellee contends that his pension benefit “is not
guaranteed” and that the trial court, therefore, should have entered a Division of Property Order
rather than offsetting the amount from the property division.
{¶ 68} In Hoyt, the Ohio Supreme Court explained the options available when a trial
court considers the parties’ retirement assets:
[The court] must obtain a result which will preserve the asset so that each
party can procure the most benefit. Thus, the trial court must have evidence
before it detailing the intricacies and terms of the particular plan. Then, the trial
court must make an equitable determination based upon the parties’ overall
financial situation, whether a direct division, or some other alternative, would be
most appropriate to preserve the pension or retirement asset so that each party
may derive the most benefit. There are several alternatives to a direct * * *
division, such as an immediate offset of a current assignment of proportionate
shares, with either a current distribution or a deferred distribution. A deferred
distribution may consist of either a current assignment or a division of the asset at
such time that the plan directs distribution based upon the employee's eligibility.
Id. at 181, 559 N.E.2d 1292.
{¶ 69} The Hoyt court further noted that a trial court may tailor its decision regarding an
HIGHLAND, 19CA19 26
equitable division of retirement benefits according to whether the benefits are matured or
unmatured. When the benefits are unmatured then the trial court:
may reserve jurisdiction and either determine the parties’ proportionate shares at
the time of the divorce or determine proportionality when the benefits become
vested and matured. 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. The 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.
When a trial court decides that a pension or retirement asset shall be paid
by deferred distribution, it has created a situation where the parties’ affairs are not
concluded. The non-employed spouse may be placed in a position where he or
she must monitor the fund, which may also create problems for the plan
administrator. Although this alternative divides the risk between the parties that
the benefits will fail to vest or mature, as an example, there is nothing to prevent
an employed spouse, for whatever reason, from quitting his or her employment
and becoming employed elsewhere. Likewise, the nonemployed spouse bears the
risk that the employed spouse will die and the expected benefits, before being
vested or matured, will terminate.”
Hoyt at 182, 559 N.E.2d 1292.
{¶ 70} The Hoyt court recommended that trial courts endeavor to disentangle the parties’
financial relationship. The court explained that trial courts should:
“strive to resolve the issues between the parties so as to disassociate the parties
from one another or at least minimize their economic partnership. Certainly,
some circumstances may warrant joint ownership after a divorce and situations
may evolve where joint decisions must be made. In these matters, trial courts
must exercise their fullest discretion. But, realistically, due to the nature of
divorce, the circumstances usually are not conducive to joint decision making by
the parties. Therefore, some effort should be made to disentangle the parties’
economic affairs.”
Id. at 182–183, 559 N.E.2d 1292.
{¶ 71} The Hoyt court additionally suggested that trial courts “attempt to ascertain the
optimum value the pension or retirement benefit has to the parties as a couple, based upon the
HIGHLAND, 19CA19 27
nature and terms of the plan. The trial court should structure a division which will best preserve
the fund and procure the most benefit to each party.” Id. at 183, 559 N.E.2d 1292.
{¶ 72} Ultimately, the Hoyt court determined that using the present value of $439.74 on
the date of journalization of the divorce decree would be “unfair and inequitable” and would not
“comport with the notion that this asset, the most significant marital asset of these parties, be
divided to ensure each party the most benefit.” Id. at 183–184, 559 N.E.2d 1292. The court
thus remanded the matter to the trial court to redistribute the husband’s retirement benefits
according to its guidelines.
{¶ 73} Accordingly, under Hoyt:
[A] trial court may divide a pension fund using the ‘present value method’
or the ‘deferred distribution method.’ [Id. at 181]. Under the ‘present value
method,’ the court first determines the amount the non-employee spouse is to
receive. Secondly, the court: (1) orders that amount withdrawn from the pension
fund; or (2) offsets that amount with installment payments or other marital
property. Baldwin’s Ohio Domestic Relations Law (1990), 274, Section
25.05(E)(3). Under the ‘deferred distribution method,’ the trial court orders that
a percentage of the future benefits be paid from the pension fund to the
non-employee spouse if and when the pension matures.
Newell v. White, 4th Dist. Pickaway App. No. 05CA27, 2006–Ohio–637, at ¶ 7.
{¶ 74} We additionally observe that “‘ * * * flat rules have no place in determining a
property division.’” Hoyt, 53 Ohio St.3d at 180, quoting Cherry v. Cherry, 66 Ohio St.2d 348,
356, 421 N.E.2d 1293 (1981). Instead, trial courts “must have the flexibility to make an
equitable decision based upon the circumstances of the case, the status of the parties, the nature,
terms and conditions of the pension plan, and the reasonableness of the result.” Id.{¶ 75} In the case sub judice, the trial court first determined the present-value of
appellee’s pension. Based upon Kelley’s testimony, the court concluded that the present value
HIGHLAND, 19CA19 28
of the marital portion of appellee’s pension is $596,855.97. The trial court’s decision awards
appellant $160,773.40 from appellee’s PERS account. The court arrived at this figure after
subtracting appellant’s social-security-account value from her one-half share of the marital
portion of appellee’s pension, and then further reducing the amount to equalize the property
distribution. The court then calculated the amount of appellant’s share of appellee’s pension as
a percentage. The court divided the amount appellant is entitled to receive ($160,773.40) by the
value of the marital portion of the pension ($596,855.97) to reach a percentage of 26.9%. The
court then determined that the amount appellant is entitled to receive equates to 25.5% of the
entire present value of appellee’s pension ($629,253.06). The court concluded its discussion of
determining appellant’s share of appellee’s pension by ordering appellant to “initiate the drafting
of a Division of Property Order (DOPO) pursuant to the above division.” Appellee’s assertion,
that the trial court should have effected the division of his pension using a DOPO, seems to be
belied by the record. It appears that the trial court did, in fact, effect a division of appellee’s
pension by means of a DOPO.
{¶ 76} To the extent that appellee argues that the trial court should have ordered the
DOPO to state that appellant would only receive the marital portion of the retirement benefit that
will be paid once appellee reaches age 60, our decision otherwise disposes of this issue. The
trial court had various tools at its disposal to effect an equitable property division. Appellee has
not shown that the trial court abused its discretion when choosing the method and means to effect
an equitable property division.
{¶ 77} Appellee also suggests that the trial court’s decision needs clarification. To the
extent that the parties believe that the trial court’s decision is ambiguous, they may request the
HIGHLAND, 19CA19 29
trial court to clarify its decree. See generally Cameron v. Cameron, 10th Dist. Franklin No.
12AP-349, 2012-Ohio-6258, 2012 WL 6738669, ¶ 11, quoting Robins v. Robins, 10th Dist. No.
04AP–1152, 2005–Ohio–4969, ¶ 13 (noting that when parties “‘dispute, in good faith, the
meaning of a provision in a decree, or if the provision is ambiguous, the trial court has the power
to hear the matter, to resolve the dispute, and to enforce the decree’”); Pierron v. Pierron, 4th
Dist. Scioto No. 07CA3153, 2008-Ohio-1286, 2008 WL 746948, ¶ 7 (noting that trial court
retains jurisdiction to clarify and construe its original property division so as to effectuate its
judgment).
{¶ 78} Accordingly, based upon the foregoing reasons, we overrule appellee’s first-cross
assignment of error.
B
{¶ 79} In his second cross-assignment of error, appellee contends that the trial court erred
by ordering him to convert his disability benefit to a survivorship annuity retirement benefit.
Appellee asserts that his disability benefit is projected to be $3,948.80 per month at age 60, and
that if he were to receive retirement benefits rather than disability, his monthly benefit would be
$986.91.
{¶ 80} Ohio courts have upheld trial court orders that require the participating spouse,
upon retirement, to elect a joint and survivor annuity to protect the nonparticiping spouse’s
interest in a pension if the participating spouse dies prematurely. Thompson v. Thompson, 196
Ohio App.3d 764, 2011-Ohio-6286, 965 N.E.2d 377, ¶ 19 (10th Dist.). A joint and survivor
annuity “provides for payments to a designated beneficiary for the lifetime of the beneficiary.”
Id. at ¶ 48. A joint and survivor annuity thus ensures that the participating spouse’s death “will
HIGHLAND, 19CA19 30
not cut off the flow of [the nonparticipating spouse’s] portion of the pension benefits” if the
nonparticipating spouse outlives the participant spouse. Id.; Purdy v. Purdy, 12th Dist. No.
CA2002–11–089, 2003-Ohio-7214, 2003 WL 23095483, ¶ 32 (finding no abuse of discretion in
requiring the election of a joint and survivor annuity because “[s]uch a division ensures that the
benefits [the nonmember spouse] receives under the plan will not cease if she outlives [the
member spouse]”); Gatie v. Gatie, 9th Dist. Summit No. 18156, 1997 WL 537667 (concluding
that trial court did not abuse its discretion by ordering the husband to provide a joint and
survivorship annuity for the wife when parties had been married for thirty years, among other
things).
{¶ 81} In the case at bar, we are unable to conclude that the trial court abused its
discretion by requiring appellee to “elect a post-retirement joint and survivor annuity at
retirement.” The trial court could have reasonably determined that this type of annuity will
protect appellant’s right to receive benefits if appellee predeceases her.
{¶ 82} We also note that Kelley’s report that the court admitted into evidence contains a
provision entitled “Survivorship Warning.” It states:
Please note that, there is no pre-retirement survivorship under the state
pension plans in Ohio. This means that if the participant dies or becomes
disabled before retirement, the former spouse may not receive any benefits from
the plan. We feel the best way to address this is to require a term life insurance
policy that would remain in place until the participant retires. The participant
should also be ordered to elect a post-retirement joint and survivor annuity, at
retirement, which provides the former spouse with survivor benefits to the extent
of their assigned interest. Also, it is essential that the plan be notified of the
order to elect survivorship. This is done by sending a certified copy of the
Judgment Entry to the attention of the legal department at the plan.
Thus, the record contains evidence to support the trial court’s decision.
HIGHLAND, 19CA19 31
{¶ 83} Appellee additionally suggests that the trial court’s decision forces him to choose a
retirement benefit at age 60, which will then reduce his monthly benefit to $986.91––-a 75%
reduction in the amount of his benefit.
{¶ 84} We first observe that appellee has not pointed to the place in the trial court’s
decision where the court agreed with his assertion that taking a retirement-only benefit at age 60
means that appellee would receive only $986.91 per month. Appellee presented evidence to this
effect, but the record does not indicate that the trial court credited appellee’s evidence.
{¶ 85} Second, the trial court’s decision states that at age 60, appellee’s monthly benefit
of $3,948.80 represents “the retirement component.” The totality of the trial court’s decision
shows that it found that at age 60, appellee’s $3,948.80 disability benefit transmutes into a
retirement benefit, and not that the court found that of the $3,948.80 that appellee would receive,
only $986.91 represents the retirement benefit. To the extent that appellee believes that the trial
court’s decision is unclear on this issue, he may seek further clarification in accordance with
Cameron and Pierron.
{¶ 86} Accordingly, based upon the foregoing reasons, we overrule appellee’s second
cross-assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
HIGHLAND, 19CA19 32
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellant/cross-appellee and
appellee/cross-appellant shall equally share the 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 Highland County
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
HIGHLAND, 19CA19 33
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.