[Cite as Noble v. Noble, 2019-Ohio-5372.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

WESLEY NOBLE                                           C.A. No.       19CA011472

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
NAOMI NOBLE                                            COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellee                                       CASE No.   17DU083033

                                 DECISION AND JOURNAL ENTRY

Dated: December 30, 2019



        HENSAL, Judge.

        {¶1}    Wesley Noble appeals a judgment entry of divorce of the Lorain County Court of

Common Pleas, Domestic Relations Division. For the following reasons, this Court affirms in

part and reverses in part.

                                                  I.

        {¶2}    The Nobles divorced after 40 years of marriage. During the marriage, they

adopted one of their grandchildren, who was still a minor at the time of the divorce. They owned

one property in Ohio and one in Alabama. Wife had not worked in many years because of

medical conditions. Husband had worked at a steel plant since before the marriage but had

retired in recent years. At the time of the divorce, Wife was living in the marital home in Ohio

and Husband was living in a dwelling that was on land that his family owned in Alabama.

        {¶3}    The trial court generally ordered an equal division of the parties’ assets. It found,

however, that Husband was unable to completely explain how he had spent over $225,000 from
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his investment account. It also noted that Husband failed to produce any information about one

of his bank accounts. It, therefore, did not require Wife to pay Husband for his one-half interest

in the marital home. For spousal support, instead of requiring Husband to make payments to

Wife, it awarded her one-half of Husband’s pre-marital pension benefits.          It also ordered

Husband to pay all of Wife’s attorney fees. Husband has appealed, assigning three errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE
       DIVISION OF THE HUSBAND’S SOCIAL SECURITY BENEFITS.

       {¶4}    Husband argues that the trial court incorrectly ordered him to prepare a qualified

domestic relations order (QDRO) “that awards one-half of the entire portion of his social security

benefits to [Wife] * * * offset by [Wife’s] social security benefits.” The United States Code

provides that Social Security benefits “shall not * * * be subject to execution, levy, attachment,

garnishment, or other legal process * * *.” 42 U.S.C. 407(a). In light of that language, the Ohio

Supreme Court has recognized that “Social Security benefits * * * are not subject to division in a

divorce proceeding.” Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, ¶ 8. Instead, they

may only “be considered by the trial court under the catchall category as a relevant and equitable

factor in making an equitable distribution.” Id. at ¶ 11; see R.C. 3105.171(F)(10).

       {¶5}    Upon review of the record, we conclude that the trial court improperly ordered

Husband to prepare a QDRO that would award part of his Social Security benefits to Wife.

Husband’s first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING WIFE
       APPROXIMATELY $180,000 MORE IN NET MARITAL ASSETS AND
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       AWARDING WIFE ONE-HALF                    OF    THE     ENTIRE      PORTION       OF
       HUSBAND’S TWO PENSIONS.

       {¶6}    Husband next argues that the trial court abused its discretion when it divided the

marital property. “In any divorce action, the starting point for a trial court’s analysis is an equal

division of marital assets.” Id. at ¶ 5; R.C. 3105.171(C)(1). If an equal division would be

inequitable, however, the court may not divide the marital property equally but instead must

divide it in a manner that it determines to be equitable, considering all of the relevant factors

including the ones set forth in Section 3105.171(F). Neville at ¶ 5. Because a trial court “has

broad discretion in the allocation of marital assets, its judgment will not be disturbed absent an

abuse of discretion.” Id.

       {¶7}    The parties stipulated that the marital home was worth $241,270 and that the

Alabama property was worth $275,000. The court found that the value of Husband’s dwelling

was $38,910, and that the value of their three vehicles were $12,000, $16,000, and $20,000. The

court awarded Wife the Ohio property, one-half of the value of the Alabama property, and the

vehicle worth $12,000.

       {¶8}    Husband argues that the property division improperly awarded Wife

approximately $180,000 more in assets than him. If the court had divided those assets equally,

he would have received another approximately $90,000.

       {¶9}    The trial court awarded Wife more of the marital assets because Husband could

not entirely explain where he had spent $225,911 from his investment account over the last ten

years. According to Husband, he used a lot of the funds on his dwelling and the shared Alabama

property. He testified that he spent $30,000 on the shared land, $50,000 on Amish laborers, less

than $10,000 on materials and electrical work, $5,625 on gravel, $15,000 on concrete, and

$16,000 on his dwelling. He estimated that, in total, he spent $175,000 to $200,000 on the
                                                  4


shared Alabama property. He admitted that he did not only use funds from the investment

account on the properties, but that it was in combination with his income from his employer. He

did not estimate what percentage of his expenditures came from the investment account versus

his employment income.

       {¶10} Husband did not have documentation to support his testimony about his

expenditures. He was also unable to explain where he had spent the investment account funds

that he withdrew after he completed construction of the shared Alabama property and purchased

his dwelling. Husband also failed to provide Wife or the court with any records of a bank

account that he maintained in Alabama. In light of Husband’s inability to account for his use of

all of the investment account funds and his failure to comply with Wife’s discovery requests, the

Court concluded that it was equitable to award Wife all of the equity in the marital home.

       {¶11} Husband argues that the trial court did not consider that he did not receive all of

the funds from the investment account because some were withheld to be applied to the parties’

taxes. It does not appear from the record, however, that Husband made this argument to the trial

court. Husband also argues that the court punished him for not keeping a detailed accounting of

his construction expenditures over the years. He does not acknowledge, however, that the

court’s decision was driven in part by his failure to provide all of his current financial records.

       {¶12} Husband also argues that the trial court incorrectly awarded Wife half of all of his

pension benefits, including half of what he earned before the marriage. He notes that the parties

had stipulated that he would preserve the pre-marital portion of his pensions by utilizing the

coverture approach.

       {¶13} The trial court did not award Wife one-half of Husband’s pre-marital pension

benefits as part of its property distribution. Instead, it awarded them to Wife as spousal support.
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Husband has not developed an argument challenging the trial court’s award of part of his pre-

marital pension benefits as spousal support and we decline to develop an argument for him.

Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998).

       {¶14} Husband’s only argument regarding the trial court’s spousal support award is that

the court’s order is impossible to perform because it awards Wife half of his pre-marital benefits

yet retains jurisdiction of the issue of spousal support. According to Husband, it will not be

possible to modify the division of his pre-marital pension benefits if Wife cohabitates or

remarries. He does not explain, however, why the court could not issue an order returning the

property to Husband. Moreover, there might be some other life change, such as Husband or

Wife returning to work, that could necessitate a modification of the spousal support order beyond

a modification of the assignment of Husband’s pre-marital pension benefits.

       {¶15} Upon review of the record, we conclude that Husband has not established that the

trial court exercised improper discretion when it divided the marital property. Husband’s second

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
       ATTORNEY FEES TO THE WIFE.

       {¶16} Husband also argues that the trial court incorrectly ordered him to pay all of

Wife’s attorney fees. Revised Code Section 3105.73(A) provides that, “[i]n an action for divorce

* * * a court may award all or part of reasonable attorney’s fees * * * to either party if the court

finds the award equitable.” “In determining whether an award is equitable, the court may

consider the parties’ marital assets and income, any award of temporary spousal support, the

conduct of the parties, and any other relevant factors the court deems appropriate.” Id. “A trial

court has broad discretion in considering an award of attorney’s fees, and an award will only be
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reversed upon an abuse of the trial court's discretion.” Schoch v. Schoch, 9th Dist. Lorain No.

18CA011382, 2019-Ohio-1394, ¶ 10.

       {¶17} The trial court noted that Husband’s pension and social security benefits had been

divided equally except for the offset of Wife’s social security benefits. It noted that Wife had

received the marital home, that Husband had received his dwelling, and that the parties had split

the shared Alabama property. It noted that Husband had received two vehicles and Wife one

vehicle. It found that Husband had failed to make two of his spousal support payments and had

only partially paid two others. It found that Husband had liquidated his entire investment

account, but that it was before the divorce action and did not violate a restraining order. It found

that Husband had failed to comply with discovery by not providing documentation of one of his

Alabama bank accounts. Upon review of Wife’s attorney’s time sheet, it found that Wife’s

attorney had spent “a substantial amount of time engaging in discovery due to the plaintiff’s non-

compliance.” In consideration of all of those factors, it awarded Wife all of her attorney fees,

which it determined were reasonable and necessary.

       {¶18} Husband argues that the attorney fee award was inequitable because Wife

received a total of $181,360 more in assets, even before the award of fees. Husband notes that

he did not violate a court order in liquidating his investment account and that the mere fact he

was unable to prove where all the funds were spent does not warrant the award of attorney fees.

Husband also argues that the itemization of legal services provided by Wife’s attorney does not

support the court’s finding that her attorney had to spend “a substantial amount of time” because

of Husband’s discovery failures.

       {¶19} A review of Wife’s attorney’s time sheet reveals that he spent less than 10 hours

addressing discovery issues. The trial court found that Husband spent some of his investment
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account funds improving the shared Alabama property but did not specify how much.                 If

Husband spent only twenty percent of the funds on the shared property and kept the remainder

for himself, it would roughly equalize the property distribution. We, therefore, conclude that,

under the particular facts of this case, the trial court exercised improper discretion when it

awarded Wife all of her attorney fees. Husband’s third assignment of error is sustained.

                                                III.

       {¶20} Husband’s first and third assignments of error are sustained. Husband’s second

assignment of error is overruled. The judgment of the Lorain County Court of Common Pleas,

Domestic Relations Division is affirmed in part and reversed in part, and this matter is remanded

for additional proceedings consistent with this decision.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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       Costs taxed to equally to both parties.




                                                      JENNIFER HENSAL
                                                      FOR THE COURT




TEODOSIO, P. J.
CONCURS.

CALLAHAN, J.
CONCURRING IN PART AND DISSENTING IN PART.

       {¶21} I agree with the majority opinion with the exception of the majority’s decision

not to consider the merits of Husband’s argument that the trial court improperly awarded Wife

one-half of the premarital portion of his pension, and I respectfully dissent.

       {¶22} As the basis for declining to address this argument, the majority states that “The

trial court did not award Wife one-half of Husband’s pre[]marital pension benefits as part of its

property distribution. Instead, it awarded them to Wife as spousal support.” But that is very

point that Husband’s argument is making. The trial court framed most of its analysis in terms of

spousal support.    Indeed, under R.C. 3105.18(C), the trial court was obligated to consider

Husband’s present payments from the retirement accounts, which are in payout status, as income

for purposes of determining his support obligation. At the end of the day, however, it appears

that Husband is correct: the trial court did not award support to wife based on this analysis, but

awarded her an ownership interest in husband’s separate property. This amounted to a property

division, not spousal support, as evidenced by the fact that the trial court ultimately ordered the

division of each pension plan by QDRO, saying, “The Court hereby divides the martial assets
                                                 9


and debts. The plaintiff and the defendant are each hereby awarded the following, free and clear

from any claim/interest by the other party[.]”

       {¶23} Under these circumstances, it would make little sense for Husband to “develop[]

an argument challenging the trial court’s award of part of his pre[]marital pension benefits as

spousal support.” Husband has challenged the trial court’s decision to characterize this property

division as spousal support, and this Court should address that argument on the merits.

       {¶24} I respectfully dissent.


APPEARANCES:

WAYNE R. NICOL, Attorney at Law, for Appellant.

JOHN ZALIC, Attorney at Law, for Appellee.
