[Cite as Sheterom v. Sheterom, 2018-Ohio-3377.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                          JUDGES:
JAMES A. SHETEROM                                 :       Hon. John W. Wise, P.J.
                                                  :       Hon. W. Scott Gwin, J.
                        Plaintiff-Appellee        :       Hon. Earle E. Wise, J.
                                                  :
-vs-                                              :
                                                  :       Case No. 17 CAF 12 0080
CHERYL A. SHETEROM                                :
                                                  :
                    Defendant-Appellant           :       OPINION




CHARACTER OF PROCEEDING:                              Civil appeal from the Delaware County
                                                      Court of Common Pleas, Domestic
                                                      Relations Division, Case No. 15 DR B 09
                                                      0360

JUDGMENT:                                             Affirmed in part; Reversed and Remanded
                                                      in part




DATE OF JUDGMENT ENTRY:                               August 22, 2018




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

KENNETH MOLNAR                                        CRAIG TRENEFF
21 Middle Street                                      ANDREA COZZA
P.O. Box 248                                          155 Commerce Park Drive, Suite 5
Galena, OH 43021                                      Westerville, OH 43082
[Cite as Sheterom v. Sheterom, 2018-Ohio-3377.]


Gwin, J.

       {¶1}     Appellant appeals the November 29, 2017 divorce decree of the Delaware

County Court of Common Pleas, Domestic Relations Division.

                                        Facts & Procedural History

       {¶2}     Appellant Cheryl Sheterom and appellee James Sheterom were married on

November 19, 1996. The parties had no children together. In the summer of 2015,

appellee left the marital home. Appellee then lived with his daughter and appellant

continued to reside in the marital home.          Appellee filed a complaint for divorce on

September 16, 2015. Appellant filed her answer and counterclaim for divorce on October

12, 2015.     Pursuant to the temporary orders issued in the case, appellee paid the

mortgage, line of credit, taxes, and insurance for the marital residence during the

pendency of the case.

       {¶3}     The magistrate conducted a trial on May 16 and May 17 of 2017. Appellee

testified he is seventy-seven years old and is currently living with his daughter. He left

the marital home in 2015. Appellee retired on January 1, 2005. Appellee receives pension

income from Pfizer of $44,742 per year and Social Security of $28,427 per year. Appellee

stated the pension evaluators placed a present value on his retirement account of

$434,609.37, with $133,309.47 of it being the marital portion subject to equitable

distribution. Further, that the marital present value of his Social Security is $102,669.13.

It is appellee’s understanding that the pension evaluators placed a valuation on

appellant’s OPERS pension of $725,565.39, the marital portion being $589,049.54.

Appellee testified that since he left the marital home, he paid the mortgage, line of credit,

taxes, and insurance for the marital home.
Delaware County, Case No. 17 CAF 12 0080                                                  3


      {¶4}    Appellant testified she is currently sixty-nine years old and is employed at

Columbus Public Health. Appellant’s yearly pay is $80,541 and she currently receives

Social Security spousal benefits in the amount of $1,191 per month based on appellee’s

receipt of his own Social Security. Appellant stated she has her appointment to start

retirement on May 22, but it is not her retirement date. Appellant testified her retirement

date could be anywhere from two months to six months from that date and thus her

retirement date is unknown.      Appellant stated that, once she retires, her OPERS

retirement will impact what she can collect from Social Security. Appellant confirmed the

pension evaluators put a present value on her OPERS retirement account of $589,049.54

in martial funds and $725,565.39 overall.

      {¶5}    Appellant testified that, since appellee left the marital home, she is paying

the utilities, and appellee is paying the mortgage, line of credit, taxes, and insurance for

the marital home. Appellant stated that her daughter lives with her in the marital home

and is not paying rent. Appellant’s daughter has lived in the marital home for six years.

Appellant testified appellee should continue to pay the mortgage, line of credit, taxes, and

insurance because she does not have the money to pay. Appellant stated that she has

unused vacation hours that she will receive a check for when she retires.

      {¶6}    The parties each testified to credit card debt and each testified extensively

as to the personal property items in the marital home.

      {¶7}    The magistrate issued a decision on July 25, 2017. The parties were unable

to agree on how to divide over 200 items of personal property, so the magistrate divided

those items. The magistrate further: ordered the parties to alternate who pays the

mortgage on the marital home; ordered that no adult, other than the parties, shall live in
Delaware County, Case No. 17 CAF 12 0080                                                     4


the marital home without paying reasonable rent based on a “room” figure according to

the realtor’s recommendation; ordered the parties should split the rent; and ordered

appellant’s OPERS retirement to be divided via a division of property order with appellee

as the alternate payee to receive $227,870.03 plus additions or deletions. Additionally,

the magistrate considered the statutory factors and determined an award of spousal

support was not appropriate for the time being, but that an award of spousal support in

the amount of $800 per month is appropriate and equitable upon appellant’s retirement.

      {¶8}     Appellant filed objections to the magistrate’s decision on August 8, 2017

and appellee filed objections to the magistrate’s decision on August 31, 2017.

      {¶9}    The trial court issued a judgment entry on October 24, 2017. The trial court,

in pertinent part: overruled appellant’s objection to the magistrate’s finding that the parties

each bear the cost of paying the mortgage while the house is listed for sale; modified the

magistrate’s order, finding it more equitable to require appellant to pay the mortgage and

utilities while she occupies the martial residence because she earns more than appellee

and has been living in the marital residence rent-free since 2015, but also finding if

appellant moves out of the marital home, then each party should take turns paying the

mortgage and utility payments; overruling appellant’s objection to the magistrate’s finding

that the parties shall require any other adult residing in the marital residence prior to its

sale pay reasonable rent to the parties; overruled appellant’s objection to the magistrate’s

finding that appellant’s OPERS retirement be divided with appellee as an alternate payee

with appellee receiving $227,870.03 plus additions and/or deletions that would be

attributed from August 24, 2016 to the date of the distribution of the account; overruled

appellant’s objection arguing that the magistrate erred by utilizing present values of
Delaware County, Case No. 17 CAF 12 0080                                                   5


appellee’s marital Pfizer pension and appellant’s marital OPERS account to divide these

retirement assets instead of treating the assets as income streams; overruled appellant’s

objection arguing the magistrate erred by failing to consider appellee’s social security

benefits when dividing the retirement accounts; and sustained appellant’s objection to the

magistrate’s decision and stated it would include an order that appellee is not to change

the beneficiary on his Pfizer joint and survivor benefit.

      {¶10}   Additionally, the trial court found the magistrate erred by awarding appellant

spousal support upon her retirement. The trial court found that rather than hold a new

hearing on the division of the OPERS account, it would reserve jurisdiction as to spousal

support and the parties could present further information at that time. The trial court noted

it is possible that appellee will have a much higher income than appellant upon her

retirement and thus appellant, upon her retirement, should be given the opportunity to

show an award of spousal support is fair, reasonable, and equitable. The trial court issued

a divorce decree on November 29, 2017.

      {¶11}   Appellant appeals the November 29, 2017 divorce decree and judgment

entry of the Delaware County Court of Common Pleas, Domestic Relations Division, and

assigns the following as error:

      {¶12}   “I. THE COURT ERRED AND ABUSED ITS DISCRETION IN ITS

TREATMENT        OF    DEFENDANT-APPELLANT’S                OHIO   PUBLIC     EMPLOYEES

RETIREMENT        SYSTEM       BENEFITS       AND     PLAINTIFF-APPELLEE’S          PFIZER

RETIREMENT BENEFITS AS PROPERTY VERSUS INCOME FOR SPOUSAL

SUPPORT PURPOSES GIVEN THAT PLAINTIFF-APPELLEE IS RETIRED AND IN PAY

STATUS AND DEFENDANT-APPELLANT’S RETIREMENT IS IMMINENT.
Delaware County, Case No. 17 CAF 12 0080                                6


     {¶13}   “II. THE COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING

PLAINTIFF-APPELLEE A PORTION OF DEFENDANT-APPELLANT’S OHIO PUBLIC

EMPLOYEES RETIREMENT SYSTEM ACCOUNT.

     {¶14}   “III. THE COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT BY FAILING TO TAKE INTO ACCOUNT PLAINTIFF-APPELLEE’S

MARITAL      SOCIAL   SECURITY   BENEFITS   AND   OFFSET   THEM   AGAINST

DEFENDANT-APPELLANT’S MARTIAL OHIO PUBLIC EMPLOYEES RETIREMENT

SYSTEM BENEFITS PURSUANT TO OHIO REVISED CODE SECTION 3105.17(F)(9).

     {¶15}   “IV. THE COURT ERRED IN FAILING TO ORDER PLAINITIFF-APPELLEE

NOT CHANGE THE BENEFICIARY ON HIS PFIZER JOINT AND SURVIVOR BENEFIT.

     {¶16}   “V. THE COURT ERRED IN AWARDING THAT ONLY REASONABLE,

INEXPENSIVE REPAIRS NOT TO EXCEED $500 ARE TO BE DONE TO THE MARITAL

RESIDENCE FOR SALE AND ONLY AT THE RECOMMENDATION OF THE REALTOR

AND IN NOT ADDRESSING REPAIR COSTS FOR THE MARITAL RESIDENCE IN

EXCESS OF $500.

     {¶17}   “VI. THE COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT IN ORDERING THAT SHE BE RESPONSIBLE FOR THE PAYMENT OF

THE MORTGAGE (PRINCIPAL AND INTEREST), LINE OF CREDIT, TAXES, AND

INSURANCE FOR THE MARITAL RESIDENCE SO LONG AS SHE RESIDES IN THE

RESIDENCE WHILE PLAINTIFF-APPELLEE SHARES IN THE REDUCION OF

PRINCIPAL     DURING    THE   PERIOD   DEFENDANT-APPELLANT    PAYS   THE

EXPENSES.
Delaware County, Case No. 17 CAF 12 0080                                                 7


      {¶18}   “VII. THE COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT IN AWARDING ONE-HALF OF RENT RECEIVED FROM A THIRD PARTY

FOR RENTAL OF A ROOM IN THE MARITAL RESIDENCE TO PLAINTIFF-APPELLEE

DURING THE PERIOD DEFENDANT-APPELLANT IS PAYING FOR THE ENTIRETY

OF THE MORTGAGE, CREDIT LINE, TAXES, INSURANCE AND UTILITIES FOR THE

MARITAL RESIDENCE.”

                                             I. & II.

      {¶19}   In her first and second assignments of error, appellant contends the trial

court erred and abused its discretion in its treatment of appellant’s OPERS benefits and

appellee’s Pfizer retirement benefits as property versus income for spousal support

purposes and contends the trial court erred and abused its discretion in awarding appellee

a portion of appellant’s OPERS account in the division of property.

      {¶20}   Specifically, appellant argues that, in equalizing the present values of the

marital OPERS and Pfizer retirements through an award to appellee of a portion of

appellant’s OPERS, this division of property causes financial strain on appellant,

exacerbates the significant disparity of the income of the parties created by appellant’s

retirement, creates the need for more spousal support, and does not produce an equitable

result.

      {¶21}   An appellate court generally reviews the overall appropriateness of the trial

court’s property division in divorce proceedings under an abuse of discretion standard.

Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). In order to find an abuse

of discretion, we must determine that the trial court’s decision was unreasonable,
Delaware County, Case No. 17 CAF 12 0080                                                       8

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 975 (1983).

      {¶22}   In order to make an equitable division of property, the trial court should first

determine the value of the marital assets. Rollins v. Rollins, 5th Dist. Delaware No. 14

CAF 04 0018, 2014-Ohio-5441. Specifically, “when considering a fair and equitable

distribution of pension or retirement benefits in a divorce, the trial court must apply its

discretion based upon the circumstances of the case, the status of the parties, the nature,

terms, and conditions of the pension or retirement plan, and the reasonableness of the

result.” Hoyt v. Hoyt, 53 Ohio St.3d 177, 559 N.E.2d 1292 (1990). R.C. 3105.171(C)(1)

further states, “except as provided in this division * * * the division of marital property shall

be equal. If an equal division of marital property would be inequitable, the court shall not

divide the marital property equally but instead shall divide it between the spouses in the

manner the court determines equitable. In making a division of marital property, the court

shall consider all relevant factors, including those set forth in division (F) of this section.”

On appellate review, the trial court’s property division should be viewed as a whole in

determining whether it has achieved an equitable and fair division of marital assets.

Briganti v. Briganti, 9 Ohio St.3d 220, 459 N.E.2d 896 (1984).

      {¶23}   The fair and equitable division of pension or retirement benefits in a divorce

matter in Ohio is left to the trial court’s discretion. Hoyt v. Hoyt, 53 Ohio St.3d 177, 559

N.E.2d 1292 (1990). Pension or retirement benefits earned during the marriage are

marital assets and a factor to be considered in the just division of property. Id.

      {¶24}   Appellant cites Hoyt v. Hoyt in support of her position that the trial court

abused its discretion in treating the OPERS and Pfizer retirement benefits as property
Delaware County, Case No. 17 CAF 12 0080                                                 9


versus an income stream. 53 Ohio St.3d 177, 559 N.E.2d 1292 (1990). However, in

Hoyt, the Ohio Supreme Court states the trial court has discretion in how to divide

retirement assets. The Supreme Court specifically stated that “flat rules have no place in

determining a property division” and “no specific rules can apply in every case.” Id; see

also Ware v. Ware, 5th Dist. Licking No. 13 CA 91, 2014-Ohio-2606. As noted by the trial

court, it did not utilize the income stream methodology in its division because the Pfizer

pension was earned primarily before the marriage, while the OPERS pension was earned

primarily during the marriage, as 31% of appellee’s pension is marital, while 81% of

appellant’s pension is marital. Further, appellant has other sources of income that will

begin to distribute when she retires, but there is no evidence how much this will be.

      {¶25}    Instead, the trial court made findings as to the value of both parties’

retirement accounts with a value date of August 24, 2016 and determined appellee’s

Pfizer pension is valued at $434,609.37 with $133,309.47 as marital property and

appellant’s pension is valued at $725,565.39 with $589,049.54 being marital property.

The trial court then attempted to equalize the retirement accounts and appellee was

awarded the full marital portion of the Pfizer account, plus $227,870.03 of the OPERS

account, such that the division of the marital portion of the pensions was $361,179.50 to

appellee and $361,179.51 to appellant. We do not find the trial court abused its discretion

in this division.

      {¶26}    The balance of appellant’s argument deals with the income of the parties

and potential spousal support when she retires. As of the date of the hearing in this case,

appellant had not retired. Appellant testified her retirement date could be anywhere from

two months to six months from the date of the hearing and thus her retirement date is
Delaware County, Case No. 17 CAF 12 0080                                                   10


unknown.      Thus, issues regarding retirement income and spousal support are

speculative. As this Court has stated, “our review * * * is limited to the evidence before

the trial court at the time it made its decision.” Cunningham v. Cunningham, 5th Dist.

Knox No. 09-CA-25, 2010-Ohio-1397.

      {¶27}   Further, the trial court recognized that it is possible that appellee will have

a much higher income than appellant upon her retirement and thus reserved jurisdiction

over the issue of spousal support and specifically found that appellant, upon her

retirement, should be given the opportunity to show an award of spousal support is fair,

reasonable, and equitable.

      {¶28}   We find the trial court did not abuse its discretion in the treatment and/or the

division of the Pfizer and OPERS retirement accounts. Appellant’s first and second

assignments of error are overruled.

                                                III.

      {¶29}   In her third assignment of error, appellant argues the trial court erred by

failing to take into account appellee’s martial social security benefits and offset them

against appellant’s marital OPERS benefits pursuant to R.C. 3105.17(F)(9) when dividing

the retirements between the parties.

      {¶30}   We find this case analogous to Runser v. Runser, 5th Dist. Stark Nos.

2010CA00258, 2010CA00317, 2011-Ohio-3327, in which the appellant argued that

because appellee’s social security benefits are not subject to division and appellant’s

PERS benefits are subject to division and were in fact divided by the trial court, the trial

court abused its discretion in not offsetting the value of the social security benefits. In

Runser, we cited Obar v. Obar, 5th Dist. Ashland No. 09 COA 018, 2010-Ohio-1333, in
Delaware County, Case No. 17 CAF 12 0080                                                   11


which we held that R.C. 3105.171(F)(9) leaves it to the discretion of the trial court as to

whether to consider these benefits in dividing a public pension. Id. In Runser, we

specifically declined to overrule our decision in Obar and held that the trial court did not

err by declining to set-off social security benefits against public pension benefits under

the circumstances of that case. Id.

      {¶31}   We again decline to revisit or reconsider our position in Obar based upon

the facts of this case. In this case, the trial court did consider appellee’s social security

benefits, but made a decision not to utilize a set-off methodology. The trial court noted

the marital portion of appellee social security is valued at $102,669.13. The trial court

found that while appellant testified she will receive social security of $492 per month when

she retires and that this is a reduction in the amount she currently receives, there was no

testimony as to the present value of her social security benefits. The trial court concluded

that, without knowing the present value of appellant’s social security benefits, it would be

difficult to determine whether an offset should be applied. Further, that appellant has

other income of an unknown amount, such as the Ameriprise accounts and a payout of

unused vacation time. Thus, as in Runser, the trial court considered the testimony and

evidence regarding social security benefits and did not find it appropriate to utilize an

offset given the particular circumstances of this case. Like in Runser, we find no abuse

of discretion by the trial court in determining the division of the retirement benefits.

Appellant’s third assignment of error is overruled.

                                                IV.

      {¶32}   In her fourth assignment of error, appellant contends the trial court erred in

failing to order appellee not change the beneficiary on his Pfizer joint and survivor benefit.
Delaware County, Case No. 17 CAF 12 0080                                                 12


      {¶33}   In the trial court’s judgment entry, the trial judge sustained appellant’s

objection to the magistrate’s decision and indicated that to protect appellant’s interest in

the benefit, he would include an order that appellee not change the beneficiary on his

Pfizer joint and survivor benefit. However, this language was not included in the divorce

decree.

      {¶34}   At oral argument, counsel for both parties conceded that appellant shall

remain the beneficiary on appellee’s Pfizer joint and survivor benefit. Accordingly, we

sustain appellant’s fourth assignment of error and remand this matter to the trial court to

include such language in the divorce decree.

                                                V.

      {¶35}   On June 25, 2018, appellant filed with this Court a notice of withdrawal of

assignment of error number 5.

                                             VI. & VII.

      {¶36}   In her sixth assignment of error, appellant argues the court erred in ordering

that she be responsible for the payment of the mortgage, line of credit, taxes, and

insurance for the marital residence so long as she resides in the residence while appellee

shares in the reduction of principal during the period appellant pays the expenses. In her

seventh assignment of error, appellant contends the trial court erred in awarding one-half

of the rent received from a third party for rental of a room in the marital residence to

appellee during the period that appellant is paying for the mortgage, credit line, taxes,

insurance, and utilities for the marital residence.

      {¶37}   A trial court has broad discretion in equitably dividing marital property.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). The trial court’s
Delaware County, Case No. 17 CAF 12 0080                                                  13


discretion in determining the division of marital property extends to a court’s order to sell

and divide the parties’ equity in the marital residence. Booth v. Booth, 44 Ohio St.3d 142,

541 N.E.2d 1028 (1989). Upon appellate review, the trial court’s division of marital

property will be upheld unless the decision constitutes an abuse of discretion. Cherry v.

Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). An abuse of discretion means the

decision of the trial court was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

      {¶38}   Given the fact that appellant’s income is higher than appellee’s income and

the fact that appellant has paid the mortgage, line of credit, taxes, and insurance for the

marital residence for approximately two years, since 2015, we do not find the trial court

abused its discretion in ordering that appellant be responsible for the mortgage, line of

credit, taxes, and insurance for the marital residence so long as she resides in the

residence and in ordering any rent obtained to be split between appellant and appellee.

See Espenschied v. Espenschied, 5th Dist. Tuscarawas No. 2002AP030021, 2002-Ohio-

5119. Further, we find no abuse of discretion in the trial court’s order to split any rent

received, as this is an equal distribution of the income. Appellant’s sixth and seventh

assignments of error are overruled.

      {¶39}   Based on the foregoing, appellant’s first, second, third, sixth, and seventh

assignments of error are overruled. Appellant’s fourth assignment of error is sustained.

Appellant’s fifth assignment of error was withdrawn.
Delaware County, Case No. 17 CAF 12 0080                                             14


      {¶40}    The November 29, 2017 judgment entry of the Delaware Court of Common

Pleas, Domestic Relations Division is affirmed in part and reversed and remanded in part

for proceedings consistent with our opinion.

By Gwin, J.,

Wise, John, P.J., and

Wise, Earle, J., concur




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