[Cite as Toki v. Toki, 2020-Ohio-130.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 SUE E. TOKI                                    JUDGES:
                                                Hon. William B. Hoffman, P.J
         Plaintiff-Appellant                    Hon. John W. Wise, J.
                                                Hon. Patricia A. Delaney, J.
 -vs-
                                                Case No. 19-CA-00009
 LARRY E. TOKI

        Defendant-Appellee                      O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Perry County Court of
                                                Common Pleas, Case No. 22480


 JUDGMENT:                                      Affirmed in part and Reversed and
                                                Remanded in part

 DATE OF JUDGMENT ENTRY:                        January 15, 2020


 APPEARANCES:


 For Plaintiff-Appellant                        For Defendant-Appellee

 RYAN SHEPLER                                   RICHARD A. L. PIATT
 Kernen & Shepler, LLC                          MEGAN M. GIBSON
 158 East Main Street                           Saia & Piatt, Inc.
 P.O. Box 388                                   713 South Front Street
 Logan, Ohio 43138-0388                         Columbus, Ohio 43206
Perry County, Case No. 19-CA-00009                                                         2


Hoffman, P.J.
       {¶1}   Plaintiff-appellant Sue Toki appeals the August 10, 2018 Judgment Entry

entered by the Perry County Court of Common Pleas, which denied her Amended Motion

to Construe Decree of Divorce, following this Court’s remand order in Toki v. Toki, 5th

Dist. Perry App. No. 18-CA-00014, 2019-Ohio-817. Defendant-appellee is Larry E. Toki.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   The parties were married on March 29, 1969. Appellant filed a Complaint

for Divorce on December 9, 1992. The matter came on for final hearing before the referee

on April 12, 1994. The referee filed a Journal Entry: Referee's Report on August 16, 1994,

from which both parties filed objections. The trial court adopted the referee's report except

for the determination of child support and the division of Appellee's P.E.R.S. pension.

       {¶3}   In an Amended Referee's Report filed November 7, 1994, the referee

determined Appellant's interest in Appellee's pension was $53,531.48. The referee

recommended Appellant have the right to withdraw said amount once Appellee began to

draw on his pension. Appellant objected to the report, arguing the language was unclear

as to whether the $53,531.48 amount awarded to her from Appellee's pension was a fixed

amount, and the referee failed to consider interest earned on those funds in the years

prior to Appellee's retirement.

       {¶4}   Via Entry filed December 1, 1994, the trial court adopted the referee's

Amended Report except for the division of Appellee's P.E.R.S. pension. The trial court

ordered:



              [Appellant] is to receive $53,531.48 from the Pension Plan of

       [Appellee]. [Appellant] shall receive her funds by means of a formula for
Perry County, Case No. 19-CA-00009                                                      3


      division of any moneys received by [Appellee] which formula grants

      [Appellant] half of the pension that existed at the time of the divorce, plus

      income earned by her share, but no additional increase of years of service

      earned by [Appellee]. This Court orders [Appellee] to pay [Appellant] a

      portion of any and all P.E.R.S. funds received by him or his estate based

      on the following formula. The formula is:

             ½ x 23 years

             Total Number of Years of P.E.R.S. Employment at Time the Funds

      are Received.

             This formula will apply to any lump sum distributions received by

      [Appellee] as well as monthly payments received by [Appellee]. No

      payments shall be due from [Appellee] to [Appellant] until such time as

      pension benefits are received by [Appellee] from the Public Employees

      Retirement System of Ohio.



      {¶5}   Appellee retired in 2002, with 32.5 years of service credit from the state of

Ohio. On or about June 21, 2002, Appellee paid Appellant $20,000, via personal check,

as “Partial Divorce Settlement/Retirement Funds”. It is undisputed Appellee made no

further payments to Appellant.

      {¶6}   On April 12, 2017, Appellant filed a Charge in Contempt based upon

Appellee's failure to pay the remaining funds due her. Contemporaneously therewith,

Appellant filed a Motion to Construe Decree of Divorce. The magistrate conducted a

hearing on the motions on October 25, 2017. Via Magistrate's Decision and Order filed
Perry County, Case No. 19-CA-00009                                                          4


October 26, 2017, the magistrate denied both motions, finding Appellant was barred by

the doctrine of laches. Appellant filed a timely request for findings of fact and conclusions

of law. The magistrate issued a Decision and Order on May 25, 2018, which included

findings of fact and conclusions of law. Appellant filed timely objections to the magistrate's

decision.

       {¶7}   Via Judgment Entry filed August 10, 2018, the trial court overruled

Appellant's Charge in Contempt, finding laches barred her action for contempt. The trial

court noted the delay of 15 years before asserting her right, finding the delay was

unreasonable and there was no excuse for it. Appellant appealed the decision to this

Court. Therein, Appellant raised two assignments of error, to wit: The trial court erred by

relying on laches to bar division of the pension; and (II) the trial court erred by failing to

address the amended motion to construe decree of divorce.

       {¶8}   We overruled Appellant’s first assignment of error, finding the trial court did

not abuse its discretion in applying laches as it related to Appellant’s contempt charge.

Toki v. Toki, 5th Dist. Perry App. No. 18-CA-00014, 2019-Ohio-817.             However, we

sustained Appellant’s second assignment of error, finding “the trial court did not

specifically rule on Appellant's Amended Motion to Construe Decree of Divorce” and it

was “unclear whether the trial court also intended to deny the motion to construe based

upon laches.” Id. at para. 16.

       {¶9}   We remanded the matter to the trial court to specifically rule on Appellant's

Amended Motion to Construe, stating:
Perry County, Case No. 19-CA-00009                                                        5


              Issues remain as to whether Appellant is entitled to $53,531.48 plus

       interest, adjusted down by the $20,000 payment received, based upon a

       collection formula or entitled to application of the formula to all monthly

       benefits Appellee has received or will receive in the future. It would seem

       while laches does not bar collection of the original definite amount set forth

       in the 1994 judgment, it is arguable whether it is available if the formula is

       applied to all retirement benefits Appellee has already received and/or will

       receive in the future. Perhaps laches may well apply to such formula

       application up to the date Appellant filed her original motion to construe the

       1994 entry. Perhaps not. We feel these issues need further consideration

       by the trial court. Id. at para. 17.



       {¶10} Pursuant to this Court’s remand order, the trial court ruled on Appellant’s

Amended Motion to Construe, denying the same via Judgment Entry filed August 10,

2018. The trial court found laches was a defense to Appellant’s Amended Motion to

Construe. The trial court further found requiring Appellee to make monthly payments of

a portion of his retirement benefits to Appellant would create a financial hardship for him;

therefore, was prejudicial.

       {¶11} It is from this judgment entry Appellant appeals, raising as her sole

assignment of error:
Perry County, Case No. 19-CA-00009                                                          6


              I. THE TRIAL COURT ERRED BY DENYING THE AMENDED

       MOTION TO CONSTRUE DECREE OF DIVORCE RATHER THAN

       APPROPRIATELY INTERPRETING THE DECREE.




       {¶12} In her sole assignment of error, Appellant maintains the trial court erred in

denying her Amended Motion to Construe. Appellant submits the trial court’s cursory

denial of her motion was inconsistent with this Court’s remand order.

       {¶13} Laches has been defined by the Ohio Supreme Court as “an omission to

assert a right for an unreasonable and unexplained length of time, under circumstances

prejudicial to the adverse party.” Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, 472

N.E.2d 328, quoting Smith v. Smith (1959), 168 Ohio St. 447, 156 N.E.2d 113. In order

to successfully invoke the doctrine, the following four elements must be establish, by a

preponderance of the evidence: (1) unreasonable delay or lapse of time in asserting a

right; (2) absence of an excuse for the delay; (3) knowledge, actual or constructive, of the

injury or wrong; and (4) prejudice to the other party. See, State ex rel. Meyers v. Columbus

(1995), 71 Ohio St.3d 603, 605, 646 N.E.2d 173. Delay in asserting a right does not,

without more, establish laches. Rather, the person invoking the doctrine must show the

delay caused material prejudice. Connin, 15 Ohio St.3d at 35-36, 472 N.E.2d 328; Smith,

paragraph three of the syllabus.

       {¶14} A party's assertion of financial prejudice does not, as a matter of law,

sufficiently demonstrate “material prejudice.” Smith v. Smith, 168 Ohio St. 447, 156

N.E.2d 113 (1959). “The mere inconvenience of having to meet an existing obligation

imposed * * * by an order or judgment of a court of record at a time later than that specified
Perry County, Case No. 19-CA-00009                                                           7


in such * * * order cannot be called material prejudice.” Id.; State ex rel. Donovan v. Zajac,

125 Ohio App.3d 245, 250, 708 N.E.2d 254 (1998). Instead, to establish “material

prejudice,” the party invoking the laches doctrine must show either: (1) the loss of

evidence helpful to the case; or (2) a change in position which would not have occurred

if the right had been promptly asserted. Donovan, 125 Ohio App.3d at 250, 708 N.E.2d

254. See, also, Weber v. Weber, 4th Dist. Jackson App. No. 01CA7, 2001-Ohio-2648.

       {¶15} Pursuant to the December 1, 1994 Entry, Appellee was legally obligated to

pay Appellant $53,531.48, plus interest. Appellee paid Appellant a lump sum payment of

$20,000, on or about June 21, 2002, as “Partial Divorce Settlement/Retirement Funds”.

Appellee made no further payments to Appellant.

       {¶16} We find Appellee’s original legal obligation to Appellant as set forth in the

trial court’s December 1, 1994 Entry is not barred by laches. To find otherwise would not

be reflective of the trial court’s intent. Pursuant to the original decree, Appellant was

awarded earned interest on the $53,531.48 as of the date of Appellee’s retirement.

Accordingly, Appellant is entitled to $53,531.48 plus the annual legal rate of simple

interest on $53,531.48, not compounded, less the $20,000.00 payment. Appellant is not

entitled to any potential accrual of interest after 2002, as the same is barred by laches.

       {¶17} Our ruling today merely calls upon Appellee to comply with an obligation

imposed upon him by an existing court order. While Appellee may have changed his

financial position in reliance upon his belief Appellant would not seek to enforce the order,

this prejudice is insufficient as a matter of law to support a defense of laches.
Perry County, Case No. 19-CA-00009                                                      8


      {¶18} Based upon the foregoing, we reverse the trial court’s finding laches applies

to the entire amount which remains due to Appellant, but affirm its finding laches applies

to any growth on the amount after June, 2002.

      {¶19} The judgment of the Perry County Court of Common Pleas is affirmed in

part, and reversed and remanded in part, and the matter remanded to the trial court to

determine the amount Appellee owes Appellant in accordance with this Opinion and enter

judgment accordingly.




By: Hoffman, P.J.
Wise, John, J. and
Delaney, J. concur
