[Cite as Mayer v. Mayer, 2011-Ohio-1884.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                      JUDGES:
IMOGENE MAYER                                :        Hon. W. Scott Gwin, P.J.
                                             :        Hon. William B. Hoffman, J.
                        Plaintiff-Appellee   :        Hon. Patricia A. Delaney, J.
                                             :
-vs-                                         :
                                             :        Case No. 2010-CA-00277
GARY A. MAYER                                :
                                             :
                    Defendant-Appellant      :        OPINION




CHARACTER OF PROCEEDING:                         Civil appeal from the Stark County Court of
                                                 Common Pleas, Domestic Relations
                                                 Division, Case No. 2009-DR-00728

JUDGMENT:                                        Reversed and Remanded


DATE OF JUDGMENT ENTRY:                          April 18, 2011

APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

BEVERLEY PROCTOR-DONALD                          CHARLES W. FONDA
401 Tuscarawas St. W.                            75 Public Square
Suite 500                                        Suite 650
Canton, OH 44702                                 Cleveland, OH 44113


                                                 RAVI SURI
                                                 850 Euclid Ave., Ste. 804
                                                 Cleveland, OH 44114

                                                 MICHAEL A. THAL
                                                             th
                                                 1785 East 47 Street
                                                 Cleveland, OH 44103
[Cite as Mayer v. Mayer, 2011-Ohio-1884.]


Gwin, P.J.

        {¶1}    Defendant-appellant Gary A. Mayer appeals a judgment of the Court of

Common Pleas, Domestic Relations Division, of Stark County, Ohio, which found his

Workers’ Compensation settlement was marital property subject to division in the

divorce between appellant and plaintiff-appellee Imogene Mayer. Appellant assigns two

errors to the trial court:

        {¶2}    “I. THE TRIAL COURT ERRED IN FINDING THAT GARY MAYER’S

SETTLEMENT AWARD WAS MARITAL PROPERTY BECAUSE ALL OF THE

EVIDENCE AT TRIAL SHOWED THAT THE AWARD WAS TO COMPENSATE HIM

FOR HIS FUTURE PERSONAL MEDICAL EXPENSES.

        {¶3}    “II. THE TRIAL COURT ERRED IN REFUSING TO ALLOW FURTHER

EVIDENCE OF THE NON-MARITAL NATURE OF THE SETTLEMENT AS PART OF

THE OBJECTION TO THE MAGISTRATE’S DECISION BECAUSE THE LACK OF

DISPUTE OVER THE NATURE OF THE SETTLEMENT WOULD HAVE MADE IT

UNNECESSARY AND WASTEFUL TO PRESENT THE EVIDENCE AT TRIAL.”

        {¶4}    The issue in this case is which party bears the burden of proving a

Workers’ Compensation award is separate property in a divorce. The trial court found

appellant had to demonstrate his settlement award was not marital property; we

disagree for reasons that follow.

        {¶5}    The record indicates appellant was injured in 1999, eleven years before

the divorce was final.         On August 15, 2008, appellant reached a settlement and

received $55,000. After payment of expenses and attorney fees, appellant received two

checks totaling $43,789.71. The court found this was the only significant asset in the
Stark County, Case No. 2010-CA-00277                                                   3


divorce case. The magistrate who heard the case found appellant received the

settlement checks after the parties had separated, but before the divorce was final.

Appellant’s counsel in the Workers’ Compensation case had advised him to deposit the

settlement proceeds into an account for use for his future medical expenses, but the

magistrate found appellant felt he could use the funds however he wished. Appellant

gave $26,000 from the settlement to his adult son to assist him in paying legal fees in

an unrelated case. Appellant testified only $13,000 of the settlement remained at the

time of the divorce.

                                               I.

       {¶6}   In his first assignment of error, appellant argues the trial court erred in

finding the Workers’ Compensation award was marital property.

       {¶7}   R.C. 3105.171 provides property is not marital if it is, inter alia,

compensation to a spouse for the spouse’s personal injury, except that compensation

for loss of marital earnings and compensation for expenses paid for marital assets

should be considered marital property. R.C. 3105.171 (A)(6)(a)(vi).

       {¶8}   Case law provides if the settlement contains an award for the uninjured

spouse’s lost consortium, then the lost consortium amount is the separate property of

the uninjured spouse. See, e.g. Lust v. Lust, Wyandot Co. App. No. 16-02-04, 2002 -

Ohio- 3629. Where a spouse suffers a compensable injury during the marriage, the

portion of Workers’ Compensation benefits which compensate for loss of earnings

during the marriage and for expenses paid from marital assets are marital property

subject to division upon divorce, but those benefits which compensate for loss of a body
Stark County, Case No. 2010-CA-00277                                                        4

part or loss of the spouse's future earning capacity are not marital property. Hartzel v.

Hartzel (1993), 90 Ohio App. 3d 385 629 N.E.2d 491.

       {¶9}   The trial court found property received during the marriage is presumed to

be a marital asset, and the party seeking to characterize the property as separate bears

the burden to rebut the presumption.     Banez v. Banez, Stark App. No. 2006CA00216,

2007-Ohio-4584. The court found appellant had not met his burden of proving the

Workers’ Compensation award was his separate property, and proceeded to divide the

entire award between the parties.

       {¶10} We find there is no presumption that this award was a marital asset; but

rather the statute clearly characterizes it as non-marital.         In Bauser v. Bauser

(1997),118 Ohio App. 3d 831, 694 N.E. 2d 136, the Court of Appeals for Clarke County

found a party’s failure to demonstrate disability benefits are marital property results in a

finding the benefits are separate property. The starting point is to presume the benefits

are separate pursuant to the statute, and then it is the burden of the party seeking to

establish the property is marital to rebut the statutory presumption. Here, we start with

the proposition the Workers’ Compensation award is appellant’s separate property, and

if appellee claims some or all the award is marital property she must produce evidence

to that effect. See also Lust, supra at paragraph 19. (If the record does not demonstrate

any portion of a medical malpractice settlement is for lost consortium, then a court does

not err in finding the entire settlement is the separate property of the injured spouse.)

       {¶11} The court found “based on the evidence before the magistrate at the time

of trial, it was not clear whether or not any of the award was for loss of marital earnings

or compensation for expenses paid for marital assets. Certainly there were medical
Stark County, Case No. 2010-CA-00277                                                   5


expenses paid for marital assets during the period from the injury in 1999 to the divorce

in 2010 and the marital estate was entitled to reimbursement for those.” Judgment

Entry of August 11, 2010 at page 4.

      {¶12} We find the trial court erred in characterizing the Workers’ Compensation

award as marital property. Because there was no evidence before the magistrate at the

time of trial to indicate how much, if any, of the award was for lost earnings during the

marriage, or compensation for expenses paid by marital funds, the presumption it was

separate property prevails and the court should have treated the entire award as

appellant’s separate property.

      {¶13} The first assignment of error is sustained.

                                               II.

      {¶14} In his second assignment of error, appellant argues the trial court erred in

refusing to allow further evidence the settlement was his separate property.

      {¶15} The trial court cited Civ. R. 53 (D), which provides a party who objects to a

magistrate’s decision may present additional evidence if the court finds the objecting

party has demonstrated that he or she could not with reasonable diligence have

produced the evidence for consideration by the magistrate. The court found appellant

had failed to demonstrate he had been unable to produce the details of the Workers’

Compensation award at the trial before the magistrate.

      {¶16} Because we find appellant did not have the burden of producing evidence

the settlement was his separate property, we find this assignment of error is moot.
Stark County, Case No. 2010-CA-00277                                                   6


      {¶17} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division of Stark County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accord with law and consistent with this

opinion.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN

                                             _________________________________
                                             HON. PATRICIA A. DELANEY
WSG:clw 0404
[Cite as Mayer v. Mayer, 2011-Ohio-1884.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


IMOGENE MAYER                                   :
                                                :
                           Plaintiff-Appellee   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
GARY A. MAYER                                   :
                                                :
                                                :
                       Defendant-Appellant      :       CASE NO. 2010-CA-00277




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Domestic Relations Division of Stark County,

Ohio, is reversed, and the cause is remanded to the court for further proceedings in

accord with law and consistent with this opinion. Costs to appellee.




                                                    _________________________________
                                                    HON. W. SCOTT GWIN

                                                    _________________________________
                                                    HON. WILLIAM B. HOFFMAN

                                                    _________________________________
                                                    HON. PATRICIA A. DELANEY
