[Cite as Hine v. Hine, 2019-Ohio-734.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


Deborah S. Hine                                  Court of Appeals No. WD-18-023

        Appellee                                 Trial Court No. 2017-DR-0018

v.

Bruce K. Hine                                    DECISION AND JUDGMENT

        Appellant                                Decided: March 1, 2019

                                         *****

        Carla B. Davis, for appellee.

        Brian D. Smith, for appellant.

                                         *****

        SINGER, J.

        {¶ 1} Appellant, Bruce K. Hine, appeals from the March 5, 2018 judgment of the

Wood County Court of Common Pleas, Domestic Relations Division, overruling

objections to the magistrate’s decision of December 12, 2017, and adopting the

magistrate’s decision, which divided the marital assets of appellant and appellee,

Deborah S. Hine, following their divorce. For the reasons which follow, we affirm.
       {¶ 2} On appeal, appellants asserts the following assignments.

              I. The trial court erred by dividing retirement accounts that are in

       payout status.

              II. The trial court erred by not making or making an inappropriate

       health designation for the purpose of valuation of retirement accounts.

              III. The trial court erred by not valuing the survivorship benefits that

       the Plaintiff/Appellee will receive from the Defendant/Appellant’s

       retirement accounts.

              IV. The trial court erred by reviewing the magistrate’s decision

       under an abuse of discretion standard.

       {¶ 3} The parties were married in 1974 and their two children are emancipated. A

complaint for divorce was filed on February 7, 2017. While the parties entered into an

extended number of stipulations regarding the division of marital assets, the division of

the remaining assets, including their retirement assets, were addressed in a hearing which

began June, 20, 2017. The magistrate concluded the retirement assets should be divided

on a 50/50 basis and outlined the process to do so. In its March 5, 2018 judgment, the

trial court adopted the magistrate’s findings of fact and conclusions of law. Appellant

appeals.

       {¶ 4} We address appellant’s assignments of error out of order to consider the

alleged procedural error first. In his fourth assignment of error, appellant argues the trial




2.
court erred by reviewing the magistrate’s decision for an abuse of discretion rather than

independently reviewing the case.

       {¶ 5} If a party files timely and specific objections to the magistrate’s decision,

Civ.R. 53(D)(3)(b)(i) and (ii), and supports the objection with a transcript or affidavit,

Civ.R. 53(D)(3)(b)(iii), the trial court is required to make an “independent review as to

the objected matters to ascertain that the magistrate has properly determined the factual

issues and appropriately applied the law” regarding the objections raised. Civ.R.

53(D)(4)(d). This requirement involves a de novo determination of the findings of fact

and independent assessment of the conclusions of law, not a limited appellate review for

an abuse of discretion. Id., Redmond v. Wade, 4th Dist. Lawrence No. 16CA16,

2017-Ohio-2877, ¶ 22, citing Knauer v. Keener, 143 Ohio App.3d 789, 793-794, 758

N.E.2d 1234 (2d Dist.2001); Kovacs v. Kovacs, 6th Dist. Erie No. E-03-051, 2004-Ohio-

2777, ¶ 6. Appellate courts will presume the trial court conducted an independent review

unless a party proves otherwise. Redmond at ¶ 23; Mattis v. Mattis, 10th Dist. Franklin

No. 15AP-446, 2016-Ohio-1084, ¶ 11.

       {¶ 6} In the case before us, appellant points to the trial court’s judgment to support

his claim that the trial court did not conduct an independent review. The trial court

indicated in its judgment that it reviewed the magistrate’s decision, the transcript, and the

exhibits and found the “Magistrate carefully and thoroughly reviewed all of the evidence

and * * * issued a decision supported by the evidence.” However, the court additionally

found that “[i]n doing so, the Magistrate did not abuse his discretion.”




3.
         {¶ 7} Upon a review of the trial court’s judgment, we find that the trial court

reviewed the evidence and found the evidence supported the magistrate’s decision.

While the trial court should not have considered whether the magistrate properly

exercised his discretionary powers, appellant was not prejudiced by this additional

finding. See Mattis at ¶ 17. Compare In re J.P., 10th Dist. Franklin No. 16AP-61, 2016-

Ohio-7574, ¶ 25. Therefore, we find appellant’s fourth assignment of error not well-

taken.

         {¶ 8} The remaining assignments of error relate to the trial court’s decision

regarding the division of the marital retirement funds. The goal of the trial court in a

divorce action is to make an equal, but equitable, division of marital property. R.C.

3105.171(C)(1). The trial court has broad discretion to determine what is equitable.

Bisker v. Bisker, 69 Ohio St.3d 608, 609, 635 N.E.2d 308 (1994).

         {¶ 9} The court’s decision will not be reversed on appeal unless it is shown that

the court abused its discretion. Daniel v. Daniel, 139 Ohio St.3d 275, 2014-Ohio-1161,

11 N.E.3d 1119, ¶ 26, citing Middendorf v. Middendorf, 82 Ohio St.3d 397, 401, 1998-

Ohio-403, 696 N.E.2d 575 (1998) (additional citations omitted) (Lanzinger, J.,

dissenting). To establish that the court abused its discretion, a party must show “more

than an error of law,” the party must demonstrate that the judgment reflects an

“unreasonable, arbitrary, or unconscionable” attitude by the court. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62

Ohio St.2d 151, 157, 404 N.E.2d 144 (1980) (citations omitted).




4.
         {¶ 10} In his first assignment of error, appellant argues that the trial court erred in

equally dividing the marital retirement funds which were in payout status to appellant

while appellee was still working. Appellant argues the trial court failed to apply the

precedent set by Dunn v. Dunn, 6th Dist. Ottawa No. OT-09-038, 2010-Ohio-6508 and

Miller v. Miller, 6th Dist. Sandusky No. S-12-035, 2013-Ohio-5071, and utilize a

monthly income comparison to determine the most equitable division of the retirement

funds.

         {¶ 11} In Dunn, id., we affirmed an unequal division of the marital retirement

assets of a couple that had been married 35 years on the basis that one party was retired

and receiving benefits under an OPERS retirement plan and the other party was still

working and contributing to Social Security. While the trial court could not divide the

Social Security benefits, the court considered the total assets each party would have in

retirement and found it was more equitable to divide the retirement assets based on the

present income levels of the parties. Id. at ¶ 29.

         {¶ 12} In Miller, we affirmed the unequal division of the retirement assets of a

couple married 13 years on the basis that both parties were still working, with one party

participating in the STRS retirement system and the other entitled to benefits under

Social Security and several smaller retirement funds. The trial court adopted the

recommendation of an expert to equalize the projected monthly benefit based on the

benefits vested during the marriage for the purpose of equalizing the monthly benefit to

be received in retirement. Id. at ¶ 33-34.




5.
        {¶ 13} The trial court in the case before us considered the holdings in Dunn and

Miller and determined that an equal division of the retirement funds was equitable. That

decision is supported by the evidence.

        {¶ 14} While appellee is still working and earning approximately $40,000,

appellant also recently inherited $260,000-$290,000 and a home valued at $80,000 from

his mother. Neither of these streams of income are marital assets, but the fact that both

had other resources can be considered for purposes of equity.

        {¶ 15} The parties agreed during the marriage to spend appellee’s income on

family expenses and to maximize appellant’s retirement contributions in order to

maximize their retirement income. Both parties have worked throughout the marriage

and lived a frugal life to avoid debt. Appellant filed for early retirement benefits under

Social Security and elected to take pension retirement benefits from three of his funds at

age 62. Appellee is 63 years of age and is eligible to retire with an unreduced OPERS

retirement benefit in approximately three years. Therefore, the equalization of their

retirement income was appropriate. Although appellant testified as to his health issues,

there was no evidence presented to establish that his health issues impacted his mortality

rate.

        {¶ 16} We find appellant has failed to demonstrate the trial court abused its

discretion in making an equal division of the retirement funds. We find appellant’s first

assignment of error not well-taken.




6.
       {¶ 17} In his second assignment of error, appellant argues that the trial court erred

by not considering the health of each party for the purpose of valuing the retirement

funds. He argues there is a large variance in the present value of the retirement funds

when different health statuses are elected. He asserts his health is poor and that when he

was terminated from his position at BP, he did not apply for disability but elected to take

Social Security to avoid waiting a year for payments. Therefore, he contends the trial

court erred in finding that appellant was “healthy.”

       {¶ 18} We disagree. There was no expert medical evidence of appellant’s health

status or its impact upon his mortality. We find the trial court did not err in finding that

while appellant was in poor health, he was not disabled, and utilized the present values of

the accounts based on a healthy participant. Therefore, appellant’s second assignment of

error is not well-taken.

       {¶ 19} In his third assignment of error, appellant argues that the trial court erred

by not valuing the survivorship benefits that appellee will receive from appellant’s

retirement accounts and the fact that her life expectancy is statistically predicted to be

eight years longer than appellant.

       {¶ 20} Appellant failed to raise this issue in his objections to the magistrate’s

findings. The magistrate found the Pension Benefit Guarantee Corporation valuation

methodology utilized by the expert, Pension Evaluators, was the most equitable approach

and rejected the corporate bond rate methodology and the valuing the survivor tails by the

other expert, William Napoli. The court also declined to consider the survivorship




7.
benefits already elected or to be elected by court order in its determination of the division

of the marital retirement funds. Therefore, appellant waived his right to raise this alleged

error on appeal. Civ.R. 53 (D)(3)(b)(iv). Appellant’s third assignment of error is not

well-taken.

       {¶ 21} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Wood County

Court of Common Pleas, Domestic Relations Division, is affirmed. Appellant is ordered

to pay the costs of this appeal pursuant to App.R. 24.


                                                                         Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Thomas J. Osowik, J.                                        JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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