[Cite as Yuhasz v. Yuhasz, 2016-Ohio-2899.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                  ASHTABULA COUNTY, OHIO


STACY H. YUHASZ,                               :       OPINION

                  Petitioner-Appellant,        :
                                                       CASE NO. 2015-A-0054
        - vs -                                 :

THOMAS R. YUHASZ,                              :

                 Petitioner-Appellee.          :



Civil Appeal from the Ashtabula County Court of Common Pleas, Domestic Relations
Division, Case No. 2004 DR 115.

Judgment: Affirmed.


Thomas J. Simon, 1105 Bridge Street, P.O. Box 3048, Ashtabula, OH 44005 (For
Petitioner-Appellant).

William P. Bobulsky, William P. Bobulsky Co., L.P.A., 1612 East Prospect Road,
Ashtabula, OH 44004 (For Petitioner-Appellee).



DIANE V. GRENDELL, J.

        {¶1}      Appellant, Stacy H. Yuhasz nka Senskey, appeals the September 1, 2015

Judgment of the Ashtabula County Court of Common Pleas, denying her Motion to

Enforce Property Settlement and Motion for Spousal Support. The issue before this

court is whether a provision in a separation agreement, providing that husband will pay

wife a severance package if wife is involuntarily terminated from her employment, is

satisfied where there is evidence that wife wished to terminate her employment at the
time she was fired and where it was subsequently discovered that wife had committed

financial improprieties. For the following reasons, we affirm the judgment of the court

below.

         {¶2}   On June 16, 2004, the Ashtabula County Court of Common Pleas granted

Senskey and appellee, Thomas R. Yuhasz, a dissolution of marriage and adopted the

parties’ Separation Agreement.       Article 9, Section E of the Agreement provided as

follows:

                The Husband further guarantees that the Wife shall retain her full
                time job (40 hours per week) at Husband’s business TYGBJY
                through her 65th birthday at the current rate of $20.00 per hour plus
                annual increases at least commensurate with the annual cost of
                living. * * * [I]n the event that the wife is terminated from her
                employment for any reason other than her own voluntary choice,
                the Husband shall pay Wife a severance package within six months
                of the date of termination in an amount equal to the amount she
                would have earned from termination until her 65th birthday at 40
                hours per week at her hourly rate at time of termination plus 5% per
                year thereafter. If the Husband defaults in this provision it would
                again reopen the Court’s jurisdiction on the issue of spousal
                support.

         {¶3}   On May 30, 2013, Senskey filed a Motion to Enforce Property Settlement

and Motion for Spousal Support based on Yuhasz’ violation of Article 9, Section E of the

Separation Agreement.

         {¶4}   Hearings on Senskey’s Motions were held on February 5, April 17, and

June 26, 2014, before a magistrate of the court.

         {¶5}   On July 31, 2014, a Magistrate’s Decision was issued.

         {¶6}   On August 13, 2014, Senskey filed Objections to Magistrate’s Decision.

         {¶7}   A hearing on Senskey’s Objections was held on July 29, 2015, before the

trial court.




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      {¶8}   On September 1, 2015, the trial court issued a Judgment Entry overruling

the Objections and adopting the Magistrate’s Decision.          The court identified the

determinative issue as “whether the wife quit her job voluntarily or was fired by the

husband.” The court resolved the issue as follows:

                    The Court has reviewed the transcript and finds there was
             much conflicting evidence.     On November 20, 2012, at the
             company office, Mr. Yuhasz overheard part of a conversation
             between Mrs. Senskey and a customer. An argument ensued over
             how customers were being treated and when they were being paid.
             It became very emotional, and the other employees described loud
             yelling and screaming by the parties. At the end of the day, Mrs.
             Senskey left and never returned to her company employment. The
             strongest evidence that Mrs. Senskey was fired are the statements
             Mr. Yuhasz made to others indicating that he fired her.

                    The Court finds, in this case, due to the family relationships
             of the parties and witnesses, the very strong emotional displays,
             the economic impacts on the parties and the conflicting evidence,
             the Court must examine what the parties actually did rather than
             what they say they did.

                     The evidence is clear Mrs. Senskey wanted to leave her
             position with the TYGBJY Company. The parties dissolved their
             marriage on June 16, 2004. Mrs. Senskey married Greg Senskey
             in August of 2009. She told her sons, Dakota and Derek, that she
             was worn down, wanted to move on, and did not want to work at
             the company any longer. Mrs. Senskey, during September 2011,
             had interviewed with Steve Palec for another job. Although that
             interview did not result in different employment, it substantiates that
             Mrs. Senskey was actively seeking other employment.

                     The evidence also establishes that Mrs. Senskey prepared a
             newspaper advertisement for the hiring of her replacement. She
             participated in the interviews of various job applicants and had
             agreed to train her replacement. It was understood that after her
             replacement was trained by Mrs. Senskey, she would leave the
             company. Danny Aulizia, the general manager of the TYGBJY
             Company, testified Mrs. Senskey wanted to leave; that she was
             unhappy working there; and on November 20, 2012, she said “I
             want out of here. I’m done.” Clearly, Mrs. Senskey was planning to
             leave her employment long before the November 20, 2012 incident
             occurred.



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                        Credibility is an important issue in this case. It was directly
                 addressed by the Magistrate. The Court finds that the Magistrate’s
                 findings of fact and the inferences and conclusions drawn therefrom
                 are fully supported by competent, credible, and substantial
                 evidence. The Court further finds that the Magistrate’s conclusions
                 of law are appropriate and in accordance with law.

       {¶9}      On September 23, 2015, Senskey filed her Notice of Appeal.

       {¶10} On appeal, Senskey raises the following assignment of error:

       {¶11} “[1.] The Trial Court erred in affirming the Magistrate’s Decision to deny

appellant’s Motion to Enforce Property Settlement and Motion for Spousal Support.”

       {¶12} A trial court’s decision to adopt, reject, or modify a magistrate’s decision is

reviewed under an abuse of discretion standard, the same standard applied to

determinations regarding property division and spousal support. Shivak v. Shivak, 11th

Dist. Trumbull No. 2014-T-0101, 2015-Ohio-5063, ¶ 10; Hutchison v. Hutchison, 11th

Dist. Lake No. 2014-L-048, 2014-Ohio-5471, ¶ 14.

       {¶13} Senskey’s challenge of the lower court’s judgment rests on several points:

(1) “all evidence presented at the hearings and contained in the transcripts indicates

Appellant was fired by Appellee”; (2) “Appellant agreed to give up substantial property

settlement entitlements in exchange for her continued employment with the TYGBJY

through her 65th birthday”; and (3) “the mere fact that Appellant may have been looking

for other employment opportunities does not equate to her quitting her job.” Appellant’s

brief at 9-10.

       {¶14} The points raised by Senskey neither compel a decision in her favor nor

render the trial court’s adoption of the magistrate’s decision unreasonable, arbitrary, or




                                               4
unconscionable, i.e., an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144,

541 N.E.2d 1028 (1989).

        {¶15} As to what occurred on November 20, 2012, there is evidence to support a

finding that Senskey quit as well as that she was fired, and it is not improbable that her

termination was the product of mutual consent.

        {¶16} According to Yuhasz, he and Senskey had been arguing for ten to fifteen

minutes when it came to an end as follows:

              A.    She’s leaving and she’s getting Danny [Aulizia] to say, did
              you hear this? Yeah, she’s done. She’s been telling me for six
              months she’s not going to work here no more * * *.

              Q.     Okay. Now, what was her last words to you?

              A.     I’m out of here.

              Q.     And what did you say to her?

              A.     You’re done.

        {¶17} Accordingly to Danny Aulizia, the only third party witness to the argument:

“They got into an argument, and * * * it was heated at both ends. That’s when I came in

and Stacy [Senskey] * * * was right there looking right at me and * * * she goes, I’m

done.    And Tom [Yuhasz] goes, no, you’re out of here. And Stacy goes, are you

witnessing this? And I said, yes, I am.”

        {¶18} After the incident, Aulizia was uncertain about Senskey’s employment

status and whether she would be returning to work for the company in some other

capacity.




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       {¶19} The trial court, acknowledging the conflicting testimony and the emotion of

the moment, decided to focus on the parties’ conduct before and after the November 20

incident in addition to what happened that day.

       {¶20} Senskey properly characterizes her continued employment at TYGBJY as

a significant part of the property settlement. Nonetheless, there was abundant evidence

that she not only intended to leave the employ of TYGBJY but also had taken significant

steps toward finding other employment and providing for her replacement. The parties’

son, Dakota, testified that she told him a couple of months before the November

incident that she did not want to work at the farm. The parties’ other son, Derek,

testified that during this same period of time she told him that the farm was going to hire

someone new and that she “wanted to move on from there.” Aulizia testified that it was

his understanding that Senskey would be leaving after the new-hire was trained. Aulizia

also arranged for Senskey to interview for employment with Steve Palec. This evidence

stands in contradiction to Senskey’s testimony that she never had any serious intention

of leaving her employment and, if believed, reflects adversely on Senskey’s credibility.

       {¶21} Although it was not discussed by the trial court, the magistrate found that,

“[e]ven if Mr. Yuhasz had wrongfully terminated Ms. Senskey on November 20, 2012,

the information he learned subsequently about how she managed the accounts and

made large cash unauthorized withdrawals justified a termination for good cause.” On

appeal, Senskey contests whether these withdrawals were unauthorized. The issue

does not affect the outcome of the appeal. For present purposes it is sufficient to note

that until the withdrawals were purportedly discovered, Yuhasz, Aulizia, Derek, and




                                            6
Dakota all acknowledged that there was a possibility, or at least desire, to

accommodate Senskey’s continued employment in a different position.

      {¶22} Lastly, Senskey claims that she was entitled to spousal support under

Article 7 of the Separation Agreement, providing that the trial court would “retain

jurisdiction of the issue of spousal support only in the event that the Husband fails to

comply with the terms and conditions of the property settlement.” As discussed above,

the court properly found that Senskey was not terminated in violation of the terms and

conditions of the property settlement.

      {¶23} The sole assignment of error is without merit.

      {¶24} For the foregoing reasons, the September 1, 2015 Judgment of the

Ashtabula County Court of Common Pleas, denying Senskey’s Motion to Enforce

Property Settlement and Motion for Spousal Support, is affirmed. Costs to be taxed

against the appellant.



CYNTHIA WESTCOTT RICE, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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