[Cite as Hoffman v. Tustin, 2019-Ohio-2546.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

JULIA HOFFMAN                                        C.A. Nos.     28799
                                                                   29104
        Appellee

        v.
                                                     APPEAL FROM JUDGMENT
MICHAEL TUSTIN                                       ENTERED IN THE
                                                     COURT OF COMMON PLEAS
        Appellant                                    COUNTY OF SUMMIT, OHIO
                                                     CASE No.   DR-2011-07-2007

                                DECISION AND JOURNAL ENTRY

Dated: June 26, 2019



        TEODOSIO, Presiding Judge.

        {¶1}    Michael K. Tustin appeals the qualified domestic relations orders issued by the

trial court on September 1, 2017, and the entry of the Summit County Court of Common Pleas,

Domestic Relations Division, denying his motion for relief from judgment. We affirm.

                                                I.

        {¶2}    In 2011, Julia Tustin, nka Julia Hoffman, filed a complaint for divorce from

Michael Tustin. After a 2013 trial, a decree of divorce was entered, followed by an appeal to this

Court. We affirmed in part and reversed in part, remanding the case to the trial court to

determine the duration of the marriage and to revisit its determination regarding the equitable

division of marital property. After again proceeding to trial, the trial court issued a decree of

divorce on April 8, 2016.

        {¶3}    The decree of divorce, in providing for the division of marital property, ordered

that the parties’ defined contribution retirement plans were to be divided equally, with Ms.
                                                2


Hoffman to transfer to Mr. Tustin the amount of $103,436.62 in order to equalize the value of the

accounts. The decree also provided that the parties were to each retain a motor vehicle, with Ms.

Hoffman owing Mr. Tustin $2,040.00 to equalize the values. The trial court further found that

Mr. Tustin owed Ms. Hoffman $7,101.42 for healthcare expenses, attorney fees, taxes, and

insurance, and in offsetting that amount against the $2,040.00 owed to Mr. Tustin, granted

judgment against Mr. Tustin in the amount of $5,661.25, plus statutory interest. The decree

further provided that Ms. Hoffman’s pension plan was to be divided equally by a qualified

domestic relations order (“QDRO”).

       {¶4}    Initially the parties submitted QDROs based upon the de facto marriage

termination date of December 31, 2011, but were informed by QDRO Consultants that

FirstEnergy Corp. was unable to calculate gains or losses on any participant accounts for periods

prior to January 1, 2014. An amended savings plan QDRO replacing the date of December 31,

2011 with January 1, 2014, was submitted to the trial court on August 28, 2017, without the

approval of Mr. Tustin, and the trial court filed the QDROs for both the savings plan and the

pension plan on September 1, 2017.

       {¶5}    Mr. Tustin appealed the two QDROs to this Court. We stayed the matter upon the

motion of the parties and remanded the case for proceedings related to a motion for relief from

judgment filed by Mr. Tustin. On June 13, 2018, the trial court denied Mr. Tustin’s motion for

relief from judgment. Mr. Tustin subsequently filed a second appeal, this one with regard to the

trial court’s entry denying his motion for relief from judgment.

       {¶6}    At the outset we note that Mr. Tustin submitted the same brief with the same

assignment or error for both appeals, making the two appeals duplicative. We therefore sua

sponte consolidate the appeals.
                                                3


                                               II.

                                        C.A. No. 28799

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED [MR. TUSTIN’S CIV.R.
       60(B)] WITHOUT A HEARING.

       {¶7}    In the appeal C.A. No. 28799, Mr. Tustin appeals the QDROs issued by the trial

court on September 1, 2017. Because Mr. Tustin’s sole assignment of error argues only the issue

of whether the trial court erred in denying Mr. Tustin’s motion for relief from judgment without

a hearing, the appeal presents no challenge to the orders issued by the trial court from which the

appeal was taken. Mr. Tustin’s assignment of error is therefore overruled.

                                        C.A. No. 29104

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED [MR. TUSTIN’S CIV.R.
       60(B)] WITHOUT A HEARING.

       {¶8}    In his assignment of error, Mr. Tustin argues the trial court erred by failing to

conduct a hearing on his Civ.R. 60(B) motion for relief from judgment. We disagree.

       {¶9}    “To reverse the denial of a motion for relief under Civ.R. 60(B), we must find that

the lower court abused its discretion.”     Society Natl. Bank v. Val Halla Athletic Club &

Recreation Ctr., Inc., 63 Ohio App.3d 413, 418 (9th Dist.1989). “The trial court abuses its

discretion when it does not grant a hearing on the motion where the movant alleges operative

facts which would warrant relief under Civ.R. 60(B).” Id. However, “[a] party moving for relief

from judgment under Civ.R. 60(B) is not automatically entitled to an evidentiary hearing.”

Valore v. Masink, 9th Dist. Wayne No. 18719, 1998 WL 646760, *3 (Sept. 16, 1998). If “the

movant does not provide operative facts which demonstrate that relief is warranted, the trial
                                                    4


court may deny the motion without holding a hearing.”               Gaines & Stern Co., L.P.A. v.

Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., 70 Ohio App.3d 643, 646 (8th Dist.1990).

“All operative facts must be presented with the motion; the movant cannot wait to present

operative facts at a hearing.” Valore at *3.

          {¶10} In its order denying the Civ.R. 60(B) motion, the trial court noted that it was not

required to grant an evidentiary hearing if Mr. Tustin did not allege operative facts that justified

relief from judgment. Accordingly, the trial court found that Mr. Tustin’s motion failed to allege

a meritorious basis as to why he was entitled to passive growth on the amount he was awarded

from Ms. Hoffman’s defined contribution plan from the de facto termination date of marriage.

          {¶11} Although Mr. Tustin is correct that the QDRO valuation date was January 1,

2014, and not the de facto termination of marriage date of December 31, 2011, he failed to show

that he was entitled to any passive growth during this period. As noted by the trial court:

          With respect to retirement accounts, there is no controlling legal authority
          directing that any appreciation or depreciation in an account value between the
          date of judgment and the date of disbursement be shared equally between the
          spouses or, alternatively, directing that the benefit or loss go exclusively to the
          account-holder spouse. Rather, the issue is left to the discretion of the trial court.

Sieber v. Sieber, 12th Dist. Butler Nos. CA2014-05-106 and CA2014-05-114, 2015-Ohio-2315,

¶ 75. Although the trial court had discretion to order that any such appreciation or depreciation

be shared equally, it did not do so here; there is no language in the decree addressing the issue.

In addition, because the decree sets forth a sum certain awarded amount of $103,436.62, and

does not provide for any additional calculation of passive growth on the account, the additional

award that Mr. Tustin argues he was entitled to would be an impermissible modification of the

decree.
                                                  5


       {¶12} Mr. Tustin further argues that the QDRO erroneously assigns to Mr. Tustin the

amount of $97,775.17, because the amount of $5,661.45, which had been awarded to Ms.

Hoffman, was erroneously subtracted from the $103,436.62 awarded to Mr. Tustin. Mr. Tustin

fails to provide us any argument in support of this blanket assertion of error, and fails to show

that he alleged any operative facts to the trial court that would have entitled him to relief.

Finally, Mr. Tustin states that the QDRO lists an incorrect filing date for the decree of divorce,

but fails to provide any argument that such an error would be grounds for relief.

       {¶13} As to the QDRO dividing Ms. Hoffman’s pension plan, the trial court found that it

could not discern an argument as to any meritorious claim or defense, and accordingly denied

Mr. Tustin’s motion with regard to the pension plan QDRO. Mr. Tustin raises no argument to

the contrary.

       {¶14} Mr. Tustin has failed to show that he alleged operative facts which would have

warranted relief under Civ.R. 60(B). Therefore, we cannot conclude the trial court abused its

discretion in denying Mr. Tustin’s motion for relief from judgment without conducting a hearing.

Mr. Tustin’s assignment of error is overruled.

                                                 III.

       {¶15} Mr. Tustin’s assignment of error is overruled as to both C.A. No. 28799 and C.A.

No. 29104. The judgment of the Summit County Court of Common Pleas, Domestic Relations

Division, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 6


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



HENSAL, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

RHYS B. CARTWRIGHT-JONES, Attorney at Law, for Appellant.

MELISSA GRAHAM-HURD and ERIN N. DAZEY, Attorneys at Law, for Appellee.
