[Cite as Ganz v. Ganz, 2012-Ohio-510.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




SUSAN GANZ                                      JUDGES:
                                                Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                     Hon. Sheila G. Farmer, J.
                                                Hon. John W. Wise, J.
-vs-

THOMAS GANZ                                     Case No. 2011AP070028

        Defendant-Appellee                      OPINION



CHARACTER OF PROCEEDING:                        Appeal from the Court of Common
                                                Pleas, Case No. 2010TM020094



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT:                               February 9, 2012




APPEARANCES:

For Plaintiff-Appellant                         For Defendant-Appellee

JOSEPH I. TRIPODI                               J. KEVIN LUNDHOLM
114 East High Avenue                            405 Chauncey Avenue, NW
New Philadelphia, OH 44663                      P.O. Box 668
                                                New Philadelphia, OH 44663
Tuscarawas County, Case No. 2011AP070028                                                2

Farmer, J.

          {¶1}   On June 18, 1991, appellant, Susan Ganz, and appellee, Thomas Ganz,

were married. On February 25, 2010, appellant filed a complaint for divorce. A hearing

before a magistrate was held on November 4, 2010. By decision filed January 27,

2011, the magistrate recommended a division of assets which included the parties'

retirement benefits. Appellee filed objections. A hearing was held on May 23, 2011. By

judgment entry filed June 23, 2011, the trial court granted in part the objections

pertaining to the division of the retirement benefits. A final order was filed on June 29,

2011.

          {¶2}   Appellant filed an appeal on July 5, 2011 and assigned the following

errors:

                                              I

          {¶3}   "THE TRIAL COURT ABUSED ITS DISCRETION IN ITS CALCULATION

OF THE APPELLEE’S MARITAL PORTION OF HIS PRUDENTIAL ANNUITY AND

APPELLEE’S OTHER RETIREMENT ACCOUNTS CAUSING APPELLANT TO LOSE

THE BENEFIT OF R.C. 3105.171(A), 3(a), (i), AND R.C. 3105.171(B)."

                                              II

          {¶4}   "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ‘DIVIDED’

APPELLANT’S SOCIAL SECURITY BENEFIT AS PART OF ITS ORDER OF

PROPERTY DISTRIBUTION IN CONTRAVENTION OF R.C. 3105.171(B) AND R.C.

3105.171(F)(9)."

          {¶5}   Appellee filed a cross-appeal on July 22, 2011 and assigned the following

error:
Tuscarawas County, Case No. 2011AP070028                                              3


                          CROSS-ASSIGNMENT OF ERROR I

       {¶6}   "THE TRIAL COURT ABUSED ITS DISCRETION IN NOT ALLOWING

APPELLEE TO PURCHASE THE MARITAL HOME AT THE FAIR MARKET VALUE."

                                              I

       {¶7}   Appellant claims the trial court abused its discretion in calculating the

marital portion of appellee's retirement accounts. We disagree.

       {¶8}   In her decision filed January 27, 2011, the magistrate found the following

in pertinent part relevant to retirement benefits:

       {¶9}   "10. Susan Ganz has an IRA with a fair market value of approximately

$46,684.93, all of which is marital. She consents to the value of her IRA being offset

against the value of Thomas Ganz's pension.

       {¶10} "11. Thomas Ganz retired in July of 2006. When he retired, he took a

lump sum benefit and put it all in the Prudential account. His 401K also was deposited

into the Prudential account.***The marital value of that account, according to Pension

Evaluators' letter of 12/21/10, is $310,556.85.***

       {¶11} "12. As of the date of hearing, Susan Ganz had approximately $11,000.00

left of her lump sum Social Security Disability remaining. She argues that the Social

Security Disability benefit is separate property. The Magistrate finds that as it is to

replace lost wages, it is marital property.

       {¶12} "13. The total combined marital retirement benefits of the parties is

$357,241.78."

       {¶13} The magistrate recommended the following division of the parties'

retirement benefits:
Tuscarawas County, Case No. 2011AP070028                                               4


       {¶14} "7. The combined marital portion of the retirement benefits should be

divided equally. Each party is entitled to $178,620.89. Susan Ganz should retain all of

her IRA, plus the remaining $11,000.00 of the lump sum Social Security Disability

benefit. These amounts total $57,684.93. The balance owed to her should be paid in a

lump sum from the Prudential account.***"

       {¶15} In its June 23, 2011 judgment entry granting appellee’s objections in part,

the trial court found the following:

       {¶16} "FINDS that upon review of the record and the transcript of the 11/4/2010

hearing before the Magistrate, at the time of the hearing Thomas Ganz’s Prudential

Retirement Annuity was worth approximately $313,572.40.          According to Pension

Evaluators' letter of 12/21/2010, 64.2670% of the value of that account is marital

property. Therefore, the marital value of the Prudential Account at the time of the

hearing was approximately $201,523.57."

       {¶17} The trial court then concluded the following:

       {¶18} "ORDERED that Recommendation No. 7 shall be rejected.                   The

combined marital portion of the retirement benefits and the remaining Social Security

Disability benefit shall be divided equally. Each party is entitled to $129,604.25. Susan

Ganz shall retain all of her IRA, plus the remaining $11,000.00 of the lump sum Social

Security Disability benefit. These amounts total $57,684.93. The balance owed to her

in the amount of $71,919.32 should be paid in a lump sum from the Prudential

account.***"
Tuscarawas County, Case No. 2011AP070028                                                 5


       {¶19} Appellant argues the trial court miscalculated the combined marital portion

of appellee's retirement benefits and then improperly reduced it, in effect giving appellee

a double deduction.

       {¶20} During the November 4, 2010 magistrate's hearing, the parties agreed

they would all benefit from an evaluation of appellee's 401K by Pension Evaluators. T.

at 155-156. Pension Evaluators submitted an evaluation on December 21, 2010. See,

Appendix One, Appellant's Reply brief filed October 25, 2011.         Pension Evaluators

determined the total value of the retirement funds (lump sum and 401K) at the time of

appellee's retirement in 2006 to be worth $483,229.19. Pension Evaluators determined

the marital portion of the 2006 amount to be 64.267% or $310,556.85. However, by the

time of the magistrate's hearing, the total retirement funds in the Prudential account

equaled $313,572.40. See, Defendant's Exhibit F. The trial court took this figure and

applied the 64.267% and determined appellee's marital portion of the remaining

retirement funds to be $201,523.57 as opposed to the magistrate's $310,556.85.

       {¶21} We agree with the trial court's calculations regarding appellee's retirement

funds. Appellant was not entitled to benefit from the 2006 amounts, as the retirement

funds were reduced by expenditures for living expenses during the marriage (2006-

2010) and market performance.

       {¶22} Upon review, we find the trial court did not abuse its discretion in

calculating the marital portion of appellee's retirement funds.

       {¶23} Assignment of Error I is denied.
Tuscarawas County, Case No. 2011AP070028                                                  6


                                                II

        {¶24} Appellant claims the trial court abused its discretion in dividing her social

security benefit as part of the property distribution in violation of R.C. 3105.171. We

disagree.

        {¶25} As cited supra, the trial court determined appellant's "remaining Social

Security Disability benefit [$11,000.00] should be divided equally."       See, Judgment

Entry filed June 23, 2011.

        {¶26} Appellant argues the trial court erred in dividing the remaining social

security disability benefit in violation of R.C. 3105.171(B) and (F)(9) which excludes

social security benefits unless one of the parties has accumulated a public pension.

Neither party in this case has accumulated a public pension.

        {¶27} Appellant testified the $35,983.00 lump sum award she received from

social security was for disability. T. at 18-19; Plaintiff's Exhibit 3. She agreed the award

was to replace the income she was unable to earn during the time of her disability which

was during the marriage. T. at 53. Appellant's social security disability payment was in

lieu of wages she would have earned during the marriage and therefore constitutes

marital property. Henderhan v. Henderhan, Stark App. No. 2001CA00330, 2002-Ohio-

2674.

        {¶28} Upon review, we find the trial court did not abuse its discretion in dividing

appellant's social security disability award.

        {¶29} Assignment of Error II is denied.
Tuscarawas County, Case No. 2011AP070028                                              7


                         CROSS-ASSIGNMENT OF ERROR I

      {¶30} Appellee claims the trial court erred in not allowing him to purchase the

marital home at the fair market value.

      {¶31} By stipulation filed with this court on January 19, 2012, the parties agreed

that appellee "shall be given 30 days to refinance the marital home into his name only,

removing Appellant Susan Ganz from any liability on the current loan. Susan Ganz

agrees to cooperate in the refinancing process, including signing a Quit Claim Deed to

Thomas Ganz."

      {¶32} Based upon this stipulation, this cross-assignment of error is denied.

      {¶33} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                           _s/ Sheila G. Farmer_______________



                                           _s/ William B. Hoffman______________



                                           s/ John W. Wise__________________



                                                       JUDGES

SGF/db 0124
[Cite as Ganz v. Ganz, 2012-Ohio-510.]


               IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




SUSAN GANZ                                    :
                                              :
        Plaintiff-Appellant                   :
                                              :
-vs-                                          :        JUDGMENT ENTRY
                                              :
THOMAS GANZ                                   :
                                              :
        Defendant-Appellee                    :        CASE NO. 2011AP070028




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

judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.

Costs to appellant.




                                              s/ Sheila G. Farmer_______________



                                              _s/ William B. Hoffman______________



                                              _s/ John W. Wise__________________

                                                       JUDGES
