[Cite as Kazakis v. Kazakis, 2013-Ohio-4181.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



ROSE KAZAKIS                          :             JUDGES:
                                      :             Hon. Sheila G. Farmer, P.J.
   Plaintiff-Appellee/Cross-Appellant :             Hon. John W. Wise, J.
                                      :             Hon. Craig R. Baldwin, J.
-vs-                                  :
                                      :
PETER KAZAKIS                         :             Case No. 2012CA00227
                                      :
   Defendant-Appellant/Cross-Appellee :             OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Domestic Relations Division,
                                                    Case No. 2011-DR-01572


JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   September 23, 2013




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ROSEMARY G. RUBIN                                   STANLEY R. RUBIN
1435 Market Avenue North                            437 Market Avenue North
Canton, OH 44714                                    Canton, OH 44702
Stark County, Case No. 2012CA00227                                                   2

Farmer, P.J.

      {¶1}     Appellant, Peter Kazakis, and appellee, Rose Kazakis, were married on

April 23, 1977.    On December 19, 2011, appellee filed a complaint for divorce.     A

hearing before a magistrate was held on September 6, 2012. By decision filed October

15, 2012, the magistrate recommended the granting of a divorce, a division of property,

and a spousal support award to appellee. Both parties filed objections. By judgment

entry filed November 29, 2012, the trial court denied the objections and approved and

adopted the magistrate's decision.

      {¶2}     Appellant filed an appeal and assigned the following errors:

                                             I

      {¶3}     "THE TRIAL COURT ERRED IN COUNTING THE APPELLANT'S

PENSION TWICE; FIRST AS A MARITAL ASSET SUBJECT TO EQUAL DIVISION

AND THEN AGAIN AS INCOME IN MAKING AN AWARD OF SPOUSAL SUPPORT."

                                             II

      {¶4}     "THE TRIAL COURT'S METHOD FOR DIVIDING THE APPELLANT'S

POLICE AND FIRE PENSION RESULTED IN AN INEQUITABLE DIVISION OF

MARITAL ASSETS."

                                            III

      {¶5}     "THE TRIAL COURT'S SPOUSAL SUPPORT AWARD WAS NOT

APPROPRIATE AND REASONABLE."

                                            IV

      {¶6}     "THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE

DISTRIBUTIVE AWARD WHEN MAKING ITS AWARD OF SPOUSAL SUPPORT."
Stark County, Case No. 2012CA00227                                                      3


      {¶7}   Appellee filed a cross-appeal and assigned the following error:

                         CROSS-ASSIGNMENT OF ERROR I

      {¶8}   "THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE

VETERANS' DISABILITY PENSION OF THE APPELLANT IN DETERMINING THE

AMOUNT OF SPOUSAL SUPPORT."

      {¶9}   This matter is now before this court for consideration.

                                            I

      {¶10} Appellant claims the trial court erred in counting his pension twice, as a

marital asset subject to equal division and as income in the determination of spousal

support. We disagree.

      {¶11} The trial court is provided with broad discretion in deciding what is

equitable upon the facts and circumstances of each case. Cherry v. Cherry, 66 Ohio

St.2d 348 (1981). We cannot substitute our judgment for that of the trial court unless,

when considering the totality of the circumstances, the trial court abused its discretion.

Holcomb. v. Holcomb, 44 Ohio St.3d 128 (1989). In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).

      {¶12} Appellant served twenty years in the military and thirty years as a Canton

police officer. He receives pensions from the military and the Ohio Police and Fire

Pension Fund. He also receives a disability payment from the Veterans Administration.

In her decision filed October 15, 2012 (approved and adopted by the trial court), the

magistrate specifically addressed how she arrived at the distributive award to appellee
Stark County, Case No. 2012CA00227                                                  4


of appellant's Ohio Police and Fire Pension Fund which had a marital value of

$654,466.12:



               The parties have been married 35 years. The assets of the parties

      create difficulty in making an equal division of the property. When viewing

      a totality of their assets the value is $1,591,157.44.     Of this amount

      $310,017.56 is separate property of the Defendant, which results in

      $1,281,049.88 as marital assets. Of this amount over half is the Ohio

      Police and Fire Pension whose value if (sic) $654,466.12. For reasons

      known only to the parties, the Plaintiff waived her right to survivorship

      making a division of the pension without real substance. In addition she

      would have to wait 3½ years to draw down the IRA. Another large asset is

      the marital home valued at $145,000. Plaintiff has no interest in the house

      or most of the personal property (other than the 2002 Dodge Caravan and

      those items set forth on Division of a Personal Property Agreement that is

      attached to this Decision). Defendant wishes to retain the home and all

      personal property except that which is specified in the agreement and the

      2002 Dodge Caravan.        To sell these assets in these economic times

      would not make good sense.        In addition $116,744.83 is the value of

      Plaintiff's social security. Again at the age of 56 she has to wait before

      she is able to access her monthly payment. Therefore the reality is that

      $310,349.93 is the value of meaningful assets as of this date.

               ***
Stark County, Case No. 2012CA00227                                                     5


               The Court finds that a distributive award of $204,992.00 is

      important to achieve equity because of the nature of the assets.

      Defendant may make a lump sum payment within 60 days or shall make

      monthly payments of $1,708.00 for ten years commencing January 1,

      2013.



      {¶13} We note, as the parties concede, the police pension is in payout to

appellant alone in the amount of $2,829.00 per month, plus appellant received a lump

sum for participating in DROP in the amount of $242,245.63. T. at 94-95. Part of that

amount was awarded to appellee and is noted as Allianz IRA #6525 in the amount of

$195,943.49.

      {¶14} Although appellant concedes the police pension was a marital asset

subject to division, he argues it was incorrect to attribute the monthly amount from the

pension as income to him in calculating funds available for spousal support.           In

determining the spousal support issue, the magistrate noted in her decision,

"Defendant's monthly income is $3,556.00 (excluding $2769.00 from Veterans

Disability). Plaintiff's income is $406.99 a month. Defendant's expenses are 1,540.00 a

month. Plaintiff still resides in the marital home under a Schedule D order but estimates

her monthly expenses to be $4,363.54."        Appellant was ordered to pay appellee

$1,981.00 per month in spousal support.

      {¶15} In support of his argument, appellant points to this court's opinion in Mizer

v. Mizer, 5th Dist. Coshocton No. 08CA0004, 2009-Ohio-1390, ¶ 40, wherein this court

determined the following:
Stark County, Case No. 2012CA00227                                                      6




              Regarding appellee's receipt of a portion of appellant's retirement

       benefits, the retirement benefits were awarded to appellee as part of the

       property division. The only value of the retirement benefits was the future

       payout available to appellee when appellant retired. We find under these

       circumstances the retirement benefits should not be treated as part of

       appellee's income, because they represent a portion of the marital

       property the court previously awarded to her.



       {¶16} The decision in Mizer was generated by a motion for modification of

spousal support. The Mizer appellee received an award of the marital share of the

appellant's pension which was not in payout according to the evidence before the trial

court. The Mizer appellant wanted appellee's marital share that was to payout, to be

counted in the determination of spousal support. Therefore, the reasoning in Mizer is

oppositional to the facts sub judice.

       {¶17} The gravamen of this matter is whether appellant's police pension income

should be considered as income for purposes of spousal support.               R.C. 3105.18

governs spousal support. Subsection (C) states the following in pertinent part:



              (C)(1) In determining whether spousal support is appropriate and

       reasonable, and in determining the nature, amount, and terms of payment,

       and duration of spousal support, which is payable either in gross or in

       installments, the court shall consider all of the following factors:
Stark County, Case No. 2012CA00227                                                     7


             (a) The income of the parties, from all sources, including, but not

      limited to, income derived from property divided, disbursed, or distributed

      under section 3105.171 of the Revised Code;

             (d) The retirement benefits of the parties.



      {¶18} We find appellant's police pension income should be considered as

income for purposes of spousal support.          The police pension was in payout and

appellee had waived all of her survivor rights under the plan. Appellant was credited for

the entire pension in calculating his assets and a distributive award was ordered to

appellee. That completed the equitable and reasonable division of marital assets.

      {¶19} The determination of spousal support is separate and apart from any

distributive award. The inclusion of appellant's police pension as income was properly

considered under the plain reading of R.C. 3105.18(C)(1). From the determination of all

funds available to appellant, and factoring in the long term marriage of the parties, as

well as the disparity in the financial acumen of the parties as noted in the magistrate's

decision, we find the inclusion was not unlawful or an abuse of discretion.

      {¶20} Assignment of Error I is denied.

                                            II

      {¶21} Appellant claims the trial court erred in dividing his police pension as a

total lump sum when the pension was in payout as opposed to dividing the pension in

half from the onset. We disagree.

      {¶22} Pursuant to R.C. 3105.171(E), it is within a trial court's discretion to

formulate a distributive award to accommodate equity.       In considering a division of
Stark County, Case No. 2012CA00227                                                    8


marital property, the magistrate specifically cited to R.C. 3105.171(F) which states the

following:



              (F) In making a division of marital property and in determining

       whether to make and the amount of any distributive award under this

       section, the court shall consider all of the following factors:

              (1) The duration of the marriage;

              (2) The assets and liabilities of the spouses;

              (3) The desirability of awarding the family home, or the right to

       reside in the family home for reasonable periods of time, to the spouse

       with custody of the children of the marriage;

              (4) The liquidity of the property to be distributed;

              (5) The economic desirability of retaining intact an asset or an

       interest in an asset;

              (6) The tax consequences of the property division upon the

       respective awards to be made to each spouse;

              (7) The costs of sale, if it is necessary that an asset be sold to

       effectuate an equitable distribution of property;

              (8) Any division or disbursement of property made in a separation

       agreement that was voluntarily entered into by the spouses;

              (9) Any retirement benefits of the spouses, excluding the social

       security benefits of a spouse except as may be relevant for purposes of

       dividing a public pension;
Stark County, Case No. 2012CA00227                                                         9


              (10) Any other factor that the court expressly finds to be relevant

       and equitable.



       {¶23} The magistrate awarded a distributive award of $204,992.00 to appellee,

to be paid as a lump sum or monthly payments for ten years, finding the assets of the

parties "create difficulty in making an equal division of the property" as cited in

Assignment of Error I. By noting the lack of liquidity of the assets, we find the trial court

fashioned an equitable and fair distribution by formulating a payout over ten years. We

cannot say there was any better way, as appellant suggests there was an alternative

way. Given the facts, we find the trial court did not abuse its discretion.

       {¶24} Assignment of Error II is denied.

                                           III, IV

       {¶25} Appellant claims the trial court's award of $1,981.00 per month to appellee

for spousal support was not appropriate and reasonable as his monthly income after

paying spousal support is less than appellee's. We disagree.

       {¶26} Appellant arrives at this conclusion by factoring in the ten year monthly

payment of $1,708.00 for the distributive award to equalize the division assets. We find

this argument lacks merit. The trial court specifically noted the distributive award was

fashioned as it was to accommodate the non-liquidity of the marital assets. Further,

appellant's disability income was not included in the calculations. Given appellee's lack

of financial sophistication and the questionable issue surrounding appellee’s

relinquishment of her survivorship rights to appellant's police pension, we find the trial

court did not abuse its discretion.
Stark County, Case No. 2012CA00227                                                   10


       {¶27} Appellant also argues the trial court overlooked some of appellee’s income

by failing to include the ten year monthly distributive award. As we noted above, that

amount is separate and apart from spousal support and was an option for appellant to

facilitate the division of marital property.

       {¶28} Upon review, we do not find an abuse of discretion as to the calculation of

the spousal support award.

       {¶29} Assignments of Error III and IV are denied.

                            CROSS ASSIGNMENT OF ERROR I

       {¶30} Appellee claims the trial court erred in excluding appellant's disability

payments ($2,769.00) in determining the relative income of the parties for spousal

support purposes. We disagree.

       {¶31} We find appellee's arguments to be disingenuous.        Appellee disputes

appellant's argument that the ten year monthly distributive award ($1,708.00) should be

included as income to her.         Now appellee argues appellant’s non-marital income

property should be used in her favor.

       {¶32} Nowhere in R.C. 3105.18(C) is the requirement that the parties have the

same income.      It is clear when you read the decision as a whole, the magistrate

considered the various funds available to the parties and chose a spousal support

award that would reflect the value of each party’s relative earnings. To reconfigure the

award suggested by this cross-assignment of error would result in an additional

$2,769.00 to appellant's income and $1,708.00 to appellee's income. We cannot find

the additional $1,000.00 net to appellant of separate property would result in any

change in the award.
Stark County, Case No. 2012CA00227                                           11


      {¶33} Cross-Assignment of Error I is denied.

      {¶34} The judgment of the Court of Common Pleas of Stark County, Ohio,

Domestic Relations Division is hereby affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




                                           _______________________________
                                           Hon. Sheila G. Farmer



                                           _______________________________
                                           Hon. John W. Wise



                                           _______________________________
                                           Hon. Craig R. Baldwin


SGF/sg 806
[Cite as Kazakis v. Kazakis, 2013-Ohio-4181.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



ROSE KAZAKIS                                    :
                                                :
    Plaintiff-Appellee/Cross-Appellant          :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
PETER KAZAKIS                                   :
                                                :
    Defendant-Appellant/Cross Appellee          :       CASE NO. 2012CA00227




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

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

Division is affirmed. Costs to appellant.




                                                _______________________________
                                                Hon. Sheila G. Farmer



                                                _______________________________
                                                Hon. John W. Wise



                                                _______________________________
                                                Hon. Craig R. Baldwin
