[Cite as Ware v. Ware, 2014-Ohio-2606.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



KENT WARE                                        JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                      Hon. John W. Wise, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-
                                                 Case No. 13 CA 91
BARBARA WARE

        Defendant-Appellee                       OPINION




CHARACTER OF PROCEEDING:                     Civil Appeal from the Court of Common
                                             Pleas, Domestic Relations Division, Case
                                             No. 10 DR 554 RPW


JUDGMENT:                                    Affirmed



DATE OF JUDGMENT ENTRY:                       June 16, 2014



APPEARANCES:

For Plaintiff-Appellant                      For Defendant-Appellee

EUGENE R. BUTLER                             PAUL GIORGIANNI
145 Rich Street, Second Floor                1538 Arlington Avenue
Columbus, Ohio 43215                         Columbus, Ohio 43212-5550
Licking County, Case No. 13 CA 91                                                       2

Wise, J.

     {¶1}.   Appellant Kent Ware appeals the decision of the Court of Common Pleas,

Domestic Relations Division, Licking County, which granted his complaint for divorce

from Appellee Barbara Ware. The relevant facts leading to this appeal are as follows.

     {¶2}.   Appellant and appellee were married in November 19, 1983 in Colorado.

Three children were born of the marriage, two of whom were emancipated as of the

commencement of the present appeal.

     {¶3}.   On April 7, 2010, appellant filed a complaint for divorce in the trial court.

Appellee filed an answer on May 6, 2010.

     {¶4}.   The case proceeded to a trial on June 18, 2012. The court first heard the

testimony of pension expert Brian Hogan of QDRO Consultants in Medina Ohio,

followed by the testimony of appellant and appellee.

     {¶5}.   The basic economic situation of the parties herein is not in factual dispute.

Appellee is employed by Mt. Carmel Health Systems as a registered ER nurse.

Appellant commenced employment in 1985 with the Ohio Department of Health and has

been a participant in the Ohio Public Employment System ("PERS") since that time.

However, in November 2001, appellant fell from a roof and broke several ribs and two

vertebrae, resulting in two spinal fusion surgeries. He has since been diagnosed with

chronic low back pain and arachnoiditis. He was placed on permanent disability status

by PERS on November 17, 2011, while the parties' divorce was pending in the trial

court. He is subject to annual medical re-evaluation.

     {¶6}.   The trial court issued a final decree of divorce on September 17, 2013. No

spousal support was ordered. As further addressed infra, the trial court further made
Licking County, Case No. 13 CA 91                                                      3


orders regarding the PERS pension benefits, although it retained subject matter

jurisdiction over the matter "in order to achieve an equitable allocation of plaintiff's

PERS retirement consistent with this decision." Divorce Decree at 19.1 In sum, the trial

court set forth $1,653,614.09 in marital assets, the largest being appellant's PERS

pension. The trial court awarded all of the smaller marital assets to appellee, including

both appellant's and appellee's deferred compensation accounts, and divided the PERS

pension such that a near-50/50 division was accomplished as to the aggregate marital

property.

      {¶7}.   On October 8, 2013, appellant filed a notice of appeal. He herein raises

the following four Assignments of Error:

      {¶8}.   “I.   THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

DIVIDING THE DISABILITY PENSION BENEFIT.

      {¶9}.   II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

DIVIDING THE VACATION AND SICK LEAVE OF MR. WARE AND IN FAILING TO

DIVIDE THE VACATION AND SICK LEAVE OF APPELLEE.

      {¶10}. III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FAILING TO RETAIN JURISDICTION OVER THE ISSUE OF SPOUSAL SUPPORT.

      {¶11}. IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FAILING TO ORDER SPOUSAL SUPPORT.”




1
   According to R.C. 3105.171(I), “division or disbursement of property or a distributive
award made under this section is not subject to future modification by the court except
upon the express written consent or agreement to the modification by both spouses.”
Neither party appears to presently challenge the retention of jurisdiction over the
property division.
Licking County, Case No. 13 CA 91                                                           4


                                                 I.

      {¶12}. In his First Assignment of Error, appellant contends the trial court erred

and/or abused its discretion in dividing appellant's PERS pension. We disagree.

      {¶13}. An appellate court generally reviews the overall appropriateness of the

trial court's property division in divorce proceedings under an abuse-of-discretion

standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. In order to find

an abuse of discretion, we must determine that the trial court's decision was

unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. In order to make

an equitable division of property, the trial court should first determine the value of the

marital assets. See Eisler v. Eisler (1985), 24 Ohio App.3d 151, 152, 493 N.E.2d 975. In

performing this function, the trial court has broad discretion to develop some measure of

value. See Berish v. Berish (1982), 69 Ohio St.2d 318, 432 N.E.2d 183. Thus, “[t]he

valuation of marital assets is typically a factual issue that is left to the discretion of the

trial court.” Roberts v. Roberts, Franklin App.No. 08AP–27, 2008–Ohio–6121, ¶ 18

citing Berish, supra. Generally, as an appellate court, we are not the trier of fact. Our

role is to determine whether there is relevant, competent, and credible evidence upon

which the fact finder could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio

App.3d 768, 2010–Ohio–3489, 936 N.E.2d 1013, ¶ 16, citing Cross Truck Equipment

Co. v. Joseph A. Jeffries Co. (Feb. 10, 1982), Stark App. No. CA–5758, 1982 WL 2911.

      {¶14}. “Trial court decisions on what is presently separate and marital property

are not reversed unless there is a showing of an abuse of discretion.” Valentine v.

Valentine (Jan. 10, 1996), Ashland App.No. 95COA01120, citing Peck v. Peck (1994)
Licking County, Case No. 13 CA 91                                                          5


96 Ohio App.3d 731, 734, 645 N.E.2d 1300. Specifically, “[w]hen considering a fair and

equitable distribution of pension or retirement benefits in a divorce, the trial court must

apply its discretion based upon the circumstances of the case, the status of the parties,

the nature, terms and conditions of the pension or retirement plan, and the

reasonableness of the result.” Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 559 N.E.2d

1292, paragraph one of syllabus.

      {¶15}. Pursuant to R.C. 3105.171(B), “[i]n divorce proceedings, the court shall ***

determine what constitutes marital property and what constitutes separate property. In

either case, upon making such a determination, the court shall divide the marital and

separate property equitably between the spouses, in accordance with this section. * * *”

      {¶16}. R.C. 3105.171(C)(1) further states: “Except as provided in this division or

division (E)(1) of this section, the division of marital property shall be equal. If an equal

division of marital property would be inequitable, the court shall not divide the marital

property equally but instead shall divide it between the spouses in the manner the court

determines equitable. In making a division of marital property, the court shall consider

all relevant factors, including those set forth in division (F) of this section.”

      {¶17}. The fair and equitable division of pension or retirement benefits in a

divorce matter in Ohio is left to the trial court's discretion. Hoyt, supra, at paragraph one

of the syllabus. Pension or retirement benefits earned during the marriage are marital

assets and a factor to be considered in the just division of property. Id. at 178.

      {¶18}. In the case sub judice, the trial court determined the total present value of

the PERS benefits to be $1,073,048.09, based on one of the scenarios Hogan ran in his

trial testimony. The trial court designated this entire amount as "Plaintiff's OPERS"
Licking County, Case No. 13 CA 91                                                        6


under the heading of marital property on its distribution chart attached to the divorce

decree. See Trial Court's Attachment "B." This figure essentially represents the present

value of the PERS pension benefits appellant will receive starting at age 60, applying an

actuarial figure and assuming he will stay on PERS disability until that age.

      {¶19}. Specifically, appellant's first monthly PERS disability payment was made

on December 1, 2011, in the amount of $5,003.43. Hogan calculated that the monthly

amount would grow to $6,204.25 per month by the time appellant turns 60 in 2019,

using a set annual cost-of-living adjustment. Hogan then annualized the monthly benefit

($6,204.25 times 12) and multiplied that figure by an actuarial factor of 14.1114 for a

non-social security disabled male, and added an administrative cost load of $22,440.25

to reach the aforesaid $1,073,048.09. See Defendant's Exhibit A.

      {¶20}. Appellant commences his argument by proposing that his PERS benefit

consists of two parts: The "normal" retirement benefit component, which appellant

concedes is marital property, and the "wage replacement" component, which appellant

urges is separate property. Appellant's Brief at 12. Appellant notes that under the

provisions of the disability plan applicable to him, PERS granted him an additional

period of roughly eight years of "instant service credit" (see R.C. 145.36) when he went

on disability at age 52, reflective of the number of years left until age 60, when he would

likely have begun his PERS retirement, but for his disability.

      {¶21}. In support, appellant directs us to, inter alia, Henderhan v. Henderhan, 5th

Dist. Stark No. 2001CA00330, 2002-Ohio-2674, and a case this Court therein recited,

Elsass v. Elsass, 2nd Dist. Green Nos. 93-CA-0005, 93-CA-0016, 1993 WL 541610. In

Elsass, the Second District Court of Appeals adopted a general rule set forth in the
Licking County, Case No. 13 CA 91                                                               7


article entitled Principles and Guidelines for the Division of Property in Actions for

Divorce in Ohio (Mar.1981), 54 Ohio Bar 491, 505, indicating that disability benefits are

not marital property unless they are accepted by the retiree in lieu of retirement pay, in

which case they are marital property to the extent that retirement pay value is included

therein. (Internal quotations omitted).

      {¶22}. We note the parties in this appeal are not disputing that appellant is

entitled to his post-divorce PERS benefits between the ages of 52 and 60 as his

separate property. Appellant's reliance on Elsass is essentially a steppingstone to his

chief argument: that the trial court erred in failing to apply a coverture fraction to his

"post-retirement age" (i.e., after age 60) PERS valuation, assuming we accept the

aforesaid $1,073,048.09 calculation.

      {¶23}. A coverture fraction, stated mathematically, is as follows: "The numerator

of the coverture fraction is the number of years the appellant participated in the pension

plan during the marriage and the denominator is the total number of years the appellant

participated in the plan." Ferris v. Ferris, 5th Dist. Fairfield 00 CA 58, 2001 WL 194779.

      {¶24}. In the case sub judice, appellant commenced employment with the State

of Ohio in 1985, after the parties were married. If we consider his termination date of

employment to be November 30, 2011, the end of the month in which he became

eligible for PERS disability, then his entire public service career was within the confines

of the marriage, with ended June 18, 2012 per the decree; in that case, the coverture

fraction has no effect. However, appellant chiefly contends the approximately eight-year

instant service credit (reflecting the period of his date of disability eligibility until his 60th

birthday in 2019) should be added to the denominator, i.e., appellant's total time of
Licking County, Case No. 13 CA 91                                                        8


employment under the plan, resulting in a coverture fraction of .787 to be applied to the

$1,073,048.09 figure.

      {¶25}. The case appellant cites in support, Thompson v. Thompson, 196 Ohio

App.3d 764, 2011-Ohio-6286, does not mandate that we follow appellant's coverture

theory in the present case. Thompson, which did not involve instant service credits,

merely holds that it was not an abuse of discretion in that case for the trial court to

utilize a coverture fraction methodology based on a calculated post-marriage increase in

benefits for a teacher reaching thirty years under STRS. Id. at 778. Moreover, as a

general rule, we note the Ohio Supreme Court has explained that "flat rules have no

place in determining a property division." See Hoyt at 180, 559 N.E.2d 1292. We

therefore find no basis to reverse, on an abuse of discretion standard, the trial court's

refusal to apply a coverture fraction under the circumstances presented.

      {¶26}. Appellant adds two additional arguments to the PERS division issue,

urging that it was error for the trial court to order him (1) to designate appellee as his

sole beneficiary for any pre-retirement survivor benefits and (2) to elect a joint survivor

annuity benefit, where the PERS valuation assumed a single life annuity.

      {¶27}. Regarding appellant's first issue, R.C. 145.43(B) states as follows in

pertinent part: "Except as provided in division (C)(1) of section 145.45 of the Revised

Code, should a member die before age and service retirement, the member's

accumulated contributions and any applicable amount calculated under section 145.401

of the Revised Code, shall be paid to the person or persons the member has

designated under section 145.431 of the Revised Code. ***." We note the Ohio

Supreme Court generally recognized in Hoyt, supra, that "[t]o preserve the asset so that
Licking County, Case No. 13 CA 91                                                       9


each party can procure the most benefit, an award of full survivorship benefits under

circumstances of a deferred distribution of a retirement asset may meet this goal." Id. at

185. Appellee responds, inter alia, that appellant failed to raise this issue to the trial

court, even though it is referenced in appellant’s proposed decree. In any case, we are

unpersuaded that the order of designation of appellee as sole beneficiary of pre-

retirement survivor benefits under the circumstances constituted an abuse of discretion.

      {¶28}. Regarding appellant's second issue, appellee, citing R.C. 145.36,

concedes that a "life with selected percentage to survivor plan" is permitted for age-and-

service PERS retirees, but not for disability retirees, such as appellant. Thus, assuming

no change in appellant's disability status, we find no prejudicial result to appellant

warranting reversal. Furthermore, because the trial court took the extra step of

maintaining jurisdiction over property division in this matter, appellant will be able to

petition the court should circumstances change in this regard.

      {¶29}. Upon review, we are unpersuaded that the trial court abused its discretion

in its distribution of property, particularly the PERS pension benefits, as urged by

appellant.

      {¶30}. Appellant's First Assignment of Error is therefore overruled.

                                               II.

      {¶31}. In his Second Assignment of Error, appellant argues the trial court erred in

its treatment of the vacation and sick leave amounts of the parties. We disagree.

      {¶32}. In the case sub judice, the trial court awarded to appellee "one-half of the

[appellant's] vacation and sick leave accumulated as of December 31, 2011." Decree at

19. Appellant herein maintains that no evidence supports the trial court's finding that
Licking County, Case No. 13 CA 91                                                         10


appellant even has any sick or vacation leave available. On the other hand, appellant

insists that appellee's testimony reveals she has such benefits, worth approximately

$4,000.00, but the trial court failed to include these assets in its division of the parties'

property.2

      {¶33}. In conducting our review, we are guided by the presumption that the trier

of fact is best able to view the witnesses and observe their demeanor, gestures, and

voice inflections, and use these observations in weighing the credibility of the testimony.

See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.

Furthermore, this Court has expressed its reluctance to engage in piecemeal review of

individual aspects of a property division taken out of the context of the entire award. See

Harper v. Harper (Oct. 11, 1996), Fairfield App.No. 95 CA 56, citing Briganti v. Briganti

(1984), 9 Ohio St.3d 220, 459 N.E.2d 896.

      {¶34}. While the reasoning for equally splitting appellant's amount of vacation

and sick leave benefits while ignoring appellee's is not completely clear, it may simply

have been the trial court's additional means of achieving equity between the parties,

and in light of the entirety of the property division in this instance, we are unpersuaded

that the trial court abused its discretion in such an order.

      {¶35}. Appellant's Second Assignment of Error is therefore overruled.

                                                III.

      {¶36}. In his Third Assignment of Error, appellant contends that the trial court

erred and/or abused its discretion in declining to retain jurisdiction over the issue of

spousal support. We disagree.

2
   A rough calculation indicates that this figure constitutes less than three-tenths of one
percent of the total value of the marital assets.
Licking County, Case No. 13 CA 91                                                      11


      {¶37}. R.C. 3105.18(E) mandates that a trial court must specifically reserve

jurisdiction in its divorce decree or a separation agreement incorporated into the decree

in order to modify a spousal-support award. The decision of whether to retain such

jurisdiction is a matter within the domestic relations court's discretion. Smith v. Smith

(Dec. 31, 1998), Lucas App. No. L–98–1027, 1998 WL 904941, citing Johnson v.

Johnson (1993), 88 Ohio App.3d 329, 331, 623 N.E.2d 1294.

      {¶38}. This Court has previously held that a trial court errs in reserving

jurisdiction over the issue of spousal support after finding that spousal support was not

appropriate or reasonable. See Vona v. Vona, 5th Dist. Stark No. 00-CA-00040, 2001

WL 109368; Long v. Long (July 24, 2000), Stark App. No. 1999CA00388, 2000 WL

1027285. We find no compelling reasons to presently deviate from our precedent on

this issue.

      {¶39}. We are therefore unpersuaded the trial court abused its discretion in its

decision to not retain jurisdiction over spousal support.

      {¶40}. Appellant's Third Assignment of Error is therefore overruled.

                                               IV.

      {¶41}. In his Fourth Assignment of Error, appellant contends that the trial court

erred and/or abused its discretion in failing to award spousal support to him.

      {¶42}. Appellant originally presented this assigned error as "conditional." In our

review of appellee's response brief and appellant's reply brief, the parties appear to now

have stipulated that redress of this issue is not necessary based on the timing of the

actual commencement of payment of the divided PERS benefits.
Licking County, Case No. 13 CA 91                                                      12


         {¶43}. We therefore will not further address appellant's Fourth Assignment of

Error.

         {¶44}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Licking County, Ohio, is hereby

affirmed.


By: Wise, J.

Delaney, J., concurs.

Hoffman, P. J., concurs separately.




JWW/d 0604
Licking County, Case No. 13 CA 91                                                         13

Hoffman, P.J., concurring

       {¶45} I concur in the majority's general analysis and disposition of Appellant's

four assignments of error.

       {¶46} I write separately only to note I do not believe the trial court's retention of

jurisdiction over the division of Appellant's PERS retirement benefits is valid. I would

not use the trial court's attempted retention of jurisdiction as justification for overruling

Appellant's first assignment of error.
Licking County, Case No. 13 CA 91   14
