[Cite as Morgan v. Morgan, 2016-Ohio-104.]


                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 102498




                              BARBARA A. MORGAN
                                                     PLAINTIFF-APPELLEE

                                               vs.


                                  MELVIN MORGAN

                                                     DEFENDANT-APPELLANT




                                         JUDGMENT:
                                          AFFIRMED


                                   Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                Domestic Relations Division
                                  Case No. DR-10-331959

        BEFORE:          Boyle, J., Jones, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                    January 14, 2016
ATTORNEYS FOR APPELLANT

Joseph G. Stafford
Carolyn Soeder
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza
5th Floor
Cleveland, Ohio 44114


ATTORNEY FOR APPELLEE

Brent L. English
Law Offices of Brent L. English
The 820 Building, 9th Floor
820 Superior Avenue, West
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

        {¶1} Defendant-appellant, Melvin Morgan, appeals from the trial court’s

decision denying his post-decree motion to modify division of property order. Finding

no merit to the appeal, we affirm.

        A. Procedural History and Facts

        {¶2} Melvin and plaintiff-appellee, Barbara Morgan, were divorced on March 7,

2013.    Eight days later, the court issued a division of property order (“DOPO”)

regarding the division of Melvin’s Ohio Police and Fire Pension Fund (“OPFPF”)

pension, which had been preapproved and signed by counsel for both parties. On May

20, 2013, the court docketed notice from the OPFPF accepting the DOPO and its

determination “that the [DOPO] meets the requirements of the Ohio Revised Codes

Sections 3105.80 to 3105.90.”

        {¶3} On June 30, 2014, 13 months after the OPFPF accepted the DOPO, Melvin

filed a “motion to modify division of property order.” In support of his motion, Melvin

attached his own affidavit, averring that he has “learned” that the DOPO is “inaccurate

and needs to be modified.” According to Melvin’s affidavit, “he had discussion with

officials at the Ohio Police and Firefighters Pension Fund which had indicated to him that

there are numerous error [sic] in the calculation of the monthly pension amount, periodic

payments amount and lump sum benefit.”       Melvin specifically requested that the trial

court modify the DOPO to be “consistent with the parties’ previous agreement.”
       {¶4} The trial court subsequently denied Melvin’s motion, stating, among other

things, the following:

              Defendant’s Motion and Affidavit do not, however, point the Court
       to specific errors in the DOPO or identify any inconsistency between the
       DOPO and the parties’ previous agreement (presumably, this refers to the
       Separation Agreement incorporated into the final decree). Defendant’s
       hearsay statements are inadmissible, and his conclusory statements are
       unpersuasive.

       {¶5} From this order, Melvin now appeals, raising the following single

assignment of error:

              The trial court erred and/or abused its discretion by failing to grant
       the appellant, Melvin R. Morgan’s motion to modify division of property
       order.

       B. Law and Analysis

       {¶6} Initially, we note that both the DOPO and the parties’ separation agreement

adopted by the court expressly provided for the trial court’s continuing jurisdiction over

the underlying matter. See Cameron v. Cameron, 10th Dist. Franklin No. 12AP-349,

2012-Ohio-6258, ¶ 10, citing R.C. 3105.171(I) (“After a trial court issues a divorce

decree, it lacks jurisdiction to modify or amend the marital property division, including

the division of a pension fund, unless the decree expressly reserves jurisdiction or the

parties expressly consent in writing to the modification.”). Here, there is no dispute over

the trial court’s subject matter jurisdiction to consider and rule upon Melvin’s motion.

Rather, the sole issue on appeal is whether the trial court abused its discretion in denying

Melvin’s motion.    See Rice v. Rice, 8th Dist. Cuyahoga No. 95221, 2011-Ohio-1366, ¶ 5

(“Appellate review of the domestic relations court’s judgment is subject to the abuse of
discretion standard.”).

       {¶7} In order for there to be an abuse of discretion, the result must be so palpably

and grossly violative of fact and logic that it evidences not the exercise of will but

perversity of will, not the exercise of judgment but defiance thereof, not the exercise of

reason but rather passion or bias.    Lemke v. Lemke, 8th Dist. Cuyahoga No. 94557,

2011-Ohio-457, ¶ 57, citing Kaiser v. Kaiser, 8th Dist. Cuyahoga No. 81346,

2003-Ohio-1343, ¶ 10. When applying the abuse of discretion standard, a reviewing court

may not simply substitute its judgment for that of the trial court.          Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶8} Based on the record before us, we cannot say that the trial court abused its

discretion. As noted by the trial court, Melvin’s motion failed to specifically identify

any error or inconsistency between the DOPO and the parties’ previous agreement.

Instead, Melvin relied solely on conclusory statements. Even on appeal, Melvin offers

no argument as to how the DOPO fails to “conform with the parties’ agreement as set

forth in the Judgment Entry of Divorce.”

       {¶9} As for Melvin’s claim that the trial court abused its discretion by not

holding a hearing on his motion, he offers no legal authority in support of his claim. See

App.R. 16(A)(7) (rule places an affirmative duty on appellant to provide reasoning in

support of an assignment of error with “citations to the authorities, statutes, and parts of

the record on which appellant relies”).    Further, Melvin never requested an evidentiary

hearing.   Ohio courts have consistently recognized that a trial court does not abuse its
discretion in not conducting a hearing when the movant never requested one. See, e.g.,

Bagnola v. Bagnola, 5th Dist. Stark No. 2004CA00151, 2004-Ohio-7286 (rejecting

appellant’s claim that the trial court abused its discretion in finding appellant in contempt

without conducting an evidentiary hearing when “appellant failed to properly and

specifically request” a hearing); Barton v. Barton, 10th Dist. Franklin No.

96APF11-1526, 1997 Ohio App. LEXIS 2429 (June 3, 1997), citing Civ.R. 7(B)(2)

(recognizing that there was “no requirement that the trial court hold an oral hearing,”

especially since appellant “never requested any further ‘hearing,’ oral or otherwise”).

       {¶10} We likewise do not find any merit to Melvin’s claim that “he did not request

a hearing because hearings were already scheduled.”      The record reflects that the parties

appeared for hearings before the magistrate for six days, beginning on May 12, 2014, and

concluding on August 27, 2014, on the parties’ motions to show cause and for attorney

fees, as well as Melvin’s motion to modify life insurance provisions.    The record further

reflects that at the May 13, 2014 hearing, Melvin’s counsel first mentioned that his “client

has been informed by QDRO consultants that the DOPO is not accurate and has to be

redone prior to retirement * * *.”    Melvin’s counsel then indicated that he would file a

“civil motion on the DOPO so that we can get everything resolved.” Although Melvin

filed his motion on June 30, 2014, he never requested a hearing nor did he raise the same

argument that he raises now on appeal, namely, that the parties mutually agree that the

DOPO is wrong and needs to be corrected.            Notably, Melvin’s motion was never

referred to the magistrate for hearing.   And while Melvin clearly believed that the matter
would be set for a hearing, we find no abuse of discretion in the trial court’s denial of a

motion without a hearing. Melvin simply failed to present any grounds to support the

need for a hearing based on his poorly drafted motion.

       {¶11} Our holding today, however, does not prevent either party from filing a

properly supported motion or requesting a hearing on alleged issues with the DOPO.        As

noted above, the trial court expressly retained jurisdiction over the DOPO, as agreed by

the parties, “to modify, supervise, or enforce the implementation.”        Additionally, the

trial court has continuing jurisdiction over the separation agreement “to effectuate the

original intent of the parties.” We find no jurisdictional impediment to the trial court

correcting any alleged errors in the DOPO if such errors exist.

       {¶12} The sole assignment of error is overruled.

       {¶13} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE
LARRY A. JONES, SR., A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
