[Cite as Gallito v. Levinsky, 2016-Ohio-889.]

                            STATE OF OHIO, MAHONING COUNTY
                                   IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT
ROBYN R. GALLITO                                 )
                                                 )
        PLAINTIFF-APPELLANT                      )
                                                 )           CASE NO. 13 MA 143
VS.                                              )
                                                 )                 OPINION
NICK C. LEVINSKY                                 )
                                                 )
        DEFENDANT-APPELLEE                       )

CHARACTER OF PROCEEDINGS:                        Civil Appeal from Court of Common
                                                 Pleas, Domestic Relations Division,
                                                 Mahoning County, Ohio
                                                 Case No. 2006 DR 736

JUDGMENT:                                        Reversed and remanded.

APPEARANCES:
For Plaintiff-Appellant                          Attorney William Biviano
                                                 108 Main Avenue, SW, Suite 700
                                                 Warren, Ohio 44481-1010

For Defendant-Appellee                           Attorney Matthew Giannini
                                                 1040 South Commons Place, Suite 200
                                                 Youngstown, Ohio 44514

JUDGES:

Hon. Mary DeGenaro
Hon. Cynthia Rice
      Judge of the Eleventh District
      Court of Appeals,
      Sitting by assignment.
Hon. Timothy Cannon
      Judge of the Eleventh District
      Court of Appeals,
      Sitting by assignment.


                                                 Dated: March 4, 2016
[Cite as Gallito v. Levinsky, 2016-Ohio-889.]
DeGENARO, J.

        {¶1}     Plaintiff-Appellant Robyn Gallito appeals the judgment of the Mahoning
County Court of Common Pleas Domestic Relations Division denying her request to
issue her proposed Division of Property Order, and limiting such order to the marital
portion of Defendant-Appellee Nick Levinsky's OPERS age and service retirement
benefits The trial court failed to address the issue of whether or not Husband was
receiving a disability retirement in lieu of age and service retirement, and failing to
determine the value of the marital portion of Husband's age and service benefits.
Accordingly, the judgment of the trial court is reversed and the case is remanded for
further proceedings.
        {¶2}     In 2006, Wife filed a complaint for divorce without children from
Husband, which was heard on June 28, 2007 by Visiting Judge Hayes. On the date
of the final hearing, Husband was receiving disability benefits as he had left his
employment with the police department. Due to the parties' delay and the failure by
counsel for Wife to submit a compliant Division of Property Order (DOPO) relative to
husband’s retirement benefits, the final decree of divorce was not filed until
November 19, 2007. The trial court found in pertinent part:

        6. The marital portion of Husband's OPERS retirement shall be
        awarded to Wife by DOPO (Husband may have the option to obtain a
        current value and pay a lump sum to Wife).
        ***
        19. Mortgage payments to be paid by Husband during the pendency of
        this action as Temporary Orders *** plus utilities *** for a total arrearage
        of $4,017. Husband shall be responsible for one half or $2,008. These
        monies shall be considered to be support of the Wife (spousal support)
        during the pendenecy [sic] of this action and Husband shall pay said
        arrearage at the rate of $500 a month until paid. Said funds may be
        taken from Husband's disability account by DOPO. Husband shall
        have the option of paying the arrearage in a lump sum.
                 Counsel for Wife shall prepare any documents necessary to
                                                                                   -2-


       comply with this Order. (emphasis added)

       {¶3}   Neither party appealed the original decree.
       {¶4}   Wife's counsel prepared and submitted a DOPO to Husband’s attorney,
and Wife contends Husband repeatedly refused to sign it. The DOPO submitted by
wife sought payments to her as the Alternate Payee from Husband's plan from two
distinct benefits: the age and service retirement benefit, and the disability monthly
benefit. This was the basis for Husband's refusal to sign. Husband took the position
that his disability benefits were separate property, and that Wife was only entitled to
the marital portion of his age and service benefits, which he was not receiving yet.
       {¶5}   Almost five years after the divorce decree was filed Wife filed a motion
to enforce, seeking the court to compel husband to execute the DOPO described
above, which was attached to the motion. Husband filed a motion to dismiss arguing
the proposed DOPO contained language that would wrongly attach his disability
income, contending disability income is not a marital asset subject to division.
       {¶6}   On January 29, 2013 a non-sequential two-day hearing on all pending
post-decree motions began before a new visiting jurist, Judge Giulitto. Although Wife
presented an expert witness, husband did not call his own expert. During the first
day of the hearing the trial court learned that Husband had refused to authorize
OPERS to release information to enable an evaluation of his retirement benefits in
order to prepare a DOPO.         The trial court ordered Husband to execute an
authorization for Wife's expert so he could obtain the necessary information; thus the
hearing was continued.
       {¶7}   During the two day hearing, Brian Hogan of QDRO Consultants testified
on behalf of Wife regarding Husband’s OPERS benefits, the method of determining
the age and service portion, and the protocol for dividing benefits. Hogan's testimony
was mostly consistent over the two days. However, his testimony differed slightly
with respect to the exact number of Husband's years of service and the number of
years that was the marital portion of the age and service pension.
       {¶8}   Before he received the information from PERS, Hogan testified that,
                                                                                  -3-


based upon information he had received from Wife's counsel, Husband had 29.666
years of service and the marital portion was 6.666 years. After he received the
information from PERS, Hogan stated Husband accumulated 29.749 years of
service, of which 6.612 years was the marital portion. Thus, the marital portion
translated to 22.4702% of the total years of service. He then opined as to the present
value of Husband's age and service pension and calculated the marital portion to be
$267,386.70.
       {¶9}    Hogan consistently testified that based upon the date Husband began
his employment with the police department he was covered by a disability plan which
provided that if an individual left employment on a disability, they had the option to
continue to receive a disability pension even after they reached the qualifying age to
receive an age and service pension. Subsequent to Husband's hire date, employees
who originally took a disability pension would have to switch over to an age and
service pension once they reached the qualifying age. This difference matters as
Hogan testified the disability pension typically paid more per month than the age and
service pension, as the former was considered to be income replacement. Husband
was 51 years old at the time he started receiving a monthly disability benefit.
       {¶10} Applying these principles to Husband, Hogan further testified that
Husband was 51 years old when he began receiving disability benefits, which he
could continue to collect for the rest of his life; he did not have to convert to an age
and service pension. However, were he to do so, Husband was eligible when he
turned 52 because he had over 25 years of service.
       {¶11} Husband turned 52 in March, 2008, approximately four months after the
divorce decree was issued.
       {¶12} Hogan also opined that Husband was receiving a disability pension in
lieu of an age and service pension. He also testified that in calculating the present
value of the marital portion of Husband's age and service pension, he did not factor in
or offset any social security benefits Wife may be eligible for in her own right; and
indicated that he had not been asked to do so.
                                                                                 -4-


       {¶13} Counsel for Husband did not challenge Hogan's testimony beyond
clarifying that there is a distinction between a disability pension and an age and
service pension. Notably, he did not challenge Hogan's opinion that Husband was
receiving a disability pension in lieu of an age and service pension.
       {¶14} On August 16, 2013, the trial court affirmed the award to Wife of the
marital portion of husband's OPERS benefits; specifically his age and service
retirement benefits. However, Judge Giulitto declined to award any portion of
husband’s disability benefits to her. After making exhaustive findings from his review
of the transcript of the final divorce decree, Judge Giulitto first noted:

       With full knowledge that [Husband] was receiving disability benefits and
       also had OPERS retirement, Judge Hayes stated on Page 6 of his
       Decree ("the marital portion of Husband's OPERS retirement shall be
       awarded to Wife by DOPO (Husband may have the option to obtain a
       current value and pay a lump sum to Wife).") If Judge Hayes intended
       to award [Wife] any portion of [Husband’s] disability benefits, he clearly
       had the opportunity to do so.

       {¶15} Judge Giulitto further found "confirmation that Judge Hayes did not
intend for [Wife] to receive a portion of [Husband’s] disability benefits" by referring to
the language contained in paragraph 19 of the divorce decree, quoted above:

              Clearly, the language on Page 3, Paragraph 6, and Page 6, Paragraph
       19 clearly reflect the fact that Judge Hayes was aware that [Husband] did have
       OPERS retirement benefits and also disability benefits. This Judge cannot
       speculate Judge Hayes' intent when he issued the language in Paragraph 6
       on Page 3 of the Decree. The undersigned Judge is bound by the language of
       the Decree. Judge Hayes stated that he was awarding to the [Wife] the marital
       portion of [Husband’s] PERS retirement by DOPO. With full knowledge that
       [Husband] had accumulated retirement benefits under PERS and at the time
                                                                                 -5-


      of the divorce was receiving disability benefits because he was unable to be
      gainfully employed, Judge Hayes awarded [Wife] PERS retirement only. To
      reach any other conclusion would constitute an expansion of language and
      meaning of Judge Hayes' decree.
             Perhaps parties should have exercised due diligence in presenting all
      the values of all of their benefits in a timely fashion. After waiting five months
      to receive that information without success Judge Hayes issued his decision
      without the benefit of the long awaited evaluations. Parties also failed to
      exercise due diligence in filing a motion asking Judge Hayes to clarify the
      meaning of the language of his decree regarding what he meant by
      "retirement." After more than five years from the date of the Decree, this Court
      cannot speculate what Judge Hayes would have done, whether or not he
      would have offset any of the Social Security benefits or any of the OPERS
      benefits that [Wife] had against [Husband’s] OPERS. The undersigned Judge
      must rely on the language of the Divorce Decree with the full understanding
      and knowledge that when Judge Hayes issued the Divorce Decree, he was
      fully aware of Husband's OPERS retirement as well as his OPERS disability
      benefits, and with that knowledge he awarded [Wife] only the marital portion of
      [Husband’s] OPERS retirement and nothing else.

      {¶16} Based upon this reasoning Judge Giulitto found that pursuant to the
2007 divorce decree Wife was awarded the marital portion of Husband's OPERS age
and service retirement. However, the trial court failed to make a finding with respect
to the value of the marital portion of Husband's age and service pension and address
the issue of whether or not Husband was receiving disability retirement in lieu of age
and service retirement.
      {¶17} In her sole assignment of error, wife asserts:

             The trial court abused its discretion in failing to issue the Division
      of Property Order pursuant to the prior court order issue by Judge
                                                                                -6-


      Hayes on November 19, 2007 even though Judge Giulitto affirmed the
      award of the division of the OPERS benefits in his August 16, 2013
      Judgment Entry, and by ignoring the uncontroverted expert testimony
      that proved the extent of the division of Appellee’s OPERS benefits and
      the method for properly making that division.

      {¶18} Regarding the standard of appellate review

             Pursuant to R.C. 3105.171(I), a trial court’s property division is
      not subject to future modification. Nonetheless, it is subject to
      enforcement. Hence, a party can file a motion to enforce and/or clarify a
      prior property division or a motion to adopt a QDRO in accordance with
      the prior divorce decree. In enforcing a prior distribution of property, the
      plain language of the prior order is a question of law which is reviewed
      de novo. However, if the prior order is ambiguous, then the trial court
      must hear the matter, clarify the situation, and resolve the dispute
      through interpretation.

Makar v. Makar, 7th Dist. No. 02CA37, 2003-Ohio-1071, at ¶12,
      {¶19} "The general rule is that pension or retirement benefits earned during
the course of a marriage are marital assets and a factor to be considered not only in
the division of property, but also in relationship to an award of alimony." Hoyt v.
Hoyt, 53 Ohio St.3d 177, 178-179, 559 N.E.2d 1292 (1990). It does not, however,
include any "separate property," which includes "[c]ompensation to a spouse for the
spouse's personal injury." R.C. 3105.171(A)(3)(b) and (6)(a)(vi). Disability benefits
constitute compensation received for personal injury. Bakle v. Bakle, 2d Dist. No.
2009 CA 9, 2009-Ohio-6003, ¶13. They are not considered to be marital property
unless "they are accepted in lieu of old-age pay, in which event they are marital
property to the extent that the retirement pay value is included in the disability
pension benefit." Arkley v. Arkley, 7th Dist. No. 03 JE 10, 2003-Ohio-7021, ¶14,
                                                                                   -7-


citing Bauser v. Bauser, 118 Ohio App.3d 831, 835, 694 N.E.2d 136 (2d. Dist.1997).
       {¶20} Judge Giulitto did not err in refusing to award Wife Husband's disability
benefits based on the language of the 2007 divorce decree. However, the trial court
did err by failing to determine what portion of Husband's monthly retirement benefit
was the age and service component, of which Wife was originally awarded the entire
marital portion, calculated to be 6.6 years.
       {¶21} The uncontroverted testimony of Hogan was that Husband's pension
had an age and service component to it, even though he took a disability retirement
before the age he was eligible to take an age and service retirement. It is also
uncontroverted that Husband, who has since met the eligibility requirements to begin
receiving an age and service pension, nonetheless does not have to make that
election and may remain on a disability pension.
       {¶22} Most importantly, it was Hogan's uncontroverted testimony that
Husband was receiving a disability retirement in lieu of an age and service
retirement. Pursuant to our holding in Arkley, the trial court must assess how much
of Husband's monthly benefit constitutes the age and service component, as that is a
marital asset, which here was awarded to Wife. Only the disability component is his
separate property. Because the trial court did not make this determination, we must
refrain from doing so, as the trial court must resolve this issue in the first instance.
       {¶23} The trial court erred by failing to determine when Husband began
receiving a disability pension in lieu of an age and service pension, and further erred
by failing to determine the value of the age and service component, and specifically
the marital portion. Thus, Wife's sole assignment of error is meritorious.
       {¶24} Accordingly, the judgment of the trial court is reversed and the case
remanded for further proceedings. Specifically, the trial court must determine when
Husband began receiving a disability retirement in lieu of an age and service
retirement; what portion of his disability pension represents the age and service
component; what is the value of the marital portion of the age and service
component; and then issue a DOPO to that effect—including addressing any
                                                                              -8-


arrearage—and order Husband to sign it, to give effect to the original divorce decree.


Rice, J., of the 11th Appellate District, sitting by assignment, concurs.

Cannon, J., of the 11th Appellate District, sitting by assignment, concurs.
