[Cite as Saltz v. Saltz, 2015-Ohio-4051.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
KENNETH SALTZ                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. John W. Wise, J.
    Plaintiff-Appellee/Cross-Appellant          :       Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :       Case No. 2015CA00014
SANDRA SALTZ                                    :
                                                :
Defendant-Appellant/Cross-Appellee              :       OPINION




CHARACTER OF PROCEEDING:                            Civil appeal from the Stark County Court of
                                                    Common Pleas, Domestic Relations
                                                    Division, Case No. 2013DR00753

JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             September 29, 2015



APPEARANCES:

For Plaintiff-Appellee/Cross-Appellant              For Defendant-Appellant/Cross-Appellee

STANLEY RUBIN                                       DAVID AKE
437 Market Avenue North                             301 First Merit Building
Canton, OH 44702                                    4481 Munson St. N.W.
                                                    Canton, OH 44718
Stark County, Case No. 2015CA00014                                                    2

Gwin, P.J.

       {¶1}    Appellant appeals the January 5, 2015 judgment entry of the Stark County

Court of Common Pleas, Domestic Relations Division.

                                    Facts & Procedural History

       {¶2}    Appellant/cross-appellee Sandra Saltz ("Wife") and appellee/cross-

appellant Kenneth Saltz ("Husband") were married in December of 1967.        The parties

were granted a legal separation in March of 2011. The judgment entry/decree of legal

separation states as follows:

               The Husband has a pension in payout status which was earned

       during the marriage with LTV Steel, now held with the PBGC in the

       amount of $357 per month. It is further ORDERED that the Husband will

       issue a check to Wife in the amount of $178 each month as and for

       property division.

               Husband currently receives Social Security Disability in the amount

       of $2,108 per month. It is further ORDERED that Husband will issue a

       check to Wife in the amount of $1,054 each month as and for property

       division.

       {¶3}    On June 27, 2013, Husband filed a complaint for divorce. Wife filed an

answer on August 29, 2013. A magistrate's decision was issued on March 10, 2014,

stating, in pertinent part:

               As part of that Decree of Legal Separation * * * Husband's LTV

       pension through PBGC was divided in half and Husband's Social Security

       Disability monthly benefit was divided in half. * * *
Stark County, Case No. 2015CA00014                                                       3


               The Court purported to retain jurisdiction over the PBGC pension

        (LTV), Husband's Social Security Disability and the spousal benefit of

        Husband's VA Disability benefit.      That retention of jurisdiction was

        improper.   The above items are clearly a property division and unlike

        spousal support where jurisdiction can be retained, property divisions are

        final upon the filing of a decree.

        {¶4}   The magistrate found that he had no jurisdiction to change the property

division from the legal separation and that, even if he had jurisdiction to do so, he would

not because the original division was equal and equitable. The magistrate granted a

divorce. A decree of divorce was issued on April 28, 2014.

        {¶5}   On September 9, 2014, Wife filed a motion to show cause. Wife indicated

in an affidavit that Husband stopped making payments to her as required by the

separation agreement. The trial court held a hearing on the motion on December 22,

2014.

        {¶6}   Husband testified that, after making his July payment to Wife, he

contacted Social Security and discovered that, when he reached regular retirement age,

his social security disability payments were converted to regular social security

payments. Husband did not ask the trial court if he could terminate payments to Wife,

but, in August, he stopped paying Wife both half of the social security disability payment

($1,054) and half of the PBGC pension ($178) because he believed that he had been

overpaying Wife since the conversion to social security.       Husband testified that he

notified Wife via a letter why he was stopping the payments. Wife testified that she will
Stark County, Case No. 2015CA00014                                                       4


receive one-half of Husband's social security due to the length of the marriage. Further,

that she last received payment from Husband in July of 2014.

       {¶7}   The trial court issued a judgment entry on January 5, 2015. The trial court

found that the property division of $1,054 was from the specific source of social security

disability which has terminated; thus Husband is not in contempt for failing to pay Wife

$1,054 per month. However, the trial court found Husband to be in contempt for failing

to pay the $178 because he was not entitled to unilaterally terminate his payments of

that amount to offset what he believed was an overpayment and should have sought a

court order to do so.     The trial court found that since Husband was not timely in

determining his social security disability had converted to regular social security, he sat

on any rights he had to stop payments to Wife and forfeited his right to recoup any

payments made to Wife after the conversion to regular social security. The trial court

sentenced Husband to thirty days (30) in the Stark County Jail on the contempt, but

suspended the sentence on the condition that he pay Wife within sixty (60) days the

amount due, attorney fees, and continue to pay the $178 per month as previously

ordered.

       {¶8}   Wife appeals the January 5, 2015 judgment entry of the Stark County

Common Pleas Court, Domestic Relations Division, and assigns the following as error:

       {¶9}   "I. THE TRIAL COURT ERRED IN MODIFYING THE DIVISION OF

PROPERTY CONTAINED IN THE COURT'S JUDGMENT ENTRY OF LEGAL

SEPARATION."

       {¶10} Husband also appeals the January 5, 2015 judgment entry and assigns

the following as error:
Stark County, Case No. 2015CA00014                                                         5


       {¶11} "I. THE TRIAL COURT ERRED IN HOLDING KENNETH IN CONTEMPT

FOR DISCONTINUING PAYMENT FOR HALF OF HIS MONTHLY PENSION

BENEFITS."

                                          Civil Contempt

       {¶12} The standard of proof in a civil contempt proceeding is by clear and

convincing evidence. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610

(1980). The determination of “clear and convincing evidence” is within the discretion of

the trier of fact. Id. We will not disturb the trial court’s decision as against the manifest

weight of the evidence if the decision is supported by some competent, credible

evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d

578 (1978).

       {¶13} In addition, our standard of reviewing a court’s judgment in a contempt

proceeding is the abuse of discretion standard. Hout v. Hout, 5th Dist. No. 2007-CA-

111, 2008-Ohio-2684, citing State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573

N.E.2d 62 (1991). An abuse of discretion implies the court’s attitude is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).

       {¶14} Further, the Ohio Supreme Court explained that, “[A] reviewing court

should not reverse a decision simply because it holds a different opinion concerning the

credibility of the witnesses and evidence submitted before the trial court. A finding of

error in law is a legitimate ground for reversal, but a difference of opinion on credibility

of witnesses and evidence is not.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,

81, 461 N.E.2d 1273 (1984). The underlying rationale for this deference to the trial
Stark County, Case No. 2015CA00014                                                      6


court is that “the trial judge 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 proffered testimony.” Id. We are not fact finders; we neither weigh the

evidence nor judge the credibility of the witnesses. Our role is to determine whether

there is relevant, competent and credible evidence upon which the fact finder could

base his or her judgment. Peterson v. Peterson, Muskingum App. No. CT2003-0049,

2004-Ohio-4714.

                                               I.

      {¶15} In Wife's assignment of error, she argues that the trial court erred because

it improperly modified its distribution of property and the $1,054 per month was a

property division that cannot be modified by the trial court. We disagree.

      {¶16} Wife is correct that once a court has made an equitable property division,

the trial court does not have jurisdiction to modify its decision.     R.C. 3105.171(I).

However, the trial court retains the power to enforce its orders and effectuate its

judgments. Oberst v. Oberst, 5th Dist. Fairfield No. 09-CA054, 2010-Ohio-452; Collins

v. Collins, 139 Ohio App.3d 900, 746 N.E.2d 201 (2nd Dist. Montgomery 2000).

      {¶17} Here, the trial court reviewed the terms of the separation agreement and

determined that the property division of $1,054 was from a specific source that has

been terminated and from which Husband no longer receives a monthly benefit;

accordingly, Husband was not guilty of contempt with respect to that portion of the

monthly payment to Wife. Thus, the trial court did not modify the division of property

under the original separation agreement in violation of R.C. 3105.171(I), but acted to

give effect and enforce the unambiguous terms of the separation agreement in denying
Stark County, Case No. 2015CA00014                                                      7

Wife's contempt motion. Collins v. Collins, 139 Ohio App.3d 900, 746 N.E.2d 201 (2nd

Dist. Montgomery 2000); Barron v. Barron, 6th Dist. Ottawaa No. OT-08-055, 2010-

Ohio-2118.

      {¶18} Wife's assignment of error is overruled.

                                  Cross-Assignment of Error I

      {¶19} Husband argues the trial court erred in holding him in contempt for

discontinuing payment for half of his monthly pension benefits ($178 per month). While

Husband testified that he stopped making the $178 payment to equalize the disability

payments he was not required to make, the trial court found that he "took these actions

unilaterally and without the benefit of a court order" and could not do so to equalize the

amounts.

      {¶20} In this case, it is clear from the separation agreement that the PBGC

pension ($178) and social security disability payments ($1,054) were separate

payments coming from two different sources. Husband did not provide any evidence or

testimony that Wife can go back and retroactively apply for social security to replace the

lost funds that Husband seeks to recoup from her. While Husband may have been

entitled to stop payment of $1,054 amount since the source of the benefits no longer

existed, we find the trial court did not abuse its discretion in determining that he could

not engage in "self-help" by stopping payment of another, separate monthly payment.

See Evans v. Cole, 4th Dist. Jackson No. 00CA17, 2001-Ohio-2486.

      {¶21} Husband's assignment of error is overruled.
Stark County, Case No. 2015CA00014                                                 8


      {¶22} Based upon the foregoing, we overrule Wife's assignment of error,

overrule Husband's assignment of error, and affirm the January 5, 2015 judgment entry

of the Stark County Common Pleas Court, Domestic Relations Division.



By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
