[Cite as Johnson v. Johnson,
2021-Ohio-16.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
TONYA C. JOHNSON :
:
Plaintiff-Appellant : Appellate Case No. 2020-CA-25
:
v. : Trial Court Case No. 2018-DR-783
:
DONALD W. JOHNSON : (Domestic Relations Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 8th day of January, 2021.
...........
VALERIE JUERGENS WILT, Atty. Reg. No. 0040413, 333 North Limestone Street, Suite
202A, Springfield, Ohio 45503
Attorney for Plaintiff-Appellant
REGINA ROSEMARY RICHARDS, Atty. Reg. No. 0079457, 202 Scioto Street, Urbana,
Ohio 43078
Attorney for Defendant-Appellee
.............
DONOVAN, J.
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{¶ 1} Tonya C. Johnson appeals from the trial court’s final judgment granting her
a divorce from Donald W. Johnson. Specifically, she argues that the trial court erred in
failing to address Donald’s retirement benefits in its division of marital property, in its
failure to award her spousal support, and in issuing a vague order for Donald to “be
responsible for all outstanding bills associated with the prior marital residence.” Because
we find that these arguments have merit, we reverse the trial court’s judgment and
remand for it to address Donald’s retirement benefits, reconsider spousal support in light
of its distribution of the retirement benefits, and clarify its order with respect to the
outstanding bills.
{¶ 2} Donald and Tonya Johnson were married on August 24, 1996, and two
children were born of the marriage; one of the children was emancipated by the time of
the parties’ divorce. On September 5, 2018, Tonya filed a complaint for divorce, a motion
for a “temporary mutual restraining order” (TMRO), and a motion for other temporary
orders. The court granted the TMRO on September 7, 2018.
{¶ 3} On October 15, 2018, the magistrate issued temporary orders after a hearing.
The magistrate designated Tonya as the sole residential parent of the minor child and
granted Donald parenting time “as the parties agree.” The magistrate also gave Tonya
exclusive use of the marital residence, ordered Donald to pay the mortgage and utilities
for the marital residence each month, and ordered Donald to pay monthly child support
of $638.39. The child support worksheet on which the child support calculation was
attached to the order; it listed Donald’s income as $58,551.67 and Tonya’s income as
zero.
{¶ 4} On November 1, 2018 Donald filed a motion for leave to file an answer to the
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complaint for divorce and an answer. On November 6, 2018, he filed a motion for
modified temporary orders, and on November 7, he filed an affidavit in support of modified
temporary orders. In his affidavit, Donald asserted that Tonya had “(mistakenly) omitted
her gross income” in her filings with the court, specifically her schedule C income for
fostering children, which annually averaged $50,658.33, based on the Schedule C
attached to the parties’ joint 2015-2017 tax returns. Donald argued that the inclusion of
Tonya’s income for purposes of calculating child support would decrease the previously
ordered temporary child support from $638.39 to $418.62 per month, plus the processing
fee. Donald further asserted that Tonya had not been agreeing to any parenting time for
him and that she had been discussing the parties’ marital problems with the minor child.
Donald requested an order of temporary shared parenting.
{¶ 5} On November 29, 2018, Tonya filed a motion to find Donald in contempt,
which asserted that Donald had failed to pay the mortgage and utilities for the marital
residence and to pay child support.
{¶ 6} On December 11, 2018, Donald filed a counterclaim for divorce and custody.
His attached an Affidavit of Property, which listed, under “Pensions and Retirement
Plans”: State of Ohio/OPERS, value “unknown.”
{¶ 7} On February 12, 2019, Donald filed a motion for a continuance of the
evidentiary hearing, asserting that Tonya had not fully responded to his discovery
requests and that he had “a significant health concern” that would likely result in “a
substantial change of circumstances” before the divorce could be finalized. On the same
day, he filed a motion to compel, which asserted that Tonya had failed to comply with his
requests for “all charge account statements” for the past 12 months, for copies of all bank
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account statements, and for responses to his interrogatories requesting the identity of her
witnesses for trial and copies of any exhibits she intended to introduce. Donald attached
an email and written correspondence from his attorney to Tonya’s attorney, dated January
31, 2019, which stated that Tonya’s discovery responses had been due on January 4,
2019.
{¶ 8} On February 12, 2019, Donald also filed a motion for an in camera interview
the parties’ minor child regarding the child’s wishes with respect to the allocation of
parental rights. Additionally, Donald filed a motion for contempt, with an affidavit and
multiple exhibits. The motion for contempt asserted that Tonya had violated the TMRO
by selling property from the marital residence, that she had “attempted to force the sale”
of the marital residence, that she had repeatedly harassed him by phone and at his
residence, that she had alienated the minor child from him, and that she had failed to
disclose her full income.
{¶ 9} On February 15, 2019, a magistrate indicated that Donald’s motion for an in
camera hearing would be “held under advisement” until after the hearing.
{¶ 10} On April 9, 2019, Donald filed a “Notice of Change of Circumstances,” in
which he asserted that was receiving daily radiation and weekly chemotherapy for cancer
and was on a feeding tube. Donald asserted that his income would “change immediately
to 70% of his regular income.” An April 9, 2019 correspondence from Jennifer Miller,
Human Capital Management Analyst from Martin and Richards Co., L.P.A., was attached
to the notice; the correspondence stated that Donald went on disability leave beginning
on April 8, 2019, that his normal hourly wage was $22.00, and that he would earn $15.40
per hour while on disability leave.
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{¶ 11} On April 26, 2019, the magistrate scheduled a hearing on the complaint and
all pending motions on June 7, 2019.
{¶ 12} On June 3, 2019, Donald filed another request for a continuance, asserting
that his oncologist wanted him to “rest for at least thirty days.” Donald also renewed his
prior request to reduce his support obligation due to a significant change in
circumstances; he asserted that he still was not working due to cancer and only received
60% of his income. The magistrate granted the motion to continue the hearing and
scheduled an in camera interview with the minor child.
{¶ 13} The evidentiary hearing occurred on October 7, 2019. The following
evidence was presented at the hearing:
{¶ 14} Tonya testified that she was employed by South Community, Inc., as a
foster parent and had one foster child; she earned $1,500 per month. She stated that
she had had “quite a few” foster children over 13 years, and that when Donald resided
with her she had three foster children in their home. She stated that, at that time, she
had received $1,500 for two of the children and $1,800 for the third child. Tonya stated
that two of the children had been removed from her care “in September.” According to
Tonya, Donald had tried to work things out with her several times, and on the last
occasion, there was “a big incident.” She stated that she had “discovered about five to
seven bottles of steroids, that Donald had received phone calls from his live-in girlfriend,
and that he “got outraged, put his hands on” her, and “took off.” Tonya stated that the
two foster children were removed from her care because Donald called the police on her,
his girlfriend called Children’s Services, and Donald called her supervisor. The third
foster child was from a different county, which “did not believe the history,” and therefore
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was not removed. Thus, Tonya asserted that Donald had caused her “to lose $3,000 a
month.”
{¶ 15} Tonya stated that Donald was employed as a corrections officer at Madison
Correctional Institution and earned about $50,000 a year. Tonya stated that Donald had
been unable to work for some time, but that he was working full time plus a lot of overtime
at the time of the hearing. She stated that she received $334 from Donald every two
weeks in child support.
{¶ 16} Tonya stated that she had prepared a proposed settlement and that she
wanted sole residential custody of the minor child. She also wanted “full medical for [the
child], dental and vision, [and] for myself as well.” Tonya was receiving full benefits
through Donald’s employment at the time of the hearing, and she wanted that
arrangement to continue so that she could “continue therapy for the mental, extreme cruel
mental abuse and physical abuse that I have had.”
{¶ 17} Further, Tonya stated that she wanted to claim the minor child for tax
purposes, because she planned to go back to school and would need “all the help that
[she] can get.” Tonya testified that Donald had been ordered to make the house
payments and pay the utilities, but that he “did absolutely nothing of that.” She stated
that the marital residence went into foreclosure, that she sold it by herself, that they made
no money off of it, and both “had to bring money to closing.” Tonya stated that she had
to pay approximately $800 to close the sale.
{¶ 18} Tonya testified that she had moved to her mom’s basement so she could
stay in the same school district. She asked that the marital debt, her attorney fees, and
court costs be paid by Donald. Tonya also asked for 60 percent of Donald’s retirement
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account and child support.
{¶ 19} Tonya testified that her monthly expenses were as follows: she paid $600
per month to her mom, $389 for her car payment, $335 for car insurance for herself and
her daughter, roughly $ 300 for utilities, $300 for food, approximately $300 for dental, and
$300 for credit cards. Tonya stated her monthly expenses totaled $2,659. With respect
to student loans, Tonya stated that she was “on a program,” but that it would change in
the next four months and she did not know how much the payment would be. She stated
that she could not re-enroll in school until her loan was caught up.
{¶ 20} Tonya stated that the parties’ minor child began visiting with Donald after
he became ill with cancer, but that she rarely had done so before then. She stated that
Donald “never paid one dime” of what he was ordered to pay from the court’s first order.
These included the water bill “from August of when he left until I sold the property,” for a
total of $1,335; a gas bill from Columbia Gas of $1,758.43; Spectrum cable, internet,
phone, “everything in one,” for $2,019.26; a trash bill for $165.75; and $800 for two cell
phone bills. Further, Tonya testified that Donald never made a house payment, and that
if he had done so, they “would have made money off the house” and she would not have
had to move in with her mom. Tonya stated that Donald “took a hammer” to a door from
the garage to the home and never fixed it, “rammed his forehead” through her bedroom
wall, “shattered” her TV, broke a door, broke her bed, and “kicked out the bannister on
the way out.” Tonya testified that she spent $300 on home repairs. Tonya stated that
she wanted Donald to pay her expenses and for their lost income on the sale of the house.
Finally, Tonya testified that she was 46 years old, that she and Donald had separated on
August 10, 2018, and that they had been married for 23 years.
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{¶ 21} On cross-examination, Tonya testified that she complied with all discovery
requests and was unaware of Donald’s contempt motion. Tonya stated that the marital
home went into foreclosure because Donald failed to make the house payments. Tonya
stated that she knew Donald was on disability for cancer treatment between April and
July 2019. When asked if she recently had received some money for cashing in one of
Donald’s retirement benefits,” Tonya responded that she did not cash it in, Donald did,
and that it was “deferred comp, … like a savings account,” not a retirement account.
Tonya stated that she and Donald each received $5,500 after he cashed in the deferred
compensation. Tonya acknowledged that she also received $1,200 from Donald to pay
for the minor child’s braces while he was receiving cancer treatment.
{¶ 22} Tonya stated that she and Donald had both been foster parents, but the
foster care income had been “in Donald’s name only.” When shown her 2017 tax returns
and asked whose names appeared thereon, Tonya responded, “Donald and Tonya
Johnson,” but that “is not my income.” She testified that the foster care income had never
been in her name until September 2018. When asked if she could prove that the two
foster children were removed from her care due to Donald’s conduct, Tonya responded
affirmatively and explained that Donald had contacted her supervisor, who was a director
of the foster care agency, and then she lost two of the kids. She also stated that her
home was investigated. Tonya testified that the house payment had been $1,460 per
month.
{¶ 23} Donald testified that he was cancer free and receiving full pay at the time of
the hearing, but that from April until July 2019, he had received only 70% of his income
due to cancer treatment. He stated that, during that time, he had radiation five days a
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week, underwent chemotherapy, and got “fluids on the weekends” for throat cancer. He
requested that the court modify his support order based on the change in circumstances
during that period. Donald testified that Tonya had failed to disclose her foster care
income, and he requested that his support order also be modified based on Tonya’s foster
care income. He stated that Tonya became eligible for additional foster children after he
attended foster care classes. Donald testified that Tonya was not honest about her
“alcohol issues” and that she sounded intoxicated in some of her voice messages to him.
Donald acknowledged breaking a door at the marital home when the parties could not get
inside. Donald testified that he wanted the court to give him “an offset” from his
retirement money for the $5,500 that Tonya received from his deferred compensation; he
also noted that he had paid $1,500 toward the minor child’s braces, which Tonya did not
split with him. He wanted the court to recognize that Tonya had already received some
money. Donald acknowledged that Tonya was entitled to half of his retirement accounts.
{¶ 24} Donald testified that he had close to a dozen messages on his phone and
at work from Tonya threatening to sell the house; he provided a disk of the messages,
but counsel was unable to play the messages for the court. Donald testified that he
worked from 6:00 a.m. to 2:00 p.m. Monday through Friday, and that he refrained from
working overtime because he tired easily and his immune system was “very low.”
Donald testified that he suffered from “chemo brain” and could be forgetful. He stated
that his home was appropriate for the minor child to visit and that he would like to see her
every day. He asked the court to order specific parenting time for him. Donald stated
that he had weekends off, but he would also like to see the child during the week after
work. He testified that he had never been convicted of domestic violence. Donald
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testified that Tonya once showed up at his work and chased him in his car when he left,
that she had been violent toward him, and that she once threw a candle at him. When
asked if he had ever injured Tonya, he responded, “[o]nly in self-defense,” when he
attempted to push her away from him. Donald stated that Tonya had struck him in his
“[f]ace, back of the head, [and] mouth” over his “cheating.” He stated that once Tonya
came to his home uninvited, and he identified a police report from that incident.
{¶ 25} On cross-examination, Donald stated that he had lived with Brook Terry for
eight months and paid no rent during that time, but he “bought groceries.” He stated that
he and Tonya had both put holes in the walls of their home. Donald asked for custody
of their child. He stated that his current rent was $715 per month, and he made $45,000
per year. Donald stated that he had been employed at Madison Correctional Institution
for almost 23 years. When asked if he was satisfied that all the mortgage payments were
made while he was ill, Donald responded, “I assumed they did. … I wasn’t the one
paying the bills.”
{¶ 26} Shortly after the hearing was held, Donald filed a motion to admit the
exhibits introduced at the evidentiary hearing, which he filed under seal. The motion
stated:
Now comes Defendant, Donald W. Johnson, through undersigned counsel,
and hereby moves this Court to admit Joint Exhibits 1-8 and Defendant’s
Exhibits A, B, F, I, U, T, W1-5, X, Y, which were introduced at the evidentiary
hearing on 7 October 2019. Plaintiff stipulated to Exhibits 1-8. Plaintiff did
not object during the evidentiary hearing to the introduction of Defendant’s
proffered exhibits. The Court appeared to have recessed but adjourned.
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Plaintiff did not move to admit before the Court adjourned. Defendant
attempted to admit after the Court adjourned while Plaintiff was still present.
Plaintiff objected. The Court refused. Defendant moves to admit the
attached exhibits (filed under seal).
{¶ 27} On January 16, 2020, the magistrate’s decision was filed.1 In the findings
of fact and conclusions of law, the magistrate referenced the attached child support
calculation sheet, which it had based on “the testimony of the parties as to their respective
incomes and appropriate deductions.” The worksheet stated annual income in the
amount of $57,979.67 for Donald and $18,000 for Tonya. The magistrate observed that
the parties had sold their marital residence and that Tonya had testified that she had to
bring $700-$800 to the closing as a result of Donald’s failure to pay the mortgage as
ordered. The magistrate also noted that Tonya alleged that Donald had not paid the
water, gas, trash, or Spectrum bills as ordered.
{¶ 28} With respect to Tonya’s request for spousal support, the magistrate found
that Tonya and Donald had “relatively similar earning ability and earned substantially
similar salaries during the marriage,” that the parties were the same age, and that Donald
had been through a significant illness but had recovered and returned to work. The
magistrate stated that the “retirement benefits of the parties were not offered” and that it
would not be “inappropriate” for Tonya to work outside the home if she were the custodial
parent.
{¶ 29} According to the magistrate, there was little evidence of the parties’
1
This journal entry provided: “The magistrate’s Decision and Order attached herewith is
adopted and ratified by this Court in its entirety and therefore made an Order of this
Court.”
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standard of living during the marriage, and information about their respective educations
was not offered. The magistrate noted that Donald had a child support obligation of
$584.67 per month and was also being assessed much of the marital debt. The
magistrate found no evidence of any significant contribution by either party to the
education, training, or earning ability of the other party and found that Tonya did not
require additional training to earn a salary comparable to Donald’s. The magistrate
found no evidence that Tonya “lost a significant remunerative skill as a result of marital
responsibilities.” After considering the parties’ need for and ability to pay spousal
support, their relative assets, liabilities, and incomes, the need to avoid drastic or abrupt
changes in lifestyle, and the need for each party to have a reasonable standard of living
in relation to the standard maintained during the marriage, the magistrate found that an
award of spousal support was not appropriate in the Johnsons’ case. The court did not
retain jurisdiction over the issue of spousal support.
{¶ 30} With respect to child custody, an in camera interview was conducted with
the minor child and the child’s wishes were considered. The magistrate noted that Tonya
testified that she had no problem with Donald having parenting time and Donald testified
that he had been denied parenting time, although there was no evidence to substantiate
the denial of parenting time. The magistrate found that custody to Tonya with parenting
time for Donald in accordance with the court’s standard order was in the child’s best
interest.
{¶ 31} Financially, the magistrate noted that the parties each had accounts in their
own name and found it equitable that each party be awarded the accounts in their own
name. With respect to their various debts, the magistrate found that each party should
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be responsible for the debts in his or her own name, except the debts associated with the
prior marital residence. The magistrate found that the debts associated with the marital
residence, which accrued as a result of Donald’s failure to pay them as required in the
temporary order, would be solely Donald’s responsibility.
{¶ 32} The magistrate awarded each party the personal property in his or her
possession and all accounts, including retirement accounts, “in their sole name free and
clear of the other.” The magistrate ordered that Donald would be responsible for all
outstanding bills associated with the prior marital residence; other than those debts, the
parties would be responsible for any debts in their own name. Finally, the court ordered
Donald to continue to pay child support in the amount of $584.67 per month, and cash
medical support and processing fees, plus an additional $58.00 per month toward the
arrearage.
{¶ 33} Tonya filed objections to the magistrate’s decision on January 24, 2020.
Specifically, she argued that, after 26 years of marriage, it was inappropriate for her to be
denied spousal support, any portion of Donald’s retirement, help with the payment of
marital bills, and health insurance (which Donald had allegedly cancelled). She also
objected to the fact that Donald was not ordered to maintain health insurance on their
minor child.
{¶ 34} On February 4, 2020, Donald also filed objections to the magistrate’s
decision. Donald asserted that the magistrate erred in not “tak[ing] exhibits at the closing
of the evidentiary hearing,” not designating which party could claim the minor child for tax
purposes in which year(s), and not taking into account his reduced income during the
divorce proceedings when he was being treated for cancer and was unable to work. In
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response to Tonya’s objections, Donald also made the following arguments and
corrections: 1) the parties were married for 23 years, not 26 years; 2) Tonya received
over $5,500 from Donald’s deferred compensation while the divorce proceedings were
pending and other miscellaneous funds from the sale of the martial property, including,
without limitation, the house and the furnishings within it; 3) Donald did not remove Tonya
from his health insurance; and 4) Donald was ordered to maintain health insurance on
the minor child pursuant to the magistrate’s order.
{¶ 35} On June 11, 2020, the court held a hearing on the parties’ objections. At
the start of the hearing, the court indicated that the parties could address any issues that,
in their opinion, had not been adequately addressed in the pleadings they had filed, could
supplement the record, and could respond to the other party’s objections or clarify their
own objections, with the caveat that they could not add to the objections. Tonya’s
attorney indicated that they had nothing to add.
{¶ 36} Donald’s attorney requested that the court admit the exhibits he had filed
under seal; he also noted the magistrate’s failure to designate which party should claim
the minor child for tax purposes in which years and the magistrate’s failure to find that
Donald’s income had been substantially reduced during the divorce proceedings while he
was receiving cancer treatment. Additionally, Donald’s attorney noted that Donald
sought a reduction of child support based on his substantial change of circumstances due
to cancer treatment, which had included treatment by multiple doctors, a feeding tube,
and temporarily relocating to Columbus for treatment; during that period, he had earned
only 60% of his pay. Donald also refuted Tonya’s allegations that she had paid all the
bills, noting that she had only proved that she paid one mortgage payment, and she had
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been late and uncooperative with discovery. Donald asked for attorney fees based on
his motion for contempt, motion to compel, and motion to modify. He also asserted that
he had already divided some of his assets with Tonya while the divorce proceedings were
pending. Donald asked the Court to find that Tonya lacked credibility with respect to any
alleged loss of income due to her own misconduct.
{¶ 37} Donald also raised questions about Tonya’s drinking, her selling furniture
from the house and “nagging him to sell the house,” notwithstanding the TMRO, and her
failing to pay the mortgage. Donald pointed out that he had admitted to “being unfaithful”
and to causing some damage to the house, partly due to frustration and partly because
the parties had locked themselves out. He asked the court to find that his testimony was
credible, and he opposed paying any further moneys to Tonya. He also pointed out that
the minor child was 17 years old, so any issues related to income taxes would soon be
moot.
{¶ 38} The court asked Donald’s attorney to clarify whether he was asserting that
there were no proceeds left in Donald’s pension, and counsel responded by pointing to
testimony that the parties “had taken so many loans against it during the marriage.” He
acknowledged that Tonya seemed to believe “there was something else left,” but counsel
thought she was referring to deferred compensation. Donald’s attorney stated there was
no evidence of how much money was in deferred compensation. Donald also pointed
out, through his attorney and the parties’ tax returns, that Tonya had been able to “make
plenty of money” from fostering children, and that she “was able to, in fact, [earn] more
than he did as a security guard for the State of Ohio.”
{¶ 39} An additional exchange about Donald’s pension occurred, as follows:
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[COUNSEL FOR TONYA]: Your Honor, to answer your question,
there was a pension.
THE COURT: There was a pension?
[COUNSEL FOR TONYA]: Yes, sir.
THE COURT: And your contention, [Counsel for Donald], is there
wasn’t sufficient evidence to identify what was in it?
[COUNSEL FOR DONALD]: Right. Right.
THE COURT: Okay. All right. I’ll look it over. I’ll provide you all
with a written decision as quickly as I can. …
{¶ 40} The trial court filed its Decision and Final Judgment Entry on June 18, 2020.
The court indicated that it had reviewed all of the prior pleadings and orders in the case,
the transcript of the proceedings before the magistrate on October 7, 2019, and the
arguments made by counsel.
{¶ 41} The trial court overruled all of Tonya’s objections. With respect to Tonya’s
objection to not receiving spousal support, the court determined that Tonya had not
“articulate[d] within any degree of specificity” how the magistrate erred in not awarding
her spousal support, other than stating that the parties had been married for 26 years
(which the court found not to be accurate). With respect to not receiving a portion of
Donald’s retirement benefits, the court also found that Tonya did not “sufficiently
particularize” how the magistrate allegedly erred in failing to award her any portion of
Donald’s retirement. The court noted that at the October 7, 2019 hearing, Tonya
acknowledged that Donald “liquidated his deferred compensation account” and the
parties divided it, with each one receiving approximately $5,500. The court found that it
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was not provided with sufficient evidence that additional retirement benefits existed “with
anything other than nominal equity.”
{¶ 42} Regarding Tonya’s objection that she “received no help” from Donald in
paying the marital bills, the court again found that she had not sufficiently articulated how
the magistrate had allegedly erred relative to the issue of marital bills and had not
proposed a remedy, even if the non-payment were proven to be accurate. With respect
to the magistrate’s not ordering Donald to provide Tonya with health insurance, the court
found that her argument lacked the specificity required by Civ.R. 53 and that Tonya failed
to set forth what relief she requested, even if her claim were true. Finally, regarding
Tonya’s objection that Donald was not ordered to maintain health insurance on the
parties’ minor child, the court found that that Donald was, in fact, obligated to secure and
maintain health insurance for the child, providing it was available at reasonable cost.
{¶ 43} The trial court also overruled all of Donald’s objections. Regarding
Donald’s objection to the magistrate’s failure to exhibits at the end of the evidentiary
hearing, which led to Donald’s motion to file the exhibits under seal, the court concluded:
Upon conducting a de novo review of the transcript of the
proceedings which took place before the magistrate on October 7, 2019,
this Court finds that the hearing itself did not end abruptly, as insinuated by
[Donald]. … [C]ounsel for both parties had more than ample opportunity
to seek the admission of their respective exhibits before the conclusion of
the hearing on October 7, 2019. Neither attorney sought the admission of
their respective exhibits at that time.
Two days after the conclusion of the hearing on October 7, 2019,
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counsel for Mr. Johnson filed a Motion to admit certain exhibits on his
behalf. …
…
This Court has witnessed on many occasions situations wherein
attorneys have marked exhibits during the course of a hearing and yet not
sought to admit them into evidence. In the case at hand, once the
evidentiary hearing concluded, both parties were precluded from seeking to
admit exhibits which were not otherwise admitted during the course of the
hearing herein. …
Thus, the trial court overruled Donald’s objection with respect to the admission of exhibits.
{¶ 44} Regarding Donald’s objection that the magistrate had not designated which
party could claim the minor child for tax purposes in which year, the court found that it
had not been provided with sufficient evidence “to establish any net tax savings of the
parties concerning utilizing the child for tax purposes,” evidence relative to the financial
circumstances and needs of the parents related to the tax issue, or evidence concerning
the eligibility of either or both of the parties for federal earned income tax credits or other
state or federal tax credits. The court concluded that R.C. 3119.82 required it to consider
the foregoing factors before addressing the tax issue, and because the parties had not
provided the magistrate with sufficient evidence related to the tax issue, Donald’s
objection was overruled.
{¶ 45} Regarding the magistrate’s failure to find that Donald’s income had been
substantially reduced during the divorce proceedings, the court noted that Donald had
testified that his income was reduced to approximately 70% of its normal amount for a
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four-month period, but that he did not provide sufficient corroborating evidence.
Moreover, the court found that, even if Donald’s testimony that he experienced a 30%
reduction in his income for four months was accurate, he had also worked overtime
throughout the course of the year. Thus, the court concluded that the magistrate’s
calculation of Donald’s gross annual income as $57,979.67 was consistent with the
evidence presented, and the objection was without merit.
{¶ 46} Finally, the court ordered that each of the parties pay their own attorney
fees and ordered all court costs to be paid by Donald.
{¶ 47} Tonya appeals form the trial court’s judgment, raising three assignments of
error. Her first assignment of error states:
THE COURT ERRED IN FAILING TO AWARD TONYA JOHNSON
[A] PORTION OF DONALD JOHNSON’S OPERS RETIREMENT
BENEFIT.
{¶ 48} Tonya s that the trial court erred in failing to address Donald’s Ohio Public
Employees Retirement System (OPERS) account and in failing to award her a marital
portion of the OPERS retirement account. Tonya contends that her “objection to
receiving no portion of a marital asset, especially such a significant asset as a retirement
benefit,” was sufficiently specific to identify the error of which she complained. She also
argues that the court’s finding that there was no evidence of additional retirement benefits
other than the deferred compensation account was “simply incorrect” and overlooked
evidence concerning Donald’s additional retirement benefits. Tonya asserts that, while
“no exhibits were admitted at trial specifically identifying the additional retirement
account,” there was clearly evidence in the record that Donald had another retirement
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account, specifically an OPERS account through the State of Ohio, because that account
was identified in his property affidavit.
{¶ 49} Tonya argues that Donald’s participation in OPERS was “a statutorily
conferred asset” and that he was “mandated to participate in OPERS as an employee of
the State of Ohio, Department of Rehabilitation and Correction.” She argues that, as
such, the court should have ordered the parties submit additional evidence about the
account pursuant to Civ.R. 53(D)(4)(d). Tonya asserts that, when “specific evidence is
absent, due to the vague testimony of the parties, there is insufficient evidence to support
a trial court’s division of property. Such property division must be reversed as an abuse
of discretion.”
{¶ 50} Tonya argues that, even if the court’s “generalized order” on page 9 of it
judgment -- which awarded each of the parties his or her own retirement accounts -- were
construed as a disposition of the OPERS retirement, such a disposition would be
inconsistent with pages 3 and 4 of its judgment, which failed to recognize the existence
of that asset. Therefore, Tonya asserts that this case must be remanded for additional
evidence concerning the pension.
{¶ 51} Finally, Tonya asserts that even if her objection “lacked adequate
specificity,” the court committed plain error in failing to divide a significant marital asset to
which both parties referred at trial and in deviating from its responsibility to divide all
marital property equitably.
{¶ 52} Donald responds that it was not an abuse of discretion for the trial court to
not address or divide the OPERS retirement benefit. In reply, Tonya argues that
Donald’s argument underscores the trial court’s error, because he admits “no less than
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five times in his brief” that such a retirement account existed.
{¶ 53} As noted above, the court ordered that each of the parties would be
“awarded as their own, free and clear of any claims or interests of the other, all …
retirement accounts ….”
{¶ 54} As this Court has noted:
A trial court has broad discretion regarding the division of marital
property, and its judgment will not be disturbed absent an abuse of that
discretion. Mathews v. Mathews, 2d Dist. Clark No. 2012-CA-79, 2013-
Ohio-2471, ¶ 8, citing Bisker v. Bisker, 69 Ohio St.3d 608, 609,
635 N.E.2d
308 (1994). A trial court abuses its discretion when the court's attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983). “It is to be expected that
most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.”
AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161,
553 N.E.2d 597 (1990). “A decision is
unreasonable if there is no sound reasoning process that would support that
decision.” Id.
…
The classification of property as marital or separate must be
supported by competent, credible evidence. Mays v. Mays, 2d Dist. Miami
No. 2000-CA-54, 2001 WL 1219345, *3. The factors set forth in R.C.
3105.171(A) determine the marital or separate classification of property.
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Jones v. Jones, 2019-Ohio-2355,
138 N.E.3d 634, ¶ 16, 18 (2d Dist.).
{¶ 55} Marital property includes all “real and personal property that currently is
owned by either or both of the spouses, including, but not limited to, the retirement
benefits of the spouses, and that was acquired by either or both of the spouses during
the marriage.” R.C. 3105.171(A)(3)(a)(i).
{¶ 56} As noted by the Supreme Court of Ohio:
The rights and obligations associated with pension and retirement
funds are contractual in nature. Pension and retirement plans are diverse
since they may (1) be derived from public or private employment; (2) be
vested or nonvested; (3) consist of contributions from employee only,
employer only, both or neither; (4) include contingencies for payment; (5)
and be subject to garnishment and execution. In some instances, the
parties’ pension and retirement funds may be the most significant marital
asset of one or both spouses. Thus the trial court must understand the
intricacies and terms of any given plan and, if necessary, require both of the
parties to submit evidence on the matter in order to make an informed
decision. See Willis v. Willis (1984), 19 Ohio App.3d 45, 48, 19 OBR 112,
115, 482 N.E.2d 1274, 1277.
Hoyt v. Hoyt,
53 Ohio St.3d 177, 180-181,
559 N.E.2d 1292 (1990).
{¶ 57} In Bisker, the Ohio Supreme Court noted that “a vested pension plan
accumulated during marriage is a marital asset that must be considered in arriving at an
equitable division of property.” Bisker at 609, citing Holcomb v. Holcomb,
44 Ohio St.3d
128,
541 N.E.2d 597 (1989). It is undisputed that Donald participated in OPERS during
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the course of his marriage as a full-time State of Ohio employee. He testified that he
had been employed at the Madison Correctional Institution for approximately 23 years, a
substantial period of time. Donald also acknowledged that Tonya was entitled to half of
his retirement benefits. The fact that Donald requested an offset against his retirement
account based upon Tonya’s retention of half of his deferred compensation did not excuse
or justify the trial court’s failure to properly divide his OPERS retirement account. While
counsel for Donald represented to the court that the parties “had taken so many loans
against” the retirement benefits, no such testimony was presented, and no evidence of
the value of the retirement benefits, which were potentially a major marital asset, was
presented. Furthermore, the future payment of OPERS benefits is statutorily
predictable. Thus, we conclude that the court abused its discretion in failing to value
Donald’s retirement benefits, and in doing so, in effectively treating them as Donald’s
separate property.
{¶ 58} Tonya’s first assignment of error is sustained.
{¶ 59} Tonya’s second assignment of error is:
THE TRIAL COURT ERRED IN THE MANNER IN WHICH IT
ALLOCATED THE MARITAL DEBTS.
{¶ 60} Tonya asserts that the court “restated, verbatim, the magistrate’s Orders
concerning the bills and debts,” and therefore “failed to comply with the requirements of
this Appellate Court for a final appealable order,” which constitutes error. She directs
our attention to Bennett v. Bennett, 2012-Ohio-501,
969 N.E.2d 344 (2d Dist.). Tonya
argues that a “court order must be adequately specific for the parties to know what their
rights and duties are without reference to other things.” Tonya argues that the court’s
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order that Donald be responsible “for all outstanding bills associated with the prior marital
residence” is vague and nonspecific. According to Tonya, it was impossible for the
parties to determine their rights and obligations “without reference to some other
instrument,” and there was no instrument that identified the rights and obligations, “other
than the transcript.” Tonya asserts that there was ample evidence in the record for the
court to issue a proper order specifying Donald’s obligations, based on her own
undisputed testimony enumerating the outstanding debts and costs. She argues that the
court’s order was vague as to what bills it considered to be outstanding and as to whom
Donald was supposed to pay, and that the court must be required to issue a more specific
order.
{¶ 61} Donald responds that the trial court’s order that he pay outstanding debts
for the marital residence was sufficiently specific and that, even if there were error in this
regard, Tonya either invited the error by refusing to cooperate during the divorce
proceedings or waived it “for want of specificity and particularity under Civ.R. 53.”
{¶ 62} In Waxman v. Link, 2d Dist. Montgomery No. 28415, 2020-Ohio-47, this
Court discussed Bennett and final orders as follows:
Under Ohio Constitution, Article IV, Section 3(B)(2), we have
appellate jurisdiction only over final and appealable orders. “When a trial
court refers a matter to a magistrate for a decision, the magistrate's decision
is not a final appealable order. … The trial court's resolution of a referred
matter, upon review of the magistrate’s decision, must satisfy several
requirements to be considered a final appealable order.” Keeney v.
Keeney, 2d Dist. Clark No. 19-CA-0037, 2019-Ohio-4098, ¶ 3. “First, the
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trial court's judgment entry must contain the trial court's own judgment and
order on the underlying matter; it is insufficient for the trial court to simply
adopt the magistrate's decision as its own order.” Id. at ¶ 4, citing State ex
rel. Boddie v. Franklin Cty. 911 Admr., 135 Ohio St.3d 248,
2013-Ohio-401,
985 N.E.2d 1263, ¶ 2, Harkai v. Scherba Industries, Inc.,
136 Ohio App.3d
211, 218,
736 N.E.2d 101 (9th Dist.2000), and Civ.R. 53(D)(4)(e).
In addition, “[t]he trial court's entry must sufficiently address the
pending issues ‘so that the parties may know of their rights and obligations
by referring only to that document known as the judgment entry,’ ” the court
must rule on pending objections if they have been made, and “the judgment
entry must ‘be a document separate from the magistrate's decision.’ ”
[Keeney] at ¶ 7, quoting Kendall v. Kendall, 6th Dist. Ottawa No. OT-13-
019, 2014-Ohio-4730, ¶ 15. (Other citations omitted.) See also Bennett v.
Bennett,
2012-Ohio-501,
969 N.E.2d 344, ¶ 20 (“ ‘Civil Rule 54(A) provides
that “[a] judgment entry shall not contain a recital of pleadings, the
magistrate's decision in a referred matter, or the record of prior
proceedings.” A trial court must render its own separate judgment and may
not simply state that it approves, adopts, or incorporates a magistrate's
decision.’ ”).
With respect to the requirement of separate documents for a
magistrate's decision and a judgment entry, both [Keeney] and Bennett
relied on the provision in Civ.R. 54(A) that “ ‘[a] judgment shall not contain
… the magistrate's decision in a referred matter.’ ” [Keeney] at ¶ 7;
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Bennett at ¶ 20. However, Civ.R. 54(A) was amended, effective July 1,
2019, to eliminate that language. After the amendment, the rule states only
that “ ‘Judgment’ as used in these rules means a written entry ordering or
declining to order a form of relief, signed by a judge, and journalized on the
docket of the court.”
Waxman at ¶ 20-22.
{¶ 63} As noted above, the court ordered Donald to “be responsible for all
outstanding bills associated with the prior marital residence.” We agree with Tonya that
the trial court failed to address the issue of “all outstanding bills” with particularity so that
the parties would know of their rights and responsibilities. We further agree that the
order lacked clarity and was vague as to what exactly Donald was required to pay. The
temporary orders required Donald to make the house payment and pay for the utilities
each month. Tonya enumerated multiple bills and costs that she indicated had been
Donald’s responsibility, but it is unclear from the court’s order which, if any, of these he
was required to pay.
{¶ 64} Tonya’s second assignment of error is sustained.
{¶ 65} Tonya’s third assignment of error states:
THE TRIAL COURT ERRED IN FAILING TO AWARD TONYA
JOHNSON ANY SPOUSAL SUPPORT.
{¶ 66} Tonya asserts that her objection to the magistrate’s decision on the issue
of spousal support “was adequately specific” and that the trial court acted arbitrarily and
unreasonably in failing to award spousal support under the facts of this case.
{¶ 67} As this Court has noted:
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… “A trial court has broad discretion in establishing and modifying
a spousal support award.” Dingess v. Smith, Washington App. No. 09-CA-
18, 2010-Ohio-343, citing Cassidy v. Cassidy, Pike App. No. 03CA721,
2005-Ohio-3199, at ¶ 27. “Thus, we will not reverse a spousal support
award absent an abuse of discretion.” Id. 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 fourteen
factors expressed in R.C. 3105.18(C)(1)(a)-(n), which governs awards of
spousal support. “In allocating property between the parties to a divorce
and in making an award of [spousal support], the trial court must indicate
the basis for its award in sufficient detail to enable a reviewing court to
determine that the award is fair, equitable, and in accordance with the law.”
(Citations omitted.) Burke v. Burke, 2d Dist. Champaign No. 2011-CA-2, 2011-Ohio-3723,
¶ 24.
{¶ 68} R.C. 3105.171(C)(3) provides: “The court shall provide for an equitable
division of marital property under this section prior to making any award of spousal
support to either spouse under [R.C. 3105.18] and without regard to any spousal support
so awarded.” R.C. 3105.18 provides in relevant part:
(A) As used in this section, “spousal support” means any payment or
payments to be made to a spouse or former spouse, … for the benefit of
a spouse or a former spouse, that is both for sustenance and for support of
the spouse or former spouse. …
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(B) In divorce and legal separation proceedings, upon the request of
either party and after the court determines the division or disbursement of
property under section 3105.171 of the Revised Code, the court of common
pleas may award reasonable spousal support to either party. …
…
(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:
…
(d) The retirement benefits of the parties[.]
(Emphasis added.)
{¶ 69} Consistent with our disposition of the first assignment of error, we conclude
that, because the trial court abused its discretion in failing to address Donald’s retirement
account, the court further abused its discretion in deciding the issue of spousal support
without considering Donald’s retirement benefits and how they would be distributed
between the parties.
{¶ 70} Tonya’s third assignment of error is sustained.
{¶ 71} Having sustained Tonya’s assignments of error, the judgment of the trial
court is reversed. The matter is remanded for the trial court to address Donald’s OPERS
retirement account in its division of the parties’ marital property, to address Tonya’s
request for spousal support after dividing all of the marital assets, and to clarify its order
regarding Donald’s responsibility for “all outstanding bills associated with the prior marital
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residence.”
.............
HALL, J., concurs.
TUCKER, P.J., concurs:
{¶ 72} Though I concur in the majority opinion, I write separately to note that our
reversal of the spousal support decision is not an indication concerning the merits of this
issue. The reversal is premised upon the R.C. 3105.171(C)(3) requirement that the trial
court make an equitable division of the parties’ property “prior … and without regard to
any spousal support … award[ ].” Since there must be a reexamination of the OPERS
retirement account, a separate, distinct reexamination of the spousal support issue is also
required. Consistent with Civ.R. 53(D)(4)(d), the fresh look requires the trial court upon
remand to “undertake an independent review [of the spousal support issue] to ascertain
that the magistrate has properly determined the factual issues and appropriately followed
the law.”
Copies sent to:
Valerie Juergens Wilt
Regina Rosemary Richards
Hon. Thomas J. Capper
