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Arkley v. Arkley12/15/2003
. Defendant-appellant, Robert R. Arkley, appeals from a Jefferson County Common Pleas Court decision finding that a large portion of his disability pension is a marital asset subject to equitable distribution with plaintiff-appellee, Edith E. Arkley.
. The parties were married on March 15, 1976. On September 18, 2000, appellee filed a complaint for divorce. The court referred the case to a magistrate. The magistrate held a hearing regarding several contested issues in December 2000. The only issue relevant to this appeal is appellant's Police and Firemen's Disability and Pension Fund of Ohio (disability pension). Appellant is a retired firefighter from the Steubenville Fire Department. He retired with a disability pension in 1999, after 20 plus years of service, because he injured his lower back and shoulder.
. The magistrate apparently believed she needed more information regarding the disability pension and held another hearing strictly on that issue on March 27, 2001, where a pension evaluator was the only witness. On November 20, 2001, the magistrate entered her findings and recommendations. She found that the present value of the disability pension was $251,768.23. She further found that this value represented the retirement component of the disability pension, thus making it a marital asset. She included this amount of the disability pension in her division of assets and stated that appellant should be awarded 55 percent ($139,745.01) of the disability pension and appellee should be awarded 45 percent ($112,023.23).
. Appellant requested findings of fact and conclusions of law, which the magistrate filed on January 3, 2002. The magistrate found that appellant's sole source of income was the disability pension. She noted that the parties submitted an evaluation of the disability pension, which stated that $251,768.23 was the retirement component. She further noted that at the hearing, appellant testified that the evaluation was incorrect and that the disability pension was a wage continuation. The magistrate concluded that the disability pension was a martial asset and therefore recommended that appellee was entitled to 45 percent of it.
. The court granted appellant an extension to file objections to the magistrate's decision. In his objections appellant argued that the magistrate should not have allowed appellee to introduce the testimony of David Kelley, the pension evaluator and that the magistrate's award of 45 percent of his disability pension was against the manifest weight of the evidence and contrary to law.
. The trial court overruled appellant's objections. On February 19, 2003, the court entered its judgment and decree of divorce and divided the marital assets. It found that the marital component of appellant's disability pension was $251,768.23 and awarded appellee 50 percent, or $125,884.11. Appellant filed his timely notice of appeal on March 17, 2003.
. Appellant raises a single assignment of error, which states:
. "THE TRIAL COURT ERRED WHEN IT FOUND THE SUM OF $251,768.23 OF APPELLANT'S POLICE & FIRE DISABILITY PENSION FUND TO BE A RETIREMENT COMPONENT OF THE PENSION AND THUS A MARITAL ASSET SUBJECT TO EQUITABLE DISTRIBUTION BETWEEN THE PARTIES."
. Appellant argues that the magistrate should not have allowed appellee to introduce Kelley's testimony at a second hearing. He points out that the burden of proof was on appellee to prove that she was entitled to part of his disability pension. Citing, Bauser v. Bauser (1997), 118 Ohio App.3d 831. Appellant alleges that at the first hearing in December, appellee failed to meet her burden of proof because she introduced no
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