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Rose v. Rose9/27/1999
JUDGMENT: Affirmed
Plaintiff-appellant Delmar Rose (hereinafter "husband") appeals the March 30, 1998 Judgment Entry of the Morrow County Court of Common Pleas, Domestic Relations Division, which divided the parties' retirement benefits. Defendant-appellee is Judith K. Rose (hereinafter "wife").
STATEMENT OF THE FACTS AND CASE
The parties to this action married on March 29, 1957. Four children were born as issue of the marriage. Each child was emancipated by February 8, 1994, the date Husband filed for divorce . Husband retired from General Motors in 1985 due to a disability. At the time of the proceedings, Wife was employed with K-Mart. Throughout the marriage, wife was the primary care giver for the children. In December, 1990, Husband left the marital residence. In February, 1991, Wife was injured in a plane crash. Due to the injuries she suffered in the accident, appellant received a settlement from U.S. Air in the amount of $120,000. Husband filed a complaint for divorce on February 8, 1994. Wife answered and filed a counterclaim. The matter proceeded to trial on June 10, 1996. The magistrate issued a report on August 16, 1996. The magistrate awarded Wife one half of Husband's pension from General Motors with surviving spouse status. Magistrate's Report, Aug. 16, 1996, pp. 10-11.
Husband filed objections to the Magistrate's Report on August 30, 1996, arguing wife's personal injury settlement, although not marital property, should have been considered in the division of marital property. On October 11, 1996, the trial court filed a Judgment Entry awarding husband the entire General Motors pension. Wife appealed, and on April 11, 1997, this Court reversed and remanded the matter to the trial court for a re-examination of the division of marital property. On remand, the magistrate held a hearing on January 23, 1997. By "Proposed Decision and Entry" filed February 17, 1998, the magistrate divided each party's private retirement account equally based on appraisals of the then present value of the accounts. Husband filed his objections to the magistrate's Decision on March 13, 1998, alleging the division should have been equitable rather than equal. Wife responded to husband's objections on March 19, 1998. In a March 30, 1998 Judgment Entry, the trial court conducted an independent analysis of the law and facts and modified the magistrate's order.
It is from this judgment entry husband prosecutes this appeal assigning the following as error:
WHETHER THE TRIAL COURT'S FAILURE TO CONSIDER ALL RELEVANT FACTORS LISTED IN OHIO REVISED CODE 3105.171(F) CONSTITUTES AN ERROR OF LAW AND AN ABUSE OF DISCRETION.
This is the second time this case has been before us on appeal. In the first appeal, the issue was whether the trial court properly considered wife's personal injury settlement when it awarded husband his entire pension. On remand we ordered the trial court to make an equitable division of the parties' pension benefits in light of the factors announced Hoyt v. Hoyt (1990), 53 Ohio St.3d 177.
Further, we specifically instructed the trial court to disregard the wife's personal injury settlement in making this determination. Our order stated, in pertinent part:
Based upon the above testimony, since none of the personal injury settlement proceeds were for lost wages or medical expenses, we find the trial court abused its discretion when it considered appellant's personal injury settlement in dividing the parties' marital property.
* * * We find the trial court abused its discretion when it failed to consider appellee's pension from General Motors to be "marital property" and there
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