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Rose v. Rose9/27/1999
fore subject to division.
Because appellant's personal injury settlement is not to be considered in the division of marital property, to not award a portion of appellee's pension to appellant would result in an inequitable division of marital assets. (Emphasis added). We now believe this instruction was in error. While it is true wife's personal injury settlement was "separate property," R.C. 3105.171 requires the trial court to consider the assets and liabilities of the spouses when making a division of marital property: (F) In making a division of marital property and in determining whether to make the amount of any distributive award under this section, the court shall consider all of the following factors: * * * (2) The assets and liabilities of the spouses; (Emphasis added).
Because wife's personal injury settlement was an asset, the trial court was required to consider it, even though it was separate property. To the extent we instructed the trial court to disregard a separate property asset in its consideration of an appropriate division of marital property, our decision was incorrect.
Accordingly, that portion of Rose v. Rose (April 11, 1997), Morrow App. No. 840, unreported, is hereby overruled. Notwithstanding today's ruling, we are mindful of the doctrine of the law of the case. That doctrine requires after a reviewing court has reversed and remanded a cause for further action in the trial court, and the unsuccessful party does not prosecute review to the Supreme Court, the pronouncement of the law by the intermediate court becomes law of the case, and must be followed by the lower court in subsequent proceedings in that case. Stemen v. Shibley (1982), 11 Ohio app.3d 263, 265.
A trial Judge is without authority to resolve the law at variance with the mandate of the Court of Appeals. Id.
The doctrine of the law of the case is necessary, not only for consistency of result and the termination of litigation, but to preserve the structure of the judiciary as set forth in the Ohio Constitution, designating a system of superior and inferior courts, each possessing a distinct function. Id. The Constitution does not grant to a Court of Common Pleas jurisdiction to review a prior mandate of a Court of Appeals. Id.
In his sole assignment of error, husband argues the trial court failed to consider all relevant factors listed in R.C. 3105.171(F) and therefore, the trial court's final division of pension assets was in error. Essentially, husband makes the same argument which was at the center of the first appeal: whether the trial court erred in considering wife's personal injury settlement in making a determination of separate property. In reviewing the equity of a division of marital property pursuant to R.C. 3105.171, we will not disturb the trial court's judgment absent a showing the trial court abused its discretion in formulating its division. Martin v. Martin (1985), 18 Ohio St.3d 292, 294.
Therefore, we cannot substitute our judgment for that of the trial court's unless, when the considering the totality of the circumstances, the trial court abused its discretion. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable. Bisker v. Bisker (1994), 69 Ohio St.3d 608, 609, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. On remand, the trial court was ordered to consider the factors set forth in Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, in determining an equitable division of husband's pension from General Motors and wife's pension funds.
Hoyt held, in pertinent part:
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