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Rose v. Rose9/27/1999
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When determining what is an equitable distribution of retirement benefits, the trial court must consider the following factors: (1) the circumstances of the case; (2) the status of the parties; (3) the nature, terms and conditions of the pension or retirement; and (4) the reasonableness of the result. Hoyt, supra 53 Ohio St.3d, 177, syllabus par. 1.
We find no abuse of discretion in the trial court's decision to divide husband's and wife's pension funds equally after consideration of the Hoyt factors. While the trial court may not have considered wife's personal injury settlement in making this determination, any such error was due to the express order of this Court, and the law of the case.
Accordingly, husband's sole assignment of error is overruled. The judgment of the Morrow County Court of Common Pleas, Domestic Relations Division, is affirmed. By Hoffman, J. Wise, P.J. concur. Edwards, J. Dissents.
EDWARDS, J., DISSENTING
I would remand this matter to the trial court so it could reconsider the division of property issue, in light of the fact that we have acknowledged our mistaken analysis on the first appeal of this case. WISE, P. J., CONCURRING I concur in the result of this case, but do so for different reasons. I respectfully disagree with Judge Hoffman's decision to overrule that portion of Rose v. Rose (April 11, 1997), Morrow App. No. 840, unreported, that instructed the trial court to disregard the wife's personal injury settlement in its consideration of an appropriate division of marital property. I do not find that R.C. 3105.171(F)(2) requires the trial court to reconsider assets which have already been determined to be separate property under R.C. 3105.171(A)(6)(a)(vi).
Instead, I would adhere to our previous analysis contained in the first appeal of this matter. In the first appeal, we relied on the case of Everhardt v. Everhardt (1991), 77 Ohio App.3d 396, which held that a personal injury settlement is "marital property," divisible upon divorce , only to the extent that it reimburses an injured spouse for lost earnings and medical expenses that have an adverse impact on the marital estate. Id. at 401.
Evidence is contained in the record that no portion of the wife's personal injury settlement was used as compensation for lost wages or medical expenses. Therefore, I would conclude, in the matter currently before the court, that the trial court properly followed the instructions of this court as set forth in the first appeal of this matter. I would find R.C. 3105.171(F) applicable, as it pertains to personal injury settlements, only in those cases where the settlement is first found to be "marital property," as defined in Everhardt, or where the trial court intends to make a distributive award of the personal injury settlement.
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