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Hauser v. Hauser3/21/1997
GRADY, Judge.
This is an appeal from a judgment and decree of divorce. Two issues are presented: whether the trial court erred when it entered a distributive award for the wife of a one-half share of the husband's disability pension income, and whether the court abused its discretion when it declined to divide the parties' interests in their marital residence, gave the wife the right to live there for the remainder of her life, and ordered the husband to pay half the maintenance expenses.
We find that the trial court erred when it divided the husband's disability pension income because, on this record, it was the husband's separate property, and we reverse the distributive award of a share of that income to the wife. We also find an abuse of discretion in the order preserving the marital residence and permitting the wife to live there, and that order is reversed, as well.
Defendant-appellant, Clarence J. Bauser, is sixty-four years of age. Plaintiff-appellee, Ruth Bauser, is sixty-five years of age. They were married in 1950. At the entry of the decree of divorce from which this appeal was taken in February 1996, Mrs. Bauser remained living in the marital residence. Mr. Bauser lived in his motor home.
Neither party is employed. Mr. Bauser's sole income is a disability pension paid to him by the Ohio Public Employees Retirement System in the amount of $17,301.40 per year, which he receives in equal monthly net payments of $1,227.00. Mrs. Bauser receives $416 per month in Social Security disability benefits.
The parties' marital residence is a house that they purchased in 1965. No mortgage balance is owed on it. The net marital equity in the house is between $35,000 and $42,000.
At the time of the divorce the parties had agreed on division of their motor vehicles and other personal property. The trial court confirmed their agreement in its order.
The trial court, adopting the recommended decision of its magistrate over the objection of Mr. Bauser, found his disability pension income to be marital property, and it awarded one-half of the monthly payment he receives, $613.50, to Mrs. Bauser as her share of that marital property. Also over Mr. Bauser's objection, the court found that Mrs. Bauser's Social Security disability income is not marital property, and the court declined to divide it. The court also declined to award spousal support.
With respect to the marital residence, the trial court overruled Mr. Bauser's objections and adopted the magistrate's recommended order, which provides:
"8. Considering the ages of the parties, length of marriage, financial resources, current living arrangements and R.C. 3105.71.1(J)(1), the Plaintiff will have exclusive use of the real property until the death of the Plaintiff, remarriage of Plaintiff, cohabitation by Plaintiff, Plaintiff no longer desires to live there, Plaintiff abandons the residence as her principal residence, wasting of the residence by the Plaintiff, or a substantial change in circumstances.
"9. Upon the first occurrence of the aforesaid events, the residence shall be listed for sale and upon closing, and after payment of any mortgages, taxes, insurance due, any real estate commissions payable and customary costs of closing, the net proceeds realized therefrom will be divided between the parties.
"Neither party shall do anything to frustrate the sale of this property and the Court retains jurisdiction to resolve any disputes between the parties arising from the fulfilling of the conditions precedent to sale, or from the listing and sale.
"10. Until the r
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