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Avery v. Avery3/8/2002
{ } This case is before us on an appeal and cross-appeal from a judgment and decree of divorce . The parties in this case were married for about fifteen years and have one minor child (William). During the marriage, the husband (Joseph) was in the United States Air Force.
Before the divorce was filed, Joseph began receiving military retirement benefits. The proper allocation of those benefits is a major issue in the appeal. Also at issue are the spousal support and child support awards, child care expenses, and educational expenses for the minor child. In discussing these points, we will first address the wife's (Virginia's) appeal, and then we will consider Joseph's cross-appeal. Before we do so, however, we will briefly consider whether the cross- appeal is properly before us.
{ } Virginia contended, in her reply brief, and at oral argument, that Joseph did not file a notice of cross-appeal. Joseph, who is acting pro se, did timely file a document
{ } entitled "Post Decree Cross Appeal Motion to Modify Final Judgment and Decree of Divorce ." He also timely filed a civil docket statement as required by our court. Virginia does not dispute that these documents were filed or that she received them; she simply thinks they were not sufficient to institute a cross-appeal. However, we disagree.
{ } According to the Ohio Supreme Court, the only jurisdictional requirement for a valid appeal is "the timely filing of a notice of appeal." Transamerica Ins. Co. v. Nolan (1995), 72 Ohio St.3d 320, syllabus. When appellate courts are presented with other defects in the notice of appeal, they have discretion to decide if sanctions, including dismissal, are justified. A decision on this issue will not be overturned unless it is an abuse of discretion. Id.
{ } After examining the record, we find that the notice of cross- appeal was timely filed under App. R. 3(A). While the notice might have been better worded, the defect does not merit any sanction, including dismissal. Virginia was not harmed in any way, since she had notice of the appeal and a chance to respond to the alleged errors. We also could have allowed Joseph to amend his notice of appeal if we felt amendment was needed. See App. R. 3(F). However, the notice of cross-appeal was timely, and we can adequately tell from the notice that Joseph intended to appeal from the final judgment of the trial court. Consequently, we will consider the merits of the cross-appeal.
I.
{ } Virginia claims in her first assignment of error that the trial court abused its discretion in dividing Joseph's retirement income. This assignment of error has three sub-parts. In the first sub-part, Virginia contends that the court erred in failing to include a VA waiver as part of Joseph's retirement income. The second issue involves the trial court's alleged error in excluding money deducted from Joseph's retirement check for a Survivor Benefit Plan (SBP). And finally, Virginia says in the third sub-part that the court erred in failing to divide Joseph's military retirement pay as of the date of the divorce hearing (June 13, 2001).
{ } The facts pertinent to these issues are as follows. Joseph's gross yearly retirement income is about $29,712, or $2,474 per month. Of this amount, $2,328 per year, or $194 per month, is deducted as a VA waiver. Specifically, Joseph has a 10% disability, for which he receives a disability check of $194 per month. A corresponding amount is deducted from Joseph's military retirement check, i.e., it is "waived." The effect is that Joseph receives the same amount of money as he would have received without the disability. However, since the disability check is no
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