Holcomb v. Holcomb

• Decision Date: 26 July 1989
• Docket Number: No. 88-381,88-381
• Citation: 541 N.E.2d 597,44 Ohio St.3d 128
• Parties: HOLCOMB, Appellant, v. HOLCOMB, Appellee.
• Court: Ohio Supreme Court

Page 128

44 Ohio St.3d 128

541 N.E.2d 597

HOLCOMB, Appellant, v. HOLCOMB, Appellee.

No. 88-381.

Supreme Court of Ohio.

Submitted March 15, 1989.

Decided July 26, 1989.

Syllabus by the Court

A vested pension plan accumulated during marriage is a marital asset and must be considered in conjunction with other factors listed under R.C. 3105.18 and other relevant factors in dividing marital assets and liabilities to ensure that the result reached is equitable.

Barbara Holcomb, appellant herein, and Kenneth Holcomb, appellee, were married in 1959. Two children were born of the marriage. At the time of trial, the daughter was emancipated and the son was seventeen years old. After a period of separation, appellant, on August 27, 1985, filed for divorce, alleging extreme cruelty. Appellee counter-claimed on the same ground. On August 14, 1986, the court granted a divorce based on appellant's claims. At the time of the divorce, the parties had been married for twenty-seven years.

During twenty-one years of his twenty-seven-year marriage to appellant, Kenneth was employed by the federal prison system until his voluntary retirement at the rank of lieutenant on March 1, 1986. He was fifty years old at retirement. Except for high blood pressure and bouts of depression resulting from a prison-hostage experience, appellee was generally in good health when he retired.

During Kenneth's employment with the federal prison system, the Holcombs resided in many parts of the country, each relocation precipitated by his job transfer. In the course of his employment with the federal prison system, Kenneth paid approximately $27,000 into the Civil Service Retirement System, entitling him to a lifetime monthly income after retirement of $1,369, the first eighteen payments of which were tax free. The retirement plan also provides for a survival benefit of $880 per month for life, payable to his wife in the event of his death. Evidence adduced at trial shows that the retirement plan has a present value of about $200,000. Because he has a federal pension, Kenneth does not qualify for any Social Security benefits.

The record indicates that Barbara Holcomb is a high school graduate and was forty-seven years old when she initiated this divorce action. Although she claims to be in poor health, she admitted to missing only three days of work for health-related reasons in the past couple of years.

During the marriage, Barbara worked as a bookkeeper and accountant in a number of financial institutions. Given the family's several relocations, she did not stay long at any employment to accumulate a retirement benefit, except for a $4,500 accumulation with a credit union in Texas. This fund was subsequently withdrawn and used in financing a family business which has been sold and the proceeds divided as part of the property settlement agreement herein. She did pay into the Social Security system, entitling her to benefit payments on retirement.

At the time of the decree of divorce, Kenneth was unemployed; his retirement benefit constituted his only source of income; after his retirement, he had received his accrued vacation pay of $1,000, and $4,000 from various insurance policies. These funds were deposited into an account together with his retirement benefits, from which he paid his apartment rent and living expenses while separated from his wife, repaired his pickup truck, and paid temporary alimony to his wife.

Barbara was employed at Banc-Ohio at an annual salary of $12,240. She had health and life insurance benefits through her employer and expected to inherit property from her mother, who was seventy-four years of age at the time of the divorce action.

At trial, the parties arrived at an agreement as to the division of personal property and marital assets. The minor son elected to stay with his father. The only issues to be determined by the court were sustenance alimony, child support and the disposition of the pension and retirement benefits of the parties. The trial court made the following determinations:

1. That the income of the parties is substantially the same; therefore, neither party is to provide sustenance alimony to the other, nor is the wife to pay child support to husband.

2. The real estate belonging to the parties is to be sold pursuant to agreement of the parties and the proceeds, after payment of outstanding mortgage, taxes and costs of sale, are to be used to pay wife's dental bill of $3,049.12. Any balance left is to be divided equally between the parties.

3. From the $6,250 plus interest received by the parties' counsel from the sale of a business interest, $3,001.47 is to be used to pay legal fees for the sale; $1,250 is to be paid to wife; and the remainder shared equally. In addition, wife is to receive $1,000 worth of inventory which was part of the consideration received from the sale of the business.

4. The federal and state income tax refunds of $1,368 and $104.35, respectively, are to be divided equally.

5. Husband is to pay and save wife harmless from the following debts:

(a) $2,800 owed on a pickup truck;

(b) $134 for various medical bills;

(c) $175 owed on his MasterCard.

Wife is to pay and save husband harmless from the following debts:

(a) $364 owed to a Dr. Axe;

(b) $585 owed to attorney Moore;

(c) $1,000 owed to a Ms. Ann Price;

(d) $200 owed for pension analysis.

6. By agreement of the parties, appellee retains ownership interest in a 1983 Ford pickup truck, while appellant retains an ownership interest in a 1978 Oldsmobile and 1980 Pontiac LeMans.

7. Each party keeps all items of personal property and life insurance policies as agreed.

8. Appellee is to retain, free and clear of all claims, his retirement benefit with the federal prison system.

9. Each party retains free and clear of all claims any cash and funds as agreed and is liable for his own attorney fees.

In deciding that neither party is to take an interest in the other's pension benefits or pay sustenance alimony to the other, the court determined that appellant's take-home pay and appellee's retirement benefits are substantially the same. It further emphasized that appellant is entitled to Social Security benefits upon retirement and also stands to inherit from her mother; whereas, the federal pension benefit is all that is available to appellee. The trial court also indicated that, in arriving at its decision, it considered the earning ability of the parties, their physical and emotional conditions, age, expectancies and inheritances, the length of the marriage, the standard of living of the parties during the marriage, the education of the parties, the property brought into the marriage, and the contribution of each party to the marriage.

The court of appeals affirmed, finding no abuse of discretion. Like the trial court, it noted appellant's take-home pay, her entitlement to Social Security benefits on retirement, and the possibility of inheriting property from her mother.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Richard F. Swope, Reynoldsburg, for appellant.

Spetnagel & Benson and J. Jeffrey Benson, Chillicothe, for appellee.

MOYER, Chief Justice.

The issue presented is whether the trial court abused its discretion in failing to divide appellee's pension plan and in not awarding sustenance alimony to appellant. Due to the nature of the question, we first address the property division before the award of sustenance alimony.

After a divorce has been granted, the trial court is required to equitably divide and distribute the marital estate between the parties and thereafter consider whether an award of sustenance alimony would be appropriate. Teeter v. Teeter (1985), 18 Ohio St.3d 76, 18 OBR 106, 479 N.E.2d 890, citing to Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 75 O.O.2d 474, 350 N.E.2d 413. The trial court is vested with broad discretion in determining the appropriate scope of these property awards. Berish v. Berish (1982), 69 Ohio St.2d 318, 23 O.O.3d 296, 432 N.E.2d 183. Although its discretion is not unlimited, it has authority to do what is equitable. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, 20 O.O.3d 318, 322, 421 N.E.2d 1293, 1298. A reviewing court should measure the trial court's adherence to the test, but should not substitute its judgment for that of the trier of fact unless, considering the totality of the circumstances, it finds that the court abused its discretion. Section 3(B), Article IV of the Ohio Constitution; App.R. 12; Briganti v. Briganti (1984), 9 Ohio St.3d 220, 222, 9 OBR 529, 531, 459 N.E.2d 896, 898; Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 94, 518 N.E.2d 1197, 1199. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.

The starting point for any court division of marital property or award of alimony is R.C. 3105.18, which provides in pertinent part:

"(A) In divorce, dissolution of marriage, or alimony proceedings, the court of common pleas may allow alimony it considers reasonable to either party. ¹

"The alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court considers equitable.

"(B) In determining whether alimony is necessary, and in determining the nature, amount, and manner of payment of alimony, the court shall consider all relevant factors, including, but not limited to, the following:

"(1) The relative earning abilities of the parties;

"(2) The ages, and the physical and emotional conditions of the parties;

"(3) The retirement benefits of the parties;

"(4) The expectancies and inheritances of the parties;

"(5) The duration of the marriage;

"(6) The extent to which it would be inappropriate for a...