Williams v. Williams

[Cite as Williams v. Williams, 2013-Ohio-3318.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

SHERRI E. WILLIAMS, :
CASE NO. CA2012-08-074
Plaintiff-Appellee, :
OPINION
: 7/29/2013
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:

KENNY WILLIAMS, :

Defendant-Appellant. :

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 11DR34675

Elizabeth Ann Yauch, 240 East State Street, Trenton, Ohio 45067, for plaintiff-appellee

Fred S. Miller, Baden & Jones Building, 246 High Street, Hamilton, Ohio 45011, for
defendant-appellant

S. POWELL, J.

{¶ 1} Defendant-appellant, Kenny Williams (husband), appeals a divorce decree of

the Warren County Court of Common Pleas, Domestic Relations Division. For the reasons

stated below, we affirm in part and reverse in part.

{¶ 2} Husband and plaintiff-appellee, Sherri E. Williams (wife), were married in 1983

and two children were born during the marriage. During the marriage, husband worked as a
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guard at Warren Correctional Institution and thus was entitled to a pension through the Public

Employee Retirement System (PERS). Wife worked at a private company and contributed

only to Social Security for her retirement savings.

{¶ 3} On May 16, 2011, wife filed a complaint for divorce. In her complaint, wife

asserted that the parties have lived separate and apart since July 2006. Husband agreed

with this date in his answer and counterclaim. Thereafter, a hearing was held regarding

several issues in the divorce. During the hearing, wife made an oral motion to amend her

complaint to reflect that the parties separated in July 2007. The trial court granted this

motion. The parties then presented conflicting evidence as to whether they separated in July

2006 or July 2007. Additionally, the parties disputed whether a student loan debt incurred for

the parties' son was a marital or nonmarital debt.

{¶ 4} After the conclusion of the hearing, the court found that the parties' marriage

terminated on July 2007 because the parties continued their financial relationship up until this

time. Additionally, the court ordered husband to be solely responsible for the student loan

debt of the parties' son. Over husband's objection, the court also divided husband's PERS

account between the parties without considering wife's Social Security benefits.

{¶ 5} Husband now appeals, raising four assignments of error.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF [HUSBAND] WHEN IT

PERMITTED [WIFE] TO AMEND HER COMPLAINT IN THE MIDDLE OF TRIAL.

{¶ 8} Husband's first assignment of error concerns whether the trial court committed

a procedural error in allowing wife to amend her complaint during the hearing to change the

termination date of the marriage. Specifically, Husband contends the termination date in

wife's complaint constituted a judicial admission. Wife responds by arguing that husband has

waived this argument on appeal because he did not explicitly state he was objecting to the
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trial court's decision in altering the date of the marriage.

{¶ 9} We begin by addressing the standard of review. The failure to timely advise a

trial court of possible error, by objection or otherwise, results in a waiver of the issue for

purposes of appeal. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). The fundamental

rule is that an appellate court will not consider any error which could have been brought to

the trial court's attention, and hence avoided or otherwise corrected. Schade v. Carnegie

Body Co., 70 Ohio St.2d 207, 210 (1982).

{¶ 10} However, an exception to this rule occurs once a party makes his position

sufficiently clear to the trial court such that the court has an opportunity to correct a mistake

or defect in the charge. DuBoe v. Accurate Fabrication, 10th Dist. Franklin No. 98AP-842,

1999 WL 33893941 (July 20, 1999), citing Presley v. Norwood, 36 Ohio St.2d 29 (1973). In

such circumstances, a "party does not waive his objections to the court's charge by failing to

formally object thereto." (Emphasis sic.) Presley at paragraph one of the syllabus. See also

Van Scyoc v. Huba, 9th Dist. Summit No. 22637, 2005-Ohio-6322, ¶ 16.

{¶ 11} In the case at bar, the record shows that husband made the trial court fully

aware that he was disputing the issue in question. Specifically, husband argued that he did

not believe the termination date of the marriage was in issue because wife's complaint and

his answer used the same termination date for the marriage. Further, he stated he disagreed

with amending the complaint during trial because he had not received a written motion to

amend the complaint and thus he did not have enough time to prepare regarding the new

date. Accordingly, husband made his position sufficiently clear to the trial court and he has

not waived this issue.

{¶ 12} Next, we address whether wife's complaint constituted a judicial admission and

whether the court erred when it permitted wife to amend her complaint. A judicial admission

is a "formal statement, made by a party or a party's counsel in a judicial proceeding, that
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act[s] as a substitute for legal evidence at trial." Haney v. Law, 1st Dist. Hamilton No. C-

070313, 2008-Ohio-1843, ¶ 7. If a party "unequivocally concedes a fact, that concession

constitutes a judicial admission for the purposes of trial." Id. The Ohio Supreme Court has

recognized that judicial admissions can occur during the pleading stage. Id. at ¶ 8 citing

Gerrick v. Gorsuch, 172 Ohio St. 417, 420 (1961). Pleadings containing admissions against

interest are admissible as evidence against the pleader, as long as the admissions involve

material and competent facts. Haney at ¶ 7. Therefore, "a party who has alleged and has

the burden of proving a material fact need not offer any evidence to prove that fact if its

judicially admitted by the pleadings of the adverse party." Gerrick at 420.

{¶ 13} While a pleading can constitute a judicial admission, Civ.R. 15 outlines the rule

regarding the amendment of pleadings. Civ.R. 15(A) provides that parties can amend their

pleadings after a responsive pleading is served by leave of court or by written consent of the
1
adverse party. A trial court should freely give a party leave to amend his pleadings when

"justice so requires." Civ.R. 15(A).

{¶ 14} Other districts have found that parties may move to amend their pleadings

pursuant to Civ.R. 15(A) even though the statements in the pleadings could have constituted

judicial admissions before the amendment. Stevens v. Cox, 6th Dist. Wood No. WD-08-020,

2009-Ohio-391; Duncan v. Charter One Bank, 4th Dist. Scioto No. 02-CA2855, 2003-Ohio-

1907. Both of these districts reasoned that while parties are generally bound by their written

admissions, this rule gives way to Civ.R. 15(A), which encourages trial courts to allow parties

to amend their pleadings "when justice so requires." Stevens at ¶ 57-58; Duncan at ¶ 15-16.

See also Badalmenti v. Kirkland, 11th Dist. Lake No. 90-L-15-151(Nov. 29, 1991); Core v.

Champaign County Bd. of County Commrs., S.D. Ohio No. 3:11-CA-166, 2012 WL 3073418,

1. Since the hearing, Civ.R. 15(A) has been amended. However, these amendments are not relevant as the
changes do not pertain to this case and the hearing occurred before the effective date of the amendments.
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*4 (July 30, 2012).

{¶ 15} However "any admissions contained in the original pleadings still may be

offered as evidence, even after a party has amended his original pleading with leave of

court." Duncan at ¶ 16. Therefore, a party can submit both the original pleading and the

amended pleading and the competing admissions contained with these pleadings will give

rise to a genuine issue of fact. Id.

{¶ 16} Therefore, this court finds that a trial court may permit a party to amend a

pleading pursuant to Civ.R. 15 even though the statements in the pleadings could constitute

judicial admissions if the pleading was not amended. However, both the original pleading

and the amended pleading may be used as evidence in determining the disputed fact.

{¶ 17} An appellate court reviews a trial court's decision to grant or deny a motion to

amend a complaint for abuse of discretion. Scovanner v. Ohio Valley Voices, 12th Dist.

Clermont No. CA2012-02-017, 2012-Ohio-3629, ¶ 28. An abuse of discretion connotes more

than a mere error of law or judgment, instead requiring a finding that the trial court's decision

was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983). Civ.R. 15(A) favors a liberal amendment policy and a motion for leave to amend

should be granted absent a finding of bad faith, undue delay, or undue prejudice. State ex

rel. Doe v. Caper, 132 Ohio St.3d 365, 2012-Ohio-2686, ¶ 8. The primary consideration

when deciding whether to grant or deny leave to amend is whether there will be actual

prejudice because of delay. Textiles, Inc. v. Design Wise, Inc., 12th Dist. Madison Nos.

CA2009-08-015, CA2009-08-018, 2010-Ohio-1524, ¶ 83.

{¶ 18} In the present case, wife's complaint originally stated that the marriage

terminated "on or about July 2006." In his answer, husband agreed that the marriage

terminated on this date. During the hearing, wife moved to amend her complaint to reflect

that the marriage terminated in July 2007. Wife explained that she miswrote the date of the
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termination of the marriage because it had been numerous years since the physical

separation. The court granted this motion reasoning husband had been on notice regarding

this issue for several months. The court recorded in its notes in December 2011, five months

before the hearing, that there was a dispute between the parties regarding the marriage

termination date. Additionally, wife's counsel stated that the parties discussed a different

termination date during a settlement conference that occurred on October 11, 2011. During

the discussion, husband's counsel conceded that the parties "talked about this" issue.

{¶ 19} We find that the trial court did not abuse its discretion in permitting wife to

amend her complaint. Husband was not unduly prejudiced by the amendment of the

termination date because he had notice regarding the dispute for several months. Husband

actually conceded that the parties talked about the termination date at settlement

conference. Additionally, there is no evidence that wife amended her complaint in bad faith

as the divorce proceedings occurred five or six years after the parties separated. Lastly,

there are no allegations that amending the complaint caused an undue delay in the divorce

proceedings. As there was no evidence of bad faith, undue delay, or undue prejudice, we

find the trial court did not abuse its discretion in granting wife's motion to amend the

complaint.

{¶ 20} Husband's first assignment of error is overruled.

{¶ 21} Assignment of Error No. 2:

{¶ 22} THE TRIAL COURT ERRED TO THE PREJUDICE OF [HUSBAND] IN

DECIDING THAT THE TERMINATION DATE OF THE MARRIAGE WAS JULY 2007.

{¶ 23} Husband's second assignment of error challenges whether there was sufficient

evidence to support the trial court's determination that the marriage terminated on July 31,

2007. In its final decision, the trial court used July 31, 2007 as the termination date of the

marriage for purposes of dividing husband's retirement account. Husband argues that the
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evidence established that the parties' marriage ended in 2006 as that is the date that the

parties stopped living together.

{¶ 24} R.C. 3105.171(A)(2) provides that, except when the court determines it would

be inequitable, for purposes of property valuation, the date of the final hearing is the date of

termination of the marriage. Fillis v. Fillis, 12th Dist. Clermont Nos. CA2008-10-093,

CA2008-10-101, 2009-Ohio-2808, ¶ 8. As this court has noted previously, "R.C.

3105.171(A)(2) creates a statutory presumption that the proper date for the termination of a

marriage is the date of the final divorce hearing." Doyle v. Doyle, 12th Dist. Warren No.

CA2006-02-027, 2007-Ohio-2554, ¶ 15.

{¶ 25} However, the statute permits a trial court to select a different date of

termination, if it considers the date of the final divorce hearing to be "inequitable." Fillis at ¶

15. R.C. 3105.171(A)(2)(b) provides:

If the court determines that the use of either or both of the dates
specified in division (A)(2)(a) of this section would be inequitable,
the court may select dates that it considers equitable in
determining marital property. If the court selects dates that it
considers equitable in determining marital property, 'during the
marriage' means the period of time between those dates
selected and specified by the court.

The Supreme Court of Ohio has noted:

The choice of a date as of which assets available for equitable
distribution should be identified and valued must be dictated
largely by pragmatic considerations. * * * [T]he precise date
upon which any marriage irretrievably breaks down is extremely
difficult to determine, and this court will avoid promulgating any
unworkable rules with regard to this determination. It is the
equitableness of the result reached that must stand the test of
fairness on review.

Berish v. Berish, 69 Ohio St.2d 318, 319-320 (1982).

{¶ 26} The trial court has broad discretion in choosing the appropriate marriage

termination date for purposes of property valuation. Id. at 319. Therefore, we will not disturb

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the trial court's finding absent an abuse of discretion. Id.

{¶ 27} At the hearing, wife testified that husband lived in the marital home for a portion

of the week until July 2007. Wife explained that husband began sleeping away from the

home four nights a week in July 2006. Husband continued this pattern until July 2007 when

husband moved out of the home completely. After this date, husband stayed at the home

only once more, for a period of three weeks in February 2008, when husband took care of his

ailing mother in the marital home. Wife also stated that in preparation for a divorce in June

2008, she completed a parenting affidavit. The affidavit stated that both parents resided at

the home until 2007 and then after 2007, only wife resided at the home.

{¶ 28} On the stand, husband disputed wife's assertions that he slept in the marital

home a portion of the week until 2007. Instead he testified that after July 2006 he moved out

of the home completely. He stated that the couple had "serious marital problems" prior to

July 2006, and that he lived in the basement before moving out. After leaving the marital

residence, husband moved in with another woman. Husband explained that he returned to

the home only to see his children. Husband acknowledged that in February 2008, he

returned to the home for three weeks to care for his mother who was recovering from

surgery. However, he stated that he slept in a separate room from wife during this time.

{¶ 29} Husband's girlfriend also testified that she and husband began to live together

in August 2006. Husband stayed with her or her cousin in Kentucky. She testified that while

there were times she would take husband back to the marital residence so that he could pick

up his vehicle, husband would always either stay with her or her cousin.

{¶ 30} The parties agreed that their financial relationship continued until 2008. Wife

testified that the parties shared a joint checking account until March or April of 2008.

Husband's paychecks were deposited into the account and wife used this money to meet her

monthly expenses. After a series of late payments in 2008, the couple divided their bank
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accounts. In 2008, wife consulted with an attorney regarding filing for divorce. However, wife

and husband came to an agreement where husband would provide wife cash assistance and

make monthly house payments.

{¶ 31} We find the trial court did not abuse its discretion in finding the termination date

for the marriage was July 31, 2007. As there was ample evidence that the parties ended

their marriage prior to the final date of the hearing, it is clear that using the date of the final

hearing would be inequitable. Additionally, the evidence supported the trial court's decision

in finding the termination date was July 31, 2007. In coming to its conclusion, the court

reasoned that a marriage is both a social and financial relationship. The court stated that

even assuming that a social relationship ended between the parties in 2006, husband and

wife continued their financial relationship until 2008. It is undisputed that the parties

maintained their financial relationship even after their social relationship ceased.

Additionally, wife testified that husband stayed in the marital home a portion of the week from

2006 until 2007. A parenting affidavit from 2008 was introduced where wife attested to this

fact. In light of these facts, we do not find that the trial court abused its discretion in finding

the marriage terminated on July 31, 2007.

{¶ 32} Husband's second assignment of error is overruled.

{¶ 33} Assignment of Error No. 3:

{¶ 34} THE TRIAL COURT ERRED TO THE PREJUDICE OF [HUSBAND] IN

REFUSING TO SET OFF [WIFE'S] SOCIAL SECURITY EARNINGS FROM HIS PENSION

PLAN BEFORE DIVIDING THAT PENSION PLAN.

{¶ 35} Husband challenges the trial court's division of his PERS account. He argues

the trial court erred when it divided PERS without considering wife's Social Security benefits.

At the hearing, the trial court refused to set-off husband's PERS account by wife's Social

Security benefits due to a lack of evidence regarding the Social Security benefits. The first
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issue in this assignment of error is the proper reading of amended R.C. 3105.171(F)(9). The

second issue is whether the trial court erred in failing to set-off husband's PERS by wife's

Social Security benefits because of a lack of evidence.

A. Amended R.C. 3105.171

{¶ 36} In divorce proceedings, the trial court shall divide marital property equitably

between the spouses. R.C. 3105.171(B). Retirement benefits that were acquired during the

marriage constitute marital property. Id. at (A)(3)(a)(ii). However, a party's interest in Social

Security benefits cannot be directly divided as a marital asset. Gregory v. Kottman-Gregory,

12th Dist. Madison Nos. CA2004-11-039, CA2004-11-041, 2005-Ohio-6558, ¶ 19, 2005-

Ohio-6558; Hoyt v. Hoyt, 53 Ohio St.3d 177, 178 (1990). See R.C. 3105.171(B). The

prohibition against dividing Social Security benefits has raised policy concerns where one

spouse is a public employee who does not contribute to Social Security while the other

spouse is a private employee who does contribute. See Eickelberger v. Eickelberger, 93

Ohio App.3d 221, 227 (12th Dist.1994). In not considering Social Security benefits when

dividing retirement plans, the public employee spouse is effectively penalized because his or

her "equivalent of Social Security" is subject to division while the other spouse's Social

Security benefits are not. Id. at 227.

{¶ 37} Recently, R.C. 3105.171(F)(9) has been amended to provide:

In making a division of marital property and in determining
whether to make and the amount of any distributive award under
this section, the court shall consider all of the following factors:

***

(9) Any retirement benefits of the spouse, excluding the social
security benefits of a spouse except as may be relevant for
purposes of dividing a public pension.

(Emphasis added.)

{¶ 38} We interpret amended R.C. 3105.171(F)(9) as mandating that trial courts
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consider retirement benefits as well as Social Security benefits when dividing a public

pension. However, trial courts have the discretion to determine whether these benefits are

relevant for purposes of dividing a public pension. This reading is supported by the plain

language of R.C. 3105.171(F)(9). The first sentence of the statute states that a court "shall"

consider the following factors, which includes the "retirement benefits" subsection, subsection

(9). The use of "shall" makes consideration of every factor mandatory, including subsection

(9)'s language regarding Social Security benefits for public pensions. The provision "may be

relevant" applies to whether Social Security benefits for purposes of a public pension are

relevant. Therefore, the court "shall" consider retirement benefits, including Social Security

benefits when dividing a public pension. However, the court "may" determine that those

benefits are not relevant for purposes of dividing a public pension and not consider them.

{¶ 39} Since the amendment of the statute, the Eleventh and Fifth Appellate Districts

have also come to this conclusion. Thompson v. Thompson, 197 Ohio App.3d 610, 2011-

Ohio-6689 (11th Dist.); Runser v. Runser, 5th Dist. Stark Nos. 2010CA00258, 2010CA00317,

2011-Ohio-3327. In Thompson, the Eleventh District found that a trial court abused its

discretion when it refused to set-off a spouse's Social Security benefits. During the trial, the

court stated it would not consider Social Security benefits because the court believed the

benefits were too speculative due to the parties' ages. Id. at ¶ 24. The appellate court

disagreed, reasoning that these benefits must be considered under the statute. Specifically,

the court stated:

Neither the ages of the parties nor their ability to determine what
benefits may be received are factors required to be considered
under R.C. 3105.171. By modifying R.C. 3105.171, the
legislature mandated that courts "shall consider * * * [a]ny
retirement benefits of the spouses, excluding the social security
benefits of a spouse except as may be relevant for purposes of
dividing a public pension.

(Emphasis added.) Id. at ¶ 25.
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{¶ 40} In Runser the Fifth District found that a trial court did not abuse its discretion

when it did not order a set-off of one spouse's Social Security benefits from another spouse's

public pension. At trial, the court considered the Social Security benefits but found it was not

appropriate to set-off the benefits from the other spouse's public pension. Id. at ¶ 38. In

discussing whether the trial court erred in not setting-off the Social Security benefits, the

appellate court looked to amended R.C. 3105.171. Id. at ¶ 37. The court found that setting

off Social Security benefits was discretionary and focused on the language in the statute that

provided Social Security benefits may be considered in dividing public pensions "as may be

relevant." Id. Therefore, it concluded, "[R.C. 3105.171(F)(9)] still seems to leave it to the

discretion of the trial court as to whether to consider said benefits in dividing a public

pension." Id.

{¶ 41} While the courts in Thompson and Runser came to different conclusions, the

opinions are not in conflict because they focused on different parts of the statute. In

Thompson, the appellate court focused on the mandatory language of the statute. However,

in Runser the appellate court looked to the discretionary portion of the statute, "as may be

relevant." Additionally, the trial court in Thompson stated that it would not consider Social

Security benefits because they were too "speculative." The trial court's focus on the

speculative nature of Social Security benefits showed that it refused to consider Social

Security benefits at all, instead of determining that the benefits were not relevant under the

facts of this particular case. Conversely, in Runser, it is clear that the trial court considered

the Social Security benefits but simply found that it would not be "appropriate" to set-off

benefits under the circumstances of that case.

{¶ 42} Therefore, amended R.C. 3105.171(F)(9) mandates that trial courts consider

retirement benefits as well as Social Security benefits when dividing a public pension.

However, trial courts have the discretion to determine whether these benefits are relevant for
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purposes of dividing a public pension.

B. Evidentiary requirements for Social Security Set-Offs

{¶ 43} The second issue is whether the trial court abused its discretion, in light of

amended R.C. 3105.171(F)(9) and past case law, in refusing to order a Social Security set-

off due to insufficient evidence.

{¶ 44} In Eickelberger, 93 Ohio App.3d at 228, this court prescribed the method the

trial court must use when considering a set-off of Social Security benefits from a spouse's
2
public pension.

[T]he court should begin an analysis by calculating [a spouse's]
potential future monthly Social Security benefits and [the other
spouse's] potential future PERS monthly benefit. The court may
then offset [the spouse's] potential monthly Social Security
benefits against [the other spouse's] potential PERS monthly
benefit. The trial court can then equitably apportion the balance
of the parties' marital assets.

{¶ 45} Prior to the amendment of R.C. 3105.171(F)(9), courts have held that "when no

evidence is offered by the parties showing the value of either of the spouse's Social Security

benefits, the trial court should direct them to submit the evidence. A trial court's failure to

make specific findings about the court's treatment of the Social Security benefits in reaching

a property division order constitutes an abuse of discretion." DeChristefero v. DeChristefero,

11th Dist. Trumbull No. 2001-T-0055, 2003-Ohio-3065, ¶ 30. See also Simon v. Simon, 6th

Dist. Sandusky No. S-98-044 (Feb. 12, 1999); Risner v. Risner, 4th Dist. Jackson No.

04CA757, 1995 WL 767360, *3 (Dec. 28, 1995).

{¶ 46} During wife's testimony she explained she had contributed to the Social

Security system. While husband introduced a form into evidence which purportedly

2. Eickelberger also stated that prior to issuing a set-off, a trial court must determine whether a party's right to
Social Security benefits vested during the marriage. Id. at 228. However, this court has subsequently held that
for purposes of dividing marital assets upon a divorce, there is no requirement that retirement benefits vest
during the marriage. Haller v. Haller, 12th Dist. Warren No. CA95-06-063 (Mar. 18, 1996).
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explained wife's Social Security benefits, the trial court indicated it needed an expert to

explain the exhibit. The court also indicated that it was never aware this was an issue until

after the trial concluded. In the court's judgment entry, it stated that "[a]ll retirement plans

have been disclosed. The Wife has no retirement accounts or benefits." The court then

proceeded to award wife one-half of the value of husband's PERS account accumulated

during the marriage.

{¶ 47} We find that the trial court erred in not considering whether to set-off husband's

PERS by wife's Social Security benefits. As stated above, several districts have found that a

trial court cannot fail to conduct a Social Security setoff due to a lack of evidence. While the

above-mentioned cases were decided before the amendment of R.C. 3105.171(F)(9), our

reading of the statute also supports this proposition. Though R.C. 3105.171 leaves it up to

the trial court to determine whether Social Security benefits are "relevant," this does not

affect the requirement that a trial court must consider Social Security benefits. In order for a

court to consider Social Security benefits and to determine whether they are "relevant," the

trial court needs evidence to be fully apprised of the parties' retirement benefits.

{¶ 48} Therefore, R.C. 3105.171(F)(9) requires that when a trial court is dividing

marital assets in a divorce, it shall consider the parties' retirement benefits, including Social

Security benefits for purposes of dividing a public pension. However, the court only needs to

conduct a setoff of Social Security benefits when it finds the Social Security benefits to be

relevant for dividing a public pension. Additionally, the trial court cannot fail to decide

whether to set-off Social Security benefits due to a lack of evidence. Instead, if the court

needs more information regarding setting off Social Security, it should direct the parties to

submit more evidence. We note that the trial court should direct wife to submit additional

evidence as to the Social Security benefit as wife is the only person that will have access to

her account information. It is then within the trial court's discretion to consider wife's Social

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Security benefits and not order a setoff because the benefits are not relevant for purposes of

dividing husband's PERS account.

{¶ 49} Appellant's third assignment of error is sustained.

{¶ 50} Assignment of Error No. 4:

{¶ 51} THE TRIAL COURT ERRED TO THE PREJUDICE OF [HUSBAND] WHEN IT

ORDERED [HUSBAND] TO BE SOLELY RESPONSIBLE FOR THE PARTIES' SON'S

COLLEGE DEBT.

{¶ 52} Husband challenges the trial court's decision ordering him to be responsible for

the entirety of the son's college debt. Husband argues that when the court chose to

unequally divide this debt, it was required to issue written findings of fact. Additionally,

husband contends that it was unfair to require him to be responsible for the debt merely

because if the parties had filed for divorce earlier, he would have had to pay more money in

child support.

{¶ 53} Property division in a divorce proceeding is a two-step process that is subject to

two different standards of review. Boyer v. Boyer, 12th Dist. Butler Nos. CA2010-04-083,

CA2010-05-109, 2011-Ohio-989, ¶ 6. Initially, pursuant to R.C. 3105.171(B), "the court shall

* * * determine what constitutes marital property and what constitutes separate property."

"Because the trial court must consider the assets and liabilities of both parties, dividing

marital property requires the trial court to also divide marital debt." Wolf v. Wolf, 12th Dist.

Preble No. CA2009-01-001, 2009-Ohio-3687, ¶ 23. See R.C. 3105.171(F)(2). A trial court's

classification of property as marital or separate must be supported by the manifest weight of

the evidence, and an appellate court will not reverse the trial court's classification if it is

supported by competent and credible evidence. Zollar v. Zollar, 12th Dist. Butler No.

CA2008-03-065, 2009-Ohio-1008, ¶ 10.

{¶ 54} After classifying the assets and debts as separate or marital property, "the court
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shall disburse a spouse's separate property to that spouse" and divide the marital property

equally, unless the court finds an equal division would be inequitable. R.C. 3105.171(C)(1)

and (D). The trial court is given broad discretion in fashioning a property division and will not

be reversed absent an abuse of that discretion. Roberts v. Roberts, 12th Dist. Clinton No.

CA2012-07-015, 2013-Ohio-1733, ¶ 34.

{¶ 55} Pursuant to R.C. 3105.171(G), a trial court must indicate the basis for its

division of marital property in sufficient detail to enable a reviewing court to determine

whether the award is fair, equitable, and in accordance with the law. Kaechele v. Kaechele,

35 Ohio St.3d 93, 97 (1988); Mannerino v. Mannerino, 12th Dist. Butler No. CA2010-08-210,

2012-Ohio-1592, ¶ 19. "This requirement is especially important where the division results in

an unequal distribution of property." Brown v. Brown, 12th Dist. Madison No. CA2008-08-

021, 2009-Ohio-2204, ¶ 32. This court has stated that the objective of the findings of fact

authorized by R.C. 3105.171(G) is to facilitate meaningful appellate review consistent with

Civ.R. 52. Hoover v. Hoover, 12th Dist. Clinton No. CA93-03-008, 1993 WL 437695, * 3

(Nov. 1, 1993). The requirements of the statute are satisfied when the reviewing court is able

to ascertain the requisite information from various portions of the record, including the trial

court's decision. Id.

{¶ 56} At the hearing, wife and husband testified that in 2004, their son attended

Wittenberg University. Wife explained that husband agreed to pay a portion of son's college

expenses that were not covered by financial aid. She stated the agreement was solely

between husband and son. On the other hand, husband testified that he was not to be solely

responsible for the loan. He stated he and wife were married and living together at the time

and that the payments for the student loan came out of the parties' joint bank account.

{¶ 57} Additionally, the parties explained that they lived apart for some time prior to

filing for divorce. While the date of separation was contested, the parties agreed that in 2008
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instead of filing for divorce, they agreed to live separately to allow wife to repair her credit so

that she could eventually refinance the house in her own name and allow husband to avoid

child support payments. Thereafter, husband made the monthly mortgage payments on the

home while also providing monetary assistance to wife and the parties' daughter during the

time she was under 18. Husband continued to make the monthly mortgage payments and

provide wife financial support until the date of the hearing.

{¶ 58} In the trial court's judgment entry, it divided the outstanding debts between the

parties and ordered husband to be responsible for the student loan. While the entry does not

engage in further discussion regarding the student loan, the court also issued its decision

from the bench. The court stated:

Because I think that [husband] has received some benefit as a
result of not filing the divorce back when he would have and
would have (sic) potentially had to pay some additional monies
here, I'm going to make him be entirely responsible for the
student loan. The court is unable to determine from the
testimony uh exactly what you folks agreed to. Both of you seem
to be credible folks here but uh in terms of the support or
property division here the court finds it appropriate and
reasonable that uh [husband] pay the entire student loan.

{¶ 59} We begin by finding that the trial court's decision provided sufficient information

to comply with R.C. 3105.171(G). While the court did not expressly characterize the loan as

"marital" or "nonmarital," the court stated that it is "appropriate and reasonable" that the loan

be distributed to husband. The court's discussion of the reasonableness of giving the loan to

husband shows that it considered the loan to be marital, otherwise it would have not

considered equity factors for dividing the loan. Additionally, the court's statement that the

parties agreed to some portion of the loan also supports the marital finding. Therefore, there

is sufficient information to review the trial court's decision regarding the student loan debt.

{¶ 60} Next, we find that the trial court did not abuse its discretion in making husband

solely responsible for the student loan debt. The determination that the debt was a marital
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debt was supported by competent and credible evidence as husband testified that the parties

jointly entered into the debt. Additionally, while the trial court did not equally distribute the

debt, it did equitably distribute the debt. Husband's income is significantly greater than wife's

income. Further, husband was most likely able to avoid significant child support payments

because the parties delayed filing for divorce. While parents are not responsible for the

education expenses of their adult children, at least one parent voluntarily agreed to pay for

the debt. See Wiener v. Wiener, 12th Dist. Warren No. CA2012-09-085, 2013-Ohio-1849, ¶

19. Trial courts enjoy broad discretion in dividing marital property. In light of this discretion

and the particular circumstances of this case, we find the court did not abuse its discretion in

ordering husband to be responsible for the debt.

{¶ 61} Husband's fourth assignment of error is overruled.

{¶ 62} The trial court's judgment is affirmed in part and reversed in part. Husband's

first, second, and fourth assignments of error are overruled. Husband's third assignment of

error is sustained as the court erred in not considering wife's Social Security benefits due to a

lack of evidence. Therefore, this cause is reversed and remanded for further proceedings

regarding the potential set-off of wife's Social Security benefits from husband's PERS

account. On remand, the trial court must consider wife's Social Security benefits. The trial

court cannot fail to decide this issue due to a lack of evidence. However, the court may find

that wife's Social Security benefits are not relevant for purposes of dividing husband's PERS

account.

HENDRICKSON, P.J., and PIPER, J., concur.

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