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Mosier v. Mosier

Court of Appeals of Ohio, Fifth District

July 11, 2013

DONNA E. MOSIER Plaintiff-Appellee
v.
MICHAEL L. MOSIER Defendant-Appellant

Appeal from the Richland County Court of Common Pleas, Domestic Relations Division Case No. 01-D-624

For Plaintiff-Appellee THOMAS L. COLE Weldon, Huston, & Keyser, L.L.P.

For Defendant-Appellant HOWARD C. WHITCOMB, III.

William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

HOFFMAN, P.J.

{¶1} Defendant-appellant Michael L. Mosier appeals the September 10, 2012 Judgment Entry entered by the Richland County Court of Common Pleas, Domestic Relations Division, which overruled his objections to the magistrate's June 20, 2012 decision, and approved and adopted the decision with the exception of the social security offset as the order of the court. Plaintiff-appellee is Donna E. Mosier, nka Eaton.

STATEMENT OF THE CASE AND FACTS

{¶2} The parties were divorced via Judgment Entry/Decree of Divorce filed March 6, 2003. As part of the divorce, the trial court awarded Appellee:

Fifty percent (50%) of the coverture portion of [Appellant's] Air Force and Ohio National Guard Retirement Benefits vested as of December 31, 2002. The appropriate Social Security offset to be calculated by Pension Evaluators and the Qualified Domestic Relations Order to effect said award to be prepared by Pension Evaluators with the cost to be equally divided between [Appellee and Appellant]. The Qualified Order to contain the appropriate survivorship benefits as to that portion awarded to the alternate Payee.

{¶3} A Military Qualifying Court Order ("MQCO") signed by the parties, their counsel and the presiding judge was filed on April 17, 2006. The MQCO indicated Appellant was receiving a military retirement benefit from the United States Air Force and Appellee had an interest therein. Appellee was entitled to receive $924.71/month as her portion of the retirement benefits.

{¶4} Appellant began receiving disability benefits on November 1, 2007. As a result, Appellee's portion of the retirement benefits was reduced to $740.29/month. Appellee filed a motion in contempt based upon Appellant's failure to comply with the MQCO on November 27, 2007. Specifically, Appellee asserted Appellant should be held in contempt for failing to directly pay her $184.42/month to neutralize the effect of Appellant's receipt of disability benefits. Following a hearing, the magistrate found Appellant in contempt. The magistrate imposed a jail sentence of ten-days but provided Appellant with the opportunity to purge the contempt by satisfying three conditions. Appellant filed objections to the magistrate's decision, which the trial court overruled. The trial court approved and adopted the magistrate's decision as order of the court.

{¶5} On July 10, 2008, Appellee filed a motion asking the trial court to impose the contempt order. Following a hearing, the magistrate found Appellant had not demonstrated any defense for his failure to satisfy the second and third purge conditions. The magistrate imposed the ten-day jail sentence upon Appellant. Appellant filed objections to the magistrate's decision, which the trial court overruled. Appellant filed an appeal to this Court, which affirmed the trial court's decision. Mosier v. Mosier, 5th Dist. No. 2008 CA 0103, 2009 -Ohio- 1195.

{¶6} On January 9, 2012, Appellant filed a motion for relief from judgment pursuant to Civ. R. 60(B)(4) and (5). The parties stipulated the motion would be submitted on the briefs and no further evidence would be heard. Via Decision filed June 20, 2012, the magistrate denied Appellant's motion for relief from judgment. Appellant filed objections. The trial court overruled Appellant's objections and adopted the magistrate's decision with one exception:

The Court does not adopt the Magistrate's finding that the military order failed to include an appropriate social security offset as required by the Decree. There was insufficient, if any, evidence submitted by [Appellant] to demonstrate that Pension Evaluators did not calculate the appropriate Social Security [sic] offset. There was also insufficient, if any, evidence submitted to demonstrate that the ...

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