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Phillips v. Phillips

Court of Appeals of Ohio, Fifth District

August 12, 2013

MICHAEL J. PHILLIPS Plaintiff-Appellant
CHRISTINE A. PHILLIPS Defendant-Appellee

Civil appeal from the Morrow County Court of Common Pleas, Domestic Relations Division, Case No. 2009-DR-0522

For Plaintiff-Appellant KEVIN COLLINS

For Defendant-Appellee ANDREA YAGODA

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.


Gwin, P.J.

(¶1} Appellant appeals the November 5, 2012 journal entry of the Morrow County Court of Common Pleas, Domestic Relations Division, overruling appellant's objections and affirming the magistrate's decision.

Facts & Procedural History

(¶2} Appellant Michael Phillips ("Husband") and appellee Christine Phillips ("Wife") were married on December 31, 1999. The couple has no children together. The parties separated on August 21, 2009. Husband filed his complaint for divorce on November 6, 2009. After Wife filed an answer and counterclaim, temporary orders were issued by the trial court on February 2, 2010. A pre-trial hearing was scheduled for March 26, 2010, but was continued at the request of Husband to May 3, 2010. After a second pre-trial on June 21, 2010, the trial court scheduled the case for trial on September 10, 2010, but this date was continued upon motion of Wife to September 24, 2010. Husband then filed a second request to continue to finalize documentation and then requested two more continuances due to medical reasons. A trial before the magistrate was held on September 30, 2011 and December 7, 2011. Husband filed objections to the magistrate's decision and the magistrate's additional findings of fact and conclusions of law. On November 5, 2012, the trial court overruled Husband's objections and adopted the decision of the magistrate.

(¶3} At the time of the first portion of the trial, Husband was 51 years old. He has a bachelor's degree in computer information systems and has served in the National Guard and Army National Guard. Husband last worked in June of 2009. Husband stopped working because he "had been going downhill." Husband was diagnosed in 2006 with a neuromuscular condition known as inclusion body myositis ("IBM"). In 2010, Husband received disability through an insurance policy at $29, 299 gross per year, social security disability benefits of $25, 788 gross per year, and a small dividend check in the amount of $191.00 per year. Of that amount, only $11, 622 was taxable. Husband has a 401(k) through his former employer Chase Bank valued at $56, 678.52 and a Chase retirement plan with a balance of $16, 435.58. The court awarded these accounts to Husband.

(¶4} At the time of the trial, Wife was 40 years old. She has a bachelor's degree in human resources and holds a practical nursing license. In 2008, Wife retired from active National Guard service after twenty-one (21) years. She is currently employed at the Adjunct General's Department for the National Guard as a civilian federal employee with a gross salary of $64, 584.00 per year. All of this income is taxable. Husband testified he feels Wife's earning potential is high, because, when Wife first started the job in 2008, Wife was excited about the prospect of getting her boss's position. Wife testified it is highly unlikely she will get her boss's job because there are no G-12 positions available for her to advance to and she is not permitted to jump from a G-11 position to a G-13 position. Husband believes there may be future raises for Wife and disputes Wife's contention that she cannot skip grades in the federal system.

(¶5} Wife has a Thrift Savings Plan ("TSP") retirement account with a balance of $108, 475. Wife testified that, at the time she entered the marriage, the account had a balance of $28, 134. Husband stipulated this portion of the account was premarital. Wife opined that her premarital portion increased to $56, 613 using the industry standard 6% yearly increase. The trial court found the marital portion of the TSP to be $80, 341.39 and awarded this account to Wife. Wife also has a Federal Employees Retirement Account ("FERS") pension. The trial court found the marital portion of the FERS account to be $50, 265.70 and ordered that amount to be divided equally between the parties. Wife has a National Guard Pension. The trial court found the marital portion to be $26, 612.44 and divided the account equally between the parties.

(¶6} The parties own the home at 1690 CR 17, Marengo, Ohio. The parties purchased the home for $289, 000 in September of 2005. The mortgage balance is $267, 000. Wife testified the house is worth $250, 000 and referenced a July 2010 appraisal valuing the property at $250, 000. Kenneth Osbun ("Osbun"), a licensed real estate appraiser, appraised the home at $195, 000 in 2010 and at $205, 000 in 2011. Osbun testified the increase in the home valuation from 2010 to 2011 was due to there being less houses on the market. Husband sought to keep the marital residence. The magistrate valued the home at $205, 000 and awarded the martial home to Husband, but did not provide Husband with an offset for any negative equity. Further, the magistrate awarded Husband $7, 885.00 of the $9, 695.00 of the household goods, furnishings, and other personal property in the marital home. The magistrate awarded Wife a list of specific items such as the dining room table and cherry bed frame. After Husband objected to the magistrate's order on the specific items, the trial court found the parties were working on settling the issue. The trial court ordered the parties to mediation and, if mediation was unsuccessful, ordered all marital property to be sold at public auction and the proceeds equally divided between the parties.

(¶7} The parties had a credit union account when they separated. The balance of the account was $26, 846.46 and included an inheritance of $19, 217.90 from Wife's grandmother. Husband testified there were marital funds of $7, 700 in the credit union account at the time of separation and that Wife left the account with $1, 000 when she left the martial home. Wife agrees she left Husband with $1, 000 in the credit union account and testified that the parties were depositing money into this account to pay off a debt incurred when she took early leave from the military, a decision made by both parties together during their marriage. The total debt was $8, 000 and, at the time of the trial, was down to $3, 600 as Wife's tax return was garnished to pay this debt. The magistrate found the funds in the account, not including Wife's inheritance funds, were for the purpose of paying off the debt to the National Guard and found the debt owed counterbalanced any marital monies in the account. The account was awarded to Wife.

(¶8} Husband testified he had a $35, 000 student loan which was deferred. Husband further testified he owed his parents $29, 500, as evidenced by three promissory notes dated July 30, 2010 ($8, 500), July 20, 2011 ($12, 000) and March 18, 2010 ($9, 000). Husband was unsure specifically which debts he paid with the loans from his parents, but stated he used the money to pay for stem cell treatments, the mortgage and "everything he was getting behind on." Husband testified he went to Mexico for stem cell treatments in August of 2010 and December of 2010.

(¶9} Husband requested spousal support because he is disabled and "going downhill fast" and because his monthly expenses are higher than his monthly income. Wife testified she did not have the ability to pay spousal support because her monthly expenses are higher than her monthly income. Wife agreed Husband is disabled, but thinks he could continue to do computer work at least part-time as he did when they were married. The trial court found that the magistrate considered all the appropriate factors in denying Husband spousal support. The trial court noted that Husband was awarded the martial home with its unique modifications to accommodate his needs, was awarded a significant portion of the tangible personal property, and failed to provide satisfactory evidence at the hearing that his earning capabilities have been completely eliminated.

(¶10} Husband appeals the November 5, 2012 judgment entry of the trial court and assigns the ...

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