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Hoffman v. Tustin

Court of Appeals of Ohio, Ninth District, Summit

June 26, 2019

JULIA HOFFMAN Appellee
v.
MICHAEL TUSTIN Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2011-07-2007

          RHYS B. CARTWRIGHT-JONES, Attorney at Law, for Appellant.

          MELISSA GRAHAM-HURD and ERIN N. DAZEY, Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO JUDGE.

         {¶1} Michael K. Tustin appeals the qualified domestic relations orders issued by the trial court on September 1, 2017, and the entry of the Summit County Court of Common Pleas, Domestic Relations Division, denying his motion for relief from judgment. We affirm.

         I.

         {¶2} In 2011, Julia Tustin, nka Julia Hoffman, filed a complaint for divorce from Michael Tustin. After a 2013 trial, a decree of divorce was entered, followed by an appeal to this Court. We affirmed in part and reversed in part, remanding the case to the trial court to determine the duration of the marriage and to revisit its determination regarding the equitable division of marital property. After again proceeding to trial, the trial court issued a decree of divorce on April 8, 2016.

         {¶3} The decree of divorce, in providing for the division of marital property, ordered that the parties' defined contribution retirement plans were to be divided equally, with Ms. Hoffman to transfer to Mr. Tustin the amount of $103, 436.62 in order to equalize the value of the accounts. The decree also provided that the parties were to each retain a motor vehicle, with Ms. Hoffman owing Mr. Tustin $2, 040.00 to equalize the values. The trial court further found that Mr. Tustin owed Ms. Hoffman $7, 101.42 for healthcare expenses, attorney fees, taxes, and insurance, and in offsetting that amount against the $2, 040.00 owed to Mr. Tustin, granted judgment against Mr. Tustin in the amount of $5, 661.25, plus statutory interest. The decree further provided that Ms. Hoffman's pension plan was to be divided equally by a qualified domestic relations order ("QDRO").

         {¶4} Initially the parties submitted QDROs based upon the de facto marriage termination date of December 31, 2011, but were informed by QDRO Consultants that FirstEnergy Corp. was unable to calculate gains or losses on any participant accounts for periods prior to January 1, 2014. An amended savings plan QDRO replacing the date of December 31, 2011 with January 1, 2014, was submitted to the trial court on August 28, 2017, without the approval of Mr. Tustin, and the trial court filed the QDROs for both the savings plan and the pension plan on September 1, 2017.

         {¶5} Mr. Tustin appealed the two QDROs to this Court. We stayed the matter upon the motion of the parties and remanded the case for proceedings related to a motion for relief from judgment filed by Mr. Tustin. On June 13, 2018, the trial court denied Mr. Tustin's motion for relief from judgment. Mr. Tustin subsequently filed a second appeal, this one with regard to the trial court's entry denying his motion for relief from judgment.

         {¶6} At the outset we note that Mr. Tustin submitted the same brief with the same assignment or error for both appeals, making the two appeals duplicative. We therefore sua sponte consolidate the appeals.

         II.

ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DENIED [MR. TUSTIN'S CIV.R. 60(B)] ...

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