Court of Appeals of Ohio, Twelfth District, Butler
BENJAMIN H. MILLER, Appellee,
NINA J. MILLER, Appellant.
FROM BUTLER COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS
DIVISION Case No. DR2017-06-0551
Schiavone Law Office, Frank J. Schiavone, IV, Herdman Law,
Joseph A. Cesta, for appellee
N. Blauvelt, for appellant
1} Appellant, Nina J. Miller ("Wife"),
appeals the divorce decree from the Butler County Court of
Common Pleas, Domestic Relation Division, contesting the
division of marital property and decision not to award
of the Case
2} Wife and Benjamin H. Miller ("Husband")
married in February 1977. Husband commenced the instant
divorce action in June 2017. The parties stipulated to the
division of most of their property and debts. However, the
parties could not agree on the division of the parties'
retirement assets, medical insurance benefits, real estate
tax liabilities, spousal support, and legal expenses.
Therefore, the trial court held a series of hearings in
February and March 2018 to resolve these issues.
3} The trial court entered its Judgment Entry and
Decree of Divorce on July 30, 2018. In the decree, the trial
court found that the parties each had separate retirement
assets. Husband received a pension and medical insurance from
his previous employment during the marriage. Wife owned or
had an interest in three retirement accounts: a retirement
account from her previous employment at Proctor & Gamble
("P&G Account"), a retirement account through
her current employer, Children's Hospital ("TIAA
Account"), and a pension account through Children's
Hospital ("Children's Pension").
4} The trial court ordered that Husband would retain
his total pension and retirement medical benefits, Wife would
retain her P&G Account and Children's Pension, and
that only Wife's TIAA Account would be divided among the
parties. Furthermore, the court found that after dividing the
real property according to the parties' stipulation, the
tax liabilities for the respective properties were nearly
equal between Husband and Wife. The difference between the
tax liabilities was $21.81 in Husband's favor. Therefore,
the court offset the stipulated "property
equalization" amount that Wife otherwise owed Husband by
5} Ultimately, the trial court ordered Wife to pay
Husband both a distributive award of $10, 343.69 and half of
the TIAA Account. In addition, the court decided that spousal
support for either party was inappropriate and each party
would pay for their own legal expenses.
6} Wife now appeals the decision of the trial court,
raising four assignments of error.
of Review for Division of Property pursuant to
7} Pursuant to R.C. 3105.171, a trial court has
authority to divide marital property as part of a divorce
action. The division of property involves a two-step process
and an appellate court will review each step under a
different standard of review. Binks v. Binks, 12th
Dist. Butler No. CA2018-02-023, 2019-Ohio-17, ¶ 8.
First, the trial court must classify the property as either
marital or separate. Ruble v. Ruble, 12th Dist.
Madison No. CA2010-09-019, 2011-Ohio-3350, ¶ 31, citing
R.C. 3105.171(B). An appellate court reviews the trial
court's classification of property under a manifest
weight of the evidence standard. McCarty v. McCarty,
12th Dist. Warren Nos. CA2016-07-055 and CA2016-07-056,
2017-Ohio-5852, ¶ 10. As such, an appellate court must
weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in
resolving conflicts in the evidence, the finder of fact
clearly lost its way and created such a manifest miscarriage
of justice that the judgment must be reversed. Binks
at ¶ 9. An appellate court presumes the trial
court's findings are correct because the trial court is
in the best position to view witness credibility. Grow v.
Grow, 12th Dist. Butler Nos. CA2010-08-209,
CA2010-08-218, and CA2010-11-301, 2012-Ohio-1680, ¶ 11.
Accordingly, an appellate court will not reverse the trial
court if there is competent, credible evidence to support the
trial court's finding. Id.
8} Second, the trial court must divide the marital
property between the parties. Oliver v. Oliver, 12th
Dist. Butler No. CA2011-01-004, 2011-Ohio-6345, ¶ 6. In
dividing the marital property, the "starting point for a
trial court's analysis is an equal division of marital
assets." Neville v. Neville, 99 Ohio St.3d 275,
2003-Ohio-3624, ¶ 5, citing R.C. 3105.171(C). If the
trial court determines that an equal division is not
equitable, then the court must instead divide the property
equitably. R.C. 3105.171(C)(1). The trial court has broad
discretion to determine what constitutes an equitable
division, therefore, an appellate court reviews the division
only for an abuse of discretion. Zollar v. Zollar,
12th Dist. Butler No. CA2008-03-065, 2009-Ohio-1008, ¶
11; accord Neville at ¶ 5. An abuse of
discretion is more than an error of law or judgement, it is
an attitude of the court that is unreasonable, arbitrary, and
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).