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Miller v. Miller

Court of Appeals of Ohio, Twelfth District, Butler

August 26, 2019

BENJAMIN H. MILLER, Appellee,
v.
NINA J. MILLER, Appellant.

          APPEAL 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

          Scott N. Blauvelt, for appellant

          OPINION

          PIPER, J.

         {¶ 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 attorney fees.

         Statement 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 that amount.

         {¶ 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.

         Standard of Review for Division of Property pursuant to Divorce

         {¶ 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).

         Retirement ...


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