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Noble v. Noble

Court of Appeals of Ohio, Ninth District, Lorain

December 30, 2019

WESLEY NOBLE Appellant
v.
NAOMI NOBLE Appellee

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 17DU083033

          WAYNE R. NICOL, Attorney at Law, for Appellant.

          JOHN ZALIC, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL, JUDGE.

         {¶1} Wesley Noble appeals a judgment entry of divorce of the Lorain County Court of Common Pleas, Domestic Relations Division. For the following reasons, this Court affirms in part and reverses in part.

         I.

         {¶2} The Nobles divorced after 40 years of marriage. During the marriage, they adopted one of their grandchildren, who was still a minor at the time of the divorce. They owned one property in Ohio and one in Alabama. Wife had not worked in many years because of medical conditions. Husband had worked at a steel plant since before the marriage but had retired in recent years. At the time of the divorce, Wife was living in the marital home in Ohio and Husband was living in a dwelling that was on land that his family owned in Alabama.

         {¶3} The trial court generally ordered an equal division of the parties' assets. It found, however, that Husband was unable to completely explain how he had spent over $225, 000 from his investment account. It also noted that Husband failed to produce any information about one of his bank accounts. It, therefore, did not require Wife to pay Husband for his one-half interest in the marital home. For spousal support, instead of requiring Husband to make payments to Wife, it awarded her one-half of Husband's pre-marital pension benefits. It also ordered Husband to pay all of Wife's attorney fees. Husband has appealed, assigning three errors.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE DIVISION OF THE HUSBAND'S SOCIAL SECURITY BENEFITS.

         {¶4} Husband argues that the trial court incorrectly ordered him to prepare a qualified domestic relations order (QDRO) "that awards one-half of the entire portion of his social security benefits to [Wife] * * * offset by [Wife's] social security benefits." The United States Code provides that Social Security benefits "shall not * * * be subject to execution, levy, attachment, garnishment, or other legal process * * *." 42 U.S.C. 407(a). In light of that language, the Ohio Supreme Court has recognized that "Social Security benefits * * * are not subject to division in a divorce proceeding." Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, ¶ 8. Instead, they may only "be considered by the trial court under the catchall category as a relevant and equitable factor in making an equitable distribution." Id. at ¶ 11; see R.C. 3105.171(F)(10).

         {¶5} Upon review of the record, we conclude that the trial court improperly ordered Husband to prepare a QDRO that would award part of his Social Security benefits to Wife. ...


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