Gallito v. Levinsky
2016 Ohio 889
Ohio Ct. App.2016Background
- Robyn Gallito (Wife) and Nick Levinsky (Husband) divorced in 2007; the decree awarded Wife the marital portion of Husband's OPERS retirement by a Division of Property Order (DOPO). Counsel failed to submit a compliant DOPO at that time.
- At the final hearing Husband was receiving OPERS disability benefits; he was eligible for age-and-service retirement shortly thereafter (turned 52 in March 2008).
- Wife’s proposed DOPO sought assignment from both the age-and-service component and the disability monthly benefit; Husband refused to sign, arguing disability benefits are separate property.
- In 2013 Wife moved to enforce the 2007 decree and to have the DOPO entered; Wife presented an expert (Brian Hogan) who calculated the marital portion of the age-and-service pension and testified Husband was receiving disability retirement in lieu of age-and-service retirement. Husband did not call an expert.
- The trial court (Judge Giulitto) affirmed that Wife was awarded the marital portion of Husband’s age-and-service OPERS retirement but declined to award any portion of the disability benefits; the court nevertheless failed to determine (1) whether Husband’s disability was received in lieu of age-and-service retirement and (2) the value of the marital portion of the age-and-service component.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court must (a) determine if Husband's OPERS disability was received in lieu of age-and-service retirement and (b) calculate the value of the marital portion of the age-and-service component and enter a DOPO enforcing the 2007 decree | Gallito: The 2007 decree awarded her the marital portion of Husband’s age-and-service OPERS benefit; uncontroverted expert testimony established (1) the age-and-service component exists and (2) its marital portion value, so the court should issue the DOPO and enforce arrearages | Levinsky: Disability benefits are separate property unless accepted in lieu of old-age pay; the 2007 decree awarded only "retirement" and, read with paragraph 19, did not intend to include disability benefits | Court reversed and remanded: the trial court correctly declined to award disability benefits as such, but erred by failing to (1) determine when Husband began receiving disability in lieu of age-and-service retirement, (2) determine what portion of his monthly benefit represents the age-and-service component, (3) calculate the marital portion’s value, and (4) enter and enforce a DOPO accordingly |
Key Cases Cited
- Hoyt v. Hoyt, 53 Ohio St.3d 177, 559 N.E.2d 1292 (Ohio 1990) (pensions earned during marriage are marital assets subject to division)
- Bauser v. Bauser, 118 Ohio App.3d 831, 694 N.E.2d 136 (Ohio Ct. App. 1997) (disability benefits are compensation for personal injury and separate unless accepted in lieu of old-age pay, in which case the retirement-pay value included in the disability benefit may be marital)