Beagle v. BeagleBeagle v. Beagle
Rendered on December 15, 2009
Thomas E. Friedman, for appellee/cross-appellant.
Tyack Blackmore & Liston Co., L.P.A., and Thomas M. Tyack, for appellant/cross-appellee.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
FRENCH, P.J.
{¶1} Defendant-appellant, Peter F.J. Beagle, appeals the amended judgment entry/decree of divorce issued by the Franklin County Court of Common Pleas, Division of Domestic Relations. Plaintiff-appellee, Janice R. Beagle, cross-appeals the same judgment.
{¶3} On remand, the trial court issued a pre-trial order, which indicated the scope of the remand and the evidence to be presented. Notably, the court limited the issues on remand to the following: (1) the value of Janice‘s State Teachers Retirement System (“STRS“) account; (2) the value of Peter‘s survivorship interest in Janice‘s STRS account; (3) the value of Peter‘s Public Employee Retirement System (“PERS“) account and the issue of whether it is a marital asset; (4) the value of each party‘s Social Security interest; (5) division of all marital property; and (6) the issue of whether either party should pay spousal support. The trial court ordered that all assets were to be valued as of February 1, 2007, the first day of the original trial and the termination date of the parties’ marriage. Neither party objected to, or sought reconsideration of, the pre-trial order. A remand hearing was held on February 12, 2009, during which both Janice and Peter testified and each party submitted an expert report and deposition testimony regarding the values of the parties’ retirement accounts.
I. THE TRIAL COURT ERRED IN FINDING THAT [PETER‘S PERS] PENSION HAS A VALUE OF $398,235.94 BASED ON [JANICE‘S] EXPERT TESTIMONY GIVEN THE FINDING IS CONTRARY TO THE PROVISIONS OF
O.R.C. §145.361 , ET SEQ. AND THE APPROPRIATE MORTALITY TABLE WAS NOT USED.II. THE TRIAL COURT ERRED IN ITS FINDING THAT [JANICE‘S] STRS HAS A VALUE OF $965,882.72 BASED ON [JANICE‘S] EXPERT TESTIMONY GIVEN THE FACT THAT THAT VALUE WAS BASED ON A SURVIVORSHIP BENEFIT TO [PETER] EXISTING AND THE TRIAL COURT ORDERED THAT THE SURVIVORSHIP BENEFIT BE ELIMINATED.
III. THE TRIAL COURT ERRED IN REFUSING TO ALLOW [PETER] TO PRESENT EVIDENCE AS TO INCONSISTENCIES AS TO VALUES OF MARITAL PROPERTY INCORPORATED INTO THE ORIGINAL [DIVORCE DECREE] AND THEN INCORPORATING THE INCORRECT VALUES INTO THE AMENDED [DIVORCE DECREE].
IV. THE TRIAL COURT ERRED IN REFUSING TO ALLOW [PETER] TO PRESENT EVIDENCE OF [JANICE‘S] REFUSAL TO COMPLY WITH PREVIOUS ORDERS AS TO MORTGAGE AND TAX PAYMENTS ON MARITAL REAL ESTATE AND THE AMOUNT [PETER] WAS DUE AS A RESULT OF BEING REQUIRED TO PAY THE MORTGAGE AND TAXES TO PRESERVE THE MARITAL ASSETS.
VI. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS PROPERTY DIVISION BY UTILIZING INVALID VALUATION AS TO ASSETS AND REFUSING TO CONSIDER EXPENDITURES BY [PETER] TO PRESERVE MARITAL ASSETS.
VII. THE TRIAL COURT ERRED IN REFUSING TO AWARD [PETER] SPOUSAL SUPPORT AND REQUIRING [PETER] TO CONTRIBUTE TO [JANICE‘S] ATTORNEY FEES GIVEN [PETER‘S] TOTAL DISABILITY AND THE ALLOCATION OF ASSETS.
{¶5} Janice cross-appealed, and she raises the following cross-assignments of error:
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF [JANICE] BY FAILING TO CONFINE ITSELF TO THE REMAND ORDER AND REVALUING PREVIOUSLY VALUED PROPERTY.
II. THE TRIAL COURT ERRED BY EXCEEDING THE SCOPE OF ITS OWN PRE-TRIAL ORDER AND REVALUING PROPERTY PREVIOUSLY VALUED AT THE ORIGINAL TRIAL.
III. THE TRIAL COURT ERRED IN FINDING THAT [PETER‘S] WHOLE LIFE INSURANCE POLICY WAS WORTH A NEGATIVE $21,000.00.
{¶6} All of the parties’ assignments and cross-assignments of error relate to the trial court‘s authority on remand. The doctrine of law of the case provides that the decision of a reviewing court rеmains the law of that case on the legal questions involved for all subsequent proceedings in the case, both at the trial and reviewing levels. DeAscentis v. Margello, 10th Dist. No. 08AP-522, 2008-Ohio-6821, ¶12, citing Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3. Moreover, when an appellate court remands a case for a limited purpose, the trial court must accept all issues previously adjudicated as finally settled. Cugini & Capoccia Builders, Inc. v. Ciminello‘s, Inc., 10th Dist. No. 06AP-210, 2006-Ohio-5787, ¶32, citing Blackwell v. Internatl. Union, U.A.W. (1984), 21 Ohio App.3d 110, 112. See also Flynn v. Flynn, 10th Dist. No. 03AP-612, 2004-Ohio-3881, ¶16 (“[a] remand for further proceedings should not be interpreted as a remand for further hearings where no further hearings would have been required from the point of error forward“) (еmphasis sic); Orrville Prods., Inc. v. MPI, Inc. (June 9, 1994), 8th Dist. No. 65184 (“[o]n remand, a trial court must obey the mandate of the court of appeals[,] * * * [t]he order of remand restores the trial court with jurisdiction to carry out the directive of the court of appeals“).
{¶7} In her cross-appeal, Janice argues that the trial court erred by making findings concerning Peter‘s AXA life insurance policy. Specifically, the court found that a loan of $21,000 existed against the policy and recognized the loan as marital debt. On the spreadsheet attached to the amended divorce decree, the court stated no value for the life insurance policy, but listed the loan against the policy as a $21,000 liability. On the statement attached to the original divorce decree, however, the trial court stated the value of the policy as $6,500 and listed no corresponding liability. We agree with Janice that the re-valuation of the AXA life insurance policy was beyond this court‘s mandate, and the trial court had no authority to change its original valuation. Therefore, we sustain Janice‘s first, second, and third cross-assignments of error to the extent that they challenge the trial court‘s re-valuation of the life insurance policy, and we remand this matter to the trial court to reinstate its original valuation for that policy and to make any adjustments to the property division and spousal support determinations necessitated by the reinstated value.
{¶8} We now turn to Peter‘s assignments of error, the first two of which deal with the trial court‘s valuation оf the parties’ PERS and STRS retirement accounts.
{¶9} By his first assignment of error, Peter asserts that the trial court erred by finding that his PERS account has a present value of $398,235.94, based on the deposition testimony of Janice‘s expert, Heather L. Stoll, of QDRO Consultants/Pension Evaluators (“QDRO Consultants“). Stoll testified as to reports valuing the parties’ retirement accounts prepared by another QDRO Consultants employee under Stoll‘s direction and supervision. Peter argues that the trial court‘s acceptance of the value assigned to his PERS account by Stoll and QDRO Consultants is contrary to the evidence and contrary to law.
{¶10} The evidence going to the value of Peter‘s PERS account included the deposition testimony of Stoll and of Peter‘s expert, Herbert D. Greff, along with their respective reports. Greff аssigned Peter‘s PERS account a present value of $183,367, while Stoll assigned Peter‘s PERS account a present value, as of February 1, 2007, of $398,235.94. Both experts testified as to the basis for their valuations and about alleged errors or deficiencies in the other‘s calculations. The trial court concluded that greater weight should be attributed to the value assigned by Stoll based, in part, on perceived deficiencies in Greff‘s analysis, including Greff‘s admitted failure to evaluate the parties’ retirement acсounts as of February 1, 2007, as directed in the pre-trial order.
{¶11} A trial court has broad discretion to determine the value of marital property, and its determination will not be disturbed on appeal absent an abuse of that
{¶12} “[A] trial court does not abuse its discretion in determining the value of a marital asset when it employs the values provided by the рarties.” Boyles, citing Helms v. Helms (Apr. 1, 1998), 9th Dist. No. 97CA0008. Moreover, when expert testimony is admitted as to property values, the court may believe all, part or none of the expert‘s testimony. Boyles, citing Baker v. Baker (Apr. 7, 1997), 12th Dist. No. CA96-10-216.
{¶13} Peter contends that there are “two major errors” in Stoll‘s valuation of his PERS account. First, Peter argues that Stoll erred by including the years in which Peter receives a disability allowance, up to age 65, in his service credit for purposes of calculating his age and service retirement benefit, which will begin at age 65. Peter contends that the use of those years as part of his total service credit is contrary to statutory provisions governing PERS, although he does not cite any statute excluding time on disability from service credit. The only statutory section cited by Peter,
{¶14}
{¶15} The other error that Peter alleges with respect to Stoll‘s valuation is the use of a mortality table applicable to a person on disability not receiving Social Security disability benefits. Peter contends that Stoll should have utilized a mortality table for a person on disability receiving Social Security benefits, a table that would have undisputedly lowered Peter‘s life expectancy аnd, consequently, lowered the present value of his PERS account. Although Peter presently receives Social Security disability benefits, and received those benefits as of the date of the remand hearing, the record indicates that he was not receiving Social Security disability benefits on February 1, 2007, the valuation date ordered by the trial court. Stoll expressly justified the choice of mortality table underlying the QDRO Consultants valuation because, at the relevant time, Peter was not receiving Social Security benefits. Accordingly, we discern no abuse of discretion in the court‘s acceptance of Stoll‘s valuation based on her choice of mortality table. For these reasons, we conclude that the trial court‘s valuation of Peter‘s
{¶16} By his second assignment of error, Peter similarly contends that the trial court erred by finding that Janice‘s STRS account had a present value, as of February 1, 2007, of $965,882.72, based on Stoll‘s testimony. As with Peter‘s PERS account, we review the trial court‘s valuation of Janice‘s STRS account under an abuse of discretion standard.
{¶17} The only evidence of the value of Janice‘s STRS account as of February 1, 2007 was Stoll‘s testimony and the underlying QDRO Consultants report, valuing the account, as of that date, at $965,882.72. While Greff testified that the present value of Janice‘s STRS account was $881,870, he admitted that he valued the parties’ retirement accounts using the 30-yеar bond rate as of August 2008, not the rate in effect as of February 1, 2007. According to Greff, “the 30-year bond rate was considerably different in February of 2007.” Greff Depo. 31. Although he testified that the use of the correct rate would have had only a “[m]inuscule” effect on the value, he also testified that, “[i]f I was called to the courtroom in February of ‘07, * * * the participants here would have been younger and, consequently, their life expectancy would have been different and the whole calculatiоn would have changed.” Greff Depo. 34, 31-32. The only other evidence as to the value of Janice‘s STRS account was a July 2006 report by QDRO Consultants that valued the account at $1,065,838.91. Stoll testified that the approximately $100,000 difference between the July 2006 report and the subsequent report resulted from changing interest rates, Janice‘s election of a joint-
{¶18} As with Peter‘s PERS account, the trial court was fаced with competing expert testimony and was entitled to exercise its broad discretion in weighing the credibility of the witnesses to assign a value to Janice‘s STRS account. Not surprisingly, Peter does not argue that the trial court should have accepted his expert‘s valuation of Janice‘s STRS account because that value is lower and would have been less beneficial to Peter in the division of marital assets had the trial court awarded the STRS account to Janice. Rather, Peter suggеsts that the court should have inflated Stoll‘s $965,882.72 value because at least some of the $100,000 reduction from the earlier QDRO Consultants report was the result of Janice‘s selection of a joint-and-survivorship payout. Peter contends that the trial court should have utilized a value for Janice‘s STRS account without a survivorship interest because the court ordered the joint-and-survivorship provision removed. First, the trial court‘s amended divorce decree, although it awards Janice “her STRS pension free and clear of any claim by [Peter],” does not explicitly order Janice to terminate the joint-and-survivorship element of her pension. Moreover, the court ordered that the parties’ retirement accounts be valued as of February 1, 2007, at which time the joint-and-survivorship interest was in effect, and the QDRO Consultants report valued Janice‘s STRS account accordingly, in compliance with the pre-trial order. Upon review, we discern no abuse of discretion in the trial court‘s adoption of QDRO Consultants’ valuation of Janice‘s STRS account as of February 1, 2007. Accordingly, we overrule Peter‘s second assignment of error.
{¶20} The decision to admit or exclude evidence is subject to review under an abuse of discretion standard, and, absent a clear showing that the court abused its discretion in a manner that materially prejudices a party, we will not disturb the trial court‘s ruling. Boggs v. The Scotts Co., 10th Dist. No. 04AP-425, 2005-Ohio-1264, ¶35, citing Sidenstricker v. Miller Pavement Maintenance, Inc., 158 Ohio App.3d 356, 2004-Ohio-4653, ¶23, and Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66.
{¶21} Peter argues that the trial court erred by excluding his evidence of inconsistencies because that issue was presented to this court in the prior аppeal and was within the scope of our remand to the trial court. We disagree. In his first appeal, Peter argued that the trial court erred by failing to assign values to certain marital
{¶22} Upon review, we discern no abuse of discretion in the trial court‘s decision to exclude evidence of inconsistencies that were not rаised in Peter‘s initial appeal. Indeed, as with the life insurance policy at issue in Janice‘s cross-appeal, the trial court lacked authority to change its original valuations. The doctrine of the law of the case is not limited to the explicit determinations of a reviewing court, but also extends to determinations by a trial court that could have been appealed but were abandoned by a failure to do so. Clymer v. Clymer (Sept. 26, 1995), 10th Dist. No. 95APF02-239. For example, in Moore v. Columbus (1994), 98 Ohio App.3d 701, this court held that, where the trial court made a factual finding that the appellant failed to appeal in an initial appeal, the finding became the law of the case, and the appellant was not entitled to raise it in a subsequent appeal. Here, because Peter did not raise the issue of inconsistencies in his initial appeal, he was not entitled to litigate that issue on remand. For these reasons, we overrule Peter‘s third assignment of error.
{¶24} On remand, Peter attempted to present evidence of payments he made for mortgages, taxes, and insurance on the marital real estate from 2007 through 2009, in excess of his share under the original divorce decree. The trial court sustained Janice‘s objections to that evidence, later noting, “I think all the allegations that each of you are making on who didn‘t pay what since thе [original] divorce decree are matters for contempt of court not for purposes of what the remand from the Court of Appeals instructed me to do.” (Tr. 67-68.)
{¶25} The mandate from this court did not require the trial court to take additional evidence regarding events and actions subsequent to the original divorce decree. Rather, this court remanded, primarily, for the court to determine an equitable division of marital property after valuing those marital assets that were not assigned а value in the original divorce decree. We noted that a trial court must generally determine the value of marital assets in order to equitably divide the property. Our
{¶26} As with the original divorce decree, the property division on remand was to be based on the parties’ status as of the termination of the marriage, February 1, 2007. In light of our mandate, the trial court stated that the effective date of the amended divorce decree, like the original divorce decree, was February 1, 2007. The trial court was not required to take additional evidence regarding the parties’ compliance or non-compliance with the original divorce decree to satisfy this court‘s mandate, and we discern no abuse of discretion in the trial court‘s exclusion of such evidence, especially in light of the suggestion that the parties could present that evidence in connection with a post-decree motion for contempt. For this reason, and because we have already rejected Peter‘s contentions that the trial court utilized invalid valuations for marital assets, we overrule Peter‘s fourth and fifth assignments of error.
{¶27} In his final assignment of error, Peter contends that the trial court erred by refusing to award him spousal support and by requiring him to contribute to Janice‘s attorney fees. His argument under that assignment of error, however, concerns only the
{¶28} In the original divorce decree, after expressly considering the applicable factors set forth in
{¶29} Peter argues that the trial court erred in denying spousal support in the amended divorce decree because the court‘s conclusion that the property division was nearly equal was erroneous. Peter‘s argument under this assignment of error, however, cites no legal authority and identifies nothing in the record to support his contention that the trial court‘s finding was erroneous. Presumably, Peter bases this assignment of error, and his underlying contention, on the arguments raised in the preceding assignments of error. Having overruled Peter‘s first five assignments of error, rejected the arguments asserted therein, and reviewed the trial court‘s findings with respect to the statutory factors governing spousal support, we cannot conclude, on the record before us, that the trial court erred in denying spousal support. Nevertheless, we acknowledge that any recalculation of the property division necessitated by our remand
{¶30} In conclusion, we overrule Pеter‘s first, second, third, fourth, and fifth assignments of error, conclude Peter‘s sixth assignment of error is moot, and sustain Janice‘s three cross-assignments of error to the extent stated in this decision. We therefore affirm in part and reverse in part the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations. Further, we remand this matter with instructions for the trial court to reinstate its original value of $6,500 for Peter‘s AXA life insurance policy and to undertake adjustments to its property division and determination of spousal support, if any, necessitated by that change.
Judgment affirmed in part, reversed in part, and cause remanded with instructions.
BRYANT and KLATT, JJ., concur.