Grae v. GraeGrae v. Grae
Civil Appeal from the Court of Common Pleas, Domestic Relations Division, 07 DI 000004.
Judgment: Affirmed.
Debra P. Simon, 425 Western Reserve Building, 1468 West Ninth Street, Cleveland, OH 44113 (For Plaintiff-Appellant).
Nicholas A. D’Angelo, Morganstern, MacAdams & DeVito Co., L.P.A., 623 West St. Clair Avenue, Cleveland, OH 44113-1204 (For Defendant-Appellee).
COLLEEN MARY O’TOOLE, J.
{¶1} John G. Grae appeals from the December 31, 2009 judgment entry of the Lake County Court of Common Pleas, Domestic Relations Division, granting a divorce between him and Barbara R. Grae. We affirm.
{¶2} The Graes were married September 26, 1981. There is issue of the marriage: two daughters, Kristen and Lindsey. At the time this action commenced, both were emancipated and in college, though both remained dependent on their parents for support.
{¶4} Mrs. Grae was primarily a homemaker during the marriage. She did some outside work, apparently in retail sales. As of 2008, she was employed at Saks Fifth Avenue in Beachwood, Ohio, earning about $20,800 per year.
{¶5} This action commenced as a dissolution January 3, 2007, and was thereafter converted to a divorce. Trial was held on four separate days in the spring and summer of 2008 before the trial court’s magistrate. January 30, 2009, she filed her decision. Relevant to this appeal are her conclusions regarding the parties Vanguard Individual Retirement Account, and spousal support.
{¶6} The Vanguard account had a stipulated value of $251,153 and was the parties’ largest retirement asset. During the proceedings, Mr. Grae cashed it out, paying taxes and penalties, and allegedly used the proceeds – slightly in excess of $130,000 – for trips and gambling. For purposes of determining the parties’ marital property interests in their retirement accounts, the magistrate used the stipulated value
{¶7} Regarding spousal support, the magistrate decided Mr. Grae owed Mrs. Grae $2,000 per month from May 1, 2007, through December 31, 2007, plus the processing charge. The magistrate further ordered him to pay $1,200 per month, plus processing charge, from January 1, 2008, through August 15, 2008 – the date of the marriage’s termination. Finally, she ordered him to pay $1,200 per month, plus processing, commencing August 16, 2008, for a period of one hundred twenty months. The magistrate determined the court should retain jurisdiction over the amount of spousal support.
{¶8} Mr. Grae filed timely objections to the magistrate’s decision. He challenged the amount of spousal support, based on the fact that his private monthly benefit had been reduced from over $5,000 per month to $2,944.99. He did not challenge the magistrate’s conclusion that the value of the Vanguard I.R.A. should be deemed its full value, before his cashing out, and payment of taxes and penalties, upon it.
{¶9} October 27, 2009, the trial court overruled Mr. Grae’s objections, and adopted the magistrate’s decision. The trial court thereafter filed its final judgment entry of divorce. Mr. Grae timely noticed this appeal, assigning two errors. The first is:
{¶10} “The trial court erred to the prejudice of Plaintiff Appellant and abused its discretion when it assessed the face value of his Vanguard IRA account rather than its net value as his distributive share in its distribution of marital assets. ***”
{¶11}
{¶13} “‘In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself. (***)’ Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, ***, at the syllabus. (Citations omitted.)” The Huntington Natl. Bank v. Lomaz, 11th Dist. Nos. 2008-P-0007 and 2008-P-0061, 2010-Ohio-705, at ¶42. (Parallel citations omitted.)
{¶14} We do not find plain error in the trial court’s use of the Vanguard account’s stipulated face value of $251,153 in making its distribution of the parties’ marital assets. Indeed, Mr. Grae does not argue civil plain error. Rather, he asserts an exception to the waiver save for plain error doctrine mandated by
{¶16} The first assignment of error lacks merit.
{¶17} Mr. Grae’s second assignment of error is as follows:
{¶18} “The trial court erred and abused its discretion when it refused to hear additional evidence that Appellant’s monthly income had decreased from $5062.09 to $2944.99. The evidence was proffered subsequent to Magistrate’s Decision 9/10/08 and prior to the trial court’s judgment entered into on 5/11/09. *** The trial court erred further when it found the evidence could have been obtained in time to present it to the Magistrate. ***”
{¶19} “A trial court’s judgment regarding whether to adopt, reject, or modify a magistrate’s decision is reviewed for abuse of discretion, In re Gochneaur, 11th Dist. No. 2007-A-0089, 2008-Ohio-3987, at ¶16; as are its judgments concerning support, whether child or spousal. Haribhakti v. Haribhakti, 11th Dist. No. 2006-P-0067, 2007-Ohio-207, at ¶7. *** Regarding this standard, we recall the term ‘abuse of discretion’ is one of art, essentially connoting judgment exercised by a court which neither comports with reason, nor the record. State v. Ferranto (1925), 112 Ohio St. 667, 676-678, ***.” Winkelman v. Winkelman, 11th Dist. No. 2008-G-2834, 2008-Ohio-6557, at ¶8. (Parallel citations omitted.)
{¶21} Regarding this assignment of error, we note two points. First, the magistrate’s decision was filed January 30, 2009, not September 10, 2008. Attached to Mr. Grae’s objections to the magistrate’s decision is a letter from his insurer, Reliance Standard Life Insurance Company, dated October 6, 2008, informing him that his monthly benefit would be reduced by $2,117.10, the amount of his anticipated Social Security disability benefit, to which he became entitled in November 2008. Consequently, Mr. Grae had ample time to submit this evidence of the alleged reduction in his income to the magistrate, prior to her decision.
{¶22} Second, the reduction in his private disability benefit was premised on his Social Security disability benefit becoming available. Mr. Grae presented no evidence to the trial court that he had been prevented from applying for his Social Security disability, or that the Social Security Administration had rejected his application. Consequently, there was no evidence before the trial court that his monthly income had decreased in such a fashion as to make a monthly payment of $1,200 to Mrs. Grae in spousal support inequitable.
{¶23} The second assignment of error lacks merit.
{¶24} The judgment of the Lake County Court of Common Pleas, Domestic Relations Division, is affirmed.
{¶26} The court finds there were reasonable grounds for this appeal.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.