Jennings v. JenningsJennings v. Jennings
On brief: Leo P. Ross; Percy Squire, for appellant. Argued: Percy Squire.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations
D E C I S I O N
Rendered on December 12, 2017
DORRIAN, J.
{¶ 1} Defendant-appellant, Joseph A. Jennings, III, appeals the September 23, 2016 judgment entry-decree of divorce (“decree“) of the Franklin County Court of Common Pleas, Division of Domestic Relations. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} The parties married on December 26, 1982. On November 19, 2014, plaintiff-appellee, Susan W. Jennings, filed a complaint for divorce. The parties agreed to and approved a settlement memorandum. The court signed and filed the same on June 1, 2016. The settlement memorandum resolved many of the issues related to the divorce, including issues relating to the division of property; however, the parties could not resolve the issues of spousal support, attorney fees, court costs, and expense money.
{¶ 3} A trial was held to resolve these remaining issues on May 26, June 24, August 1, and August 8, 2016. On September 23, 2016, the court filed the decree.
{¶ 4} Regarding spousal support, the court conducted an analysis pursuant to
{¶ 5} The court also found that appellant was receiving as a component of his VA benefit, “due to his having a spousal dependent,” $145 per month, but that no portion of that allowance had been shared with appellee. (Decree at 12.) The court noted appellant had been receiving the same benefit in prior years but the value was unknown as the current amount included cost-of-living allowance increases. The court determined, based on the current value, that appellant has received $1,740 per year due to having a spouse. The court found, on the issue of an expense money award, that appellant retained a total of $4,350 of this portion of his VA benefit in the 30 months since the parties separated in January 2013.
{¶ 6} Regarding appellee‘s request for attorney fees and court costs, the court made the following finding:
The Court finds that Defendant has prolonged this litigation and ultimately forced the case to trial due to his dogged refusal to have his Veteran‘s Benefits included in the consideration of spousal support despite the dictates of
R.C. § 3105.18(C)(1)(a) , and Ohio case law (See Cardone v. Cardone, 1998 WL 224934, 9th Dist. Court of Appeals, Summit County). Defendant failed to grasp the fact that all monies that are received in the home is compensation to be considered and all monies that are received during the marriage from all sources is marital. Defendant repeatedly referred to the Veteran‘s Benefits he received “that‘s my money.” His characterization of the benefits as his money and his refusal to understand that although non-taxable, the Veteran‘s benefits are to be included in the income stream forced this case to trial. The Court must consider all funds from all sources of income whether taxable income or not. (Decree at 12.)
II. Assignments of Error
{¶ 8} Appellant appealed and assigns the following two assignments of error for our review:
[I.] The trial Court erred by including Appellant‘s Veteran disability benefits in connection with its
R.C. 3105.18 award of spousal support in violation of the Federal Uniform Services Former Spouses’ Protection Act (USFSPA),10 U.S.C. § 1408 , Mansell v. Mansell, 490 U.S. 581 (1989), and38 U.S.C. § 3101(a) .[II.] The trial Court abused its discretion in awarding court costs, attorneys fees and expenses to Appellee to the extent the Court‘s decision was based on Appellant‘s insistence that his Veteran‘s benefits are not divisible property.
III. Discussion
A. First Assignment of Error
{¶ 9} In his first assignment of error, appellant argues that certain provisions of the Federal Uniform Services Former Spouses’ Protection Act,
{¶ 10}
Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.
{¶ 11}
{¶ 12} Appellant‘s argument is premised on what the federal statute excludes from the definition of “disposable retired pay.”
{¶ 13} Appellee argues that neither
{¶ 14} In Ohio,
[Appellant] shall retain all right, title and interest in the account with Edward Jones in his name, as well as any pension, disability payments, or other benefits, that are solely in his name, free and clear of all claims by [Appellee]. (Emphasis added.) (Settlement Memorandum at 3.)
{¶ 15}
{¶ 16} Although his argument is premised on the prohibition on the division of property outlined in
{¶ 17} In Ohio,
{¶ 18} In support of his argument that the trial court erred in considering his VA disability benefits in awarding spousal support, appellant points not only to the statutory
We recognize, as we recognized in Mansell, the hardship that congressional preemption can sometimes work on divorcing spouses. See 490 U.S. at 594. But we note that a family court, when it first determines the value of a family‘s assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support. See Rose v. Rose, 481 U.S. 619, 630-634;
10 U.S.C. §1408(e)(6) . Howell at 1406.
{¶ 19} Finally,
{¶ 20} The trial court did not err when it considered appellant‘s VA disability benefits as a source of income in determining a spousal support award. Accordingly, appellant‘s first assignment of error is overruled.
B. Second Assignment of Error
{¶ 21} In his second assignment of error, appellant argues the trial court abused its discretion in awarding attorney fees because he was “correct on the law [regarding his VA disability benefits] and the trial court [was] incorrect.” (Appellant‘s Brief at 12.) He asserts no other grounds for abuse of discretion.
{¶ 22} In divorce proceedings, a trial court may award “all or part of reasonable attorney‘s fees and litigation expenses to either party if the court finds the award equitable.”
{¶ 23} As we have stated in our analysis of the first assignment of error, contrary to appellant‘s argument in support of the second assignment of error, appellant was not correct on the law. Therefore, we cannot say the trial court abused its discretion in ordering appellant to pay appellee attorney fees, expenses, and costs related to trial. Accordingly, the second assignment of error is overruled.
IV. Conclusion
{¶ 24} Having overruled appellant‘s two assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
TYACK, P.J. and HORTON, J., concur.