{¶ 2} The parties, Gary and Marcella Robbins, were married *2 in 1970. They have no minor children. In 2006, Marcella1 learned that Gary was having an affair with another woman. Gary moved out of the marital residence at Marcella's request. Marcella filed for divorce several months later.
{¶ 3} The trial court granted a decree of divorce to both parties оn grounds of incompatibility. The court divided their marital property and distributed their separate properties to each of them. The court awarded Marcella her entire pension benefit, which was earned during the years of the marriage, and the marital residence as well. Gary was ordered to pay Marcella spousal support at the rate of one hundred dollars per month for a term of twelve years.
{¶ 4} Gary filed a timely notice of appeal
FIRST ASSIGNMENT OF ERROR
{¶ 5} "IT IS RESPECTFULLY SUBMITTED THAT THE TRIAL COURT COMMITTED ERROR AND ABUSED HIS DISCRETION IN THE REFUSAL TO AWARD THE DEFENDANT A PART OF THE PLAINTIFF'S PENSION."
{¶ 6} The jurisdiction of the court of common pleas and its divisions is determined by statute. Article
{¶ 7} Marcella retired from public employment in 2005, after thirty years of service, which coincided with the years of her marriage to Gary. Marcella draws a pension from the Ohio Public Employees' Retirement System ("PERS") in the amount of $1,583 per month. Evidence was offered showing that, when she retired, Marcella made a lump sum withdrawal of $52,000 from her PERS account, without Gary's knowledge. Marcella spent those funds to pay for her adult daughter's bariatric surgery and for a diamond and a car for herself.
{¶ 8} Gary is not retired, and continues to work as a *4 self-employed contractor. He maintains no retirement account of his own. And, because Gary has not filed a federal income tax return for twenty-one years preceding the divorce, it is unlikely that he will be entitled to a Social Security retirement benefit of any significant amount.
{¶ 9} Marcella's retirement benefit is marital property. R.C.
{¶ 10} The domestic relations court awarded Marcella all of hеr PERS benefit, denying Gary any right to share in it. The court based its division on the following finding:
{¶ 11} "Ms. Robbins . . . retired from public service after *5 30 years of employment on June 30, 2005 which was approximately one month prior to the time that she found out about Mr. Robbins' extramarital affair with (M.D.). The credible evidence in this case suggests that Mr.(sic) Robbins would not have retired had she known about Mr. Robbins' extramarital affair, in that she assumed that the parties would be continuing to live together and share income. Unfortunately for Ms. Robbins, she is in a position where she is now finding it necessary to obtain another job even after she has retired in order to supplement her income and to pay her bills." (Decree, p. 12).
{¶ 12} R.C.
{¶ 13} The finding on which the court based its unequal division of Marcella's retirement benefit does not comport with any of the particular circumstаnces set out in R.C.
{¶ 14} A divorcе action presents three discrete issues for the domestic relations court to determine. The first is grounds for the requested divorce, which are set out in R.C.
{¶ 15} "Adultery" is grounds for divorce. R.C.
{¶ 16} R.C.
{¶ 17} "In making an equitable distribution of marital property in a divorce proceeding, a trial court may consider the parties' future Social Security benefits in relation to аll marital assets." Neville v.Neville,
{¶ 18} In Neville, the Supreme Court approved a greater award of other marital property to one spouse who had no expectation of a Social Security benefit as an offset against a Social Security benefit the other spouse was entitled to receive. We subsequently applied that principle with respect to division of a spouse's public employee's retirement benefit, approving an offset of the value of the other *8
spouse's expected Social Security benefit before equally dividing the remaining net public pension benefit between the parties in a divorce actiоn. Walker v. Walker, Greene App. No. 06CA23,
{¶ 19} Gary's failure to file a federal income tax return or pay any federal tax on the income he earned for the twenty-one years preceding the divorce is financial misconduct for purposes of R.C.
{¶ 20} Gary's misconduct in having an extramarital affair was surely voluntary, but it was not financial misconduct. Rather, accepting the trial court's finding, Gary's misconduct created a financial hardship for Marcella because she would *9
have continued working had she been aware of it. Instead, Marcella retired, resulting in a diminished income for her, not only because the income she realizes from her PERS benefit is less than she was earning, but also because Gary will no longer contribute to Marcella's needs as he did during their marriage. However, the smaller income she realizes from her retirement account is, in part, a result of Marcella's having withdrawn funds from the account from which the amount of her benefit is determined, which she did without Gary's knowledge. Whether that amounts to a dissipation of assets for purposеs of R.C.
{¶ 21} The finding on which the court predicated its unequal division of Marcella's pension benefit more directly and specifically relates to an award of spousal support ordered pursuant to R.C.
{¶ 22} R.C.
{¶ 23} R.C.
{¶ 24} The domestic relations court erred when, absent a finding of financial misconduct on Gary's part, the court denied him the equal share of Marcella's PERS benefit to which he is еntitled, in order to satisfy Marcella's need for maintenance and support, which the court is instead authorized to satisfy through a spousal support order. The first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
{¶ 25} "IT IS RESPECTFULLY SUBMITTED THAT THE TRIAL COURT COMMITTED ERROR AND ABUSED HIS DISCRETION IN AWARDING THE PLAINTIFF THE ENTIRE INTEREST IN THE PARTIES' REAL ESTATE."
{¶ 26} The parties owned a marital residence, which is unencumbered by any mortgage obligation. The court awarded the marital residencе, which it valued at $75,000, to Marcella.
{¶ 27} Marcella filed her own, individual income tax returns during the years the parties were married. The court *12 found that Gary, on the other hand, failed to file a tax return for the past twenty-one years on the income he made, and as a result will owe substantial taxes and penalties after the IRS is madе aware of Gary's failures, which the court stated it would do.
{¶ 28} Because Gary will face a substantial obligation to the IRS, his equity in the marital residence is in jeopardy of tax liens that could consume the entire value of Gary's interest in the property. For that reason, and perhaps because an IRS execution on those liens would likewise jeopardize Marcella's right to remain in the residence as a one-half owner, the court awarded the residence to Marcella, extinguishing any interest Gary has in the residence.
{¶ 29} Intertwined with this and other orders the court made is its finding that Gary is not credible, particularly with respect to his income. As a self-employed contractor, he had the ability to conceal much of his income, and apparently did. Indeed, the court was unable to make a finding concerning what Gary's income is or was, because Gary failed or refused to provide that evidence.
{¶ 30} Gary's failure to file income tax returns is financial misconduct thаt impairs Marcella's right to use, enjoy, and/or dispose of her own interest in the marital *13
property. The court is authorized by R.C.
{¶ 31} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 32} "IT IS RESPECTFULLY SUBMITTED THAT THE TRIAL COURT COMMITTED ERROR AND ABUSED HIS DISCRETION IN AWARDING THE PLAINTIFF ALL OF THE PERSONAL PROPERTY OF THE PARTIES EXCEPT FOR HIS CLOTHING, PERSONAL EFFECTS AND MOTOR VEHICLE."
{¶ 33} The decree provides that the parties are awarded the personal property in the possession of each, except that, in addition, Gary is "awarded his clothing and personal effects still at the marital residence, providing that he picks them up within thirty days of the date of the filing of this dеcree. In the event he fails to do so, (Marcella) shall be entitled to dispose of the same as she desires." (Decree, p. 4).
{¶ 34} Gary argues that the court abused its discretion by failing to award him tools that he uses in his business that were at the marital residence, and therefore in Marcella's *14 possession. To the extent those tools are among Gary's "personal effects," and we believe they are, Gary's tools were awarded to him. No abuse of discretion is demonstrated.
{¶ 35} The third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 36} "IT IS RESPECTFULLY SUBMITTED THAT THE TRIAL (SIC) COMMITTED ERROR AND ABUSED HIS DISCRETION IN REQUIRING THAT THE DEFENDANT PAY SPOUSAL SUPPORT."
{¶ 37} The trial court reviewed the evidence relevant to the factors the court is required by R.C.
{¶ 38} The court also expressed its frustration with Gary's lack of forthrightness, stating:
{¶ 39} "Mr. Robbins . . . is 58 years of age and is working *15 on a full time basis, however, the Court is only left to speculate as to how much money he actually makes. Not оnly was Mr. Robbins evasive with respect to his income, he actually provided no credible testimony whatsoever to establish what his current living expenses are nor what his anticipated living expenses will be in the future. Apparently, he would prefer that the Court not know `his business' and therefore this Court will presume that he has more than adequate income to pay his living expenses as well as a reasonable sum of spousal support if this Court deems the same appropriate." (Decree, pp. 13-14).
{¶ 40} A spousal support order must balance an obligee's need for support against the obligor's ability to pay. Gary's failure to offer evidencе of his actual income permitted the court to fashion an order on the basis of its findings concerning Marcella's need for support. The one hundred dollars per month the court ordered appears to apply to the need to cover unanticipated expenses that the court found Marcella's income was insufficient to cover. No abuse of discretion is demonstrated.
{¶ 41} The fourth assignment of error is overruled. Nevertheless, because of our ruling on the first assignment of error, we necessarily vacate the spousal support award to *16 permit the court to recalculate the parties' need and ability to pay based on the share of Marcella's PERS benefit to which the court finds Gary is entitled. The case is remanded to the domestic relations court for further proceedings, consistent with this opinion.
{¶ 42} Finally, Gary filed a reply brief in which he asks us to strike Marcella's pro se brief on appeal because it is out of form and contains references to evidence not of record. The motion will be Denied.
WOLFF, P.J. And DONOVAN, J., concur.