CourtListener opinion 3183182

Evidence quotes

Clean opinion text

[Cite as Gallito v. Levinsky, 2016-Ohio-889.]

 STATE OF OHIO, MAHONING COUNTY
 IN THE COURT OF APPEALS
 SEVENTH DISTRICT
ROBYN R. GALLITO )
 )
 PLAINTIFF-APPELLANT )
 ) CASE NO. 13 MA 143
VS. )
 ) OPINION
NICK C. LEVINSKY )
 )
 DEFENDANT-APPELLEE )

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
 Pleas, Domestic Relations Division,
 Mahoning County, Ohio
 Case No. 2006 DR 736

JUDGMENT: Reversed and remanded.

APPEARANCES:
For Plaintiff-Appellant Attorney William Biviano
 108 Main Avenue, SW, Suite 700
 Warren, Ohio 44481-1010

For Defendant-Appellee Attorney Matthew Giannini
 1040 South Commons Place, Suite 200
 Youngstown, Ohio 44514

JUDGES:

Hon. Mary DeGenaro
Hon. Cynthia Rice
 Judge of the Eleventh District
 Court of Appeals,
 Sitting by assignment.
Hon. Timothy Cannon
 Judge of the Eleventh District
 Court of Appeals,
 Sitting by assignment.

 Dated: March 4, 2016
 [Cite as Gallito v. Levinsky, 2016-Ohio-889.]
DeGENARO, J.

 {¶1} Plaintiff-Appellant Robyn Gallito appeals the judgment of the Mahoning
County Court of Common Pleas Domestic Relations Division denying her request to
issue her proposed Division of Property Order, and limiting such order to the marital
portion of Defendant-Appellee Nick Levinsky's OPERS age and service retirement
benefits The trial court failed to address the issue of whether or not Husband was
receiving a disability retirement in lieu of age and service retirement, and failing to
determine the value of the marital portion of Husband's age and service benefits.
Accordingly, the judgment of the trial court is reversed and the case is remanded for
further proceedings.
 {¶2} In 2006, Wife filed a complaint for divorce without children from
Husband, which was heard on June 28, 2007 by Visiting Judge Hayes. On the date
of the final hearing, Husband was receiving disability benefits as he had left his
employment with the police department. Due to the parties' delay and the failure by
counsel for Wife to submit a compliant Division of Property Order (DOPO) relative to
husband's retirement benefits, the final decree of divorce was not filed until
November 19, 2007. The trial court found in pertinent part:

 6. The marital portion of Husband's OPERS retirement shall be
 awarded to Wife by DOPO (Husband may have the option to obtain a
 current value and pay a lump sum to Wife).
 ***
 19. Mortgage payments to be paid by Husband during the pendency of
 this action as Temporary Orders *** plus utilities *** for a total arrearage
 of $4,017. Husband shall be responsible for one half or $2,008. These
 monies shall be considered to be support of the Wife (spousal support)
 during the pendenecy [sic] of this action and Husband shall pay said
 arrearage at the rate of $500 a month until paid. Said funds may be
 taken from Husband's disability account by DOPO. Husband shall
 have the option of paying the arrearage in a lump sum.
 Counsel for Wife shall prepare any documents necessary to
 -2-

 comply with this Order. (emphasis added)

 {¶3} Neither party appealed the original decree.
 {¶4} Wife's counsel prepared and submitted a DOPO to Husband's attorney,
and Wife contends Husband repeatedly refused to sign it. The DOPO submitted by
wife sought payments to her as the Alternate Payee from Husband's plan from two
distinct benefits: the age and service retirement benefit, and the disability monthly
benefit. This was the basis for Husband's refusal to sign. Husband took the position
that his disability benefits were separate property, and that Wife was only entitled to
the marital portion of his age and service benefits, which he was not receiving yet.
 {¶5} Almost five years after the divorce decree was filed Wife filed a motion
to enforce, seeking the court to compel husband to execute the DOPO described
above, which was attached to the motion. Husband filed a motion to dismiss arguing
the proposed DOPO contained language that would wrongly attach his disability
income, contending disability income is not a marital asset subject to division.
 {¶6} On January 29, 2013 a non-sequential two-day hearing on all pending
post-decree motions began before a new visiting jurist, Judge Giulitto. Although Wife
presented an expert witness, husband did not call his own expert. During the first
day of the hearing the trial court learned that Husband had refused to authorize
OPERS to release information to enable an evaluation of his retirement benefits in
order to prepare a DOPO. The trial court ordered Husband to execute an
authorization for Wife's expert so he could obtain the necessary information; thus the
hearing was continued.
 {¶7} During the two day hearing, Brian Hogan of QDRO Consultants testified
on behalf of Wife regarding Husband's OPERS benefits, the method of determining
the age and service portion, and the protocol for dividing benefits. Hogan's testimony
was mostly consistent over the two days. However, his testimony differed slightly
with respect to the exact number of Husband's years of service and the number of
years that was the marital portion of the age and service pension.
 {¶8} Before he received the information from PERS, Hogan testified that,
 -3-

based upon information he had received from Wife's counsel, Husband had 29.666
years of service and the marital portion was 6.666 years. After he received the
information from PERS, Hogan stated Husband accumulated 29.749 years of
service, of which 6.612 years was the marital portion. Thus, the marital portion
translated to 22.4702% of the total years of service. He then opined as to the present
value of Husband's age and service pension and calculated the marital portion to be
$267,386.70.
 {¶9} Hogan consistently testified that based upon the date Husband began
his employment with the police department he was covered by a disability plan which
provided that if an individual left employment on a disability, they had the option to
continue to receive a disability pension even after they reached the qualifying age to
receive an age and service pension. Subsequent to Husband's hire date, employees
who originally took a disability pension would have to switch over to an age and
service pension once they reached the qualifying age. This difference matters as
Hogan testified the disability pension typically paid more per month than the age and
service pension, as the former was considered to be income replacement. Husband
was 51 years old at the time he started receiving a monthly disability benefit.
 {¶10} Applying these principles to Husband, Hogan further testified that
Husband was 51 years old when he began receiving disability benefits, which he
could continue to collect for the rest of his life; he did not have to convert to an age
and service pension. However, were he to do so, Husband was eligible when he
turned 52 because he had over 25 years of service.
 {¶11} Husband turned 52 in March, 2008, approximately four months after the
divorce decree was issued.
 {¶12} Hogan also opined that Husband was receiving a disability pension in
lieu of an age and service pension. He also testified that in calculating the present
value of the marital portion of Husband's age and service pension, he did not factor in
or offset any social security benefits Wife may be eligible for in her own right; and
indicated that he had not been asked to do so.
 -4-

 {¶13} Counsel for Husband did not challenge Hogan's testimony beyond
clarifying that there is a distinction between a disability pension and an age and
service pension. Notably, he did not challenge Hogan's opinion that Husband was
receiving a disability pension in lieu of an age and service pension.
 {¶14} On August 16, 2013, the trial court affirmed the award to Wife of the
marital portion of husband's OPERS benefits; specifically his age and service
retirement benefits. However, Judge Giulitto declined to award any portion of
husband's disability benefits to her. After making exhaustive findings from his review
of the transcript of the final divorce decree, Judge Giulitto first noted:

 With full knowledge that [Husband] was receiving disability benefits and
 also had OPERS retirement, Judge Hayes stated on Page 6 of his
 Decree (\the marital portion of Husband's OPERS retirement shall be