CourtListener opinion 9366373

Evidence quotes

Clean opinion text

[Cite as Karabogias v. Zoltanski, 2023-Ohio-227.]

 [Please see vacated opinion at 2022-Ohio-3548.]

 COURT OF APPEALS OF OHIO

 EIGHTH APPELLATE DISTRICT
 COUNTY OF CUYAHOGA

CONSTANTINE KARABOGIAS, :

 Plaintiff-Appellee, :
 No. 111062
 v. :

JOAN ZOLTANSKI, :

 Defendant-Appellant. :

 JOURNAL ENTRY AND OPINION

 JUDGMENT: AFFIRMED
 RELEASED AND JOURNALIZED: January 26, 2023

 Civil Appeal from the Cuyahoga County Court of Common Pleas
 Domestic Relations Division
 Case No. DR-16-364810

 Appearances:

 John D. Zoller and B. Nicole Bush, for appellee.

 Stafford Law Co., LPA, Joseph G. Stafford, and Nicole A.
 Cruz, for appellant.
 ON RECONSIDERATION1

MICHELLE J. SHEEHAN, P.J.:

 Plaintiff-appellee Constantine Karabogias ("husband") and

 defendant-appellant Joan Zoltanski ("wife") were married in 2000. In 2016,

 husband filed a complaint for divorce. Wife is an executive at University

 Hospitals, and there are significant assets in her retirement accounts, including a

 401(K) account, a 403(b) account, a 457(f) Supplemental Executive Retirement

 Plan ("SERP") account, and her pension with University Hospitals. This appeal

 concerns her pension only. The trial court awarded husband 50% of wife's vested

 accrued benefit as of July 23, 2019, although it found the marriage to have

 terminated on January 8, 2018, the first day of the divorce trial. The trial court

 subsequently issued a Qualified Domestic Relations Order ("QDRO") regarding

 the pension. Wife now appeals from that order and argues the trial court abused

 its discretion in improperly modifying the judgment entry of divorce by using a

 date for the pension that varies from the date of the termination of the marriage.

 Our review of pertinent case law authority indicates that it is within

 the trial court's discretion to select a date for distribution purposes regarding each

 marital asset in order to achieve an equitable division of marital property. We

 also find no merit to wife's claim that the QDRO adopted by the trial court

1 The original decision in this appeal, Karabogias v. Zoltanski, 8th Dist. Cuyahoga No.
111062, 2022-Ohio-3548, released on October 6, 2022, is hereby vacated. This opinion,
issued upon reconsideration, is the court's journalized decision in this appeal. See App.R.
22(C); see also S.Ct.Prac.R. 7.01.
 improperly modified the terms of the judgment entry of divorce. Accordingly, we

 affirm the QDRO issued by the trial court.

Background

 The trial for the divorce complaint commenced on January 8, 2018.

 It was eventually concluded on May 22, 2019. On October 31, 2019, the trial court

 issued a judgment entry of divorce, which provided a very lengthy analysis and

 reasoning for its division of marital property, award of child support, and a

 decision not to award spousal support to husband.

 The trial court found the duration of the marriage to be from August

 5, 2000 (the day the parties were married), to January 8, 2018, which is the date

 the divorce trial commenced and is the presumptive date of the termination of the

 marriage. Notably, immediately after determining the duration of the marriage,

 the court stated that each item of marital property "will not be valued as of

 January 8, 2018." The court observed that neither party provided balances as of

 January 8, 2018, knowing that it would be the presumed date for the end of the

 financial marriage and that evidence submitted by the parties did not coincide

 with January 8, 2018. The trial court specifically noted that it "has discretion to

 determine the date of valuation which date may vary from asset to asset," citing

 Berish v. Berish, 69 Ohio St.2d 318, 432 N.E.2d 183 (1982), and that, under the

 facts of this case, it would be equitable to exercise flexibility as to the valuation

 dates, citing Bartley v. Bartley, 3d Dist. Seneca No. 13-92-7, 1992 Ohio App.

 LEXIS 6570 (Dec. 29, 1992). The court found the exercise of flexibility especially
 pertinent for wife's retirement assets where the values of the assets had been

provided by wife.

 The judgment entry of divorce includes a chart of wife's retirement

accounts with a valuation date of July 23, 2019. It lists her (1) University

Hospitals 401(K) account (valued at $18,642.49 as of July 23, 2019), (2)

University Hospitals 403(b) account, valued at $541,374.89 as of July 23, 2019,

(3) "457(f) SERP" account (valued at $119,357.10 as of July 23, 2019), and (4)

University Hospitals Retirement Plan ("pension") (valued at $37,012.88 as of July

23, 2019). The court noted it was using wife's own documentation to determine

the value of the accounts, explaining that during the trial in May 2018, it had

asked wife to provide the valuation of the accounts through 2017, yet she only

submitted documents regarding the accounts from 2019. The judgment entry of

divorce awarded husband "one half" of her pension "as the equalizing sum for the

[parties'] assets" and ordered husband to prepare the QDRO.

 After the trial court issued the divorce decree on October 31, 2019,

husband's counsel filed a motion to adopt a QDRO regarding wife's pension,

which assigned to husband 50% of wife's "vested accrued benefit" as of October

31, 2019. Wife filed an opposition, arguing that the date should be January 8,

2018, and that the proposed QDRO improperly modified the judgment entry of

divorce. The trial court adopted the QDRO proposed by husband. Wife then

appealed from the trial court's order in 8th Dist. Cuyahoga No. 110353. During

the pendency of the appeal, husband's counsel submitted to wife a revised QDRO
 using a "vested accrued benefit" date of July 23, 2019, which is the date the trial

court used in valuating wife's retirement assets in the divorce decree based on the

valuation information she provided. Husband then moved this court for a limited

remand to the trial court for the purpose of allowing the trial court to issue a

corrected QDRO using July 23, 2019, as the vested accrued benefit date for the

pension. This court granted the limited remand requested. Wife then filed an

opposition with the trial court to the revised QDRO, arguing the employment of

the date of July 23, 2019, in the QDRO was inconsistent with the terms of the

divorce decree.

 Upon remand, on October 29, 2021, the trial court vacated the prior

QDRO utilizing the date of October 31, 2019, and adopted the amended QDRO,

which utilized the date of July 23, 2019, for husband's vested accrued benefit

portion of the pension. The trial court explained that although it had found the

duration of the marriage to be from August 5, 2000, to January 8, 2018, its

judgment entry of divorce clearly stated that these dates would not be used for

valuing the marital property, because the court was not provided with valuation

information as of January 8, 2018. The court quoted its own statement in the

judgment entry of divorce that the evidence of valuation did not coincide with

January 8, 2018, and it would be equitable for the court to exercise flexibility as

to the valuation dates.

 The trial court noted further that wife did not provide valuation of

her pension other than a statement dated July 23, 2019, which was the only
 evidence the court could rely on. The court stressed that the employment of the

 date of July 23, 2019, for wife's pension "is correct as to what was used to reach a

 fair and equitable distribution of the assets of this marriage" and that it "went

 through all of the parties' marital assets and found that the division of property

 that it ordered constituted an equal division of the property." The court expressly

 found that "it is appropriate and consistent with the terms of the Judgment Entry

 of Decree that [husband] is awarded 50% of [wife's] vested accrued benefit as of

 July 23, 2019."

 Wife now appeals from the trial court's October 29, 2021 judgment

 adopting the revised QDRO, raising the following assignment of error:

 I. The trial court erred as a matter of law and abused its discretion by issuing
 a QDRO which is inconsistent with the terms and conditions of the October
 31, 2019 entry of divorce.

 Wife claims that the trial court abused its discretion in awarding

 husband 50% of wife's vested accrued benefit as of July 23, 2019, which she claims

 constituted a modification of the judgment entry of divorce. The question on

 appeal is whether the trial court abused its discretion in awarding husband wife's

 vested accrued benefit in the pension as of July 23, 2019, a date different from the

 termination date of the marriage, to achieve equalization of the marital property.

Law

 Upon granting a divorce, the trial court is required to divide and

 distribute the marital assets in an equitable manner. R.C. 3105.171(B). Regarding
 the date to be used for valuating the marital assets, R.C. 3105.171(A)(2) provides

 the following:

 (2) "During the marriage" means whichever of the following is applicable:

 (a) Except as provided in division (A)(2)(b) of this section, the period of time
 from the date of the marriage through the date of the final hearing in an
 action for divorce or in an action for legal separation;

 (b) If the court determines that the use of either or both of the dates specified
 in division (A)(2)(a) of this section would be inequitable, the court may select
 dates that it considers equitable in determining marital property. If the
 court selects dates that it considers equitable in determining marital
 property, "during the marriage" means the period of time between those
 dates selected and specified by the court.

(Emphasis added.)

 The phrase "during the marriage" is statutorily presumed to run

 from the date of the marriage through the date of the final hearing.

 R.C. 3105.171(A)(2)(a). The final hearing date is the presumptive termination

 date of the marriage. Bowen v. Bowen, 132 Ohio App.3d 616, 630, 725 N.E.2d

 1165 (9th Dist.1999). More specifically, the presumptive date for the termination

 of a marriage is the first day of trial pursuant to R.C. 3105.171(A)(2). Carreker v.

 Carreker, 8th Dist. Cuyahoga No. 93313, 2010-Ohio-3411, ¶ 19.

 However, as this court has recognized, "‘[i]n order to achieve an

 equitable distribution of property, the trial court must be allowed to use

 alternative valuation dates where reasonable under the particular facts and

 circumstances of the case.'" Abernethy v. Abernethy, 8th Dist. Cuyahoga No.

 80406, 2002-Ohio- 4193, ¶ 19, quoting Glick v. Glick, 133 Ohio App.3d 821, 828,

 729 N.E.2d 1244 (8th Dist.1999). See also Keating v. Keating, 8th Dist. Cuyahoga
 No. 90611, 2008-Ohio-5345, ¶ 23; Weller v. Weller, 11th Dist. Geauga Nos. 2006-

G-2723 and 2006-G-2724, 2007-Ohio-4964, ¶ 29 (while generally the trial court

should consistently apply the same set of dates when valuing marital property,

circumstances of some cases may require the use of different dates for valuation

purposes).

 Furthermore, "[t]he choice of a date as of which assets available for

equitable distribution should be identified and valued must be dictated largely by

pragmatic considerations." Berish, 69 Ohio St.2d at 319, 432 N.E.2d 183. "The

trial court has discretion to determine the date of valuation, and this date may

vary from asset to asset." Wei v. Jie Shen, 12th Dist. Butler No. CA2002-12-300,

2003-Ohio-6253, ¶ 21, citing Berish. The trial court, however, "must adequately

explain its reasons for choosing a different valuation date for certain marital

assets." Coble v. Gilanyi, 11th Dist. Trumbull No. 97-T-0196, 1999 Ohio App.

LEXIS 6267, 9 (Dec. 23, 1999).

 "‘"The determination as to when to apply a valuation date other than

the actual date of divorce is within the discretion of the trial court and cannot be

disturbed on appeal absent a demonstration of an abuse of discretion."'"

Abernethy at ¶ 19, quoting Glick at 828, quoting Gullia v. Gullia, 93 Ohio App.3d

653, 666, 639 N.E.2d 822 (8th Dist.1994) See also Hissa v. Hissa, 8th Dist.

Cuyahoga Nos. 93575 and 93606, 2010-Ohio-3087, ¶ 17 (as long as the trial court

adequately explains its reasoning for choosing the date it does for valuing

property, a reviewing court will give deference to its decision); Pearlstein v.
 Pearlstein, 11th Dist. Geauga No. 2008-G-2837, 2009-Ohio-2191, ¶ 87-88 (the

 trial court may use a different valuation date for certain marital assets provided it

 adequately explains the reasons); Kramer v. Kramer, 8th Dist. Cuyahoga No.

 74166, 1999 Ohio App. LEXIS 3491, 7 (July 29, 1999) (the trial court did not abuse

 its discretion when it explained the deviation in valuation dates, which were

 selected to promote equity and were logically related to the facts of the case).

 While the trial court should consistently apply the same set of dates when

 evaluating all marital property, the trial court has the discretion to use different

 valuation dates where the valuation at a certain date was the only evidence before

 the trial court. Homme v. Homme, 12th Dist. Butler No. CA2010-04-093, 2010-

 Ohio-6080, ¶ 62.

Analysis

 Here, the judgment entry of divorce includes a chart of the values of

 wife's retirement accounts as of July 23, 2019, based on the documents provided

 by wife. When addressing the termination date of the marriage, the court found

 the marriage to terminate on January 8, 2018, the first date of the final hearing,

 but specifically stated that "each item of marital property will not be valued as of

 January 8, 2018," because wife had not provided valuation of her retirement

 assets as of the trial date, even though the court had requested it. The court also

 stated that it could consider the lack of temporary support to husband in

 calculating the valuation date. In addition, the court made ten findings in the

 judgment entry of divorce to support its division of all marital assets. Regarding
 the couple's retirement benefits, the trial court found that "[husband] has

depleted all of his retirement assets, while [wife] has most of hers intact with the

exception of a loan for the children's private school tuition." Regarding wife's

pension, the court relied on the only valuation in evidence; after a lengthy

analysis, the trial court awarded husband "one half" of wife's pension (valued at

$37,012.88 as of July 23, 2019, based on documentation submitted by wife)

without expressly stating the award was one half of wife's pension as of July 23,

2019. Subsequently, on October 29, 2021, the trial court issued a judgment entry

stating that the date of July 23, 2019, was correctly used to reach a fair and

equitable distribution of the marital assets.

 "It is well settled that a trial court has the discretion to interpret or

to clarify its own orders and that such an interpretation will not be reversed absent

an abuse of discretion." Bohannon v. Cincinnati, 1st Dist. Hamilton No. C-

020629, 2003-Ohio-2334, ¶ 9. See also Tekamp v. Tekamp, 12th Dist. Warren

No. CA2018-08-092, 2019-Ohio-2382, ¶ 26 (trial courts have the right to

interpret and explain their own entries), and Reising v. Reising, 2d Dist. Clark

No. 2010 CA 92, 2012-Ohio-1097, ¶ 14-16 and ¶ 27 (while a QDRO could not

modify a divorce decree, it could clarify the divorce decree; the QDRO at issue was

proper because it constituted a clarification and not a modification). Here, in the

October 29, 2021 judgment entry adopting the amended QDRO, the trial court

clarified and confirmed that the divorce decree used an alternative date — July

23, 2019 — for the division of wife's pension because it could only rely on the
 valuation evidence before it.2 The trial court also affirmed that the utilization of

 the alternative date would achieve an equitable division.

 For her claim that the trial court modified the judgment entry of

 divorce, wife focuses on the trial court's use of the words "marital portion" when

 it stated in the judgment that husband was awarded the "marital portion" of wife's

 retirement assets: $210,433.24 of the University Hospitals 403(b) and "one half"

 of University Hospitals Pension. She argues that by using the term "marital

 portion," the court awarded husband only the benefits earned before January 8,

 2019, the date of the termination of the marriage. The choice of the term "marital

 portion" in the court's statement does not have the significance claimed by wife.

 She cites R.C. 3105.171 in support of her claim, but that statute only defines

 "marital property," which is all property currently owned by either or both

 spouses, including the retirement benefits, that was acquired by either or both

 spouses during the marriage. R.C. 3105.171(A)(3)(a)(i). In Hoyt v. Hoyt, 53 Ohio

 St.3d 177, 182, 559 N.E.2d 1292 (1990), the court explained that "in determining

2At oral argument in the instant case, wife argued that documentation regarding the
valuation of the pension was not necessary because the pension is a "defined benefits
plan." However, the issue of whether valuation evidence was necessary for the
distribution of the pension was neither raised at the trial court nor argued in wife's brief
on appeal. It is well established that "‘[a]n issue raised during oral argument for the first
time and not assigned as error in an appellate brief is waived.'" D.H. v. J.C., 8th Dist.
Cuyahoga No. 108553, 2020-Ohio-112, ¶ 25, quoting Andreyko v. Cincinnati, 153 Ohio
App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 20 (1st Dist.), citing Watkins v. Ohio
Dept. of Human Servs., 10th Dist. Franklin No. 00AP-224, 2000 Ohio App. LEXIS 5018
(Oct. 31, 2000). Because the issue has not been properly raised for our review, we decline
to consider wife's argument that valuation evidence was not necessary for the trial court's
distribution of the pension.
 the proportionality of the pension or retirement benefits, the non-employed

 spouse, in most instances, is only entitled to share in the actual marital asset."

 Moreover, [t]he value of this asset would be determined by computing the ratio of

 the number of years of employment of the employed spouse during the marriage

 to the total years of his or her employment." (Emphasis sic.) Id. Regarding what

 "during the marriage" means, R.C. 3105.171(A)(2)(b) specifically permits the trial

 court to "select dates that it considers equitable in determining marital property."

 As the court in Hoyt emphasized, when considering pension or retirement

 benefits, a trial court must be given discretion and flat rules have no place in

 determining a property division. Id. at 180. Wife's claim in reliance of the

 purported significance of the trial court's use of the term "marital portion" is not

 well taken.3

 The courts have long recognized that the trial court has broad

 discretion in determining the date of valuation to arrive at an equitable division

 of marital assets. The record here reflects that the trial court adequately explained

 its reasons for utilizing an alternative valuation date to achieve equity.

 Accordingly, we find no abuse of discretion. The sole assignment of error is

 without merit. The trial court's judgment is affirmed.

3While we recognize that the trial court employed a date for husband's entitlement to
wife's pension beyond the termination date of the marriage, we note R.C. 3105.171(A)(2)
allows an alternative date and does not expressly prohibit the use of such a date to achieve
an equitable distribution. See, e.g., Metz v. Metz, 1st Dist. Hamilton No. C-050463, 2007-
Ohio-549, ¶ 19 (the trial court is within its discretion to include income earned beyond
the termination date of the marriage for an equitable distribution of marital property).
 Judgment affirmed.

 It is ordered that appellee recover of appellant costs herein taxed.

 The court finds there were reasonable grounds for this appeal.

 It is ordered that a special mandate issue out of this court directing the

common pleas court, domestic relations division, to carry this judgment into

execution.

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE

LISA B. FORBES, J., and
MICHAEL JOHN RYAN, J., CONCUR