Summary
In Briganti, the Supreme Court directed us to limit our review to a determination of whether, considering the totality of circumstances, the trial court abused its discretion.
Summary of this case from Levi v. LeviOpinion
No. 83-378
Decided February 22, 1984.
Domestic relations — Division of property no abuse of discretion, when.
CERTIFIED by the Court of Appeals for Mahoning County.
On September 3, 1980, appellant, Mary R. Briganti, filed a complaint for divorce against appellee, Mathew R. Briganti. The parties were married in 1959 and three children were born as issue of the marriage, two of whom were adults at the time of the divorce. Appellant had not worked outside of the home during the marriage and had no particular job skills. Prior to the marriage she had worked as a sales clerk in a women's clothing store and in a department store.
Appellee had been employed full-time for twenty-six years as a clerk for the Ohio Department of Liquor Control. He had also worked part-time for the Youngstown Automobile Club for nineteen years.
The cause was tried on January 13, 1982. Appellant was granted a divorce from appellee and awarded custody of the couple's minor child who was sixteen years old at the time. Appellee was ordered to pay child support in the amount of $125 per month. The court ordered that the parties' marital residence be sold and the proceeds be divided equally between the parties after certain debts were paid. Each party was awarded one car and the furniture in his or her possession. An income tax refund and two savings accounts were divided equally between the parties. Appellant was also awarded alimony of $150 per month for a period of six months.
It was established that appellee had an interest in two pension plans — one with the Public Employees Retirement System ("PERS") and one from the auto club. With respect to his PERS pension, appellant testified that he was eligible to retire, but had no plans to do so and that he had contributed approximately $11,000 to PERS during his employment. No evidence was presented as to the present value of the pension or the amount of benefits appellee would be entitled to. Appellee testified with respect to the auto club pension that he would be entitled to benefits of $100 per month if he continued to work for the club until he was sixty-five in 1987. No other evidence was presented concerning this pension.
Appellee also owned two life insurance policies, one on his life with a face value of $1,500 and one in an undetermined amount on appellant's life. Appellant sought to introduce evidence as to the cash surrender value of appellee's policy which was ruled inadmissible upon appellee's objection. No other evidence was introduced at trial as to the value of these policies.
The trial judge awarded both pensions to appellee and awarded to each party the insurance policy on his or her own life.
Appellant appealed to the court of appeals contesting the award of alimony and the disposition of the pensions and insurance policies. The court of appeals reversed the trial court's decision awarding appellant alimony for the limited period of six months and its holding that appellee's pension with PERS was not to be considered as a factor in the property division of the award of alimony, and remanded the cause for further proceedings.
The court of appeals refused to address appellant's arguments contesting the disposition of the auto club pension and the insurance policies, and consequently affirmed those portions of the order. The court reasoned that appellant's failure to introduce evidence as to the valuation of those assets precluded her from contesting their disposition on appeal.
The court of appeals, finding its judgment on this last issue to be in conflict with the judgment rendered by the Court of Appeals for Cuyahoga County in DiSanto v. DiSanto (July 6, 1978), No. 38294, unreported, certified the record of the case to this court for review and final determination.
Mr. Louis E. Katz, for appellant.
Mr. Don L. Hanni, for appellee.
In this appeal, appellant contests only that portion of the court of appeals' judgment affirming the disposition of the auto club pension and the insurance policy on appellee's life.
In her single proposition of law, appellant argues that it was an abuse of discretion for the trial court to award these assets to appellee without having ascertained their value. It is appellant's contention that where there is no evidence as to an asset's value, the trial court is required to either order the parties to submit further evidence or to divide the asset equally between the parties.
In response, appellee argues, as the court of appeals held, that appellant had ample opportunity to obtain evidence as to the valuation of these assets and admit same at the trial, and that her failure to do so precludes her from arguing that the trial court abused its discretion. In part, the basis for the court of appeals' decision in this regard was its concern that "* * * a trial judge must watch that he does not compromise his role as an impartial referee by too much intrusion into the presentation of the case by either one of the parties' counsel."
The propositions advanced by the parties herein in this cause disregard well-settled principles governing the review of alimony and property division awards.
Each party proposes a blanket rule applicable in all situations. Appellant argues that in any case where the value of an asset is undetermined, the court must require the parties to submit evidence or divide the asset equally. Appellee argues that in any case where evidence is not introduced, an appellate court must decline review. This court has consistently held that "* * * flat rules have no place in determining a property division." Cherry v. Cherry (1981), 66 Ohio St.2d 348, 356 [20 O.O.3d 318]. See, also, Berish v. Berish (1982), 69 Ohio St.2d 318, 320 [23 O.O.3d 296]; Koegel v. Koegel (1982), 69 Ohio St.2d 355, 357 [23 O.O.3d 320]; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218. These cases hold that "* * * [a] trial court must have discretion to do what is equitable upon the facts and circumstances of each case." Cherry, supra, at 355; Berish, supra, at 320; Koegel, supra, at 357; Blakemore, supra, at 218.
Accordingly, a reviewing court is limited to determining whether, considering the totality of circumstances, the trial court abused its discretion. Id. at 218-220. In the case at bar, appellant contests two items of the property division taken out of the context of the entire award. The appropriate consideration is whether the trial court's disposition of these items resulted in a property division, which, viewed in its entirety, was an abuse of discretion.
In his ruling from the bench, the trial judge considered the fact that the values of the policies were undetermined and for that reason, awarded each party the policy on his or her own life. He also considered the pension plans, at least as to the amount of benefits appellee would be entitled to receive. From the findings of fact, it is apparent that the trial court considered the factors enumerated in R.C. 3105.18.
In view of the fact that the items which appellant contests ( i.e., the auto club pension and the appellee's life insurance policy) are only a minor part of the total award and in view of the trial court's consideration of these matters with the limited record available, we cannot conclude that the trial court abused its discretion.
For the reason that the trial court did not abuse its discretion in awarding to appellee the insurance policy on his life and the auto club pension, we affirm the judgment of the court of appeals.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.