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Hannah v. Hannah8/11/2000
Rendered on the 11th day of August, 2000.
Hebern D. Hannah appeals from a judgment and decree of divorce terminating his marriage to Royetta F. Hannah. Hebern and Royetta were married in 1967. Three children were born of the marriage. All three were emancipated when the parties were divorced.
Hebern and Royetta accumulated a marital estate that the trial court valued at approximately $200,000 when it entered its decree. The issues presented on appeal involve property division and spousal support.
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN MAKING A NEARLY EQUAL DISTRIBUTION OF THE ASSETS TO THE PARTIES WITHOUT REGARD TO THE CURRENT AND FUTURE EARNING ABILITY TO THEM.
Hebern was 52 years of age when the decree of divorce was entered. He had retired from Navistar International, Inc., several years before after completing more than thirty years service. His work during that time was physically demanding. There is evidence that he was evaluated for purposes of Workers Compensation as 12% disabled.
Hebern's retirement income from Navistar is $2,050 per month. He currently also works part-time and earns approximately $7,000 annually.
Royetta is employed full-time. She earns approximately $25,000 per year. Her job has no retirement benefits.
Hebern's service at Navistar during which his retirement benefit accrued and vested coincided with the years of his marriage to Royetta. The trial court therefore divided Hebern's annual income of $24,600 equally between the parties, $12,300 to be paid to each.
Hebern argues that the trial court abused its discretion in dividing his retirement benefit equally. He points out that the share of the benefit each party receives will, along with the wages each earns, yield an annual income of $37,300 for Royetta and only $19,300 for him. Hebern objects to the court's reasoning for rejecting an unequal division in his favor, which was that he is capable of currently earning more. His disability, along with his many years of hard, physical labor make that finding inequitable, according to Hebern.
Retirement benefits that one party accumulated during the marriage are marital property which a domestic relations court must divide equitably between the parties when a decree of divorce is entered terminating their marriage. R.C. 3105.171(A)(3)(a)(i), (B). That division must be equal, unless the court determines that an equal division would be inequitable. R.C. 3105.171(C)(1). Any determination the court makes in that regard will not be reversed absent an abuse of discretion. "The term 'abuse of discretion' connotes more than an error of law or judgment, it implies that the court's attitude is unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
Hebern argues that, instead of an equal division of his retirement pension, the trial court should have awarded him the entire amount, or awarded him more than 50%, or deferred division until Royetta's retirement from work. The court abused its discretion in not doing those things, Hebern argues, because his many years of hard labor should entitle him to a rest from work, to which the trial court gave too little credit when it concluded that he is capable of earning more than he currently does.
In rejecting Hebern's alternative of an unequal division, the court stated:
"The Court does find that the Plaintiff herein has failed to provide the Court with ample credible evidence to substantiate that he is unable to obtain employment which would earn him more than the $7,000.00 per year which he is currently earning at hi
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