COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60557 CYNTHIA CONFORTI : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : BRUCE CONFORTI : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. D-195677 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: NEAL P. LAVELLE 860 LEADER BUILDING EAST 6TH & SUPERIOR AVENUE CLEVELAND, OHIO 44113 For Defendant-Appellant: GARY B. GARSON CO., L.P.A. THE ILLUMINATING BUILDING 55 PUBLIC SQUARE, SUITE 1200 CLEVELAND, OHIO 44114 -2- PARRINO, J.: Plaintiff-appellee Cynthia Conforti ("appellee") and defendant-appellant Bruce C. Conforti ("appellant") were married on June 14, 1982 in Lyndhurst, Ohio. One child was born as issue of said marriage, Jenna, d.o.b. May 17, 1986. On July 17, 1989, appellee filed a complaint for divorce and on August 18, 1989, appellant filed and answer and counterclaim. This matter came on for hearing on August 14, 1990. Present at the hearing were appellee, her attorney, and an attorney for appellant, Anthony Soughan. Neither appellant nor his attorney of record were present. Appellant was incarcerated at the Lima Correctional Institution while his attorney of record was out of town. At the hearing, the Anthony Soughan indicated that he was from the same office as appellant's attorney of record, but he had not been requested nor expected to try the instant matter. Thus, Anthony Soughan orally requested a continuance and also requested that appellant be brought from the Lima Correctional Institution. The trial court denied said requests because no motions had been filed and Anthony Soughan did not know when appellant would be released from prison. The trial court proceeded with the proceedings by hearing the testimonies of appellee and her father, Joseph Amato. At trial, there was evidence presented that appellant had a problem with alcohol and drugs and that he vacated the marital home in October, 1989. Since his incarceration, he had not been providing any meaningful support for the family, including child -3- support and contributions toward the mortgage and medical insurance. The trial court was presented with a Settlement Memorandum that had been prepared by appellant's attorney of record. Pursuant to the memorandum both attorneys for the parties were in agreement on most issues except the disposition of the proceeds of the sale of the marital home. On August 15, 1990, the trial court issued its divorce judgment granting appellee a divorce from appellant. Appellee was granted custody and control of the minor child, and appellant was ordered to pay child support in the sum of $70.00 per week, once he was released from the Lima Correctional Institution. Appellee was awarded the marital home located at 638 Cherry Park Oval in Aurora, Ohio, and she assumed the obligations on the mortgage and liens on the real property. The trial court then divided the household goods and furnishings between the parties and also awarded each party with one of the two family automobiles. By virtue of the award to appellee of the real property, the trial court cancelled the temporary support arrearages incurred by appellant, which exceeded $7,000.00. Appellant was awarded all of the right, title and interest in his art business of International Art Co. and his paintings, except for two paintings he gave to appellee prior to his incarceration. The trial court awarded appellee all of her right, title and interest in her profit sharing plan and benefits under her job. -4- On August 22, 1990, appellant filed a motion for new trial arguing that the parties had agreed to continue the August 14, 1990 trial, due to his incarceration and the unavailability of his attorney of record. On September 12, 1990, the trial court denied appellant's motion for new trial. Appellant filed a timely notice of appeal and subsequently 1 raised the following assignments of error: I. THE TRIAL COURT FAILED TO PLACE VALUES ON THE MARITAL ASSETS. II. THE TRIAL COURT ABUSED ITS DISCRETION BY DISREGARDING VALUES PLACED ON THE MARITAL ASSETS BY THE PARTIES. III. THE PROPERTY DIVISION IS GROSSLY INEQUITABLE. IV. THE TRIAL COURT ERRED BY FAILING TO CONSIDER DEFENDANT-APPELLANT'S REQUEST TO BE PRESENT AT HIS HEARING. Appellant's first, second and third assignments of error will be discussed together since they all pertain to the division of the marital assets. When dividing marital assets in a divorce proceeding, a trial court has broad discretion in fashioning an equitable division, but that discretion is not without limits. Worthington v. Worthington (1986), 21 Ohio St. 3d 73. In allocating property, the trial court must indicate the basis for its award in order to enable the reviewing court to determine that the 1 On October 23, 1990, this court, sua sponte, dismissed appellant's appeal for failure to file a timely appeal. However, upon appellant's motion for reconsideration, the trial court vacated the dismissal on November 1, 1990. -5- award is fair, equitable and in accordance with the law. Kaechele v. Kaechele (1988), 35 Ohio St. 3d 93. When considering a fair and equitable distribution of pension or retirement benefits in a divorce, a trial court must apply its discretion upon the circumstances of the case, the status of the parties, the nature, terms and conditions of the pension or retirement plan, and the reasonableness of the result. Hoyt v. Hoyt (1990), 53 Ohio St. 3d 177, paragraph one of the syllabus. With respect to pension and retirement benefits in a divorce action, the court in Willis v. Willis (1984), 19 Ohio App. 3d 45, held that: The trial court has broad discretion to develop some measure of value. However, the court is not privileged to omit valuation altogether. The court itself should instruct the parties to submit evidence on the particular matter. Willis, supra, at 48. In Mochko v. Mochko (1990), 63 Ohio App. 3d 671, paragraph seven of the syllabus, this court stated that when a trial court is making an equitable division of property and awarding sustenance alimony, it must place a value on a party's pension benefits based upon probable eligible dates of commencement for such benefits. In the instant case, the trial court awarded appellee her right, title and interest in her profit-sharing plan and benefits without placing a value on said assets. Further, appellant was awarded his right, title and interest in the International Art Co., but the trial court never placed a value -6- on it. Apparently, the trial court accepted "Settlement Memorandum" in which both parties agreed to this division. We find that although the parties allegedly agreed to this particular division of assets, the trial court never placed a present-day value on appellee's profit sharing plan and benefits or appellant's art business. We conclude that it is impossible to review the propriety of the trial court's division of marital property based on the lack of any evidence establishing such present-day values. Cf. Willis, supra. Furthermore, with regard to the marital real property, the "Settlement Memorandum" indicated that the parties stipulated that its value was $110,000.00. However, the indebtedness on said property amounted to anywhere from $72,329 to as high as $74,557. Thus, based upon these figures, the agreed upon equity in the marital residence could range from $35,443.00 to $37,671.00. Clearly, the trial court did not arrive at a set value on the equity in the marital residence. Furthermore, given these figures, it would appear that as a starting point in determining the division of marital assets, the trial court could have awarded appellant $17,721.50 to $18,825.50 from the marital equity in the house. See Cherry v. Cherry (1981), 66 Ohio St. 3d 348, paragraph one of the syllabus. However, in return for the award to appellee of the marital residence, the trial court cancelled appellant's temporary support arrearages, which -7- exceeded $7,000.00. Based upon the trial court's award, one could conclude that it did not amount to an equitable division of the marital residence. A review of the record in this case clearly demonstrates that the trial court failed to establish a present-day value of appellee's profit sharing plan and benefits or the International Art Co. Further, the trial court was unable to calculate the precise value of the equity in the marital residence. Moreover, given the values concerning the equity in the marital residence, one could conclude that the trial court did not divide it equitably between the parties. In fact, the second reflects that the parties did not agree on the disposition of the proceeds of the sale of the marital home. For the foregoing reasons, we find that the trial court abused its discretion in its division of marital assets. Appellant's first, second and third assignments of error are well taken and are sustained. In his fourth assignment of error, appellant contends that the trial court erred in denying his oral motion to permit him to be present at the hearing. Appellant claims that by not permitting him to be present, he was prejudiced by the trial court proceeding with the hearing. In civil actions, an individual imprisoned in a penal institution has no constitutional right to be personally present at any stage of the judicial proceedings. Mancino v. Lakewood (1987), 30 Ohio App. 3d 219, paragraph one of the syllabus. The -8- decision of whether a prisoner should be permitted to be brought to trial in order to argue his case personally is committed to the sound discretion of the trial court. Id. at paragraph two of the syllabus. In the instant case, although appellant had been incarcerated since March 9, 1990 and was aware that the hearing was set forth for August 14, 1990, he neither filed a motion for a continuance nor filed a request that he be permitted to attend the hearing. Instead, through counsel, appellant submitted to the trial court a "Settlement Memorandum" prepared by his attorney of record. After reviewing the "Settlement Memorandum," the trial court was able to acknowledge that the parties were in agreement on the majority of issues, except the disposition of proceeds from the sale of the marital residence. We cannot conclude that the trial court abused its discretion in denying the oral request made by appellant's counsel to have appellant present at the hearing. Appellant made no timely motion that he be permitted to attend. Appellant's fourth assignment of error is without merit and is overruled. Trial court judgment is reversed and this case is remanded for further proceedings consistent with this opinion. -9- This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court 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. Exceptions. DYKE, P.J., AND JAMES D. SWEENEY, J., CONCUR. THOMAS J. PARRINO, JUDGE* (*Thomas J. Parrino, Retired Judge of the Eighth Appellate District, Sitting by Assignment) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .