COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60802 MARY ANN NELSON : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION : ROBERT M. NELSON, JR. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 4, 1992 WE DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Division of Domestic Relations, Case No. D-182498 JUDGMENT: Affirmed as modified. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stanley Morganstern Gerry Davidson Morganstern & MacAdams Co., 800 Standard Building L.P.A. 1370 Ontario Street The Burgess Building, Suite 400 Cleveland, Ohio 44113 1406 West Sixth Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Mary Ann and Robert Nelson were divorced on October 1990 after twenty-five years of marriage and four children. As part of the divorce decree, the court divided the couple's property, awarded the wife sustenance alimony and child support for their one unemancipated child. In a timely appeal, the husband raises four assignments of 1 error. Upon a review of the record, we affirm the trial court's decision as modified. While the appeal was pending, the wife filed a motion to dismiss which was referred to the merits panel for disposition. We initially will address this motion. The wife argues the appeal should be dismissed because her husband failed to object to a proposed judgment entry submitted by her attorney pursuant to Dom. Rel. Loc. R. 28(B)(1). She cites Paletta v. Paletta (1990), 68 Ohio App. 3d 507 in support of her position. In that case, Shirley Paletta sued Eugene Paletta for "palimony." Following trial, the judge announced its decision for the woman and instructed her attorney to prepare a judgment entry reflecting the court's findings. As required by Dom. Rel. Loc. R. 28, the attorney drafted an entry and submitted it to Eugene 1 See Appendix. - 2 - Paletta's attorney who signed the proposed order. In dismissing an appeal from that order, we held: "Having expressly approved the judgment entry with his signature and not having otherwise filed objections to the judgment, as required by Dom. Rel. Loc. R. 28(B)(1), Eugene Paletta, through counsel, waived his claimed errors and may not now raise them for the first time on appeal." Id. at 509. (Citations omitted). Paletta is distinguishable from the case now before us. The Nelsons submitted their case to a referee who issued a report and recommendations. The husband filed objections to the referee's report challenging the proposed property division and alimony award. The court overruled the objections, approved the referee's report with one exception and instructed the wife's attorney to prepare an entry pursuant to Dom. Rel. Loc. R. 28. The attorney submitted the proposed order to the husband's counsel but he neither approved nor rejected the entry as required by the rule. The court subsequently signed the judgment entry as drafted by the wife's attorney. We disagree with the wife's argument that her husband's failure to object to the proposed order waives his right to challenge the court's decision in this case. Unlike the situation in Paletta, Mr. Nelson filed objections to the referee's report which raised the issues now advanced on appeal. The record also demonstrates the wife's proposed entry followed the referee's recommendations. Since the court overruled the husband's earlier objections to these same recommendations, the husband reasonably concluded further objections on these already contested issues - 3 - would have been futile. Better practice, however, would be to simply renew objections after a proposed entry is submitted pursuant to Dom. Rel. Loc. R. 28. Finally, we note that the husband's attorney did not sign the proposed entry as did the attorney in Paletta. In light of these facts, we find no waiver in this case. Accordingly, the motion to dismiss is denied. In his first and second assignments of error the husband asserts the court improperly granted the wife's motion for a new trial. He argues the court denied him notice and an opportunity to be heard on the motion, and disregarded the parties' stipulations in granting the new trial. The record demonstrates the court originally granted the divorce, divided the couple's property and awarded alimony in an October 1989 entry. The wife timely filed a motion for a new trial which the court granted on November 13, 1989. The parties filed additional stipulations and the case was submitted to a referee. After overruling the husband's objections to the referee's report, the court approved the recommendations and instructed the wife's attorney to submit a proposed entry. The domestic relations judge subsequently signed the proposed entry on October 4, 1990, precipitating this appeal. - 4 - It is well established that the granting of a new trial motion is a final appealable order. See Price v. McCoy Sales & Service, Inc. (1965), 2 Ohio St. 2d 131, syllabus paragraph one. Cf. Levias v. United Airlines (1985), 27 Ohio App. 3d 222, 223. The husband filed no appeal from the court's November 13, 1989 journal entry granting the wife's motion for a new trial. The notice of appeal in this case is timely filed from the court's October 4, 1990 order only. Thus, we lack jurisdiction to address the husband's challenge to the court's November 13, 1989 ruling. See App. R. 4(A). Accordingly, the first and second assignments of error are overruled. In his third assignment of error, the husband contests the division of marital property and the alimony award. The husband's fourth assignment asserts the court erred in dividing the proceeds of his retirement plan. We will address these assignments concurrently. The domestic relations court is required to divide the marital estate equitably between the parties and consider whether an award of sustenance alimony is appropriate. Holcomb v. Holcomb (1989), 44 Ohio St. 3d 128, 130; Wolfe v. Wolfe (1976), 46 Ohio St. 2d 339. The trial court has broad discretion in determining the scope of these awards. Holcomb, supra, at 131. We are mindful - 5 - that a reviewing court should not substitute its judgment for that of the trier of fact unless the trial judge's decision was "*** unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. In dividing marital property and determining the amount of any sustenance alimony, the trial court is guided by R.C. 3105.18. This statute provides for the consideration of the following factors: "(1) The relative earning abilities of the parties; "(2) The ages, and the physical and emotional conditions of the parties; "(3) The retirement benefits of the parties; "(4) The expectancies and inheritances of the parties; "(5) The duration of the marriage; "(6) The extent to which it would be inappropriate for a party, because he will be custodian of a minor child of the marriage, to seek employment outside the home; "(7) The standard of living of the parties established during the marriage; "(8) The relative extent of education of the parties; "(9) The relative assets and liabilities of the parties; "(10) The property brought to the marriage by either party; "(11) The contribution of a spouse as homemaker." As the Supreme Court noted in Holcomb, this statute is relevant to both property divisions and alimony awards since alimony in Ohio is comprised of "'*** a division of marital assets and liabilities, and periodic payment for sustenance and support.'" Holcomb, supra, at 131, fn. 1 quoting Kaechele v. Kaechele (1988), 35 Ohio St. 3d 93, 95. - 6 - At the time of the divorce, Mary Ann and Robert Nelson were forty-one and forty-five years old, respectively. Both enjoy good health and are employed. The parties stipulated to the following gross income figures: HUSBAND WIFE 1984 $36,324 $29,236 1985 38,475 17,764 1986 41,175 15,064 1987 42,805 17,808 1988 44,525 19,803 1989 45,770 22,145 The husband's total monthly expenses equalled $2,801 and the wife estimated her monthly expenses to be $1,906. The court equally divided the couple's $4,000 in IRA monies and the husband's retirement benefits which consisted of 5038.802 shares of his employer's stock valued at $231,926.97. The judge noted the wife was not vested in any retirement plan but that both parties would be entitled to social security benefits. In dividing the couple's property, the court also ordered the husband to quit claim the $75,500 marital residence to the wife and awarded the husband a $22,500 mortgage on the house, payable in three years. This interest represented one-half the value of the house less two outstanding mortgages on the property. Each party retained their autos. The wife also retained a $31,860.48 inheritance from her father, $1,938 in Hewlett- Packard Company stock and a $195 savings account. Finally, the court ordered the husband to pay $450 per month in child support for the minor child living with the wife, $200 per month in - 7 - alimony for four years and $4,800 towards the wife's attorney fees. The husband, initially, complains that the trial court failed to assess his wife's true earning ability. He seems to argue that his wife voluntarily accepted a smaller income by leaving her employment with American Present Lines, Inc. in 1985 for a job with Hewlett-Packard. As previously noted, the wife earned $29,236 in 1984 while earning only $17,764 in 1985 and $15,064 in 1986. The record demonstrates, however, that the wife's 1984 income was the result of an unusually high amount of overtime and the settlement of wage and hour litigation. The wife further stated, by affidavit, that she sought new employment because of a decision by American President Lines, Inc. to relocate outside the Cleveland area. Thus, we find the court did not underestimate the wife's earning ability. We also find no error in the court's allocation of the wife's inheritance. It is well-established that properties acquired through bequest, devise or descent are considered non- marital property. Kuehn v. Kuehn (1988), 55 Ohio App. 3d 245, 246. Thus, the court properly permitted the wife to retain this money. The husband also challenges the manner in which the court divided the retirement benefits. The court awarded the wife one- half the value ($115,963.48) of the stock shares. The husband argues the court should have awarded the wife one-half the stock shares instead of their monetary value as of the date of the - 8 - divorce because the stock values may fluctuate before distribution. In Hoyt v. Hoyt (1990), 53 Ohio St. 3d 177, the Supreme Court held: "1. When considering a fair and equitable distribution of pension or retirement benefits in a divorce, the trial court must apply its discretion based 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. "2. The trial court should attempt to preserve the pension or retirement asset in order that each party can procure the most benefit, and should attempt to disentangle the parties' economic partnership so as to create a conclusion and finality to their marriage." The record indicates the husband's ESOP benefits are subject to distribution after he reaches age 65, or at age 55 under limited circumstances, upon disability, death or termination of employment. Since the plan does not appear to provide for an immediate distribution to the wife, the parties' "economic partnership" in the retirement plan cannot be "disentangled." Hoyt, supra. We agree with the husband that a division of the shares is the most equitable mode of distributing the ESOP benefits. This would allow the parties to share equally in the benefits of stock price increases as well as the risks of declines. We hold that, to do otherwise, is unreasonable. As the husband correctly points out, if the stock decreases in value at - 9 - the time of distribution, the wife could be entitled to the majority of the retirement monies. Thus, we modify the court's award to an equal distribution of the 5038.082 shares. The husband next claims his wife is not entitled to sustenance alimony. The court awarded $450 in alimony for four years. The wife earns considerably less than her husband and, at the time of the divorce, was not vested in any retirement plan. In light of the parties' relative income and expenses, we find no abuse of discretion. Finally, the husband argues the court erred in not stating its reasons for the property division and alimony award. The court's journal entry sets forth detailed factual findings and addresses each asset held by the parties. The court specifically refers to R.C. 3105.18 in its sustenance alimony award. We find the court's order adequately supports the property division and alimony award. Accordingly, the third assignment of error is overruled in part and sustained in part. The fourth assignment of error is sustained. The judgment of the trial court is affirmed as modified. - 10 - Judgment affirmed as modified. It is ordered that appellee recover of appellant her 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 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. DAVID T. MATIA, C.J. FRANCIS F. SWEENEY, J., CONCUR. JUDGE ANN MCMANAMON 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. - 11 - APPENDIX Appellant's assignments of error are: I "The trial court erred as a matter of law in vacating its judgment entry of divorce filed on October 20, 1989, without notice and an opportunity to be heard by defendant-appellant." II "The trial court erred in vacating its judgment entry of divorce filed on October 20, 1989. In failing to abide by the parties stipulation and court order of May 31, 1989, thereby resulting in an abuse of discretion by the trial court." III "The trial court's division of marital assets and awarding of sustenance alimony to the plaintiff-appellee in its judgment entry of October 4, 1990, was against the manifest weight of the evidence and an abuse of discretion." IV "The trial court's awarding of a monetary value of the defendant-appellant's interest in his employee stock ownership plan to the plaintiff-appellee in its judgment entry of October 4, 1990, was against the manifest weight of the evidence and an abuse of discretion." .