COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67926 : ANN KILCOYNE : : JOURNAL ENTRY Plaintiff-Appellee : Cross-Appellant : : and -vs- : : : OPINION : JAMES F. KILCOYNE : : Defendant-Appellant : Cross-Appellee : : DATE OF ANNOUNCEMENT FEBRUARY 29, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Div. Common Pleas Court Case No. D-214524 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: ANN KILCOYNE, Pro Se JAMES F. KILCOYNE, Pro Se 1728 Halls Carriage Path 127000 Lake Avenue Westlake, Ohio 44145 Lakewood, Ohio 44107 -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant, cross-appellee, James F. Kilcoyne, appeals and plaintiff-appellee, cross-appellant, Ann Kilcoyne, cross-appeals from a final divorce decree. James Kilcoyne assigns the following errors for our review: I. THE COURT COMMITTED ERROR IN THE DIVISION OF THE MARITAL PROPERTY. II. THE COURT COMMITTED PREJUDICIAL ERROR WHEN IT CONSIDERED THE APPELLANT'S DEFERRED COMPENSATION ACCOUNT AS AN ASSET WHEN AT THE TIME THE DECISION WAS ISSUED AND THE DECREE FILED THE ACCOUNT WAS IN PAY STATUS. III. THE COURT CONSIDERED THE INCOME FROM THE NON- MARITAL PROPERTY AS A SOURCE FOR SPOUSAL SUPPORT CONTRARY TO LAW. IV. THE COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION IN ORDERING SPOUSAL SUPPORT OF $2,800 PER MONTH PLUS POUNDAGE OF 2%. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PUT A WAGE ORDER ON DEFERRED COMPENSATION AFTER THE DEFENDANT FILED HIS NOTICE OF APPEAL. Ann Kilcoyne assigns the following error for our review: I. THE COURT COMMITTED ERROR IN THE DIVISION OF MARITAL PROPERTY. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Ann and James Kilcoyne were married on July 8, 1961. They separated on August 14, 1986, but had an on-going relationship through 1991. James Kilcoyne voluntarily supported Ann Kilcoyne by giving her $2,100 per month through 1991 and providing her with -4- funds for repairs and improvements to the marital home. He also maintained her as a beneficiary on his insurance, pension, and deferred compensation plans, and the parties also filed joint tax returns through 1991. Ann Kilcoyne assisted James Kilcoyne with his political campaigns and activities through his 1988 re-election. She assisted him in his recovery from his personal injury accident in 1987 and appeared every day in court during his criminal trial in September 1991. The parties discontinued cooperating with each other on November 13, 1991, when Ann Kilcoyne filed her complaint for divorce. This case proceeded to trial and the parties presented evidence of the following marital assets and liabilities. The marital assets included the marital home valued at $182,500 with a mortgage balance of $60,000, household goods valued at $9,866, James Kilcoyne's four life insurance policies with a total cash value of $9,000, a casualty insurance check for $1,642 which was cashed by James Kilcoyne, bank accounts with $5105.32 in cash in them, two vacant lots in Arizona, two cemetery lots, $154.478.22 of James Kilcoyne's deferred compensation account, $744 in income tax refunds, and $700 from the proceeds of the sale of the parties' 1975 Oldsmobile. The marital debts included two VISA accounts, real estate insurance on the marital property, real estate taxes on the marital home in the amount of $2,322, and federal and state income tax in the amount of $976.19. -5- After the trial, the trial court issued a written decision and a separate judgment entry with findings of fact. Because of the on-going relationship of the parties after their separation, the trial court held the duration of the marriage extended through the time Ann Kilcoyne filed her complaint on November 13, 1991. In the division of marital property, Ann Kilcoyne was awarded the marital home, the household goods except the pool table, a $16,000 pre-tax interest in James Kilcoyne's deferred compensation account, the bank accounts in her name totalling $150, the $700 from the sale of the 1975 Oldsmobile, the tax refund, and the two cemetery lots. Of the marital debts, she was ordered to pay the mortgage on the marital home and the two VISA accounts. James Kilcoyne was awarded the balance of his deferred compensation account, the bank accounts in his name totalling approximately $4,954, the casualty insurance check proceeds, his life insurance policies, and the two Arizona lots. Of the marital debts, he was ordered to pay the taxes through 1991, and the insurance premiums. The parties were also awarded their separate property and ordered to pay their separate debts. They also stipulated each of them would name the other as beneficiary to receive a 50% life interest in the other's retirement annuity under Ohio Public Employees Retirement System. In determining whether Ann Kilcoyne was entitled to spousal support, the trial court found James Kilcoyne's projected annual income to be $88,109, and Ann Kilcoyne's projected annual income to -6- be $3,108. The trial court also held during their thirty years of marriage their lifestyle was "comfortable, middle class." The court noted that Ann Kilcoyne worked until James Kilcoyne became a judge; she campaigned for his re-election, and furthered his political career. Both parties were retired, and with the exception of James Kilcoyne's medical expenses, their needs were similar. The court further found Ann Kilcoyne had realistic monthly expenses of $3,000. After taking into account all of the relevant factors, the trial court awarded Ann Kilcoyne spousal support in the amount of $2,800 per month until the death of either party or until her remarriage whichever occurs first. The parties were ordered to bear their own attorney fees and share in the court costs equally. The trial court also issued an order requiring James Kilcoyne to authorize the conveyance of $16,000 to Ann Kilcoyne from his deferred compensation account. Both parties appeal from the final judgments of the court. In James Kilcoyne's first assignment of error and Ann Kilcoyne's sole assignment of error, the parties argue the trial court did not make an equitable division of the marital property. The arguments of both parties are premised upon the belief that they are entitled to an equal distribution of the marital assets. Decisions concerning the division of marital assets and liabilities and spousal support are within the trial court's discretion. E.g. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93. "The term 'abuse of discretion' connotes more than an error of law -7- or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In Cherry v. Cherry (1981), 66 Ohio St. 2d 348, the Supreme Court of Ohio rejected a flat equal property division rule and held that equal division should be the starting point of the trial court's analysis when it considers all the relevant factors. See Kaechele at 95. "An unequal property division does not, standing alone, amount to an abuse of discretion. Equitable need not mean equal." Id. R.C. 3105.171 provides as follows: (C)(1) Except as provided in this division or division (E) of this section, the division of marital property shall be equal. If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable. In making a division of marital property, the court shall consider all relevant factors, including those set forth in division (F) of this section. (F) In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors: (1) The duration of the marriage; (2) The assets and liabilities of the spouses; (3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage; (4) The liquidity of the property to be distributed; (5) The economic desirability of retaining intact an asset or an interest in an asset; (6) The tax consequences of the property division upon the respective awards to be made to each spouse; -8- (7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property; (8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; (9) Any other factor that the court expressly finds to be relevant and equitable. In this case, both parties acknowledged the trial court began with an equal division of property as a starting point. The trial court's decision individually listed the marital property and the separate property of the parties, and it clearly set forth the value of all the property except for the two Arizona lots. The trial court's findings of fact set forth the factors in R.C. 3105.171(F). After reviewing the evidence and the trial court's decision, we find the division of marital assets and liabilities, although unequal, was equitable. We, therefore, find no abuse of discretion. In his second assignment of error, James Kilcoyne argues the trial court erred in treating his deferred compensation account as a marital asset when it was in "pay status." Deferred compensation benefits are payment for past services, and if those services were rendered during the marriage, the benefits constitute a marital asset. See Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 132. "It is immaterial that, at the time of a divorce, as herein, a spouse has started receiving the benefits in the form of periodic income. The plan constitutes marital assets, and the benefits therefrom belong to the marital estate and not to the receiving spouse exclusively." Id. In this case, the fact that James Kilcoyne's -9- deferred compensation plan was in "pay status" had no bearing on whether it was a marital asset. Therefore, the trial court properly treated his deferred compensation as a marital asset. In his third assignment of error, James Kilcoyne argues the trial court erred in considering non-marital property as a source of income for purposes of determining spousal support. R.C. 3105.18(C)(1)(a) specifically states as follows: (C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; ***. (Emphasis added.) In this case, there is no dispute that James Kilcoyne's Fidelity Investments account is a non-marital asset. It represents the proceeds of a personal injury settlement. See Everhardt v. Everhardt (1991), 77 Ohio App.3d 396. Income "from all sources" including non-marital assets may be considered in determining spousal support. R.C. 3105.18(C)(1)(a). The investment income James Kilcoyne receives from Fidelity Investments was, therefore, properly considered when the trial court determined the amount of spousal support. In his fourth assignment of error, James Kilcoyne argues the trial court abused its discretion in ordering spousal support in the amount of $2,800. An award of spousal support is within the -10- discretion of the trial court. Buckles v. Buckles (1988), 46 Ohio App.3d 102. "The purpose of spousal support is to mitigate the drastic and abrupt lifestyle changes occasioned upon either party by divorce." Fletcher v. Fletcher (June 28, 1995), Montgomery App. No. 90-DR-31, unreported. The factors to be considered in determining spousal support under R.C. 3105.18(C) are tailored with that purpose in mind. Id. James Kilcoyne gives three reasons why he believes the trial court's award of spousal support was an abuse of discretion. The first reason he presents is the trial court ignored "Defendant's Trial Exhibit "B" that provided his estimated gross monthly pension, excluding his service prior to the marriage. Kilcoyne's reasoning presupposes the trial court should not have considered non-marital income to make a determination as to spousal support. However, R.C. 3105.18(C)(1)(a) is very clear. In determining the amount of spousal support, the court shall consider "income of the parties, from all sources," including non-marital property. Supra, p. 8. The second reason he presents is the trial court erred in computing deferred compensation by providing conflicting figures for the amount in the fund. Kilcoyne's reasoning presupposes the same deferred compensation amount used for the division of marital property, $154,478.22, should be the amount considered when determining the amount of spousal support, not the $162,070 the trial court used in determining spousal support. However, marital -11- property and income for purposes of spousal support represent separate and distinct quantitative values. Marital property is defined as any property acquired by either or both spouses during the marriage. R.C. 3105.171(A)(3). In this case, the total amount of funds in James Kilcoyne's deferred compensation account was $178,280.49, but only $154,478.22 of that amount was earned during the marriage. Thus, $154,478.22 accurately represented the marital asset portion of the deferred compensation account. Income for purposes of determining spousal support includes income from all sources after the division, disbursement, and distribution of the marital estate. R.C. 3105.18(C)(1)(a). Although $178,280.49 was the total amount in James Kilcoyne's deferred compensation account, $16,000 of that amount was awarded to Ann Kilcoyne in the division of marital property. After deducting the $16,000 plus poundage in the division of marital property, the remaining funds in the deferred compensation account would be approximately $162,070. Thus, the amount of $162,070 accurately represented the base figure for computing the income James Kilcoyne would derive from his deferred compensation account after the division of marital property. The third reason he presents is the trial court erred in considering Ann Kilcoyne's testimony that she needed $500 per month for a leased car when James Kilcoyne had given her $15,000 to purchase a car. The Supreme Court of Ohio has held an "[a]ppellate court must not substitute its judgment for that of the trial court -12- where there exists some competent, credible evidence supporting the findings of fact and conclusions of law rendered by the trial court." Myers v. Garson (1993), 66 Ohio St.3d 610 at the syllabus. An appellate court must give deference to a trial court's finding when it is supported by competent, credible evidence. Getter v. Getter (1993), 90 Ohio App.3d 1, 9. In this case, Ann Kilcoyne provided competent, credible evidence she needed $500 per month for expenses associated with her car lease. After reviewing the factors set forth in R.C. 3105.18(C), the evidence, and the findings of fact of the trial court, we find no abuse of discretion in the trial court's awarding Ann Kilcoyne $2,800 per month in spousal support. In his fifth assignment of error, James Kilcoyne argues the trial court erred in issuing a post-judgment wage order against his deferred compensation plan. The trial court's order is character- ized as an agreement between the parties, but was not signed by them. The trial court's order provides that a lump sum distribu- tion of $16,000 shall be made to Ann Kilcoyne from the deferred compensation plan, so long as it is not "inconsistent with the law, rules or plan document controlling this Participant's Account." The trial court also specifically retained jurisdiction to modify the order. James Kilcoyne argues the trial court did not have jurisdic- tion to issue the order. "The mere filing of a notice of appeal from the judgment of the trial court without a stay of execution being issued does not deprive the trial court of authority to -13- enforce its judgment" White v. White (1977), 50 Ohio App.2d 263 at paragraph five of the syllabus. In this case, James Kilcoyne's request for a stay of execution was denied. Therefore, the trial court retained jurisdiction to enforce its judgment. James Kilcoyne also argues the trial court's wage order is not authorized under R.C. 3113.21(A). R.C. 3113.21 does not authorize an income withholding order for the purpose of enforcing a division of marital property. Johnson v. Johnson (1993), 85 Ohio App.3d 161. Nonetheless, R.C. 3105.171(J) provides: The court may issue any orders under this section that it determines equitable, including, but not limited to, either of the following types of orders: (1) An order granting a spouse the right to use the marital dwelling or any other marital property or separate property for any reasonable period of time; (2) An order requiring the sale or encumbrancing of any real or personal property, with the proceeds from the sale and the funds from any loan secured by the encumbrance to be applied as determined by the court. Although the trial court's order dividing deferred compensation was not authorized under R.C. 3113.21, it was authorized under R.C. 3105.171(J). Thus, the trial court's order was authorized by law. James Kilcoyne also argues the trial court's order is unenforceable under Section 3.04 of the "Plan Document Adopted By Your Employer Under The Ohio Public Employees Deferred Compensation Program," which was presented at trial as Plaintiff's Exhibit 13 and admitted into evidence. Section 3.04 of the Plan Document of the Ohio Public Employees Deferred Compensation Program provides: -14- "Assets Property of Employer. All amounts of compensation deferred under the Plan, all property and rights purchased with such amounts and all income attributable to such amounts, property or rights, shall remain (until made available to the participant or other beneficiary) solely the property and rights of the employer (without being restricted to the provision of benefits under the Plan) subject only to the claims of the Employer's general creditors." Section 8.05 of the plan, however, provides: Non-Alienation. Except as otherwise required by law, the rights of any Participant of Beneficiary (including any Compensation deferred or benefits paid) under this Plan shall not be subject to the rights of creditors of the Participant or Beneficiary, and shall be exempt from execution, attachment, garnishment, prior assignment, transfer by operation of law in the event of the bankruptcy or insolvency, or any other judicial relief or order for creditors or other third persons. ***The right to exercise any power of an Participant or Beneficiary shall be personal and shall not be exercised by any guardian, trustee in bankruptcy, court of law, or other person or entity seeking to act in the name of or by the right of the Participant or Beneficiary. R.C. 145.75 provides: Except as provided in sections 145.71 to 145.76, 3105.171, 3105.63, and 3113.21 of the Revised Code, participant account or any benefit or other right accrued or accruing to any person under sections 145.71 to 145.76 of the Revised Code or under a deferred compensation program offered by a government unit, as defined in section 145.74 of the Revised Code, or by a municipal corporation shall not be subject to execution, garnishment, attachment sale to satisfy a judgment or order, the operation of bankruptcy or insolvency laws, -15- or other process of law and shall be unassignable. After a careful review of the language of Section 8.05 of the plan and R.C. 145.75, there can be no question that the plan and the law are entirely consistent with respect to the subject of exceptions to the exemption from the rights of creditors. R.C. 145.75 makes an exception to the exemption rule for R.C. 3105.171, and Section 8.05 of the plan makes an exception to the exemption for orders required by law. In this case, the order issued by the trial court is authorized by law under R.C. 3105.171; it is also an exception to the exemption rule under Section 8.05 of the plan for the Ohio Public Employees Deferred Compensation Program. Thus, the trial court's order requiring the disbursement of $16,000 from James Kilcoyne's deferred compensation account to Ann Kilcoyne was valid under the law and the provisions of the plan. Judgment affirmed. -16- 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. Exceptions. SARA J. HARPER, P.J., and TIMOTHY E. MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON JUDGE PRESIDING 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 journaliza- .