COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70570 WALTER J. KOBA III : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROSEMARY KOBA SR. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE DOMESTIC RELATIONS DIVISION COMMON PLEAS COURT CASE NO. D-210089 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JOYCE FIERRA (#0061484) 8191 BROADVIEW ROAD BROADVIEW HEIGHTS, OHIO 44147 For Defendant-Appellant: JEAN K. NASH (0000866) 683 PARKSIDE BLVD. CLEVELAND, OHIO 44143 - 2 - SPELLACY, C.J.: Defendant-appellant Rosemary Koba Sr. ("appellant") appeals the judgment of the trial court adopting the recommendation of the Magistrate to terminate spousal support and deny appellant entitlement to plaintiff-appellee Walter J. Koba III's ("appellee") disability retirement benefits. Appellant assigns the following error for our review: THE COURT ERRED IN CONSTRUING ITEM 3 OF THE SEPARATION AGREEMENT INCORPORATED INTO THE JUDGMENT ENTRY HEREIN AS EXCLUDING DISABILITY RETIREMENT AS THE AGREEMENT CONTAINED NO SUCH EXCLUSION. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. A complete review of the record reveals the following. On July 6, 1992, the trial court granted a divorce to the Kobas. As part of the Separation Agreement, appellee was to pay appellant four hundred ($400.00) dollars a month for a period of thirty (30) months commencing on June 1, 1992. On October 11, 1994, appellee filed a motion to terminate spousal support. On September 1, 1995, appellant filed a motion to modify the divorce decree to extend appellee's spousal support until the commencement of her benefits under paragraph 3 of the separation agreement. On October 27, 1995, Magistrate Garlandine Jones set forth, in pertinent part, the following decision with regard to the motions of the parties: The spousal support of $400 per month paid to Defendant shall terminate immediately and an - 3 - Order to Terminate shall issue against the Plaintiff's income source School Employers Retirement System located at 45 North Fourth Street, Columbus, OH 43215. A judgment is rendered against the Defendant in the sum of $1,048.53 upon which execution may issue. Any sums presently on hold with the Cuyahoga Support Enforcement Agency (CSEA) or subsequently received by CSEA shall be returned to the Plaintiff. The Defendant's Motion to enforce/implement the order for payment of retirement benefits is denied at this time pursuant to the decree provision. (Magistrate's Decision, October 27, 1995). On November 9, 1995, appellant filed her objections to Magistrate Garlandine Jones' Report. Subsequently, on March 21, 1996, the trial court overruled the objections which were filed to the Magistrate's decision and adopted the decision of the Magistrate. (Judgment Entry, March 21, 1996). I. The history of the case reveals that the parties were divorced on July 6, 1992. Incorporated into the divorce decree was a Separation Agreement entered into by the parties which provides in part: (1) Husband to pay 400.00 a month support maintenance for a period of 30 months commenc- ing 6-1-92, as and for spousal support to wife through the Bureau of Support of Cuyahoga County (order attached). * * * (3) Husband to pay wife 1/2 of gross receipts from his retirement plan based upon 14 years of service, and/or contributions made between Sept. 20, 1976 and June 9, 1989 to the School Employee Retirement System and/or Public Employee Retirement System. The payments shall - 4 - commence upon receipt of retirement benefit at age 60, unless an earlier retirement date is selected. Prior to, and at the time of the divorce, appellee was on disability retirement benefits from his job as a custodian for the Cleveland Board of Education. Therefore, support payments were deducted from his disability payments and sent to CSEA during the thirty-month period. At the end of the thirty-month period, appellee filed a motion asking the Court to terminate the deduc- tions and order the excess held by CSEA returned to him. As stated supra, this motion was granted. Appellant, however, asserts that she remains entitled to one-half of appellee's disability retire- ment benefits pursuant to paragraph 3 of the Separation Agreement. II. In her sole assignment of error, appellant contends that the trial court erred in construing paragraph 3 of the Separation Agreement as excluding disability retirement. In particular, appellant asserts that the trial court, in construing paragraph 3 of the Separation Agreement to exclude disability retirement, changed the plain and unambiguous wording of the paragraph. As indicated previously, the Separation Agreement stated that "[h]usband to pay wife 1/2 of gross receipts from his retirement plan, based upon 14 years of service, and/or contributions made between Sept. 20, 1976 and June 9, 1989 * * *. The payments shall commence upon receipt of retirement benefit at age 60, unless an earlier retirement date is selected." Appellant argues that this - 5 - language, as well as evidence presented at the hearing before the Magistrate, conclusively demonstrated that disability retirement benefits and service retirement benefits are one and the same under appellee's retirement plan. We disagree. In Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 178, the Supreme Court stated, "[t]he general rule is that pension or retirement benefits earned during the course of a marriage are marital assets and a factor to be considered * * * in the division of property." This rule was later codified in R.C. 3105.171(A)(3)(a)(ii) which became effective January 1, 1991. However, in the third footnote to the text of its opinion, the court in Hoyt listed several exclu- sions to this general rule, one of them being "disability retire- ment pay." Hoyt, supra at 178. In the present case, appellee was receiving, in lieu of actual wages, disability retirement benefits prior to and at the time of the divorce and drafting of the Separation Agreement. Although appellee's disability retirement benefits were used in determining the amount of support payments to be made by appellee to appellant, no reference was made in the Separation Agreement to these benefits or appellant's right to such benefits separate and apart from such payments. Moreover, the only reference in the parties' Separation Agreement pertaining to appellee's retirement plan was regarding appellant's one-half interest in appellee's retirement benefits which were not to commence until appellee reached age sixty. Appellee, however, was born in 1950 and was only forty-five years - 6 - old at the time appellant filed her motion to modify asserting that she was entitled to one-half of appellee's disability retirement benefits. Appellee's retirement system provides for both disability retirement benefits when an individual becomes permanently disabled and can no longer perform regularly assigned duties, as well as service retirement benefits based on age, service, and salary. Appellee's retirement system further provides that an individual receiving disability retirement will receive service credit for each year between the age at disability and age 60. Thus, it is clear that appellee's disability retirement benefits and service retirement benefits are treated as separate entities by appellee's retirement plan. A similar situation was considered by the Second District Court of Appeals in Elsass v. Elsass (December 29, 1993), Greene App. Nos. 93-CA-0005 and 93-CA-0016, unreported. The Elsass court addressed the issue of whether disability retirement benefits constituted marital assets and therefore were a factor to be considered in the division of property. In Elsass, the appellant wife argued that the court should order the appellee husband to pay her one-half of his retirement disability payments. In particular, the appellant wife asserted that since the trial court did not specify what retirement benefits were to be divided equally, the property division award encompassed all of the retirement benefits, disability and old age alike. The - 7 - Elsass court, however, following the decision set forth in Hoyt, determined that the appellee husband's disability retirement benefits were separate property and were properly excluded from the property division order contained in the divorce decree. The court further stated that, "[t]he rationale for this rule is that disability benefits such as those received by appellee are a form of wage continuation designed to compensate the recipient for wages that he would otherwise receive but for the disability." Elsass, supra at 5. See also, Kutzke v. Kutzke (April 12, 1996), Greene App. No. 95 CA 66, unreported. In the present case, appellee was receiving disability retirement benefits prior to and at the time of the divorce and drafting of the Separation Agreement. No reference, however, was made to these benefits in the agreement. In addition, appellee's disability retirement benefits were used to establish spousal support payments. The trial court properly denied appellant's motion to modify requesting the court to order appellee to pay her one-half of his disability retirement benefits. The disability retirement benefits sought by appellant were paid to appellee as a form of wage continuation designed to compensate appellee for wages that he would have otherwise received but for his disability. Thus, appellee's disability retirement benefits are income, rather than marital assets subject to division of property. Accordingly, appellant's assignment of error is overruled. Judgement affirmed. - 8 - It is ordered that appellee recover of appellant his 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, Domestic Relations Division, 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. JAMES M. PORTER, J. and TIMOTHY E. McMONAGLE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .