COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70075, 70081 & 70243 JANICE K. ASAD : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM R. ASAD, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 19, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-231509 JUDGMENT: Affirmed in part and Reversed in part. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: DAVID L. LASH, ESQ. JOYCE E. BARRETT, ESQ. Chagrin Plaza East 800 Standard Building 23811 Chagrin Blvd., Suite 344 1370 Ontario Street Beachwood, Ohio 44122 Cleveland, Ohio 44113 BRUCE L. MIELZINER, ESQ. DANIEL A. MALKOFF, ESQ. 25550 Chagrin Blvd., Suite 403 ASST. ATTORNEY GENERAL Beachwood, Ohio 44122 Business & Government Reg. 30 E. Broad Street, 26th Floor JAMES H. HEWITT, ESQ. Columbus, Ohio 43215-3428 DIRECTOR OF LAW City of East Cleveland 14340 Euclid Avenue East Cleveland, Ohio 44112 - 2 - DYKE, J.: Appellant, William R. Asad, appeals the divorce decree entered in his divorce from appellee, Janice K. Asad, in case number 70075, and appeals the denial of his motion for a new trial in case number 70243. Appellant, Police and Fireman's Disability and Pension Fund, appeals the decree of divorce, specifically the order impos- ing a QDRO on William Asad's PFDPF pension, in case number 70081. For the following reasons, we affirm in part and reverse in part. William and Janice Asad were married from February 13, 1970 to February 16, 1994, the date of separation. William was 45 years old and Janice was 44 years old at the time of the divorce. The parties had two children, both emancipated. The trial court found that William had a pension with a stipu- lated value of $28,692.76 with the Police and Fireman's Disability and Pension Fund. The pension was not vested, as William was not eligible for retirement. The trial court ordered that the wife shall receive half of the pension and a QDRO shall issue for payment of same. "If the QDRO is disallowed, the Court shall retain continuing jurisdiction to modify support for the sole purpose of awarding spousal support to Wife from the pension benefit by attached order." I. Appellant-Police and Firemen's Pension Fund's first assignment of error states: THE TRIAL COURT ERRED BY ORDERING THE ISSUANCE OF A QUALIFIED DOMESTIC RELATIONS ORDER AGAINST THE POLICE AND - 3 - FIREMEN'S DISABILITY AND PENSION FUND IN VIOLATION OF R. C. 742.47. Appellant-William Asad's first assignment of error is similar, and states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DIVIDING APPELLANT'S POLICE AND FIREMEN'S DISABILITY AND PENSION FUND BY A QUALIFIED DOMESTIC RELATIONS ORDER. The domestic relations court may not order The Police and Firemen's Disability and Pension Fund to pay pension benefits to a non-employee spouse prior to the participant's retirement, because it violates the terms of the pension plan. Erb v. Erb (1996), 75 Ohio St.3d 18. In this case, the trial court's order issuing a QDRO on William Asad's pension must be reversed. The trial court did not abuse its discretion in dividing the pension in half, although the pension was not vested. William's pension would not vest for four years. See R.C. 742.37 (Pension vests after 25 years of service. Appellant was a fireman for 21 years). Unvested pension benefits should be considered in dividing marital property and awarding spousal support. See Lemon v. Lemon (1988), 42 Ohio App.3d 142, 144-145, Zulli v. Zulli (Jan. 9, 1992), Cuyahoga App. No. 61702, unreported, but see King v. King (1992), 78 Ohio App.3d 599, 606-607 (pension that would not vest for nine years was too speculative to consider). The trial court may order the husband to pay half the pension benefits to appellee once he starts receiving benefits. Erb, supra, Graham v. Graham (Sept. 7, 1993), Greene App. No. 92CA114, unreported. The trial court could also order William to pay half - 4 - of the present value of the pension to Janice. A third option is the trial court may reserve jurisdiction and determine proportion- ality when the benefits become vested and matured. Erb, supra at 21, Hoyt v. Hoyt (1990), 53 Ohio St.3d 177. The trial court did not choose any of the above three options, but ordered the QDRO on the unvested, unmatured benefits, which can not be done. The court provided that in the alternative, the court reserved jurisdiction to modify support for the sole purpose of awarding spousal support from the pension benefits. The court should have reserved jurisdiction to later determine the division of the pension. Although the trial court could attach a matured pension for support, see R.C. 742.47, this does not effectuate a division of the property. An increase in support may not be warranted simply because the pension has matured. See generally, Leighner v. Leighner (1986), 33 Ohio App.3d 214. The trial court ordered a division of the pension, and must pick an appropriate method to effectuate the division. It is noted that when the pension funds become vested and matured, a QDRO could be imposed. Erb v. Erb (June 2, 1994), Cuyahoga App. Nos. 65666, 65667, unreported, Potts v. Potts (Dec. 8, 1994), Cuyahoga App. No. 66729, unreported. The Ohio Supreme Court did not reach the issue of whether a QDRO may attach to a vested, matured PFDPF pension. Erb v.v Erb (1996), 75 Ohio St.3d 18, 20, fn.1. - 5 - The order to issue a QDRO must be reversed. The trial court's order retaining jurisdiction to modify spousal support to award spousal support from the pension benefits must also be reversed. The trial court should order an appropriate means to divide the pension. Accordingly, this assignment of error is sustained. II. Appellant-William Asad's second assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS AWARD OF SPOUSAL SUPPORT TO APPELLEE. The trial court's award of spousal support can only be reversed if the trial court abused its discretion. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. For an abuse of discretion to exist, the trial court's decision must be unreasonable, unconscion- able or arbitrary, and not merely an error of law or judgment. Id. In its order dated 12-11-95, the trial court made the follow- ing findings: William worked as a fireman, earning $2,294 per month. He also had income from his business, B&J Amish American Door Installation, and security guard work. Janice was scheduled to graduate from Cuyahoga Community College as a cardiopulmonary technician, in May, 1996, with earning potential of $27,000 to $30,000 per year. Janice had no prior work experience. The court found that currently, Janice had no earning potential. She was also receiving treatment for depression, and needed time to enter the job market. She earned rental income of $165.00 per month. - 6 - The trial court awarded appellee the marital home, with a fair market value of $138,000 and encumbrances of $105,000; and rental property with a fair market value of $31,000, and mortgage of $25,687. The parties agreed to temporary support of $1,335 per month. The trial court ordered spousal support of $1,361.70 per month, through May, 1996, $1,175.00 through June, 2000 and $875.00 through June, 2003. The order has a typographical error, stating "$2,000", instead of the year, 2000. This clerical error was not an abuse of discretion. Appellant asserts that the award of support improperly did not provide for termination upon death, remarriage or cohabitation. As a matter of law, spousal support terminates upon remarriage. 1 Dunaway v. Dunaway (1990), 53 Ohio St.3d 227. R.C. 3105.18(B) mandates that spousal support shall terminate upon the death of either party. The trial court did not err in failing to include a provision that spousal support would terminate upon cohabitation. Eley v. Eley (Mar. 11, 1994), Logan App. No. 8-83-18, unreported, Brookhart v. Brookhart (Nov. 18, 1993), Athens App. No. 93 CA 1569, unreported. Cohabitation of the dependant spouse does not require 1 McClusky v. Nelson (1994), 94 Ohio App.3d 746 held that if the parties agreed to spousal support of a fixed amount over a fixed period, with no contingencies, then support is actually a property division and is not terminated upon remarriage, unless the court so indicates in its order. The case at hand is distinguishable because the parties did not agree to the support, the support is contingent upon the survival of both parties and the support was for the purpose of providing sustenance to appellee, and was not a property division. - 7 - termination of the support award. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399. It was not error for the court to fail to include language in the order that spousal support terminates upon death, remarriage or cohabitation. Appellant contends that the trial court's order did not set forth sufficient detail for the reviewing court to determine whether the support award was fair and reasonable. See Layne v. Layne (1992), 83 Ohio App.3d 559, Kaechle v. Kaechle (1988), 35 Ohio St.3d 93, R.C. 3105.171(G). The trial court's order does not make specific findings as to the parties' expenses, the total amount of debt, the amount of debt awarded to appellant and which debts were marital and which were separate. Even without these findings, this court can determine from the divorce decree and the record that the award was fair and equitable. See Layne, Kaechle, supra, Spicer v. Spicer (April 29, 1996), Butler App. No. CA95-06- 115, unreported, Lane v. Lane (Sept. 4, 1996), Hamilton App. No. C- 950007, C-950034, unreported. According to appellant, the trial court failed to consider the following R.C. 3105.18(B) factors: appellee's rental income, that appellee was awarded two homes, appellee's age, work history and earning ability. The trial court's order indicates it did consider all of these factors. Appellee was awarded two homes, but was responsible for substantial debt on the homes. Appellee would receive a degree in May, 1996, but had no earning potential until then. Appellee needed time to enter the job market. The parties - 8 - had a long term marriage, and appellee had primary responsibility to care for the children. Based on all these facts, and the amount of agreed temporary support, we can not say that the trial court abused its discretion in its award of spousal support. For a case with similar facts, see Terry v. Terry (1994), 99 Ohio App.3d 228. Accordingly, this assignment of error is overruled. III. Appellant-William Asad's third assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS FAILURE TO DELINEATE MARITAL AND SEPARATE PROPERTY, AND IN ITS FAILURE TO ASSIGN VALUES TO SAID PROPERTY, YIELD- ING AN INEQUITABLE PROPERTY DIVISION. The property division was as follows: HUSBAND WIFE Helicopter (net) 35,000 Home $34,103 (55,000 sale price (less mortgage) less 20,000 owed to investors) Husband's Share of Home (13,685) Pension 14,346 Pension 14,346 Dodge Van (net) 978 Toyota Camry 11,000 Toyota Celica (net) 2,308 Rental Property 5,313 (net) _______ Credit from real 13,685 $51,037 estate for support Joint Check 6,900 B&J Amish Door Co. ? _______ $85,217 - 9 - The parties agreed to divide household goods. The court ordered wife to be responsible for property taxes, water and cable on the marital home, her credit cards, her counseling bill, her student loan and all debts she incurred after separation. The wife's debts totaled $12,000, not including mortgages. The husband would be responsible for all other debts. The record shows the husband would be responsible for approximately $80,000 of debt, not including the $20,000 owed to the helicopter investors. Some of this debt was incurred after separation. The record could support a finding that $10,000 to $20,000 of the debt was incurred by appellant after separation. Most of the marital debt was in the husband's name, or in the name of B&J Door or ASA Helicopter. The wife testified that the husband sometimes incurred debt without her knowledge, and she objected to the husband incurring additional debt. The trial court also found that the husband committed finan- cial misconduct by (1) selling the helicopter in violation of a restraining order; (2) signing the wife's name to cash a joint check for $6,900; (3) causing two liens, totalling nearly $12,000, to become permanent encumbrances on the marital home, in violation of a court order not to incur more marital debt; (4) assaulting wife when she objected to husband's incurring additional debt. The trial court awarded half of the husband's pension to wife, because of his financial misconduct. - 10 - A property division can only be overturned if the trial court abused its discretion. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. A division of property must be equal, unless the court determines that an equal division would be inequitable. R.C. 3105.171(C), see also Cherry v. Cherry (1981), 66 Ohio St.2d 348. If an equal division is not equitable, the court shall divide the property in a manner it determines to be equitable. Id. In this case, the trial court found that an equal division of the property was not equitable. The trial court's award appears to be equi- table, and not arbitrary, unconscionable or unreasonable. Appellee was awarded both homes, but also the accompanying debt. Appellant was given a $13,685 credit for support payments against the home, a substantial portion of the $34,103 equity. Appellant received the helicopter. The trial court could compen- sate appellee for appellant's financial misconduct, pursuant to R.C. 3105.171(E)(3). The trial court could award the majority of the debt to the husband, who incurred the debt against the wife's wishes, and sometimes without her knowledge. We can not say that the trial court abused its discretion in dividing the property. Appellant asserts that the trial court erred in failing to delineate which assets were marital, and which assets were separate property, as required by R.C. 3105.171(B). The evidence shows that all the assets were marital property, and the trial court order treated all the assets as marital. Although the trial court failed to designate which debts were marital and which were separate, - 11 - appellant does not show how this failure prejudiced him. Based on the record, the award of debt was not unreasonable, unconscionable or arbitrary. The trial court did not abuse its discretion in failing to assign a value to the household goods, B&J Door and helicopter business. The household goods were divided by agreement of the parties, so valuation was not necessary. See Goode v. Goode (1991), 70 Ohio App.3d 125. The court stated that it could not assign a value to the two businesses because of commingling of funds and contradictory records. Appellant has not demonstrated how the court's failure to assign a value to the businesses pre- judiced him. According to appellant, the two businesses did not have any value. The helicopter business was defunct and not awarded to anyone. B&J was awarded to appellant. If the trial court erred in failing to assign a value to the businesses, the error was harmless. Civ. R. 61. Accordingly, this assignment of error is overruled. IV. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING APPELLEE ATTORNEY FEES. An award of attorney fees may be reversed only if the factual considerations upon which the award is based are not supported by the manifest weight of evidence, or the trial court abused its discretion. Oatey v. Oatey (1992), 83 Ohio App.3d 251, Linehan v. Linehan (1986), 34 Ohio App.3d 124. Reasonable attorney fees may - 12 - be awarded if the court determines that the other party has the ability to pay, and the party receiving the award would be unable to fully litigate her rights if she does not receive reasonable attorney fees. R.C. 3105.18(H), Farley v. Farley (1994), 95 Ohio App.3d 215. In this case, the trial court ordered appellant pay appellee's attorney fees, in the amount of $24,000, based on the parties' relative financial positions and earning abilities. Appellant was allowed to offset $10,000 of attorney fees against his share of the house. Appellant was ordered to pay $300 per month additional spousal support for the attorney fees. The facts of this case demonstrate that appellee had a need for award of attorney fees and appellant had a greater ability to pay. Appellant had greater income and earning ability. Appel- lant's income and expense statement reflects gross income of $2,795.79, net income of $1,323 and monthly expenses of $3,390 (including temporary support payments of $1,335). Appellee's gross income is $1,935 (including temporary support payments), net income is $1,109 and expenses are $5,046. Appellee mistakenly added her mortgage expenses twice, so her expenses are really $3,466.57 per month. Appellee had a monthly deficit of $2,357 and appellant has a monthly deficit of $2,067. Based on the record, the court could find that appellee was in need, and appellant had a greater ability to pay the attorney fees. - 13 - The trial court did not abuse its discretion in awarding attorney fees. Accordingly, this assignment of error is overruled. The order of the trial court imposing a QDRO on appellant's pension is reversed. The trial court's order reserving juris- diction to modify support when the pension matures is reversed. Otherwise, the decision of the trial court is affirmed. - 14 - It is ordered that appellee, Janice Asad, and appellant, William Asad, split the 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. DAVID T. MATIA, P.J., AND NAHRA, J., CONCUR ANN DYKE JUDGE N.B. This entry 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(E) 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 .