COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72045 SUE A OATEY Plaintiff-appellant JOURNAL ENTRY vs. AND GARY A. OATEY, ET AL. OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: JANUARY 8, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from the Domestic Relations Division of the Common Pleas Court, Case No. D- 200521 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellee: JOYCE E. BARRETT, ESQ. JAMES A. LOEB, ESQ. 800 Standard Building JOSE C. FELICIANO, ESQ. 1370 Ontario Street BAKER & HOSTETLER Cleveland, Ohio 44113 3200 National City Center 1900 East Ninth Street Cleveland, Ohio 44114 -2- KARPINSKI, J.: Once again, this court reviews the on-going litigation between Sue and Gary Oatey, a case spanning eight years. This is the fifth appeal generated by their divorce. This time, on post-remand, Sue argues that the trial court erred (1) in its disposition of the Chautauqua property, (2) by not awarding interest to her on her amount of the Chautauqua property, and (3) by not awarding her any interest in the Mary E. Oatey Trust. For the reasons that follow, we find no merit to these assignments and affirm the judgment of the court below. The relevant facts follow. Sue and Gary Oatey were divorced on July 29, 1994. After both parties appealed, this divorce and division of assets were affirmed in part and reversed in part by this court. Oatey v. Oatey (Apr. 25, 1996), Cuyahoga App. Nos. 67809, 67973, unreported. The case at bar is the appeal by Sue of the trial court's decision on remand. Previously, this court reversed the trial court in its award of two items: the Chautauqua property and the Mary E. Oatey Trust. It is the trial court's disposition solely of these two items on remand that forms the subject of Mary's three assignments of error, the first of which states as follows: I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS DIVISION OF THE CHAUTAUQUA PROPERTY. In its initial division of property, the trial court valued the Chautauqua property at $302,273 and divided one-third of the property as part of the marital estate. The trial court approved -3- Gary's transfer of the remaining two-thirds into a trust which benefitted the couple's disabled daughter Courtney. In the prior appeal Sue successfully challenged this transfer. Reversing and remanding the matter, this court explained as follows: Plaintiff-appellant argues, through her seventh assignment of error, that the trial court abused its discretion in adopting the report and recommendation of the special master regarding the Chautauqua property. Specifically, plaintiff-appellant objects to the transfer of the Chautauqua property into a trust intended to benefit the couple's oldest child, Courtney. It is plaintiff-appellant's position that the transfer of property violated a temporary restraining order in effect at the time and constituted economic misconduct. In the case sub judice, a review of the record from the trial court fails to support plaintiff-appellant's assertion that the transfer of defendant-appellant's interest in the Chautauqua property into a trust for the benefit of Courtney Oatey violated a temporary restraining order. The record demonstrates that the transfer occurred approximately three months prior to the temporary restraining order which identified the Chautauqua property was journalized. Accordingly, the transfer could not have constituted a violation of the subsequent temporary restraining order. The remaining issue raised by plaintiff-appellant in her seventh assignment of error is whether the transfer constituted economic misconduct by defendant-appellee. Ohio courts have held similar transfers of property to be void where factual circumstances demonstrate that actual or constrictive fraud occurred depriving a spouse of an interest in marital property. *** In this case, the special master considered allegation of fraud and economic misconduct and rejected them as groundless, finding that no actual or constructive fraud occurred. However, a review of the record fails to support the special master's findings. Clearly, the transfer of marital property solely by one spouse during the pendency of the divorce action into a trust constituted an attempt to defeat property rights of the remaining spouse in the marital property. Accordingly, the trial court erred in adopting the report and recommendation of the special master relating to the Chautauqua property. Oatey v. Oatey (Apr. 25, 1996), Cuyahoga App. Nos. 67809, 67973, unreported at 19, 20, citations omitted. -4- On remand, the trial court divided the remaining two-thirds of the Chautauqua property by first awarding $96,309.00 to Gary. What remained of the two-thirds interest ($105,206.00) was divided equally between Gary and Sue. On appeal, Sue argues that the trial court abused its discretion when it awarded the first $96,309.00 to Gary. Instead, Sue claims that the entire two-thirds of the Chautauqua property ($201,515.00) should be divided equally between the two. The Oatey marital estate is substantial, the trial court having determined the value at $2,240,681. From this total, the trial court awarded the following assets to Sue (1) the marital estate and all the household furnishings valued at $544,035, (2) two condominiums valued at $35,252, (3) bank accounts valued at $39,208, and (4) a cash award of $550,000. Thus the total award to Sue was $1,168,495.1 The remaining assets ($1,072,186) were awarded to Gary. Thus Gary's award was $96,309 less than Sue's. The trial court agreed that Sue received $96,309 more that Gary and took this difference into consideration when it awarded, on remand, the first $96,309 of the Chautauqua property to Gary. In support of her argument that the entire two thirds of the Chautauqua property should have been equally divided, Sue argues that the prior opinion by this court is the law of the case. This 1 In Oatey v. Oatey (Apr. 25, 1996), Cuyahoga App. No. 67809, 67973, unreported, this court stated at page 29 that the total award in property and cash was $1,129,287. This amount included the house, condominiums, and the $550,000 cash award. This $1,129,287 amount did not include the $39,208 in bank accounts in Sue's name. The opinion discussed this award under a separate assignment at page 22. -5- doctrine provides that a decision by a reviewing court remains the law of that case on that issue for all subsequent proceedings at both the trial and appellate levels. Nolan v. Nolan (1984), 11 Ohio St.3d 1. This court, however, did not specifically state how the Chautauqua property was to be divided. After this court held that the remaining two-thirds of the property was marital, it was within the sound discretion of the trial court to determine how this marital asset would be divided in order to achieve what is equitable. Cherry v. Cherry (1981), 66 Ohio St.2d 348. In the remand, moreover, the trial court was free to consider the Chautauqua allocation in the context of the total marital property award. Generally, [i]n determining whether the trial court abused its discretion, a reviewing court cannot examine the valuation and division of a particular marital asset or liability in isolation; rather, the reviewing court must view the property division in its entirety, consider the totality of the circumstances, and determine whether the property division reflects an unreasonable, arbitrary or unconscionable attitude on the part of the domestic relations court. Jelen v. Jelen (1993), 86 Ohio App.3d 199, 203. Thus we are reluctant to disturb this single aspect of the trial court's order. Although this court did find financial misconduct in the transfer of the Chautauqua property, this infraction was subsequently remedied when the court awarded Sue a portion of this asset. -6- We find that the trial court did not abuse its discretion in considering the net marital property award when it allocated the Chautauqua property. Accordingly, Sue's first assignment of error is overruled. Sue's second assignment of error states as follows: II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO AWARD INTEREST RETROACTIVE TO THE DATE OF THE DIVORCE, JULY 29, 1994, ON APPELLANT'S INTEREST IN THE CHAUTAUQUA PROPERTY. In this assignment, Sue contends that the trial court erred by not awarding interest back to the original divorce decree on the additional money she will receive from her portion of the Chautauqua property. This assignment lacks merit. The decision to award interest on obligations arising from a division of marital property lies within the sound discretion of the trial court. Koegel v. Koegel (1982), 69 Ohio St.2d 355, syllabus; Jelen, supra. In Koegel, the Supreme Court noted that a mandatory rule regarding interest awards in property divisions would be an unnecessary restraint on a trial judge's flexibility to determine what is equitable in a special set of circumstances. Koegel at 357. In the case at bar, given the complexity of the property division and the substantial amount that has already been paid to Sue, we cannot say that the court abused its discretion in not awarding interest on amounts owed to Sue from the Chautauqua property and the Mary E. Oatey Trust. Moreover, Sue's reliance on R.C. 1343.03(A), Ohio's pre- judgment interest statute, is misplaced. Under this statute, only where a money judgment, definite in amount, is rendered will -7- interest be included thereon by operation of law. City of North Olmsted v. Eliza Jennings, Inc. (1995), 101 Ohio App.3d 652. The Ohio Supreme Court has held that prejudgment interest cannot be retroactive to a prior judgment that did not exist. Sharp v. Norfolk & W. Ry. Co. (1995), 72 Ohio St.3d 307, 313. Sue is attempting to get prejudgment interest, retroactive to the original divorce decree of July 1994, on the additional sum she will receive from the Chautauqua property. The trial court did not divide the remaining third of the Chautauqua property until the post-appeal remand. Because the trial court did not reduce the award to judgment until January, 1997, the judgment did not exist in 1994. Accordingly, Sue's second assignment is overruled. Sue's third assignment states as follows: III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS FINDINGS AND CONCLUSIONS WITH RESPECT TO THE MARY E. OATEY TRUST BEING THE APPELLEE'S SEPARATE PROPERTY AND NOT SUBJECT TO DIVISION AND IN FAILING TO PROPERLY CONSIDER THIS EXPECTANCY OF APPELLEE AND MAKE A MONETARY AWARD TO APPELLANT. Finally, in this assignment, Sue argues that the trial court erred by not adding to her award of approximately $2.25 million in assets and support, another $50,000 from the Mary E. Oatey Trust. In a prior appeal, this court discussed this portion of the marital estate as follows: Plaintiff-appellant argues, through her tenth assignment of error, that the trial court erred in failing to even consider the value of defendant- appellee's interest in the Mary E. Oatey trust valued at $159,951. Plaintiff-appellant maintains that, pursuant to R.C. 3105.18(A)(4) as set forth on the date this action was filed (February 26, 1990), the trial court was required to consider the expectancies and inheritances of the parties such as defendant-appellee's interest in the -8- trust. Defendant-appellee maintains that the trust in no way qualifies as marital property and consequently should not be included in the martial estate. Ohio courts have held that a new statute, which modifies a prior alimony statute and provides that division creates an inequitable result, would not be applied retroactively to cases filed prior to its effective date. *** Therefore, the trial court in this action was required to apply the statute in effect at the time this case was filed and consider expectancies and inheritances of the parties. Accordingly, the trial court erred in adopting the special master's report and recommendation which failed to properly consider defendant-appellee's interest in the Mary E. Oatey trust. During the hearing regarding this issue in the trial court on October 5, 1993, defendant-appellee argued that plaintiff-appellant should be precluded from introducing evidence relating to the trust. Defendant-appellee maintained that any evidence relating to the trust should have been introduced during the first set of hearings held before the special master. However, since those hearings were only intended to establish a value for the Oatey Company, plaintiff-appellant was not required to present additional evidence relating to the trust at that time. Oatey v. Oatey (Apr. 25, 1996), Cuyahoga App. Nos. 67809, 67973, unreported at 22, 23 (citations omitted). On remand this court disposed of the Mary E. Oatey Trust as follows: This Court finds that it has been previously determined that Oatey Company stock, including its appreciation, is Defendant's separate property. Furthermore, since the Mary E. Oatey trust consists entirely of Oatey Company stock, the Mary E. Oatey trust is also awarded to the Defendant as his separate property. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant is awarded the Mary E. Oatey trust (FMV $200,865.60) as his separate property. Sue argues (1) that the determination that the trust was separate property was not supported by the evidence and (2) even if the trust is separate property the trial court still had authority to -9- make an award to Sue out of this separate property. Thes arguments fail. First, the quoted passage from the prior opinion merely states that the court should consider Gary's future interest in the trust.2 The prior opinion did not, as Sue argues, intend some monetary benefit to flow to the plaintiff relating to this asset. eeOn remand, the value of the trust, and the parties briefed the issue to the trial court. During the appellate oral argument, counsel for Sue conceded that the trial court did consider this future interest on remand. Therefore, the trial court correctly followed the mandate of this court. Second, the court did not abuse its discretion in determining that the trust was separate property. Peck v. Peck (1994), 96 Ohio App.3d 731. The court held that Oatey Co. stock was separate property. Arguing to the contrary, Sue points out that the court found that some other Oatey Co. stock purchased during the marriage was marital property. Sue fails to state, however, that the stock in the Mary E. Oatey Trust, unlike her example, was not purchased during the marriage and thus could properly be viewed as separate property. 2 Generally, a trial court is required to apply an alimony statute in effect when the divorce was filed. Lyon v. Lyon (1983), 86 Ohio App.3d 580, 587. Under the version of R.C. 3105.18 in effect at the time this action was filed (February 26, 1990), the trial court was required to consider expectancies and inheritances of the parties. Buckles v. Buckles (1988), 46 Ohio App.3d 102. The present version of R.C. 3105.18 and R.C. 3105.171, which became effective on January 1, 1991, has deleted these considerations. -10- The decision not to award Sue money from this separate property, therefore, was not an abuse of discretion. An award from separate property is an exception not justified in this case. Accordingly, Sue's third assignment is overruled. Judgment affirmed. -11- 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 Domestic Relations Division of 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. NAHRA, P.J., and LEO M. SPELLACY, J., CONCUR. DIANE KARPINSKI 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 .