COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73497 SANDRA J. GULITZ : : ACCELERATED DOCKET : : Plaintiff-appellee : JOURNAL ENTRY : AND : OPINION -vs- : : PER CURIAM : FRANK J. GULITZ : : Defendant-appellant : : DATE OF ANNOUNCEMENT APRIL 30, 1998 OF DECISION CHARACTER OF PROCEEDING Civil appeal from Common Pleas Court, Div. of Domestic Relations, Case No. D-244745 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Hans C. Kuenzi, Esq. Joseph M. Percio, Esq. 668 Euclid Avenue 180 Plaza West Bldg. Suite 535 20220 Center Ridge Road Cleveland, Ohio 44114-3004 Rocky River, Ohio 44116-3501 PER CURIAM: -2- This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record from the Cuyahoga County Court of Common Pleas, and the briefs of the parties. On June 8, 1968, plaintiff-appellee, Sandra Gulitz, married defendant- appellant, Frank Gulitz. Two children were born as issue of the marriage, both of whom are emancipated. Both parties were employed during their marriage. Since August 15, 1969, defendant-appellant has been working with Centerior Energy Corporation (formerly the Cleveland Electric Illuminating Co.). During the summer of 1993, defendant-appellant was informed that he was eligible for Centerior's newly offered Voluntary Transition Program ( V.T.P. ). This program was an early retirement incentive program designed to induce qualified employees to accept the offer in order to reduce the company's operating costs. According to the company's pension administrator, the V.T.P. payments were not considered severance pay. In 1993, defendant-appellant participated in the plan and received a lump-sum payment of $270,588.99 which was deposited in a separate account in his name only. Defendant-appellant treated the lump sum V.T.P. payment as a non-taxable pension distribution on his Federal Income Tax return for the year 1993. On January 10, 1996, plaintiff-appellee filed for divorce. The Court subsequently found that the termination date of the marriage was September 24, 1996 for purposes of dividing marital property. The parties stipulated that on that date, the V.T.P. benefits had -3- accumulated to $346,700 without any additional deposits or withdrawals. At the hearing, the parties entered into a partial separation and property agreement. There was an equal division of funds except for the V.T.P. benefits. Since the parties continued to disagree on the characterization of the V.T.P. benefits for purposes of dividing marital assets/property, the issue was submitted to the Magistrate for determination. On June 4, 1997, the Magistrate held the entire V.T.P. benefit was a martial asset subject to equal division between the parties. On June 17, 1997, defendant-appellant timely filed his objections to the Magistrate's decision. On September 15, 1997, the trial court overruled the objections and adopted the Magistrate's decision. The trial court entered a Judgment Entry of Divorce on October 14, 1997. Defendant-appellant timely filed this appeal. Defendant-appellant's sole assignment of error states: THE COURT OF COMMON PLEAS ERRED IN HOLDING THAT THE ENTIRE CENTERIOR ENERGY CORPORATION VOLUNTARY TRANSITION PROGRAM (VTP), AN EARLY RETIREMENT INCENTIVE PAYMENT TO APPELLANT, WAS A MARITAL ASSET. Defendant-appellant argues the trial court erred in failing to recognize the distinct components of the V.T.P. plan. Defendant- appellant acknowledges that a portion of the package represented his regular pension and constitutes marital property. However, another portion of the V.T.P. plan was an enhancement created to induce the employee to leave early. Stated differently, that portion is compensation for the loss of future earnings. -4- Regardless of the fact that defendant-appellant acquired the V.T.P. plan during his marriage, he argues the enhancement portion of the package constitutes separate property and belongs to defendant-appellant. For these reasons, defendant-appellant argues the trial court abused its discretion in adopting the Magistrate's decision. We do not find defendant-appellant's contentions persuasive. The division of marital property is governed by statute. R.C. 3105.171 defines marital property as follows: (3)(a) Marital property means, subject to division (A)(3)(b) of this section, all of the following: (i) All real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage; (ii) All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage; (iii) Except as otherwise provided in this section, all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage; * * * R.C. 3105.171 then describes separate property as follows: (6)(a) Separate property means all real and personal property and any interest in real or personal property that is found by the court to be any of the following: (i) An inheritance by one spouse by bequest, devise, or decent during the course of the marriage; (ii) Any real or personal property or interest in real or personal property that are acquired by one spouse prior to the date of the marriage; -5- (iii) Passive income and appreciation acquired from separate property by one spouse during the marriage; (iv) Any real or personal property or interest in real or personal property acquired by one spouse after a decree of legal separation issued under section 3105.17 of the Revised Code; (v) Any real or personal property or interest in real or personal property that is excluded by a valid antenuptial agreement; (vi) Compensation to a spouse for the spouse's personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets; (vii) Any gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage that is proven by clear and convincing evidence to have been given to only one spouse. (b) The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable. It is well established that when reviewing 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. Hoyt v. Hoyt (1990), 53 Ohio St.3d 177. See, also, Parr v. Parr (March 6, 1997), Cuyahoga App. No. 70300, unreported. Accordingly, a reviewing court will not reverse the trial court's property division unless it constitutes an abuse of discretion.Cherry v. Cherry (1981), 66 Ohio St.2d 348. An abuse of discretion implies that the court's attitude is unreasonable, -6- arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In holding the V.T.P. benefits constitutes a marital asset, the Magistrate reasoned that the husband's pension, whether supplemental or otherwise, was earned throughout his work history which occurred during the marriage. Stated differently, he qualified for the V.T.P benefits because of his years of service during his marriage. Centerior's motivation in trying to reduce its labor costs was not determinative of whether payments to its employees are marital assets. The Magistrate held that unlike the case law presented by defendant-appellant in support of his position, there was no risk of losing his pension in the future funds. Therefore, defendant- appellant's decision to participate in the program was completely voluntary. More importantly was the fact that the decision to retire early and take advantage of the V.T.P. benefits occurred during the marriage. The parties were divorced approximately three years afterthe funds were deposited into an account. Finally, the Magistrate held that after a review of all the evidence, there existed no circumstance which would justify a large discrepancy in the division of retirement savings of the parties. In the opinion which was later adopted by the trial court, the Magistrate cites to case law which stand for the proposition that early retirement incentives paid as a result of years of service were assets accumulated during the marriage and subject to the division of marital property. See, e.g., Von Der Embse v. Von Der -7- Embse (March 25, 1992), Montgomery App. No. 91 CA 47, unreported; Woolum v. Woolum (June 28, 1993), Clermont App. No. CA92-12-116, unreported. We find this case law applicable to the present matter. More importantly, we find the opinion of the Magistrate to be well reasoned and based upon facts present in the record. It is clear the Magistrate considered 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. Hoyt, supra. Under these circumstances, we cannot find that the trial court acted unreasonably, arbitrarily or unconscionably in adopting the Magistrate's opinion. Accordingly, defendant-appellant's sole assignment of error is not well taken. Judgment affirmed. -8- 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 Cuyahoga County 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. TIMOTHY MCMONAGLE, PRESIDING JUDGE JAMES D. SWEENEY, JUDGE MICHAEL J. CORRIGAN, 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 .