[Cite as Jennings v. Jennings, 2017-Ohio-8974.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Susan W. Jennings, : 

 Plaintiff-Appellee, : 

 No. 16AP-711 

v. : (C.P.C. No. 14DR-4237) 

Joseph A. Jennings, III, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 12, 2017 

 

On brief: Brian S. Piper, Co. L.P.A., and Brian S. Piper, for 

appellee. Argued: Brian S. Piper. 

On brief: Leo P. Ross; Percy Squire, for appellant. 

Argued: Percy Squire. 

 

APPEAL from the Franklin County Court of Common Pleas, 

Division of Domestic Relations 

DORRIAN, J. 

{¶ 1} Defendant-appellant, Joseph A. Jennings, III, appeals the September 23, 

2016 judgment entry-decree of divorce ("decree") of the Franklin County Court of 

Common Pleas, Division of Domestic Relations. For the following reasons, we affirm. 

I. Facts and Procedural History 

{¶ 2} The parties married on December 26, 1982. On November 19, 2014, 

plaintiff-appellee, Susan W. Jennings, filed a complaint for divorce. The parties agreed to 

and approved a settlement memorandum. The court signed and filed the same on June 1, 

2016. The settlement memorandum resolved many of the issues related to the divorce, 

including issues relating to the division of property; however, the parties could not resolve 

the issues of spousal support, attorney fees, court costs, and expense money. 
No. 16AP-711 2 

{¶ 3} A trial was held to resolve these remaining issues on May 26, June 24, 

August 1, and August 8, 2016. On September 23, 2016, the court filed the decree. 

{¶ 4} Regarding spousal support, the court conducted an analysis pursuant to 

R.C. 3105.18. As relevant to this appeal, the court considered the income of the parties 

from all sources1 for the years 2014, 2015, and 2016, including appellant's "non-taxable 

VA benefits." (Decree at 4.) The court found appellant was currently receiving $1,991 per 

month of non-taxable Veteran's Administration ("VA") benefits. The court ordered 

appellant to pay permanent spousal support in the amount of $1,000 per month 

commencing April 21, 2015 to be reduced to $750 per month commencing June 15, 2016. 

{¶ 5} The court also found that appellant was receiving as a component of his VA 

benefit, "due to his having a spousal dependent," $145 per month, but that no portion of 

that allowance had been shared with appellee. (Decree at 12.) The court noted appellant 

had been receiving the same benefit in prior years but the value was unknown as the 

current amount included cost-of-living allowance increases. The court determined, based 

on the current value, that appellant has received $1,740 per year due to having a spouse. 

The court found, on the issue of an expense money award, that appellant retained a total 

of $4,350 of this portion of his VA benefit in the 30 months since the parties separated in 

January 2013. 

{¶ 6} Regarding appellee's request for attorney fees and court costs, the court 

made the following finding: 

The Court finds that Defendant has prolonged this litigation 

and ultimately forced the case to trial due to his dogged 

refusal to have his Veteran's Benefits included in the 

consideration of spousal support despite the dictates of R.C. 

§ 3105.18(C)(1)(a), and Ohio case law (See Cardone v. 

Cardone, 1998 WL 224934, 9th Dist. Court of Appeals, 

Summit County). Defendant failed to grasp the fact that all 

monies that are received in the home is compensation to be 

considered and all monies that are received during the 

marriage from all sources is marital. Defendant repeatedly 

referred to the Veteran's Benefits he received "that's my 

money." His characterization of the benefits as his money 

and his refusal to understand that although non-taxable, the 

Veteran's benefits are to be included in the income stream 

 

1 The court also considered appellant's income from wages and Social Security benefits, as well as income 

from certain unexplained non-cash deposits. 
No. 16AP-711 3 

forced this case to trial. The Court must consider all funds 

from all sources of income whether taxable income or not. 

(Decree at 12.) 

{¶ 7} Pursuant to R.C. 3105.73, in order to determine if an award of attorney fees 

would be equitable, the court took into consideration the parties marital assets and 

income, any award of temporary spousal support and, in particular, the conduct of the 

parties. The court found an award of attorney fees to be reasonable as attorney fees were 

"incurred due to the unyielding conduct of Defendant." (Decree at 14.) The court found 

that appellee had incurred attorney fees in the amount of $17,470 up to the start of the 

trial on August 8, 2016, and incurred further expenses at the rate of $250 per hour for 

trial on August 8, 2016. The court ordered appellant to pay appellee $9,000 as an award 

of attorney fees associated with the trial of this case. The court also ordered appellant to 

pay $683 as reimbursement for expenses associated with this case, as well as all court 

costs associated with this case. 

II. Assignments of Error 

{¶ 8} Appellant appealed and assigns the following two assignments of error for 

our review: 

[I.] The trial Court erred by including Appellant's Veteran 

disability benefits in connection with its R.C. 3105.18 award 

of spousal support in violation of the Federal Uniform 

Services Former Spouses' Protection Act (USFSPA), 10 

U.S.C. § 1408, Mansell v. Mansell, 490 U.S. 581 (1989), and 

38 U.S.C. § 3101(a). 

[II.] The trial Court abused its discretion in awarding court 

costs, attorneys fees and expenses to Appellee to the extent 

the Court's decision was based on Appellant's insistence that 

his Veteran's benefits are not divisible property. 

III. Discussion 

A. First Assignment of Error 

{¶ 9} In his first assignment of error, appellant argues that certain provisions of 

the Federal Uniform Services Former Spouses' Protection Act, 10 U.S.C. 1408, and 38 

U.S.C. 5301(a)(1) (formerly 38 U.S.C. 3101(a)) preempt R.C. 3105.18 with respect to 

inclusion of certain VA disability benefits in calculations of future spousal support. 
No. 16AP-711 4 

{¶ 10} 38 U.S.C. 5301(a)(1) states: 

Payments of benefits due or to become due under any law 

administered by the Secretary shall not be assignable except 

to the extent specifically authorized by law, and such 

payments made to, or on account of, a beneficiary shall be 

exempt from taxation, shall be exempt from the claim of 

creditors, and shall not be liable to attachment, levy, or 

seizure by or under any legal or equitable process whatever, 

either before or after receipt by the beneficiary. 

{¶ 11} 10 U.S.C. 1408(c) authorizes state courts to "treat disposable retired pay

payable to a [military or former military] member * * * either as property solely of the 

member or as property of the member and his [or her] spouse in accordance with the law 

of the jurisdiction of such court." (Emphasis added.) 10 U.S.C. 1408(a)(2) defines "court 

order" as including a final decree of divorce issued in accordance with the laws of the 

jurisdiction of that court, which provides for (1) child support, (2) alimony, or (3) division 

of property, and "in the case of a division of property, specifically provides for the 

payment of an amount expressed in dollars or as a percentage of disposable retired pay, 

from the disposable retired pay of a member to the spouse or former spouse of that 

member." 10 U.S.C. 1408(d) provides for the manner in which the military branch shall 

make such payments to a former spouse in compliance with a state court order. 

{¶ 12} Appellant's argument is premised on what the federal statute excludes from 

the definition of "disposable retired pay." 10 U.S.C. 1408(a)(4)(A)(ii) excludes from 

disposable retired pay amounts which "are deducted from the retired pay of such member 

as a result of * * * a waiver2 of retired pay required by law in order to receive 

compensation under title 5 or 38 [VA disability benefits]." 

{¶ 13} Appellee argues that neither 10 U.S.C. 1408 or 38 U.S.C. 5301(a) apply here 

as appellant suggests. Appellee points out the trial court did not make a property division 

of appellant's VA disability benefits; rather, the court simply made a spousal support 

award based on consideration of all income received by appellant. We agree. 

 

2 "The Federal Government has long provided retirement pay to those veterans who have retired from the 

Armed Forces after serving, e.g., 20 years or more. It also provides disabled members of the Armed Forces 

with disability benefits. In order to prevent double counting, however, federal law typically insists that, to 

receive disability benefits, a retired veteran must give up an equivalent amount of retirement pay. And, since 

retirement pay is taxable while disability benefits are not, the veteran often elects to waive retirement pay in 

order to receive disability benefits." Howell v. Howell, __ U.S. __, 137 S.Ct. 1400, 1402-03 (2017). 
No. 16AP-711 5 

{¶ 14} In Ohio, R.C. 3105.171 provides for the division of property in the case of 

divorce. Here, the division of property was agreed to and approved by the parties in the 

settlement memorandum, which the court incorporated into the decree. Specifically, as 

relevant to this appeal, the parties agreed that: 

[Appellant] shall retain all right, title and interest in the 

account with Edward Jones in his name, as well as any 

pension, disability payments, or other benefits, that are 

solely in his name, free and clear of all claims by [Appellee]. 

(Emphasis added.) (Settlement Memorandum at 3.) 

{¶ 15} 10 U.S.C. 1408(a)(2)(B)(iii), (a)(2)(C), (a)(4)(A)(ii), and (a)(4)(B) apply to 

prohibit state courts in divorce actions from dividing as property VA disability benefits. 

Neither the decree nor the settlement memorandum divide appellant's VA disability 

benefits. To the contrary, the memorandum and decree expressly state that appellant 

retains all right, title, and interest in any disability payments that are solely in his name, 

free and clear of all claims by appellee. 

{¶ 16} Although his argument is premised on the prohibition on the division of 

property outlined in 10 U.S.C. 1408(a)(2)(B)(iii), (a)(2)(C),3 (a)(4)(A)(ii), and (a)(4)(B), 

appellant actually complains about the trial court's award of spousal support. These 

provisions do not apply to spousal support. Rather, 10 U.S.C. 1408(a)(2)(B)(ii) addresses 

court orders which provide for the payment of alimony. The definition of alimony 

includes spousal support, and it expressly does not include division of property between 

former spouses. See 42 U.S.C. 659(i)(3). 

{¶ 17} In Ohio, R.C. 3105.18 provides for the award of reasonable spousal support 

in the case of divorce. R.C. 3105.18(C)(1)(a) requires a court, in determining the amount 

of spousal support, to consider several factors, including "[t]he income of the parties, 

from all sources." Here, the spousal support award was determined by the court, after 

trial, and after considering all appellant's sources of income in compliance with R.C. 

3105.18(C)(1)(a). 

{¶ 18} In support of his argument that the trial court erred in considering his VA 

disability benefits in awarding spousal support, appellant points not only to the statutory 

 

3 "Disposable retired pay," which excludes VA disability benefits, is referenced only "in the case of a division 

of property." See 10 U.S.C. 1408(a)(2)(B)(iii) and (C). There is no reference to "disposable retired pay" and 

VA disability benefits excluded therefrom in the case of alimony. See 10 U.S.C. 1408(A)(2)(B)(ii). 
No. 16AP-711 6 

provisions which apply to division of property, but, also, to Mansell v. Mansell, 490 U.S. 

581 (1989), and Howell v. Howell, __ U.S. __, 137 S.Ct. 1400 (2017). In Mansell, the 

United States Supreme Court held that federal law completely preempts state courts from 

treating waived military retirement pay, for VA disability pay, as divisible community 

property in a divorce. In Howell, applying Mansell, the United States Supreme Court 

held the same with regard to the waiver of retirement pay for VA disability benefits which 

took place several years after the divorce proceedings; whereas, in Mansell the waiver 

took place before divorce proceedings. Howell further held that a state court could not 

order a veteran to indemnify a divorced spouse for the loss in the divorced spouse's 

portion of the veteran's retirement pay caused by the veteran's waiver of retirement pay to 

receive VA disability benefits. The court found the attempt to distinguish between an 

order to reimburse or indemnify the former spouse and an order to divide property was 

semantics. The holdings in Mansell and Howell do not apply here. We do note, however, 

the United States Supreme Court's comments in Howell which support the conclusion 

that a court may include VA disability benefits as a source of income to be considered in 

awarding spousal support. 

We recognize, as we recognized in Mansell, the hardship that 

congressional preemption can sometimes work on divorcing 

spouses. See 490 U.S. at 594. But we note that a family court, 

when it first determines the value of a family's assets, 

remains free to take account of the contingency that some 

military retirement pay might be waived, or, as the petitioner 

himself recognizes, take account of reductions in value when 

it calculates or recalculates the need for spousal support. See

Rose v. Rose, 481 U.S. 619, 630-634; 10 U.S.C. §1408(e)(6). 

Howell at 1406. 

{¶ 19} Finally, 38 U.S.C. 5301(a)(1) applies to prohibit state courts from assigning 

VA disability benefits or making them liable to claims of creditors, attachment, levy or 

seizure, except as specifically authorized by law. Neither the decree nor the settlement 

memorandum assign appellant's VA disability benefits to appellee or make said benefits 

liable to claims of creditors, attachment, levy or seizure 
No. 16AP-711 7 

{¶ 20} The trial court did not err when it considered appellant's VA disability 

benefits as a source of income in determining a spousal support award. Accordingly, 

appellant's first assignment of error is overruled. 

B. Second Assignment of Error 

{¶ 21} In his second assignment of error, appellant argues the trial court abused its 

discretion in awarding attorney fees because he was "correct on the law [regarding his VA 

disability benefits] and the trial court [was] incorrect." (Appellant's Brief at 12.) He 

asserts no other grounds for abuse of discretion. 

{¶ 22} In divorce proceedings, a trial court may award "all or part of reasonable 

attorney's fees and litigation expenses to either party if the court finds the award 

equitable." R.C. 3105.73(A). A trial court "may consider the parties' marital assets and 

income, any award of temporary spousal support, the conduct of the parties, and any 

other relevant factors the court deems appropriate" to determine whether an award is 

equitable. R.C. 3105.73(A). An award of attorney fees under R.C. 3105.73 lies within the 

sound discretion of the trial court and will not be reversed absent an abuse of that 

discretion. Wehrle v. Wehrle, 10th Dist. No. 12AP-386, 2013-Ohio-81, ¶ 47, citing Huffer 

v. Huffer, 10th Dist. No. 09AP-574, 2010-Ohio-1223, ¶ 19. 

{¶ 23} As we have stated in our analysis of the first assignment of error, contrary to 

appellant's argument in support of the second assignment of error, appellant was not 

correct on the law. Therefore, we cannot say the trial court abused its discretion in 

ordering appellant to pay appellee attorney fees, expenses, and costs related to trial. 

Accordingly, the second assignment of error is overruled. 

IV. Conclusion 

{¶ 24} Having overruled appellant's two assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations. 

Judgment affirmed. 

TYACK, P.J. and HORTON, J., concur.