[Cite as Mann v. Mann , 2011-Ohio-1646.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

DOUGLAS D. MANN, : Plaintiff-Appellee, : Case No. 09CA38

vs. : MARY PAT MANN nka LYNCH, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANT: K. Robert Toy, 50 1⁄2 South Court Street, Athens, Ohio 45701

COUNSEL FOR APPELLEE: Thomas E. Eslock er, 16 West State Street, Athens, Ohio 45701

_________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 3-28-11

PER CURIAM. {¶ 1} This is an appeal from an Athens C ounty Common Pleas Court judgment that terminated the marriage between Douglas Mann, pl aintiff below and appe llee herein, and Mary Pat Mann nka Lynch, de fendant below and appellant herein. {¶ 2} Appellant raises the following a ssignments of error for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT WHEN IT FAILED TO USE AN ENFORCEABLE AND FINAL DECISION SEPARATINGATHENS, 09CA38 2

APPELLEE’S RETIREMENT PENSION AS MARITAL PROPERTY.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT WHEN IT FOUND APPELLANT’S DISABILITY INCOME TRANSMUTES TO RETIREMENT INCOME WHICH IS AGAINST PREVAILING LAW.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT WHEN THE TRIAL COURT LIMITED SPOUSAL SUPPORT TO TEN YEARS AND DECREASING SPOUSAL SUPPORT OVER THE TERM OF THAT PERIOD.”

FOURTH ASSIGNMENT OF ERROR: “[THE] TRIAL COURT COMMITTED ERROR PREJUDICIAL TO THE APPELLANT WHEN IT FOUND THAT APPELLANT ‘MAY BE’ PERMANENTLY DISABLED AND THERE WAS POTENTIAL IMPROVEMENT IN APPELLANT’S PHYSICAL CONDITION.”

FIFTH ASSIGNMENT OF ERROR:

“THE COURT ABUSED ITS DISCRETION BY IGNORING A STIPULATION OF THE PARTIES AS TO APPELLEE’S CONTRIBUTION TO APPELLANT’S LEGAL FEES.” {¶ 3} The parties married in 1984. They ha d two children, both now emancipated. Appellee is employed at Ohio University and contributes to the State Teachers Retirement System and the Ohio Public Employees Retirem ent System (OPERS). Appellant worked for Ohio University until June 1, 1996, when she could no longer work due to a diagnosis of rheumatoid arthritis. At that time, she began to receive OPERS disab ility pay. Appellant currently receives a $3,458.98 monthly disability allowance.ATHENS, 09CA38 3 {¶ 4} In May 2008, appellee filed a complaint for divorce. Before trial, the parties entered into certain stipulations regarding th e division of personal pr operty. The parties primarily disputed the division of the retiremen t assets and appellant’s entitlement to spousal support. At the final hearing bot h parties presented expe rt testimony concerning the valuation of the parties’ retirement benefits. Appellant’s expert, Mark Snider, testified that he evaluated both parties’ retirement bene fits and projected appellee’s monthl y pension benefit to be $3,852 if he retires at age sixty. The marital portion of this amount would be 95.35% (24 years married / 25.17 employed). His present value figure aver aged out to be $548,638. Snider stated that appellant is projected to recei ve a monthly pension benefit of $902 at age 60, of which 98.6% is marital property. He stated that the present value of appellant’s pe nsion is $167,002, using a life expectancy of 85, and $88,074, using a life expectancy of 71. {¶ 5} Appellee’s expert, Heather Stoll, testifie d that the present value of appellant’s pension is $430,996.83, and that appellee’s is $378,103.46. Stoll admitted, however, that in October 2007 she found that the marital presen t value of appellant ’s pension was $152,035.70. Stoll explained that the differen ce in the present values was based upon the assumptions that the requesting attorneys told her to use when calculating the present value. {¶ 6} Stoll’s report also explained the various scenarios for dividing pension benefits and noted that the present value “may differ markedly from the ‘A ccount Value’” as stated on the employee’s annual statements. For example, as of Decembe r 31, 2006, appellee’s account value was $248,810.11. However, Stoll’s analysis de termined that the present value was approximately $130,000 more than the stated “account value.” Stoll noted that an employee

could choose to cash out the account and that th e cash out amount increased with the number ofATHENS, 09CA38 4 years of service. She explained that obviously, wh ether to use the actuarial present value or the cash out value is a matter for the court. Stoll’s report then stated: “[I]f the ‘account value’ is greater th an the actuarial present value, the non-participant may feel reluctant to accept the lower value of the actuarial present value unless the judgment entry reserves jurisdiction to divide the greater value of the pension in the event that the participant does, indeed, cash-out their interest in the plan. An open minded look at the issue clearly demonstrates the danger to the non-participant because the participant, in such a case, could access the higher value soon after the divorce without being encumbered to share that value with a former spouse. Similarly, if it is clear that the participant is not likely to terminate employment and the actuarial present value is less than the ‘account value’ ther e may be a well-founded reluctance to accept the higher cash-out value.” Stoll’s report also offered “Reasons for the Non-Participant to Accept a Present Value”: “Assessing a present value for a pension and then receiving a lump sum in offsetting assets or a series of periodic payments offers at least three possible advantages to the non-participant in the pension plan. First, the parties disentangle their economic affairs bringing a finality to this compone nt of their relationship. Second, if the non-participant spouse elects to share the pension at a future date and the participant dies prior to benefit commencement, the non-participant may recei ve nothing at all from the pension. Third, if the non- participant dies, either before or after pension commencement, nothing may accrue to their estate. Relatively few traditional defined benefit pension plans allow a lump sum distribution and far fewer allow survivorship benefits on the alternat e payee’s portion of a pension or the pre-retirement survivorsh ip annuity. By choosing a lump sum distribution, from the plan (if allo wed) or as an offset for an asset that they control, an individual can protect their ownership portion of a pens ion for their designated dependents or beneficiaries. However, once taken, there will be no future benefits due from the plan. An individual may fare better by investing their lump sum into their own retirement account. However, even if invested for the future, there are no guarantees of a better return or even that the original principal will be preserved.” Stoll's report further presented “Reasons for the Non-Participant to Reject a Present Value in

Favor of a Deferred Distribution”: “Present value reports are snapshots froze n in time. The value of a pension, as measured by a present value report, may change dramatically in a short period of time. Fluctuations in interest rate s are the best known cause for th ese changes. As interest rates increase, the present value of the pe nsion drops; conversely, as interest ratesATHENS, 09CA38 5 decrease, present values increase. Less well known is the impact of plan de sign on present values. High final n-year average salary based bene fit formulas usually cause the benefit to increase faster in later years of employment. Even more dramatic is the effect of retirement age. Some plans allow earlier retirement at a highly subsidized, or even unreduced, level after certain age and service qualifications are met. Some plans may pay these benefits for life or as a temporary supplemental bene fit to younger but long service employees. Once a participant becomes e ligible to choose a younger retirem ent age where benefits are not actuarially adjusted, the present value of the benefit can increase substantially. Ex-spouses are considered to have a right to share in subsidized enhancements in most courts. * * * *.” {¶ 7} Regarding the spousal support issue, appell ee testified that a ppellant “is capable of doing a number of physical and mental activities.” He stated that he has “watched her improve slowly but steadily over the years since the time she went on disability, taking long walks, gardening, lifting gardening materials, using the lawn tractor, cleaning the house.” {¶ 8} Appellant also requested that appellee pay part of her attorney fees. Appellee’s counsel stipulated that $5,000 is a reasonabl e fee for an attorney in a divorce case. {¶ 9} In September 2009, the trial court issued a divorce decree. C oncerning spousal support, the court stated: “[Appe llant’s medical] condition may be permanent, although in recent times there have been some developments raising the prospect of an improvement in her physical abilities.” The court recognized that both partie s’ economic conditions would likely change in the next five to ten years. The court stated th at if appellee retires, then appellant “can re-open the case and request a lump sum payment from [appellee] consistent with a present value calculation. If [appellee] takes retirement from ST RS after ten years then [appellant] shall share in his monthly and/or lump sum benefits by a ppropriate division order (DOPO) in proportion to the number of years the marriage represents to the years he has been a member of the system. The Court is retaining jurisdiction for that period to consider or reconsider this retirement issue,ATHENS, 09CA38 6 if necessary. The Court accepts [appellee’s] ex pert’s analysis of disability income as replacement income until it transmutes into re tirement income.” The court found that the parties’ pension benefits constitute marital property. The court ordered that appellant retain her pension and acquire part of a ppellee’s to help balance and/or equalize marital assets “post divorce.” The court awarded appellant spousal support that would slowly decrease over the course of ten years and retained jurisdiction over the spousal s upport issue. The court ordered appellee to pay appellant spousal support in the amount of: (1) $600 for the first twenty-four months; (2) $500 for the next thirty-six months; and (3) $400 for the remaining five years. The court further ordered appellee to pay $3,000 toward appellant’s a ttorney fees. This appeal

followed.

I {¶ 10} In her first assignment of error, appellant argues that the trial court erred by failing to equitably divide appellee’s re tirement benefits. Appellant contends that the trial court must determine the value of appellee’s retirement benef its and divide them in an equitable manner, rather than deferring distributi on of these marital assets and retaining jurisdiction to divide appellee’s retirement bene fits upon his retirement. Appellant also asserts that the trial court abused its discretion by crediting Stoll’s testimony. She complains that the court failed to provide a rationale for its decision and that in any event, the record does not support a basis to accept Stoll’s testimony over Snider’s.

A

FINDINGS OF FACT AND CONCLUSIONS OF LAW {¶ 11} Initially, we note that appellant did not file a Civ.R. 52 request for findings of factATHENS, 09CA38 7 and conclusions of law. Civ.R. 52 states: “When questions of fact are tried by a court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise * * * in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.” The failure to request findings of fact and conclusions of law ordinarily results in a waiver of the right to challenge the trial court’s lack of an explicit finding concerning an issue. See Pawlus v. Bartrug (1996), 109 Ohio App.3d 796, 801, 673 N.E.2d 188; Wangugi v. Wangugi (Apr. 12, 2000), Ross App. No. 2531; Ruby v. Ruby (Aug. 11, 1999), Coshocton App. No. 99CA4. When a party fails to request findings of fact and conclusions of law, we must presume the regular ity of the trial court proceedings. See, e.g.,

Bunten v. Bunten (1998), 126 Ohio App.3d 443, 447, 710 N.E.2d 757; see, also, Cherry v. Cherry (1981), 66 Ohio St.2d 348, 356, 421 N.E.2d 1293; Security Nat. Bank and Trust Co. v. Springfield City Sch. Dist. Bd. of Educ. (Sept. 17, 1999), Clark App. No. 98-CA-104; Donese v.

Donese (April 10, 1998), Greene App. No. 97-CA-70. In the absence of findings of fact and conclusions of law, we must pres ume the trial court applied the law correctly and must affirm if

there is some evidence in the record to s upport its judgment. See, e.g., Bugg v. Fancher , Highland App. No. 06CA12, 2007-Ohio-2019, at ¶ 10, citing Allstate Financial Corp. v. Westfield Serv. Mgt. Co. (1989), 62 Ohio App.3d 657, 577 N.E.2d 383; see, also, Yocum v.

Means , Darke App. No. 1576, 2002-Ohio-3803, at ¶7 (“The lack of findings obviously circumscribes our review.”). As th e court explained in Pettet v. Pettet (1988), 55 Ohio App.3d 128, 130, 562 N.E.2d 929: “[W]hen separate facts are not requested by counsel and/or supplied by the court the challenger is not entitled to be elevated to a position superior to that he would have enjoyed had he made his request. Thus, if from an examination ofATHENS, 09CA38 8 the record as a whole in the trial court there is some evidence from which the court could have reached th e ultimate conclusions of f act which are consistent with [its] judgment the appellate cour t is bound to affirm on the weight and sufficiency of the evidence. The message is clear: If a party wishes to challenge the* * * judgment as being against the manifest weight of th e evidence he had best secure separate findings of fact and conclusions of law. Otherwise his already ‘uphill’ burden of demonstrating error becomes an almost insurmountable ‘mountain.’” See, also, Bugg ; McClead v. McClead , Washington App. No. 06CA67, 2007-Ohio-4624. {¶ 12} In the case at bar, the trial court did not enter detailed factua l findings or legal conclusions. However, in the absence of a Civ.R. 52 request, it was not required to do so. Because appellant did not request findings of fact and conclusions of law, we will presume the regularity of the trial court proceedings, in the absence of evidence to the contrary.

B

STANDARD OF REVIEW {¶ 13} A domestic relations court en joys broad discretion in fashioning a division of marital property, a nd consequently, we will not reverse its decision absent an abuse of discretion.

Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 95, 518 N.E.2d 1197. The term “abuse of

discretion” connotes more than an error of law or judgment; ra ther, it implies that the court’s attitude was unreasonable, arbitrary or capricious. See, e.g., Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Furthermore, we will not disturb a tr ial court’s factual finding unless it is against the manifest weight of the evidence. See, e.g., C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. A finding is not against the manifest weight of the evidence as long as the record contains some competent, credible evidence to support it. Id. “This standard of review is highly defere ntial and even ‘some’ATHENS, 09CA38 9 evidence is sufficient to sustain the finding and prevent a reversal.” Barkley v. Barkley (1997), 119 Ohio App.3d 155, 159, 694 N.E.2d 989. “A reviewing court should be guided by a presumption that the findings of a trial court are co rrect, since the trial judge is best able to view

the witnesses and observe thei r demeanor, gestures, and voi ce inflections, and use those observations in weighing the credibility of the pro ffered testimony.” Id., c iting In re Jane Doe I (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181; see, also, Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 461 N.E.2d 1273.

C

DIVISION OF RETIREMENT BENEFITS {¶ 14} Retirement benefits acquired during a marriage are marital assets that a trial court must consider when equitably dividing the marital property between divorcing spouses. See R.C. 3105.171(A)(3)(a)(i) and (B); Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 178, 559 N.E.2d 1292. A trial court possesse s discretion when determining how to equitably distribute retirement benefits and “must apply its disc retion based upon the circumstances of the case, the status of the parties, the nature, term s and conditions of the pension or re tirement plan, and the reasonableness of the result.” Hoyt at paragraph one of the syllabus. {¶ 15} A retirement asset “is not necessarily subject to direct division but is subject to

evaluation and consideration in maki ng an equitable distribution of both parties’ mar ital assets.” Id. at 180. Furthermore, when di viding retirement benefits, “[t]he trial court s hould attempt to preserve the * * * retirement asset in order that each party can procure the most benefit, and should attempt to disentangle the parties’ economic part nership so as to create a conclusion and finality to their marriage.” Id. at paragraph two of the syllabus.ATHENS, 09CA38 10 {¶ 16} In Hoyt , as in the case sub judice, the trial c ourt did not assign a present value to the husband’s retirement asset, but instead ordered a deferred dist ribution of the husband's future retirement benefits. On appeal, the husband argued that the trial court erred by failing to assign a present value to his retirement asset. The Ohio Supreme Court explained the options available when a trial court considers the parties’ retirement assets: “[The court] must obtain a result which will preserve the asset so that each party can procure the most benefit. T hus, the trial court must have evidence before it detailing the intricaci es and terms of the particul ar plan. Then, the trial court must make an equ itable determination base d upon the parties’ overall financial situation, whether a direct division, or some ot her alternative, would be most appropriate to preserve the pensi on or retirement asset so that each party may derive the most benefit. There are several alternatives to a direct * * * division, such as an immediate offset of a current assignme nt of proportionate shares, with either a current distributi on or a deferred distribution. A deferred distribution may consist of either a current assignment or a division of the asset at such time that the plan directs distri bution based upon the employee’s eligibility.”

Id. at 181. {¶ 17} The Hoyt court further noted that a trial court may tailor its decision regarding an equitable division of retirement benefits accord ing to whether the benefits are matured or unmatured. When the benefits are unmatured, as they are in the case sub judice, then the trial

court: “may reserve jurisdiction and either determine the partie s’ proportionate shares at the time of the divorce or determine pr oportionality when the benefits become vested and matured. In determining the proportiona lity of the pension or retirement benefits, the non-employed spous e, in most instances, is only entitled to share in the actual marital asset. The value of this asset would be determined by computing the ratio of the number of years of employment of the employed spouse during the marriage to the tota l years of his or her employment. When a trial court decides that a pens ion or retirement asset shall be paid by deferred distribution, it has created a situ ation where the partie s’ affairs are not concluded. The non-employed spouse may be placed in a position where he orATHENS, 09CA38 11 she must monitor the fund, which may also create problem s for the plan administrator. Although this alternative di vides the risk between the parties that the benefits will fail to vest or mature, as an example, there is nothing to prevent an employed spouse, for whatever r eason, from quitting his or her employment and becoming employed elsewhere. Li kewise, the nonemployed spouse bears the risk that the employed spouse will die a nd the expected benefits, before being vested or matured, will terminate.” Hoyt at 182. {¶ 18} The Hoyt court did recommend that trial courts endeavor to disentangle the parties’ financial re lationship. The court explaine d that trial courts should: “strive to resolve the issues between the parties so as to disassociate the parties from one another or at least minimize th eir economic partnership. Certainly, some circumstances may warrant joint ow nership after a divorce and situations may evolve where joint decisions must be made. In these matters, trial courts must exercise their fullest discretion. Bu t, realistically, due to the nature of divorce, the circumstances usually are not conducive to joint decisionmaking by the parties. Therefore, some effort s hould be made to dise ntangle the parties’ economic affairs.” Id. at 182-183. {¶ 19} The Hoyt court additionally suggested that trial courts “attempt to ascertain the optimum value the pension or retir ement benefit has to the par ties as a couple, based upon the nature and terms of the plan. The trial court should structure a division which will best preserve the fund and procure the most bene fit to each party.” Id. at 183. {¶ 20} Ultimately, the Hoyt court determined that usin g the present value of $439.74 on the date of journalization of the divorce decree would be “unfair and in equitable” and would not “comport with the notion that this asset, the most significant marital asset of these parties, be divided to ensure each party the most benefit. ” Id. at 183-184. The court thus remanded the matter to the trial court to redistribute the husband’s retirement benefits according to its guidelines. Accordingly, under Hoyt :ATHENS, 09CA38 12 “[A] trial court may divide a pens ion fund using the ‘present value method’ or the ‘deferred distribution me thod.’ [Id. At 181]. Under the ‘present value method,’ the court fi rst determines the amount the non-employee spouse is to receive. Secondly, the court: (1) orders that amount withdrawn from the pension fund; or (2) offsets that amount with installment payments or other marital property. Baldwin’s Ohio Do mestic Relations La w (1990), 274, Section 25.05(E)(3). Under the ‘deferred distributi on method,’ the trial court orders that a percentage of the future benefits be paid from the pension fund to the non-employee spouse if and when the pension matures.”

Newell v. White , Pickaway App. No. 05CA27, 2006-Ohio-637, at ¶7.

{¶ 21} In the case sub judice we believe that Hoyt validates the trial court’s approach. Here, the trial court, in essence, ordered a deferre d distribution. The court stated that if appellee retires within the next ten years, then appella nt can re-open the case and request a lump sum payment from appellee consistent with a present value calculation. The court specified that if appellee 1 retires after ten years, then appellant “s hall share in his monthly and/or lump sum benefits by appropr iate division order (DOPO) in proportion to the number of years the marriage represents to the years he has been a member of the system.” The court further retained jurisdiction over the division of re tirement benefits and ordered appellant’s attorney to prepare a DOPO that anticipates appellee’s retirement after ten years and specifies the coverture formula. After our review of the record, we do not believe that the trial court abused its discretion by deferring distribution of appe llee’s retirement benefits. The trial court heard extensive

1 The trial court’s judgment states that “If Defendant takes retirement from ST RS after ten years then Defendant shall share in his monthly and/or lump sum bene fits by appropriate division order (DOPO) in proportion to the number of years the marriage represents to the years he has b een a member of the system.” We belie ve that the trial court’s first use of “Defendant” in the preceding sentence is a clerical error and that the court meant to use “Plaintiff,” which would be appellee. Moreover, neither party has disputed that this is the meaning of the trial court’s decision.ATHENS, 09CA38 13 testimony from both appellant’s a nd appellee’s experts regarding th e present value of appellee’s

retirement benefits. The trial court also had evidence before it regarding appellee’s expected monthly retirement income. A trial court is entitled to exercise its discretion to determine that a deferred distribution may better pr eserve a retirement asset. Ev en though the court deferred the distribution of appellee’s retirement benefits in the case at bar, a nd may not have disentangled the parties’ financial affairs, its failure to do so does not constitute an abuse of discretion. See Haynes v. Haynes (Mar. 4, 1998), Summit App. No. 18487 (stating that “disentangling the parties’ affairs as quickly as possible is a favorable result, but facilitating financial disassociation is not the only factor to consider”). Moreover, “t here is no requirement th at the court must, as a matter of law, divide ma rital pension benef its. It must simply consider the pension plan as a marital asset in reaching an equitable divisi on of marital property.” Soulsby v. Soulsby , Meigs App. No. 07CA1, 2008-Ohio-1019, at ¶13. {¶ 22} Other Ohio courts have e ndorsed the trial cour t's approach used in this case, noting that with a defined benef it plan, such as appellee’s, the actual value subject to equitable distribution “can be determined only by future c ontingencies such as the participant’s age and pension service credits at retirement.” Pruitt v. Pruitt , Cuyahoga App. No. 84335, 2005-Ohio-4424, at ¶53. Courts have thus concluded that “[w]hen the amount to be paid can only be determined at a later poi nt of maturity at retirement, a current order should divide and distribute only the right to receive a share of the unmatured pension benefit, reserving

determination of exact amounts to the later time when they are known. This method serves both objectives of an equitable divisi on; it disentangles the affairs of the parties while producing an optimum value for each.” Layne v. Layne (1992), 83 Ohio App.3d 559, 566, 615 N.E.2d 332;ATHENS, 09CA38 14 see, also, Pruitt at ¶56; Reynolds v. Reynolds (July 21, 1999), Wayne App. No. 98CA40 (stating that “courts have the option of retaining jurisdiction to order the distribution of benefits upon either their maturity, or upon the employee’s a pplication for withdrawal of those funds”); Sprankle v. Sprankle (1993), 87 Ohio App.3d 129, 134, 621 N.E .2d 1310 (When a trial court is not going to immediately liquidate a pension, but in stead orders the benef its to be divided and paid when they are ultimately paid by the pension plan, it need not determine the present value of the benefits at the time of the judgment.). {¶ 23} Furthermore, in the case sub judice the tria l court had before it Stoll’s report that detailed the various options for dividing a pens ion. Her report offered various scenarios and rationales to support each option. The trial c ourt rationally could ha ve concluded, based upon Stoll’s report, that a deferred distribution will better preserve the retirement asset and may even benefit appellant into the fu ture, although not as immediatel y as an outright division. Consequently, we are unable to c onclude in the case sub judice th at the trial court abused its

discretion when it fashioned the divi sion of appellee’s retirement assets. {¶ 24} We turn now to appellant’s claim that the trial court’s decision to credit Stoll’s testimony is against the manifest weight of the evidence. First, as we noted earlier, appellant failed to request findings of fact and conclusions of law. As su ch, she has waived the right to challenge the trial court’s factual findings, or lack thereof, and more specifically, her complaint that the trial court failed to offer a rationale for crediting Stoll’s testimony. In any event, we also observe that the trial court did not explicitly credit Stoll’s testimony in its entirety. Rather, the court simply stated that it accepted Stoll’s “analys is of disability income as replacement income until it transmutes into retirement income.” Appellant’s argument appears to be directed atATHENS, 09CA38 15 Stoll’s testimony regarding present value. The trial court, however, did not make any credibility determination regarding the experts’ present valu e testimonies. Indeed, apparently because of the widely conflicting present value figures, the court declined to assign a present value to the assets, but instead left it for future determination upon future distribution. We find the trial court’s explicit credibility determination regarding disability income as replacement income to be largely irrelevant to the issue regarding the present value of appellee’s retirement assets. Thus, we find appellant’s credibility argument misplaced. Moreove r, we note that credibility

determinations rest primarily with the tr ial court. A trial court’s function, as th e trier of fact, is to resolve disputes of fact and weigh the credibility of the testimony and documentary evidence.

Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 23. We must de fer to a trial court’s credibility determinations because “the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. {¶ 25} Accordingly, based upon the foregoing r easons, we hereby ove rrule appellant’s first assignment of error.

II {¶ 26} In her second assignment of error, appellant challenges the trial cour t’s conclusion that her disability income transmutes into retir ement income, and thus marital property, upon her attaining retirement age. Appella nt essentially argues that the disability income she receives is, and forever will be, her separate income and property.

{¶ 27} Ordinarily, the classification of property as marital or separate constitutes aATHENS, 09CA38 16 question of fact. See Wigal v. Wigal , Washington App. Nos. 06CA70 and 07CA10, 2008-Ohio-747, at ¶35. Thus, appella te courts generally review the classifica tion of property as marital or sepa rate under a manifest-weight-of-the evid ence standard and will affirm if the classification is supported by some comp etent, credible evidence. See id. {¶ 28} R.C. 3105.171(C) and (D) require a court to equitably divide marital property between the spouses. “Marital property” include s retirement benefits of the spouses. R.C. 3105.171(A)(3)(a)(i). It does not, however, include any “separate property,” which includes “[c]ompensation to a spouse for the spouse’ s personal injury.” R.C. 3105.171(A)(3)(b) and (6)(a)(vi). Disability benefits constitute compensation received for personal injury. Bakle v.

Bakle , Greene App. No.2009 CA 9, 2009-Ohio-6003, at ¶13, citing Ockunzzi v. Ockunzzi , Cuyahoga App. No. 86785, 2006-Ohio-5741, at ¶64; see, also, Arkley v. Arkley , Jefferson App. No. 03 JE 10, 2003-Ohio-7021, at ¶14, citing Bauser v. Bauser (1997), 118 Ohio App.3d 831, 835, 694 N.E.2d 136. Thus, disability benefits do not constitute marital property unless “they are accepted by the retiree in lieu of retirement pay, [in which case] they are marital property to the extent that retirement pay value is included therein.” Elsass v. Elsass (Dec. 29, 1993), Greene App. Nos. 93-CA-0005, 93-CA- 0016, citing Principles and Guidelines for the Division of Property in Actions for Divorce in Ohio (Mar.1981), 54 Ohio Bar 491. The Elsass court reasoned that “disability benefits * * * are a form of wage continuation designed to compensate the recipient for wages that he would otherwise receive but for th e disability.” Id. It held, therefore, that disability retirement benefits are not marital property subject to division unless the recipient spouse has accepted them in lieu of old-ag e retirement pay, and then only to the extent that such retirement pay value is included in the disability pension benefit. Id. When disabilityATHENS, 09CA38 17 benefits are accepted in lieu of retirement pay, “they are marital property to the extent that the disability benefit includes the retirement pay value.” Messer v. Messer , Darke App. No. 1570, 2002-Ohio-4196, at ¶8. “On the date a spouse beco mes eligible for retir ement, the disability benefits being received, though not marital property per se , begin to represent retirement benefits to the extent that they equal the retirement benefits the spouse would receive but for his disability.” Young v. Young , Clark App. Nos. 08CA59 a nd 08CA61, 2009-Ohio-3504, at ¶31, citing Motter v. Motter (July 27, 2000), Wyandot App. No 16-99-14. {¶ 29} In the case sub judice, the trial court stated that it “accepts [Stoll’s] analysis of disability income as replacement income until it tr ansmutes into retirement income.” The above cited cases are in accord with the trial court’s finding. When appellant reaches retirement age, her disability benefits will represent retirement benefits to the extent that they equal the

retirement benefits a ppellant would have received but for her disability. See Young at ¶31. Consequently, we do not belie ve that the trial court’s finding is against the manifest weight of the

evidence. 2 {¶ 30} Accordingly, based upon the foregoing r easons, we hereby ove rrule appellant’s second assignment of error.

III {¶ 31} In her third assignment of e rror, appellant contends that the trial court's decision to award her ten years of declining spousal support constitutes an a buse of discretion. {¶ 32} “It is well-settled that tria l courts enjoy broad discre tion in awarding spousal

2 We note that the trial court’s divorce decree does not specifically award appellee any interest in appellant’s retirement or disability benefits beyond stating that appellant’s pension constitutes marital property.ATHENS, 09CA38 18 support.” Breedlove v. Breedlove , Washington App. No. 08CA10, 2008-Ohio-4887, at ¶9, citing Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E .2d 83. Trial courts are given “wide latitude in determining th e appropriateness, as well as th e amount,” of spousal support. Bolinger v. Bolinger (1990), 49 Ohio St.3d 120, 122, 551 N.E.2d 157. A court’s decision to award spousal support will not be reversed on a ppeal absent an abus e of discretion. See

Bechtol . Under the abuse of discreti on standard of review, we mu st affirm the trial court’s decision unless it is unreasonable, arbitr ary, or unconscionable. Blakemore . Under this highly deferential standard of review, we may not simply substitute our judgment for that of the trial

court. In re Jane Doe I . Rather, we are limited to determining whether the trial court acted unreasonably, arbitrarily or uncons cionably. Briganti v. Briganti (1984), 9 Ohio St.3d 220, 222, 459 N.E.2d 896, citing Blakemore , 5 Ohio St.3d at 218-20. {¶ 33} R.C. 3105.18(C)(1) provides that, in dete rmining whether spousal support is “appropriate and reasonabl e, and in determining the nature, amount, and terms of payment, and duration of spousal support,” a court mu st consider the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental , and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;ATHENS, 09CA38 19 (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professiona l degree of the other party; (k) The time and expense necessary fo r the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropria te employment, provided th e education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each part y, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's mar ital responsibilities; (n) Any other factor that the court expressly finds to be relevant and equitable. {¶ 34} When making a spousal support award, a tr ial court must cons ider all statutory

factors and not base its determination upon any one of those f actors taken in isolation. Kaechele at paragraph one of the syllabus . While a trial court possesses broad discretion regarding the

determination of the a ppropriateness and r easonableness of an award of spousal support, it must consider the statutory factors e numerated above and must indicat e the basis for a spousal support award in sufficient detail to enable a reviewing court to determine that the award complies with

the law. Kaechele at paragraph two of the syllabus. In the absence of a request for findings of fact and conclusions of law, however, Kaechele does not require the tr ial court to list and

comment on each factor. Brown v. Brown , Pike App. No. 02AP689, 2003-Ohio-304, at ¶10. Rather, Kaechele and R.C. 3105.18(C) only require a trial court to reveal the basis for its award in either its judgment or the recor d. Id.; see, also, Carman v. Carman (1996), 109 Ohio App.3d 698, 704, 672 N.E.2d 1093. {¶ 35} In the case sub judice, we do not believe th at the trial court abused its discretion when it entered its spousal support award. First, with respect to appellant ’s argument that the

trial court failed to ar ticulate its reason underlying the spous al support award, we again observeATHENS, 09CA38 20 that appellant did not request findi ngs of fact and conclusions of law. In the absence of that request, the trial court wa s not required to engage in a length y statutory analysis regarding its spousal support award. Second, the record cont ains sufficient evidence to support the trial court’s spousal support award. Although appellee earns more m oney than appella nt, appellant receives disability income. The trial court had no oblig ation to award appellant an amount of spousal support to equalize the par ties’ incomes or to equal an am ount that would enable her to maintain the same lifesty le level that the parties enjoyed during their marriage. See Leopold v. Leopold , Washington 04CA14, 2005-Ohio-214, at ¶20. The trial court coul d have rationally concluded that appellant’s di sability income, coupled with the spousal support, would be adequate in order for a ppellant to maintain an appropriate and reasonable standard of living. Moreover, appellee presented at least some ev idence that appellant, who, like appellee, is highly-educated, might be capable of seeking at least part-time employment. Both parties have pension benefits to provide a means of support upon attaining retir ement age. Thus, appellant

will continue to have a source of income throughout her life. Although the parties had a long-term marriage, which could arguably ju stify an indefinite spousal support award, 3 the trial court was not required to award a ppellant an indefinite spousal s upport award or a larger award. Instead, the trial court may exercise its discre tion to determine an a ppropriate and reasonable amount of spousal support and need not follow an y bright-line rule that a long-term marriage automatically results in an indefinite award.

3 See Vanke v. Vanke (1994), 93 Ohio App.3d 373, 377, quoting Corpac v. Corpac (Feb. 27, 1992), Franklin App. No. 91AP-1036 (“[A] marriage of long duration ‘in and of itself would permit a trial cour t to award spousal support of indefinite duration without abusing its discretion or running afoul of the mandates of Kunkle.’”); see, also, Handschumaker v. Handschumaker , Washington App. No. 08CA19, 2009-Ohio-2239, at ¶21.ATHENS, 09CA38 21 {¶ 36} In sum, we cannot conclude that the tria l court abused its di scretion by awarding appellant ten years of spousal s upport on a declining scale. Add itionally, we note that the trial court retained jurisdiction to modi fy spousal support, if necessary. {¶ 37} Accordingly, based upon the foregoing r easons, we hereby ove rrule appellant’s third assignment of error.

IV {¶ 38} In her fourth assignment of error, appellant asserts th at the trial court erred by finding that appellant’s condition “may be pe rmanent” and that her physical condition might improve. She contends that the record does not contain credible, competent evidence to support the trial court’s finding. {¶ 39} An appellate court “‘ has an obligation to presume that the findings of the trier of fact are correct. * * * This pres umption arises because the tria l judge had an opportunity “‘to

view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’”’” Corrigan v. Illuminating

Co. , 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, at ¶34, quoting State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, at ¶24, quoting Seasons Coal Co.

. Furthermore, a reviewing court “‘must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the findings of fact and

conclusions of law rendere d by the trial court.’” Id., quoting Myers v. Garson (1993), 66 Ohio St.3d 610, 616, 614 N.E.2d 742. Thus, we will not revers e a finding of fact so long as some competent, credible evidence supports the trial court’s finding. See, e.g., Lovett v. Carlisle , 179 Ohio App.3d 182, 2008-Ohio-5852, 901 N.E.2d 255, at ¶16, citing Sec. Pacific Natl. Bank v.ATHENS, 09CA38 22 Roulette (1986), 24 Ohio St.3d 17, 20, 24 OBR 14, 492 N.E.2d 438.

{¶ 40} In the case at bar, we believe that the record contains some competent, credible evidence supports the trial court’s finding that appellant’s condition might improve. Some evidence also exists that appellant continues to enjoy an active lifestyle, despite her disability. She maintained the parties’ former seven-acre marital residence and traveled on vacations. Furthermore, even assuming arguendo that the trial court’s finding is against the manifest weight of the evidence as appellant asse rts, appellant has not demonstrat ed how this allegedly erroneous finding affected the outcome of the trial cour t proceedings. She cannot demonstrate that a contrary finding would have resu lted in the trial court entering any different decision regarding spousal support or the division of marital assets. C onsequently, any error with this finding

constitutes harmless erro r that we must disregard. See Civ.R. 61. {¶ 41} Accordingly, based upon the foregoing r easons, we hereby ove rrule appellant’s fourth assignment of error.

V {¶ 42} In her fifth assignment of error, appellant asserts that the trial court erred by awarding her only $3,000 in attorney fees when appellee stipulated th at $5,000 was a reasonable contribution toward payment of her fees.

{¶ 43} R.C. 3105.73(A) authorizes a tr ial court in a divorce action to “award all or part of reasonable attorney’s fees and litigation expenses to either party if the court finds the award equitable. In determining whet her an award is equitable, a c ourt may consider the parties’ATHENS, 09CA38 23 marital assets and inco me, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.” {¶ 44} An attorney fee award under this statut e lies within the sound discretion of the trial court and, thus, its decisi on should not be reversed absent an abuse of discretion. See

Basham v. Basham , Scioto App. No. 06CA3085, 2007-Ohio-3941, at ¶28. {¶ 45} In the case at bar, we do not believe that the trial court abus ed its discretion by ordering appellee to pay $3,000, rath er than $5,000, towards appellant’s attorney fees. The trial

court could have rationa lly concluded that the equitable re sult would be to order appellee to contribute $3,000 towards appellant’s attorney fees. We believe th at appellant’s assertion that “[i]t was [s]tipulated that $5,000.00 was a reasonable contribution to [her] attorney’s fees,” does not accurately portray appellee’s s tipulation. During the final hear ing, appellee did not stipulate that he would pay $5,000 towards appellant’s attorney fees, but rather appellee’s counsel stipulated that, as a general matter, $5,000 in a divorce case is not an unreasonable fee. Consequently, the tria l court’s $3,000 attorney fee award is not contrary to any purported stipulation that the parties entered. {¶ 46} Accordingly, based upon the foregoing r easons, we hereby ove rrule appellant’s fifth assignment of error and a ffirm the trial court’s judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs

herein taxed.

The Court finds there were reas onable grounds for this appeal.ATHENS, 09CA38 24 It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J., Kline, J. & McFarland, J.: Concur in Judgment & Opinion

For the Court

BY: Peter B. Abele, Judge

BY: Roger L. Kline, Judge

BY: Matthew W. McFarland, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.