[Cite as Derrig-Heacox v. Heacox , 2017-Ohio-5743.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104557

JOAN E. DERRIG-HEACOX

PLAINTIFF-APPELLEE

vs. MARK J. HEACOX

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division

Case No. DR-10-332805

BEFORE: Jones, J., Boyle, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: July 6, 2017ATTORNEY FOR APPELLANT

J. Michael Drain 147 Bell Street, Suite 202 Chagrin Falls, Ohio 44022

ATTORNEYS FOR APPELLEE Joseph G. Stafford Nicole A. Cruz 55 Erieview Plaza, 5th Floor Cleveland, Ohio 44115

LARRY A. JONES, SR., J.:{¶1} Defendant-appellant, Mark Heacox, appeals the trial court’s decision determining that the $160,000 payment from his former employer is subject to division under the terms and conditions of his divorce decree with plaintiff-a ppellee, Joan Derrig-Heacox. For the reasons that follow, we affirm. I. Procedural History and Facts {¶2} Mark and Joan’s marriage was dissolved in October 2010. At that time, the parties’ separation agreement was ordered into effect as part of their divorce decree. As is pertinent to this appeal, the agreement cont ained the following provision: Joan shall also receive Fifty Percen t (50%) of Mark’s bonuses, stocks or emergence bankruptcy bonuses through hi s employer Delphi over the next 60 months. These payments will be paid as income to Joan and be a tax deduction to Mark. {¶3} Litigation between the par ties continued after their divorce. At a May 21, 2014 hearing, the parties came to an agreement with regard to pending motions and executed an agreed judgment entry (“May 2014 AJE”). As part of the May 2014 AJE, Mark agreed to pay Joan one-half of a $33,500 bonus payment he had received from his employer, Delphi Automotive, and any additional amounts subject to division as set fo rth in their divorce decr ee. He also agreed under a Qualified Domestic Re lations Order (“QDRO”) to pa y Joan a cash payment of $200,000 and an additional $240,000 from his Delphi Cor poration Salaried Re tirement Program. {¶4} Days after executing the May 2014 AJE, Joan filed a motion to show cause, alleging that on May 4, 2014, and unbeknownst to her, Mark ha d entered into a Sepa ration and Release of Claims Agreement with Delphi terminating his employment. Under the terms of Mark’s separation agreement with Del phi, he was to receive a lu mp sum payment of $160,000, which

Joan claimed was attributable to bonuses he received or should have received while working forthe company and, therefore, subject to division unde r the terms of their divorce decree. She filed subsequent motions to show cause alleging that Mark failed to make the $200,000 and $240,000 payments that were due to her under the May 2014 AJE. {¶5} The parties were unable to resolve the issue and the matter proceeded to a full hearing. {¶6} Mark testified that he had worked fo r Delphi Automotive from 1968 until April 15, 2014; he learned in March 2014 that he was going to be terminat ed. His most current position with the company was the Director of Manufact uring for Delphi Connection Systems of the Americas. According to Mark, he was offe red a $160,000 lump sum payment as part of his separation agreement that was for releases of claims for age disc rimination and breach of contract for monies owed to him under Delphi’s bonus program, not, as Joan alleged, a bonus. {¶7} Mark testified that he en tered into the agreement with Delphi on May 4, 2014. He admitted that he knew that when he was negotiating the terms of his separation agreement with Delphi that if the agreement me ntioned anything about bonuses, th at money would be subject to division under his divorce decree; th erefore, he did not want the agreement to mention bonuses. Thus, he told Delphi that the separation agr eement could not “say anything about bonuses or potential bonuses.” {¶8} Mark admitted that he did not tell anyone involved in his domestic relations case, including his own attorney, about his separation ag reement with Delphi. Ma rk testified that he agreed at the May 21, 2014 hearing that he woul d be obligated to pay Joan one-half of any

bonuses and he also knew on that date that he would be receiving an additional $160,000 lump sum payment as part of his separation with Delphi. He further admitted that he closed his Fidelity retirement account and rolled the monies over to another account on June 4, 2014, whichwas two weeks after agreeing to transfer $240,000 from the Fidelity account to Joan. It was not until November 2014 that Mark finally transf erred $240,000 from his new retirement account to Joan by QDRO. {¶9} According to the Separation and Release of Claims Agreement with Delphi Automotive, Mark separated from his employment with Delphi as of April 15, 2014. As part of the agreement Delphi was to provide him w ith: (1) $195,854 less applicable withholdings in 24 semi-monthly installments; (2) six months out placement assistance; (3 ) benefits under his Supplemental Executive Retirement Program (“SE RP”); and (4) an additional payment of $160,000 less applicable withholdings. {¶10} Mark identified an email dated April 10, 2014, that he sent to Delphi proposing changes to the separation agreement. Ma rk proposed the company pay him $165,000: $65,000 as a “DCS Cash Award” (Del phi’s Connections Cash Award s Program) and $100,000 for “bonus shortages” for years 2012, 2013, and 2014. But, he maintained, he had not negotiated a cash bonus; instead he was negotiating waiv er of his age discrimination a nd breach of contract claims. {¶11} Joan testified that she eventually received the $200,000 cash payment and the $240,000 payment via a QDRO but had yet to receive any of the $160,000 payment. {¶12} After the hearing and post-trial briefs, the magistrate issued a lengthy decision in which the magistrate granted Joan’s motion to show cause and motion for attorney fees. The magistrate determined that Joan was entitled to one-half of the $160,000 because it was a bonus and Mark’s failure to pay her wa s a violation of the parties’ divorce decree. The magistrate further found that Mark was guilty of contempt of court for improperly closing the Fidelity retirement account after executing the May 2014 AJE but before the funds were divided by a QDRO. The magistrate also awarded atto rney fees to Joan in the amount of $8,705.47.{¶13} The parties filed timely objec tions to the magistrate’s decision. The trial court overruled those objections and adopt ed the magistrate’s decision. Mark filed a timely notice of appeal. Joan filed an untimely notice of cross- appeal and this court sua sponte dismissed her cross-appeal. II. Assignment of Error {¶14} Mark lists his assignment of error as follows: The trial court abused its discretion in rewriting the contract between appellant and his former employer in a way that miscons trues the plain meaning of the contract.

The trial court abused its discretion in finding appellant in contempt where appellant did not receive any monies pur suant to the agreement of May 5, 2014 for which he should be held in contempt.

The trial court abused its discretion in awarding attorney’s fees to appellee. III. Law and Analysis {¶15} App.R. 16(A)(7) requires “[a]n argument cont aining the contentions of the appellant with respect to each assignment of error presen ted for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. * * * .” Mark’s appella te brief did not contain numbere d assignments of error and he raises only the issue of his sepa ration agreement in the body of hi s brief. He does not mention his contempt finding or challenge the payment of a ttorney fees in the body of his brief, let alone argue those issues; therefore, we will not consider those issues. {¶16} Thus, the sole issue on appeal is whether the trial court correctly determined that Joan was entitled to one-half of the $160,000 paymen t Delphi made to Mark as part of his separation agreement. Mark argues that the lu mp sum payment should not have been construed as a “bonus,” because it was in settlement of his claims ag ainst his former employer.{¶17} Our standard of review is whether the tr ial court abused its discretion in adopting the magistrate’s decision. Klayman v. Luck , 8th Dist. Cuyahoga Nos. 97074 and 97075, 2012-Ohio-3354, ¶ 11. When reviewing the propriety of a trial court’s determination in a domestic relations case, an appellate court genera lly applies an abuse of discretion standard.

Luck at id., citing Gray v. Gray , 8th Dist. Cuyahoga No. 95532, 2011-Ohio-4091, ¶ 7. An abuse of discretion implies that the court’s attitude was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶18} In the magistrate’s decision, the magistrate defined severance payments as “payment by an employer to an employee beyond his [o r her] wages on termination of his [or her] employment.” McCoy v. McCoy , 105 Ohio App.3d 651, 656, 664 N.E.2d 1012 (4th Dist.1995). The magistrate, citing Avakian v. Avakian , 11th Dist. Portage No. 2014-P-0036, 2015-Ohio-2299, ¶ 47, defined a “bonus” as a “premium paid in a ddition to what is due or expected. In the employment context, workers’ bonuses are not a gift or gratuity; th ey are paid for services or on

consideration in addition to or in excess of the compensation that would ordinarily be given.”

Avakian at id. , citing Black’s Law Dictionary 144 (7th Ed.2000). {¶19} The Ninth District Court of Appeals has defined “severance pay” as “‘an allowance [usually] based on length of service that is payable to an employee on termination of employment[.]”’ Adkins v. Adkins , 9th Dist. Summit No. 23228, 2006- Ohio-6956, ¶ 13, quoting

Merriam-Webster’s Co llegiate Dictionary 1140 (11 Ed.2005). {¶20} The Ohio Supreme Court has defined a “bonus ” as “payment for past services * * *. It does not depend upon the em ployee’s time or effort.” Kaechele v. Kaechele , 35 Ohio St.3d 93, 96, 518 N.E.2d 1197 (1988).{¶21} In Wilson v. Wilson , 9th Dist. Summit No. 24245, 2008-Ohio-6431, the husband contended a lump sum payment he received was a bonus. The tr ial court found it was severance pay. The Ninth District Court of Appeals affirmed the trial court’s finding because the lump sum payment was not based on the husba nd’s past services; rather, the lump sum was predicated on his continued service to the company by training his replacement. Therefore, the lump sum payment was directly correlated to his length of service in that he was to receive two weeks salary for each year of employment. Id. at ¶ 16. {¶22} In this case, there was evidence from which the magistrate could base his decision that the $160,000 lump sum payment was a bonus s ubject to division under the terms of the parties’ divorce decree. We are reminded that a reviewing court shall not assert its judgment over that of a trier of fact in areas of credibility and veracity of evidence and witnesses. Avakian , 11th Dist. Portage No. 2014-P-0036, 2015-Ohio-2299, at ¶ 28. {¶23} During the hearing, Mark identified the April 10, 2014 email he sent to Delphi in which he proposed changes to the separation ag reement. In that email, Mark proposed “a separation/severance payment of $165,000, less applicable holding s, no later than 45 days upon signing the release of claims * * *.” Mark explained in the email that the $165,000 “would be comprised of $65,000 of the Special DCS Cash Award and $100,000 for the shortages paid to [Mark] Heacox in 2012, 2013, and 2014 * * * .” O pposing counsel inquired whether Mark was looking for money for “past bonuses” from Del phi in the amount of $165,000. Mark answered, “Correct.” Mark also admitted he told Delphi that he did not want the separation agreement to mention “past bonuses.” {¶24} The record shows that Mark and De lphi eventually settled on $160,000. The record also reflects that the Special DCS Cash Awards Program is Delphi’s Connections CashAwards Program, i.e., the company’s bonus progra m. The magistrate, based on the record and Mark’s own testimony, coul d have found that $100,000 of th e $160,000 was for bonus shortages not paid to Mark for years 2012 – 2014, and the remaining $60,000 was for bonus money under Delphi’s bonus program. Therefore, under the facts of this case, the trial court did not abuse its discretion when it found that the $160,000 was comp rised of bonus money and bonuses from past years and subject to division under the terms a nd conditions of the parties’ divorce decree. {¶25} The sole assignment of error is overruled. Judgment affirmed. It is ordered that appellee recove r of appellant co sts herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County

Court of Common Pleas 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.

LARRY A. JONES, SR., JUDGE MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR