Saturday, March 29th, 2014
By Shelley Grieshop
Local case sets precedent for split of military pension
Ohio high court rules soldier's ex-wife gets share of retirement pay
  CELINA - A local case led the Ohio Supreme Court this week to set statewide precedent giving ex-spouses rights to military retirement benefits.
High Court justices in a ruling Wednesday voted 4-3 to allow unvested - not yet matured or distributed - military retirement benefits earned during marriage to be defined as marital property and considered for distribution in divorce proceedings.
Ohio law previously did not recognize unvested benefits as a shared marital asset.
The Supreme Court opinion overturns prior rulings in the case by the Mercer County magistrate, the local common pleas court and the Third District Court of Appeals in Lima. All three courts ruled that Christen Daniel was not entitled to the unvested benefits earned by her ex-husband, Ohio National Guard soldier Sean Daniel, during their 13-year marriage.
"I think this has far-reaching consequences," said Celina attorney Jim Tesno, who in October argued the case before the Supreme Court on behalf of Christen Daniel. "This will affect a lot of people in the future and will likely be cited quite often."
The local case will now be brought back to Mercer County - likely in the magistrate's court - to determine the benefit amount Christen Daniel will receive when, and if, Sean Daniel reaches a minimum of 20 years of service, Tesno said.   
Sean Daniel, who is represented by attorney Jeffrey Squire of St. Marys, has served in the military approximately 16 years. He and Christen Daniel were married between 1995 and 2008, court records show.
Squire did not return a phone call from the newspaper seeking a comment.
Supreme Court Justice William O'Neill in his opinion said the unvested benefits have value and should be considered marital assets subject to division, but admitted the issue is not specifically addressed by current law.
"The statute does not distinguish between vested or unvested" benefits, he wrote. "We have held that vested pension benefits are marital property ... But we have never addressed unvested benefits in this context."
Justices Paul Pfeifer, Sharon Kennedy and Judith French concurred with O'Neill's opinion.
Justice Terrence O'Donnell dissented. He noted the General Assembly's definition of marital property is all real and personal property "currently" owned by either or both parties.
"Thus, future interests in property that might possibly vest, if at all, after the termination of a marriage have not been acquired during the marriage, are not currently owned by either or both spouses, and a spouse currently has no interest in such benefits," O'Donnell said.
He said the General Assembly could someday change the definition to include unvested benefits.
"But at present, it has not done so, and this court has taken upon itself the role of legislating from the bench in its conclusion that it will order these benefits to be considered as marital property," O'Donnell wrote. "I cannot join in this action, because I believe in judicial restraint and the role of the court as being limited to interpreting the law as written by the General Assembly."
Justice Judith Ann Lanzinger also dissented and noted the case was "improvidently accepted" by the High Court.
"The majority has redefined marital property ... simply to reverse the outcome in a single case," she wrote.
She continued by saying retirement benefits that have not vested have not actually accumulated.
"They do not exist as actual benefits until they vest," Lanzinger said.
She also expressed concern that Sean Daniel's attorney chose not to file a brief or present his argument before the Supreme Court.
"This issue is too important in its ramifications to be decided with half of the argument unpresented and unheard," she wrote. "This is an example of a one-sided case potentially making bad law."
Chief Justice Maureen O'Connor concurred with Lanzinger's opinion.
Tesno told the newspaper he pursued the case all the way to the Supreme Court - despite rulings against him by three lower courts - because it was his client's wishes and he felt it was important.
"I felt very strongly about this issue," he said. "I felt I needed to pursue it as far as I possibly could."
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