[Cite as Lojek v. Lojek, 2010-Ohio-5156.]

                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                   WASHINGTON COUNTY

Wendy M. Lojek,                                   :         Case No. 10CA8

             Plaintiff-Appellant,                 :

             v.                                   :         DECISION AND
                                                            JUDGMENT ENTRY
Paul M. Lojek,                                    :

             Defendant-Appellee.                  :   File-stamped date: 9-29-10

                                            APPEARANCES:

Amy J. Weis & C. Gustav Dahlberg, Columbus, Ohio, for Appellant.

Paul G. Bertram, Marietta, Ohio, for Appellee.

Kline, J.:

{¶1}         Wendy Lojek appeals the divorce decree of the trial court. On appeal, Wendy

contends that the trial court abused its discretion by: (1) not considering all of the

relevant statutory spousal support factors; (2) determining that Wendy was guilty of

financial misconduct; (3) failing to articulate a factual basis for the amount of spousal

support; (4) failing to award spousal support for an indefinite time period; (5) failing to

consider the offset of Wendy’s Social Security benefits against her public pension; and

(6) improperly dividing Paul’s qualified pension plan.

{¶2}         Having reviewed the record, we find that there is ample evidence to support

each of the trial court’s findings of fact and that none of the trial court’s conclusions of
Washington App. No. 10CA8                                                              2

law constitute an abuse of discretion. Accordingly, we affirm the judgment of the trial

court.

                                               I.

{¶3}       Wendy and Paul married on October 13, 1984 in Grand Island, New York.

Two children were born as issue of the marriage, and both children have now reached

their majority. Both parties are in their fifties and in good health.

{¶4}       Paul works for Globe Metallurgical and makes substantially more than

Wendy. Wendy works for the Marietta Municipal Court. The couple moved to Ohio

when Globe Metallurgical closed its Niagara Falls plant, and Paul became the plant

manager of the company’s Ohio plant.

{¶5}       The trial court held a trial on November 13, 2009. On February 10, 2010, the

trial court issued a decree of divorce and a journal entry resolving the disputed issues of

the parties. Among other requests, Wendy had requested indefinite spousal support of

$2,500 a month. But the trial court ordered Paul to pay Wendy spousal support for the

next three and one half years in a total amount of $37,500 (the monthly amount of the

payment varies but it never exceeds $1,500).

{¶6}       Wendy appeals and assigns the following errors for our review: I. “The trial

court erred and abused its discretion by not considering all of the factors set forth in

[R.C. 3105.18(C)].” II. “The trial court erred and abused its discretion in determining

that Appellant was guilty of financial misconduct.” III. “The trial court erred and abused

its discretion in failing to articulate a factual basis for its award of spousal support.” IV.

“The trial court erred and abused its discretion in failing to award spousal support for an

indefinite period of time.” V. “The trial court erred and abused its discretion when it
Washington App. No. 10CA8                                                               3

failed to consider the offset of Appellant’s Social Security benefits against her public

pension in its distribution of the parties’ assets and liabilities.” And, VI. “The trial court

erred and abused its discretion by improperly dividing Appellee’s qualified pension

plan.”

                                               II.

{¶7}       On appeal, Wendy challenges both the trial court’s award of spousal support

and the trial court’s distribution of marital assets.

                                 A. R.C. 3105.18(C) Factors

{¶8}       In her first assignment of error, Wendy contends that the trial court abused its

discretion in its consideration of factors under R.C. 3105.18(C). This particular statutory

section sets out a series of factors that a court must consider when determining whether

to award spousal support.

{¶9}       “A trial court has broad discretion in establishing and modifying a spousal

support award.” Cassidy v. Cassidy, Pike App. No. 03CA721, 2005-Ohio-3199, at ¶27,

citing Schultz v. Schultz (1996), 110 Ohio App.3d 715, 724. See, also, Addington v.

Addington, Scioto App. No. 05CA3034, 2006-Ohio-4871, at ¶8. “Thus, we will not

reverse a spousal support award absent an abuse of discretion. * * * An abuse of

discretion involves more than an error of law or judgment; it connotes an attitude on the

part of the court that is unreasonable, unconscionable, or arbitrary.” Cassidy at ¶27,

citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218 (internal citation omitted).

{¶10}      In order to demonstrate an abuse of discretion, “the result must be so

palpably and grossly violative of fact or logic that it evidences not the exercise of will but

the perversity of will, not the exercise of judgment but the defiance of judgment, not the
Washington App. No. 10CA8                                                                         4

exercise of reason but instead passion or bias.” Nakoff v. Fairview Gen. Hosp., 75 Ohio

St.3d 254, 256, 1996-Ohio-159.

{¶11}       In part, R.C. 3105.18(C) requires a trial court to consider the following factors

when determining spousal support: “(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; * * * (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; (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

professional degree of the other party; * * * (l) The tax consequences, for each party, of

an award of spousal support; (m) The lost income production capacity of either party

that resulted from that party’s marital responsibilities; (n) Any other factor that the court

expressly finds to be relevant and equitable.” Wendy contends that the trial court erred

in its consideration of several of these factors.

{¶12}       Wendy first contends that the trial court erred when it failed to correctly

determine Paul’s income at $104,460. The trial court found that Paul’s income was

$87,0501 “as of October 30, 2009[.]” The testimony Wendy relies on to refute this

1
  We note that the sole difference between Wendy’s income figure and the income figure stated by the
court is the number of months. Wendy’s figure computes to a monthly income of $8,705. This number,
times ten, is precisely the amount that the trial court attributed to Paul for income through October, the
tenth month of the year. Furthermore, the trial court was clearly cognizant of the fact that Paul could have
Washington App. No. 10CA8                                                                        5

conclusion is a specific reference to Paul’s yearly salary for 2009. Paul testified that his

gross salary for 2009 included profit sharing and performance bonuses. The

performance bonus alone was $20,000, and Paul testified that in all of the years he

worked for the company this is the only one in which he received a performance bonus.

Trial Transcript at 108-110. The trial court calculated Paul’s income by subtracting the

performance and profit sharing bonuses from his year to date income as of October 30,

2009. The trial court in its findings of fact clearly understood that the $87,050 figure

only included income from the first ten months of the year.

{¶13}       We cannot agree that the trial court abused its discretion by not including the

bonuses in Paul’s income. The trial court may have reasonably concluded that it could

not have any confidence that Paul would receive those bonuses in subsequent years.

We also cannot agree that the trial court abused its discretion in calculating Paul’s

income for only the first ten months of the year. The trial court’s findings indicate that

the court clearly understood this figure represented Paul’s income for only a portion of

the year. This statutory factor requires the trial court to consider income, but places no

requirement on the court to consider the income from a particular time frame. While

calculating a party’s income for only ten months is unusual, that alone does not

constitute an abuse of discretion.

{¶14}       Wendy next contends the trial court erred in considering the standard of living

established during the marriage. Wendy claims the trial court erred by determining that

the standard of living that the parties established during the marriage depended on

over-spending. Paul testified that Wendy handled all of the finances and incurred

paid more than he did in spousal support because Paul in fact offered to pay more than the trial court
awarded. The trial court clearly did not award more spousal support for reasons other than Paul’s ability
to pay.
Washington App. No. 10CA8                                                           6

substantial charges on the credit cards. Trial Transcript at 94; Paul’s Exhibit 3. Paul

further testified that, several times, he took out a home mortgage, borrowed money

against his 401K, and cashed out his life insurance policy in order to pay credit card

bills. Trial Transcript at 89-96. At trial, Wendy’s counsel made the point several times

that Paul did not claim the expenses were frivolous, but rather the fact that those

expenses were put on a credit card. Trial Transcript at 129, 137-42. Even accepting

that these expenses were not frivolous, nonetheless the trial court may have reasonably

concluded that the parties were living beyond their means. For instance, clothing is a

necessity, but an individual who purchases excessive, or excessively expensive,

clothing is living beyond his or her means.

{¶15}     Wendy next contends that the trial court abused its discretion in determining

the relative assets and liabilities of the parties. Wendy contends the trial court erred in

relying on Paul’s proposed findings of fact to determine that Paul should be credited for

$597.17 for the purchase of tires. The finding reads as follows: “After the divorce,

[Wendy] complained to [Paul] that she needed new tires for her vehicle. The parties

acknowledged that $597.17 still remained in Attorney Buell’s trust account, wherein

[Paul] authorized Attorney Buell to release the money to [Wendy] so that she could

obtain new tires for the truck. The parties agreed that the $597.17 would be offset to

[Paul] in the final disposition.” (Emphasis in original). In other words, Paul

represented that the parties had stipulated to the offset. On appeal, Wendy contends

that the trial court erred because the expense accrued after the divorce and does not

rely on facts in evidence. Wendy does not appear to contest the veracity of the claim by

Paul that the parties had reached an agreement on the $597.17. Absent an attack on
Washington App. No. 10CA8                                                             7

the veracity of the stipulation, we cannot find that the trial court abused its discretion in

relying on the representation of an attorney that the parties had stipulated to a particular

fact.

{¶16}      Wendy also contends that the trial court abused its discretion when it

determined that the house was worth $239,000 rather than the appraisal of $249,000.

But the parties agreed that there was a contingent sale pending for $239,000. Trial

Transcript at 149. The house was therefore subject to a contract for sale at $239,000,

and we cannot say the trial court abused its discretion in determining that the value of

the house was equal to the price of the contract for sale. The fact that the contract was

a contingent contract, unlikely to actually be performed, does not alter this conclusion.

The trial court could nonetheless rely on the contract price to provide a value for the

residence.

{¶17}      Wendy cites a portion of the transcript for the proposition that the parties had

stipulated as to the value of the house. But this passage does not establish that the

parties stipulated to $249,000 as the value of the house. Instead, it establishes that the

parties merely agreed the house had been appraised for that sum.

{¶18}      “[Wendy’s Counsel:]                 Your Honor, one - - one correction. On the

schedule of assets, we list the real estate at 239. That’s the contract price. The - -

actual appraisal, done May 28th, that the parties had done, appraised the property at

249. So.

{¶19}      “[Paul’s Counsel:]                  Yeah, and so the Court - -

{¶20}      “[Wendy’s Counsel:]                 Just so the Court’s aware of that.
Washington App. No. 10CA8                                                                8

{¶21}      “[Paul’s Counsel:]                   Yeah, so the Court’s aware of it, because -

- and I think [Wendy’s Counsel] and I both agree, that the market ultimately demands

what the true appraisal would be of that, even though the appraisal was done by Ty

Davis and we give it as an appraisal and I will provide it to the Court, that was the only

offer that they had.

{¶22}      “THE COURT:                          And they were willing to accept that, so - -

{¶23}      “[Wendy’s Counsel:]                  Yeah. Yeah.

{¶24}      “[Paul’s Counsel:]                   Yeah, they were willing to accept that.

{¶25}      “THE COURT:                          - - what a willing - - sell to willing buyer is

your fair market value.

{¶26}      “[Paul’s Counsel:]                   Correct.

{¶27}      “[Wendy’s Counsel:]                  That’s exactly right.” Trial Transcript at 21-

22.

{¶28}      The gist of the foregoing passage is that the parties agreed the appraisal was

for $249,000, but that the contract for sale was for $239,000. To the extent the parties

stipulated that the market value of the marital residence should be equal to what a

willing buyer would pay, the trial court did not abuse its discretion in relying on the

contingent contract price to value the marital residence.

{¶29}      Wendy next claims the trial court also erred in determining the relative assets

and liabilities of the parties because the “trial court also failed to consider the fact that

although the marital portion of the parties’ retirement accounts were to be equally

divided, [Paul] was retaining a significant separate interest in the same which were not

being divided equitably between the parties.” Wendy’s Brief at 8. The portion of the
Washington App. No. 10CA8                                                          9

transcript that Wendy cites for this proposition consists of an imprecise description of

premarital assets. She provides no particular argument explaining precisely how these

premarital assets should have changed the outcome of the case. Nor does Wendy

present any precise accounting of what these premarital assets consist of. Rather the

cited portion of the transcript reads as follows:

{¶30}      “Q. You’ve seen the retirement figures and values for your husband’s

retirement package?

{¶31}      “A. Yes.

{¶32}      “Q. He has substantially more earnings than you. You -- you understand he’s

going to accumulate even better retirement benefits, versus what you’re accumulating?

{¶33}      “A. Yes, I do.

{¶34}      “Q. He also has some premarital aspect to his [retirement benefits], that he’s

keeping?

{¶35}      “A. Yes.

{¶36}      “Q. I mean, he worked for this company a little -- or, Social Security system a

little before that?

{¶37}      “A. Yes.

{¶38}      “Q. You feel you need to put a little money aside to supplement your – your

[Ohio public employee retirement system benefits] and whatever portion of his you’re

going to get?

{¶39}      “A. Yes, I do.” Trial Transcript at 48.

{¶40}      Absent an explanation for why premarital assets would significantly change

the outcome of a case, we cannot find an abuse of discretion. It is possible that the
Washington App. No. 10CA8                                                           10

record somewhere contains a detailed explanation of these premarital assets. But “‘[i]f

an argument exists that can support this assignment of error, it is not this court’s duty to

root it out.’” State v. Hurst, Washington App. No. 08CA43, 2009-Ohio-3127, at ¶49,

quoting State v. Carman, Cuyahoga App. No. 90512, 2008-Ohio-4368, at ¶31; City of

Whitehall v. Ruckman, Franklin App. No. 07AP-445, 2007-Ohio-6780, at ¶20. We note

that, based on her brief, Wendy does not dispute that these assets are premarital.

Instead, she merely contends that the trial court should have considered these

premarital assets when awarding spousal support. The trial court clearly understood

that Paul had the income and assets to pay more in spousal support than the court’s

order required. Again, it is clear that the trial court’s decision not to award more in

spousal support was not based on Paul’s ability to pay.

{¶41}     Wendy next claims that the trial court erred by not considering her

contribution to the earning ability of Paul. When the couple lived in New York, Wendy

states that she took a part time job in order to stay home and help raise their daughters.

Because of this, Wendy believes she was laid off when she might not have been if she

had been a full time worker.

{¶42}     Even granting this, Wendy likely would have lost that job when the family

moved to Ohio. And her present income is greater than the income she had when she

was working in New York as a teaching assistant. Trial Transcript at 28-30, 32. The

record does not establish how much Wendy earned at the job she was laid off from in

New York. Wendy and Paul have high school educations. The trial court may have

reasonably concluded that Wendy’s work at home did facilitate Paul’s career, but

Wendy’s earning potential had not been significantly altered. In addition, the trial court
Washington App. No. 10CA8                                                          11

may have discounted Wendy’s speculation that had she been working full time in New

York, she would not have been laid off. In any event, we cannot find that the trial court

abused its discretion in discounting this factor.

{¶43}     Finally, the trial court found as a factor that Wendy had “a severe spending

problem and cannot manage money, nor credit[.]” Wendy appeals this determination

and contends that the record demonstrates that the expenditures were necessary

marital expenses. But the record contains ample evidence that Wendy controlled the

couple’s finances, that the couple lived beyond their means, that Wendy used

unsecured credit card debt inappropriately, and that the amount of credit card debt

required the couple to liquidate assets several times in order to pay off the debt. Given

this evidence in the record, we cannot say that the trial court abused its discretion in

determining that Wendy had a habit of over-spending.

{¶44}     Thus, we reject each of Wendy’s arguments raised under this assignment of

error. Accordingly, we overrule Wendy’s first assignment of error.

                                  B. Financial Misconduct

{¶45}     Wendy, in her second assignment of error, claims that the trial court erred

and abused its discretion by determining that she had committed financial misconduct.

Wendy first contends that the trial court erred because financial misconduct is not a

permissible factor to consider under R.C. 3105.18(C). Among other factors, R.C.

3105.18(C)(1)(n) authorizes the court to consider “[a]ny other factor that the court

expressly finds to be relevant and equitable.” Wendy does cite a case in which the Fifth

District Court of Appeals concluded that determinations of financial misconduct “should

have been addressed and/or assigned when determining the issue of unequal
Washington App. No. 10CA8                                                            12

distribution of marital assets, not spousal support[.]” Ebner v. Ebner, Stark App. Nos.

2007CA00318 & 2007CA00346, 2008-Ohio-5335, at ¶49.

{¶46}     The Ebner court provides scant justification for its conclusion, but the

argument apparently is that financial misconduct is an express factor when considering

the division of marital property. R.C. 3105.171(E)(3). The legislature included no such

factor in the lengthy list of factors a trial court is required to consider when deciding

whether to award spousal support. R.C. 3105.18(C). The inference is that the

legislature intended to omit the factor from consideration when awarding spousal

support. This is so because the legislature expressly included financial misconduct

under the section regulating the division of marital assets but not under the section

regulating spousal support.

{¶47}     We are not persuaded. The legislature intentionally wrote a broad

discretionary grant for the trial court to consider any factor that the trial court considered

relevant. R.C. 3105.18(C)(1)(n). Simply because the legislature referred to the factor

expressly elsewhere in the code does not justify the inference that the legislature must

expressly refer to financial misconduct here to enable the trial court to consider it. Thus,

we hold that a trial court may consider financial misconduct under R.C. 3105.18(C).

See Tyree v. Tyree, Licking App. No. 03 CA 89, 2004-Ohio-3967, at ¶34; see, also,

Kennedy v. Kennedy, Columbiana App. No. 2002 CO 09, 2003-Ohio-495, at ¶38, citing

Winston v. Winston (Nov. 16, 2000), Stark App. No. 1999CA00313.

{¶48}     The trial court apparently concluded that Wendy had engaged in financial

misconduct as defined under R.C. 3105.18(C). The trial court also noted that Paul did

not request an unequal award under that section. Finally, the trial court considered this
Washington App. No. 10CA8                                                           13

issue as it decided how much spousal support to award. We cannot say that the trial

court abused its discretion in considering this factor, along with the other factors under

R.C. 3105.18(C), in setting the amount of spousal support.

{¶49}      Wendy also contends that the evidence does not support a finding of financial

misconduct. Financial misconduct includes, “but [is] not limited to, the dissipation,

destruction, concealment, or fraudulent disposition of assets[.]” R.C. 3105.171(E)(3).

The trial court found the following in regard to the credit card debt: “Throughout the

marriage [Wendy] incurred large sums of debt on credit cards. Some of the

expenditures were for necessities and many were not. She makes the minimum

monthly payment and does not pay the balance due. She has given no explanation of

how she spent her cash surplus.” Trial Court’s Findings at 5. In other words, the trial

court found that Wendy failed to account for substantial sums of money.

{¶50}      Wendy argues that, at most, this constitutes evidence of excessive spending,

and excessive spending alone does not constitute financial misconduct. At trial, Paul

testified as follows:

{¶51}      “Q. Were you under impression with her income at Marietta Municipal Court,

your income at Globe, that the balances were zero – should have been zeros every

month.

{¶52}      “A. A lot less than what they were. I – between zero and a thousand dollars,

is what I was expecting.” Trial Transcript at 95.

{¶53}      In other words, Paul testified that that their income was sufficient to pay off

the credit card bills, but that Wendy failed to do so. Neither party established what the

actual income was spent on. The trial court was therefore entitled to conclude that
Washington App. No. 10CA8                                                             14

Wendy failed to account for the money that the couple had earned through their

salaries. This is sufficient evidence to support the trial court’s finding of financial

misconduct.

{¶54}      Accordingly, we overrule Wendy’s second assignment of error.

                            C. The Amount of Spousal Support

{¶55}      In her third assignment of error, Wendy contends that the trial court erred and

abused its discretion in failing to articulate the basis of the spousal support award.

Wendy notes that the award is less than the total amount Paul was willing to pay (Paul

proposed $1,000 a month for 60 months). Wendy also calculates that based on her

post divorce budget, she would have annual expenses totaling more than $40,000 with

an annual income of only $22,006 after taxes. This leaves a disparity of more than

$18,000 between her income and expenses, per her calculation. The trial court ordered

spousal support payable as follows: “$1,500 per month for 6 months following the final

entry, followed by 6 months at $1,250, followed by 6 months at $1,000 per month

followed by 12 months at $750 per month, followed by 12 months at $500 per month.”

Wendy calculates that she would only receive $16,500 of taxable spousal support for

the first year and $10,500 of taxable spousal support for the second year.

{¶56}      But as Wendy notes, the trial court clearly believed that some of her

expenses were exaggerated or extravagant. In particular, the trial court found that the

following expenses should either be lowered or omitted: gasoline ($200), entertainment

($150), groceries ($500), cigarettes ($150), her daughter’s car payment ($300), and her

daughter’s student loans ($101).
Washington App. No. 10CA8                                                        15

{¶57}     The trial court may have determined the decreasing payments were

necessary either because Wendy, in setting up her own household, would have higher

expenses for the immediate future that would gradually decrease, or because the trial

court wanted to set up a system of payments that gradually decreased to compel

Wendy to live within her means. In either case, we find no abuse of discretion here.

{¶58}     Accordingly, we overrule Wendy’s third assignment of error.

                              D. Length of Spousal Support

{¶59}     Wendy next claims that the trial court abused its discretion by failing to award

spousal support for an indefinite time period.

{¶60}     Wendy’s brief begins this assignment of error with an extended discussion of

whether the trial court chose the correct date for the end of the parties’ marriage. The

court chose June 5, 2009. The relevance of this argument to the assignment of error is

never explained. Regardless of which date was the correct end date for the marriage,

the marriage lasted for more than twenty years and was unquestionably a marriage of

long duration.

{¶61}     “The modern trend favors terminating alimony on a date certain. The reason

for awarding sustenance alimony payable only to a date certain is that the payee’s need

requiring support ceases, when, under reasonable circumstances, the payee can

become self-supporting.” Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 69. “[E]xcept in

cases involving a marriage of long duration, parties of advanced age or a homemaker-

spouse with little opportunity to develop meaningful employment outside the home,

where a payee spouse has the resources, ability and potential to be self-supporting, an
Washington App. No. 10CA8                                                        16

award of sustenance alimony should provide for the termination of the award, within a

reasonable time and upon a date certain[.]” Id.

{¶62}     This marriage was unquestionably one of long duration (approximately twenty

four and one half years by the trial court’s count) and as such arguably the standard

presumption against indefinite awards of spousal support is inapplicable. See

Handschumaker v. Handschumaker, Washington App. No. 08CA19, 2009-Ohio-2239, at

¶21 (indicating that marriages over twenty years of duration are sufficient to support an

award of spousal support for an indefinite duration). But “Kunkle does not stand for the

proposition that permanent spousal support is mandated in marriages of long duration.”

Batten v. Batten, Fairfield App. No. 09-CA-33, 2010-Ohio-1912, at ¶70 (internal citations

omitted); Bello v. Bello, Delaware App. No. 09CAF040041, 2009-Ohio-5982, at ¶42;

Lewis v. Lewis, Jefferson App. Nos. 06 JE 49 & 07 JE 27, 2008-Ohio-3342, at ¶100;

Manos v. Manos, Summit App. No. 24717, 2010-Ohio-1178, at ¶28, citing Geschke v.

Geschke, Medina App. Nos. 3266-M & 3268-M, 2002-Ohio-5426, at ¶19. See, also,

Lepowsky v. Lepowsky, Columbiana App. No. 06 CO 23, 2007-Ohio-4994, at ¶81

(indicating that, even in a marriage of long duration, if the “the payee spouse has the

ability to work outside the home and be self-supporting, a spousal support award should

include a termination date.”).

{¶63}     Wendy works full time and evidently the trial court determined that she could

become self-sustaining on her annual salary of $28,000. We do not find this to be an

abuse of discretion. Wendy notes that there will be a several year gap in between the

cessation of spousal support and the beginning of any retirement benefits. We do not
Washington App. No. 10CA8                                                           17

find that this alone constitutes an abuse of discretion where the payee spouse is fully

employed.

{¶64}     Wendy argues that “[t]his Court has previously held that in such cases, it is

reasonable and appropriate to make an award of spousal support for an indefinite

period. * * * As such, it is inappropriate to limit the award of spousal support in this case

to only three and a half years.” Wendy’s Brief at 17. We cannot agree. Trial courts are

vested with broad discretion to consider these issues. Discretion implies that the trial

court has a range of choices. Simply because the trial court was empowered to impose

an indefinite award of spousal support, it does not follow that failure to do so is an

abuse of discretion.

{¶65}     Accordingly, we overrule Wendy’s fourth assignment of error.

                                  E. Retirement Accounts

{¶66}     Next, Wendy claims that the trial court abused its discretion when it failed to

“properly offset [Wendy’s] public pension against her Social Security benefits[.]”

Wendy’s Brief at 20. Specifically, Wendy claims that the trial court should have

“compute[d] the present value of a Social Security benefit had the [public plan]

participant been participating in the Social Security system. This present value should

then be deducted from the present value of the [public pension] at which time a figure

for the marital portion of the pension could be derived and included in the marital estate

for distribution purposes.” Hurte v. Hurte, 164 Ohio App.3d 446, 2005-Ohio-5967, at

¶15, quoting Neel v. Neel (1996), 113 Ohio App.3d 24, 30 (other citations omitted).

{¶67}     Unlike her previous assignments of error, Wendy here challenges the trial

court’s distribution of marital assets. “A Court of Common Pleas has broad discretion to
Washington App. No. 10CA8                                                              18

determine what property division is equitable in a divorce proceeding. The mere fact

that a property division is unequal, does not, standing alone, amount to an abuse of

discretion.” Cherry v. Cherry (1981), 66 Ohio St.2d 348, at paragraph two of the

syllabus.

{¶68}       The trial court relied on the stipulated valuations of the parties. See Wendy’s

Brief at 18; Joint Exhibits 1 & 2. Perhaps Wendy’s retirement benefits would be more

correctly valued with the method laid out in Hurte. Nonetheless, we cannot agree that a

trial court abuses its discretion when it relies on a stipulation of the parties for its

valuation of marital assets. See Snyder v. Snyder, Union App. No. 14-06-52, 2007-

Ohio-2676, at ¶4 (indicating that a trial court may abuse its discretion where it fails to

accept a stipulation).

{¶69}       Accordingly, we overrule Wendy’s fifth assignment of error.

                         F. Division of Paul’s Qualified Pension Plan

{¶70}       In her final assignment of error, Wendy contends that the trial court erred by

indicating that Wendy was to receive 50% of the value of Paul’s interest in the Globe

Metallurgical pension plan. The basis of her argument is that the trial court should have

divided “the retirement plan via a qualified domestic relations order that deferred the

actual division until the participant spouse begins collecting on the pension[.]” Wendy’s

Brief at 21. But the docket reflects that the trial court issued a qualified domestic

relations order, and Wendy states in her brief “one [qualified domestic relations order]

has been issued to divide this benefit, the Plan Administrator has rejected the same,

and the parties are presently working * * * to issue a corrected [qualified domestic

relations order] that accurately divides this account. Appellant includes the instant
Washington App. No. 10CA8                                                         19

assignment of error only to preserve the record herein.” Wendy’s Brief at 21. All

parties, including the lower court, appear to agree that the issuance of the requested

qualified domestic relations order is appropriate under the trial court’s final order. We

note that this issue does not prevent the present order from being a final appealable

order. Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, at syllabus. We find that

this assignment of error is moot, and we decline to address it. App.R. 12(A)(1)(c).

{¶71}     Accordingly, we overrule Wendy’s sixth assignment of error.

                                            III.

{¶72}     Having overruled each of Wendy’s assignments of error, we affirm the

judgment of the Washington County Common Pleas Court.

                                                                 JUDGMENT AFFIRMED.
Washington App. No. 10CA8                                                           20

                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED and appellant pay the 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

Washington County Court of Common Pleas 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. Exceptions.

       Abele, J.: Concurs in Judgment and Opinion
       Harsha, J.: Concurs in Judgment Only.

                                          For the Court

                                          BY:
                                                Roger L. Kline, Judge

                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.


180 Wis.2d 254 (1993)
509 N.W.2d 323
OLD TUCKAWAY ASSOCIATES LIMITED PARTNERSHIP and Affiliated Capital Corp., Plaintiffs-Appellants,
v.
The CITY OF GREENFIELD, WISCONSIN, Defendant-Respondent.
OLD TUCKAWAY ASSOCIATES LIMITED PARTNERSHIP and Affiliated Capital Corp., Plaintiffs-Appellants,
v.
THE CITY OF GREENFIELD BOARD OF APPEALS, Defendant-Respondent.
No. 92-1162.
Court of Appeals of Wisconsin.
Submitted on briefs March 3, 1993.
Decided November 16, 1993.
*260 For the plaintiffs-appellants the cause was submitted on the briefs of Foley & Lardner by Michael A. Bowen and Kurt S. Meckstroth, of Milwaukee.
For the defendants-respondents the cause was submitted on the briefs of Michael, Best & Friedrich by John A. Busch and Charles P. Graupner, of Milwaukee and Roger C. Pyzyk, of West Allis.
Before Wedemeyer, P.J., Sullivan and Schudson, JJ.
WEDEMEYER, P.J.
Old Tuckaway Associates, a limited partnership, and Affiliated Capital Corp. (collectively, Tuckaway), appeal from a final judgment *261 entered in favor of the City of Greenfield (City) and the City of Greenfield Board of Zoning Appeals.
Tuckaway presents the following issues for review: (1) whether the trial court, in its court-trial decision, erred in denying Tuckaway's claims that the City's actions, overall, deprived Tuckaway of property and liberty without due process of law; (2) whether the trial court, following a certiorari review, erred in concluding that the Board of Zoning Appeals properly denied Tuckaway's appeal from the City's rejection of a petition for an amended Planned Unit Development (PUD); and (3) whether the trial court, in its summary judgment determinations, erred in granting judgment in favor of the City on Tuckaway's claims for inverse condemnation, breach of contract and tortious interference with a contract. We affirm.

I. BACKGROUND
This action arises out of a land use regulation dispute. In 1967, the management of the Tuckaway Country Club golf course decided to relocate the golf course from Greenfield to Franklin. In an effort to defray the costs of the new facility in Franklin, the Country Club sold the newly vacant land in Greenfield to a group of investors known as Tuckaway Club Enterprises. Shortly thereafter, Tuckaway Club Enterprises and the City of Greenfield executed a Declaration of Restrictions (Declaration) pursuant to which various zoning, density and use limitations were placed on the property. The Declaration effectively established a *262 Planned Unit Development (PUD)[1] that permitted the flexible development of the former golf course land.
*263 Over the years, Tuckaway Club Enterprises selectively developed portions of the land that had once been the golf course. By 1987, only thirty-two acres of the property remained undeveloped. Tuckaway, the plaintiffs in the present action, expressed interest in purchasing these thirty-two acres from Tuckaway Club Enterprises for development purposes. Land use restrictions applying to portions of the thirty-two-acre tract by virtue of the 1967 Declaration, however, made development unattractive.[2] Thus, Tuckaway's eventual agreement to purchase the property was contingent on the ability of Tuckaway Club Enterprises to persuade the City to amend the Declaration to a more amenable classification, i.e., a classification *264 that allowed a reasonable density of units per acre throughout the entire tract of land.
On November 6, 1987, following discussions with surrounding neighbors concerning the flow of vehicular traffic, Tuckaway agreed to construct a new road on the property in an attempt to alleviate residents' concerns. Following this offer, the City executed an Amendment to the Declaration of Restrictions (Amendment). The Amendment provided, in part, that the thirty-two-acre parcel would be zoned PUD with residential uses and that the density of dwelling units on the property could not exceed seventeen units per acre. The Amendment further provided that it "is complimentary to the Planned Development Ordinance of the City and that the development hereinabove described is subject to the ordinance." After the Amendment was recorded, Tuckaway completed the purchase of the thirty-two-acre tract from Tuckaway Club Enterprises.
In 1989, Tuckaway decided to sell approximately five acres of the property rather than develop it themselves. Consequently, on July 12, 1989, Tuckaway executed an Offer to Purchase with David Morgenson, a private developer, for approximately five acres of the thirty-two-acre tract. Morgenson intended to develop the five-acre tract with residential dwellings. The Offer to Purchase was subject to the following condition:
This Offer is contingent upon the Buyer obtaining the necessary zoning and building permits from the City of Greenfield and the State of Wisconsin and all other governmental regulatory agencies having jurisdiction to permit the construction of at least 83 residential rental units acceptable to Buyer in at least 2-3 separate residential buildings with separate tax bills on these parcels within 90 days from *265 August 15, 1989 or this Offer will be deemed null and void.
Subsequently, Morgenson and his associate in development, Joseph Gallina, prepared plans for the construction of eight ten-unit buildings (the "Project"). On October 10, 1989, Gallina petitioned the Planning Commission for approval of the Project. Concerned citizens at the meeting expressed objections to the Project, particularly because of the density of the Project and the developer's intention to rent a portion of the units. The meeting was adjourned without Project approval.
Over the next four months, Gallina appeared before the Planning Commission on several occasions. At each of these meetings, the issue of density and/or rentals was of great concern to the neighbors surrounding the proposed development. In response to the issue of density, the City obtained two legal opinions which concluded that the proposed density did not violate any City ordinances. The City also received an opinion from its attorney that once the Project was completed, the City would have no legal authority to prevent the owners from renting the units.
On January 30, 1990, the Planning Commission considered Gallina's petition for an amendment to the Declaration. After listening to the legal opinions concerning density, and following some discussion by Alderman Snyder regarding a discrepancy in the way the "mean density" figure was calculated, the Planning Commission, on a motion by Alderman Waite, recommended that the Common Council reject Gallina's petition for an amendment. The motion carried by a four-to-one vote.
On February 13, 1990, the Planning Commission voted to reconsider its January 30 action. Alderman Waite noted that his motion of January 30 was improperly *266 based upon density and mean number. He further stated that his true intent was that the amendment should be denied based on the fact that it was a major change to the existing PUD. Alderman Waite then presented a motion that the Common Council deny "the request to amend the Tuckaway Plan Unit Development Agreement for the Oaks of Tuckaway . . . on the grounds that this is a major change to the Plan Unit Development and as a major change to a PUD would require a public hearing." On a roll call vote, the motion carried unanimously.[3]
The Project was again the subject of debate at a March 27, 1990, Planning Commission meeting. During this meeting, the city engineer brought up nine points that, because of the intense consideration of the density and rental issues, had not been adequately addressed. Principal among these points was the need to present revised plans that would bring the proposed *267 buildings into conformity with the City's height requirements. The Commission asked the developers to submit a formal response to the city engineer's points.
Ten months later, on January 29, 1991, Tuckaway submitted plans addressing the nine technical concerns raised by the city engineer. On February 12, 1991, the Commission voted to forward the petition to the Common Council with no recommendationother than a recommendation to conduct a public hearing.
The Common Council held public hearings on April 3 and April 8, 1991. At the April 8 meeting, the Council voted unanimously to reject the project on grounds of aesthetic compatibility and economic feasibility.
Tuckaway appealed the adverse decision of the Common Council to the City's Board of Zoning Appeals. On June 27, 1991, after oral and written submissions by both Tuckaway and the City, the Board unanimously upheld the determinations of the Common Council.
From this procedural history arose two separate causes of action. First, in August of 1990, Tuckaway filed a lawsuit against the City alleging that, rather than reject the Project on grounds that would not stand up to judicial scrutiny, the City was trying to thwart the Project by evading any decision at all. Consequently, Tuckaway's complaint alleged that the City's delay in rendering a decision violated its rights to due process. Second, following the Board of Zoning Appeals' decision to uphold the ruling of the Common Council denying approval of the Project, Tuckaway sought certiorari review of the decision. The trial court consolidated the two cases. The due process claim was tried to the court on November 13 and 14, 1991. The *268 trial court ruled that Tuckaway had not met its burden on the due process claim. The trial court also concluded that the Board of Zoning Appeals had acted within its discretion in denying approval for the Project. Tuckaway now appeals.

II. DUE PROCESS CLAIM
Tuckaway first argues that the trial court erred in concluding that the City did not deprive Tuckaway of property and liberty without due process of law. This claim is based on what Tuckaway characterizes as the City's deliberate refusal to timely and meaningfully consider the petition for approval of the Project.
Initially, the City moved for summary judgment on the due process issue. Following argument by counsel, the trial court stated:
The one thing that really has made me think and there really isn't a lot of case law on this but it is certainly going to justify Mr. Bowen to stay here for awhile and that is this constitutional denial of due process and the manner in which the plan commission was delaying consideration of this project and the history that was related by Mr. Bowen in his brief about what took place on the different meetings of this plan commission over a long period of time.
Consequently, the trial court ordered that "[t]he defendant's motion for Summary Judgment on the First Claim (Denial of Due Process) is denied insofar as the claim seeks remedy for an alleged denial of due process from the defendant's delay in reaching a decision on plaintiff's petition for development."
*269 The matter then proceeded to trial by the court as a tort of intentional denial of procedural due process.[4]*270 After hearing evidence for two days, the trial court, in a written "Decision and Order," denied Tuckaway's due process claim stating:
The gravamen of procedural due process is notice and an opportunity to be heard with protections afforded based on the demands of the situation involved. Since it must of necessity be an intentional tort, Tuckaway must so prove by evidence that is clear, satisfactory and convincing.
Herein, plaintiffs have not even met the ordinary civil burden let alone the so-called middle burden. Can anyone seriously argue that plaintiffs [through Gallina] were not afforded the opportunity to be heard. Numerous meetings with technical people and Plan Commission members were held with full discussion of the facts, merits and objectives of the project. In addition there were public hearings held whereat [sic] Gallina explained the project.
Plaintiffs [and Gallina] are obviously disappointed and disgruntled at how they were "horsed around" for a lengthy period of time prior to rejection but they did have every opportunity to be heard. Whatever possible tort that exists for denial of due process fails for almost total lack of proof.
. . . .
Tuckaway claims it took 18 months from the time of the first pre-petition conference until eventual rejection in early April 1991 whereas the average PUD processing period usually took six months.
While factually correct ten of those eighteen months are attributable to Gallina's foot-dragging in presenting revised plans necessitated by his buildings exceeding the city's height ceilings.
*271 Whether Gallina's reluctance to proceed was justified or not, the fact is most of the processing delay is attributable to plaintiffs and not the city.
[1]
The United States Supreme Court has noted the following regarding the Due Process Clause: "As our decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged." Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982). One specific implication of this rule is that " [u]nreasonable administrative delay can deprive a party of property without due process." Chicago & N. W. R.R. v. LIRC, 91 Wis. 2d 462, 480, 283 N.W.2d 603, 612 (Ct. App. 1979), aff'd, 98 Wis. 2d 592, 297 N.W.2d 819 (1980). Further, a governmental action that is arbitrary, irrational or tainted by improper motive violates an individual's right to due process. Bello v. Walker, 840 F.2d 1124, 1129 (3rd Cir.), cert. denied, 488 U.S. 868 (1988). In conjunction with these statements of law, we are guided by the rule that on review, findings of fact made by the trial court will not be set aside unless clearly erroneous. See sec. 805.17(2), Stats.
Our review of the record reveals that the trial court's findings of fact in regard to Tuckaway's due process claim were not clearly erroneous. First, there is ample proof that Gallina did indeed cause a substantial portion of the delay in the petition process. Gallina admitted that he had "dragged his heels" in attempting to obtain approval for the Project. He also stated that "the fact that it took until February 1991 to submit this [a response to the city engineer's nine points of contention] was solely and exclusively at my feet." Further, the trial court found that Tuckaway's threats of litigation also resulted in some delay: "These threats *272 stiffened the City's resolve and also made it more responsible to see that proper legalities were observed." This finding is also amply supported. As noted by Alderman Waite in describing his motivation for resubmitting the issue to the Planning Commission, "Mr. Loeb [a partner in Tuckaway] threatened that you guys are going to get the [expletive] sued out of you."
Additionally, as noted by the trial court: "Numerous meetings with technical people and Plan Commission members were held with full discussion of the facts, merits and objectives of the project. In addition there were public hearings held whereat [sic] Gallina explained the project." The bottom line is that the administrative delay was not unreasonable.
[2]
Given these facts, we conclude that Tuckaway was afforded ample opportunity to be meaningfully heard concerning the petition for Project approval. The record supports the trial court's determination that the City did not orchestrate procedural irregularities in an effort to avoid meaningful consideration of the Project. On the contrary, the City simply proceeded cautiously in an effort to obtain a result that it believed was both correct and legally sound in light of the concerns raised by those involved in the process. Accordingly, we affirm the trial court decision that Tuckaway failed to meet its burden of proof concerning a claim for the intentional denial of due process and, therefore, the trial court committed no error in denying the claim.[5]

*273 III. CERTIORARI PROCEEDING
Tuckaway's next claim concerns the Board of Zoning Appeals' affirmance of the Common Council's decision to reject approval for the Project. On certiorari, the trial court upheld the decision of both the Council and Board. Tuckaway takes issue with the manner in which the Council and Board proceeded. Tuckaway asserts: (1) the Board and the Council proceeded under an incorrect theory of law; (2) the record provides no reasonable basis for rejecting the Project on aesthetic or economic feasibility grounds; and (3) the Board's decision was not supported by factual findings or rationally expressed.
[3]
Our consideration of these assertions is guided by Ledger v. Waupaca Board of Appeals, 146 Wis. 2d 256, 261, 430 N.W.2d 370, 371-72 (Ct. App. 1988), where we stated:
Certiorari proceedings are limited to the record made before the administrative body and are quite narrow in scope. The reviewing court is limited to determining four issues: (1) whether the board acted within its jurisdiction and authority; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive or unreasonable; and (4) whether the evidence was such that the board might reasonably make the determination it did.
A. Theory of Law
Tuckaway first argues that the Council and Board of Zoning Appeals proceeded under an incorrect theory of law because they applied criteria pertinent to a proposed new PUD instead of those pertinent to a *274 proposed amendment to an existing PUD. Tuckaway argues: (1) the criteria to be applied to review of a proposed change to an approved PUD are found in sec. 21.47(7)(d) of the zoning code; (2) aesthetics and economic feasibility are not listed as review criteria in this subparagraph; and (3) therefore, when the Common Council utilized aesthetics and economic feasibility as bases for denial, it applied irrelevant criteria, and when the Board upheld that application, it erred. We are not persuaded.
[4]
Section 21.47(7)(d) provides, in relevant part:
Any subsequent change or addition to an approved plan shall first be submitted for recommendation to the Plan Commission. The Plan Commission shall make its recommendation to the City Council. If, in the City Council's opinion, the change or addition is substantial, keeping in mind subpar. 1., 2., 3., 4., the City Council shall call for another public hearing. Without limitation to the City Council's right to determine any other substantial change, a change in any of the following may be construed to be as substantial.
The Code goes on to delineate four changes which constitute a substantial changenone of which includes the concepts of aesthetics and economic feasibility. This, however, is not controlling. Section 21.47(7)(d) indicates that the Council is not limited to the four substantial change listings. Thus, the Council was free to consider aesthetics and economic feasibility in rendering its decision.[6]
*275 B. Aesthetics and Economic Feasibility
Tuckaway next argues that even if aesthetic and economic factors are proper standards to be applied in reviewing its petition for the Project, the record is barren of any grounds to support rejection of the petition on these bases. We disagree.
[5]
The minutes of the various hearings reflect concern among both citizens and city officials regarding the construction of a new project in their community. A careful review of these minutes suggests that the potential existence of rental usage caused great concern. The rental vacancy rate in other projects called to question the economic feasibility of the project. Further, the question of density focused attention on possible traffic, congestion and service problems. Finally, the design compatibility of the Project with other surrounding neighborhood buildings was discussed. Many of the citizens voiced their opposition to the design compatibility of the Project. In sum, the record contains ample support for the Project to have been rejected on aesthetic and economic factors.
C. Factual Findings of the Board
Tuckaway lastly claims that the Board of Zoning Appeals' decision was procedurally improper because the Board failed to make findings of fact or to articulate any reason for its decision. Tuckaway argues that, at a minimum, the matter should be remanded to the Board to allow it to make specific findings of fact with respect *276 to its appeal. See Edmonds v. Board of Fire & Police Comm'rs, 66 Wis. 2d 337, 346-48, 224 N.W.2d 575, 580-81 (1975) (where factual basis for board's decision is unknown, case should be remanded to the board for specific findings of fact and conclusions of law).
A review of the record reveals the following. The Board of Zoning Appeals met on June 27, 1991, to consider Tuckaway's appeal. Both parties were present and were represented by counsel. The chairman of the Board, with no objections from the parties, announced that the Board would hear statements from counsel representing both Tuckaway and the City. The Board had before it substantial written argument, a complete set of the Common Council's minutes concerning the April 3 and 8, 1990 meetings, and a tape of a meeting held April 5, 1990, between the city attorney and counsel representing the competing interest groups. Following the arguments of counsel, Alderman Allan moved to deny the appeal, stating:
I believe the Common Council has every right to make its decision based on aesthetics and economics in all PUDs. These are prime reasons for their Council to even be considering a project. How it could act if it didn't decide on these very important issues if aesthetics and economic factors were what the Council based its decision on, and I think the Council was correct.
Thereafter, by roll call, all members of the Board voted to deny Tuckaway's appeal.
[6]
In State ex rel. Harris v. Annuity & Pension Bd., 87 Wis. 2d 646, 275 N.W.2d 668 (1979), our supreme court had the opportunity to examine what was minimally required to satisfy due process requirements. There, *277 the petitioner, citing the rule of Edmonds, contended that the Board erred in failing to file a written decision setting forth the reasons for its findings. Id. at 660, 275 N.W.2d at 675. The petitioner argued, as does Tuckaway here, that remand should be made with directions to make specific findings. Id. The court declined to remand concluding, under the circumstances, that remand was "inappropriate." Id. In reaching its decision, the court stated the following: "There is no requirement that the administrative agency indulge in the elaborate opinion procedure of an appellate court. It is sufficient if the findings of fact and conclusions of law are specific enough to inform the parties and the courts on appeal of the basis of the decision." Id. at 661, 275 N.W.2d at 675. See also Synder v. Waukesha County Zoning Bd., 74 Wis. 2d 468, 476, 247 N.W.2d 98, 103 (1976), ("[F]indings of the board may not be disturbed if any reasonable view of the evidence sustains them.").
[7]
In the present case, the findings of fact and the conclusion of law rendered by the Board of Zoning Appeals were specific enough to inform the parties, as well as this court on appeal, of the basis of the decision. As noted above, the Board had before it the minutes from the Common Council's meetings regarding the project and entertained statements from both parties concerning all facets of the Project. Although succinct, the findings of the Board are clearthe Council rejected the Project based on aesthetics and economic feasibility, both of which were proper criteria on which to render a decision. Based on these considerations, the Board denied Tuckaway's appeal.
*278 We conclude that a remand for a detailed set of findings is not necessary to satisfy minimal due process requirements.

IV. SUMMARY JUDGMENT RULINGS
Tuckaway next posits that the trial court erred in granting adverse summary judgment rulings on its claims for inverse condemnation, breach of contract and tortious interference with a contract. We examine each contention seriatim.
[8]
In reviewing a motion for summary judgment, appellate review is de novo, utilizing the same methodology as the trial court.Bong v. Cerny, 158 Wis. 2d 474, 478, 463 N.W.2d 359, 361 (Ct. App. 1990). Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Section 802.08(2), Stats.
A. Inverse Condemnation
Tuckaway claims that the City's refusal to approve the Project deprived it of all or substantially all of the property's beneficial use, thereby constituting a taking under Art. I, sec. 13, of the Wisconsin Constitution.[7] We disagree.
In a recent analysis of an inverse condemnation claim, we stated:

*279 In the absence of its physical occupancy or possession, private property can be taken for public use only by state, county or municipal action which imposes a legally enforceable restriction on the use of the property. If a legally enforceable restriction is imposed on that use, then a taking occurs only if the restriction deprives the owner of all, or practically all, of the use.
Reel Enters. v. City of La Crosse, 146 Wis. 2d 662, 674, 431 N.W.2d 743, 749 (Ct. App. 1988). See also Howell Plaza, Inc. v. State Highway Comm'n, 92 Wis. 2d 74, 84-85, 284 N.W.2d 887, 892 (1979) (taking occurs where governmental agency places legal restriction upon property that practically or substantially renders the land useless for all reasonable purposes).
[9]
As an undisputed historical fact, no legally enforceable restriction was imposed on the property in question. As noted above, the delay associated with the petition process was not caused by the City. Further, Tuckaway has not made a prima facie showing that it has been deprived of all, or practically all, of the use to which its land can be put. Granted, its initial proposal has been denied. However, Tuckaway still has the opportunity to present revised plans for a project that conforms with the aesthetics of the surrounding neighborhood and is shown to be economically feasible. We conclude that there are no genuine issues of material fact as to Tuckaway's inverse condemnation claim and, therefore, affirm the trial court's order for summary judgment.[8]
*280 B. Breach of Contract
Tuckaway next claims that the City breached an implied agreement derived from the 1987 Amended Declaration of Restrictions  that Tuckaway would be permitted to build any reasonable project on the property that conformed to the modified density requirements. The trial court disagreed, basing its decision on the fact that the Amended Declaration plainly and unambiguously stated: "It is mutually agreed that this Amendment is complementary to the Planned Development Ordinance of the City and that the development hereinabove described is subject to the said ordinance." On appeal, Tuckaway argues that this statement is ambiguous and, therefore, summary judgment should not have been granted.
[10-12]
Contractual language is ambiguous only when it is "reasonably or fairly susceptible of more than one construction." Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653, 656 (Ct. App. 1990). Construction of a contract, including the determination of whether its terms are ambiguous, is a legal matter that we decide de novo. Id. Unambiguous contractual language must be enforced as it is written. Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38, 284 N.W.2d 692, 702-03 (Ct. App. 1979), aff'd, 100 Wis. 2d 120, 301 N.W.2d 201 (1981). Further, we may not use the mechanism of construction to revise an unambiguous contract in order to relieve a party to a contract "from any disadvantageous *281 terms" to which he or she has agreed. Id. at 38, 284 N.W.2d at 703.
[13]
In the present case, we conclude that the language at issue in the 1987 Amended Declaration of Restrictions is unambiguous. The Amended Declaration clearly states that the development described is not only complementary to the Planned Development Ordinance, but is also subject to its terms. We conclude that this provision is reasonably susceptible of only one construction. Because the Declaration set forth its terms plainly and unambiguously, the trial court properly concluded that there were no issues of material fact surrounding a breach of any implied agreement between the parties and, accordingly, appropriately granted summary judgment in favor of the City.[9]
*282 C. Tortious Interference With a Contract
Finally, Tuckaway claims the trial court erred in ruling that the immunity provisions of sec. 893.80(4), Stats., barred its tortious interference with a contract claim. Tuckaway argues that sec. 893.80(4) is not intended to afford governmental bodies immunity from their own intentional torts; rather, the statute provides immunity to governmental bodies for the intentional torts of its agents.
Section 893.80(4), Stats., reads:
893.80 Claims against governmental bodies or officers, agents or employes; notice of injury; limitation of damages and suits.
. . . .
(4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
[14]
A plain reading of the statute indicates: (1) it provides immunity for governmental bodies in situations where their agents or employees commit intentional torts; and (2) it provides immunity for the agents or employees of governmental bodies where those individuals are acting within the exercise of a legislative, quasi-legislative, judicial or quasi-judicial function.
*283 [15]
Tuckaway claims the City itself, by its acts and omissions, interfered tortiously with the contractual relationship it had established with Tuckaway. Such interference, however, could not occur except through the actions of an official or agent of the City. Further, because the acts and omissions complained of occurred within the exercise of quasi-legislative or quasi-judicial actions, the agents and employees of the City who undertook those actions, as well as the City itself, are immune from suit as a matter of law. Therefore, summary judgment was properly granted in favor of the City.[10]
By the Court.Judgment affirmed.
SCHUDSON, J. (concurring).
The significance of footnote 4 of our decision merits added emphasis.
Essentially, Tuckaway claims that the City employed improperly motivated pretexts to postpone and deny its application. The City responds that it provided the required hearings, followed the correct procedures, rendered a legally tenable denial and, therefore, that Tuckaway has no cause of action for intentional denial of due process.
If, however, the City never intended to provide a decision on the merits and, as a result, its hearings and procedures were a sham, then neither formal compliance *284 with procedures nor theoretical tenability of a denial would make any difference. The trial court was correct in allowing Tuckaway to pursue that theory.
Therefore, if the trial court, in its summary judgments, had foreclosed Tuckaway's opportunity to attempt to prove that the City's procedures were pretextual and its decision-making process a sham, my conclusion in this case would have changed. Because, however, despite some troubling ambiguity in the reach of the summary judgments and the range of the resulting court trial, it appears that the trial court permitted Tuckaway to pursue its theory, and because, in footnote 4, we have recognized the viability of such a claim, I concur.
NOTES
[1]  To understand the issues involved in this appeal, it is important to briefly examine the meaning of the planned unit development concept in the context of zoning law principles.

A Planned Unit Development (PUD) is a type of zoning district designed to encourage the efficient and optimal utilization of land. A typical PUD may contain a planned mix of residential (detached homes, town houses, apartments, or combinations of such buildings), commercial and industrial uses. PUD's [sic] are premised on the concept of density zoning, that is, the intensity of use to which land may properly be developed. The PUD differs from the traditional zoning in that the type, density and placement of land uses and buildings, instead of being detailed and confined to specified districts by local legislation in advance, is determined by contract, or deal, as to each development between the developer and the municipal administrative authority, under broad guidelines laid down by state enabling legislation and an implementing local ordinance.
Powell on Property, Vol. 4A, sec. 630.10[1] (footnote omitted).
As pertinent, sec. 62.23(7)(b), Stats., and sec. 21.47 of the City of Greenfield Zoning Code Ordinance implement this formula. As noted in sec. 21.47(1) of the Zoning Code, planned unit development allows for greater flexibility and design freedom than normally permitted by the standard application of the normal Zoning Code regulations "where the unified and planned development of such tract would make possible more desirable utilization of the site and produce a more esthetically [sic] satisfying and economically desirable development than would result from the application of normal district controls."
To obtain such a district classification, the following procedure must be pursued. The developer must submit a petition to the city building inspector. Section 21.47(4)(b). The petition must contain, among other matters, the following type of information: a general description of the intended project, statistical data relating to the size, diversity and impact upon municipal services, the project's financial viability, organizational structure, a map of the project, architectural plans and drawings, landscape plans, and public service plans. Section 21.47(4)(b)1 and 2. The building inspector's office then reviews the contents of the petition, determines if the information is sufficient, and forwards it to the Planning Commission. Section 21.47(4)(c). The Planning Commission reviews the petition, makes a recommendation, and forwards the petition to the Common Council. Id. After a public hearing, the Common Council then decides whether to grant the request. Section 21.47(4)(d). As a basis for its decision-making process, both the Planning Commission and Common Council are guided by, among other things, the following consideration:
That such development will create an attractive residential environment of sustained desirability and economic stability, compatible with the character of the City, and where the economic impact of the development in terms of income levels, property value and service demands is substantially more beneficial to the community as that which could be anticipated under the basic zoning.
Section 21.47(5)(h)1.
[2]  As an example, under the Declaration, a portion of the 32-acre tract was zoned to allow a ten-story high rise, a use clearly not in conformity with the surrounding neighborhoods as of 1987.
[3]  As is standard operating procedure in Greenfield, the recommendation of the Planning Commission was sent on to the Common Council for consideration at its March 7, 1990 meeting. Before any action was undertaken by the Council concerning the Planning Commission's recommendations to reject Gallina's petition for acceptance of the Project, however, Alderman Waite stated the following:

At this time it is both the feeling [sic] of the City Attorney and myself that this item should be referred back to the Planning Commission and both of the motions which were made at that time to be dropped at this point so that this matter can be reopened due to the extreme amount of confusion which has taken place on this matter over issues which should have never been issues. Due to the confusion there was a number of deficiencies and it's time that we sent this back to the Planning Commission so that we can relook at the situation and issue a proper decision.
A subsequent motion to refer the matter back to the Planning Commission was unanimously passed.
[4]  While our supreme court has yet to recognize such a tort, we conclude that the trial court did not err in allowing plaintiffs to pursue a direct damage action based on an intentional denial of due process under the state constitution. Allowing this type of damage action is a logical extension of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), where in the Court observed that "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." In Bivense, the Supreme Court held that the Fourth Amendment guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority, and that individuals whose constitutional rights have been so violated may recover damages directly under the constitution as a result of federal agents' violation of that amendment. Id. at 395. Subsequent to Bivens, the Court has held that violations of the Fifth and Eight Amendments also give rise to an individual damage action directly under the United States Constitution. See Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment). We also note that a number of other states recognize a common law action for damages pursuant to a violation of state constitutional rights. See, e.g., Moresi v. State, 567 So. 2d 1081. (La. 1990); Widgeon v. Eastern Shore Hosp. Ctr., 479 A.2d 921 (Md. 1984); Corum v. University of North Carolina, 413 S.E.2d 276 (N.C. 1992).

The City's contentions to the contrary notwithstanding, Kurtz v. Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757 (1979), does not preclude this court from recognizing that an individual may seek damages for a violation of those rights guaranteed by the state constitution. In Kurtz, the plaintiff sued the City of Waukesha for sex discrimination under the Fourteenth Amendment to the United States Constitution, through 42 U.S.C. § 1983, and under Article I of the Wisconsin Constitution. Finding that the plaintiff stated a valid claim under 1983, the supreme court had no occasion to determine the validity of the claim brought under the Wisconsin Constitution and specifically declined to address that issue. Id. at 117, 280 N.W.2d at 765.
[5]  The issue of whether the due process claim was barred by the immunities provision of sec. 893.80(4), Stats., was briefed and properly presented, but has become moot because of our affirmance that the appellants have not met their burden of proof in presenting the claim.
[6]  We note also that sec. 21.47(5) of the Zoning Code"BASIS FOR APPROVAL"lists aesthetics and economical feasibility as appropriate factors in the determination of whether a petition for a planned development should be granted. Thus, these factors were not simply "created for the convenience of the moment;" rather, they are legitimate considerations under the Greenfield Zoning Code.
[7]  Article I, sec. 13, of the Wisconsin Constitution provides: "The property of no person shall be taken for public use without just compensation therefor."
[8]  Tuckaway cites Zinn v. State, 112 Wis. 2d 417, 427-29, 334 N.W.2d 67, 72-72 (1983), for the proposition that even a temporary taking supports an inverse condemnation claim. We agree. However, an individual arguing that a temporary taking has occurred must still meet the test that the government action in question "deprived the property owner of all or substantially all beneficial use of the property" for a period of time. Id. at 429, 334 N.W.2d at 73. Here, the undisputed facts do not meet this test and, therefore, Zinn is not applicable.
[9]  Tuckaway argues in the alternative that Paragraph II of the Amended Declaration of Restrictions was breached by the City. Paragraph II states: "The City agrees to confirm that the Lands are zoned R-5 on the condition that the number of dwelling units constructed thereon shall not exceed 536 nor shall the density exceed 17 units per acre." Tuckaway claims that this provision barred the City from basing its refusal to approve a project based upon its proposed use or density so long as the project involved R-5 uses and a density of less than seventeen units per acre.

This contention is nothing more than a reflection of Tuckaway's failure to acknowledge that (1) the City never argued that the project density was improper, and (2) the City actually utilized other provisions of the planned unit development ordinance to reject the Project. Having previously concluded that aesthetic and economic feasibility were appropriate factors on which to base a rejection, and Tuckaway having presented no evidence that the Project was rejected based on the City's failure to comply with the density requirements as delineated in Paragraph II, Tuckaway's breach of contract claim fails as a matter of law.
[10]  Tuckaway cites Harmann v. Schulke, 146 Wis. 2d 848, 852, 432 N.W.2d 671, 673 (Ct. App. 1988), for authority that sec. 893.80(4), Stats., does not provide immunity for misconduct that is "malicious, willful and intentional." We agree. However, we conclude as a matter of law that the City's conduct was not malicious, willful or intentional. Thus, Harmann is not applicable to the instant case.