I would remand this matter to the trial court so it could reconsider the division of property issue, in light of the fact that we have acknowledged our mistaken analysis on the first appeal of this case.

OPINION

WHETHER THE TRIAL COURT'S FAILURE TO CONSIDER ALL RELEVANT FACTORS LISTED IN OHIO REVISED CODE 3105.171(F) CONSTITUTES AN ERROR OF LAW AND AN ABUSE OF DISCRETION.

This is the second time this case has been before us on appeal. In the first appeal, the issue was whether the trial court properly considered wife's personal injury settlement when it awarded husband his entire pension. On remand we ordered the trial court to make an equitable division of the parties' pension benefits in light of the factors announced Hoyt v. Hoyt (1990), 53 Ohio St.3d 177. Further, we specifically instructed the trial court to disregard the wife's personal injury settlement in making this determination. Our order stated, in pertinent part: Based upon the above testimony, since none of the personal injury settlement proceeds were for lost wages or medical expenses, we find the trial court abused its discretion when it considered appellant's personal injury settlement in dividing the parties' marital property. * * *

We find the trial court abused its discretion when it failed to consider appellee's pension from General Motors to be "marital property" and therefore subject to division. Because appellant's personal injury settlement is not to be considered in the division of marital property, to not award a portion of appellee's pension to appellant would result in an inequitable division of marital assets.

(Emphasis added). We now believe this instruction was in error. While it is true wife's personal injury settlement was "separate property," R.C. 3105.171 requires the trial court to consider the assets and liabilities of the spouses when making a division of marital property: (F) In making a division of marital property and in determining whether to make the amount of any distributive award under this section, the court shall consider all of the following factors:

* * *

(2) The assets and liabilities of the spouses;

(Emphasis added).

Because wife's personal injury settlement was an asset, the trial court was required to consider it, even though it was separate property. To the extent we instructed the trial court to disregard a separate property asset in its consideration of an appropriate division of marital property, our decision was incorrect. Accordingly, that portion of Rose v. Rose (April 11, 1997), Morrow App. No. 840, unreported, is hereby overruled. Notwithstanding today's ruling, we are mindful of the doctrine of the law of the case. That doctrine requires after a reviewing court has reversed and remanded a cause for further action in the trial court, and the unsuccessful party does not prosecute review to the Supreme Court, the pronouncement of the law by the intermediate court becomes law of the case, and must be followed by the lower court in subsequent proceedings in that case. Stemen v. Shibley (1982), 11 Ohio app.3d 263, 265. A trial judge is without authority to resolve the law at variance with the mandate of the Court of Appeals. Id. The doctrine of the law of the case is necessary, not only for consistency of result and the termination of litigation, but to preserve the structure of the judiciary as set forth in the Ohio Constitution, designating a system of superior and inferior courts, each possessing a distinct function. Id. The Constitution does not grant to a Court of Common Pleas jurisdiction to review a prior mandate of a Court of Appeals. Id. In his sole assignment of error, husband argues the trial court failed to consider all relevant factors listed in R.C. 3105.171(F) and therefore, the trial court's final division of pension assets was in error. Essentially, husband makes the same argument which was at the center of the first appeal: whether the trial court erred in considering wife's personal injury settlement in making a determination of separate property. In reviewing the equity of a division of marital property pursuant to R.C. 3105.171, we will not disturb the trial court's judgment absent a showing the trial court abused its discretion in formulating its division. Martin v. Martin (1985), 18 Ohio St.3d 292, 294. Therefore, we cannot substitute our judgment for that of the trial court's unless, when the considering the totality of the circumstances, the trial court abused its discretion. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128,131. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable. Bisker v. Bisker (1994), 69 Ohio St.3d 608,609, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,219. On remand, the trial court was ordered to consider the factors set forth in Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, in determining an equitable division of husband's pension from General Motors and wife's pension funds. Hoyt held, in pertinent part: When determining what is an equitable distribution of retirement benefits, the trial court must consider the following factors: (1) the circumstances of the case; (2) the status of the parties; (3) the nature, terms and conditions of the pension or retirement; and (4) the reasonableness of the result. Hoyt, supra53 Ohio St.3d, 177, syllabus par. 1.

We find no abuse of discretion in the trial court's decision to divide husband's and wife's pension funds equally after consideration of the Hoyt factors. While the trial court may not have considered wife's personal injury settlement in making this determination, any such error was due to the express order of this Court, and the law of the case. Accordingly, husband's sole assignment of error is overruled. The judgment of the Morrow County Court of Common Pleas, Domestic Relations Division, is affirmed. By Hoffman, J. Wise, P.J. concur. Edwards, J. dissents.

I concur in the result of this case, but do so for different reasons. I respectfully disagree with Judge Hoffman's decision to overrule that portion of Rose v. Rose (April 11, 1997), Morrow App. No. 840, unreported, that instructed the trial court to disregard the wife's personal injury settlement in its consideration of an appropriate division of marital property. I do not find that R.C. 3105.171(F)(2) requires the trial court to reconsider assets which have already been determined to be separate property under R.C. 3105.171(A)(6)(a)(vi). Instead, I would adhere to our previous analysis contained in the first appeal of this matter. In the first appeal, we relied on the case of Everhardt v. Everhardt (1991), 77 Ohio App.3d 396, which held that a personal injury settlement is "marital property," divisible upon divorce, only to the extent that it reimburses an injured spouse for lost earnings and medical expenses that have an adverse impact on the marital estate. Id. at 401. Evidence is contained in the record that no portion of the wife's personal injury settlement was used as compensation for lost wages or medical expenses. Therefore, I would conclude, in the matter currently before the court, that the trial court properly followed the instructions of this court as set forth in the first appeal of this matter. I would find R.C. 3105.171(F) applicable, as it pertains to personal injury settlements, only in those cases where the settlement is first found to be "marital property," as defined in Everhardt, or where the trial court intends to make a distributive award of the personal injury settlement.