10-1420daniel and janet sullivan were married on november 1, 1986. during their marriage, daniel...
TRANSCRIPT
ORIG'NqL
IN THE SUPREME COURT OF OHIO
JANET M. SULLIVAN, Supreme Court Case No. 10-1420Plaintiff-Appellee,
-vs-
DANIEL J. SULLIVAN,
Defendant-Appellant.
Appellate Case No. L-2009-1022
On discretionary appeal from the Decision andJudgment entered on June 30, 2010 by the Courtof Appeals for Lucas County, Sixth AppellateDistrict
DEFENDANT-APPELLANT'S JURISDICTIONAL MEMORANDUMIN SUPPORT OF DISCRETIONARY APPEAL
TIL
10
CLERK OF COURTSUPRENIE COURi CF OHIO
Thomas A. Matuszak (0067770)Thomas A. Matuszak, LLC405 Madison Avenue, 20th FloorToledo, Ohio 43604Tel: (419) 724-0780Fax: (419) 72-0782Email: matuszakna bex.net
Counsel for Defendant-Appellant,Daniel J. Sullivan
Henry B. Herschel (0016383)Herschel & Accettola615 Adams StreetToledo, Ohio 43604Tel: (419) 241-1150Fax: (419) 241-7825Email: habandm(a toast.net
Counsel for Plaintiff-Appellee,Janet M. Sullivan
TABLE OF CONTENTS
Page
Table of Authorities ..................................................................... ii
This Case Involves Questions of Public or Great General Interest ............... 1
Statement of Facts . . . ... . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . .. . . . . . . . . . . . . ... . . . . . ... 1
Statement of the Case ................................................................... 5
Law and Argument:
First Proposition of Law: R.C. § 3105.171(I) prohibits a trialcourt from retaining or exercising subject-matter jurisdictionto subsequently modify any property division in the divorce decree... 5
Second Proposition of Law: An attorney-by virtue ofhis/her mere representation-cannot bind a client or formerclient in an agreed judgment entry or contract, or executeagreed judgment entries, settlements, or contracts ........................ 9
Third Proposition of Law: A court lacks subject-matterjurisdiction to subsequently modify or convert a date-specificvaluation of a pension plan as set forth in a divorce decree,to a coverture valuation in a QDRO or similar judgment entry.......... 11
Fourth Proposition of Law: A court may not invoke equityto interpret or modify the property-distribution terms containedin a divorce decree; nor can a court invoke equitableprincipals to modify or adjust enforcement of a contract .................. 13
Conclusion . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . ... 15
Certificate of Service ... ............... ...... ...... ............ ........................ ... 16
Appendix 1: June 30, 2010 Decision and Judgment Entry
TABLE OF AUTHORITIES
Constitutions: Page
Ohio Constitution, Article 1.16 ......................................................... 1
Cases: Page
Anderson v. Anderson (1984), 13 Ohio App.3d 194, 468 N.E.2d 784,13 O.B.R. 432 ......... .......................................... ........................ 6
Bagley v. Bagley (2009), 181 Ohio App.3d 141, 908 N.E.2d 469,2009-Ohio-688 . . . ... . . . . . . . . . . . . ... . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . ..... 13
Bean v. Bean (1983), 14 Ohio App.3d 358, 14 OBR 462, 471 N.E.2d 785...... 6, 7, 8
Bernardo v. Anello ( 1988), 61 Ohio App.3d 453, 573 N.E.2d 126 ............... 10
Bowen v. Bowen (1999), 132 Ohio App.3d 616, 725 N.E.2d 1165,appeal not allowed, 86 Ohio St.3d 1402, 711 N.E.2d 231 (1999) ............... 7
Brotherton v. Bules (Jan. 30, 1981), Clark App. No. 1440 ........................ 9
Charlton v. Charlton (Sept. 22, 1998), Noble App. No. 227 ...................... 7
City of West Carrollton v. Bruns (Dec. 18, 1998), Montgomery App.No. CA 17054 . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . .. . . . . . . . . . . . . ... 9
Cooley v. Cooley (1993), 90 Ohio App.3d 706, 630 N.E.2d 417 ................. 9
Cox v. Cox (Feb. 1, 1999), Warren App. Nos. CA98-04-045 andCA98-05-054 .......................................................................... 12, 14
Davidson v. Davidson (May 26, 1987), Warren App. No. CA86-05-031.... ... 7
Deursen v. Convenient Food Marts of Columbus, Inc. (Aug. 24, 1982),Franklin App. No. 82AP-194 ...... ...... ...... ...... ................................. 10
Doerfler v. Doerfler (2005), 162 Ohio App.3d 585, 834 N.E.2d 388............ 11
Doolin v. Doolin (1997), 123 Ohio App.3d 296, 704 N.E.2d 51 .................. 7
Dugan & Meyers Construction Co., Inc. v. Ohio Dept. ofAdmin. Svcs., et al.(2007), 113 Ohio St.3d 226, 864 N.E.2d 68, 2007-Ohio-1687 .................. 14
Eden v. Eden (Jan. 29, 2003), 2003-Ohio-356 ....................................... 7
Elliott v. General Motors Corp. (June 4, 1992), Marion App. No. 9-92-6....... 9
Ervin v. Garner (1971), 25 Ohio St.2d 231, 267 N.E.2d 769 ...................... 14Fairview Park Firefighters Assoc., Local 1057 v. City of FairviewPark (July 22, 1982), Cuyahoga App. No. 44662 .................................. 10
Garrison v. Daytonian Hotel (1995), 105 Ohio App.3d 322,663 N.E.2d 1316 ........................................................................ 9
George v. George (Sept. 23, 1998), Summit App. No. 18866 ..................... 7, 11
Green v. Green (May 23, 2006), 2006-Ohio-2534, Franklin App.No. 05AP-484 ........................... ............ ............... ............... ...... 7
Hale v. Hale (Mar. 2, 2007), 2007-Ohio-867, Montgomery App. No. 21402... 13
Hall v. Hall (1956), 101 Ohio App. 237, 139 N.E.2d 60, 1 0.O.2d 177.......... 6
Holbrook v. Woodham (WD Pa. 2009), Case No. 3:05-304,2009 WL 365681 ........................................................................ 1
Hughes v. Hughes (May 9, 1997), Portage App. No. 96-P-0196 ................... 7
In re Annexation ofRiveredge Twp. to Fairview Park ( 1988),46 Ohio App.3d 29, 545 N.E.2d 1287 ................................................ 14
Jackson v. Hendrickson (Sept. 30, 2005), 2005-Ohio-5231,Montgomery App. No. 20866 ...... ............................................. ...... 11
Jackson v. Jackson (1865), 16 Ohio St. 163 .......................................... 14
Kirkwood v. Kirkwood (Sept. 4, 1996), Hamilton App. No. C-950940............ 6
Klever v. City ofStow (1983), 13 Ohio App.3d 1, 468 N.E.2d 58,13 O.B.R. 1 .............................................................................. 11
Kokoski v. West (Sept. 13, 1989), Mahoning App. No. 88 CA 159 ............... 9
Knapp v. Knapp (Dec. 23, 2005), 2005-Ohio-7105,Lawrence App. No. 05CA2 ............................................................ 6
Langer v. Langer (1997), 123 Ohio App.3d 348, 704 N.E.2d 275 ................ 13
III
Levine v. Levine (Sept. 23, 1997), Washington App. No. 96CA17 ................ 6
Mace v. Mace (Aug. 31, 1983), Warren App. No. 83-04-019 ...................... 6
McLemore v. McLemore (Oct. 12, 2001), Clark App. No. 2000 CA 91 .......... 6
Morr v. Crouch (1969), 19 Ohio St.2d 24, 249 N.E.2d 780, 48 0.O.2d 43...... 9, 10, 11
Newman v. Newman (May 20, 1993), Lawrence App. No. 92 CA 20............ 7
Nunnari v. Paul (Oct. 19, 2007), 2007-Ohio-5791,Lucas App. No. L-06-1281, appeal not allowed,117 Ohio St.3d 1425, 882 N.E.2d 445 (2008) ....................................... 14
Ottawa County Commissioners v. Mitchell (6a' Dist. 1984),17 Ohio App.3d 208, 478 N.E.2d 1024, 17 O.B.R. 398 ........................... 10, 11
Parsons v. Parsons (Aug. 15, 1997), Jackson App. No. 96CA791 ................ 7
Peppas v. Hille (May 14, 2004), 2004-Ohio-2463 ................................... 12
Peterson v. Peterson (Apri14, 1998), Butler App. No. CA97-09-169............ 7
Pierron v. Pierron (Mar. 13, 2008), 2008-Ohio-1286, Scioto App. Nos.07CA3153 and 07CA3159 ........................ ............... ........... .......... 6
Pohl v. Pohl (July 16, 2004), 2004-Ohio-3790, Montgomery App.No. 20001 ................................................................................ 11
Popovic v. Popovic (1975), 45 Ohio App.2d 57, 64, 341 N.E.2d 341,74 0.O.2d 84 ............................................................................. 6
Proctor v. Proctor (1997), 122 Ohio App.3d 56, 701 N.E.2d 36 .................. 13
Randolph v. McCullough (Sept. 21, 2000), 2000-Ohio-2645,Mahoning App. No. 99-CA-131 ........................ ............... ...... ...... ... 7
Ricketts v. Ricketts (1996), 109 Ohio App.3d 746, 673 N.E.2d 156 .............. 7
Romans v. Romans (Dec. 13, 2006), 2006-Ohio-6554 .............................. 7
Russell v. Carr (Dec. 18, 1997), Cuyahoga App. Nos. 71860 and 72105........ 7
Saylor v. Wilde (Sept. 7, 2007), 2007-Ohio-4631,Portage App. No. 2006-P-0114 . . . . . . . . . . . . . . . ... . . . . . . . . . . . . ... . . . . . . . . . ... . . . .. . . . . 10
iv
Schalmo Builders, Inc. v. Zama (Nov. 13, 2008), 2008-Ohio-5879,Cuyahoga App. No. 90782 . . . . . . . . . .. . . . . ... . . . . . . .. . . . . ... . . . . . . . . . . . . .. . . . . . . . .. . . . . 10
Schlueter v. Schlueter (Dec. 28, 1998), Auglaize App. No. 2-98-19 ............... 6
Schrader v. Schrader (1995), 108 Ohio App.3d 25, 669 N.E.2d 878 .............. 7, 8
Schumaker v. Schumaker (Sept. 30, 1993), Portage App. No. 93-P-0022......... 7
Seitz v. Plummer (Dec. 30, 1999), Franklin App. No. 99AP-350 .................. 10
Sleepy Hollows, Inc. v. Ottawa County Bd of Commissioners (1991),Ottawa App. No. 89-OT-50 ............................................................ 10, 11
Smith v. Carpenter (Mar. 28, 1980), Wood App. No. WD-79-44 .................. 10, 11
Smith v. Smith (Mar. 12, 2007), 2007-Ohio-1089, Marion App. No. 9-06-41.... 6
Stemple v. Stemple (C.P. 1967), 12 Ohio Misc. 147, 230 N.E.2d 677,41 0.O.2d 203 ........................................................................... 6
Stone v. Stone (Aug. 31, 1983), Clermont App. No. 1208 .......................... 6
Sullivan v. Edmunds (June 3, 2005), 2005-Ohio-2743,Lucas App. No. L-04-1186 ........................................................... 14
Tarbert v. Tarbert (Sept. 27, 1996), Clark App. No. 96-CA-0036 ............... 13
Thomas v. Thomas (Apr. 26, 2001), Franklin App. No. OOAP-541 ............... 7
Watral v. Tree Preservation Co., Inc. (Apr. 27, 2000), Cuyahoga App.No. 76853 . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . ... . . . .. . . . . . . . . . . . . . . . . . . .. 10
White v. White (Jan. 2, 1990), Morrow App. No. CA-708 ......................... 7
Wilson v. Wilson (2007), 116 Ohio St.3d 268, 878 N.E.2d 16,2007-Ohio-6056 . . . . . . ... . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . ... . . . 13
Womelsdorfv. Reichert (Feb. 14, 1996), Hamilton App. No. C-950224......... 6
Yarder v. Scherer (Dec. 5, 2003), 2003-Ohio-6744 ................................. 12
Statutes:
Civil Service Retirement Spouse Equity Act of 1984 ................................ 2
v
O.R.C. 3105.171(I) ........................................................................ 5,9
Miscellaneous:
Code of Judicial Conduct, Rule 1.1 ................................................... I
vi
THIS CASE INVOLVES OUESTIONS OF PUBLIC OR GREAT GENERAL INTEREST
Lower courts have a significant amount of discretion, yet that discretion has limits.
Those courts must apply the governing law and administer justice consistent with that law. See,
Ohio Constitution, Article 1.16; Code of Judicial Conduct, Rule 1.1. The doctrine of stare
decisis is a hallmark of our judicial system; legal precedent provides consistency, stability, and
predictability. In this case, however, both the trial and appellate courts invoked equity to modify
the express terms of a consensual divorce decree years after the parties had executed and
journalized that decree. In doing so, the appellate court created four inter-district conflicts of
law, which - in the aggregate - conflict with precedent from every other Ohio appellate district
and this Court.
Discretion - even if exercised in the name of equity - has its limits. Neither discretion
nor equity can be invoked to subsequently change the terms of a contract that had been approved
by the trial court - such as the consensual divorce decree in this case - or to violate the
jurisdictional limits of the courts. Judicial activism sometimes comes cloaked in the robes of
equity.' If we are to be a government of laws, judicial activism - as appears to have occurred in
the courts below - should not be tolerated by this Court, especially if the abuse precipitates
numerous intra-district and inter-district conflicts as has occurred in this case. This Court should
accept jurisdiction over the following propositions of law, resolve the inter-district conflicts of
law that the appellate court's decision has created, and adopt each proposition of law as stated.
STATEMENT OF FACTS
Daniel and Janet Sullivan were married on November 1, 1986. During their marriage,
Daniel served as a Special Agent with the U.S. Secret Service, and Janet worked as a licensed
See, e.g., Holbrook v. Woodham (WD Pa. 2009), Case No. 3:05-304, 2009 wL 365681, *4.
Page 1 of 16
real-estate broker. During the marriage, Daniel contributed to a pension plan with the U.S. Civil
Service Retirement System ("CSRS"). The parties were granted a divorce effective May 14,
1997.
On July 29, 1997, Janet and Daniel executed and filed their Divorce Decree. In relevant
part, it provides:
[Daniel] shall assign and transfer to [Janet], through a Qualified Domestic RelationsOrder, or separate Judgment Entry, whichever is applicable, twenty-five percent (25%) ofthe accrued monthly benefit that [Daniel] was entitled to receive as of May 14, 1997,from [Daniel's] interest in his retirement plan with the Civil Service Retirement System,pursuant to the [Civil Service Retirement] Spouse Equity Act of 1984 2
The Divorce Decree also includes other terms, such as: (1) the parties' mutual release
and discharge of any and all past, present, and future claims regarding the distribution of marital
property; (2) an express fifteen-day deadline for effecting the property-distributions in the
Divorce Decree; and (3) an express remedy for either party's failure to properly effect those
distributions by the stated deadline. The Divorce Decree did not, however, contain any terms
restricting Daniel's ability to obtain a refund of his CSRS contributions, any obligation to notify
Janet or the trial court if he obtained such a refund, or any term reserving jurisdiction in the trial
court.
Forty-four days after the Divorce Decree was filed, Janet's counsel submitted a Pension
Distribution Decree to the trial court on September 11, 1997. This was done well after the
fifteen-day deadline, without Daniel's signature, and without any notice to Daniel. That Pension
Distribution Decree was presented to the CSRS plan administrator, the OPM, which, in a letter
dated January 20, 1998, acknowledged receipt of that order, spelled out the OPM's
z Divorce Decree, p. 12 (underline in original).
Page 2 of 16
understanding of that order, and stated that that order had been approved by the OPM and that
the OPM intended to honor it.
The 1997 Pension Distribution Decree states that Daniel "is (or will be) eligible for
retirement benefits under the [CSRS] based on employment with the U.S. Governmenf' and
purports to award Janet 25% "of the gross monthly benefit that [Daniel] had accrued as of May
14, 1997." The 1997 Pension Distribution Decree thus substituted a coverture valuation of the
CSRS pension plan in lieu of the Divorce Decree's date-specific valuation. And, unlike the
Divorce Decree, the 1997 Pension Distribution Decree reserved jurisdiction for the trial court to
amend or modify the pension distribution. And, unlike the Divorce Decree, the 1997 Pension
Distribution Decree included the following contingency in the event Daniel received a refund:
If the participant [Daniel] becomes eligible and applies for a refund of employeecontributions, alternate payee is entitled to a pro-rata share of the refund ofemployee contributions determined as follows: the employee contributions shallbe multiplied by a fraction, the numerator of which shall be the Twenty FivePercent (25.00%) of the gross monthly benefit that the participant had accrued asof May 14, 1997 and the denominator of which shall be the then existing grossmonthly benefit entitlement of the participant. The United States Office ofPersonnel Management is directed to pay the alternate payee's share directly toalternate payee [Janet].
In March of 2001, Daniel applied for and received a $73,268.74 refund of his CSRS
contributions from the OPM. He then placed his refund and other money into a new pension
plan in a different retirement system-the D.C. Police & Firefighters' Retirement Plan
("DCPFRP")-a retirement plan for which Daniel had not qualified until several years after the
divorce. He continued contributing to that new plan until October 18, 2003, when he retired
from the U.S. Secret Service. A month later, when Janet and her counsel deposed Daniel on a
child-custody matter in this case, he testified that he had just retired, but that he had not yet
started receiving any pension benefits.
Page 3 of 16
Approximately three years later, on July 27, 2006, Janet filed a motion for a new QDRO,
lump-sum retroactive benefits, and attorney's fees. In short, Janet sought an order awarding her
a 25% interest in Daniel's retirement benefits from the DCPFRP as they existed upon his
retirement in October of 2003, not 25% of Daniel's interest in the CSRS "as of May 14, 1997" as
the parties had agreed in the Divorce Decree.
From 2006 to 2008, the parties engaged in protracted litigation and discovery related to
Janet's motion.
At the bench trial held on December 11, 2008, Janet's co-counsel, who prepared the 1997
Pension Distribution Decree, testified about his calculation of "retroactive pension benefits" to
which Janet claimed she was entitled. During his testimony, he made several admissions: (1) in
1996, before the Divorce Decree had been executed and journalized, he had used a software
program that had mistakenly valued Daniel' CSRS pension plan as an ERISA-govemed pension
plan, yet ERISA expressly exempted governmental pension plans such as the CSRS; (2) Daniel
was not entitled to receive any annuity or retirement benefits from the CSRS as of May 14,
1997;3 (3) he had drafted the 1997 Pension Distribution Decree on Janet's behalf, and his draft
had been journalized without modification; (4) it had been his idea to include the "refund"
provision in the 1997 Pension Distribution Decree, and OPM records showed that Daniel had, in
fact, obtained a $73,268.74 refiand from the CSRS on March 30, 2001; and (5) his calculation of
"retroactive pension benefits" was based upon the retirement benefits that Daniel had actually
received after he had retired under the DCPFRP in October of 2003, and was not based upon
3 Also, at trial, Daniel proffered evidence by Gregory Vass, the Chief of the EmployeeBenefits Branch of the U.S. Secret Service, who stated that Janet was entitled to receive 25% ofDaniel's cumulative contributions to the CSRS pension as of May 14, 1997 because Daniel wasnot entitled to receive any retirement benefits on that date.
Page 4 of 16
"twenty-five (25%) percent of the accrued monthly benefit that [Daniel] was entitled to receive
as of May 14, 1997 from [Daniel's] interest in his retirement plan with the [CSRS] pursuant to
the Spouse Equity Act of 1984[,]" as the Divorce Decree provides.
On January 9, 2009, the trial court issued a Judgment Entry that awarded Janet
$76,185.92 (plus interest) in retroactive pension benefits and $24,684 in attorney's fees and
costs. That order also held that Janet was entitled to the issuance of a QDRO to the DCPFRP,
awarding Janet $1,325.07 in monthly benefits, survivor's benefits, COLA, and other rights. It
then directed Janet to prepare and submit that QDRO to the trial court. Less than two hours after
the January 9, 2009 Judgment Entry had been joumalized, the trial court journalized and served
that QDRO on the DCPFRP. Daniel appealed.
STATEMENT OF THE CASE
This discretionary appeal has been timely filed and comes to this Court from the Decision
and Judgment rendered by the Sixth District Court of Appeals in this case on June 30, 2010.
On July 12, 2010, Daniel filed an application for reconsideration and en banc
reconsideration and a motion to certify conflicts. Those matters, however, have not yet been
determined by the appellate court.
LAW AND ARGUMENT
1. FIRST PROPOSITION OF LAW: R.C. § 3105.171(I) prohibits a trial court fromretaining or exercising subject-matter jurisdiction to subsequently modify any
property division in the divorce decree.
R.C. § 3105.171(I) prohibits a trial court from retaining or exercising subject-matter
jurisdiction to subsequently modify a property division in the divorce decree. Indeed, no statute
permits a domestic relations court to reserve jurisdiction to modify a property distribution after
the divorce decree has been journalized; thus, a trial court lacks subject matter jurisdiction to
Page5of16
subsequently modify a property distribution. The seminal case on point is Bean v. Bean, which
provides as follows:
A court has control of the division of the property of the parties at the time of thedivorce decree and not thereafter. Stemple v. Stemple (C.P. 1967), 12 Ohio Misc.
147, 230 N.E.2d 677 [41 0.0.2d 203].
A common pleas court may reopen or modify a judgment at a term subsequent tothat in which the judgment was rendered only as provided by statute except incases where the nature of the judgment or decree gives the court continuing
jurisdiction. Hall v. Hall (1956), 101 Ohio App. 237, 139 N.E.2d 60 [1 0.O.2d177]. There is no statute which provides for reopening an order concerning
property division.
***
If courts had continuing jurisdiction to modify all decrees, there would beconfusion and uncertainty. Popovic v. Popovic (1975), 45 Ohio App.2d 57, 64,341 N.E.2d 341 [74 0.O.2d 84]. Therefore, consistent with this court's previous
holdings in Stone v. Stone (Aug. 31, 1983), Clermont App. No. 1208, unreported,
and Mace v. Mace (Aug. 31, 1983), Warren App. No. 83-04-019, unreported, thiscourt holds that no jurisdiction exists for the trial court to modify its previousdecree as to personal property where the appeal time has run and an appeal hadnot been taken from the decree.
Bean v. Bean (1983), 14 Ohio App.3d 358, 361-362, 14 OBR 462, 465-467, 471
N.E.2d 785, 789-791.
The Bean ruling has been followed by the First4, Seconds, Third6, Fourth7 , FifthB, Sixth9,
" See, e.g., Kirkwood v. Kirkwood (Sept. 4, 1996), Hamilton App. No. C-950940;
Womelsdorf v. Reichert (Feb. 14, 1996), Hamilton App. No. C-950224.
5 See, e.g., McLemore v. McLemore (Oct. 12, 2001), Clark App. No. 2000 CA 91; See,
Anderson v. Anderson (1984), 13 Ohio App.3d 194, 468 N.E.2d 784, 13 O.B.R. 432, paragraphs
1 and 2 of the syllabus.
6 See, e.g., Smith v. Smith (Mar. 12, 2007), 2007-Ohio-1089, ¶14-18, Marion App. No. 9-
06-41; Schlueter v. Schlueter (Dec. 28, 1998), Auglaize App. No. 2-98-19.
7 See, e.g., Pierron v. Pierron (Mar. 13, 2008), 2008-Ohio-1286, ¶16-17, Scioto App. Nos.
07CA3153 and 07CA3159; Knapp v. Knapp (Dec. 23, 2005), 2005-Ohio-7105, ¶¶38-43,
Lawrence App. No. 05CA2; Levine v. Levine (Sept. 23, 1997), Washington App. No. 96CA17;
Page6of16
Seventh10, Eighthll, Ninth12, Tenth13, Eleventh14, and Twelfthls Appellate Districts.
The Sixth District in this case, however, departed from this rule of law, finding that the
trial court had subject-matter jurisdiction to subsequently interpret and modify the pension
distribution term of the Divorce Decree. The Sullivan Court stated that "a trial court may reserve
jurisdiction to modify property distribution by providing for such authority in the original
decree." Id., ¶13, citing Schrader v. Schrader (1995), 108 Ohio App.3d 25, 28, 669 N.E.2d 878;
See, Id., ¶24 ("a trial court * * * may expressly reserve jurisdiction to revisit the division of
property."), citing Randolph v. McCullough (Sept. 21, 2000), 2000-Ohio-2645, Mahoning App.
No. 99-CA-131 (relying on Schrader); See also, Sullivan, ¶4 ("In addition, the distribution
decree reserved jurisdiction in the trial court `to supervise the payment of retirement benefits'
Parsons v. Parsons (Aug. 15, 1997), Jackson App. No. 96CA791; Newman v. Newman (May 20,
1993), Lawrence App. No. 92 CA 20.
$ See, e.g., White v. White (Jan. 2, 1990), Morrow App. No. CA-708.
9 See, e.g., Doolin v. Doolin (1997), 123 Ohio App.3d 296, 299, 704 N.E.2d 51.
10 See, e.g., Charlton v. Charlton (Sept. 22, 1998), Noble App. No. 227.
11 See, e.g., Russell v. Carr (Dec. 18, 1997), Cuyahoga App. Nos. 71860 and 72105;
Ricketts v. Ricketts (1996), 109 Ohio App.3d 746, 751, 673 N.E.2d 156, 159.
12 See, e.g., Eden v. Eden (Jan. 29, 2003), 2003-Ohio-356, ¶11-12; Bowen v. Bowen (1999),132 Ohio App.3d 616, 634, 725 N.E.2d 1165, appeal not allowed, 86 Ohio St.3d 1402, 711N.E.2d 231 (1999); George v. George (Sept. 23, 1998), Summit App. No. 18866; Romans v.
Romans (Dec. 13, 2006), 2006-Ohio-6554, ¶25.
13 See, e.g., Green v. Green (May 23, 2006), 2006-Ohio-2534, ¶12, Franklin App. No.
05AP-484; Thomas v. Thomas (Apr. 26, 2001), Franklin App. No. OOAP-541.
14 See, e.g., Schumaker v. Schumaker (Sept. 30, 1993), Portage App. No. 93-P-0022;
Hughes v. Hughes (May 9, 1997), Portage App. No. 96-P-0196; Bean, 361-362.
15 See, e.g., Peterson v. Peterson (April 4, 1998), Butler App. No. CA97-09-169; Davidson
v. Davidson (May 26, 1987), Warren App. No. CA86-05-031.
Page7of16
and to modify the distribution decree if it becomes invalid or ineffective."). The Sixth District in
this case, therefore, concluded that the trial court "did not act without jurisdiction by improperly
modifying the divorce decree in the 1997 Distribution Decree, February 7, 2008 Judgment Entry,
2009 Judgment Entry and 2009 QDRO." Sullivan, ¶22.
The Sixth District's ruling in Sullivan, which relies upon Schrader, misstates the law as
previously set forth in Bean and every other appellate district in Ohio. Specifically, the Schrader
Court stated that while a domestic relations court normally has jurisdiction to revisit the divorce
or the property distribution decree, it can only do so if the divorce decree or the final judgment
contains an express reservation of . continuing jurisdiction. Schrader, p. 28. According to
Schrader, the domestic relations court, however, "in the interest of fashioning a fair and
equitable award, may deal with the pension and retirement benefits flexibly, including reserving
authority to modify a QDRO." Even so, the Schrader Court stated that jurisdiction should not
ordinarily be reserved Id., p. 28. But, as set forth above, the legal standard promulgated in
Schrader, and now Sullivan, is not what the Bean Court ruled.
In fact, the Sullivan Court went even farther than permitted in the Schrader decision,
saying that the 1997 Pension Distribution Decree contained language, which reserved
jurisdiction and permitted the trial court to modify the Divorce Decree's pension distribution "to
supervise the payment of retirement benefits" and to modify the 1997 Pension Distribution
Decree if that order ever became invalid or ineffective. In other words, the Sullivan Court held
that a post-divorce decree can reserve jurisdiction after the fact to modify the divorce decree and
the subsequent orders of the court regarding pension distributions. The Sullivan Court posited
that, when Daniel obtained a refund from the CSRS and invested in the new DCPFRP pension
Page8of16
plan, Daniel's judicially-authorized conduct16 "frustrated the payment of retirement benefits,
essentially rendering the distribution decree ineffective. Thus, the [trial] court retained
jurisdiction to resolve the confusion that appellant caused, and issue additional orders protecting
appellee's interest as it existed in the D.C. Plan." Sullivan, ¶27.
Daniel disputes that the 1997 Pension Distribution Decree could or did lawfully reserve
jurisdiction in the trial court to modify the pension-distribution term of the Divorce Decree. Yet,
the fact remains that a conflict exists between the Sixth District and other appellate districts
concerning whether a court may reserve or exercise jurisdiction to revisit the property-
distribution provisions of a divorce decree. This Court, therefore, should accept jurisdiction on
this proposition of law to resolve a conflict among appellate districts and finally determine if
R.C. § 3105.171(I) prohibits a trial court from reserving or exercising subject-matter jurisdiction
to subsequently modify any property division in the divorce decree.
II. SECOND PROPOSITION OF LAW: An attorney-by virtue of his/her mere
representation-cannot bind a client or former client in an agreed judgment entryor contract, or execute agreed judgment entries, settlements, or contracts.
This Court has ruled that an attorney cannot bind his client in an agreed judgment entry
or contract. See, Morr v. Crouch (1969), 19 Ohio St.2d 24, 249 N.E.2d 780, 48 0.O.2d 43,
paragraph two of the syllabus. The Morr ruling has been consistently followed by the Second17,
Third18, Seventh19, Eighth20, Tenth21, and Eleventh 22 Courts of Appeal in Ohio, finding that
16 See, 1997 Pension Distribution Decree, ¶II (refund provision).
17 See, e.g., Garrison v. Daytonian Hotel (1995), 105 Ohio App.3d 322, 326, 663 N.E.2d
1316; City of West Carrollton v. Bruns (Dec. 18, 1998), Montgomery App. No. CA 17054;
Cooley v. Cooley (1993), 90 Ohio App.3d 706, 708, 630 N.E.2d 417; Brotherton v. Bules (Jan.
30, 1981), Clark App. No. 1440.
18
19
See, e.g., Elliott v. General Motors Corp. (June 4, 1992), Marion App. No. 9-92-6.
See, e.g., Kokoski v. West (Sept. 13, 1989), Mahoning App. No. 88 CA 159.
Page 9 of 16
attorneys were not-by virtue of their mere representation-authorized to execute agreed
judgment entries, settlements, or contracts on behalf of their current or former clients. See also,
Wojton v. U.S. (1998), 156 F.3d 1234 (table case, applying Morr v. Crouch, supra, and Ottawa
County Commissioners v. Mitchell (6th Dist. 1984), 17 Ohio App.3d 208, 212, 478 N.E.2d 1024,
17 O.B.R. 398.
Here, the Sullivan Court made the opposite legal conclusion when it held that Daniel was
bound by the terms of the 1997 Pension Distribution Decree because his then-former attorney
had signed that order, concluding that the attorney's signature was legally sufficient to bind
Daniel to the terms of that order. Sullivan, 1¶4, 34. Yet, in this case, there is no evidence
whatsoever that Daniel expressly authorized his former attorney to sign the 1997 Pension
Distribution Decree, or that Daniel was even aware of the 1997 Pension Distribution Decree until
the summer of 2006 when Janet filed her motion for a new QDRO.
The holding in Sullivan not only conflicts with other appellate districts, it actually
conflicts with the Sixth District's own established precedent 23 In Ottawa County
20 See, e.g., Schalmo Builders, Inc. v. Zama (Nov. 13, 2008), 2008-Ohio-5879, ¶¶17-26,
Cuyahoga App. No. 90782; Watral v. Tree Preservation Co., Inc. (Apr. 27, 2000), Cuyahoga
App. No. 76853; Bernardo v. Anello (1988), 61 Ohio App.3d 453, 458-461, 573 N.E.2d 126;Fairview Park Firefighters Assoc., Local 1057 v. City of Fairview Park (July 22, 1982),
Cuyahoga App. No. 44662.
21 See, e.g., Seitz v. Plummer (Dec. 30, 1999), Franklin App. No. 99AP-350; Deursen v.
Convenient Food Marts of Columbus, Inc. (Aug. 24, 1982), Franklin App. No. 82AP-194.
> ¶¶12-13, Portage App. No.22 See, e.g., Saylor v. Wilde (Sept. 7, 2007), 2007-Ohio-4631
2006-P-01 14.
23 See, Ottawa County Commissioners v. Mitchell (1984), 17 Ohio App.3d 208, 212, 478
N.E.2d 1024, 17 O.B.R. 398; Sleepy Hollows, Inc. v. Ottawa County Bd of Commissioners(1991), Ottawa App. No. 89-OT-50; Smith v. Carpenter (Mar. 28, 1980), Wood App. No. WD-
79-44.
Page 10 of 16
Commissioners v. Mitchell ((1984), 17 Ohio App.3d 208, 212, 478 N.E.2d 1024, 17 O.B.R. 398)
the Sixth District ruled that unless an attorney has been expressly authorized to do so, he has no
implied or apparent authority solely because he was retained to represent the client, to negotiate
or settle the client's claims; instead, the authority to contract must be expressly given by the
client to the attorney. Id., p. 212. "hnplied or apparent authority is not enough, the mere
retention of an attorney being insufficient to confer such express authority." Id.; See also, Sleepy
Hollows, Inc. v. Ottawa County Bd. of Commissioners (1991), Ottawa App. No. 89-OT-50; Smith
v. Carpenter (Mar. 28, 1980), Wood App. No. WD-79-44. Indeed, in Sleepy Hollows, the Sixth
District affirmed the proposition of law that a court cannot compel settlement or by its
imprimatur validate a settlement which is otherwise unenforceable. Id., citing Klever v. City of
Stow (1983), 13 Ohio App.3d 1, 468 N.E.2d 58, 13 O.B.R. 1, paragraph one of the syllabus, and
Morr v. Crouch, supra, at 27.
This Court, therefore, should accept jurisdiction on this proposition of law, review the
conflict of law, and finally determine the proposition of law presented.
III. THIRD PROPOSITION OF LAW: A court lacks subject-matter jurisdiction tosubsequently modify or convert a date-specific valuation of a pension plan as setforth in a divorce decree, to a coverture valuation in a QDRO or similar judgmententry.
The Second24, Ninth25, Tenth26, and Twe1fth27 District Courts of Appeal have held that a
trial court lacks subject-matter jurisdiction to change a divorce decree's date-specific valuation
24 See, e.g., Pohl v. Pohl (July 16, 2004), 2004-Ohio-3790, ¶¶1-20, Montgomery App. No.
20001; Jackson v. Hendrickson (Sept. 30, 2005), 2005-Ohio-5231, 115-25, Montgomery App.
No. 20866.
25
26
See, e.g., George v. George (Sept. 23, 1998), Summit App. No. 18866.
See, e.g., Doerfler v. Doerfler (2005), 162 Ohio App.3d 585, 588-589, 834 N.E.2d 388.
Page 11 of 16
of a pension plan to a coverture valuation in a subsequent order of the court. The Sixth District,
however, has ruled that a divorce decree's date-specific valuation may be subsequently modified
by the court to a coverture valuation. See, e.g., Yarder v. Scherer (Dec. 5, 2003), 2003-Ohio-
6744, ¶122-23; Peppas v. Hille (May 14, 2004), 2004-Ohio-2463, ¶¶16-21, citing Yarder, supra.
This conflict again surfaced in the appellate court's decision in this case.
In Sullivan, the Sixth District affirmed the new trial court's28 post-divorce modification
of the Divorce Decree's date-specific valuation to a coverture valuation; Janet's distributive
interest increased from approximately $13,500 to more than $500,000, plus interest. The
Sullivan Court reasoned that it was attempting to clarify either just the 1997 Pension Distribution
Decree (Sullivan, ¶57) or both the Divorce Decree and the 1997 Pension Distribution Decree.
See, Id., ¶24-26; See also, Id., ¶4, ¶¶34-35. In doing that, the Sixth District invoked equity and
affirmed the trial court's decisions that had substituted a coverture valuation for the date-specific
valuation, which the parties had agreed to use in their Divorce Decree. Id., ¶22.
The Divorce Decree granted Janet a 25% share of Daniel's interest in the CSRS as it
existed on May 14, 1997. Yet the trial court's January 9, 2009 Judgment Entry and QDRO
granted Janet a 25% share of Daniel's interest in his pension plan under the DCPFRP as it
existed upon Daniel's retirement in October of 2003. Those orders, as affirmed by the appellate
court, improperly modified the Divorce Decree's pension-distribution term: they converted
Janet's interest from a date-specific valuation (effective as of May 14, 1997), to a coverture
valuation (effective upon Daniel's retirement in October of 2003); and those orders granted Janet
27 See, e.g., Cox v. Cox (Feb. 1, 1999), Warren App. Nos. CA98-04-045 and CA98-05-054.
28 The original trial court judge did not hear Janet's post-divorce motion for a new QDRO;instead, that motion was assigned to a visiting judge.
Page 12 of 16
an interest in a pension plan that was not the subject of the divorce decree, and in which Daniel
had had no interest until approximately four years after the divorce. Mathematically speaking,
Janet's distributive interest increased from approximately $13,500 to more than $500,000.
The appellate court's ruling not only conflicts with the decisions from four other
appellate districts, it also conflicts with this Court's ruling in Wilson v. Wilson (2007), 116 Ohio
St.3d 268, 271, 878 N.E.2d 16, 2007-Ohio-6056. In Wilson, this Court stated that "a QDRO may
not vary from, enlarge, or diminish the relief that the court granted in the divorce decree, since
that order which provided for the QDRO has since become final." Id., ¶18. Thus, the
jurisdictional propriety of post-divorce orders - such as a QDRO - must be measured against the
express language used in the parties' divorce decree 29 In this case, however, the appellate court
concluded that the trial court's January 9, 2009 Judgment Entry and QDRO should be measured
against the 1997 Pension Distribution Decree, which itself had already improperly converted the
Divorce Decree's date-specific valuation into a coverture valuation.
This Court should accept jurisdiction on this proposition of law, review the conflict of
law, and finally determine the proposition of law presented.
IV. FOURTH PROPOSITION OF LAW: A court may not invoke equity to interpret ormodify the property-distribution terms contained in a divorce decree; nor can acourt invoke equitable principals to modify or adjust enforcement of a contract.
The Second30, Third31, and Twelfth32 District Courts of Appeal have expressly ruled that
29 Wilson v. Wilson (2007), 116 Ohio St.3d 268, 271, 878 N.E.2d 16, 2007-Ohio-6056, ¶18;
Bagley v. Bagley (2009), 181 Ohio App.3d 141, 148, 908 N.E.2d 469, 2009-Ohio-688, ¶26; Hale
v. Hale (Mar. 2, 2007), 2007-Ohio-867, ¶14, Montgomery App. No. 21402; Tarbert v. Tarbert
(Sept. 27, 1996), Clark App. No. 96-CA-0036.
30 See, e.g., Bagley v. Bagley (2009), 181 Ohio App.3d 141, 148, 908 N.E.2d 469, 2009-
Ohio-688, ¶33; Langer v. Langer (1997), 123 Ohio App.3d 348, 354, 704 N.E.2d 275.
31 See, e.g., Proctor v. Proctor (1997), 122 Ohio App.3d 56, 59, 701 N.E.2d 36.
Page 13 of 16
courts may not invoke equity to interpret or modify the property-distribution terms contained in a
divorce decree. Likewise, the Sixth District has previously held that equitable principals cannot
be used to modify, or adjust enforcement of, a contract. Sullivan v. Edmunds (June 3, 2005),
2005-Ohio-2743, ¶14, Lucas App. No. L-04-1186 (involving a prenuptial agreement).
The Sixth District has also ruled that a consensual divorce decree is also a contract that
must be governed by the law of contracts. See, Nunnari v. Paul (Oct. 19, 2007), 2007-Ohio-
5791, ¶16, Lucas App. No. L-06-1281, appeal not allowed, 117 Ohio St.3d 1425, 882 N.E.2d
445 (2008).33 A court, therefore, may not invoke equity to interpret, construe, or modify
contractual terms. This Court agrees, furthermore, for it has held in two previous cases that
equitable considerations play no role in contractual interpretation.34
In this case, however, the Sixth District affirmed the trial court's judgments, which
awarded Janet 25% of Daniel's interest in the DCPFRP, as it existed upon retirement in October
of 2003, rather than 25% of Daniel's interest in the CSRS pension plan, as it existed on May 14,
1997 (the valuation date the parties used in the divorce decree). Indeed, the lower courts not
only substituted the pension plan involved, they also substituted a coverture valuation for the
date-specific valuation the parties had used in the Divorce Decree. The appellate court affirmed
the trial court's January 8, 2009 Judgment Entry and QDRO because "the conduct of the parties
and the relative equities support this outcome." Sullivan, ¶21. In doing so, the Sixth District
32 See, e.g., Cox v. Cox (Feb. 1, 1999), Warren App. Nos. CA98-04-045 and CA98-05-054.
33 Id., citing Jackson v. Jackson (1865), 16 Ohio St. 163, paragraph one of the syllabus; In
re Annexation of Riveredge Twp. to Fairview Park (1988), 46 Ohio App.3d 29, 31-32, 545
N.E.2d 1287.
34 Ervin v. Garner (1971), 25 Ohio St.2d 231, 239, 267 N.E.2d 769; Dugan & Meyers
Construction Co., Inc. v. Ohio Dept. ofAdmin. Svcs., et al. (2007), 113 Ohio St.3d 226, 231, 864
N.E.2d 68, 2007-Ohio-1687.
Page 14 of 16
expressly invoked, and the trial court implicitly invoked, the equitable powers of the court(s) to
interpret - and modify - the pension-distribution term agreed to by the parties' in their Divorce
Decree.
This Court should accept jurisdiction on this proposition of law, review the conflict of
law, and finally determine the proposition of law presented: a court may not invoke equity to
interpret or modify the property-distribution terms contained in a divorce decree; nor can a court
invoke equitable principals to modify or adjust enforcement of a contract.
CONCLUSION
This Court should accept jurisdiction over this discretionary appeal and adopt each of the
four propositions of law presented by Appellant.
Respectfully submitted,
By:Thom A!I^ati^szak^7770)Thom s A. M"atuszak, LC405 Madison Avenue, Olh FloorToledo, Ohio 43604Tel: (419) 724-0780Fax: (419) 724-0782Email: matuszakgbex.net
Counsel for Defendant-Appellant
Page 15 of 16
CERTIFICATE OF SERVICE
The undersigned counsel certifies that a true and accurate copy of this jurisdictional
memorandum was delivered via First Class U.S. Mail to counsel for Plaintiff-Appellee, Attorney
Henry B. Herschel, located at Herschel & Accettola, 615 Adams Street, Toledo, Ohio 43604, on
this 12'h day of August, 2010.
Counsel for DeAndant-Appellant
Page 16 of 16
C©URT U^ ^PPEALS
^ti19 .1.'^id 30 ^ o. OLt
coti
CLfRif OF?COFRTS Rr
IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT
LUCASCOUNTY
Janet M. Sullivan Court of Appeals No. L-09-1022
Appellee Trial Court No. DR1996-0989
v.
Daniel J. Sullivan DECISION AND JUDGMENT
Appellant Decided:JU N 3 0 2010
Henry B. Herschel, for appellee.
Thomas A. Matuszak and Stephen D. Long, for appellant.
**^^*
COSME, J.
{¶ i} Appellant, Daniel J. Sullivan, appeals the judgment of the Lucas County
Court of Common Pleas, Domestic Relations Division, which enforced the property
distribution terms of the parties' divorce decree. We conclude that the trial court did not
improperly modify the property distribution terms of the divorce decree, but rather acted
1.
E.-JOURNALIZEDiJUN 3 0 20t0
within its authority and discretion to ensure that appellee received the benefits due to her
under the divorce decree. Therefore, this court finds appellant's five assignments of error
not well-taken, and affirms the judgment of the trial court.
I. BACKGROUND
{¶ 2} The parties were married in November 1986 and their final divorce decree
was entered by the Lucas County Court of Common Pleas, Domestic Relations Division
in July 1997. As part of the divorce decree, the parties incorporated their agreement
related to the division of marital property.
{¶ 3} Relevant to this appeal, the divorce decree provides for the assignment and
transfer to appellee, Janet M. Sullivan, through a qualified domestic relations order or
separate judgment entry, 25 percent of appellant Daniel J. Sullivan's interest in his
retirement plan with the Civil Service Retirement Systein ("CSRS"), as of May 14, 1997.
{¶ 4} On September 11, 1997, the parties filed a "Pension Distribution Decree,"
which provided as follows: "Participant is (or will be) eligible for retirement benefits
under the Civil Service Retirement System based on employment with the United States
Government. Alternate payee is entitled to a share of participant's gross monthly annuity
under the Civil Service Retirement System to be coinputed as follows: Twenty Five
Percent (25.00%) of the gross monthly benefit that the participant had accrued as of
May 14, 1997." In addition, the distribution decree reserved jurisdiction in the trial court
"to supervise the payment of retirement benefits" and to modify the distribution decree if
it becomes invalid or ineffective.
2.
{¶ 51 In 1999, appellant withdrew the deposits in the CSRS and redeposited them
in the District of Columbia Police Officers' and Firefighters' Retirement Plan ("D.C.
Plan.") Thereafter, appellant retired in 2003 and began receiving retirement benefits with
no notice or allocation of benefits to appellee.
{¶ 61 In 2006, appellee discovered that appellant had changed retirement plans
and was collecting benefits. She filed a motion with the trial court for the approval of a
new qualified domestic relations order ("QDRO") directed to the D.C. Plan and the award
of retroactive benefits and attorney fees. In a February 7, 2008 judgment entry ("2008
Judgment Entry"), the trial court granted appellee partial summary judgment, holding that
she was entitled to a QDRO perfecting her rights in appellant's retirement plan, as defined
in the divorce decree, and retroactive benefits. The matter was continued to determine
appellee's interest in the D.C. Plan and the amount of retroactive benefits.
{¶ 7} In a January 9, 2009 judgment entry ("2009 Judgment Entry"), the trial
court determined that appellee was entitled to a monthly sum of $1,325.07 from the D.C.
Plan, $76,185.92 in retroactive benefits, and attorney's fees and costs. The court also
issued a QDRO assigning appellee a share of the benefits from the D.C. Plan ("2009
QDRO"). The 2009 QDRO provided that "[t]he benefit to be paid from the Plan directly
to the alternate payee pursuant to the participant's assignment of benefits, in compliance
with the D.C. Spouse Equity Act of 1988, as amended, shall be ***($1,325.07) of the
participant's gross monthly benefit."
{¶ 81 Appellant raises five assignments of error.
3.
II. JURISDICTION OVER ASSET DISTRIBUTION
{¶ 9} In his first assignment of error, appellant argues that:
{¶ 10} "I. The trial court lacked subject-matter jurisdiction to modify the property-
distribution terms of the parties' Divorce Decree; therefore the orders that purport to do
so should be vacated by this Court as being void ab initio, namely; the 1997 Pension
Distribution Decree, the February 7, 2008 Judgment Entry granting partial summary
judgment in favor of Janet, the January 9, 2009 Judgment Entry, and the January 9, 2009
QDRO."
{¶ 111 We disagree.
{¶ 12} Retirement benefits accumulated during a marriage are marital property,
subject to division in a divorce proceeding. Erb v. Erb (1996), 75 Ohio St.3d 18, 20, 661
N.E.2d 175; R.C. 3105.171(A)(3)(a). In order to divide such assets, a domestic relations
court issues what is known as a QDRO or an equivalent judgment entry. Weller v. Weller
(1996), 115 Ohio App.3d 173, 178, 684 N.E.2d 1284. The QDRO implements some of
the terms of the divorce decree by assigning to an alternate payee the right to receive all
or a portion of benefits payable with respect to a participant under a retirement plan. See
Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, ¶ 6-7, 878 N.E.2d 16, citing
Section 1056(d)(3)(B)(i)(I), Title 29, U.S.Code and Section 414(p)(l)(A)(i), Title 26,
U.S.Code.
{¶ 13} As a general rule, once a court orders the division of retirement benefits in a
divorce decree, it lacks jurisdiction to subsequently modify the asset distribution. R.C.
4.
3105.171(I); Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 350 N.E.2d 413, paragraph one of
the syllabus, superseded by statute and overruled on other grounds, Cherry v. Cherry
(1981), 66 Ohio St.2d 348, 355, 421 N.E.2d 1293. A trial court, however, always retains
the power to enforce the provisions of a divorce decree. Green v. Green, 10th Dist. No.
05AP-484, 2006-Ohio-2534, ¶ 12; R.C. 3105.89. If a decree is ambiguous, a trial court
has continuing jurisdiction to "clarify and construe its original property division so as to
effectuate its judgment." Gordon v. Gordon (2001), 144 Ohio App.3d 21, 24, 759 N.E.2d
43 1. Further, a trial court may reserve jurisdiction to modify property distribution by
providing for such authority in the original decree. Schrader v. Schrader (1995), 108
Ohio App.3d 25, 28, 669 N.E.2d 878.
{¶ 141 A question of jurisdiction is reviewed de novo, with no deference given to
the trial court. Swayne v. Newman (1998), 131 Ohio App.3d 793, 795, 723 N.E.2d 1117.
In the present matter, appellant contends that the trial court acted without jurisdiction
when it issued two judgment entries and the 2009 QDRO that modified the property
distribution tenns of the divorce decree. For ease of analysis, we will address each
alleged "modification," rather than each order and entry, chronologically.
A. Valuation of benefits
{¶ 151 Appellant first contends that the 1997 Distribution Decree, 2008 Judgment
Entry, 2009 Judgment Entry and 2009 QDRO modified the property distribution terms of
the divorce decree by changing the valuation of appellee's share of appellant's retirement
benefits.
5.
{¶ 16} "In interpreting a divorce decree that incorporates the parties' separation
agreement, the normal rules of contract interpretation generally apply to ascertain the
meaning of the language." Yarder v. Scherer, 6th Dist. No. L-03-1035, 2003-Ohio-6744,
¶ 15. "When construing a contract, the principal goal is to effectuate the parties' intent,"
as evidenced by the contractual language. Id., citing Skivolocki v. E. Ohio Gas Co.
(1974), 38 Ohio St.2d 244, 313 N.E.2d 374, paragraph one of the syllabus. "Thus, a
court will give common words appearing in the written instrument their ordinary
meaning, unless manifest absurdity results or unless some other meaning is clearly
evidenced from the instrument." Peppas v. Hille, 6th Dist. No. L-03-1211, 2004-Ohio-
2463, ¶ 16, citing Alexander v. Buckeye Pipe Line Co. (1978) 53 Ohio St.2d 241, 374
N.E.2d 146, paragraph two of the syllabus, superseded by statute on other grounds.
{¶ 17} We start by determining whether the language of the divorce decree is
ambiguous. The divorce decree, in pertinent part, states: "Defendant, Daniel J. Sullivan,
shall assign and transfer to Plaintiff, Janet M. Sullivan, through a Qualified Domestic
Relations Order, or separate Judgment Entry, whichever is applicable, twenty-five
percent (25%) of the accrued monthly benefit that the Defendant, Daniel J. Sullivan, was
entitled to receive as of May 14 1997, from Defendant, Daniel J. Sullivan's interest in his
retirement plan with the Civil Service Retirement System, pursuant to the provision of the
Spouse Equity Act of 1984." (Emphasis sic.)
{¶ 18} Appellant contends the provision assigns appellee a share of the
contributions that appellant had paid into the CSRS plan as of May 14, 1997, which was
6.
all he was "entitled to receive" on that date. Appellant states he only became eligible to
receive monthly retirement benefits after additional years of employment following the
divorce and retirement. Appellee, meanwhile, argues this provision assigns her a share of
the monthly benefits that appellant would receive upon retirement, based upon his
credited service and contributions to the CSRS as of May 14, 1997.
{¶ 19} We find that the disputed terms of the divorce decree are somewhat
ambiguous. The date certain in the divorce decree purports to limit appellee's share to
whatever benefits appellant could have received on May 14, 1997. The decree, however,
also describes appellee's interest as a share of the "monthly benefits" - benefits which
appellant claims he could only receive upon timely retirement. The language is
reasonably susceptible of more than one meaning.
{¶ 20} The trial court found appellee was entitled to a share of the monthly
benefits that appellant would receive upon retirement, based upon his interest in the plan
as of May 14, 1997. This approach is not unreasonable, arbitrary or unconscionable. The
decree's use of the language "monthly benefits" supports the interpretation that appellee is
entitled to a share of the monthly benefits that appellant began receiving upon retirement,
and not simply a share of the contributions that appellant had made into the plan as of the
divorce date.
{¶ 21} Moreover, the conduct of the parties and relative equities support this
outcome. Appellee did not receive her portion of the retirement benefits at the time of
divorce, which would have allowed her to invest her share for future distribution.
7.
Instead, appellant retained appellee's share in his retirement account, allowing his pension
to remain intact, increasing the value of his total accumulated benefits, and saving him
the expense of having to pay appellee's portion of his retirement at the time of the
divorce. We have previously found in similar situations that such agreements
"anticipate[] that the retirement benefits will be received in the future." Yarder, 2003-
Ohio-6744, ¶ 22. See Peppas, 2004-Ohio-2463, ¶ 17-19.
{¶ 22} In light of these considerations, we find that the trial court did not abuse its
discretion by interpreting ambiguous language in the divorce decree to grant appellee a
share of the monthly benefits that appellant would receive upon retirement. Accordingly,
the court did not act without jurisdiction by improperly modifying the divorce decree in
the 1997 Distribution Decree, 2008 Judgment Entry, 2009 Judgment Entry and 2009
QDRO.
B. Entitlement to Benefits from D.C. Plan
{¶ 23} Appellant next contends that the 2008 Judgment Entry, 2009 Judgment
Entry and 2009 QDRO modified the property distribution terms of the divorce decree by
granting appellee an interest in the D.C. Plan.
{¶ 24} As noted above, a trial court has continuing jurisdiction to enforce the
provisions of a divorce decree, and may expressly reserve jurisdiction to revisit the
division of property. See Randolph v. McCullough, 7th Dist. No. 99-CA-161, 2000-
Ohio-2645. A trial court therefore has the "right and privilege" to amend a court order
that does not reflect a divorce decree's intent, Schneider v. Schneider, 5th Dist. No.
S.
2009CA00090, 2010-Ohio-534, ¶ 19, including one that identifies the wrong retirement
plan. See, e.g., Oliver-Pavkovich v. Pavkovich,7th Dist. No. 02 CA 223, 2003-Ohio-
6718, ¶ 25-26.
{¶ 25} In the present matter, the intent of the divorce decree and distribution
decree was to provide appellee with retirement pay that fairly represents her marital share
of appellant's retirement benefits. The divorce decree and distribution decree sought to
achieve this intention by assigning appellee an interest in appellant's retirement plan with
the CSRS. Following the divorce, appellant transferred his interest in the CSRS to the
D.C. Plan.
{¶ 26} We find that the trial court had continuing jurisdiction to recognize and
award appellee her share of the benefits appellant accumulated under the CSRS and
transferred to the D.C. Plan. The court was merely enforcing the divorce decree and
maintaining the integrity of its intent. To hold otherwise would allow appellant to defeat
appellee's interest in his retirement benefits simply by transferring them to another plan.
{¶ 27} We further find that the divorce decree and distribution decree contained
sufficient language to allow the trial court to retain jurisdiction over this issue. The
divorce decree specifically provided for the issuance of the distribution decree to divide
marital retirement benefits. The distribution decree reserved jurisdiction in the trial court
"to supervise the payment of retirement benefits" and modify the distribution decree in
the event that it became invalid or ineffective. Appellant's change of retirement plans
frustrated the payment of retirement benefits, essentially rendering the distribution decree
9.
ineffective. Thus, the court retained jurisdiction to resolve the confusion that appellant
caused, and issue additional orders protecting appellee's interest as it existed in the D.C.
Plan.
{¶ 28} Thus, we find that the trial court did not act without jurisdiction by
recognizing appellee's continuing interest in the CSRS plan, as it exists in the D.C. Plan,
in the 2008 Judgment Entry, 2009 Judgment Entry and 2009 QDRO.
C. Fifteen-day deadline
{¶ 29} Appellant next contends that the trial court lacked jurisdiction to issue the
1997 Distribution Decree, 2008 Judgment Entry, 2009 Judgment Entry and 2009 QDRO
because the implementation clause of the divorce decree divested the trial court of
jurisdiction to effectuate a property distribution more than 15 days after the court
joumalized the decree.
{¶ 30} The divorce decree, in pertinent part, states:
{¶ 31} "IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that upon
the execution of this Judgment Entry, each party shall deliver to the other party, or permit
the other party to take possession of all items of property to which each is entitled under
the terms of this Judgment Entry and all periodic payments required under the terms of
this Judgment Entry shall commence.
{¶ 32} "Within fifteen ( 15) days after journalization of a Decree of Dissolution of
the marriage of the parties or a Decree of Divorce between the parties, incorporating this
Agreement or any amendment or modification thereof, each party shall execute and
10.
deliver all deeds, conveyances, titles, certificates and other documents or instruments
necessary and proper to effectuate all the terms of this Judgment Entry.
{¶ 33} "Upon the failure of either party to execute and deliver any such deed,
conveyance, title, certificate or other document or instrument to the other party, this
Judgment Entry shall constitute and operate as such properly executed document and the
County Auditor and County Recorder and any and all other public and private officials
are hereby authorized and directed to accept this Judgment Entry, or properly certified
copy thereof, in lieu of the document regularly required for such conveyance or transfer."
{¶ 34} We find that the divorce decree's implementation clause is unambiguous in
that it does not limit the trial court's jurisdiction to divide marital retirement benefits
through the issuance of a QDRO or separate judgment entry. The implementation clause
simply allows the divorce decree to serve in lieu of a properly executed deed, title, or
certificate if the parties do not transfer such documents within 15 days of the
journalization of the decree. We note that the actions of the parties support this
interpretation. Attorneys for both parties signed the distribution decree on their clients'
behalf, and submitted it to the court after the 15 day deadline. Thus, it appears that
neither party intended the implementation clause to prevent the court from effectuating
the division of retirement benefits.
{¶ 35} Accordingly, we find that the implementation clause of the divorce decree
did not divest the trial court of jurisdiction to issue a QDRO or separate judgment entry to
implement the divorce decree's distribution of retirement benefits.
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{¶ 36} Therefore, we conclude that the trial court had subject matter jurisdiction to
issue the 1997 Distribution Decree, 2008 Judgment Entry, 2009 Judgment Entry and
2009 QDRO. Appellant's first assignment of error is not well-taken.
III. ENFORCEMENT OF REFUND PROVISION
{¶ 37} In his second assignment of error, appellant contends that:
{¶ 38} "Assuming the 1997 Pension Distribution Decree is not jurisdictionally
void ab initio, it remains a valid, enforceable order and the trial court committed
reversible error when it refused to enforce the reftmd provision at ¶ H in that order."
{¶ 39} We disagree.
{¶ 40} A domestic relations court has broad discretion and power to enforce its
own orders. See Townsend v. Townsend, 4th Dist. No. 08CA9, 2008-Ohio-6701, ¶ 57,
citing R.C. 3105.011. In the first assignment of error, we determined that the distribution
decree was not jurisdictionally void. Appellant now contends that the trial court should
have enforced a paragraph H from that order, rather than issue the 2009 QDRO.
{¶ 41} Paragraph H of the distribution decree states: "If participant becomes
eligible and applies for a refund of employee contributions, alternate payee is entitled to a
pro-rata share of the refund of employee contributions deterinined as follows: the
employee contributions shall be multiplied by a fraction the numerator of which shall be
the Twenty Five Percent (25.00%) of the gross monthly benefit that the participant had
accrued as of May 14, 1997 and the denominator of which shall be the then existing gross
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monthly benefit entitlement of the participant. The United States Office of Personnel
Management is directed to pay alternate payee's share directly to alternate payee."
{¶ 42} The issuance of the new QDRO was proper because appellant's own
conduct precluded enforcement of Paragraph H. Additionally, it is not at all clear that
Paragraph H was even applicable. The clause applies to the direct refund of employee
contributions from the retirement plan. Here, appellant transferred the balance under the
CSRS plan into the D.C. Plan.
{¶ 43} Therefore, we conclude that the trial court did not abuse its discretion in
regard to Paragraph H of the 1997 Distribution Decree. Appellant's second assignment of
error is not well-taken.
IV. EXCLUSION OF HEARSAY EVIDENCE
{¶ 44} In his third assignment of error, appellant contends that:
{¶ 45} "The trial court committed reversible error when it refused to admit
Defendant's Exhibit 29 at trial."
{¶ 46} We disagree.
1147) Appellant contends that the trial court erred by sustaining appellee's
objection to cross-exainination testimony on defendant's exhibit No. 29, and by excluding
the same from evidence. Defendant's exhibit No. 29 consisted, in pertinent part, of a
letter that the Chief of the Employee Benefits Branch of the U.S. Secret Service, M.
Gregory Vass, purportedly authored in response to questions posed by appellant's counsel
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concerning his client's retirement benefits. Appellant twice subpoenaed Vass to testify,
but the Secret Service refused to "authorize" his participation in the trial.
{¶ 48} Appellant admits that defendant's exhibit No. 29 is hearsay, but claims that
it was admissible under the hearsay exceptions within Evid.R. 803(6), 803(8), 803(14),
and 803(15). Appellant does not explain how each exception applies. Evid.R. 803(6)
and 803(8) do not apply, because the record does not demonstrate the information
necessary to authenticate the letter as a business record or public record under the rule.
Further, the letter is not admissible under Evid.R. 803(14) or 803(15) because it is not a
record of a document or statement in a document that affects an interest in property. It
merely states a government employee's opinion concerning appellant's entitlement to
retirement benefits, made entirely in response to questions posed by appellant's counsel.
{¶ 49} "'Hearsay' is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Evid.R. 801(C). Hearsay is not admissible except as otherwise provided by
rule, statute, or constitution. Evid.R. 802. "A letter written by a third party not involved
in the trial and not present for cross-examination is generally excluded [as hearsay]."
Oliver v. Empire Equipment (Feb. 10, 1983), 8th Dist. No. 45051, citing Geller v. Geller
(1926), 115 Ohio St. 468, 154 N.E. 727.
{¶ 50} An appellate court will not reverse a trial court's decision to admit or
exclude certain evidence, absent an abuse of discretion. Peters v. Ohio State Lottery
Comm. (1992), 63 Ohio St.3d 296, 299, 587 N.E.2d 290. A trial court has "broad
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discretion to determine whether a declaration should be admissible as a hearsay
exception." State v. Denver (1992), 64 Ohio St.3d 401, 410, 1992-Ohio-41, 596 N.E.2d
436, citing State v. Rhodes (1986), 23 Ohio St.3d 225, 492 N.E.2d 430.
{¶ 51} In sum, defendant's exhibit No. 29 was hearsay to which appellee timely
objected, and appellant has failed to show that it falls within an exception to the hearsay
rule. Therefore, we conclude that the trial court did not abuse its discretion by excluding
defendant's exhibit No. 29. Appellant's third assignment of error is not well-taken.
V. 2008 JUDGMENT ENTRY
{¶ 52} In his fourth assignment of error, appellant contends that:
{¶ 53} "The trial court erred as a matter of law when it granted partial summary
judgment for Janet in its February 7, 2008 Judgment Entry."
{¶ 54} We disagree.
{¶ 55} We review a trial court's grant of summary judgment de novo. Doe v.
Shaffer (2000), 90 Ohio St.3d 388, 390, 2000-Ohio-186, 738 N.E.2d 1243. Therefore,
appellee may prevail under Civ.R. 56(C) only if "(1) there is no genuine issue of material
fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears
from the evidence that reasonable minds can come to but one conclusion when viewing
evidence in favor of the nonmoving party, and that conclusion is adverse to the
nonmoving party." Id.
{¶ 56} In the present matter, appellee's motion for summary judgment sought a
court order recognizing her interest in appellant's D.C. retirement plan, and an award of
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retroactive benefits and attorneys' fees. The record establishes that at the time of the
divorce, appellant was a participant in the CSRS. The trial court entered a divorce decree
awarding appellee a portion of appellant's interest in his CSRS plan, and issued a
distribution decree to iinplement the division. Following the divorce, appellant secretly
transferred his interest in the CSRS to the D.C. Plan, retired, and began receiving benefits
with no notice or allocation to appellee.
{¶ 57} We conclude without question that a portion of the benefits that appellant is
receiving from the D.C. Plan is derived from appellant's interest in the CSRS that was
transferred, an interest that appellee retains. Appellant's own conduct frustrated
realization of the property distribution as originally set out in the distribution decree. We
reach the same conclusion as the trial court. Appellee was entitled as a matter of law to
"(a) a qualified domestic relations order or separate judgment entry, whichever is
applicable, perfecting her rights in the Defendant's retirement plan as awarded to her
pursuant to the Divorce Decree and (b) retroactive benefits to which she would have been
entitled since the Defendant's retirement."
{¶ 58} Accordingly, the trial court did not err when it granted appellee partial
summary judgment in its 2008 Judgment Entry. Appellant's fourth assignment of error is
not well-taken.
VI. 2009 JUDGMENT ENTRY AND QDRO
{¶ 59} In his fifth assignment of error, appellant contends that:
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{¶ 60} "The trial court's January 9, 2009 Judgment Entry and QDRO were
rendered against the manifest weight of the evidence."
{¶ 61} We disagree.
{¶ 62} An appellate court will not reverse a trial court on the manifest weight of
the evidence if "some competent, credible evidence going to all the essential elements of
the case" supports the trial court's judgment. C.E. Morris Co. v. Foley Constr. Co.
(1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578. A reviewing court presumes that a trial
court's findings of fact are correct, and will not substitute its judgment for that of the trial
court when the findings are adequately supported. Seasons Coal Co., Inc. v. City of
Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. "The rationale underlying this
deferential standard of review is rooted in the notion that the trial court is best suited to
view the witnesses, observe their demeanor, and utilize first-hand observations in
weighing the credibility of evidence and testimony." Yoder Mach. Sales Co. v.
Weldon F. Stump & Co., Inc. (2008), 176 Ohio App.3d 668, 2008-Ohio-72, ¶ 13, 893
N.E.2d 522.
A. Benefit Valuation and Refund Provision
{¶ 63} Appellant contends that the 2009 Judgment Entry and 2009 QDRO were
rendered against the manifest weight of the evidence because they are based on two
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alleged faulty presumptions: ( 1) appellee's share of appellant's benefits was to be
calculated upon retirement, and (2) the refund provision in paragraph H of the 1997
Distribution Decree was invalid and unenforceable. This merely recasts appellant's first
and second assignments of error, both of which we have already rejected.
{¶ 64} Additionally, appellant's election not to present a defense in chief at trial
weakens his argument under this assignment. The direct evidence in the trial record is
favorable to appellee's position, particularly that of her expert witness, who testified as to
the calculations he used to determine appellee's share of appellant's benefits. The trial
court found appellant's direct presentation competent and more credible than the exhibits
appellant introduced, and the testimony he elicited through cross examination. The trial
court's judgment was supported by competent, credible evidence. Therefore, we
conclude that the trial court's 2009 Judgment Entry and 2009 QDRO were not rendered
against the manifest weight of the evidence.
B. Attorney's Fees
{¶ 65} Under appellant's fifth assignment of error, appellant challenges the trial
court's award of attorney's fees and costs to appellee. We address this argument
separately, as it is governed by a different standard of review.
{¶ 66} "The decision of whether to award attorney fees rests in the sound
discretion of the court and will not be overturned on appeal absent an abuse of
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discretion." Moore v. Moore, 175 Ohio App.3d 1, 2008-Ohio-255, ¶ 81, 884 N.E.2d
1113. R.C. 3105.73(B) allows a trial court to "award all or part of reasonable attorney's
fees and litigation expenses to either party if the court finds the award equitable." In
determining what is equitable, a court may consider "the parties' income, the conduct of
the parties, and any other relevant factors the court deems appropriate, but it may not
consider the parties' assets." R.C. 3105.73(B). (Emphasis added.) Conduct supporting
an award of attorney's fees may include the failure to pay a share of retirement benefits
pursuant to a court order, see, e.g., Cabrera v. Cabrera, 10th Dist. No. 08AP-26, 2008-
Ohio-4359, ¶ 25, or actions that unnecessarily prolong the proceedings, see, e.g., Doody
v. Doody, 1 lth Dist. No. 2006-L-200, 2007-Ohio-2567, ¶ 63; McCord v. McCord, 10th
Dist. Nos. 06AP-102 and 06AP-684, 2007-Ohio-164, ¶ 18.
{¶ 671 The trial court focused on the conduct of the parties to determine whether
an award of attorney's fees was equitable. It found that appellant knowingly violated
appellee's rights by failing to comply with the divorce decree, causing the instant
litigation. Further, the trial court found that appellant's conduct during the case was
dilatory in nature and designed only for the purpose of delay, citing as examples
appellant's appeal of various orders that were not final and appealable, and appellant's
failure to advance a defense in chief at trial justifying his position. Finally, the court
found that appellee was unable to afford her own attorney's fees and litigation expenses.
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{¶ 68} We note that the record contains evidence that appellee is capable of
generating sufficient income to afford her own legal expenses. However, the conduct of
the parties is a relevant factor in determining whether an award of attorney fees is
equitable, and the trial court found that appellant's conduct caused and unnecessarily
prolonged the instant litigation. See R.C. 3105.73(B). Under these circumstances, we
conclude that the trial court did not abuse its discretion in awarding attorney's fees and
litigation expenses to appellee. Appellant's fifth assignment of error is not well-taken.
VII. CONCLUSION
{¶ 69} The judgment of the Lucas County Court of Connnon Pleas, Domestic
Relations Division, is affirined. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See,also, 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
Thomas J. Osowik, P.J.
Keila D. Cosrne J.CONCUR.
This decision is subject to fiu-ther editing by the Supreme Court ofOhio's Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreine Court's web site at:http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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