Bittner v. Bittner
2017 Ohio 7498
Ohio Ct. App.2017Background
- Parties divorced by agreed judgment entry (Nov. 6, 2012). Husband (Edward) agreed to pay Wife (Dolores) $8,000/month spousal support for 12 years; court reserved jurisdiction to modify amount but not term. Husband owned various retirement accounts (Ariel profit sharing plan and Fidelity rollover IRA).
- Agreement allocated one-half of Ariel profit sharing to Wife via QDRO; Fidelity Rollover IRA (-2256) was to be split as of Oct. 31, 2012 (by rollover/QDRO). Parties also agreed Wife gets gains/losses pro rata until transfer.
- Magistrate and trial court found Husband in arrears on spousal support; court entered QDROs and a supplemental QDRO to allocate funds from the Ariel plan to satisfy arrears and ordered jail for contempt (30 days, purgeable) and attorney fees.
- Husband moved under Civ.R. 60(A) to correct the Amended QDRO (challenging valuation/assessment dates and alleging the 401(k) and profit-sharing amounts were improperly merged/split). He also moved to modify spousal support alleging changed financial circumstances.
- Trial court denied the Civ.R. 60(A) motion in part (finding any alleged mistake not a clerical error or not proven) but the court concluded the 401(k) was inadvertently split and denied modification of spousal support. Husband appealed.
Issues
| Issue | Plaintiff's Argument (Wife) | Defendant's Argument (Husband) | Held |
|---|---|---|---|
| Whether the Amended QDRO should be corrected under Civ.R. 60(A) for valuation date / merged-plan errors | QDROs as entered were valid; no clerical error proven | The Amended QDRO used wrong valuation date and administratively caused an improper split of his 401(k); seeks correction as clerical mistake | Court affirmed denial as to valuation/date and profit-sharing valuation (no proven clerical error), but reversed/remanded as to the inadvertent split of the 401(k) ($52,290.36) and ordered correction |
| Whether Husband showed a material, involuntary change in circumstances to modify spousal support | Maintain support award; no qualifying change | Industry collapse and lost earnings justify modification | Court found no abuse of discretion in denying modification: Husband’s testimony was vague, change was voluntary/foreseeable, burden not met |
| Whether contempt finding, jail sentence, and fees should be vacated if QDRO correction or modification succeeds | Contempt valid because arrears persisted | If QDRO corrected or support modified retroactively, arrears/penalties would be altered | Court held these arguments barred by res judicata as to earlier appeal; even after correction Husband still owed arrears ($5,952.57), so contempt/fees stand |
| Whether Civ.R. 60(A) was proper vehicle vs. Civ.R. 60(B) for alleged substantive mistakes in QDRO | Clerical corrections permissible; amend QDRO under 60(A) | Many claimed errors are substantive (mistake/inadvertence), requiring 60(B) | Court applied law: 60(A) only for clerical mistakes; many claims required legal judgment and thus 60(A) denied (except the inadvertent 401(k) split which was corrected) |
Key Cases Cited
- Strack v. Pelton, 70 Ohio St.3d 172 (1994) (standard for abuse of discretion reviewing relief-from-judgment rulings)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion definition)
- State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97 (1996) (Civ.R. 60(A) limited to clerical errors; cannot make substantive changes)
- Davis v. Flickinger, 77 Ohio St.3d 415 (1997) (trial court as factfinder — credibility determinations are entitled to deference)
- Booth v. Booth, 44 Ohio St.3d 142 (1989) (spousal-support modification reviewed for abuse of discretion)