2015 Ohio 5307
Ohio Ct. App.2015Background
- Kelly and James Bracken divorced after negotiating a separation agreement read into the record on July 8, 2011; the dispute concerns division of James’s retirement funds.
- James had participated in OPERS but transferred roughly $130,000 from OPERS to a Thrift Savings Plan (TSP) shortly before the divorce; his financial affidavit listed the funds as a “Retirement IRA.”
- The consent judgment (Sept. 28, 2011), drafted by wife’s counsel, named OPERS as Husband’s retirement plan but also provided that “Each party is awarded 50% of the marital component of all plans of the other party.”
- When QDRO Consultants tried to implement the decree, OPERS notified them that James had taken a lump-sum refund in 2010 and had no OPERS balance; wife then moved to correct the decree to refer to the TSP.
- The magistrate and trial court concluded the misnaming of OPERS (instead of TSP) was a clerical “blunder in execution” correctible under Civ.R. 60(A) and entered a nunc pro tunc amendment naming the TSP.
Issues
| Issue | Plaintiff's Argument (Bracken) | Defendant's Argument (Kelly) | Held |
|---|---|---|---|
| Whether a nunc pro tunc correction replacing OPERS with TSP improperly made a substantive change to the consent judgment | The consent judgment accurately reflected the parties’ intent and deliberately named OPERS; substituting TSP changes substantive rights and should require a Civ.R. 60(B) challenge | The transcript shows the parties agreed to divide all retirement/employment-related benefits; the OPERS reference was a misnomer and should be corrected to TSP under Civ.R. 60(A) | Court held the amendment was clerical, not substantive, and affirmed the nunc pro tunc correction to name the TSP |
Key Cases Cited
- State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97 (1996) (Civ.R. 60(A) permits correction of clerical mistakes apparent on the record but not substantive changes to judgments)
- Kuehn v. Kuehn, 55 Ohio App.3d 245 (1988) (distinguishes clerical "blunders in execution" correctible under Civ.R. 60(A) from substantive changes that reflect a court changing its mind)