2013 Ohio 4194
Ohio Ct. App.2013Background
- Manning and Jusak divorced in 2006; separation agreement did not mention Jusak's pension.
- Separation agreement spousal support set at $786.62, based on one-half of total income from Social Security and retirement benefits.
- Before separation, Jusak received about $1,364.58 monthly pension and $1,276 monthly Social Security.
- In 2011 Manning moved for a QDRO to divide Jusak's pension; Jusak opposed, arguing pension was excluded by the agreement.
- Magistrate denied the motion and the trial court adopted; Manning appealed challenging the pension division and attorney fees denial.
- Court affirmed denial of the QDRO and fees, citing res judicata and Manning's invited-error and agreement-based funding of spousal support from the pension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jusak's pension must be treated as a marital asset under Bisker | Manning argues pension must be divided as a marital asset. | Jusak contends pension exclusion in separation agreement forecloses division. | Distinguishable; pension not required to be divided as asset; implicit basis for support acknowledged. |
| Whether Manning's failure to appeal bars relief (res judicata) | Manning should be allowed to challenge the pension division. | Res judicata bars relitigating those issues after years. | Res judicata applies; Manning cannot relitigate. |
| Whether Manning invited the error by agreeing to fund spousal support with the pension | Manning is not responsible for any error by the court. | Manning invited the error by accepting pension-based funding of support. | Invited-error doctrine bars relief; Manning cannot complain. |
| Whether the court erred in not awarding attorney fees | Manning seeks attorney fees incurred opposing the motion. | Non-prevailing party generally bears own fees; no basis to award. | Affirmed denial of attorney fees; fees not awarded. |
Key Cases Cited
- Bisker v. Bisker, 69 Ohio St.3d 608 (1994) (pension benefits are marital assets to be considered in property division)
- Holcomb v. Holcomb, 44 Ohio St.3d 128 (1989) (retirement benefits must be considered in asset division)
- Bean v. Bean, 14 Ohio App.3d 358 (1983) (res judicata applies to division of marital assets)
- Westhoven v. Westhoven, 2011-Ohio-3610 (2011) (res judicata bars relitigation in divorce actions)
- Adams v. Adams, 2013-Ohio-2947 (2013) (attorney fees generally follow the party's defeat)