JAMIE E. BLAINE v. WILLIAM H. BLAINE, III
Case No. 10CA15
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY
Released: April 1, 2011
[Cite as Blaine v. Blaine, 2011-Ohio-1654.]
APPEARANCES:
William S. Cole, Jackson, Ohio, for Appellant.
Lorene G. Johnston, Jackson, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant, William Blaine, appeals the trial court‘s decision that overruled his
I. FACTS
{¶2} On November 26, 2008, the parties filed a petition for dissolution of marriage accompanied with a separation agreement. With regards to the retirement benefits, the parties’ separation agreement states: “The parties have no retirement plans other than a 401(k) account with an approximate value of $170,501.08. The parties agree to split equally the value of the account with each party receiving approximately $85,250.54.” The parties also submitted a financial disclosure affidavit in which the value of appellant‘s pension is listed as $170,501.08. On February 2, 2009, the trial court entered a dissolution decree that incorporated the parties’ separation agreement.
“Amount of Assignment: This Order assigns to [appellee] a portion of [appellant‘s] Total Account Balance under the Plan in an amount equal to Eight Five Thousand Two Hundred Fifty and 54/100 Dollars ($85,250.54), effective as of November 25, 2008 (or the closest valuation date thereto). Allocation of Benefits: [Appellee‘s] benefit will be segregated into a separate account in like investments as [appellant] (‘pro-rata’ basis). Investment earnings and/or losses will be applied to [appellee‘s] account from the date of segregation to the point she elects to take a distribution.”
{¶4} After the court entered the QDRO, appellant, acting pro se, filed a letter with the court in which he objected to the amount appellee received under the QDRO. The court found that appellant did not properly file this letter, so it did not consider it.
{¶5} On June 17, 2009, appellant filed a pro se “objection,” in which he asserted that the QDRO deviates from the parties’ separation agreement. He claimed that since the dissolution decree, market conditions have depreciated his 401(k) account to approximately $130,905.65. Appellant argued that appellee is not entitled to one-half of the amount as valued in the separation agreement, but is only entitled to one-half of the current value.
{¶6} On August 7, 2009, the court overruled appellant‘s objection as untimely filed.
{¶8} On February 17, 2010, the magistrate recommended that the court overrule appellant‘s motion. The magistrate observed that: (1) when the parties appeared in open court for the dissolution hearing, appellant “stated on the record that his 401(k) was worth $170,501.08”1; (2) appellant signed the separation agreement, which stated that his 401(k) was worth $170,501.08; (3) appellant “signed a Waiver of Property,” in which he indicated that the division of property was equitable; (4) appellant stated on the record that he read and understood the separation agreement and that he had freely entered into the agreement and that it was fair; and (5) appellant had control and access over the 401(k) account information. The magistrate determined that: (1) appellant failed to set forth a meritorious defense; (2) he failed to show entitlement to relief under
{¶10} On August 3, 2010, the magistrate recommended that the court overrule appellant‘s second motion for relief from judgment. On August 17, 2010, appellant filed additional objections.
{¶11} On August 18, 2010, appellant filed a notice of appeal from the court‘s July 22, 2010 “judgment.” This court subsequently dismissed appellant‘s August 18, 2010 appeal due to lack of a final appealable order.
{¶12} On October 13, 2010, the trial court overruled appellant‘s objections and entered a judgment that denied his motion.2
II. ASSIGNMENTS OF ERROR
{¶13} Appellant timely appealed and raises the following assignments of error:
First Assignment of Error:
“THE TRIAL COURT ERRED WHEN IT OVERRULED THE 60(B) MOTION FILED BY APPELLANT.”
“THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT AN EVIDENTIARY HEARING.”
III. CIV.R. 60(B) MOTION
{¶14} In his first assignment of error, appellant argues that the trial court erred by overruling his
{¶15}
{¶16} In GTE Automatic Elec. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, the Supreme Court of Ohio set forth the requirements necessary to obtain
{¶18} In the case sub judice, the parties and the trial court did not evaluate appellant‘s motion using the correct legal standard. The parties and the court focused on whether appellant had satisfied the requirements of
{¶19} The determination of whether a judgment is void presents a question of law. See, generally, Grimes v. Grimes, Washington App. Nos. 06CA56 and 06CA73, 2007-Ohio-5653, at ¶22 (reviewing whether judgment void due to lack of subject matter jurisdiction on de novo basis). Moreover, whether a QDRO conflicts with a separation agreement incorporated into a dissolution or divorce decree presents a question of law that we review de novo. See Brownlee at ¶9 (using de novo standard of review without explicitly stating so).
{¶20} “[A] QDRO implements a trial court‘s decision of how a pension is to be divided incident to divorce or dissolution.” Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, at ¶7. “A QDRO does not in any way constitute a further adjudication on the merits of the pension division, as its sole purpose is to implement the terms of the divorce decree.” Id. at ¶16. “’ * * * Indeed a QDRO may not vary from,
{¶21} In the case at bar, the parties agreed in the separation agreement to equally divide appellant‘s pension. The agreement states: “The parties have no retirement plans other than a 401(k) account with an approximate value of $170,501.08. The parties agree to equally split the value of the account with each party receiving approximately $85,250.54.” The QDRO states: “This Order assigns to [appellee] a portion of [appellant‘s] total Account Balance under the Plan in an amount equal to Eight-Five Thousand Two Hundred Fifty and 54/100 Dollars ($85,250.54) effective as of November 25, 2008.” The QDRO does not conflict with the separation agreement. The separation agreement values appellant‘s 401(k) at $170,501.08. It does not provide for the value to be determined at a later date. The separation agreement then awards appellee one-half of $170,501.08. It does not award appellee one-half of a future amount, to be determined at a future date. See, generally, Cisco v. Cisco, Gallia App. No. 08CA8, 2009-Ohio-884, at ¶14 (observing that when decree awards party “one-half of [a specified] amount,” the award does not include “any additional employer contributions, interest, dividends, earnings, or increases
{¶22} Moreover, any subsequent decline in the value of appellant‘s 401(k) was a post-marital decline in value for which appellant bears the loss. The implication of the separation agreement is that the parties agreed to split the marital value, which appellant agreed equaled $170,501.08. His lack of foresight that his 401(k) may decline in value between the date of the decree and the date of the QDRO does not render the QDRO inconsistent with the decree. See, generally, Veidt v. Cook, Butler App. No. CA2003-08-209, 2004-Ohio-3170, at ¶11 (“The fact that appellant‘s retirement funds have suffered a decline in value does not render the terms of the divorce decree regarding the division of the retirement benefits ambiguous.“); Brown v. Brown (Sept. 6, 1996), Greene App. No. 96-CA-11 (concluding that trial court properly denied husband‘s
{¶23} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
IV. CIV.R. 60(B) HEARING
{¶24} In his second assignment of error, appellant argues that the trial court abused its discretion by failing to hold a hearing regarding his
{¶25} Because we have determined that the correct analysis is not pursuant to
{¶26} Accordingly, based upon the foregoing reasons, we overrule appellant‘s second assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.