Keller v. KellerKeller v. Keller
For Plaintiff-Appellee
EUGENE LEWIS
65 East State Street
Suite 1000
Columbus, OH 43215
For Defendant-Appellant
BARRY WOLINETZ
250 Civic Center Drive
Suite 220
Columbus, OH 43215
{¶1} Appellant/Wife appeals the December 27, 2017 judgment entry of the Delaware County Court of Common Pleas, Domestic Relations Division, and the January 22, 2018 QDRO‘s for the IBM and Nationwide Pension Plans.
Facts & Procedural History
{¶2} Appellant Susan Keller and appellee Michael Keller were married for thirty-two years. The trial court granted appellant and appellee a divorce pursuant to an agreed judgment entry-decree of divorce on July 31, 2015. Pursuant to the decree,
Retirement Accounts: The parties further agree that the parties shall divide equally all retirement/employment benefits, as described below, whether referred to as an IRA, 401(k) Pension, Retirement Plans, Profit Sharing or otherwise, and whether qualified or not qualified, including but not limited to all benefits through Nationwide and prior employer IBM. The parties shall retain QDRO Consultants Company or another proper expert to prepare any necessary QDRO(s) * * * The Retirement Plan documents will control the division of the Plans. * * *
Consistent with the method contained in Exhibit D attached hereto the non-qualified plans and benefits shall be divided as outlined on an “if, as, and when” basis. For the Non-Qualified portion of the pension, the parties agree that the non-qualified plans are to be divided equally as though they were being divided currently as the martial share. The payout of the non-qualified plans shall be paid to
Defendant/Wife after accounting for and having deducted therefrom all tax consequences dividing the balance of the marital share equally between Plaintiff and Defendant. Plaintiff agrees to name Defendant upon his death so that she will receive the remainder of the 50% of the marital share.
{¶3} Exhibit D, attached to the decree of divorce, identified five retirement accounts: Mike 401(k), Sue IRA, Mike UBS Roth, Sue UBS Roth, and Pension. The asterisk at Pension referenced these notations:
*Pension Amounts will be divided as per Qualified Domestic Relations Order QDRO calculation, to be incorporated into your divorce agreement.
*Qualified Pension amounts will be as per a Qualified Domestic Relations Order (QDRO) calculation, to be incorporated into your divorce agreement. The QDRO language will control both pre and post retirement payouts, so that each party‘s interests can be agreed to in advance. * * *
For the Non-Qualified portion of the pension, the QDRO does not apply, as QDRO‘s only apply to Qualified plans. The split can be agreed to in your divorce agreement, using a formula to incorporate any additional accruals due to future Nationwide employment * * *.
{¶4} Appellant and appellee filed an agreed judgment entry on August 29, 2016, stating, “the parties further agree that the parties shall divide equally all retirement/employment benefits * * *.”
{¶6} The trial court issued a judgment entry on December 27, 2017. The trial court found the Nationwide and IBM retirement plans should be divided as of July 31, 2015. Further, that appellant‘s 50% portion of the Nationwide and IBM retirement plans, as of July 31, 2015, shall be determined utilizing a frozen coverture fraction.
{¶7} Appellant appeals the December 27, 2017 judgment entry and the January 22, 2018 QDRO‘s for the IBM and Nationwide Pension Plans and assigns the following as error:
{¶8} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ORDERED A DIVISION OF RETIREMENT BENEFITS, UTILIZING THE FROZEN COVERTURE METHOD, UPON THE PARTIES’ DATE OF DIVORCE.”
I.
{¶9} The issue in this case is whether the proper date of division for appellee‘s Nationwide and IBM retirement plans is the date of appellee‘s retirement in the future or whether the proper date of division for appellee‘s Nationwide and IBM retirement plans is the date of divorce.
{¶10} Once a court has made an equitable property division, the trial court does not have jurisdiction to modify its decision.
{¶12} We have previously held that the determination of whether an ambiguity exists is a question of law to which we apply a de novo standard of review. Barnes v. Barnes, 5th Dist. Stark No. 2003CA00383, 2005-Ohio-544.
{¶13} We find this case analogous to Oberst v. Oberst, 5th Dist. Fairfield No. 09-CA-54, 2010-Ohio-452. In Oberst, the parties submitted proposed QDRO‘s. Id. The appellant‘s proposed QDRO allocated to her one-half of the appellee‘s retirement plan as of the date of appellee‘s actual retirement in the future, whereas the appellee‘s proposed QDRO allocated to appellant one-half of his retirement as of the effective date of the divorce. Id. The parties in Oberst did not specify a date for the division of the pension plan in the divorce decree, but the language in the decree provided, “the pension plan of the defendant‘s is to be equally divided by a QDRO.” Id.
{¶15} Like the appellant in Oberst, the appellant in this case argues the trial court erred by refusing to sign her QDRO which followed the plain language of the decree dividing the retirement plans equally. We disagree with appellant.
{¶16} For the purposes of the division of marital property,
{¶17} The Fourth District stated in Pierron, in finding the date of divorce was the appropriate date of distribution, that the mere silence on an issue or a failure to address it did not create an ambiguity; nor was the question of perceived inequity relevant to the issue of whether the decree was ambiguous on its face. Id.
{¶19} Appellant also contends the trial court erred in finding her 50% share of the Nationwide and IBM retirement plans, as of July 31, 2015, shall be determined utilizing a frozen coverture fraction. We disagree.
{¶20} Under the frozen coverture method, the trial court “freezes” the pension benefits at the amount in the account as of the divorce date. Cameron v. Cameron, 10th Dist. Franklin No. 12AP-349, 2012-Ohio-6258. In the traditional coverture method, the court determines the amount of money due the non-participant spouse by using the value of the pension at retirement to determine the “monthly accrued benefit” and then multiples this monthly accrued benefit by a traditional coverture fraction. Id.
{¶22} Based upon our determination that the divorce decree unambiguously states the pension plans are to be equally divided, effective as of the termination of the marriage on July 31, 2015, use of a frozen coverture fraction for determination of appellant‘s benefits is the only permissible method pursuant to the decree. Accordingly, the trial court did not err in utilizing the frozen coverture method.
{¶23} Based on the foregoing, appellant‘s assignment of error is overruled.
By Gwin, J.,
Wise, John, P.J., and
Baldwin, J., concur