Klik v. MoyerKlik v. Moyer
Jonathan A. Rich
Robert M. Fertel
Christa G. Heckman
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Cleveland, OH 44113
ATTORNEY FOR APPELLEE
Thomas A. McCormack
The Superior Building
Suite 1915
815 Superior Avenue
Cleveland, OH 44114
{¶1} Plaintiff-appellant Tina Klik, f.k.a. Moyer (“Klik”), appeals the trial court’s decision involving several of Klik’s post-dispositive motions filed in June 2011. For the following reasons, we affirm.
{¶2} Klik and defendant-appellee Samuel Moyer were divorced on June 15, 1993, pursuant to the terms of a settlement agreement, incorporated into the final decree. As made pertinent by the current dispute, Klik was specifically awarded Moyer’s interest in the “LTV Steel Pension,” further identified in the settlement agreement as the “LTV Steel Pension of $3,954.13.” No other pension was mentioned, although Moyer owned two other pension plans at the time of divorce. In the final divorce decree, neither party was ordered to file a qualified domestic relations order (“QDRO”) effectuating the transfer of Moyer’s interest in the LTV Steel Pension plan to Klik. The trial court, in the original 1993 entry, merely noted that a QDRO was issued with the final judgment entry, an inaccurate statement.1 The settlement agreement indicated that a QDRO would “be prepared by agreement of the parties and incorporated into this final decree,” which also proved to be an inaccurate statement.
{¶3} Moyer owned two pensions at the time of the parties’ divorce, formally known as the “Pension Plan of Republic Steel Corporation, dated and effective as of March 1, 1950,” and the “LTV Steel-USWA Pension Plan.” It is undisputed that in 1993, the LTV Steel-USWA Pension was a defined contribution plan with a value of
{¶4} In June 2011, Klik filed a number of motions with the trial court, including a motion to show cause for noncompliance with a judgment entry, motion for attorney fees, motion to reduce to judgment retirement benefits improperly received, motion to issue a QDRO, motion to recharacterize pension benefits pursuant to decree of divorce, motion to vacate order of the court, and motion to quash.2 The magistrate held a single hearing, addressing each and every one of Klik’s motions.
{¶5} The trial court, on September 26, 2013, largely adopted the magistrate’s ultimate decision subject only to minor modifications. The trial court denied Klik’s motions captioned to show cause, for attorney fees, to vacate, and to quash. Klik’s remaining motions were granted in part. The trial court (1) awarded Klik an interest in Moyer’s current LTV Steel Hourly Pension Plan representing the equivalent of the
{¶6} Klik immediately appealed, advancing several arguments. Klik does not identify which motions are the subject of the current appeal, although the crux of Klik’s first six assignments of error centers on the trial court’s denying her motion for relief from the 1993 final divorce decree.3 In her first six assignments of error, Klik claims the trial court erred by modifying the 1993 divorce decree to award Moyer his interest in the Republic Steel pension, by determining that the parties intended to provide Klik the LTV Steel USWA plan only, by not vacating the 1993 divorce decree, and by failing to consider the equities involved in awarding Moyer his interest in the Republic Steel pension plan, including an interest in the certain stock held by the parties at the time of the divorce. In short, each of those arguments is premised on granting Klik relief from the 1993 judgment awarding her an interest only in the LTV Steel pension plan. We find no merit to Klik’s arguments.
{¶8} Klik now claims an entitlement to Moyer’s interest in the Republic Steel pension plan because, according to her, the settlement agreement should have been considered separately from the trial court’s 1993 final judgment entry. According to Klik, “everyone” considered the Republic Steel plan as if it were the LTV Steel Pension so that the final judgment incorrectly referenced the wrong pension plan, but she was nonetheless entitled to both the USWA and Republic Steel pension plans based on the separate settlement agreement and final divorce decree. A prerequisite to her argument, however, is seeking relief from the 1993 divorce decree. The 1993 judgment expressly references the LTV Steel pension, and Klik agreed to receive only Moyer’s interest in the LTV Steel pension of $3,954.13. The only recognizable mechanism to award Klik a judgment in the Republic Steel pension plan would be to grant her relief from that 1993 final judgment, and ultimately her settlement agreement.
[T]he court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence * * *; (3) fraud * * *, misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
In order to prevail on a motion for relief from judgment pursuant to
{¶10} Of course, a
{¶11} Further, the lynchpin in determining whether a final order exists is whether there are undivided marital assets in actual dispute after the issuance of the judgment in question. Bencin v. Bencin, 9th Dist. Medina Nos. 10CA0097-M and 11CA0113-M, 2012-Ohio-4197, ¶ 4. “‘[I]n order to constitute a final appealable order the content of the judgment must be definite enough to be susceptible to further enforcement and provide sufficient information to enable the parties to understand the outcome of the case.’” Id., quoting Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 216, 736 N.E.2d 101 (9th Dist.2000); Bykova v. McBrayer, 8th Dist. Cuyahoga No. 100172, 2013-Ohio-5745, ¶ 3.
{¶12} As this court previously recognized, a divorce decree that failed to account for a vested pension plan accumulated during the marriage is contrary to law, if the record demonstrates the trial court’s omission in considering the pension before dividing the marital assets. Manning v. Jusak, 8th Dist. Cuyahoga No. 99459, 2013-Ohio-4194, citing Bisker v. Bisker, 69 Ohio St.3d 608, 635 N.E.2d 308 (1994). However, the party complaining of the distributive award may not circumvent the doctrines of res judicata or
{¶13} In Manning, the couple divorced pursuant to the terms of a settlement agreement that omitted any reference to the husband’s pension plan. Id. at ¶ 1. Five years after the divorce, the wife unsuccessfully filed a motion to issue a QDRO dividing the pension plan between the parties. Id. In the ensuing appeal, this court agreed with the trial court’s decision, in pertinent part, relying on the invited error doctrine — because of the fact that the parties submitted a settlement agreement purporting to resolve their dispute to the court. Id. at ¶ 11. “The invited error doctrine states that ‘a party is not entitled to take advantage of an error that he himself invited or induced.’” Id. at ¶ 9, quoting State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517; State v. Smith, 148 Ohio App.3d 274, 2002-Ohio-3114, 772 N.E.2d 1225, ¶ 30 (8th Dist.).
{¶14} In this case, the parties agreed to settle their dispute and provided the court a written settlement agreement incorporated into the final divorce decree. The parties’ silence in the settlement agreement as to Moyer’s Republic Steel pension is dispositive. Even if the trial court erred in omitting any reference to Moyer’s Republic Steel pension in the final decree, Klik induced that error by submitting the settlement agreement to the trial court as the final resolution of the parties’ dispute. Manning.
{¶15} Further, Moyer owned the Republic Steel and LTV pensions. Absent an order awarding Klik any portion of the Republic Steel pension, and a court order
{¶16} The trial court denied Klik’s motion for relief from judgment, filed pursuant to the catchall provision of
{¶17} As of June 15, 1993, Klik was twice informed of the need to take action in order to effectuate the transfer of her newly awarded interest in Moyer’s pension plan. In fact, in the settlement agreement, Klik expressly acknowledged that the LTV Steel pension of $3,954.13 would be awarded pursuant to the QDRO. Had she timely prepared the QDRO as required by the terms of the final decree and her settlement agreement, her belief of a mistake in designating the correct pension would have surfaced, however untenable that argument is in light of the fact that Klik agreed to accept the LTV Steel pension of $3,954.13 in the settlement agreement. As a rule, 18 years of conscious inaction does not constitute a reasonable time within which to file a motion for relief from a final judgment. See Countrywide Home Loans Servicing, L.P. v. Ferguson, 9th Dist. Summit No. 25510, 2011-Ohio-3565, ¶ 10 (ten months of inaction is an unreasonable delay in filing for relief from a judgment or order). Klik’s first six assignment of errors are overruled. The trial court did not abuse its discretion in denying Klik relief from the 1993 final judgment awarding her an interest in the LTV Steel Pension of $3,954.13.
{¶18} The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
KENNETH A. ROCCO, J., CONCUR