KATHLEEN A. MAJESKI v. MICHAEL C. MAJESKI
C.A. CASE NO. 24668
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
February 24, 2012
2012-Ohio-731
T.C. NO. 97DR343 (Civil appeal from Common Pleas Court, Domestic Relations)
Rendered on the 24th day of February, 2012.
KEITH R. KEARNEY, Atty. Reg. No. 0003191, 2160 Kettering Tower, Dayton, Ohio 45423 Attorney for Plaintiff-Appellant
KEVIN D. HUGHES, Atty. Reg. No. 0065620, 20 South Main Street, Springboro, Ohio 45066 Attorney for Defendant-Appellee
DONOVAN, J.
{¶ 1} Plaintiff-appellant Kathleen A. Majeski appeals a judgment of the Montgomery County Court of Common Pleas, Domestic Relations Division, overruling her objections and adopting the decision of the magistrate dismissing her motion to modify the
{¶ 2} The magistrate‘s decision was filed on January 5, 2011. The judgment and entry adopting the decision of the magistrate was filed by the trial court on May 18, 2011. On June 2, 2011, Kathleen filed a timely notice of appeal with this Court.
I
{¶ 3} Kathleen and Michael were married in Carlyle, Illinois, on October 18, 1966. Although two children were born during the marriage, at the time of the parties’ divorce, both of the children were no longer minors. We note that both Kathleen and Michael were represented by private counsel throughout the pendency of their divorce. The parties were divorced by way of a Final Judgment and Decree of Divorce filed on November 12, 1997. In relevant part, the divorce decree provided that Kathleen would be entitled to 50% of the accumulated amount of benefits in Michael‘s General Motors Retirement account from the date of the marriage, October 18, 1966, through October 17, 1997, by way of a QDRO.1
{¶ 4} On January 14, 1998, a stipulated QDRO was filed by the parties.
{¶ 5} On November 15, 2010, Kathleen filed her motion requesting that a modified QDRO be issued which would specifically provide her with post-retirement survivorship benefits from Michael‘s retirement fund. Following a hearing on December 21, 2010, the magistrate issued a decision dismissing Kathleen‘s motion, and ordering that the original QDRO filed by the parties remain in effect. After objections were filed by Kathleen, the magistrate‘s decision was adopted by the trial court in a decision issued on May 18, 2011. The trial court held that the language in the original QDRO clearly and unambiguously stated that Kathleen was entitled to pre-retirement survivor benefits, but it did not address post-retirement survivor benefits. The trial court also found that the final divorce decree did not contain language granting Kathleen post-retirement survivor benefits. Thus, the trial court agreed with the magistrate and held that Kathleen was not entitled to post-retirement survivor benefits.
{¶ 6} It is from this judgment that Kathleen now appeals.
II
{¶ 7} Kathleen‘s sole assignment of error is as follows:
{¶ 8} “THE TRIAL COURT ERRED BY DISMISSING APPELLANT‘S
{¶ 9} In her only assignment or error, Kathleen contends that the trial court erred when it found that the clear and unambiguous language in the QDRO and final divorce decree did not entitle her to post-retirement survivor benefits from Michael‘s retirement fund. Specifically, she argues that the language of the QDRO is ambiguous regarding her entitlement to a post-retirement survivor benefit. Further, Kathleen asserts that the intent of the parties when the QDRO and final divorce decree were drafted was to entitle her to post-retirement survivor benefits.
{¶ 10} It is well established that “pension or retirement benefits accumulated during the course of the marriage are marital assets subject to property division in a divorce action.” Erb v. Erb, 75 Ohio St.3d 18, 20, 661 N.E.2d 175 (1996). Regarding the division of pension or retirement benefits, the “trial court must have the flexibility to make an equitable decision based upon the circumstances of the case, the status of the parties, the nature, terms, and conditions of the pension plan, and the reasonableness of the result.” Hoyt v. Hoyt, 53 Ohio St.3d 177, 180, 559 N.E.2d 1292 (1990). A trial court “should attempt to preserve the pension or retirement benefit asset in order that each party can procure the most benefit,” and that a court “should attempt to disentangle the parties’ economic partnership so
{¶ 11} The trial court has broad discretion to divide property in domestic relations cases, and its decision will not be disturbed on appeal absent unreasonable, arbitrary, or unconscionable conduct. Middendorf v. Middendorf, 82 Ohio St.3d 397, 401, 696 N.E.2d 575 (1998), citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989); Martin v. Martin, 18 Ohio St.3d 292, 294-295, 480 N.E.2d 1112 (1985); Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Berish v. Berish, 69 Ohio St.2d 318, 319, 432 N.E.2d 183 (1982). “If there is some competent, credible evidence to support the trial court‘s decision, there is no abuse of discretion.” Middendorf, 82 Ohio St.3d at 401, 696 N.E.2d 575.
{¶ 12} Generally, we have held that where the pension benefits were vested but unmatured at the time of divorce, it may not be possible or equitable to effect a final division of retirement benefits. Layne v. Layne (1992), 83 Ohio App.3d 559, 615 N.E.2d 332 (2d Dist. Champaign 1992). In this situation, the Ohio Supreme Court held in Hoyt that a trial court could divide retirement benefits by deferred distribution through a Qualified Domestic Relations Order (QDRO). 53 Ohio St.3d 177, 559 N.E.2d 1292. A QDRO is merely an order in aid of execution on the property division ordered in the divorce or dissolution decree. So long as the QDRO is consistent with the decree, it does not constitute a modification, which
{¶ 13} At the time the decree of divorce was filed in this case, both parties were represented by counsel, and had reached agreement about the terms in the decree. Agreements incorporated into divorce decrees are contracts and
{¶ 14} The stipulated QDRO filed by the parties on January 14, 1998, states in pertinent part:
{¶ 15} If the Participant, “defendant,” dies prior to the commencement of benefits, the alternate Payee, “plaintiff,” shall be a surviving spouse under IRC Sections 401(a) (11) and 417 and shall be entitled to pre-retirement survivor annuity or other survivor annuity provided to the surviving spouse under the plan, but only to the extent of the benefit described above, and only if the Plan so provides. Because husband and wife were married for at least one year, wife shall be treated as meeting the requirements of IRS Section 417(d) for purposes of determining survivor benefits.
{¶ 16} The plain language of the QDRO clearly provides Kathleen with pre-retirement survivor benefits should Michael have died before his retirement benefits
{¶ 17} While she acknowledges that neither the divorce decree nor the QDRO contain any mention of post-retirement survivor benefits, Kathleen asserts that it was the intent of the parties to include such terms in the decree and QDRO based on testimony given at the parties’ divorce hearing on October 17, 1997. Accordingly, Kathleen directs us to the following exchange between the trial court and counsel:
{¶ 18} The Court: Folks, I can just tell you, I will never ever approve non-modifiable spousal support unless somebody is so well-heeled with money, and it‘s some sort of a – you have survivor benefits on the QDRO?
{¶ 19} Counsel for Kathleen: Yes.
{¶ 20} In light of this exchange, Kathleen asserts that it was the intent of the parties at the time that the QDRO was drafted to include language awarding her
{¶ 21} We note that during oral arguments, Kathleen‘s appellate counsel heavily relied upon our recent decision in Plummer v. Plummer, 2d Dist. Montgomery No. 23743, 2010-Ohio-3450, in support of her argument that the trial court erred by refusing to modify the QDRO to include post-retirement survivor benefits. In Plummer, we held that where the QDRO approved by the trial court was inconsistent with the express terms of the final divorce decree between the parties, the QDRO was defective and subject to modification by the court in order to conform with the divorce decree. Id. The divorce decree in Plummer explicitly stated that the ex-wife was entitled to “receive 50% of the value of [ex-husband‘s] interest in his GM Pension fund under the Survivor Annuity Benefit Pay-Out as of the date of the filing of this final judgment and decree of divorce ***.” We also
{¶ 22} Clearly, Plummer is distinguishable from the facts in the instant case. Whereas the final divorce decree and QDRO filed in Plummer were found to be inconsistent with one another, the divorce decree and QDRO in the instant case are not. Moreover, early retirement benefits were not at issue here as they were in Plummer. Unlike the divorce decree in Plummer, the decree in this case contained no mention of survivor benefits or Kathleen‘s entitlement to them. The only issue before the trial court was whether Kathleen was entitled to post-retirement survivor benefits when the parties failed to include language authorizing that benefit in the divorce decree or the QDRO. Simply put, Plummer is inapplicable to the facts of this case.
{¶ 23} Upon review, we conclude that the language of the QDRO is clear and unambiguous. The language of the QDRO unequivocally states that Kathleen would be entitled to pre-retirement survivor benefits in the event Michael died or retired early before his retirement benefits were fully vested and matured. Conversely, no provision was included in either the final divorce decree or the QDRO which awarded Kathleen post-retirement survivor benefits. Neither document addresses post-retirement survivor benefits at all. Lastly, the transcript of the divorce hearing fails to support Kathleen‘s assertion that the parties intended
{¶ 24} Kathleen‘s sole assignment of error is overruled.
III
{¶ 25} Kathleen‘s sole assignment of error having been overruled, the judgment of the trial court is affirmed.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Keith R. Kearney
Kevin D. Hughes
Hon. Timothy D. Wood