Newell v. WhiteNewell v. White
DECISION AND JUDGMENT ENTRY
{¶ 1} Steven Carl White appeals the Pickaway County Common Pleas Court‘s judgment in favor of Naomi Ann Newell that overruled White‘s
I.
{¶ 2} Newell and White married in 1983. White earned about $80,000 in 2004 as a Systems Analyst for the Ohio Department of Job and Family Services. As a state worker, he paid into OPERS.
{¶ 3} After a complaint for divorce, answer, and counter-claim were filed in 2003, the parties settled their case in 2004. The Magistrate‘s Decision was filed on September 24, 2004, and the parties waived their objection time pursuant to
{¶ 4} White filed his motion to vacate the DPO and reallocate his OPERS on February 3, 2005. After a hearing, the magistrate filed her decision denying the motion on April 25, 2005. On May 6, 2005, White filed an objection to the magistrate‘s report. White objected to just one magistrate finding, i.e. “[T]he DPO as currently submitted agrees with the language in the Decree and that the use of a coverture fraction is a proper and accepted method of computing and dividing the pension benefits.” On May 18, 2005, the trial court adopted the magistrate‘s decision over White‘s objection.
{¶ 5} White appeals the May 18, 2005 judgment but fails to assign any errors. Thus, White has failed to comply with
II.
{¶ 6} White argues that the “deferred distribution method” used to divide his OPERS pension is “faulty and inaccurate[.]” He also contends that the “deferred distribution method” used in the DPO is “contrary to clearly specified final decree language” in ¶ 10 of the Judgment Decree of Divorce. He further asserts that his counsel did not tell him about the “present value method.”
{¶ 7} A trial court may divide a pension fund using the “present value method” or the “deferred distribution method.” Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 181. Under the “present value method,” the court first determines the amount the non-employee spouse is to receive. Secondly, the court: (1) orders that amount withdrawn from the pension fund; or (2) offsets that amount with installment payments or other marital property. Baldwin‘s Ohio Domestic Relations Law (1990), 274, Section 25.05(E)(3). Under the “deferred distribution method,” the trial court orders that a percentage of the future benefits be paid from the pension fund to the non-employee spouse if and when the pension matures. Id.
{¶ 8} Here, White filed his motion to vacate DPO and sought to reallocate his OPERS pension using the “present value method” instead of the “deferred distribution method.” However, White did not designate the type of motion he filed. If it is a motion for reconsideration, then it is a nullity because the Ohio Rules of Civil Procedure do not provide a procedure for reconsideration of a trial court‘s final judgment. Pitts v. Ohio Dept. of Transportation (1981), 67 Ohio St.2d 378, paragraph one of the syllabus. The only other motion that can provide for relief from a final judgment is a
{¶ 9} In an appeal from a
{¶ 10}
{¶ 11} In order to prevail on a motion for relief from judgment pursuant to
{¶ 12} Ordinarily, the neglect of a party‘s attorney is imputed to that party for purposes of
{¶ 13} Here, one of White‘s arguments is that his trial attorney did not tell him about “other methods” available to compute his spouse‘s share of his OPERS pension. White also contends that his trial counsel approved court documents without his authority. Pursuant to GTE, supra, these allegations of his attorney‘s neglect are imputed to White. Consequently, White cannot use
{¶ 14} “[W]here the remedy of appeal is available to a party, and where the issues raised in a motion for relief from judgment are those which could properly have been raised on appeal, a motion for relief from judgment will be denied.“. Burroughs Real Estate Co. v. Zennie R. Heath (Mar. 20, 1980), Cuyahoga App. No. 40476. In Taylor v. Taylor (Mar. 27, 1987), Lawrence App. No 1801, Judge Stephenson wrote, “In order to bring himself within the limited area of
{¶ 15} In short,
{¶ 16} Here, White did not directly appeal the trial court‘s final judgment. On a direct appeal, White could have raised the same issues that he raised in his
{¶ 17} Accordingly, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that 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 Pickaway County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J. and McFarland, J.: Concur in Ju