Plummer v. PlummerPlummer v. Plummer
Rendered on the 23rd day of July, 2010.
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Matthew J. Barbato, Atty. Reg. No. 0076058, 130 West Second Street, Suite 2150, P.O. Box 10126, Dayton, OH 45402
Attorney for Plaintiff-Appellee
L. Anthony Lush, Atty. Reg. No. 0046565, 2160 Kettering Tower, Dayton, OH 45423
Attorney for Defendant-Appellant
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GRADY, J.:
{¶ 1} This is an appeal from a post-decree final judgment of the domestic relations court that ordered preparation of a new qualified domestic relations order (“QDRO“) to conform to a division of retirement benefits in a decree of divorce.
{¶ 2} Joseph and Mary Lou Plummer were divorced in 1999, after
{¶ 3} “(Mary Lou) shall receive 50% of the value of (Joseph‘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, and (Mary Lou) shall start receiving her benefits under said plan when (Joseph) starts receiving his benefits or when (Mary Lou) is permitted to elect to receive her benefits under said plan. The parties shall cooperate individually and through counsel in the preparation and execution of a Qualified Domestic Relations Order assigning said value of (Joseph‘s) retirement benefits to the plan. The parties shall be responsible for paying their own income taxes on that portion of the retirement benefits which they receive.”
{¶ 4} A QDRO was prepared and signed by the parties and approved by the court on December 10, 1999. (Dkt. 20). The QDRO was subsequently presented to and accepted by the General Motors Plan Administrator on June 2, 2000.
{¶ 5} On October 1, 2007, Mary Lou filed a motion pursuant to
{¶ 6} “1. I was to receive 50% of my ex-husband‘s retirement benefit;
{¶ 7} “2. My ex-husband retired early;
{¶ 8} “3. I only received 15% of his retirement benefits.”
{¶ 9} The matter was referred to a magistrate, who found that Mary Lou was entitled to relief pursuant to
{¶ 10} Joseph filed objections to the magistrate‘s decision. The domestic relations court overruled the objections and adopted the magistrate‘s decision. Joseph appeals.
{¶ 11}
{¶ 12} A practice has arisen in the past several years that avoids the distinction between the separate sections required by
{¶ 13} We strongly urge parties to an appeal to avoid combining the statements of facts and the case for which
FIRST ASSIGNMENT OF ERROR
{¶ 14} “THE TRIAL COURT ERRED BY FINDING THAT THE QUALIFIED DOMESTIC RELATIONS ORDER FILED ON DECEMBER 10, 1999 WAS NOT IN CONFORMANCE WITH THE LANGUAGE OF THE PARTIES’ FINAL JUDGMENT AND DECREE OF DIVORCE FILED ON OCTOBER 28, 1999 AND BY FINDING THAT IT WAS NOT IN CONFORMANCE WITH CASE LAW.”
{¶ 15} It appears that Joseph, when he retired from General Motors, was paid an early retirement bonus of some kind. Such bonuses are typically offered to veteran employees, who are more highly-paid, as an inducement to their voluntary retirement. In a defined benefit retirement plan, such as Joseph‘s plan with General Motors, the form of the inducement is generally an offer to add service credits to the years of service which qualify the employee to receive the pension benefit the plan defines.
{¶ 16} The trial court found that the QDRO it had approved was defective because the QDRO failed to secure for Mary Lou the 50%
{¶ 17} Joseph argues that the trial court erred when it ordered a new QDRO. He contends that the current QDRO correctly excludes his supplemental early retirement benefit because Mary Lou “is entitled to (a) monthly benefit determined as fifty (sic) person (percent) of (Joseph‘s) pension benefits accrued as of September 20, 1999 which would otherwise be payable to the participant under the plan” (Brief, p. 9), and does not include the early retirement benefit to which Joseph later became entitled. Therefore, according to Joseph, a different QDRO giving Mary Lou a share of his early retirement benefit constitutes a modification of a prior property division award prohibited by
{¶ 18} We do not agree. The decree of divorce awards Mary Lou “50% of the value of (Joseph‘s) interest in his GM Pension fund under the Survivor Annuity Benefit Pay-Out as of the date of this final judgment and decree of divorce.” The decree does not award Mary Lou a share of only those benefits that had then “accrued,” as Joseph argues. Rather, by identifying the date of the decree as the date for division of Joseph‘s pension benefit, the decree
{¶ 19} With respect to the share she was awarded in the decree, Mary Lou is entitled to the benefit of any increase in the value of her unmatured proportionate share after the divorce attributable to Joseph‘s continued participation in the retirement plan. Layne v. Layne (1992), 83 Ohio App.3d 599. Eligibility for early retirement benefits is a function of an employee‘s participation in the plan. We have held that, unless specifically excluded by the decree, early retirement benefits are properly divisible as marital property when they were earned during the marriage. Bagley v. Bagley, 181 Ohio St.3d 141, 2009-Ohio-688, ¶27; Hale v. Hale, Montgomery App. No. 21402, 2007-Ohio-867.
{¶ 20} The decree does not exclude early retirement benefits from the percentage of Joseph‘s pension Mary Lou was awarded. Mary Lou is entitled by the decree to 50% of the early retirement benefit Joseph receives or received which is attributable to Joseph‘s participation in the retirement plan during their marriage. Because the QDRO fails to produce that benefit for her, the QDRO the court approved on December 10, 1999, is defective. The court was obligated to correct the defect by ordering a new QDRO. A QDRO that conforms to the terms of the decree is not a
{¶ 21} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 22} “THE TRIAL COURT ERRED BY GRANTING APPELLEE RELIEF UNDER CIVIL RULE 60(B) FOR THE REASONS THAT APPELLEE‘S MOTION DID NOT CONFORM TO THE REQUIREMENTS OF CIVIL RULE 60(B) AND SAID MOTION WAS UNTIMELY.”
{¶ 23}
{¶ 24} “To prevail on a motion brought under
{¶ 25} Joseph argues that the defect in the QDRO on which Mary Lou relies is, if it exists, a form of “mistake,” grounds for relief
{¶ 26} The trial court ordered the QDRO vacated pursuant to
{¶ 27} “[W]hen a QDRO is inconsistent with the decree, the trial court lacks jurisdiction to issue it, and it is void.” Bagley, ¶27.
{¶ 28} Having found the QDRO inconsistent with the decree, and therefore void, the court erred in relying on
{¶ 29} The second assignment of error is overruled. The judgment of the domestic relations court will be affirmed.
BROGAN, J., concurs.
FROELICH, J., concurs in the judgment.
Copies mailed to:
Matthew J. Barbato, Esq.
L. Anthony Lush, Esq.
Hon. Denise L. Cross