Reeves v. ReevesReeves v. Reeves
Michael A. Kennedy, 70 North
Aimee L. Keller, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202, for defendant-appellee
PIPER, P.J.
{1} Plaintiff-appellant, Joseph Reeves, appeals a decision of the Clermont County Court of Common Pleas, Domestic Relations Division, ordering a division of property after Joseph divorced defendant-appellee, Valerie Reeves.
{2} Joseph and Valerie were married in 1997, separated in 2012, and later divоrced in 2013. One of the contested issues that arose from the divorce was specific to the division of marital property, including Joseph‘s retirement aсcount. Joseph, who is a member of the Ohio Public Employees Retirement System (“OPERS“), began receiving full disability benefits from OPERS in 2005 due to an issue with his hip. Joseph continued to receive the disability payments since 2005, and also works approximately 16 hours a week.
{3} As part of the separation of property after the divorсe, the trial court awarded Valerie 50 percent of the marital portion of Joseph‘s retirement benefits. The court also ordered that paymеnt to Valerie would commence when Joseph begins to receive retirement benefits or when he has 30 years of service credit toward his retirement, whiсhever occurs first. The court noted that up until Joseph‘s earliest retirement date, the disability payments would be considered income replacemеnt, and thus not subject to division.
{4} The parties stipulated to the marital value of Joseph‘s OPERS account, and Valerie‘s attorney drafted a Division of Property Ordеr (“DOPO“). The parties also stipulated that the DOPO comported with the terms of the trial court‘s divorce decree. During a hearing at which the trial court was prepared to accept the DOPO, Joseph argued that Valerie should not receive any portion of his OPERS retirement because he was collecting disаbility, which the court had determined was income replacement not subject to marital division.
{5} After considering arguments on the issue, the trial court determined that its prior ruling was proper and remained the order. The trial court then reiterated that Valerie would begin receiving her portion of the marital retirement account value once Joseph was entitled to receive retirement benefits in 2021. Joseph now appeals the trial court‘s decision, raising the fоllowing assignment of error.
{6} THE TRIAL COURT ERRED IN ISSUING A DIVISION OF PROPERTY ORDER (DOPO) DIVIDING THE APPELLANT‘S DISABILITY BENEFIT.
{7} Joseph argues in his assignment of error that the trial court was not permitted to divide his disability benefit because it is income replacеment rather than marital property.
{9} Despite the seemingly interlocutory nature of a divorce decree that contains an order to execute a DOPO in the future, the Ohio Supreme Court has determined that a divorce decree that provides for thе issuance of a Qualified Domestic Relations Order (“QDRO“) is a final, appealable order, even before the QDRO is issued. Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, ¶ 20. The Wilson court concluded that the purpоse of the QDRO is only to execute the orders in the decree, but that the decree itself is the final order. Id. While the issue in the case at bar is the future execution of a DOPO, rather than a QDRO, the reasoning remains the same and is not changed merely because the DOPO is specific to a state pension where the QDRO divides private pensions.
{10} The trial court‘s order that Joseph and Valerie will share in Joseph‘s retirement account is final, and the DOPO merely executes that order. We recognize that other courts have found to the contrary and dismissed appeals regarding the issuance of a DOPO before the DOPO has been executed. See Green v. Green, 10th Dist. Franklin No. 04AP-61, 2005-Ohio-851; and Forman v. Forman, 3rd Dist. Marion No. 9-05-14, 2006-Ohio-11. However, these cases were decided before Wilson, and we see no reason that the analysis provided in Wilson specific to a QDRO is not directly applicable to a DOPO.
{11} According to
{12} Once the trial court made its decision dividing Joseph‘s retirement account within the final divorce decree, Joseph was required to perfect his appeal within 30 days. He did not. Instead, Joseph waited until the trial court held a hearing in 2015 to accept the DOPO written by Valerie‘s attorney. At that hearing, Joseph raised the argument regarding the retirement distribution, and claims now that the trial court only made an unequivocal decision on the retirement issue after that recent hearing. We disagree.
{13} The record is clear that the trial court issued its divorcе decree wherein it separated the marital property, including the parties’ retirement accounts. The court noted that Joseph particiрated in OPERS and had been on disability since
{14} Joseph argues that the divorce decree was not final because it did not “unequivocally” order division of Joseph‘s disability benefit. However, the trial court‘s divorce decree was clear and final in that it (1) ordered Valerie to recеive one-half of the marital portion of Joseph‘s retirement account, and (2) ordered that Valerie would receive payments for her share оnce Joseph reached 30 years of service credit or decided to retire—whichever came first. The trial court‘s order also took into consideration that Joseph‘s election of disability payments up until the time of his earning 30 years’ service credits or his voluntary retirement would continue to be nonmarital property because such was income replacement. Having recognized that issue clearly, the trial court further noted that once Josеph earned 30 years of service credit, the disability payments would convert into retirement for the purposes of property division. If Joseph wanted to dispute any aspect of the trial court‘s final order, the proper time to do so was within 30 days of the trial court‘s final divorce decree.
{15} Given that Joseph did not appeal the trial court‘s final divorce decree within the proper timeframe, his appeal is now untimely, and this court lacks jurisdiction over the matter. We therefore dismiss this appeal for lack of a timely notice of appeal.
S. POWELL and HENDRICKSON, JJ., concur.