Williams v. WilliamsWilliams v. Williams
The Bonecutter Firm, LLC, and Brenda L. Bonecutter, for Defendant-Appellee.
{1} Plaintiff-appellant Patricia Elaine Williams (“Patricia“) appeals the entry issued by the Hamilton County Court of Common Pleas, Domestic Relations Division, denying her Civ.R. 60(B) motion for relief from judgment in which she had asked the trial court to modify a provision of her divorce decree. Because
Factual and Procedural Background
{2} On January 22, 2019, Patricia filed a complaint for divorce against her then husband, defendant-appellee Richard Allen Williams (“Richard“). On November 22, 2019, Patricia and Richard entered into an “Agreed Entry on Divorce.” The entry indicated that the trial court adopted and approved the agreement of the parties as placed on the record and affirmed by each party.1 Approximately two months later, on January 29, 2020, the trial court journalized a decree of divorce.
{3} As relevant to this appeal, the decree addressed the division of the parties’ retirement accounts. It provided that:
Plaintiff is entitled to 50% of Defendant‘s two retirement accounts: Defendant is vested in the Ohio Public Employees Retirement System (OPERS), which is marital in nature and approximate value $261,047.00 as of May 24, 2019, and Defendant is fully vested in a Retirement Savings IRA, which is marital in nature and approximate
value April 30, 2019 of $3099.78. Both of these Plaintiff shall receive 50% for the dates of marriage, May 9, 1997 through May 24, 2019, minus credit for Defendant‘s one-half interest in Plaintiff‘s 401(K), which is marital in nature and valued at approximately $25,311.31 as of August 12, 2019.
The decree further provided that Patricia was responsible for the cost of preparing any Qualified Domestic Relations Order (“QDRO“) or Division of Property Order (“DOPO“) necessary to effectuate the transfer of the retirement assets. There was no further explanation of what 50 percent meant.
{4} After retaining the services of an attorney qualified to draft the required DOPO, Patricia learned that she would not be able to receive her portion of Richard‘s OPERS retirement account in an immediate lump-sum payment. Rather, she could only receive 50 percent of his monthly pension payments and only once he retired. And, in the absence of an election of joint-and-survivor benefits, her payments would cease upon Richard‘s death. Because Patricia had believed otherwise, she filed a motion for relief from judgment under Civ.R. 60(B). The motion requested that the trial court modify the portion of the divorce decree concerning the division of the parties’ retirement accounts to include both: (1) an order that Richard cooperate with Patricia and a life insurance company of her choice should she choose to obtain insurance on Richard‘s life; and (2) an order that Richard, upon his retirement, choose a joint-and-survivor benefit option to the extent of Patricia‘s marital interest as reflected by the DOPO.
{5} In support of her motion, Patricia submitted an affidavit stating that she had believed the parties’ decree of divorce would allow her to receive her portion
{6} Patricia additionally submitted an affidavit from J. Eileen Zell, whom she had retained to draft the DOPO. Zell detailed her qualifications and knowledge on the subject of the division of retirement and other deferred-income arrangements in divorce. She stated that Patricia could not receive her share of Richard‘s OPERS account in an immediate payment, and that she could not receive any payment until Richard began receiving his benefits following his retirement. Zell opined that Patricia‘s interest in Richard‘s OPERS account needed to be protected, and that the most efficient way to do so was via a term life insurance policy prior to Richard‘s benefit commencement and a joint-and-survivor election at benefit commencement.
{7} While Patricia‘s motion was pending, the trial court issued a DOPO concerning the division of Richard‘s OPERS account. The DOPO provided that Patricia was entitled to either a per benefit payment and/or lump sum payment of 45.7 percent of a specific fraction that was set forth in a different section of the DOPO. The numerator of the fraction was 20.75, which was the number of years during which Richard was a contributing member to OPERS and married to Patricia. The denominator of the fraction was yet to be determined, and will ultimately be Richard‘s total years of service credit with OPERS. The DOPO was sent to OPERS, which, on April 20, 2021, issued a “notice of nonapproval of division of property order.” The notice specified that the submitted DOPO was not approved because a particular paragraph in the order “does not include boxes next to the types of
{8} The trial court held a hearing on Patricia‘s motion for relief from judgment regarding the divorce decree (note that Patricia was not seeking to modify the DOPO). Patricia testified in accordance with her previously submitted affidavit, additionally stating that the parties had intended to equally divide their pension and retirement interests. Zell likewise testified in accordance with her affidavit concerning the actions necessary to protect Patricia‘s interest in Richard‘s OPERS account. According to Zell, absent these safeguards, Patricia will be unable to receive her full marital interest in Richard‘s OPERS account if he predeceases her.
{9} Richard testified that prior to the decree of divorce being issued by the trial court, there had been no discussion of Patricia obtaining a life insurance policy on him or of him electing a survivorship benefit. Richard further testified that he would not agree to elect a survivorship benefit or to allow Patricia to obtain the requested life insurance.
{10} The trial court denied Patricia‘s motion for relief from judgment. The court noted that Patricia had not specified which subsection of Civ.R. 60(B) she was seeking relief under, but that it was limited by law to granting relief under Civ.R. 60(B)(1), (2), or (3). It further found that because Patricia made no allegations of fraud or newly discovered evidence, she was only able to seek relief under Civ.R. 60(B)(1) for mistake, inadvertence, surprise, or excusable neglect. The court determined that Patricia had not met her burden of demonstrating that she was entitled to relief under this subsection, and that, even if she had met her burden, relief was nonetheless unavailable because, pursuant to
{11} Patricia now appeals.
Civ.R. 60(B) Relief was not Available
{12} In a single assignment of error, Patricia contends that the trial court erred as a matter of law in denying her motion for relief from judgment. She argues that
1. R.C. 3105.171
{13} We first consider Patricia‘s argument that
{14}
{15} The Supreme Court of Ohio considered the impact of
{16} Wife filed a motion for relief from judgment under Civ.R. 60(B)(4) and (5), asking the court to modify the divorce decree to reflect the percentage of the pension to which she was entitled and “the parties’ actual date of marriage and date of divorce, rather than the agreed upon dates which do not meet the 10/10 rule.” Id. at ¶ 9. The trial court granted wife‘s motion for Civ.R. 60(B) relief. Husband appealed and the court of appeals affirmed, finding that the trial court was able to modify the terms of the divorce decree concerning the pension because it had retained jurisdiction over the QDRO. Id. at ¶ 13.
{17} The Walsh court reversed. It held that “[i]n addition to the Civ.R. 60(B) requirements for modification, the divorce and dissolution statutes contain certain statutory restrictions that limit the authority of a trial court to modify a final
{18} In this case, because Richard did not consent to Patricia‘s requested changes to the divorce decree, pursuant to
2. R.C. 3105.89
{19} Patricia argues that the trial court was statutorily permitted to modify the divorce decree, notwithstanding
Notwithstanding division (I) of section 3105.171 of the Revised Code:
(A) The court shall retain jurisdiction to modify, supervise, or enforce the implementation of an order described in section 3105.81 of the Revised Code.
(B) The court may modify an order issued under section 3105.171 or 3105.65 of the Revised Code that was effective prior to the effective
date of this section for the purpose of enforcing the order or carrying into effect the manifest intentions of the parties. A modified order must meet the requirements of section 3105.82 of the Revised Code.
(Emphasis added.)
{20} Subsection (B) of
{21} Subsection (A) of
A court that issues an order under section 3105.171 or 3105.65 of the Revised Code that provides for a division of property that includes a benefit or lump sum payment and requires one or more payments from a public retirement program to an alternate payee shall include in the order a requirement that the payments be made in accordance with and subject to limitations set forth in sections 3105.82 to 3105.90 of the Revised Code.
{22} The divorce decree that Patricia sought to modify provided that she was entitled to 50 percent of Richard‘s OPERS account for the dates of their marriage, which were specified in the decree. The decree further provided that the OPERS account had a value at the time the decree was issued of $261,047.00. With this language, the decree likely complied with the first requirement set forth in
{23} In a factually similar case, the Sixth Appellate District considered an argument regarding the applicability of
{24} The Sixth District cited Walsh and held that the trial court was not permitted to modify the decree absent the consent of both parties. It also considered husband‘s argument that, because the trial court‘s modification pertained to implementing the distribution from wife‘s OPERS account,
{25} The Sixth District further held, however, that while the trial court lacked authority to modify the decree, it did not lack authority to consider a Civ.R. 60(B) motion. It held that
{26} Several other Ohio appellate districts have analyzed
Conclusion
{28} Because the trial court did not err in denying her motion for relief from judgment, Patricia‘s assignment of error is overruled. The judgment of the trial court is accordingly affirmed.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.