[Cite as Pearl v. Pearl, 2012-Ohio-4752.]
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
BARBARA J. PEARL :
Plaintiff-Appellee : C.A. CASE NO. 2012-CA-6
vs. : T.C. CASE NO. 03-DR-70
BENNY J. PEARL : (DOMESTIC RELATIONS APPEAL
FROM COMMON PLEAS)
Defendant-Appellant :
.........
OPINION
Rendered on the 12th day of October, 2012.
.........
Ronald C. Tompkins, Atty. Reg. No. 0030007, 19 Pearce Place, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
Anthony E. Kohler, Atty. Reg. No. 0032826, 210 North Fountain Avenue, Springfield,
Ohio 45504
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} This is an appeal from a final order of the domestic relations court that
modified a qualified domestic relations order (“QDRO”) the court previously entered, on a
finding that the QDRO was inconsistent with the underlying decree of dissolution, and that
ordered a new and different division and distribution of pension retirement benefits.
[Cite as Pearl v. Pearl, 2012-Ohio-4752.]
{¶ 2} Barbara J. Pearl and Benny J. Pearl were married in 1981. On June 9, 2003,
their marriage was terminated by a decree of dissolution. [Dkt. 3}. The decree incorporated
the parties’ separation agreement. [Dkt. 2]. The separation agreement provides:
The husband has a 401(k) through his place of employment,
International Harvester, with an approximate value of $45,000. The wife shall
receive one-half of the 401(k) and one-half of the husband’s pension benefits
for 21 of the husband’s 40 years of employment at IH by QDRO fashioned by
her attorney and approved by the company.
{¶ 3} Benny1 was not represented by counsel in the dissolution proceeding. The
QDRO prepared by Barbara’s attorney, which Benny signed, and ordered by the court on
October 8, 2004 [Dkt. 10], provided:
2. The benefit payable to the Alternate Payee from the Plan shall be
50% of the vested accrued benefit of Participant (“the Alternate Payee
Benefit”) as of June 9, 2003.
{¶ 4} Barbara was entitled to receive benefits under Benny’s pension plan while he
remained working. Benny continued working until early 2011, when he retired and learned
that the benefit Barbara had received pursuant to the QDRO was 50% of his entire pension
benefit, not 50% of the benefit that accrued during the 21 years they were married, as provided
in their separation agreement. As a result, Benny’s benefit was reduced by the pension plan.
1
For clarity and convenience, the parties are identified
using their first names.
3
{¶ 5} Benny moved to modify the QDRO to conform to the terms of the separation
agreement. Benny contended that, as a result of the error in the QDRO, he will receive $250
to $300 per month less than the retirement benefit to which he would otherwise be entitled.
The court set Benny’s motion for hearing. In a motion to continue the hearing, Barbara
contended that the pension plan was now withholding $690 from her monthly benefit to
recoup the overage she was paid, which reduced her monthly benefit to $317.55.
{¶ 6} It was undisputed that the QDRO was inconsistent with the separation
agreement and decree, and that Barbara was overpaid as a result. The point in dispute was
how to fashion a new QDRO to take account of the overpayment to Barbara.
{¶ 7} The pension plan reported that only three options were available. The first
would repay the plan from Barbara’s share first, reducing her benefit to zero, with any
additional amount necessary taken from Benny’s share, and providing no survivor benefits for
Barbara. The second option would repay the amount from Benny’s share and also reduce
Barbara’s share. Benny would then receive $1,110.80 per month, and Barbara would receive
$221.60 without survivor benefits, or $183.29 with survivor benefits. The third option would
require Barbara to repay the plan in a lump-sum amount of $26,356.65 and establish new
benefit payments consistent with the separation agreement. If none of the three options were
adopted, payments would continue in accordance with the 2004 QDRO. The parties
submitted the three options for the court’s consideration.
{¶ 8} On January 13, 2012, the court journalized a judgment, stating:
Both counsel agreed that Option Three, which is a lump sum payback
by Barbara J. Pearl is not feasible and should not be considered.
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Barbara J. Pearl argues Option Two should be used which reduces her
share, depending upon whether or not a survivorship benefit is available, to
either $221.69 or $183.29 per month. Benny J. Pearl would receive $1,110.80
per month under either of those scenarios.
Benny J. Pearl argues Option One should be used which reduces
Barbara J. Pearl’s share to zero ($0.00) dollars per month with no survivorship
possibility and sets Benny J. Pearl’s share at $1,335.18 per month.
The Plan notes that Option One seeks to recoup their overpayment from
Barbara J. Peal’s (sic) share while Option Two seeks to recoup the
overpayment from Benny J. Pearl’s share.
It would be easy to say Barbara J. Pearl was the one that was overpaid
so she should be the one that bears the loss to fix the situation. However, the
Court believes that it must look to the original intent of the parties in guiding
its decision to modify the QDRO not just who owes the Plan.
Although the Plan is only concerned with being paid back and by
whom, the Court believes its role is to modify the QDRO in an acceptable way
to the Plan which most accurately reflects the parties’ intentions at the time
they created the QDRO during their dissolution. In that light, the Court
believes Option One fails to reflect two aspects of the parties’ original intent.
First, that Barbara J. Pearl would receive a portion of Benny J. Pearl’s pension
for her retirement and, second, that if Benny J. Pearl predeceased her that there
would be some survivor benefit. Option One provides that her benefit is
5
reduced to zero ($0.00) dollars and no survivorship benefit is available.
Option Two provides for some benefit to be paid to her, albeit reduced and
does provide for a survivor benefit.
For all these reasons, IT IS ORDERED AND ADJUDGED that the
parties shall modify the QDRO as provided for in Option Two; however,
Barbara J. Pearl shall select the benefit of $183.29 per month which allows for
survivor benefits. [Dkt. 44].
{¶ 9} Benny filed a notice of appeal from the final order of January 13, 2012.
{¶ 10} Assignment of Error:
“THE TRIAL COURT DIVIDED THE HUSBAND’S PENSION INEQUITABLY
BOTH IN THE IMPLEMENTATION OF THE ORIGINAL QDRO AS WELL AS THE
CURRENT QDRO, BOTH OF WHICH ARE VOID.”
{¶ 11} A QDRO implements the court’s order dividing a pension plan in a decree of
divorce or dissolution. Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d
16. That division is not subject to future modification by the court except upon the express
written consent or agreement of both spouses. R.C. 3105.171(I); R.C. 3105.65(B). A
QDRO which is inconsistent with a division ordered in the decree of divorce or dissolution
operates to modify the decree, and per R.C. 3105.171(I) the court lacks jurisdiction to enter
the QDRO. Bagley v. Bagley, 181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469. A
QDRO modifies the decree when the QDRO varies from, enlarges, or diminishes the division
and disbursement of retirement benefits ordered in the decree. Wilson.
6
{¶ 12} The parties agree that the QDRO was inconsistent with the decree because it
failed to implement the coverture factor (21 of Benny’s 40 years of employment) ordered in
the decree. Benny argues that the modifications the court ordered on January 13, 2012 are
likewise inconsistent with the decree because they impose some part of the cost of the overage
Barbara was paid under the QDRO on him, reducing his benefit, instead of wholly on Barbara,
who benefitted from the overage. Furthermore, Benny points out, the QDRO was prepared
by Barbara’s attorney, and the error is therefore chargeable to Barbara.
{¶ 13} Benny was unrepresented in the dissolution proceeding. However, Benny
signed the QDRO as well as a Waiver of Attorney acknowledging his “complete
understanding that the attorney herein represents the Petitioner-Defendant Barbara J. Pearl.”
[Dkt. 2]. Any prejudice Benny suffered in consequence of that fact is chargeable to Benny as
well as to Barbara.
{¶ 14} The modifications the court ordered vary from the division and disbursement of
retirement benefits ordered in the decree, to the extent that Benny’s share of his pension will
be $1,110.80 per month instead of $1,335.18. Barbara’s share is likewise reduced. Those
changes were ordered by the court to preserve some benefit for Barbara, as well as her
survivor rights, which the court found were material to the separation agreement the parties
reached.
{¶ 15} On the authority of our holding in Bagley, any QDRO containing the new
provisions for division and distribution of Benny’s pension retirement benefit that the court
ordered, being different from the separation agreement, is necessarily void for lack of
jurisdiction. However, any QDRO containing the modifications that Benny urged the court to
7
order, consistent with option one, would likewise be void under Bagley because, in denying
Barbara her continuing right to a share of Benny’s pension and her survivor rights, the new
QDRO would also vary from the separation agreement.
{¶ 16} The conundrum this presents illustrates the point made by the concurring
opinion in Bagley: that “jurisdictionalizing” error undermines the finality of orders, and that a
QDRO is no different from any other order “[a]ffect[ing] a substantial right made * * * upon a
summary application in an action after judgment,” R.C. 2505.02(B)(2), and is therefore a final
order subject to review for errors of law pursuant to R.C. 2505.03(A). On that basis, a
QDRO that violates the prohibition against modifications in R.C. 3105.171(I) is not void, but
voidable for error only.
{¶ 17} We are persuaded that the concurring opinion in Bagley is the sounder view.
Therefore, we overrule our holding in Bagley, that a QDRO which varies from the division of
pension plan benefits ordered in a decree of divorce or dissolution in violation of R.C.
3105.171(I) is void for lack of jurisdiction, and hold that the violation is voidable for error.
Being voidable for error, the QDRO is an order subject to appeal for review of the error
concerned.
{¶ 18} Benny took no appeal from the QDRO the court ordered in 2004. Because
that QDRO is a final order, it is not subject to subsequent modification by the court absent
some express agreement by the parties in their separation agreement incorporated into the
decree of dissolution that the court retains the power to modify the division and distribution of
Benny’s pension retirement benefits. In re Whitman, 81 Ohio St.3d 239, 690 N.E.2d 535
(1998). No such authority was retained.
[Cite as Pearl v. Pearl, 2012-Ohio-4752.]
{¶ 19} The domestic relations court erred when it modified the QDRO it ordered in
2004 to provide for a new and different division and distribution of Benny’s pension
retirement benefits. The judgment of January 13, 2012 will be reversed. The cause will be
returned to the domestic relations court on our special mandate to reinstate the terms of the
QDRO which the court previously ordered in 2004.
Fain, J., and Donovan, J., concur.
Copies mailed to:
Ronald C. Tompkins, Esq.
Anthony E. Kohler, Esq.
Hon. Brett A. Gilbert