[Cite as Woronka v. Woronka, 2012-Ohio-1184.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
VALERIE A. WORONKA : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellant : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00091
:
:
WILLIAM J. WORONKA : OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas, Domestic
Relations Division, Case No.
2006-DR-01016
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 12, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
EUGENE G. GILLIS EUGENE D. O’BYRNE, ESQ.
1594 Windcrest Street, N.W. 101 Central Plaza, South, Ste. #500
North Canton, Ohio 44720 Canton, Ohio 44702
[Cite as Woronka v. Woronka, 2012-Ohio-1184.]
Edwards, J.
{¶1} Plaintiff-appellant, Valerie Woronka, appeals from the April 4, 2011,
Judgment Entry of the Stark County Court of Common Pleas, Family Court Division,
denying her Motion to Show Cause.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 14, 2006, appellant Valerie Woronka and appellee William
Woronka filed a Petition for Dissolution of Marriage. The Separation Agreement that
was filed the same date stated, in paragraph 11, as follows: “Husband and Wife consent
and agree that Wife is to receive ½ of IBEW 401K by use of a Qualified Domestic
Relations Order (QDRO).”
{¶3} On August 14, 2006, appellant also filed a Financial Statement Affidavit in
which she listed appellee’s IBEW 401K as having a value of $32,118.60. Appellee, on
October 2, 2006, filed an affidavit in which he stated that he had reviewed the Financial
Statement Affidavit that was filed with the trial court and found it to be accurate. A
Decree of Dissolution incorporating the parties’ Separation Agreement was filed on
October 3, 2006.
{¶4} After problems arose involving the QDRO, a hearing regarding clarification
of the QDRO was scheduled for June 17, 2010. At the hearing, a representative of
IBEW Local 540 Security Plan clarified that appellee’s IBEW pension plan was a
Security Plan pension and that a separate 401(K) plan existed, but had no value.
Appellee acknowledged that the pension accrued during the marriage had an
approximate value of $30,000.00.
Stark County App. Case No. 2011CA00091 3
{¶5} The trial court, as memorialized in a Judgment Entry filed on June 21,
2010, stated, in relevant part, as follows: “In referring to the husband’s pension benefits,
the parties clearly contemplated an equal division of the martial portion of the pension.
The decree incorrectly referred to the pension as a 401(K) rather than as a Security
Plan. The decree issued on August 14, 2006, (sic) is ordered clarified to require an
equal division of the marital portion of the Defendant’s IBEW security plan through a
QDRO.”
{¶6} Appellee appealed from the trial court’s June 21, 2010 Judgment Entry,
arguing that the trial court had abused its discretion in modifying the Separation
Agreement. Pursuant to an Opinion filed on January 31, 2011 in Woronka v. Woronka,
5th Dist. No. 2010-CA-00193, 2011-Ohio-498, this Court agreed, finding that the trial
court had abused its discretion in finding that the parties intended to split appellee’s
security plan rather than the separate 401(K) plan. In our Opinion reversing the
judgment of the trial court and remanding the matter, this Court stated, in relevant part,
as follows: “In the case before us, the decree states the parties' intent to settle all their
property rights and interest, both temporary and permanent. Separation agreement,
Page 1. The final paragraph of the decree states that both parties are fully cognizant
and aware of the property and assets of the other party and understand the significance
of the agreement. The separation agreement does not refer to the IBEW Security Plan
at all, and it does not list the value of the 401(K).
{¶7} “The trial court found the decree incorrectly referred to appellant's pension
as a 401(K) and the parties intended to divide the Security Plan funds. We do not agree.
The record contains no evidence the parties intended to divide the Security Plan funds.
Stark County App. Case No. 2011CA00091 4
If there had been no 401(K) plan, then the language would be ambiguous and the court
could have determined what the agreement referred to, but here, there is a 401(K)
account, even though it is unfunded.
{¶8} “We find the language in the separation agreement to be clear and
unambiguous. The separation agreement refers to the parties' 401(K) plan, and the trial
court's decision substituting the Security Plan of a 401(K) plan was a modification, not a
clarification. We find the trial court abused its discretion in finding the parties intended to
split the Security Plan funds rather than the 401(K) plan funds.” Id at paragraphs 12-14.
{¶9} Upon remand, the trial court, pursuant to a Judgment Entry filed on
February 2, 2011, vacated its June 17, 2010 Judgment Entry. The trial court, in its
Judgment Entry, noted that, in accordance with this Court’s Opinion, “the 2006 divorce
decree and Separation Agreement is clear and ambiguous in limiting the Plaintiff’s
marital interest to the IBEW 401(K) which has no value. As such, no QDRO is
necessary.”
{¶10} On March 2, 2011, appellant filed a Motion to Show Cause, asking that
appellee be found in contempt of the trial court’s orders. Appellant, in her motion,
argued that appellee knew, or should have known, that his 401(K) plan did not have any
funds in it and that his funds were in a different pension plan and that appellee had
“fought, delayed, obstructed failed to disclose, defrauded and utilized the Court system
to keep [appellant] from getting her interest in the pension.” The trial court, via a
Judgment Entry filed on April 4, 2011, denied such motion and declined to find appellee
in contempt.
{¶11} Appellant now raises the following assignment of error on appeal:
Stark County App. Case No. 2011CA00091 5
{¶12} “THE TRIAL COURT ERRED IN NOT GRANTING
PLAINTIFF/APPELLANT’S MOTION TO SHOW CAUSE WHY THE
DEFENDANT/APPELLEE SHOULD NOT BE HELD IN CONTEMPT, AS
DEFENDANT/APPELLEE COMMITTED FRAUD IN BOTH HIS FINANCIAL AFFIDAVIT
AND THE SEPARATION AGREEMENT TO THE DETRIMENT OF THE
PLAINTIFF/APPELLANT.”
I
{¶13} Appellant, in her sole assignment of error, argues that the trial court erred
in not granting her Motion to Show Cause why appellee should not be held in contempt.
Appellant specifically contends that appellee committed fraud in both his financial
affidavit and the Separation Agreement.
{¶14} “To support a contempt finding, the moving party must establish, by clear
and convincing evidence, the existence of a valid court order, that the offending party
had knowledge of the order and that the offending party violated such order.” Hueber v.
Hueber, 12th Dist. Nos. CA2006–01–004, CA2006–02–019, CA2006–02–020, 2007–
Ohio–913, ¶ 16. Our standard of review regarding a finding of contempt is limited to a
determination of whether the trial court abused its discretion. Hagan v. Hagan, 5th Dist.
No. 2009CA00148, 2010–Ohio–540, ¶ 12, citing In re Mittas, 5th Dist. No.
1994CA00053, 1994 WL 477799 (Aug. 6, 1994).
{¶15} In the case sub judice, appellant maintains that appellee should have
been held in contempt because she was denied her one-half interest in appellee’s
retirement accounts, thereby denying appellant her fair share of the marital property.
Stark County App. Case No. 2011CA00091 6
Appellant contends that paragraph 11 of the parties’ Separation Agreement entitled her
to the same.
{¶16} As is stated above, the Separation Agreement that was incorporated into
the October 3, 2006 Decree stated, in paragraph 11, as follows: “Husband and Wife
consent and agree that Wife is to receive ½ of IBEW 401K by use of a Qualified
Domestic Relations Order (QDRO).” However, as discussed in the facts, the 401(K) is
unfunded and appellee’s IBEW pension plan is a Security Plan pension rather than a
401(K). There is no court order entitling appellant to one-half of appellee’s Security Plan
pension. Appellee, therefore, could not be held in contempt of a non-existent order.
{¶17} Appellant’s sole assignment of error is, therefore, overruled.
{¶18} Accordingly, the judgment of the Stark County Court of Common Pleas,
Family Court Division, is affirmed.
By: Edwards, J.
Hoffman, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d1212
[Cite as Woronka v. Woronka, 2012-Ohio-1184.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VALERIE A. WORONKA :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
WILLIAM J. WORONKA :
:
Defendant-Appellee : CASE NO. 2011CA00091
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is
affirmed. Costs assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES