[Cite as Butcher v. Butcher, 2011-Ohio-2550.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95758
SALLY J. BUTCHER
PLAINTIFF-APPELLEE
vs.
RONALD K. BUTCHER
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Domestic Relations Division of the
Cuyahoga County Court of Common Pleas
Case No. D-270637
BEFORE: Keough, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Ellen S. Mandell
55 Public Square
Suite 1717
Cleveland, OH 44113
ATTORNEY FOR APPELLEE
Raymond J. Costanzo
Costanzo & Lazzaro
13317 Madison Avenue
Lakewood, OH 44107
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Ronald K. Butcher (“Husband”), appeals
from the trial court’s judgment entry adopting the proposed qualified
domestic relations order (“QDRO”) of plaintiff-appellee, Sally J. Butcher,
n.k.a. Peterson (“Wife”). For the following reasons, we reverse and remand
with instructions.
{¶ 2} In September 2000, the parties’ marriage was terminated by a
divorce decree that incorporated and adopted the parties’ negotiated
handwritten separation agreement. Pursuant to the judgment of divorce, a
QDRO was to be submitted to the trial court resolving Wife’s interest in
Husband’s Ford Motor Company pension. Husband submitted his proposed
QDRO to Wife; however, she did not respond to the proposal. In February
2009, Husband moved the trial court to adopt his proposed QDRO, which the
court adopted a week later. Upon receiving notification of the signed QDRO,
Wife filed a motion for relief from judgment, arguing that she did not receive
notice of Husband’s motion and proposed QDRO. Wife also requested that
the trial court adopt her proposed QDRO. Husband filed a brief in opposition
to Wife’s motion, arguing that his proposed QDRO should be implemented.
{¶ 3} The parties’ motions and competing QDROs were referred to a
magistrate. No hearing was held, as the parties agreed no questions of fact
were at issue. The magistrate issued a written opinion recommending that
the court grant Wife’s motion for relief from judgment and adopt Wife’s
proposed QDRO.
{¶ 4} The magistrate identified the issue before it as follows: “When
minimalist language is used in a separation agreement regarding the division
of marital pension by coverture fraction, exactly what terms can a court
subsequently adopt in a QDRO to clarify the intent of the parties as
evidenced in the separation agreement, without crossing over legal
boundaries where the post-decree QDRO becomes a void modification of the
divorce decree’s division of property[?]”
{¶ 5} The magistrate found that a conflict in interpreting this issue
existed between the Twelfth and Eighth appellate districts, citing Adkins v.
Bush, Butler App. No. CA2002-05-131, 2003-Ohio-2781, and Gordon v.
Gordon (2001), 144 Ohio App.3d 21, 759 N.E.2d 43. In resolving this conflict,
the magistrate determined Gordon should control because it was from this
appellate district. In applying Gordon, the magistrate recommended that
Wife “should have [a] marital interest, based upon the stated coverture
fraction, in all of [Husband’s] pension benefits if real meaning is to be given to
the parties’ agreement, that ‘all further retirement and investment accounts
of husband shall be divided equally.’” Accordingly, the magistrate
recommended that Wife’s QDRO, which utilized coverture fraction and
provided Wife with early retirement supplements, interim supplements,
temporary benefits, and pre-retirement survivorship benefits under
Husband’s Ford retirement account, be adopted.
{¶ 6} Husband filed written objections to the magistrate’s decision, in
which he challenged only the recommendation to adopt Wife’s proposed
QDRO. The trial court adopted the magistrate’s decision in its entirety,
without a hearing. Husband now appeals, arguing as his sole assignment of
error that the trial court erred in adopting Wife’s proposed QDRO.
{¶ 7} The standard of review on appeal from a decision of a trial court
adopting a magistrate’s decision is whether the trial court abused its
discretion. O’Brien v. O’Brien, Cuyahoga App. No. 86430, 2006-Ohio-1729,
11. “The term ‘abuse of discretion’ connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450
N.E.2d 1140. However, an abuse of discretion may be found when the trial
court “applies the wrong legal standard, misapplies the correct legal
standard, or relies on clearly erroneous findings of fact.” Thomas v.
Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, 15.
{¶ 8} It is well settled that pension and retirement benefits are marital
assets subject to equitable division upon a divorce. R.C. 3105.171; Hoyt v.
Hoyt (1990), 53 Ohio St.3d 177, 178, 559 N.E.2d 1292. A trial court cannot
modify or amend a marital property division incident to a divorce or
dissolution decree, absent expressed consent by the parties. R.C.
3105.171(I). This prohibition is jurisdictional. See, e.g., McKinney v.
McKinney (2001), 142 Ohio App.3d 604, 608, 756 N.E.2d 694.
{¶ 9} To effectuate the division of pension and retirement benefits, the
domestic relations court enters a QDRO, which is an order that “creates or
recognizes the existence of an alternate payee’s right to, or assigns to an
alternate payee the right to, receive all or a portion of the benefit payable
with respect to a participant under a plan * * *.” Employee Retirement
Income Security Act of 1974, Section 206(d)(3)(B)(i)(I). Ordinarily, it is
issued subsequent to and separate from the decree of divorce itself. A QDRO
is therefore merely an order in aid of execution on the property division
ordered in the divorce decree dividing retirement or pension assets.
McKinney at 608. If the QDRO is consistent with the decree, it does not
constitute a modification, which R.C. 3105.171(I) prohibits, and the court does
not lack jurisdiction to issue it. Id., citing Tarbert v. Tarbert (Sept. 27, 1996),
Clark App. No. 96-CA-0036.
{¶ 10} In this case, the dispute centers around the meaning of the
divorce decree and separation agreement on which the QDRO would issue.
When parties dispute the meaning of a clause in their separation agreement,
a trial court must first determine whether the clause is ambiguous. Adkins
at 26. A clause is ambiguous where it is subject to more than one
interpretation. Id., citing Weller v. Weller (1996), 115 Ohio App.3d 173, 179,
684 N.E.2d 1284. A trial court has broad discretion in clarifying ambiguous
language by considering the parties’ intent and the equities involved. Id. If
the decree and separation agreement are ambiguous regarding the division of
Husband’s retirement and pension accounts, the court can properly clarify
their meaning without violating the prohibition of R.C. 3105.171(I). Gordon
at 24; Adkins at 26.
{¶ 11} However, if the terms in the separation agreement are
unambiguous, a trial court may not clarify or interpret those terms. Adkins
at 27, citing In the Matter of Leonhart v. Nees (Aug. 20, 1993), Erie App. No.
E-93-03; Sowald & Morganstern, Domestic Relations Law (2002) 438, Section
9:48. “‘Further, where there is no uncertainty, but only an absence in the
agreement of a provision about a particular matter, the court must not
construe as included something intended to be excluded nor make the
contract speak where it was silent.’” Adkins at 27, quoting Sowald &
Morganstern.
{¶ 12} Therefore, the question before this court is whether the QDRO
adopted by the trial court is a modification or clarification of the separation
agreement. If it is a modification, then the QDRO is void because the trial
court did not have jurisdiction to make a modification. See R.C. 3105.171(I).
However, if it is a clarification, we must determine whether the trial court
abused its discretion in adopting Wife’s proposed QDRO.
{¶ 13} The relevant portion of the parties’ separation agreement is
Section 3(C), entitled “Pension, Retirement, Stocks, Bonds, etc.” The crux of
this appeal involves subsection (b), which provides:
{¶ 14} “Husband has further retirement benefits through Ford Motor
Company. All further retirement & investment accounts of Husband shall
be divided equally (all accounts but Tesphe). Date of termination of
marriage is the court’s journalization date. Wife’s interest in Husband’s
pension of retirement accounts shall be secured through a separate order
upon Husband’s employer.”
{¶ 15} Wife contends that an equal division of the Ford retirement
account includes pre-retirement survivorship benefits, early retirement
supplements, interim supplements, and temporary benefits, and that the
account should be divided by coverture fraction. In support of her argument,
Wife maintains that Hoyt is the controlling authority to guide us with our
decision. However, the procedural posture of Hoyt is distinguishable from
the case before us. In Hoyt, the Ohio Supreme Court reviewed a trial court’s
decision dividing marital property and established guidelines for courts to
consider when dividing retirement and pension benefits in a divorce action.
{¶ 16} In the case before us, the Butchers entered into a separation
agreement where they agreed on the division of marital assets. From the
record, we glean that both parties and their attorneys, over a course of
various pretrials, negotiated the division of marital property, including
pension and retirement accounts. The trial court did not determine how the
marital property should be divided and did not utilize any guidelines
established by Hoyt. Accordingly, we do not find Hoyt helpful. The parties
negotiated the division of their marital property and that agreement was
memorialized in the separation agreement adopted by the divorce decree.
However, the “minimalist language” used in the separation agreement
regarding the division of Husband’s Ford retirement account has caused the
controversy in this matter.
{¶ 17} The trial court indicated that a conflict among appellate districts
exists in resolving the issue of “minimalist language” contained in separation
agreements. See Adkins and Gordon.
{¶ 18} Husband urges this court to follow the Adkins decision, where the
Twelfth District was faced with an identical issue. In Adkins, the parties’
separation agreement simply provided that: “Wife shall receive 1/2 of
Husband’s pension through his employer.” The Adkins trial court adopted
Wife’s proposed QDRO, which provided pre- and post-retirement benefits,
supplements, and survivorship benefits. On appeal, the Adkins court
concluded that because the “minimalist language contained in the inartfully
drafted separation agreement” was not ambiguous, the trial court abused its
discretion in extending or modifying the agreement. Id. at 28. “That
agreement provides simply that [wife] is to receive one-half of [husband’s]
pension through his employer. There is nothing ambiguous about that
clause. The QDRO proposed by [wife] and adopted by the trial court tried to
‘fill in the gaps’ left by Section V of the parties’ separation agreement by
allowing [wife] to share in any pre-retirement and post-retirement benefits
that [husband] may acquire or had acquired, and by providing [wife] with
survivorship benefits. However, these provisions of the QDRO do not simply
clarify or construe an ambiguity in the parties’ separation agreement, but,
instead, amend or modify the agreement, which is not permitted.” Id.
{¶ 19} However, the trial court in this case relied on this court’s holding
in Gordon and found that when minimalist language is used, the trial court is
authorized to clarify the parties’ separation agreement to reflect the intent of
the parties. In Gordon, the trial court was asked to clarify a term that was
inadvertently left out of the separation agreement and QDRO, but the parties
intended to include. This court held that “the magistrate’s intent was merely
to clarify a point that had been inadvertently left out of the order. The court
used the survivorship rights as part of the calculation of the appellant’s and
appellee’s shares of the marital estate. Therefore, by granting the appellee’s
relief from judgment and reissuing a new order in the spirit of what had been
the intent of the two parties, the actions of the lower court were simply to
clarify a mistake made in the earlier order.” Id. at 25.
{¶ 20} In Gordon, it appears that extrinsic facts and evidence were
presented to the trial court so it could determine the intent of the parties at
the time the separation agreement was executed. In dividing the parties’
marital assets, the Gordon trial court used the survivorship rights as part of
the calculation. Therefore, it appeared that the parties intended that
survivorship rights would be awarded to the Wife. Accordingly, it was
proper to clarify the term that was inadvertently left out of the decree.
{¶ 21} In the instant case, we do not have an inadvertent mistake that
simply needs to be added or clarified; rather, the trial court was requested to
interpret the separation agreement and “fill in the gaps.” Moreover, the trial
court did not conduct a hearing to determine the intent of the parties at the
time the separation agreement was executed. A hearing would have allowed
for a more meaningful appellate review of the “inartfully drafted separation
agreement.” Adkins, supra.
{¶ 22} Although the trial court found that a conflict exists among
appellate districts, we do not find such conflict. The issue in Gordon was
whether the trial court could clarify a provision that was mistakenly left out
of the QDRO and separation agreement, whereas Adkins resolved whether
the trial court could interpret the separation agreement to determine the
parties’ intent regarding what benefits should be awarded under the pension.
The issues in these two cases are distinguishable and accordingly, there is
no conflict.
{¶ 23} The case before us resembles the facts in Adkins and we find it
persuasive. The unambiguous language in the separation agreement
provides that the parties agreed to divide Husband’s Ford retirement account
equally. The QDRO adopted by the trial court “filled in the gaps” left in the
parties’ separation agreement. But the QDRO adopted by the trial court
does not simply clarify or construe an ambiguity in the separation agreement;
rather, it expands and modifies the agreement, which is prohibited by R.C.
3105.171(I). Accordingly, we find that the trial court lacked jurisdiction to
approve a QDRO that provides Wife with early retirement supplements,
interim supplements, temporary benefits, and pre-retirement survivorship
benefits, absent any showing the parties intended for Wife to share in such
benefits. The QDRO adopted by the trial court is rendered void.
{¶ 24} Judgment reversed and case remanded to the trial court with
instructions to conduct an evidentiary hearing to determine the intent of the
parties at the time of execution of the separation agreement as to how
Husband’s Ford retirement account should be divided, and to adopt a QDRO
reflecting such intent.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
Butcher v. Butcher
Combined Opinion