[Cite as Miller v. Miller, 2011-Ohio-4299.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
JANICE M. MILLER C.A. No. 10CA0034-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EVAN T. MILLER COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 00-DR-0613
DECISION AND JOURNAL ENTRY
Dated: August 29, 2011
BELFANCE, Judge.
{¶1} Appellant Evan T. Miller (“Husband”) appeals the judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, adopting and approving Qualified
Domestic Relations Orders (“QDROs”) proposed by Janice M. Miller (“Wife”). For reasons
stated below, we reverse.
I.
{¶2} This Court previously summarized much of this matter’s facts and procedural
history in a prior appeal:
“Husband and Janice M. Miller (“Wife”) were married on October 25, 1969.
Husband worked both before and during the parties’ marriage and participated in
each of the following retirement accounts: a United Airlines defined-benefit
account, a Frank Russell Corporation ‘A fund’ account (‘the Frank Russell
account’), and a Retirement Advisors of America ‘B fund’ account (‘the RAA
account’). After Wife filed for divorce on August 10, 2000, the parties engaged
in lengthy litigation, culminating in this appeal. The sole issue on appeal is
whether the trial court properly divided Husband’s two defined-contribution
accounts, the Frank Russell and the RAA account (‘the Accounts’).
2
“The parties’ divorce hearing took place on July 25, 2001. At the hearing, the
parties read an agreement into the record, part of which defined how they would
distribute the Accounts. The record provides as follows:
“‘There are some retirement pension accounts that are set forth on Attachment
B[.] * * * [The Accounts] * * * are the United Airlines related accounts typically
called the ‘A’ and ‘B’ funds. Those also will be divided taking into consideration
the premarital component credit to [Husband] before the equal division. * * * The
pension distribution-the ‘A’ and ‘B’ funds-will be handled through a qualified
domestic relations’ order.’
“On October 26, 2001, the trial court journalized the parties’ divorce decree,
using a proposed journal entry submitted by Husband. The relevant portion of the
journal entry provides as follows:
“‘The parties have agreed and the Court hereby orders that with respect to
[Husband’s] three (3) retirement plans through United Airlines, consisting of his
monthly pension, the Frank Russell [account] []and the [RAA account], referred
to respectively as the A and B Plans that those should be divided by Qualified
Domestic Relations Orders [“QDROs”]. Said order shall be prepared by QDRO
Consultants, and the parties agree that each shall be responsible for one-half of the
expense of preparing such Qualified Orders. The date of the [QDROs] shall be a
division on date of final hearing, which is as of July 25, 2001. The parties agree
and the Court orders that the distribution by and between [Wife] shall be 50
percent of the marital covertures value therein. It is the express understanding
and agreement of the parties and the order of the Court, that [Husband] was
employed for some period of time prior to the date of marriage, and it is the
agreement of the parties and the order of the Court, that defendant shall be
entitled to his premarital share free and clear of the claims of [Wife], and that the
remainder, attributable to the period of the marriage, shall be divided equally by
[QDROs][.]’
“Despite the court’s order, the parties were unable to agree on specific QDROs.
Over the next five years, Husband and Wife prepared and submitted various
competing QDROs.” (Emphasis omitted.) Miller v. Miller, 9th Dist. No.
07CA0068-M, 2008-Ohio-2106, at ¶¶2-4. (“Miller I”).
{¶3} On May 2, 2006, the trial court entered an order (the “2006 Order”) in which it
acknowledged that it was without jurisdiction to modify the divorce decree, but found that it had
authority to interpret and enforce its own orders, including the divorce decree. The court
rejected the submitted QDROs, finding that they did not reflect the terms set forth in the divorce
decree, and set out a specific formula for the division of the Accounts.
3
{¶4} The parties then submitted further QDROs and appeared before a Magistrate, who
issued a Magistrate’s Decision on November 1, 2006. The decision issued by the Magistrate
stated:
“The only issue before this Magistrate is whether the Domestic Relations Orders
proposed by [Wife] property [sic] effectuate the decree of divorce as construed in
the [2006 Order]. The Magistrate finds that the proposed Orders do so. * * * The
Court should accept the proposed Domestic Relations Orders and make them
orders of the Court.”
{¶5} Husband filed objections and a motion to reconsider, which the court treated as a
motion for relief from judgment with respect to the 2006 Order pursuant to Civ.R. 60(B). The
trial court held a hearing on February 2, 2007, which the court began by stating, “We’re here on
[Husband’s] objections to the Magistrate’s decision[.]” During the course of the hearing,
Husband’s counsel emphatically stated that the true error challenged was in the court’s 2006
Order, which had set out the formula subsequently used in Wife’s QDROs, and not in the
Magistrate’s Decision, which had merely interpreted and applied the 2006 Order.
{¶6} The trial court entered an order on June 29, 2007 (the “2007 QDRO Entry”). The
2007 QDRO Entry states:
“This matter comes before the court on [Husband’s] objections to the Magistrate’s
Decision issued on November 1, 2006, to determine if [Husband] is entitled to
relief pursuant to Civ. R. 60(B), and to determine whether any of the [QDROs]
submitted * * * effectuates the terms of the [divorce decree].”
{¶7} The court analyzed the 60(B) motion, then went on to compare the proposed
QDROs, concluding that Wife’s QDROs properly effectuated the terms of the divorce decree, as
the Magistrate had concluded. The court concluded:
“In summary, [Husband] is denied relief pursuant to Civ. R. 60(B) and the Court
approves and adopts [Wife’s] QDROs as effectuating the terms of the Agreed
Judgment Entry of Divorce. The Magistrate’s Decision is affirmed.”
4
{¶8} Husband appealed, but this Court dismissed the appeal as untimely filed in light
of Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056. See Miller I at ¶¶7-8. Husband did
not file an appeal to the Supreme Court of Ohio.
{¶9} In Rothman v. Rothman, 124 Ohio St.3d 109, 2009-Ohio-6410, the Ohio Supreme
Court held that Wilson could not be applied in a way that denies the parties their right to appeal.
Id. at ¶7. The Court instructed courts of appeals to allow similarly situated parties to file notices
of appeal by March 31, 2010. Id. at ¶9. Citing Rothman, Husband appeals from the agreed
judgment entry of divorce, the 2006 order, the QDRO entry, and Wife’s QDROs, which the trial
court adopted on June 29, 2007.
II.
{¶10} This Court is obligated to raise, sua sponte, questions related to our jurisdiction.
Whitaker-Merrell Co. v. Geupel Constr. Co., Inc. (1972), 29 Ohio St.2d 184, 186. This Court
has jurisdiction to hear appeals only from final orders and judgments. Article IV, Section
3(B)(2), Ohio Constitution; R.C. 2501.02; R.C. 2505.03.
{¶11} On August 18, 2010, this Court issued an order citing In re Strickler, 9th Dist.
Nos. 08CA009375, 08CA009393, 2008-Ohio-5813, ¶7-8, questioning whether it had jurisdiction
to address the merits of the appeal, as the appeal involved the 2007 QDRO entry in which the
trial court failed to explicitly rule on Husband’s objections to the magistrate’s decision.
Husband’s response essentially conceded that under our precedent, this Court would not have
jurisdiction to address his appeal. Specifically, under the current state of the law in this district,
the omission of an explicit ruling upon objections to a magistrate’s decision amounts to a
jurisdictional defect that affects the finality of a judgment. Id.
5
{¶12} However, recent changes to App.R. 4 have prompted this Court to reexamine
whether a trial court’s failure to specifically rule on objections to a magistrate’s decision creates
a jurisdictional bar to a merits appeal, or merely constitutes error that a party may raise on
appeal.
{¶13} We begin with a discussion of former App.R. 4 and our case law interpreting it.
In In re K.K., 9th Dist. No. 22352, 2005-Ohio-3112, this Court was faced with an appeal from an
entry overruling post-judgment objections to a magistrate’s decision. Id. at ¶4. In addressing the
matter, this Court set forth an analysis of the interplay of the then-recent amendments to Civ.R.
53 and App.R. 4 and the role those rules play in determining whether an entry involving post-
judgment objections to a magistrate’s decision is final and appealable. At the time, Civ.R.
53(E)(4)(c) provided that:
“The court may adopt a magistrate’s decision and enter judgment without waiting
for timely objections by the parties, but the filing of timely written objections
shall operate as an automatic stay of execution of that judgment until the court
disposes of those objections and vacates, modifies, or adheres to the judgment
previously entered.” In re K.K. at ¶8, quoting Civ.R. 53(E)(4)(c).
Further, at the time the case was decided, App.R. 4(B)(2) provided that:
“In a civil case or juvenile proceeding, if a party files a timely motion for
judgment under Civ. R. 50(B), a new trial under Civ. R. 59(B), vacating or
modifying a judgment by an objection to a magistrate’s decision under Civ. R.
53(E)(4)(c) or Rule 40(E)(4)(c) of the Ohio Rules of Juvenile Procedure, or
findings of fact and conclusions of law under Civ. R. 52, the time for filing a
notice of appeal begins to run as to all parties when the order disposing of the
motion is entered.” In re K.K. at ¶9, quoting App.R. 4(B)(2).
{¶14} We concluded in In re K.K. that “[b]y amending App.R. 4 to allow a tolling of
appeal time, the Supreme Court clearly intended that its amendment to Civ.R. 53 and Juv.R. 40
authorized trial courts to issue final, appealable orders prior to the filing of objections to the
magistrate’s decision, but that those judgments would be temporarily stayed upon the filing of
6
timely written objections.” In re K.K. at ¶10. We went on to note that, because of the mandatory
language in Civ.R. 53 and App.R. 4, the trial court’s entry entering judgment “could not become
final and appealable until the trial court explicitly disposed of the objections.” Id. at ¶11.
{¶15} In 2008, in In re Strickler, this Court considered whether an entry in which a trial
court failed to rule on pre-judgment objections was final and appealable. Id. at ¶¶2-6. Unlike
the movant in In re K.K., the movant in In re Strickler filed his objections to the magistrate’s
decision after the decision issued, but before the trial court took action upon it. In re Strickler at
¶¶3-4. In entering judgment upon the magistrate’s decision, the trial court failed to explicitly
rule upon the objections. Id. at ¶10. Drawing upon our jurisdictional analysis in In re K.K., we
considered the mandatory language in Civ.R. 53(D)(4)(d) which stated that “‘[i]f one or more
objections to a magistrate’s decision are timely filed, the court shall rule on those objections.’”
In re Strickler at ¶8, quoting Civ.R. 53(D)(4)(d). In keeping with In re K.K.’s determination that
a court’s failure to explicitly dispose of objections to a magistrate’s decision renders its judgment
entry non-final, we also concluded that, in the context of a pre-judgment objection to a
magistrate’s decision, the failure of the trial court to rule upon the objections was a jurisdictional
defect. In re Strickler at ¶8; In re K.K. at ¶11. Essentially, this Court’s conclusion that a trial
court’s failure to rule on pre-judgment objections was a jurisdictional defect was based upon the
premise that a trial court’s failure to rule on post-judgment objections was a jurisdictional defect
as set out in In re K.K. The law of this district has therefore been that a trial court’s failure to
rule on objections, whether pre- or post-judgment, constitutes a jurisdictional defect warranting
dismissal of the appeal. See In re Strickler at ¶10; In re K.K. at ¶11. Both the mandatory
language contained in Civ.R. 53 and the then-existing version of App.R. 4 dictated that result.
7
{¶16} However, on July 1, 2011, the 2011 amendments to the Rules of Appellate
Procedure became effective. See App.R. 43(X). App.R. 4(B)(2), as amended, now provides
that:
“In a civil case or juvenile proceeding, if a party [timely and appropriately] files *
**
“(c) objections to a magistrate’s decision under Civ. R 53(D)(3)(b) or Juv. R.
40(D)(3)(b),
“***
“then the time for filing a notice of appeal from the judgment or final order in
question begins to run as to all parties when the trial court enters an order
resolving the last of these post-judgment filings.
“If a party files a notice of appeal from an otherwise final judgment but before the
trial court has resolved one or more of the filings listed in this division, then the
court of appeals, upon suggestion of any of the parties, shall remand the matter to
the trial court to resolve the post-judgment filings in question and shall stay
appellate proceedings until the trial court has done so. After the trial court has
ruled on the post-judgment filing on remand, any party who wishes to appeal from
the trial court’s orders or judgments on remand shall do so in the following
manner: (i) by moving to amend a previously filed notice of appeal or cross-
appeal under App. R. 3(F), for which leave shall be granted if sought within thirty
days of the entry of the last of the trial court’s judgments or orders on remand and
if sought after thirty days of the entry, the motion may be granted at the discretion
of the appellate court; or (ii) by filing a new notice of appeal in the trial court in
accordance with App. R. 3 and 4(A). In the latter case, any new appeal shall be
consolidated with the original appeal under App. R. 3(B).” (Emphasis added.)
{¶17} The italicized language in the rule implies that a trial court’s failure to rule on
post-judgment objections to a magistrate’s decision is not a jurisdictional defect as the rule refers
to the entry as “an otherwise final judgment[.]” App.R. 4(B)(2). Further, the rule does not state,
or even imply, that it is appropriate to dismiss an appeal from a judgment because the trial court
failed to rule on post-judgment objections. This notion is confirmed by the relevant portion of
the Staff Note to the 2011 amendments to App.R. 4 which provides that:
“New language has been added to both App. R. 4(B)(2) and App. R. 4(B)(3) to
resolve confusion in the courts of appeals about the finality of a judgment and the
8
proper disposition of an appeal if a party files a notice of appeal before all proper
and timely post-trial filings are resolved or if a party makes a timely post-trial
filing after the notice of appeal if filed. Some courts have held that the trial court
judgment is not final while a proper post-judgment filing is pending and have,
accordingly, dismissed the appeal. See, e.g., Dragway 42, LLC v. Kokosing
Constr. Co., 9th Dist. No. 09CA0008, 2009-Ohio-5630, at ¶6; In re Talbert, 5th
Dist. No. CT2008-0031, 2009-Ohio-4237, at ¶20-22. Others have held that the
judgment is final but that the case should be remanded to the trial court to rule on
the motions. See, e.g., Stewart v. Zone Cab of Cleveland, 8th Dist. No. 79317,
2002-Ohio-335, at 6. The rule now adopts the latter view and also establishes a
procedure for the parties to bring into the appeal the trial court’s subsequent
rulings on the post-judgment filings.” (Emphasis added.) 2011 Staff Notes to
App.R. (4).
{¶18} Thus, the 2011 amendments to App.R. 4(B)(2) and the accompanying Staff Note
lead this Court to conclude that the Supreme Court does not intend the failure of a trial court to
rule on post-judgment objections in an entry to constitute a jurisdictional defect, despite the fact
that the court’s judgment does not strictly comply with Civ.R. 53. See Civ.R. 53(D)(4)(d)-(e)(i)
(requiring the trial court to rule on timely filed objections and indicate whether it is vacating,
modifying or adhering to its previously entered judgment). In light of this clarification, we
believe it is necessary to overrule certain portions of our precedent as detailed below. To the
extent that In re K.K. concluded that a trial court’s entry entering judgment “could not become
final and appealable until the trial court explicitly disposed of the [post-judgment] objections[,]”
In re K.K. at ¶11, we determine that it is properly overruled. Further, as the primary basis for In
re Strickler’s holding is the same portion of In re K.K. that is properly overruled, we likewise
overrule In re Strickler.
{¶19} Accordingly, a trial court’s failure to rule on objections to a magistrate’s decision
will not cause this Court to dismiss an appeal from the trial court’s final judgment. Nonetheless,
the entry that is the subject of the appeal, still must constitute a final judgment or order. See
Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2501.02; R.C. 2505.03. Assuming the entry
9
is a final judgment, the appropriate mechanism to challenge a trial court’s failure to rule on the
objections as required by Civ.R. 53 would now be via an assignment of error, which would only
be sustained if the trial court’s failure to rule constituted reversible error. See Civ.R. 61.
{¶20} Turning to the instant matter, as the only reason this Court questioned the finality
of the 2007 QDRO Entry was that entry’s failure to comport with In re Strickler, which we have
just overruled, we are satisfied that we possess jurisdiction to address the merits of this appeal.
III.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN ORDERING A DIVISION OF THE
APPELLANT’S RETIREMENT ACCOUNTS THAT WAS CONTRARY TO
THE PARTIES’ IN-COURT SETTLEMENT AND THEIR SUBSEQUENTLY
FILED DECREE OF DIVORCE.”
{¶21} Husband argues in his single assignment of error that the trial court erred in its
division of two of Husband’s retirement accounts, the Frank Russell account and the RAA
account, via QDROs. Those QDROs were modeled after the 2006 Order, which Husband asserts
fails to follow the terms of the parties’ in-court settlement and the terms of the decree as it fails
to incorporate the figures set forth in Attachment B of the decree which specifically described
what portions of the accounts were premarital and ultimately delineated the overall percentages
of the accounts each party would receive. Husband further asserts that by failing to incorporate
the distribution percentages specified in Attachment B, the 2006 Order and the QDROs adopted
by the trial court improperly deny Husband appreciation on his premarital contributions and
improperly deny him the agreed upon sum of $29,224.91 which was intended to equalize the
distribution of marital property. We agree.
{¶22} “Pension or retirement benefits earned during the course of a marriage are marital
assets and a factor to be considered in the division of property.” Wilson at ¶5. A QDRO
10
“implements a trial court’s decision of how [retirement benefits are] to be divided incident to
divorce or dissolution.” Id. “While a court has the power to enforce a property division
incorporated into a divorce decree, a trial court may not modify that property division.”
(Citations omitted.) Straw v. Straw, 9th Dist. No. 04CA008433, 2004-Ohio-4065, at ¶4. The
instant matter involves an agreed judgment entry of divorce. “An agreed divorce decree, like a
separation agreement, is an agreement of the parties that is made an order of the court. Contract
principles apply to the interpretation of such agreements, and the interpretations are reviewed de
novo on appeal as questions of law.” Zimmer v. Zimmer (Feb. 27, 2001), 10th Dist. No. 00AP-
383, at *2. “Contracts are to be interpreted to carry out the intent of both parties, as evidenced
by contractual language.” Schaffer v. First Merit Bank, N.A., 186 Ohio App.3d 173, 2009-Ohio-
6146, at ¶23.
{¶23} We turn, then, to the language of the decree:
“With respect to the parties’ remaining assets, the parties have identified certain
assets identified on documents titled ‘Attachment A’ and ‘Attachment B.’ * * *
With respect to Attachment B, the Court finds that the distribution called for on
Attachment B with [Wife] getting the accounts and items listed under her name,
and [Husband] getting the accounts and items listed under his name, is the
agreement of the parties, provided however that the Frank Russell [account] and
the [RAA account] shall be treated differently as set forth immediately below.
“The parties have agreed and the Court hereby orders that with respect to
[Husband’s] three (3) retirement plans through United Airlines, consisting of his
monthly pension, the Frank Russell [account], and the [RAA account], referred to
respectively as the A and B plans that those should be divided by [QDROs]. Said
orders shall be prepared by QDRO consultants, and the parties agree that each
shall be responsible for one-half of the expenses of preparing such Qualified
Orders. The date of the [QDROs] shall be a division on date of final hearing,
which is as of July 25, 2001. The parties agree and the Court orders that the
distribution by and between [Wife] shall be 50 percent of the marital covertures
value therein. It is the express understanding of the parties and the order of the
Court, that [Husband] was employed for period of time prior to the date of
marriage, and it is the agreement of the parties and the order of the Court, that
[Husband] shall be entitled to his premarital share free and clear of the claims of
11
[Wife], and that the remainder, attributable to the period of the marriage, shall be
divided equally by [QDROs] between [Husband and Wife].
“It is further the agreement of the parties and the order of the Court that
Attachment A and Attachment B are intended to provide both sides with an equal
value of the parties’ marital assets. Thus, in order to equalize the distribution on
Attachment B, [Husband] was receiving some $29,200 more than [Wife] was
from the [RAA account]. It is the intent of the parties and the agreement, that the
distribution by and between the parties on Attachment B shall in fact continue to
be equal. Therefore, [Husband] shall receive an additional amount, either from
the [RAA account] or from some other account as maybe agreed upon by and
between the parties, to equalize his distribution with [Wife’s] distribution of the
parties’ marital assets, excluding any reference to his premarital contribution to
the retirement accounts. In order to facilitate an expeditious resolution of the
conclusion of the [QDROs], the Court orders that the parties shall determine
whether the amount is coming from the [RAA account] in an amount necessary to
equalize the distributions on Attachment B, or from some other account.
“* * *
“Due to the somewhat complicated nature of the parties’ agreement and the
requirement for future orders, sales and distributions, the Court expressly retain[s]
jurisdiction to enforce the parties’ agreement, as may be necessary to carry out
their intent and the order of this Court.”
{¶24} Accompanying and attached to the decree were four attachments. Attachment B
listed the parties’ various retirement benefits by plan name, account number, and party. The first
portion of Attachment B listed each account and identified a column for Wife and a column for
Husband with corresponding values representing the marital portions of the accounts. With
respect to the Frank Russell account, Husband and Wife are listed as each receiving the same
amount. With respect to the RAA account, Husband is listed as receiving $29,224.90 more than
Wife. Further, detailed immediately below those figures are calculations of Husband’s
premarital share of the two accounts followed by the percentage each party was to receive of
each of the two accounts. This portion of the exhibit makes clear that these premarital sums are
not included in the figures above it where the marital portions of the accounts are listed and
divided. The overall tabulations provided in Attachment B are listed below:
12
“Frank Russell [account] — Mr. Miller ($91,064.61 + $308,529.17)/$708,122.97
= 56.43%
Frank Russell [account]—Mrs. Miller $308,529.17/$708,122.97 = 43.57%
[RAA account]—Mr. Miller (46,428.48 + $259,224.76)/$535,653 = 57.06%
[RAA account]—Mrs. Miller $229,999.86/$535,653.10 = 42.94%[.]”
{¶25} The 2006 Order of the trial court, which rejected all the QDROs submitted,
interpreted the above as follows:
“The Agreed Judgment Entry of Divorce indicates that [Wife] will receive one-
half the ‘marital coverture’ valued as of July 23, 2001 and adjusted as necessary
to ensure an overall equal division of property. Instead of spelling out a coverture
formula, the language in the Agreed Judgment entry of Divorce clearly and
unambiguously awards the Husband his premarital contributions to the plans and
defines the remainder as ‘attributable to the period of the marriage.’ Thus,
‘coverture’ in the Agreed Judgment Entry is defined as the plans’ account
balances as of July 23, 2001 less the [H]usband’s premarital contributions. A
QDRO that accurately reflects the parties’ agreement would subtract an amount
equal to the account balance on the date of marriage from the account balance as
of July 23, 2001 and then award fifty percent of the remainder to [Wife], adjusted
as needed to effectuate an equal division of property.”
{¶26} The parties again submitted proposed QDROs. Ultimately, in 2007, the trial court
adopted Wife’s proposed QDROs, concluding that Wife’s QDROs “equally divide the marital
portions of the retirement plans valued as of the date of distribution and less [Husband’s]
separate premarital contributions.” With respect to the Frank Russell account, Wife’s QDRO
provided that Husband would retain $19,450.36 of the account before equally dividing the
remainder. The $19,450.36 represented the sum of two figures: (1) Husband’s premarital
contributions to the Frank Russell account “plus growth to the date of the marriage[,]” which
equaled $4,838; and (2) $14,612.46. Wife agreed in her brief to the trial court that she received
$29,224.91 more than Husband in the property division; however, without explanation she
asserted that Husband was entitled to only $14,612.46, or half of that amount. Wife’s proposed
QDRO equally divided the RAA account without setting aside any portion representing
13
Husband’s premarital contribution. Thus, it is clear that the QDROs that were adopted by the
trial court do not utilize the figures or percentages set forth in Attachment B.
{¶27} While this Court acknowledges that the language used within the decree to
discuss the parties’ retirement assets is somewhat confusing and inartful in its choice of
terminology, we conclude that much of that confusion is eliminated by considering Attachment
B in conjunction with the language of the decree. Attachment B, which is referred to in the
decree as constituting “the agreement of the parties,” sets forth an example of what the parties
meant by the language contained within the decree concerning division of the retirement
accounts. It sets forth Husband’s premarital interest in both the Frank Russell account and the
RAA account and sets forth each party’s marital interest in both. It seems unlikely that the
parties would go to the trouble of not only creating Attachment B, but also agreeing to the
judgment entry of divorce which included Attachment B as part of the agreed entry, if the parties
did not intend that Attachment B should be given effect. The QDROs as adopted by the trial
court, fail to take into consideration the figures and percentages set forth, and ultimately agreed
to by the parties, in Attachment B and as a result, the trial court’s interpretation fails to give
effect to the intent of the parties and to the entirety of the decree. “If a divorce decree is
susceptible to two possible interpretations, a court must adopt an interpretation that gives effect
to the decree in its entirety without eliminating a part of the decree.” Ward v. Ward (1983), 13
Ohio App.3d 302, paragraph one of the syllabus.
{¶28} Wife appears to assert that Attachment B is not to be considered in the division of
the Frank Russell account and the RAA account because of the language contained in the
following paragraph of the decree:
“With respect to Attachment B, the court finds that the distribution called for on
Attachment B with [Wife] getting the accounts and items listed under her name,
14
and [Husband] getting the accounts and items listed under his name, is the
agreement of the parties, provided however that the Frank Russell [Account] and
[RAA account] shall be treated differently as set forth immediately below.
(Emphasis added.).
{¶29} Wife asserts that the above means that the Frank Russell account and the RAA
account should be treated differently than set forth in Attachment B. However, such an
interpretation would fail to give any effect or meaning to the detailed percentages and
calculations involving the Frank Russell account and the RAA account listed in Attachment B.
The use of the word “differently” could also be interpreted to mean that the Frank Russell
account and RAA account should be treated differently than the other accounts listed in
Attachment B. Dividing the Frank Russell account and RAA account as provided in Attachment
B does treat those two accounts differently than the remainder of the retirement assets. As this
interpretation gives effect to both the language of the decree and Attachment B, we conclude that
it is a more reasonable interpretation. See id.
{¶30} Accordingly, as the trial court’s interpretation of the decree fails to give effect to
the entire document and fails to give effect to the intent of the parties, we sustain Husband’s
assignment of error. We remand the matter to the trial court so that QDROs incorporating the
terms of the decree as exemplified by Attachment B can be issued.
IV.
{¶31} In light of the foregoing, we sustain Husband’s assignment of error, reverse the
judgment of the Medina County Court of Common Pleas, Domestic Relations Division, and
remand the matter for proceedings consistent with this opinion.
Judgment reversed,
and cause remanded.
15
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
CONCURS
DICKINSON, P. J.
CONCURS IN JUDGMENT ONLY, SAYING:
{¶32} Mr. and Mrs. Miller divorced in 2001 after 32 years of marriage. At the time of
their divorce, they had, between them, ten retirement accounts. One of those accounts was a
defined benefit plan held in Mr. Miller’s name. That account has been divided using a Qualified
Domestic Relations Order and is no longer at issue in this case. The remaining nine accounts
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were apparently all defined contribution plans: five in Mrs. Miller’s name and four in Mr.
Miller’s name. The five accounts in Mrs. Miller’s name were marital property because they
contained only assets purchased with funds deposited during the marriage or purchased with
account earnings during the marriage. Two of the accounts in Mr. Miller’s name were also
marital property. One contained only assets purchased with funds deposited in it during the
marriage or purchased with account earnings during the marriage. The other contained 478
shares of United Airlines stock obtained during the marriage. The other two accounts in Mr.
Miller’s name, known as the Russell account and the Retirement Advisors account, included
some assets purchased with funds deposited prior to the marriage, some assets purchased with
funds deposited during the marriage, and assets purchased with account earnings both prior to
and during the marriage.
{¶33} The parties agreed that the total value of the marital property held in the
retirement accounts would be divided equally between them. They further agreed that, to the
extent the Russell and Retirement Advisors accounts contained Mr. Miller’s separate property,
he would receive that separate property. As part of their agreement, they submitted to the trial
court a document labeled “Attachment ‘B.’” “Attachment ‘B’” explained in detail their
agreement about how the retirement accounts would be divided.
{¶34} In order to facilitate division of the accounts, “Attachment ‘B’” provided that, to
the extent possible, the parties would each receive accounts held in their own names. That is,
Mrs. Miller would receive the five accounts in her name and Mr. Miller would receive the two
accounts in his name that contained only marital property. Finally, they agreed that Qualified
Domestic Relations Orders should be entered dividing the Russell and Retirement Advisors
accounts.
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{¶35} As of June 30, 2001, the total value of the five accounts held in Mrs. Miller’s
name was $122,239.73. As of that same date, the total value of the two accounts in Mr. Miller’s
name containing only marital property was $93,014.82. In order to equalize the distribution of
those accounts, therefore, the parties agreed that Mr. Miller would receive $29,224.90 more from
the marital part of the Retirement Advisors account than Mrs. Miller would receive (the
difference between $122,239.73 and $93,014.82).
{¶36} As of June 30, 2001, the total value of the Russell and Retirement Advisors
accounts was $1,243,776.05. The parties agreed in “Attachment ‘B’” that, of that amount,
$1,106,282.96 was marital property and $137,493.09 was Mr. Miller’s separate property. They
further agreed, therefore, that, if those two accounts were divided as of June 30, 2001, Mr. Miller
would receive from those accounts his separate property of $137,493.09 plus $567,753.93 of the
marital property for a total of $705,247.02 and Mrs. Miller would receive from those accounts
the remaining $538,529.03, representing her share of the marital property. (As discussed in the
preceding paragraph, Mr. Miller was to receive $29,224.90 more of the marital property from the
Retirement Advisors account in order to equalize the distribution of the other accounts.)
Accordingly, under the agreement contained in “Attachment ‘B,’” if the distribution had
occurred on June 30, 2001, each party would have received marital property worth $660,768.76
and Mr. Miller would have received separate property worth $137,493.09.
{¶37} Because of the need to prepare Qualified Domestic Relations Orders to divide the
Russell and Retirement Advisors accounts, those accounts could not simply be divided as of June
30, 2001. To facilitate their later division, therefore, “Attachment ‘B’” contained a calculation of
the percentage of ownership of each party in each of those accounts as of that date. As of June
30, 2001, Mr. Miller had a 56.43% interest in the Russell account and Mrs. Miller had a 43.57%
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interest in that account. As of that same date, Mr. Miller had a 57.06% interest in the Retirement
Advisors account and Mrs. Miller had a 42.94% interest in that account. Mr. Miller was retired
at the time the parties divorced so “Attachment ‘B’” did not contemplate any further deposits
being made in either account. Application of those percentages to the total values of the
accounts when they are actually divided will assign to each party their interests as of June 30,
2001, plus any increase or minus any decrease in the value of the accounts between June 30,
2001, and the date of the division at the same ratio as the ratio of their ownership on June 30,
2001. There is one last thing that needs to be understood about “Attachment ‘B’”: The
$137,493.09 listed on it as the value of Mr. Miller’s separate property interest in the Russell and
Retirement Advisors accounts consisted of the value of assets purchased with funds deposited in
those accounts before the parties were married plus assets purchased with earnings on those pre-
marital assets regardless of whether those earnings occurred before or after the marriage.
{¶38} The trial court attached “Attachment ‘B’” to its divorce decree and specifically
referred to it in that decree: “With respect to Attachment B, the Court finds that the distribution
called for on Attachment B with [Mrs. Miller] getting the accounts and items listed under her
name, and [Mr. Miller] getting the accounts and items listed under his name, is the agreement of
the parties, provided however that the Frank Russell Corporation and Retirement Advisors of
America accounts shall be treated differently as set forth immediately below.” That is, consistent
with “Attachment ‘B,’” the trial court ordered that Mrs. Miller receive the five accounts held in
her name and Mr. Miller receive the two accounts held in his name that contained only marital
property.
{¶39} In the next two paragraphs of its divorce decree, the trial court addressed the
Russell and Retirement Advisors accounts, along with the defined benefit account with which we
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are no longer concerned. Regarding the Russell and Retirement Advisors accounts, the court
wrote: “The parties agree and the Court orders that the distribution by and between [Mrs. Miller]
shall be 50 percent of the marital covertures value therein. It is the express . . . agreement of the
parties and the order of the Court, that [Mr. Miller] was employed for some period of time prior
to the date of marriage, and it is the agreement of the parties and the order of the Court, that [he]
shall be entitled to his premarital share free and clear of the claims of [Mrs. Miller], and that the
remainder, attributable to the period of the marriage, shall be divided equally by Qualified
Domestic Relations Order between [Mrs. Miller] and [Mr. Miller].” The court continued,
specifically reciting some parts of “Attachment B” but not reciting other parts: “It is further the
agreement of the parties and the order of the Court that Attachment A and Attachment B are
intended to provide both sides with an equal value of the parties’ marital assets. Thus, in order to
equalize the distribution on Attachment B, [Mr. Miller] was receiving some $29,200 more than
[Mrs. Miller] was from the Retirement Advisors of America. It is the intent of the parties and the
agreement, that the distribution by and between the parties on Attachment B shall in fact
continue to be equal. Therefore, [Mr. Miller] shall receive an additional amount, either from the
Retirement Advisors of America account or from some other account as may be agreed upon by
and between the parties, to equalize his distribution with [Mrs. Miller’s] distribution of the
parties’ marital assets, excluding any reference to his premarital contribution to the retirement
accounts. In order to facilitate an expeditious resolution of the conclusion of the Qualified
Domestic Relations Order, the Court orders that the parties shall determine whether the amount
is coming from the Retirement Advisors of America account in an amount necessary to equalize
the distributions on Attachment B, or from some other account.” Although the language of the
divorce decree will not win any prizes for lucidity, it is clear that it was intended to implement
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the distribution explained in detail in “Attachment ‘B.’” The one change it made from
“Attachment ‘B’” was that, while “Attachment ‘B’” contemplated the equalization coming from
the Retirement Advisors account, the decree gave the parties the option to use a different account
to achieve that equalization. They have not designated a different account, so the equalization
still must come from the Retirement Advisors account.
{¶40} Despite the fact that both parties agreed to the distribution explained in
“Attachment ‘B,’” they have been unable to agree upon Qualified Domestic Relations Orders
implementing that language. At some point, they submitted competing proposed Qualified
Domestic Relations Orders to the trial court, and, in May 2006, the trial court rejected those
proposed orders. In doing so, it directed the parties that Mr. Miller’s separate property interest in
the Russell and Retirement Advisors accounts was limited to an amount equal to the value those
accounts had on the day the parties were married. Although the court acknowledged that it
would be a “better approach” to “allocate the growth and/or loss attributable to the separate
property interest and marital interest and value it all on the date of distribution,” it held that the
divorce decree had not provided for such attribution.
{¶41} Following the trial court’s May 2006 rejection of the competing proposed
Qualified Domestic Relations Orders, Mrs. Miller submitted new proposed Qualified Domestic
Relations Orders for the Russell and Retirement Advisors accounts. The proposed order for the
Russell account directed that Mr. Miller receive as separate property assets worth $4838, the
value of the Russell account on the day the parties were married. In addition, despite the fact
that Mrs. Miller had received $29,224.91 more than Mr. Miller from the distribution of the
accounts held in their separate names, it inexplicably directed that Mr. Miller receive only one
21
half that amount, $14,612.46, to purportedly equalize the distribution. Mrs. Miller’s proposed
order for the Retirement Advisor’s account simply divided that account equally.
{¶42} Mrs. Miller’s proposed orders were initially considered and adopted by a
magistrate, and Mr. Miller filed objections to the magistrate’s decision. The trial court overruled
his objections and entered Mrs. Miller’s proposed Qualified Domestic Relations Orders as
submitted. Mr. Miller has appealed and assigned as error the trial court’s adoption of Mrs.
Miller’s proposed Qualified Domestic Relations Orders.
{¶43} Despite the trial court’s later confusion, its 2001 divorce decree incorporated
“Attachment ‘B,’” which was attached to that decree. Accordingly, the parties were entitled to
Qualified Domestic Relations Orders that implemented “Attachment ‘B.’” The Qualified
Domestic Relations Orders adopted by the trial court do not do that. Accordingly, I concur in the
sustaining of Mr. Miller’s assignment of error. The duty of the trial court on remand is to adopt
Qualified Domestic Relations Orders implementing “Attachment ‘B.’” That is, it is the trial
court’s duty to adopt a Qualified Domestic Relations Order that provides Mr. Miller 56.43% of
whatever the value of the Russell account is on the day that order is implemented and provides
Mrs. Miller the remaining 43.57% of that value. It is the further duty of the trial court to adopt a
Qualified Domestic Relations Order that provides Mr. Miller 57.06% of whatever the value of
the Retirement Advisors account is on the day that order is implemented and provides Mrs.
Miller the remaining 42.94% of that value.
APPEARANCES:
MICHELLE L. SLIMAK, Attorney at Law, for Appellant.
JOSEPH F. SALZGEBER, Attorney at Law, for Appellee.
Miller v. Miller
Combined Opinion