[Cite as Drummond v. Drummond, 2014-Ohio-4777.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ARLENE K. DRUMMOND : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delnaey, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
JAMES E. DRUMMOND AND THE : Case No. 14-CA-27
ESTATE OF JAMES DRUMMOND :
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Domestic
Relations Division, Case No.
96 DR 237
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: October 27, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARTY ANDERSON DARREN A. MCNAIR
ERIC W. JOHNSON Lardiere McNair, LLC
Sowald, Sowald, Anderson & Hawley 3956 Brown Park Drive, Suite B
400 S. Fifth Street, Suite 101 Hilliard, OH 43026
Columbus, OH 43215
Fairfield County, Case No. 14-CA-27 2
Baldwin, J.
{¶1} Appellant the Estate of James Drummond appeals a judgment of the
Fairfield County Common Pleas Court imposing a constructive trust over James
Drummond’s State Teachers Retirement System (hereinafter “STRS”) benefit
payments. Appellee is Arlene K. Drummond, the former wife of James Drummond.
STATEMENT OF FACTS AND CASE
{¶2} Appellee and James Drummond (“Decedent”) were married in Williamson,
West Virginia, on December 20, 1969. Appellee and Decedent were divorced via
Judgment Entry/Decree of Divorce filed November 26, 1997. The Decree incorporated a
Separation Agreement reached by appellee and decedent. At the time of the divorce,
decedent was a retired educator, receiving retirement benefits as provided by STRS.
{¶3} With respect to decedent's STRS benefits, the Decree of Divorce
provides:
(a) Until such time a Qualified Domestic Relations Order
(“QDRO”) assigning the portion of Defendant's benefits to Plaintiff
as alternate payee under the STRS pension plan is permitted by
law, Defendant shall pay to Plaintiff the sum of $1,374.00 per
month (44.41% of Defendant's gross monthly benefit), plus
poundage and cost-of-living increases, for Plaintiff's interest in the
STRS Plan as spousal support, payable until the death of either
Defendant or the Plaintiff.
Fairfield County, Case No. 14-CA-27 3
(b) Said payments from the STRS shall be deemed periodic
spousal support and shall be taxable income to the Plaintiff and tax
deductible from the income of the Defendant * * *
To effectuate this provision, Defendant shall continue to
maintain Plaintiff as the sole irrevocable beneficiary of $1,374.00
per month or 44.41% of his gross monthly retirement benefit, plus
cost-of-living increases, and shall take all necessary actions to
assure and guarantee that Plaintiff will receive 44.41% of
Defendant's gross monthly retirement benefit for the remainder of
the Plaintiff's life in the event that Defendant precedes Plaintiff in
death.
During Plaintiff's lifetime, Defendant shall continue to
designate Plaintiff as his sole irrevocable beneficiary of 44.41% of
said retirement benefit and, the Defendant's legal separation from
the Plaintiff, their divorce, a dissolution of their marriage, the
Defendant's remarriage, the birth of a child of the Defendant or his
adoption of a child, shall not constitute and automatic revocation of
Plaintiff as the beneficiary of 44.41% of Defendant's monthly
payments from STRS.
{¶4} Article 4, Section E, of the Separation Agreement provides:
11. If HUSBAND precedes WIFE in death, spousal support
payments shall terminate and WIFE'S interest in the STRS Pension
shall be replaced by the STRS survivor benefits as set forth herein.
Fairfield County, Case No. 14-CA-27 4
To effectuate this provision, HUSBAND shall continue to
maintain WIFE as the sole irrevocable beneficiary of $1,374.00 per
month or 44.41% of his gross monthly retirement benefit, plus
costs-of-living increases, and shall take all necessary actions to
assure and guarantee that WIFE will receive 44.41% of
HUSBAND'S gross monthly retirement benefit for the remainder of
the WIFE'S life in the event that HUSBAND precedes WIFE in
death.
{¶5} Section 6, subsection (n) of the Decree of Divorce also provides the trial
court “shall continue to maintain subject matter jurisdiction over the issues of
Defendant's designation of plaintiff as the beneficiary of his retirement benefits through
the STRS.”
{¶6} Decedent passed away on September 7, 2006. On February 20, 2009,
appellant filed a notice of suggestion of death, a notice for substitution of parties, and a
motion for contempt. In the motion for contempt, appellant argued appellee had
received and maintained 100% of the monthly survivor benefits from STRS, not the
44.41% for which the Decree had provided; therefore, appellant argued appellee was in
contempt by retaining these funds.
{¶7} Appellant asked the trial court to impose a constructive trust and order
appellee to hold the funds for the benefit of the Estate. Appellee filed a memorandum in
opposition thereto on April 16, 2009. Subsequently, appellee filed a Motion to Dismiss,
asserting the trial court was without jurisdiction to hear the Estate's motion. On
December 24, 2009, the magistrate granted appellee's motion to dismiss, finding the
Fairfield County, Case No. 14-CA-27 5
trial court lacked jurisdiction. The magistrate further found that assuming the trial court
had jurisdiction, there was no basis for a constructive trust and appellee was not
unjustly enriched. The trial court dismissed the contempt action and appellant’s claim for
attorney fees. Appellant filed objections to the magistrate's decision. The trial court
approved and adopted the magistrate's decision as the order of the court on April 1,
2010.
{¶8} Appellant filed an appeal to this Court. On appeal, this Court held that the
trial court does have power to clarify and construe its original property division order to
effectuate judgment, and appellant was asking the trial court to enforce implementation
of the division of the pension as originally decreed. As a result, this Court held that the
trial court had jurisdiction over appellant’s request, and the trial court erred in finding it
lacked jurisdiction. Further, this Court held that the trial court erred and abused its
discretion in failing to impose a constructive trust based on the language of the parties'
Separation Agreement. Appellee's cross-appeal concerning attorney fees was
overruled. Accordingly, this Court reversed the judgment in part and remanded the
matter to the trial court for further proceedings. See, Drummond v. Drummond, Fairfield
App. No. 10CA20, 2010–Ohio–6139.
{¶9} On remand, the trial court conducted a hearing on February 10, 2012. The
trial court considered the equities prior to determining the existence of a constructive
trust, finding it retained the authority and discretion to apply all equitable principles to
the matter on remand. The trial court further found that the court never issued an order
naming the Estate of James E. Drummond, JoAnn Kelly–Drummond, or any other party
as a party to the case. The trial court found it would be inequitable to retroactively
Fairfield County, Case No. 14-CA-27 6
impose a constructive trust to the date of Decedent's death, and the Separation
Agreement and Judgment Entry Decree of Divorce are not the only documents
necessary to review in order to determine the intent of the parties. On June 12, 2012,
the trial court denied the imposition of the constructive trust finding the equities do not
support the imposition of a constructive trust.
{¶10} Appellant again appealed to this Court. On appeal, we held that the trial
court erred in failing to impose a constructive trust. We found that our previous decision
on the issues of jurisdiction and imposition of a constructive trust were law of the case,
and remanded the case to the trial court with instructions to impose a constructive trust
and determine the amount of the trust and terms of repayment. In a footnote, we
instructed the court concerning a possible manner of determining the amount due
appellant via the constructive trust:
Though we recognize the following is merely dicta, we offer
the same as guidance as one possible alternative for determining
the amount due Appellant via the constructive trust. The monthly
payment James Drummond received during his lifetime was based
upon his election to retain 100% survivorship benefits for Appellee.
We presume had the survivorship benefits been limited to the
44.41% specified in the divorce decree, James Drummond's
monthly payment would have been greater than that actually
received. The difference between those two monthly payments
multiplied by the number of monthly payments made after the date
of the divorce decree through the date of James Drummond's death
Fairfield County, Case No. 14-CA-27 7
might well be the appropriate amount to fund the constructive trust.”
Drummond v. Drummond, 5th Dist. Fairfield App. No. 12-CA-36,
2013-Ohio-2003, fn.1.
{¶11} On remand, the trial court imposed a constructive trust as follows:
A constructive trust is imposed. Counsel for Plaintiff and
Counsel for the Estate of James E. Drummond shall determine the
amount of the monthly pension payment James Drummond
received from the date of the Judgment Entry/Decree of divorce,
November 26, 1997, through the date of the death of James
Drummond, September 7, 2006, based upon his election to retain
100% survivorship benefits for Arlene K. Drummond. Counsel for
Plaintiff and Counsel for the Estate of James Drummond shall
determine what amount James Drummond’s monthly pension
payment would have been from the date of the Judgment
Entry/Decree of Divorce, November 26, 1997, through the date of
the death of James Drummond, September 7, 2006, had the
survivorship benefits election been limited to the 44.41% specified
in the Judgment Entry/Decree of Divorce. The difference between
those two monthly payments multiplied by the number of monthly
payments made after the date of the Judgment Entry/Decree of
Divorce, November 26, 1997, through the date of death of James
Drummond, September 7, 2006, shall fund the constructive trust.”
Judgment Entry, February 28, 2014, p.3.
Fairfield County, Case No. 14-CA-27 8
{¶12} Appellant assigns two errors to this judgment on appeal:
{¶13} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION BY MODIFYING A PROPERTY DIVISION INCORPORATED INTO A
DIVORCE DECREE.
{¶14} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION BY FAILING TO APPLY THE CLEAR AND SPECIFIC TERMS OF
THE PARTIES’ JUDGMENT ENTRY/DECREE OF DIVORCE AND SEPARATION
AGREEMENT WHEN ORDERING THE FUNDING OF THE CONSTRUCTIVE TRUST.”
I & II.
{¶15} In both assignments of error, appellant argues that the court erred in
ordering the funding of the constructive trust in a manner that contradicts the separation
agreement incorporated into the original divorce decree.
{¶16} With respect to decedent's STRS benefits, the Decree of Divorce
provides:
(a) Until such time a Qualified Domestic Relations Order
(“QDRO”) assigning the portion of Defendant's benefits to Plaintiff
as alternate payee under the STRS pension plan is permitted by
law, Defendant shall pay to Plaintiff the sum of $1,374.00 per
month (44.41% of Defendant's gross monthly benefit), plus
poundage and cost-of-living increases, for Plaintiff's interest in the
STRS Plan as spousal support, payable until the death of either
Defendant or the Plaintiff.
Fairfield County, Case No. 14-CA-27 9
(b) Said payments from the STRS shall be deemed periodic
spousal support and shall be taxable income to the Plaintiff and tax
deductible from the income of the Defendant * * *
To effectuate this provision, Defendant shall continue to
maintain Plaintiff as the sole irrevocable beneficiary of $1,374.00
per month or 44.41% of his gross monthly retirement benefit, plus
cost-of-living increases, and shall take all necessary actions to
assure and guarantee that Plaintiff will receive 44.41% of
Defendant's gross monthly retirement benefit for the remainder of
the Plaintiff's life in the event that Defendant precedes Plaintiff in
death.
During Plaintiff's lifetime, Defendant shall continue to
designate Plaintiff as his sole irrevocable beneficiary of 44.41% of
said retirement benefit and, the Defendant's legal separation from
the Plaintiff, their divorce, a dissolution of their marriage, the
Defendant's remarriage, the birth of a child of the Defendant or his
adoption of a child, shall not constitute and automatic revocation of
Plaintiff as the beneficiary of 44.41% of Defendant's monthly
payments from STRS.
{¶17} Article 4, Section E, of the Separation Agreement provides:
11. If HUSBAND precedes WIFE in death, spousal support
payments shall terminate and WIFE'S interest in the STRS Pension
shall be replaced by the STRS survivor benefits as set forth herein.
Fairfield County, Case No. 14-CA-27 10
To effectuate this provision, HUSBAND shall continue to
maintain WIFE as the sole irrevocable beneficiary of $1,374.00 per
month or 44.41% of his gross monthly retirement benefit, plus
costs-of-living increases, and shall take all necessary actions to
assure and guarantee that WIFE will receive 44.41% of
HUSBAND'S gross monthly retirement benefit for the remainder of
the WIFE'S life in the event that HUSBAND precedes WIFE in
death.
{¶18} Where the language of a divorce decree is unambiguous, there is no
reason to interpret the language or to assess the intent of the parties at the time the
decree was entered. Schuster v. Schuster, 3rd Dist. Wyandot App. No. 16-08-22, 2009-
Ohio-1736, ¶9. The court is required to merely apply the language of the decree. Id.
The intent of the parties as set forth in the agreement was that appellee was to receive
44.41% of the decedent’s monthly retirement benefit. Therefore, the amount used to
fund the constructive trust should be the remaining 55.59% of the retirement benefits
received by appellee from the date of the divorce decree to the date of the decedent’s
death.
Fairfield County, Case No. 14-CA-27 11
{¶19} The first and second assignments of error are sustained. The judgment of
the Fairfield County Common Pleas Court, Domestic Relations Division, is reversed.
This case is remanded to that court for further proceedings according to law, consistent
with this opinion. Costs are assessed to appellee.
By: Baldwin, J.
and Delaney, J. concur.
Hoffman, P.J. concurs in part
and dissents in part
CRB/rad
Fairfield County, Case No. 14-CA-27 12
Hoffman, P.J., concurring in part and dissenting in part
{¶20} Despite having authored the dicta suggesting one possible alternative to
determine the amount to fund the constructive trust in this Court's prior opinion - which
suggestion was adopted by the trial court - I now find myself concurring in the majority's
decision to reverse and remand this case to the trial court yet again.1 However, I
respectfully dissent from the majority's decision the amount used to fund the
constructive trust should be the remaining 55.59% of the retirement benefits received by
Appellee from the date of the divorce decree to the date of Decedent's death.
{¶21} The creation of a constructive trust is an equitable remedy. As such, I find
the trial court has discretion as to when the constructive trust should commence. That
date could potentially be the date of Decedent's death or the date Appellant first raised
the issue via a motion for contempt.
{¶22} The majority holds funding of the trust commences as the date of the
divorce decree, yet terminates on the date of Decedent's death. I find the language in
the decree, which we found gives rise to the constructive trust, does not indicate it
should terminate upon Decedent's death. Upon revisiting of this issue, I now find no
compelling legal or logical reason to support termination of the constructive trust at that
time.
________________________________
HON. WILLIAM B. HOFFMAN
1
To such extent, I was the architect of the trial court's demise.
[Cite as Drummond v. Drummond, 2014-Ohio-4777.]
Drummond v. Drummond
Combined Opinion