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Brenda Ross Nka Spencer v. James E. Ross

December 3, 2012

BRENDA ROSS NKA SPENCER APPELLEE
v.
JAMES E. ROSS, JR. APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 89 DU 037396

The opinion of the court was delivered by: Dickinson, Judge.

Cite as Ross v. Ross,

DECISION AND JOURNAL ENTRY

INTRODUCTION

{¶1} James and Brenda Ross divorced after 25 years of marriage. At the time of their divorce, the trial court approved a qualified domestic relations order that gave Ms. Ross "one- half" of Mr. Ross's interest in his pension plan "as of January 16, 1990." When Mr. Ross retired many years later, the administrator of the pension plan rejected the court's order. Ms. Ross subsequently moved the trial court to approve a new qualified domestic relations order. The court referred the issue to a magistrate, who recommended that it determine Ms. Ross's interest in the pension plan by using the formula set out by the Ohio Supreme Court in Hoyt v. Hoyt, 53 Ohio St. 3d 177 (1990). Mr. Ross objected to the magistrate's decision, but the trial court overruled his objections and adopted the decision as its own. Mr. Ross has appealed, assigning as error that the court improperly modified its divorce decree when it entered the new qualified domestic relations order. We reverse because, even though the court correctly determined that the Hoyt formula should apply, it misapplied the formula, which resulted in an improper modification of its decree.

QUALIFIED DOMESTIC RELATIONS ORDER

{¶2} Mr. Ross's assignment of error is that the trial court incorrectly granted Ms. Ross's motion to approve a new qualified domestic relations order. Specifically, he has argued that the court improperly modified the terms of the divorce decree when it approved the order.

{¶3} According to Mr. Ross's pre-trial statement to the trial court, he began working for the Ford Motor Company on July 23, 1974. He married Ms. Ross a few months later. At the time of the parties' divorce, therefore, his pension contained both separate and marital property. Nevertheless, in its divorce decree, the court awarded Ms. Ross "one-half of [Mr. Ross's] interest [in his pension] as of January 16, 1990." While it appears that the court erred by including Mr. Ross's separate property in its division of his pension, Mr. Ross did not appeal the court's decision. See Hoyt v. Hoyt, 53 Ohio St. 3d 177, 183 (1990) ("[T]he trial court erred when it awarded [Ms. Hoyt] a fifty-percent share of the [retirement] plan without explanation as to why non-marital assets were included in the division of property.").

{¶4} At the time of the divorce, the Rosses submitted a proposed qualified domestic relations order that they believed reflected the court's division of Mr. Ross's pension. The court incorporated the order into its decree. The parties then submitted the order to Ford. Around the time that Mr. Ross began receiving benefits, however, the pension plan administrator determined that the qualified domestic relations order was invalid under federal law. See 26 U.S.C. § 414(p). Ms. Ross, therefore, moved the court to adopt a new order. The order that she proposed directed the administrator to pay her 50 percent of Mr. Ross's total accrued benefit as of his retirement date multiplied by a fraction that had the duration of the marriage as the numerator and Mr. Ross's total employment time as the denominator. Mr. Ross opposed the motion, arguing that Ms. Ross was only entitled to a lump sum consisting of one-half of the value of the pension at the time of the divorce. Following a hearing, a magistrate recommended granting Ms. Ross's motion, and the trial court adopted her decision.

{¶5} This Court has held that "a [domestic relations] court has the power to enforce a property division incorporated into a divorce decree [but] . . . may not modify that property division." Straw v. Straw, 9th Dist. No. 04CA008433, 2004-Ohio-4065, ¶ 4. A domestic relations court also "has the power to clarify and construe its original property division so as to effectuate its judgment." Borzy v. Borzy, 9th Dist. No. 3185-M, 2001 WL 1545676, *2 (Dec. 5, 2001). The question in this case is whether, in declaring that the pension plan administrator should determine Ms. Ross's interest in Mr. Ross's pension by using a proportionality formula, the trial court improperly modified its decree or merely clarified it.

{¶6} In Hoyt, the Ohio Supreme Court identified several ways that a trial court may divide a pension plan "such as an immediate offset or a current assignment of proportionate shares, with either a current distribution or a deferred distribution. A deferred distribution may consist of either a current assignment or a division of the asset at such time that the plan directs distribution based upon the employee's eligibility." Hoyt v. Hoyt, 53 Ohio St. 3d 177, 181 (1990). The Supreme Court noted that different approaches would be necessary depending on the circumstances of each case. It also explained that, "[i]n a situation involving vested but unmatured benefits," it would be appropriate to divide the pension proportionately. Id. at 182, 183-84.

{¶7} Although the divorce decree awarded Ms. Ross one-half of Mr. Ross's interest in his pension, it did not specify whether she should receive a fixed sum based on the then present cash value or the theoretical liquidation value of Mr. Ross's interest, a proportionate share of his benefits after his interest vested and matured, or some other award. See Hoyt v. Hoyt, 53 Ohio St. 3d 177, 182 (1990) (describing some of a trial court's options in dividing retirement assets). Because the decree did not explain how Ms. Ross was to receive her interest in the pension plan, we conclude that in granting Ms. Ross's motion to approve a new qualified domestic relations order, the court was merely clarifying how Ms. Ross's interest in the plan should be awarded, not modifying its decree.

{¶8} This case is distinguishable from our decision in George v. George, 9th Dist. No. 18866, 1998 WL 663221 (Sept. 23, 1998). In that case, the parties' assets were distributed according to a written separation agreement that provided that Victoria George would receive "[o]ne half of [Donald George's] pension through the date of the final hearing." Id. at *1. The trial court interpreted the provision to mean that Ms. George would receive a proportionate share of Mr. George's benefits, pre-retirement survivorship protection, and a pro-rata share of cost-of- living adjustments made after Mr. George's retirement. Id. at *2. This Court reversed, concluding that the additional terms the trial court inserted into its qualified domestic relations order did "more than just interpret the separation agreement. They materially change the division of the pension." Id. at *3. We explained that there was "no evidence that the parties intended to include [the extra] provisions in their agreement." Id. We also explained that the evidence "suggest[ed] that the parties did not simply 'forget' to include . . . customary provisions in their separation agreement, but instead chose an alternative method of dividing the pension[.]" Id.; see also Pohl v. Pohl, 2nd Dist. No. 20001, 2004-Ohio-3790 (involving interpretation of separation agreement); Cox v. Cox, 12th Dist. Nos. CA98-04-045, CA98-05-054, 1999 WL 58098, * 4 (Feb. 1, 1999) (same).

{ΒΆ9} Unlike in George, Ms. Ross's motion in this case asked the trial court to interpret its own decision regarding the division of Mr. Ross's pension. The court's revised qualified domestic relations order did nothing more than clarify how Ms. Ross ...


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