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Semmelhaack v. Semmelhaack

Court of Appeals of Ohio, Ninth District

August 19, 2013

ELEGRA K. SEMMELHAACK Appellee
v.
JOHN D. SEMMELHAACK Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 08-DI-0547

DAVID L. MCARTOR and KRISTOPHER K. AUPPERLE, Attorneys at Law, for Appellant.

KEVIN W. DUNN, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

WHITMORE, Judge.

(¶1} Appellant, John Semmelhaack ("Husband"), appeals from the judgment of the Wayne County Court of Common Pleas, Domestic Relations Division, granting Appellee, Elegra Semmelhaack's, motion to enforce property division provisions. This Court reverses.

I

(¶2} Husband and Elegra Semmelhaack ("Wife") were married on July 10, 1982, and have two emancipated children from the marriage. On December 12, 2008, Husband and Wife filed a petition for dissolution of marriage and attached a proposed dissolution agreement. The court granted the petition on February 6, 2009, and incorporated the parties' agreement detailing the division of property.

(¶3} The dissolution agreement contains a section for retirement accounts and, within that, a subsection for pensions. The pension subsection lists only one account. The agreement states that "Husband has a vested interest in a pension provided through his employer, UPS, said Plan being known as the UPS/IBT Full-Time Employee Pension Plan." Husband agreed to distribute to Wife 50% of the martial portion of this vested pension plan with UPS.

(¶4} To facilitate the transfer of the pension plan to Wife, a Qualified Domestic Relations Order ("QDRO") was prepared. The court signed the QDRO on June 18, 2010. Sometime thereafter, Wife learned that Husband's UPS pension benefits had been split into two separate plans, the Central States Southeast and Southwest Areas Pension Fund ("Central States Fund") and the UPS/IBT Full Time Employee Pension Plan ("Full Time Employee Plan"). The plan administrator required a QDRO for each of the two separate plans. Because a QDRO had already been submitted for the Full Time Employee Plan, Wife requested Husband execute a QDRO for the Central States Fund, but Husband refused. Husband asserted that there was no agreement to split the pension benefits in the Central States Fund.

(¶5} On September 14, 2011, Wife filed a "Motion to Enforce Division of Property Provisions." Wife requested the court order the Central States Fund be distributed in the same manner as the Full Time Employee Plan and require Husband to execute the necessary QDRO to effectuate the distribution.

(¶6} After receiving briefs from both sides, the magistrate recommended the court grant Wife's motion. Husband timely filed objections. The trial court overruled Husband's objections and entered judgment consistent with the magistrate's recommendations. Husband now appeals and raises two assignments of error for our review.

II

Assignment of Error Number One

THE TRIAL COURT ABUSED ITS DISCRETION ISSUING AN ORDER WHICH ESSENTIALLY MODIFIED THE ORIGINAL DECREE OF DISSOLUTION, MODIFYING ...

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