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Henry v. Henry

Court of Appeals of Ohio, Ninth District

September 16, 2013

DAWN S. HENRY Appellee
v.
JAMES A. HENRY Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 10-DR-0001

DECISION AND JOURNAL ENTRY

CARR, Judge.

(¶1} Appellant James Henry appeals the judgment of the Wayne County Court of Common Pleas. This Court affirms.

I.

(¶2} Dawn Henry, nka Parker, ("Wife") and James Henry ("Husband") were divorced in December 2010. The trial court divided Husband's retirement account as follows: "Nearly 10 years of the PERS [public employees retirement system] is premarital. The coverture fraction (as determined by PERS) shall be divided equally by DOPO [division of property order]." Husband retired subsequent to the parties' divorce and a DOPO was ultimately approved by the Ohio Attorney General. Husband obtained new employment with a governmental agency as soon as he was lawfully able to qualify for reentry into PERS.

(¶3} Husband was ordered to pay child and spousal support to Wife. Husband directed the Child Support Enforcement Agency ("CSEA") to deduct his child and spousal support obligations from his PERS account, rather than from his new employment income. The payment of child and spousal support is accorded a higher priority under the law than is the division of property. Because of legislation prohibiting the deduction of more than 50% from a payee's PERS account to pay for obligations to others, Wife was unable to receive the full amount of her share of Husband's PERS, i.e., one-half of the coverture fraction. Accordingly, Wife filed a motion to enforce the parties' DOPO.

(¶4} The trial court held a hearing on Wife's motion and issued a judgment to enforce the DOPO. The trial court found that Wife's one-half interest of the coverture fraction of Husband's retirement amounted to $1, 464.87 per month, which amounted to a total of $13, 183.83 for the nine months of 2012 at issue. The court found, however, that Wife only received $1, 728.60 because of the 50% withholding limitation on PERS accounts. Accordingly, the trial court ordered Husband to pay Wife the sum of $11, 455.23, which represented the difference between the amount she received from PERS and the amount she should have received pursuant to the parties' DOPO. Husband filed a timely appeal, raising one assignment of error for review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MODIFIED A PROPERTY DIVISION BY CHANGING THE DIVISION OF APPELLANT'S RETIREMENT ACCOUNT FROM "SHALL BE DIVIDED EQUALLY" TO "WIFE SHOULD RECEIVE $1, 464.87 PER MONTH, " WHERE THE TRIAL COURT HAD NO JURISDICTION TO MODIFY THE DECREE OF DIVORCE.

(¶5} Husband argues that the trial court improperly modified the division of property in the parties' divorce decree in the absence of jurisdiction to do so. This Court disagrees.

(¶6} R.C. 3105.171(I) prohibits any modification by the domestic relations court of a division of property order in the absence of express written consent or agreement of both spouses. However, while the trial court "retains no jurisdiction to modify its decision regarding the equitable division of property * * *, it does retain jurisdiction to "'clarify and construe its original property division so as to effectuate its judgment.'" Helmstedter v. Helmstedter, 9th Dist. Summit No. 24237, 2009-Ohio-3559, ¶ 11, quoting Cisco v. Cisco, 4th Dist. Gallia No. 08CA8, 2009-Ohio-884, ¶ 11.

(¶7} Although Wife moved to enforce the parties' DOPO, and the trial court asserted that it was merely enforcing its prior order, Husband opposed the motion below and argues now on appeal that the trial court in fact modified the division of property. We disagree with Husband's assertion.

(¶8} The evidence adduced at hearing[1] indicated that Husband's monthly PERS benefit is $4, 461.99. The coverture fraction is 20.870/31.873, meaning that Husband and Wife were married during 20.870 years of the 31.873 years that Husband contributed to PERS. The trial court calculated Wife's one-half interest in Husband's retirement ...


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