Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-300688
ATTORNEY FOR APPELLANT Joyce E. Barrett.
ATTORNEYS FOR APPELLEE Mark R. Gusley Mark R. Gusley & Associates Co., L.P.A. Lanene M. Meslat Lanene M. Meslat Co., L.P.A.
BEFORE: Stewart, A.J., Rocco, J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION
MELODY J. STEWART, A.J.
(¶1} Plaintiff-appellant Ellen Manning and defendant-appellee James Jusak were divorced in 2006 according to the terms of a settlement agreement that made no specific mention of Jusak's pension plan. In 2011, Manning filed a motion asking the court to issue a qualified domestic relations order ("QDRO") dividing the proceeds of that plan between the parties. Jusak opposed the motion on grounds that the parties expressly excluded mention of his pension plan in the separation agreement because the spousal support order they agreed to specifically stated that it was based in part on each party receiving an equal share of the parties' retirement benefits, including the proceeds from the pension. A magistrate denied Manning's motion, and the court approved and adopted the magistrate's decision. Manning now appeals arguing that the trial court erred by denying her motion to divide Jusak's pension plan and by denying her motion for attorney fees.
(¶2} The parties approach the issue on appeal from very different perspectives. Manning argues that under Bisker v. Bisker, 69 Ohio St.3d 608, 635 N.E.2d 308 (1994), the pension plan was a marital asset that had to be considered in arriving at an equitable division of marital property, regardless of whether the parties were basing the amount of spousal support on the value of the plan. Jusak argues that Manning forfeited the right to raise any issue relating to the pension plan by neglecting to file a direct appeal from the divorce decree and waiting nearly five years to raise the issue. He also notes that he had been retired and collecting pension benefits at the time of the divorce, so the parties were well aware of the existence of the pension plan at the time they entered into the separation agreement. Finally, he claims that Manning's argument would, if accepted, allow the court to modify the terms of the separation agreement even though the parties did not give the court continuing jurisdiction to do so.
(¶3} The separation agreement incorporated into the divorce decree stated that Jusak would pay Manning the sum of $786.62 for spousal support. That amount represented "one-half (Vi) of the parties' total income from Social Security and retirement benefits divided by two (2)." Before the parties entered into their separation agreement, they stipulated that Jusak was collecting pension benefits of approximately $1, 364.58 per month and Social Security benefits of approximately $1, 276 per month.
(¶ 4} The magistrate's decision stated:
The magistrate specifically requested final arguments to be structured regarding whether Plaintiff's motion seeks the court to modify the property division entered into by the parties and adopted by the court. R.C. 3105.171(1) states: "[A] division or distribution of property or a distributive award made under this section is not subject to future modification by the courts." Defendant's final argument is on point. Plaintiffs final argument continues to frame the issues as: "[T]he court is faced with the parties' failure to divide, as an asset subject to inclusion in the division of property, defendant's interest in the G.M. Salaried Retirement Program Pension Plan." (Emphasis sic.)
(¶5} In Bisker, the Supreme Court held that a divorce decree that failed to account for a husband's retirement benefits was incorrect as a matter of law because "a vested pension plan accumulated during marriage is a marital asset that must be considered in arriving at an equitable division of property." Id. at 609, citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 541 N.E.2d 597 (1989); R.C. 3105.18 [now R.C. 3105.171]. The parties in Bisker twice divorced, the first time by separation agreement, the second time by trial. Both times they failed to mention the husband's pension benefits and in neither case did the division of marital assets take those pension benefits into account. On direct appeal from the second divorce, the Supreme Court noted that "[t]he record does not indicate that the trial court, at any juncture of the current proceedings, ever reviewed the retirement benefits of the parties * * *." Id.
(¶6} This case is distinguishable from Bisker because the record shows that the court did consider Jusak's pension benefits when reducing the terms of the parties' separation agreement to judgment. The parties agreed that Jusak's pension was to be the baseline for calculating Manning's spousal support. That being so, those pension benefits were implicitly awarded to Jusak as part of the division of marital assets because they were the means by which he could afford to pay spousal support. So this is ...