Enty v. Enty

         Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-10-332306

         REVERSED AND REMANDED.

          ATTORNEY FOR APPELLANT Deborah Akers Parry Wolf and Akers, L.P.A.

          ATTORNEY FOR APPELLEE Adam J. Thurman Schoonover, Rosenthal, Thurman, & Daray, L.L.C.

          BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE.

         {¶1} Defendant-appellant, Richard Enty ("Richard"), appeals the trial court's and magistrate's decision to dismiss Richard's motion to correct judgment entry of divorce and division of property order. We reverse and remand to the trial court for further proceedings consistent with this opinion.

         I. Facts

         {¶2} Richard and the plaintiff-appellee, Deborah Enty ("Deborah") divorced on September 30, 2011. Prior to that time, Richard retired in 2007 as a participant of the Ohio Public Employees Retirement System ("OPERS"). At the time of his retirement, Richard elected Joint and Survivor benefits under Plan D, which affords Deborah a 100 percent joint and survivor annuity upon Richard's death. At the time of the divorce, the court ordered Richard to change this election from the original plan to either Plan C or Plan F.

         {¶3} Richard attempted to follow the court's order and change from Plan D, but OPERS did not allow this change because the participant was in pay status. Richard filed a motion to correct judgment entry of divorce and division of property order ("DPO") and a motion for hearing so that the orders would accurately reflect the fact that Richard cannot comply with the court's order to change his joint and survivor benefits plan.

         ¶4} The magistrate dismissed Richard's motions. Richard filed an objection with the trial court, and again, along with Deborah, requested a hearing. The trial court adopted the magistrate's decision in its entirety and did not grant Richard or Deborah a hearing even though the trial court issued a decision stating that a hearing was conducted. The trial court and the magistrate ruled that they did not have jurisdiction to modify the divorce decree or DPO because Richard waited more than three years to file for a modification. Richard has filed this timely appeal asserting the following assignments of error:

I. The trial court erred as a matter of law to the prejudice of defendant in ruling that:

A. The court did not have jurisdiction to modify the divorce decree and the DPO;

B. The terms of the DPO conform with those of the decree of divorce;

C. The DPO was not void ab initio; and

D. In failing to modify the decree of divorce to cure the impossibility of performance and to achieve the intent of the parties and, thereupon failing to issue a new DPO in conformity with the modified decree of divorce.

II. The trial court erred as a matter of law to the prejudice of the defendant in ruling that the DPO, which is an aid in execution, constituted an adjudication of the rights of the parties subsequent to the final decree of divorce, and therefore, was a valid order.

III. The trial court erred as a matter of law to the prejudice of defendant in ruling that:

A. A motion filed in accordance with Civ.R. 60(B) was necessary and appropriate to correct the impossibility of performance of provisions of the decree of divorce and to achieve the intent of the parties as set forth in the decree of divorce; and

B. The lapse of more than three years between the filing of the DPO and the filing of defendant's motions to correct the decree of divorce and DPO deprived the court of jurisdiction to rule on defendant's motions.

IV. The trial court erred as a matter of law to the prejudice of defendant:

A. In failing to grant defendant's motions for hearing before the magistrate and before the ...