Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division Case No. DR-10-332306
ATTORNEY FOR APPELLANT Deborah Akers Parry Wolf and Akers,
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
LASTER MAYS, JUDGE.
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
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.
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.
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
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
A. In failing to grant defendant's motions for hearing
before the magistrate and before the ...