FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. DR-1994-10-2283
ANTHONY TERILLA, Attorney at Law, for Appellant.
MELISSA GRAHAM-HURD, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO JUDGE.
Appellant, William H. Kalbaugh, appeals from the judgment of
the Summit County Court of Common Pleas Domestic Relations
Division entered on June 3, 2016, ruling on objections to the
magistrate's decision of January 19, 2016. We affirm.
On November 16, 1995, Mr. Kalbaugh and Deborah L. Kalbaugh
entered into a divorce decree, which, in pertinent part,
provided for the equal division of Mr. Kalbaugh's pension
plan: the Police and Fireman's Disability and Pension
Fund of Ohio. On August 26, 1996, the trial court issued a
judgment entry ordering the division of the pension fund
utilizing a traditional coverture fraction based upon the
fund's value at retirement. The entry was signed and
approved by the attorney for Ms. Kalbaugh, while the
signature line for Mr. Kalbaugh's attorney states:
"Seen, but not approved."
In June 2015, Ms. Kalbaugh filed a motion to enforce the
decree as to the pension fund and requested a division of
property order, and in August 2015 Mr. Kalbaugh filed a
motion to dismiss the motion to enforce. On January 19, 2016,
a magistrate's decision granted Ms. Kalbaugh's motion
to enforce and ordered the parties to submit a division of
property order based upon the terms of the August 1996
judgment entry. Mr. Kalbaugh filed his objections to the
magistrate's decision, and on June 3, 2016, the trial
court issued a judgment entry overruling his objections and
adopting the magistrate's decision. This appeal followed.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR IN ADOPTING
THE MAGISTRATE'S DECISION THAT WAS IMPROPERLY BASED ON A
VOID AND UNENFORCEABLE JUDGMENT ENTRY THAT THE TRIAL COURT
HAD NO JURISDICTION TO ISSUE, RATHER THAN ON THE PARTIES'
AGREED DIVORCE DECREE.
Mr. Kalbaugh argues that the trial court erred in adopting a
magistrate's decision that divided his pension benefits
pursuant to a void judgment entry that impermissibly modified
the property division as agreed upon in the divorce decree.
Pension benefits accumulated during marriage are properly
considered marital assets and are subject to property
division in a divorce settlement. Erb v. Erb, 75
Ohio St.3d 18, 20 (1996). "A trial court is without
authority to modify a property division in a separation
agreement which has been incorporated into a dissolution of
marriage decree." Bond v. Bond, 69 Ohio App.3d
225, 227 (9th Dist.1990). "We recognize that a court has
no jurisdiction to modify an order dividing the marital
property." Sullivan v. Hallagan, 9th Dist.
Medina Nos. 2282-M, 2322-M, 1995 WL 39408, *4 (Feb. 1, 1995).
However, "[w]here there is good faith confusion over the
requirements of the dissolution decree, a court has the power
to enforce its decree, to hear the matter, clarify the
confusion, and resolve the dispute." Bond at
228. "In order to interpret a provision in a separation
agreement, the trial court must first correctly determine
that the provision is ambiguous." George v.
George, 9th Dist. Summit No. 18866, 1998 WL 663221, *3
(Sept. 23, 1998). Where a clause in the divorce decree is
ambiguous, a court "has broad discretion in clarifying
ambiguous language by considering not only the intent of the
parties but the equities involved." Bond at
The primary question in this case is whether the trial
court's order of August 26, 1996, impermissibly modified
the property division as set forth in the divorce decree
entered on November 16, 1995. However, before engaging in
that analysis, we must determine whether this court may
consider the merits of that argument by addressing the
preliminary issue of the jurisdiction of the trial court to
enter the August 1996 order. Mr. Kalbaugh asks this Court to
declare the August 1996 order void and unenforceable because
the trial court was without jurisdiction ...