Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas,
Domestic Relations Division, Case No. 2014 DR 00028.
Lavelle, 1045 Tiffany South, #3, Youngstown, Ohio, 44514 (For
A. Will, Thomas A. Will & Associates, Inc., One Gateway
Center, Suite 700, 420 Fort Duquesne Boulevard, Pittsburgh,
PA 15222 (For Defendant-Appellee).
COLLEEN MARY OTOOLE, J.
Todd A. Walsh appeals from the judgment entry of the Trumbull
County Court of Common Pleas, Domestic Relations Division,
adopting the decision of its magistrate, and granting his
ex-wife Sandra A. Kehler's motion for correction to
judgment entry of divorce pursuant to Civ.R. 60(B). At issue
is the division of Mr. Walsh's naval pension pursuant to
a qualified domestic relations order ("QDRO"). Mr.
Walsh contends the trial court lacked jurisdiction to correct
the divorce decree's provisions regarding the QDRO.
Finding no reversible error, we affirm.
The couple was married August 10, 1994. They have no
children. They permanently separated August 7, 2000. January
27, 2014, Mr. Walsh filed for divorce. Ms. Kehler answered
March 5, 2014. The parties entered a consent judgment entry
of divorce October 30, 2014, which was signed by the trial
court December 8, 2014. Relevant to this appeal are
paragraphs one and nine of the judgment entry. Paragraph one
established the term of the marriage as being August 10, 1994
through August 7, 2000. Paragraph nine established the terms
regarding division of Mr. Walsh's naval pension (he
served twenty years). The parties were ordered to submit
information to QDRO Consultants, LLC, so it could fashion a
QDRO. That was to be submitted to the trial court within 45
days. The trial court retained jurisdiction of the QDRO in
the judgment entry of divorce.
Considerable delay attended preparation of the QDRO. Ms.
Kehler blamed Mr. Walsh's failure to submit information
to QDRO Consultants. Mr. Walsh blamed Ms. Kehler's
failure to pay her half of QDRO Consultants' fee.
Following hearing before the magistrate, the issues were
resolved by an order he filed January 26, 2016, which was
adopted by the trial court that same day.
Ms. Kehler moved to modify the divorce decree October 18,
2016. Her counsel had been contacted by QDRO Consultants, and
informed that the language in the judgment entry of divorce
would not be acceptable to the military authorities. January
9, 2017, Ms. Kehler submitted the motion for correction
pursuant to Civ.R. 60(B) subject of this appeal. February 7,
2017, Mr. Walsh opposed the motion.
The motion came on for hearing before the magistrate March 3,
2017. Mr. Walsh testified as if on cross examination, and
expressed considerable reluctance to part with any of his
pension. David Kelley, founder and principal of QDRO
Consultants, one of the nation's leading experts in this
field, testified for Ms. Kehler. He testified there were two
problems with the language in the judgment entry of divorce.
First, Ms. Kehler's portion of the pension should have
been expressed as a percentage of the disposable monthly
pension pay. He identified this as 15%, and testified this
would involve no change in Ms. Kehler's portion of the
pension as set forth in the formula contained in the judgment
entry of divorce. The more serious problem, in Mr.
Kelley's view, was the duration of the marriage - six
years. He testified that pursuant to the "10/10"
rule, the military will not grant an order providing for
direct payment of pension benefits to an ex-spouse, unless
the duration of the marriage is at least ten years.
Otherwise, the ex-spouse must simply rely on the domestic
relations courts to enforce payment.
Following the hearing, the magistrate issued a decision
granting the motion to correct; altering the term of the
marriage to August 10, 1994 through August 10, 2004; and
ordering that Ms. Kehler receive 15% of Mr. Walsh's
disposable pension pay per month. The decision was adopted by
the trial court March 8, 2017. Mr. Walsh timely appealed,
assigning a single error: "The trial court lacked
jurisdiction to modify the consent judgment entry of divorce
as the defendant-appellant failed to meet any of the
permissible requirements of Rule 60(B) of the Ohio Rules of
Civil Procedure." Under this assignment of error, he
presents a single issue for review: "Did the trial court
lack jurisdiction and err in granting the
defendant-appellee's relief from judgment pursuant to
We review a trial court's decision to grant or deny a
Civ.R. 60(B) motion for abuse of discretion. Huntington
Natl. Bank v. Lomaz, 11th Dist. Portage Nos.
2008-P-0007, 2008-P-0061, 2010-Ohio-705, ¶27. Regarding
this standard, we recall the term "abuse of
discretion" is one of art, connoting judgment exercised
by a court which neither comports with reason, nor the
record. State v. Ferranto, 112 Ohio St. 667, 676-678
(1925). An abuse of discretion may be found when the trial
court "applies the wrong legal standard, misapplies the
correct legal standard, or relies on clearly erroneous
findings of fact." Thomas v. Cleveland, 176
Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)
Civ.R. 60(B) provides, in pertinent part:
"On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a final
judgment, order or proceeding for the following reasons: (1)
mistake, inadvertence, surprise or excusable neglect; (2)
newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under
Rule 59(B); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other
misconduct of an adverse party; (4) the judgment has been
satisfied, released or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or
it is no longer equitable that the judgment should have
prospective application; or (5) any other reason justifying
relief from the judgment. The motion shall be made within a
reasonable time, and for reasons (1), (2) and (3) not more
than one year after the judgment, order or proceeding was
entered or taken. * * * "
"Civ.R. 60(B) is an equitable remedy that is intended to
afford relief in the interest of justice. To prevail on a
motion pursuant to Civ.R. 60(B), the movant must demonstrate:
'(* * *)(1) the party has a meritorious defense or claim
to present if relief is granted; (2) the party is entitled to
relief under one of the grounds stated in Civ.R. 60(B)(1)
through (5); and (3) the motion is made within a reasonable
time (* * *).' GTE Automatic Electric, Inc. v. ARC
Industries, Inc. (1976), 47 Ohio St.2d 146, * * *, at
paragraph two of the syllabus. These requirements are