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Walsh v. Walsh

Court of Appeals of Ohio, Eleventh District, Trumbull

June 25, 2018

TODD ANTHONY WALSH, Plaintiff-Appellant,
v.
SANDRA ANN WALSH, Defendant-Appellee.

          Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations Division, Case No. 2014 DR 00028. Judgment: Affirmed.

          Mark Lavelle, 1045 Tiffany South, #3, Youngstown, Ohio, 44514 (For Plaintiff-Appellant).

          Thomas A. Will, Thomas A. Will & Associates, Inc., One Gateway Center, Suite 700, 420 Fort Duquesne Boulevard, Pittsburgh, PA 15222 (For Defendant-Appellee).

          OPINION

          COLLEEN MARY OTOOLE, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 Rule 60(B)?"

         {¶7} 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.)

         {¶8} Civ.R. 60(B) provides, in pertinent part:

         {¶9} "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. * * * "

         {¶10} "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 ...


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