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Kmet v. Kmet

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

ANN MARIE KMET, Plaintiff-Appellee,
v.
EDWARD PETER KMET, Defendant-Appellant.

          Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-15-358333

          Heather R. Johnston, for appellee.

          Robert C. Aldridge, for appellant.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., JUDGE

         {¶ 1} Defendant-appellant Edward Peter Kmet ("Husband") appeals from the trial court's September 27, 2018 judgment entry, in which the trial court overruled his objections to the magistrate's April 2018 decision, and adopted the decision without modification. For the reasons that follow, we reverse and remand for further proceedings.

         Factual and Procedural History

         {¶ 2} This is a divorce case, wherein Husband and plaintiff-appellee Ann Marie Kmet ("Wife") were divorced in September 2016. The parties executed a separation agreement that was adopted by the trial court and incorporated into the judgment entry of divorce. Husband has a Thrift Savings Plan ("TSP") that is a pension account. It was undisputed at the trial-court level, and is here, that some of the contributions Husband made to the account were made prior to the parties' marriage. At issue is the value of the premarital contribution.

         {¶ 3} In the separation agreement, the parties agreed that $28, 328.29 of the value of the account was premarital. They further agreed that each would have a one-half interest in the remaining marital balance of the account. At the hearing where the parties placed the terms of their separation agreement on the record, Wife's counsel stated that $28, 328.29 of the account was premarital and belonged to Husband. The magistrate asked counsel, "so after that amount [is] deducted each party will each have a 50% interest in the remaining balance?" (Emphasis added.) Wife's counsel indicated that was correct.

         {¶ 4} In the judgment entry of divorce, the trial court incorporated the parties' separation agreement into its judgment and ordered the parties to prepare and submit any qualified domestic relations order ("QDRO") that would be "necessary to implement the orders herein."

         {¶ 5} In May 2017, Wife filed a motion to show cause, contending that Husband refused to sign the QDRO that had been prepared for his TSP. Wife also informed the court in the motion that the date of the parties' marriage was incorrect in the divorce judgment entry and the QDRO for the TSP. Specifically, the date listed in those two documents was September 25, 1996, when the correct date of the marriage was September 26, 1995. Wife contended in the motion that "the TSP was prepared using the incorrect date of marriage of September 26, 1996. Both parties provided an incorrect date of marriage."

         {¶ 6} In July 2017, the parties filed an agreed judgment entry, in which they, in relevant part, agreed to amend the date of marriage in the divorce judgment entry to reflect the correct date of September 26, 1995. They further agreed to instruct "Pension Evaluators to re-evaluate the marital portion" of the TSP using the dates of September 26, 1995 to August 6, 2016, which was the date of termination for marital benefits. (Emphasis added.) The amended separation agreement again stated that the parties agreed that $28, 328.29 was Husband's premarital interest in the account.

         {¶ 7} On August 9, 2017, an amended judgment entry of divorce was filed. The amended divorce decree reflected the correct marriage date of September 26, 1995. The amended entry also added language to reflect that the dates used to define the marital portion of Husband's TSP would be September 26, 1995 through August 6, 2016. The entry stated, as the parties had agreed, that a QDRO for Husband's TSP would be executed.

          {¶ 8} In November 2017, Wife filed a motion to show cause on the ground that Husband refused to sign the amended QDRO for his TSP. Wife also filed a motion for attorney fees. In March 2018, a magistrate of the court conducted a hearing on the motions. At the hearing, Husband's counsel contended the premarital interest in the TSP was fixed at $28, 328.29, "even if that amount is not exactly what the premarital interest was, it is still the amount that the parties agreed upon, and it is in the court order."

         {¶ 9} Husband testified at the hearing that the value of premarital interest on the TSP was negotiated by the parties with counsel, and without the benefit of any input from pension evaluator professionals. Wife testified that it was her understanding that, because of the amended dates, the evaluators would consider the entire TSP, including the premarital value of the account. She ...


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