Klik v. Moyer, 8th Dist. Cuyahoga No. 100576, 2014-Ohio-5994
Wife Denied Relief from 1993 Divorce Decree for Failure to Take Timely Action to Seek QDRO

Released and Journalized: July 24, 2014
Opinion Affirming

In Opinions decided less than a week apart, both the Kentucky and Ohio Courts of Appeals have had the pleasure of dealing with “delayed-QDRO-aftermath” (you know, when the attempted entering of a QDRO is delayed nearly 20 years from the date of decree). My previous blog post dated July 20, 2014 took a look at a recent Kentucky Court of Appeals case and whether a pensioner spouse might defeat the entry of a QDRO more than 15 years post-decree based on a statute of limitations defense. However, because the appeal in that case was filed prematurely (Husband filed his appeal at the discovery stage, when the trial court permitted Wife discovery regarding the pension), the Kentucky Court of Appeals determined the issue was not yet ripe, and that Husband should come back and see the Court if/once the QDRO was finally entered by the trial court. So we wait in anticipation in Kentucky.

On the other side of the river, Ohio’s most recent QDRO-related Court of Appeals Opinion will not keep us waiting. And so what is today’s lesson from the 8th District of Ohio? Wait for it... DON’T WAIT! That’s the lesson. DON’T WAIT! Read on. DON’T WAIT!

The Klick Court was faced with the task of determining whether the trial court abused its discretion in denying Wife relief from the 1993 divorce decree, after she waited 18 years before taking any action to seek a QDRO to effectuate her award of an interest in Husband’s pension. In short, Wife and Husband entered into a settlement agreement, incorporated into the final decree, which specifically awarded Wife an interest in Husband’s “LTV Steel Pension.” No other pension was mentioned, although as you might have guessed, Husband owned two separate and distinct pensions. The settlement agreement further indicated that a QDRO would “be prepared by agreement of the parties and incorporated into this final decree”. Which, as you also may have guessed by now, never happened.

Years went by, and in 2009 Wife found out Husband had retired and begun commencement of his retirement benefits. In 2011, Wife filed several of motions with the trial court seeking relief from the 1993 decree awarding her an interest in only the LTV Steel Pension plan. The premise behind Wife's motions was that it was presumed between the parties (and ostensibly the trial court) that the LTV Steel Pension was used interchangeably and collectively to encompass both Husband’s pension plans, and therefore, she was entitled to the marital portions of both. However, as the Appeals Court observed, since the 1993 decree expressly referenced the LTV Steel Pension, the only way to award Wife an interest in any other pension was to grant her relief from the 1993 divorce decree.

Wife argued that relief from the 1993 decree was unnecessary, as it was not a final order since it did not consider all assets. The Court of Appeals quickly dispensed with Wife’s argument citing – among other things – ye olde bar exam favorite “invited error doctrine” (i.e., that a party is not entitled to take advantage of an error that she herself invited or induced). The Appeals Court determined that even if the trial court erred by omitting any reference to Husband’s other pension in the final decree, Wife induced that error by submitting the settlement agreement to the trial court as the final resolution of the parties’ dispute.

Wife argued alternatively that her Rule 60 motion was timely filed and should be granted, as she had just learned of Husband’s retirement in 2009. The Court of Appeals didn’t agree that 2009 was the date to start the clock. Instead the Court found it started somewhere closer in time to the 1993 decree:

Had [Wife] timely prepared the QDRO as required by the terms of the final decree and her settlement agreement, her belief of a mistake in designating the correct pension would have surfaced, however untenable that argument is in light of the fact that [Wife] agreed to accept the LTV Steel [Pension] in the settlement agreement. As a rule, 18 years of conscious inaction does not constitute a reasonable time within which to file a motion for relief from a final judgment.

If my two most recent blog posts are not reason enough to heed the lesson (DON’T WAIT!), then stick around, the clock is still ticking. I’m guessing there will be no shortage of these cases on both sides of the river in the near future – where an attempt to enter a QDRO is delayed until the employee commences benefits, and then suddenly everyone wakes up from inertia. The question is how many ways will the non-employee spouse be thwarted from obtaining his/her rightful (and likely most substantial) marital property interest? The count is on.

Blog Posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. Please consult with counsel of your choice regarding any specific questions you may have.

Update to my Blog Post Dated July 20, 2014: Anticipation is Keeping me Waiting… (But not Anymore in Ohio)