Ohio Case Law Update

They Broke the Mold! This Ohio commemorative quarter and the DOPO form were both minted in 2002.

They Broke the Mold! This Ohio commemorative quarter and the DOPO form were both minted in 2002.

Toki v. Toki, 5th Dist. Perry No. 22480, 18-CA-00014, 2019-Ohio-817
Laches May not Bar 25 Year Old Monetary Judgment Representing an Interest in the Marital Pension

Dated: March 7, 2019
Affirming in Part and Remanding in Part

Editor’s Note: this matter has twice since returned to the Court of Appeals from remand, and is subject to subsequent rulings; click here and here to read my office’s abbreviated case law reviews.

In Toki v. Toki, we have a case wherein the parties’ divorce, in 1994, actually precedes the creation of the Division of Property Order (DOPO) form established under ORC § 3105.90, in 2002.

So fasten your seatbelt, I get to do two of my favorite things in this post: talk about DOPOs and self-promote. I’ll also be doing the former on May 2nd for the OSBA Seventh Annual Family Law Institute, in a session designed to walk practitioners step-by-step through the DOPO process, aptly titled “I’m with —> DOPO.” (See what I mean about self-promotion?)

Even if I wasn’t writing this while preparing what is probably the greatest presentation on Division of Property Orders of all time (an admittedly low bar), I’d still be talking about DOPOs in this update. The last few months of case law have been saturated with opinions and decisions concerning DOPOs and Ohio public employee benefits. You might even say we have a plethora. But, like an attorney selecting the form of benefit on the Ohio DOPO form: we have to choose. So, Toki it is.

A 1994 Amended Referee’s Report awarded Wife $53,531.48 of Husband’s OPERS pension. Recognizing the Report’s failure to consider interest on the fixed amount through the date Husband retired, the trial court subsequently ordered a recoupment formula, granting Wife half of a coverture fraction, applied to each of Husband’s forthcoming monthly or lump sum benefits, plus interest. Unfortunately for the parties, or at least Wife, back in 1994, there was no means for them to effect this assignment by directing OPERS to make the payments to Wife upon Husband’s retirement (i.e., no DOPO).

In 2002, coincidentally the same year the DOPO was first being introduced to the world, Husband retired and remitted $20,000.00 by personal check to Wife as a partial settlement of her interest in his pension. Nothing further occurred until 2017, when -apparently spurred in part by a testy exchange between Husband and Wife’s current spouse- Wife filed a Charge in Contempt and Motion to Construe Decree of Divorce in attempt to collect the remaining amount of her interest, which were both the subject of this appeal.

Normally I’d pause here to talk about Ohio public retirement awards being ‘if, as, and when,’ and the problems you’ll run into if you try to make a lump sum dollar amount assignment, and so on… but I’ll be doing that in just a few weeks! And, honestly, when you add the fact that this is a pre-DOPO award to the mix, it’s just too much discuss in one blog post. So, we’ll move on, because there’s one more piece to this case that deserves at least brief discussion here. The Court determined that Wife’s (only 15 years in the making) motion for contempt was barred by the doctrine of laches. However, the Court didn’t throw out Wife’s claim to Husband’s OPERS benefits altogether. Wife’s collection of her monetary judgment, for the original definite amount set forth in the 1994 order, and the extent to which laches may also apply, was remanded back to the trial court. The Court found that while laches could not apply to the monetary judgment itself under Ohio law, the trial court could make a determination as to whether laches applied to payments Husband already received.

Now, before you start muttering to yourself while calculating interest on a 1994 judgment, remember that we have the DOPO now, which could have obviated this entire post-decree headache. The good news is that this case may be regarded merely as vestige of the agonies in the pre-DOPO era. And yeah, I get the irony.

Additional Cases of Interest:

Remember when I told you we had a plethora of cases? There’s just not enough time to give some of these the attention they deserve here (though I’m not saying I won’t eventually), so I’ve included links to them below, adding some key search terms. Enjoy!

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.

2019Eileen ZellQDRO, DOPO, Pension, Social Security, Ohio, OH, O.R.C., Offset, Coverture, Marital Property, Divorce, ERISA, Equitable Division, Family Law, Symposium, Survivorship, Laches