Ohio Case Law Review by Topic: October 1, 2020 through November 30, 2020

Don’t let the picture fool you, these are not cookie cutter cases.

Schwieterman v. Schwieterman, 3rd Dist. Logan No. DR16-12-0184, 8-19-49, 2020-Ohio-4881

Marital Property: de facto date (termination of marriage)

Dated: October 13, 2020
Affirming

W argued the trial court’s August 5, 2015 de facto termination date, instead of the date of the final hearing, impacted the valuation of retirement accounts in H’s name.

W maintained that the de facto termination date for the marriage violated the parties’ agreed upon property division and that H’s failure to file a motion for a de facto termination date rendered the trial court’s determination on this matter a violation of her due process rights.

The Court found that the trial court did not violate the stipulated agreement between the parties as to the termination date of the marriage. In this case, both parties signed an agreement that submitted this issue to the trial court for such determination; the discussion at the final hearing and the stipulations in the magistrate’s decision reflected the understanding of the parties. The Court further discussed that H was not required to file a motion with the trial court that formally requested a de facto termination date for the marriage, and the trial court did not err in deciding this issue in the absence of such a motion.

Finally, W argued the trial court erred by using a de facto termination date, instead of the date of the final hearing, because such result was inequitable under a Dill analysis. See Dill v. Dill, 179 Ohio App.3d 14, 2008-Ohio-5310, 900 N.E.2d 654, ¶ 47 (3d Dist.). However, the Court found that the magistrate had considered the circumstances of this case under the factors set forth in Dill and that the trial court, in the divorce decree, adopted the magistrate’s reasoning on this matter. The Court wrote: “In this case, the inequity of using the date of the final hearing is apparent from the findings that were made by the trial court in the process of applying the Dill factors.”

Whited v. Whited, 4th Dist. Washington, No. 19CA26, 2020-Ohio-5067

Civ. R. 60(B): timely
QDRO: merely implements decree

Dated: October 19, 2020
Affirming

The Court ruled that the trial court’s denial of Civ. R. 60(B) motion for relief from judgment filed 20 years after final judgment did not constitute an abuse of discretion.

On December 10, 1999, the trial court issued a judgment that terminated the parties’ marriage and approved their separation agreement, which included a provision that “[e]ach party shall get 50% of the General Electric Pension by means of a QDRO between the parties.” Nearly 20 years later, on June 2, 2019, W filed a motion to implement the division of H’s retirement benefits, asserting that the December 10, 1999 decree required the division of H’s General Electric retirement benefits from his date of employment to December 10, 1999. W further sought an order: (1) to prohibit H from taking any action to jeopardize W’s interest in H’s retirement benefits; and (2) to require H to cooperate with W to divide the retirement benefits per the court’s prior entry.

On August 2, 2019, the magistrate ordered the parties to cooperate in the issuance of a QDRO to effectuate the retirement benefits award. On August 15, 2019, the magistrate determined that the QDRO covered the retirement benefit period from October 14, 1974 to August 25, 1999, and that the QDRO be filed within 30 days.

On October 21, 2019, H filed a motion, pursuant to Civ. R. 60(B)(2), (3), and (5), and requested a hearing on the issue of whether newly discovered evidence, fraud, misconduct, misrepresentation, or any other reason should prevent the operation of the QDRO. On November 4, 2019, H requested a stay of the QDRO’s enforcement in light of his pending Civ. R. 60(B) motion, which was overruled by the trial court, and his motion denied. H asserted that W’s criminal conduct occurred, unbeknownst to him, during their marriage. H argued that after he discovered this conduct in 2003, he could not file a Civ. R. 60(B)(1), (2), or (3) motion because the case had been closed and no actual enforceable judgment existed against him. Accordingly, H argued that the event from which the Court should measure timeliness is the 2019 QDRO. The Court found that H did not set forth specific evidence of grounds for relief under Civ. R. 60(2) and (3), but instead argued that based on “new evidence being brought after the new proceeding has started * * * a new proceeding based on the same order should hear the new developments on the case when this is the same case.” Essentially, H argued that his motion was timely because a “new proceeding” existed based on the same case number, facts, and order from 1999.

However, the trial court reasoned that H learned in 2003 of the “repulsive, immoral and criminal actions of the W having perpetrated severe physical abuse of the parties’ minor child and subsequently being convicted of the same.” Civ. R. 60(B) requires a motion filed under (1), (2), or (3) to be filed within one year of the original judgment. H filed his motion for relief from judgment 20 years after the original 1999 judgment and 16 years after he learned of W’s criminal conduct. Civ. R. 60(2) and (3) speak to newly discovered evidence and fraud, and impose a one-year limitation from the date of the judgment to raise these issues. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994).

The Court further disagreed with H’s contention that the QDRO constituted a “new proceeding” and “final judgment.”

“[A] QDRO is different from the usual court order. A QDRO is an order that ‘creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.’” State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, 922 N.E.2d 214, ¶ 18, citing Employee Retirement Income Security Act of 1974, Section 1056(d)(3)(B)(i)(l), Title 29, U.S. Code, and Section 414(p)(1)(A)(i), Title 26, U.S. Code. “The QDRO implements a trial court’s decision of how a pension is to be divided incident to divorce or dissolution.” Blaine v. Blaine, 4th Dist. Jackson No. 10CA15, 2011-Ohio-1654, at ¶ 20, citing Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 7. A QDRO “does not in any way constitute a further adjudication on the merits of the pension division, as its sole purpose is to implement the terms of the divorce decree. Therefore, it is the decree of divorce that constitutes the final determination of the court and determines the merits of the case.” Wilson, at ¶ 16.

The Court cited Plant v. Plant, 5th Dist. Fairfield No. 02CA01, 2002-Ohio-3684, * 2, by way of example, where it was held that the date of a QDRO journal entry was not relevant in determining whether the motion was timely. The trial court determined that the QDRO was not a judgment, but rather an implementation of a judgment. Thus, the trial court held that H “cannot utilize a Civ. R. 60(B)(2) or (3) motion, albeit filed within one year of the QDRO,” when in fact, he is “collaterally attacking the prior judgment entry/decree of divorce.”

The Court agreed with this reasoning and concluded that the date of the QDRO in the case at bar was not relevant in determining whether the Civ. R. 60(B) motion was timely. The Court found that the trial court’s decision to deny H’s Civ. R. 60(B)(5) relief was not unreasonable, arbitrary, or unconscionable. H had sought relief from the terms of the 1999 Separation Agreement and needed to demonstrate that he filed his Civ. R. 60(B)(5) motion within a reasonable time. The Court concluded: “The trial court finalized the judgment in 1999, H learned of W’s misconduct in 2003, and H filed his motion for relief from judgment on October 21, 2019, not within a ‘reasonable time.’”

Irvin v. Eichenberger, 10th Dist. Franklin No. 14DR-1674, 19AP-417, 2020-Ohio-4962

Marital Property: equitable division (unequal division), financial misconduct, tracing
Witness: expert

Dated: October 20, 2020
Affirming

The Court ruled that the trial court did not abuse its discretion, in a second appeal, in making distributive awards on remand that considered earlier found financial misconduct, which supported an unequal division of marital assets between the parties.

The trial court’s prior determination of the distribution of marital property was affirmed in the first appeal, including its finding that the H engaged in financial misconduct. The trial court concluded that H was hiding assets and determined to make an equitable (rather than equal) division of the known assets that resulted in an award to H of $5,357.82 (that net result considered $50,000.00 H had already received during the litigation via QDRO).

The Court’s June 29, 2017 decision affirmed in part and reversed in part the trial court's decree. First, the Court reversed a finding that the parties should make a division of their Social Security benefits, but noted that such benefits could be considered by the trial court in disposing of the remainder of the marital property.

Editor’s Note: The Editor questions the legal soundness of considering Social Security benefits at all, at least outside the allowance of RC 3105.171(B) and (F)(8).

Second, the Court found that the Cardinal Health Account in W's name was accumulated during the marriage and was marital property. Third, the Court noted that the exact figure for the Scott's Fidelity 401(k) in W’s name was listed by the trial court as $308,332.85, but that such a figure appeared nowhere in the appellate record and was not supported by evidence in the record. Fourth, the Court held the trial court had erred in ruling that certain objections to a magistrate's ruling by H were untimely. Fifth, the Court noted that the trial court had indicated an inventory of personal property was attached to the decree as an exhibit, but no such exhibit was attached. Finally, the Court noted that, in calculating H's arrearage of unpaid maintenance payments, the trial court did not consider that H had, by W's admission, made at least some of the required payments. In concluding, the Court clarified that the divorce decree was affirmed in all respects except those specifically indicated.

In the instant appeal, The Court found no abuse of discretion in the trial court's delay of almost two years implementing the Court’s remand because that delay was occasioned almost entirely by H's actions. H is a former attorney who utilized a variety of means that an ordinary pro se party is not as likely to be aware of, nor able to execute as successfully as H did to interpose the very delay for which he complained.

The Court found no merit in H’s argument that the trial court abused its discretion in relying on the testimony of W’s expert to craft its remand decision. W had testified to the trial court that, due to market fluctuations, the value of her Scott's Fidelity 401(k) was approximately $308,000.00. H presented nothing to dispute this figure. W also presented the testimony of an expert in the field of forensic accounting and business valuation to the effect that 30.1% of the Scott's Fidelity 401(k) was her separate property (making her separate property approximately $92,708.00). Although the expert acknowledged that the account balance as of the start of the marriage had been $34,015.21, she traced the contributions throughout the marriage and determined that the $34,015.21 constituted approximately 30.1% of the total contributions to the account. Thus, she reasoned that the account, whatever its current value (which rises and falls with the financial markets), was 30.1% W's separate property. Although H cross-examined the expert and attempted to dispute her qualifications and conclusions, he offered no expert testimony, calculation, or affirmative evidence of his own to counter her methodology or its resulting numbers. Contrary to H's assertions, the Court found no abuse of discretion by the trial court in relying on the expert's method.

In the divorce decree, the trial court found that the Cardinal Health 401(k) account was W's separate property. But, because the accumulation of that account and W's employment with Cardinal Health were both entirely during the marriage, the Court reversed that finding in the first appeal. Consistent with the Court’s decision, on remand the trial court found that the Cardinal Health account was marital property. Yet, the trial court nonetheless assigned the account to W as an equitable distribution in consequence of H's significant and continuing misconduct. In this appeal, H argued that the trial court erred in its remand entry when it awarded W the Cardinal Health account. However, though the Court reversed some limited findings of the trial court in the first appeal, the Court otherwise affirmed the decree and specifically affirmed the finding that H had engaged in financial misconduct.

A reviewing court will not modify or reverse a property division unless it finds that the trial court abused its discretion in dividing the property as it did. Cherry v. Cherry, 66 Ohio St.2d 348, 355 (1981); Berish v. Berish, 69 Ohio St.2d 318 (1982); Goode v. Goode, 70 Ohio App.3d 125, 129 (10th Dist.1991).

In the instant appeal, the Court stated that there was no basis for concluding that the trial court abused its discretion in making a distributive award of the Cardinal Health account to W. The trial court found H engaged in financial misconduct, and it was within its discretion to "compensate the offended spouse with a distributive award or with a greater award of marital property." R.C. 3105.171(E)(4); see also, e.g., R.C. 3105.171(E)(5) (permitting punitive awards for substantial and willful failures to disclose financial information of up to three times the value of the undisclosed property).

Sullivan v. Sullivan, 2nd Dist. Montgomery No. 2016-DR-1086, 28848, 2020-Ohio-5036

Marital Property: retirement benefits (military)

Dated: October 23, 2020
Affirming

The Court found that the trial court did not err in finding H in civil contempt for failing to pay W the required portion of his disposable military retirement pay.

The divorce decree obligated H, a retired military officer, to pay W 46.52% of his disposable military retired pay directly, until the necessary paperwork was filed for the government to pay W directly. H disputed the proper computation of his disposable pay and admitted not knowing how much he had paid W since the filing of the divorce decree. However, H believed that he overpaid W because his retirement pay had continued being garnished pursuant to a pre-decree temporary withholding order while he also made direct payments to W. At some point, H “adjusted” what he directly paid W to account for overpayments due to garnishment, based on his interpretation of the definition of his disposable pay.

The magistrate found that H had not paid W the proper amount of his retirement pay and held H in civil contempt that he could purge by paying the deficiency at a rate of $244 per month, plus $500 for W’s attorney fees. H argued in his objections to the magistrate’s decision only that he had paid W “what he calculated to be the appropriate amount,” that there was “a dispute between the parties as to how much of H’s military pay” W should receive, and that he had “made substantial payments to W since the time of the divorce and believed that he was in strict compliance” with the divorce decree.

However, the Court found no error in the trial court’s determination that H had not paid W the required amount, despite H’s belief to the contrary and notwithstanding that H had made some payments.

In order to establish civil contempt, it is necessary to establish only the existence of a court order, knowledge of the order, and a violation of it. Gaver v. Miller, 2d Dist. Champaign No. 09- CA-46, 2010-Ohio-4275, ¶ 6. Intent to violate the order need not be shown. Id.

The trial court’s retirement-pay calculations were supported by the terms of the divorce decree and Lisa’s testimony, which the trial court credited. The CSEA audit cited by the trial court also supported its finding about funds the agency withheld from Brendan’s pay being returned to him. For his part, Brendan presented no exhibits at the hearing and testified that he did not know how much he had paid Lisa.

Finally, H also argued that the trial court violated 10 U.S.C. 1408 by awarding W more than 50% of his disposable retired pay, but the Court found this was not supported by the trial court’s calculations. H also suggested that W had not paid the ‘survivor benefit premium’ as required, however, in the decree, W’s percentage of H’s military pension was reduced from 50% to 46.52% to account for her obligation to pay that premium.

Gaffney v. Gaffney, 12th District Butler No. CA2019-10-172, 2020-Ohio-5051

Spousal Support: double-dipping, RSUs

Date: October 26, 2020
Affirming

The Court ruled that the trial court did not err in its calculation of spousal and child support. The trial court's support order was based on H's base income and a percentage of future bonuses and did not amount to a "double-dip."

The trial court found that the parties had exercised stock options on May 3, 2018 and that H retained a total value of $45,328.52. The trial court then ordered that W was entitled to an equal division of stock option grants, incentive performance stock options, and restricted stock units. As to spousal support, the trial court adopted H's suggestion of tiered support, albeit at different amounts than he proposed. Accordingly, the trial court ordered H to pay W $4,500 per month, or $54,000 per year, and 35% of any gross bonus, commission, or incentive pay H received from his employer for a term of 9 years.

H filed a motion to correct or review judgment and disputed that he retained $45,328.52 from the exercise of stock options. H provided the trial court with additional filings that showed his actual gain was $17,469.78, not $45,328.52. H did not explain why these documents were not provided to the court during trial, but the trial court found it equitable to consider the relevant documents. Therefore, the trial court granted, in part, H's request and ordered the parties equally divide the gain from exercised stock at the value of $17,469.78.

In his motion H also raised a new issue regarding stock ownership and that the calculation of spousal support was a "double dip," "double dip again," and a "triple dip." The trial court clarified that spousal support was ordered for "any future gross bonus or commission or incentive pay H receives from his employer and during the spousal support term." The Court ruled that the trial court’s order did not constitute double-dipping. The Court clarified the definition of double-dipping as “double counting of a marital asset, once in the property division and again in the spousal support award. Corwin v. Corwin, 12th Dist. Warren Nos. CA2013-01-005 and CA2013-02-012, 2013-Ohio-3996, ¶ 50.”

More specifically, a double dip occurs where a court uses a business owner's "excess earnings" to value the interest in the business and also fixes support on that spouse's total income (inclusive of the excess earnings used to value the business). Id. "Utilizing the same stream of income that forms the basis of valuing a business when calculating spousal support provides the nonowning spouse with the benefit from the same stream of income twice." Id.

The Court distinguished this case from Corwin, where the issue of double-dipping had been “properly raised and argued” before the trial court. Here, H failed to present the issue of double-dipping until after the trial court issued its judgment entry following trial and submission of written closing arguments in the form of a "motion to correct or review judgment."

At no time did Husband raise or focus the issue of double dipping to the trial court such that Wife could address the argument and the trial court could make a finding on the matter. Potter v. Potter, 12th Dist. Butler Nos. CA2013-12-222 and CA2013-12-232, 2014-Ohio-5490, ¶ 13.

The Court explained that the record in this case revealed that the trial court divided the stocks and stock options that constituted marital property equally. In calculating spousal support, the trial court adopted a tiered support model, as recommended by H. Tier I support was related to his base salary and Tier 2 support was for 35% of any future gross bonus, commission, or incentive pay that H received from his employer. The trial court's final order specified that H's Tier 2 support obligation was for "future gross bonus or commission or incentive pay Husband receives from his employer during the spousal support term, beginning July 1, 2019." Citing its own ruling in Ghanayem v. Ghanayem, 12th Dist. Warren Nos. CA2018-12-138 and CA2018-12-142, 2020-Ohio-423, the Court held that H's future bonuses are an appropriate consideration in the calculation of support obligations.

Lichtenstein v. Lichtenstein, 8th Dist. Cuyahoga No. DR-16-362842, 108854, 2020-Ohio-5080

Civ. R. 53
Marital Property: separate property, tracing
QDRO: market experience (gains/losses)

Date: October 29, 2020
Affirming in Part, Reversing in Part, and Remanding

The Court found that the trial court did not abuse its discretion when it adopted the magistrate’s decision with respect to H’s Charles Schwab IRA. The Court agreed that H established by a preponderance of the evidence that the IRA was his separate property.

W had argued that the trial court abused its discretion when it found that H’s Charles Schwab IRA was his separate property. H testified that he had the IRA prior to the marriage and that he made no contributions to it during the marriage. He partially corroborated that testimony with documentation from Charles Schwab showing that the account existed prior to the marriage and that he did not make contributions to the account from 2015 through 2017. The documentation showed H’s IRA account value as of June 15, 2012, the date the parties got married. The documentation also showed the year-end statements from 2015 through 2017, which showed that H did not make any contributions during those years.

W argued that H failed to submit any documentation to support his testimony for the years 2012 to 2015. H testified that he tried to get the documents for those years but because Charles Schwab had changed the accounts, he could not get them. The trial court found H’s testimony that he did not contribute to the IRA during the marriage to be credible with respect to the years for which he did not have documentation. Further, the Court noted that W could have subpoenaed the Charles Schwab records herself to impeach H’s testimony, but she did not do so. The Court found no merit to W’s arguments regarding H’s IRA.

W also argued that the trial court abused its discretion when it ordered that a QDRO should issue from H’s 401(k) for the exact sum of $19,690.14, rather than allow her to receive the award valued as of a past date, with gains on that sum until its transfer. The trial court determined that the marital portion of H’s retirement account amounted to $51,409.18, and that the marital portion of W’s two retirement accounts were $10,517.98 and $1,510.92. “From these numbers, the trial court found that wife was entitled to $19,690.14 from husband’s retirement account. R.C. 3107.171(A)(3)(a)(ii) states that marital property is the interest that either spouse currently has in ‘the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage.’ That is the amount the trial court awarded wife.” The Court found no merit in W’s argument.

Fordeley v. Fordeley, 11th Dist. Trumbull No. 2012 DR 00330, 2018-T-0006, 2020-Ohio-5380

Marital Property: prenuptial agreement

Dated: November 23, 2020
Reversing and Remanding

The Court reversed and remanded the trial court’s decision invalidating the parties’ prenuptial agreement in the case of a car wash entrepreneur (with businesses such as Buff-n-Stuff and Wheelz Gone Wild) and his high school pregnant bride.

“Prenuptial agreements ‘are valid and enforceable (1) if they have been entered into freely without fraud, duress, coercion, or overreaching; (2) if there was full disclosure, or full knowledge and understanding of the nature, value and extent of the prospective spouse’s property; and (3) if the terms do not promote or encourage divorce or profiteering by divorce.’ (citations omitted.) Fletcher v. Fletcher, 68 Ohio St.3d 464, 466, 628 N.E.2d 1343 (1994).” The trial court based its unenforceability ruling upon its finding of duress, coercion, and overreaching.

“In considering coercion and overreaching in general, the outcome of the analysis often turns on whether the challenging party had an opportunity to meet with counsel prior to execution. Id. at 470.” Here, the 8-month pregnant teenage W (who was being told H would not marry her unless she signed the prenuptial agreement) met with two different attorneys and signed a written waiver stating that she reviewed the agreement with the attorney and that she fully understood its terms, that the attorney told her of specific concerns he had, that she should carefully consider those concerns prior to making her final decision, and that she was executing the agreement despite her attorney’s advisement that it was not in her best interest. The Court found that W was afforded a meaningful opportunity to meet with counsel. “For purposes of deciding whether a prenuptial agreement is enforceable, the terms duress and coercion are given their generally accepted meanings. Vlad v. Vlad, 11th Dist. Trumbull No. 2003-T-0126, 2005-Ohio-2080, ¶ 50.”

The trial court’s duress and coercion findings were based on H’s refusal to marry absent a prenuptial agreement and W’s late-term pregnancy. The Court opined that if conditioning marriage on a prenuptial agreement constitutes duress, then almost all premarital agreements would be unenforceable. Baumgartner v. Baumgartner, 6th Dist. Lucas No. L-88-032, 1989 WL 80947, *11 (July 21, 1989). An ultimatum does not constitute duress and render a prenuptial agreement unenforceable. Mallen v. Mallen, 280 Ga. 43, 45, 622 S.E.2d 812 (2005). “Moreover, [W] was not rushed to make a quick decision without having a full opportunity to consider her options. [H] told her all along that he would not marry her without a prenuptial agreement, and [W’s] pregnancy does not constitute duress.”

Editor’s Note: The Dissenting Opinion in this case is a must read:

I find no error in the trial court’s determination that the agreement is invalid due to duress and overreaching. It is critical to note that [W] never saw the agreement before [H] took her to meet with the attorney whom he picked to review and advise her. [H] drove her to his attorney’s office to pick up the document. He handed it to her when they were driving just around the corner to the other attorney’s office for the appointment [H] scheduled. [W] did not recall how long she was with her attorney, but [H] testified she was with the attorney for “30 to 45 minutes,” while he waited in the car. While it is true that she met with the attorney and he advised her that day the agreement “may” not in her best interest and prepared a written waiver to that effect, the waiver did not specifically advise her that she was entitled to full disclosure of the value of all assets. So, within the space of less than an hour of time, [W], a nineteen-year old Catholic girl barely a year out of high school, who was over eight months pregnant and whose parents did not approve of her thirty-year old boyfriend, was handed for the first time a nine-page agreement, was driven to an attorney’s office, met with the attorney, purportedly read the document and also had it explained to her by the attorney, listened to an advisement by the attorney, waited for his secretary to prepare a waiver, signed the waiver and the agreement, and returned to the car. She testified she does not recall being given her own copy of either the signed agreement or the signed waiver when she left the attorney’s office. [H] testified he returned the original signed documents that day to his attorney’s office, where he signed the agreement. They married two days after the document was signed. She admittedly signed the agreement because she knew she had no choice but to sign an agreement so they could marry before the child was born. In sum, the trial court found the independent review by counsel was not “meaningful.” I agree.

Negron v. Santini, 12th Dist. Warren No. 12DR35493, CA2020-03-021, 2020-Ohio-5458

QDRO: merely enforces decree, valuation date

Dated: November 30, 2020
Affirming

The Court ruled the trial court did not err by denying W's motion where the record reflected that the parties entered into a voluntary agreed entry resolving the matter. “A judgment entry to which the parties voluntarily agree, or consent is essentially a contract between the parties… as such, the parties are bound by its terms.”

H had filed a QDRO to divide his 401(k) plan with the dates specified in the divorce decree. However, the Plan Administrator rejected the QDRO on the basis that a date on or after August 20, 2013 had to instead be used to divide the Plan (because the Plan Administrator had no records of account balances prior to that date, since it was not the Plan Administrator until that date). H filed an amended QDRO specifying the August 20, 2013 date. The Plan Administrator approved the QDRO and divided the account pursuant to the date in the amended QDRO.

However, due to additional contributions made by H following the agreed upon termination date of the marriage, W received more than one-half of the marital share of H's 401(k) plan as provided in the separation agreement and divorce decree. Because of this overpayment, H moved to vacate the amended QDRO. At the hearing on H’s motion, the parties agreed to execute a second amended QDRO specifying that W was to receive a specific dollar amount of $43,985.65 from H's 401(k) plan.

The Plan Administrator rejected the second amended QDRO. The Plan Administrator maintained that the second amended QDRO could not be processed because the first amended QDRO segregated H's account and, once segregated, the Plan Administrator could not recoup the funds relegated to W.

H filed a motion for recoupment of overpaid retirement funds and W responded by filing a motion to dismiss Hs motion. During the hearing, the parties reached an agreement resolving both motions which was memorialized in an agreed entry and signed by both parties and their respective attorneys. Despite the agreed entry, W filed a renewed motion to dismiss H's motion for recoupment. The trial court held a hearing and the magistrate issued a written decision overruling W's renewed motion and ordered that she comply with the terms of the agreed entry by immediately transferring $19,912.40 to another retirement account to which a QDRO could issue or, in the alternative, pay H the agreed upon funds in cash.

A QDRO, however, is merely an order in aid of execution, and therefore, not subject to the 'prohibitions imposed with respect to modification of final orders nor the jurisdictional limitations of R.C. 3105.171(I), so long as the QDRO is not at variance with the decree.'" Jewett v. Jewett, 12th Dist. Warren No. CA2013-11-110, 2014-Ohio-2343, ¶ 10, quoting Coterel v. Coterel, 2d Dist. Montgomery No. 20899, 2005-Ohio-5577, ¶ 13. See also Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, ¶ 7 (stating a QDRO "implements the court's decision of how a pension is to be divided incident to divorce or dissolution").

In the present case, the agreed entry stated that the "parties agree that [W] received $19,912.40 more than she should have from [H's] RELX Inc. (fka Reed Elsevier) retirement account," which is what gave rise to the need for a second amended QDRO. Thus, since the QDRO is merely an order in aid of execution, the trial court was not constrained by R.C. 3105.171(I) in effectuating the parties' agreed entry. The agreed entry attempted to rectify this overpayment by directing the parties to file a QDRO to transfer the $19,912.40 from [W's] account to [H’s] account.

Despite the agreed entry, [W] and her counsel attempted to undo their agreement with the filing of the renewed motion to dismiss.

The Court found that the trial court did not err by overruling W's objections to the magistrate's decision. As found by the trial court, the parties agreed that there had been an overpayment and the parties reached a reasonable and proper method of correcting the problem with the adoption of the agreed entry. “The agreed entry did not provide for any reservation of a right to appeal. In sum, [W] with her counsel, agreed to the terms of the entry, which included the signatures of all parties and the Judge. Since [W] agreed to those terms, she was must now abide by the agreement.”

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