Ohio Case Law Review by Topic: March 1, 2022 through April 30, 2022

Williams v. Williams, 1st Dist. Hamilton No. DR-1900117, C-210331, 2022-Ohio-599

Civ. R. 60(B)
DOPO: survivorship
ORC 3105.171(I)
Witness: expert

Dated: March 2, 2022
Affirming

As part of Husband and Wife’s 2020 decree, Wife was assigned 50% of Husband’s OPERS benefits, with an approximated value of $261,047, as well as an interest in his Ohio Deferred Compensation account.

When Wife proceeded—post-decree—to obtain a DOPO for her OPERS award, she learned that her assigned portion of the benefits would only be paid ‘if, as, and when’ Husband received his retained benefits. Wife then filed a Civ. R. 60(B) motion, requesting modification of the decree to provide for a term life insurance policy on Husband’s life (should he die pre-commencement), and an order that Husband shall elect a joint and survivor annuity for Wife at commencement, both in the amount of Wife’s assigned interest.

In an affidavit to support her motion, Wife stated she had not known she would be unable to receive her interest in a lump-sum, at the time of and prior to the date of decree. Wife’s expert witness, in a separate affidavit, further explained the limitations on the form, timing, and term of the assigned OPERS benefits, and the necessity of a term life insurance policy to protect Wife’s interest pre-commencement and an order to protect Wife’s interest post-commencement.

In a subsequent hearing, Husband testified that neither life insurance nor a survivor annuity had been discussed prior to the decree, and that he would not agree to such provisioning.

The trial court denied Wife’s motion based on her having made no allegations of fraud or newly discovered evidence (Civ. R. 60(B)(2) and (3)), and having inadequately demonstrated mistake or inadvertence (Civ. R. 60(B)(1)). The trial court further found that relief under Civ. R. 60(B)(1) was unavailable due to ORC 3105.171(I)’s prohibition of any modification of the decree without both parties’ consent.

In affirming the trial court’s decision, the Court first addressed ORC 3105.171(I), quoting from Walsh v. Walsh, 3rd Trumbull No. 2017-T-0033, 2018-Ohio-2466, 2019-Ohio-3723 :

Civ. R. 60(B) cannot be used to alter the statutory requirements for the modification of a decree. Because [ORC] 3105.171(I) does not permit modification absent the consent of both parties, Civ. R. 60(b) cannot be a workaround.

As part of her appeal, Wife also argued that the trial court was permitted to modify the decree (to provide for the above-described survivorship protections) under ORC 3105.89, which provides that a trial court may retain jurisdiction to modify an order “described in [ORC] 3105.81,” or that was effective prior to 2002.

Affirming once again, the Court found that the decree could not be characterized as meeting the requirements of ORC 3105.81, which must include a benefit or lump sum payment and payment from a public retirement program to an alternate payee.

The divorce decree that [Wife] sought to modify provided that she was entitled to 50 percent of [Husband’s] OPERS account for the dates of their marriage, which were specified in the decree… the decree likely complied with the first requirement set forth in [ORC] 3105.81… However, with respect to the second requirement for an order described in [ORC] 3105.81 set forth above, the decree did not require a payment “from a public retirement program to an alternate payee.”

The Court concluded: “While the DOPO itself contained all the necessary requirements to constitute an order described in [ORC] 3105.81, it is not the DOPO that [Wife] sought to modify in this case.”

Next citing Ouellette, the Court noted that -in the Ouellette court’s decision- it was held that ORC 3105.171(I) did not preclude a Civ. R. 60(B) motion to vacate a decree.

In this case, like Walsh and Ouellette, the trial court lacked authority to modify [Wife] and [Husband’s] decree of divorce. Both parties did not consent to the modification as is required by [ORC] 3105.171(I), and the exception set forth in [ORC] 3105.89 did not apply, as the divorce decree that [Wife] sought to modify did not constitute an order described in [ORC] 3105.81. The trial court, therefore, did not err in denying [Wife’s] motion for relief from judgment.

Editor’s Note: Eileen Zell provided the expert testimony in Williams.

Editor’s Note: Click here to read EZ QDRO LAW case law reviews of Walsh and Ouellette, both cited in Williams.

Quesinberry v. Quesinberry, 2nd Dist. Montgomery No. 2018-DM-175, 29192, 2022-Ohio-635

Civ. R. 60(B): fraud, vacate

Dated: March 4, 2022
Reversing and Remanding

Following the parties’ 2018 dissolution, Wife filed a Civ. R. 60(B) motion to vacate the decree, alleging fraud which resulted in a lower award of child support and no award of spousal support at all, despite Husband’s considerably greater income.

Following a hearing on Wife’s motion, the magistrate agreed and vacated the decree, noting material omissions in the parties’ agreement and misrepresentations that had been made to Wife by Husband. Husband objected, and the trial court agreed, noting the lack of mutual consent to modify the terms or reserved jurisdiction for the court to do the same, and overruled Wife’s motion.

The trial court found that Husband’s omissions were ‘relatively minor,’ though it agreed Wife had relied to her detriment on Husband’s misrepresentations concerning child and spousal support. The trial court noted, however, that Wife had agreed to the terms of the parties’ dissolution voluntarily and under no duress.

Wife appealed, arguing that the trial court had erred in: (1) finding it did not have subject matter jurisdiction; (2) denying her motion based on her verbal agreement at the final hearing; (3) finding that Husband did not “knowingly” make misrepresentations to Wife, and that Wife had not demonstrated ‘justifiable reliance;’ and (4) finding that the evidence did not support a lack of mutuality.

The Court agreed and reversed the trial court’s decision, writing:

Contrary to [Husband’s] assertion, we are unpersuaded that vacating an entire dissolution decree is the same as modifying the terms of a separation agreement contained within a decree. [Wife] is not seeking to change the terms of the separation agreement. Her argument is broader and more fundamental. In essence, she claims no valid separation agreement exists. Therefore, the dissolution decree is subject to being vacated under Civ. R. 60(B). This argument does not depend on any reservation of jurisdiction or agreement between the parties to modify the agreement. According to [Wife], there is no enforceable agreement. In our view, this raises a different issue than whether Civ. R. 60(B) may be used to modify the terms of a valid agreement.

In reviewing Wife’s arguments the Court found that Husband’s alleged omissions did not materially prejudice Wife to a degree sufficient to justify vacating the decree. With regard to Husband’s misstatements to Wife (wherein he alleged she could receive child support or spousal support, but not both), however, the Court sustained.

The record demonstrates that [Husband] took the lead in structuring the terms of the dissolution and that [Wife] trusted him and reasonably believed what he told her. Nothing suggests that [Wife] had any cause to question [Husband’s] representations. She had no experience in domestic-relations law and was an unsophisticated party in that regard. Absent any reason to question the veracity of what [Husband] told her, we also see no negligence in [Wife’s] failure to consult with an attorney about the issue.

Liu v. Liu, 5th Dist. Guernsey No. 20DR000211, 21CA000024, 2022-Ohio-1088

Marital Property: appreciation, equitable division, prenuptial agreement, separate property

Dated: March 31, 2022
Affirming

Following a 2021 magistrate’s decision wherein the parties’ residence was deemed Wife’s separate property, Husband appealed on the basis of his ownership of the property prior to the marriage and alleging he had not understood the parties’ ante-nuptial agreement designating it as Wife’s property.

Immediately prior to the parties’ marriage, Husband had fallen behind on payments toward his mortgage, prompting Wife to purchase the home from him, and the satisfaction of the mortgage a relatively short time later. Wife’s ownership of the home was memorialized in the parties’ ante-nuptial agreement, and -following the parties’ divorce hearing- Wife was awarded the residence as her separate property, with Husband receiving half of the value of the marital mortgage payments as a separate award.

Husband appealed, arguing that the trial court erred in its division of marital equity in the property, and that Wife had failed to prove her claim to passive appreciation thereon.

In affirming, the Court noted that a trial court’s determinations of separate and marital property are not to be reversed absent a showing of abuse of discretion, writing:

Here, [Wife] presented testimony that at the time of the marriage the property was encumbered by a mortgage of $100,000. [Wife] provided the [trial court] with evidence that she used proceeds from the sale of her pre-marital property to pay down the mortgage. She further provided the [trial court] with evidence establishing that she paid for significant improvements to the property from pre-marital funds, totaling approximately $59,437.

Kiernan v. Kiernan, 9th Dist. Summit No. DR-2016-09-2667, 29994, 2022-Ohio-1303

Marital Property: equitable division, financial misconduct, valuation

Dated: April 20, 2022
Affirming

Following the dismissal of Husband’s appeal of the parties’ divorce decree, the trial court held hearings to address unresolved property division and valuation issues and concerns raised by the Court in its dismissal. A subsequent judgment entry resolving such property division and valuation issues was issued, along with an amended divorce decree, and Husband appealed.

In his appeal, Husband argued first that the trial court erred in its valuation of numerous recreational vehicles, utilizing Wife’s testimony as to their purchase price value, rather than valuing them as of the date of the post-decree hearing. Noting the trial court’s discretion in rendering such determinations and the significant amounts of property to be divided in this matter, Husband’s financial misconduct, and the record’s reflection that the trial court found Wife’s testimony more credible, the Court could not conclude the trial court abused its discretion.

Husband next argued that the trial court abused its discretion when it relied on Wife’s (who had provided bookkeeping for the business until 2013) allegedly outdated testimony in its valuation of the parties’ business. While the trial court valued the business based on the estimated worth of its equipment alone, Husband alleged that he had sold the equipment at a loss, though he provided no receipts for said sales, or the purchases of replacement equipment.

Husband essentially valued the business at an amount between $0 and $25,000 even though the business had been successfully operating since 2001, it had provided a very comfortable standard of living for the parties, and the equipment used to run it was worth a significant sum of money. It is apparent from the record that the trial court did not find credible Husband’s valuation testimony or his claim that the business was not currently earning a profit… Moreover, the [trial court] specifically found that Husband engaged in financial misconduct when he sold [the] equipment at auction… Rather than adopt Wife’s higher profit estimation, the [trial court] elected to value the business based on Wife’s estimation of the worth of the equipment routinely used to run it. Given the unique facts and circumstances outlined above, this Court cannot conclude that the trial court’s decision to do so amounted to an abuse of discretion.

In his final assignment of error, Husband argued that the trial court had erred when it imputed income to him in its assignment of spousal support to Wife. As before, the trial court found that some of Husband’s testimony lacked credibility (and was at odds with his lifestyle), and that he failed to provide sufficient documentation to explain his alleged loss of income prior to and through the parties’ divorce. On this basis, the Court overruled.

Additional Reading:

To read up on proposals to simplify the QDRO process for divorcing parties, check out this article in the Winter 2022 Journal of Pension Benefits: ‘Improving the Process to Distribute Retirement Benefits Pursuant to a QDRO.’

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.