Another Plea to Enter the QDRO Contemporaneously with the Decree

Turull v. Turull, 12th Dist. Butler No. DR94-06-1088, CA2018-10-197, 2019 -Ohio-2863
Court Lacks Jurisdiction to Enter a QDRO Inconsistent with Original Decree

Dated: July 15, 2019
Affirming

Editor’s Note: to read Eileen’s “Ohio Case Law Review by Topic” on Turull, click here.

In Turull, two prevailing legal rules align and continue to shape QDRO law in Ohio.

The parties in Turull were first married in 1981 and first divorced in 1987. The parties’ subsequent remarriage ended in 1994. The parties’ 1994 separation agreement assigned Wife via QDRO 50% of Husband’s pension and retirement benefits “which accrued between the period of January 23, 1988 to May 31, 1994.” The agreement specifically excluded any reservation of jurisdiction.

After two prior QDROs were found objectionable by the Plan, a Second Amended QDRO was filed with a coverture fraction denominator based on the number of years of continuous service as of May 31, 1994. The Second Amended QDRO also added post-retirement enhancements and survivor benefits not addressed in the original agreement.

Husband filed a motion for relief from judgment under Civ. R. 60(B) along with a motion for clarification. Wife responded with a motion to dismiss. The magistrate issued a decision granting Wife’s motion and Husband filed objections. The trial court sustained Husband’s objections, and found that Husband was entitled to relief to cure the unjust operation of the Second Amended QDRO because it varied from and was inconsistent with the division of property ordered in the original agreement as incorporated into the final decree. The trial court found the Second Amended QDRO therefore operated as an improper modification of that decree. Wife brought the instant appeal.

The first rule of law opined by the Turull Court concerns ORC 3105.171 (l), which prohibits a trial court from modifying a previous property division. Relying upon well-settled law that a QDRO is merely an order in aid of execution, the Court of Appeals noted that a trial court lacks jurisdiction to enter a QDRO that is inconsistent with or attempts to modify the original decree.

On this premise, the Court agreed that the Second Amended QDRO significantly modified the pension division by utilizing a ‘frozen’ denominator (see more below), and by adding both survivor benefits and a share of any post-retirement enhancements. To further thwart any modification of the original decree in this matter, the Court iterated that the trial court did not reserve jurisdiction. The Court opined that because a QDRO is merely an order in aid of execution, it must be consistent with the original final decree or it will be found voidable for error.

The second prevailing rule of law in Turull concerned the proportionality of pension benefits, specifically the non-pensioned spouse’s entitlement. The Turull Court observed that the non-pensioned spouse is only entitled to a share in the actual marital asset. Relying upon the oft-cited Supreme Court of Ohio case Hoyt v. Hoyt, the Court determined that such share should be determined by a ratio, wherein the numerator is the term of marriage overlapping with employment and the denominator the total years of employment. The Court found that the Second Amended QDRO significantly changed the Hoyt ratio by utilizing a denominator with the number of years of continuous service as of May 31, 1994, instead of one with the total years of service. The Court went so far as to describe this alteration in the amended QDRO as a “patent flaw, ” and affirmed that there was a voidable error.

From a practical standpoint, and in applying these prevailing points of law, recall that parties may agree to apportion a pension however they wish, with the ultimate consent of the trial court. Thus, the coverture method in Hoyt, albeit equitable and mathematically sound, is not necessarily binding on parties. What I presume occurred in this case, logistically speaking, is that the trial court determined the language of the agreement was ambiguous (specifically, 50% of Husband’s pension “which accrued between the period of January 23, 1988 to May 31, 1994”). In clarifying, the trial court found the Second Amended QDRO to be at odds with its own interpretation consistent with Hoyt. As for the inclusion of post-retirement enhancements, Turull didn’t spend much time on the issue, but it appears to fall under the same umbrella: the trial court found the original language ambiguous, and clarified the meaning to exclude such benefits.

Practitioners in Ohio should be aware that there is voluminous case law contending with similar settlement language and the results are often just the opposite: appellate courts find such language unambiguous and require a ‘frozen coverture’ ratio as opposed to the Hoyt ratio. The difference between the two ratios can be staggering in terms of the amount of marital benefit subject to equitable division (compounded by the fact that, in this case, the benefit would’ve been valued as of a date different than that relied on for the denominator). However, post-decree litigation like Turull may be avoided altogether by simply utilizing clear settlement language that cannot be construed to have two or more meanings. If this sounds easier said than done, prepare and file the QDRO contemporaneously with the agreement and decree. This avoids later disagreement as to meanings and (distant) memories. After all, when the dawn comes, tonight will be a memory too, and a new QDRO appeal will begin.

Editor’s Note: If you need more convincing that the QDRO should be entered contemporaneously with the decree, take a look outside our jurisdiction: CLICK HERE. This article discusses the importance of having the QDRO prepared and finalized simultaneously with the divorce decree. In Tapanes v. Perez, there was no QDRO entered and the plan participant (Husband) retired post-divorce in 2010. Husband then began collecting his benefits, but he did not alert the State of New Jersey that his former spouse was entitled to a share of his benefits. By the time Wife began collecting her share of the benefits in 2017, over $70,000 of arrears had accrued. Even worse, after depriving his Wife of the benefit of her bargain for years, Husband brought litigation seeking to rewrite the agreement in order to avoid paying the arrears the accrued during that period.

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.