Supreme Court of Ohio Lays Down the Law: Void vs. Voidable QDROs

Ostanek v. Ostanek, 11th Dist. Lake No. 2019-L-140, 2020-Ohio-3930, Slip Opinion No. 2021-Ohio-2319
If You Can but Shouldn’t, it is Voidable not Void.

Civ. R. 60(B): timely, void
QDRO: coverture (traditional v. frozen), impermissible modification, survivorship

Dated: July 13, 2021
Reversing and Remanding

A big thank you to Anne Flottman, Esq., former Magistrate, Warren County Domestic Relations Court, and Zachary D. Smith, Esq., for making sure this important Supreme Court of Ohio case didn’t miss my radar. It would have been hard-pressed to do so though, because I’ve had my eye on this case, blogging on the first Court of Appeals outcome here, subsequently mentioning it here and here, and blogging on the second Court of Appeals outcome (post-Supreme, and subsequent to this post) here.

There is a reason I’ve had my eye on this case, beyond the fact that the issues heard at the appeals court level are near and dear to my QDRO blogging heart: coverture and survivorship. The big reason is that the district split on the ‘void versus voidable’ issue has plagued my ability to provide domestic relations attorneys across Ohio sound advice when assessing post-decree litigation issues. What is the ‘void versus voidable’ issue you ask? The issue arises when a domestic relations court enters a QDRO (or similar order dividing retirement) that improperly modifies the decree… Is the QDRO void for lack of subject matter jurisdiction or voidable for error and therefore subject to timely motion for relief? I have blogged about recent cases and the painstaking analyses made in the 2nd, 8th, and 11th Districts.

The crux of the issue is this: If you can’t do it, the law says it never happened (i.e., void). If you can do it but shouldn’t, the law says your error is subject to review (i.e., voidable).

The distinction of “able” is a big one. If void, then the QDRO is set aside and vacated. So, there’s a second bite at the QDRO apple, a fresh start a la carte blanche. If voidable, then the non-conforming QDRO is subject to timely motion for relief. An arguably harsh (but legally correct) and notable result of the former is seen in a 2nd District case, Pearl v. Pearl.

The appeals court in Ostanek –at least for now– saved Husband from having to prove that his Rule 60(B) motion to set aside a Court Order Acceptable for Processing (or COAP, an order similar to a QDRO that divides federal employee pensions) was timely made. [Side Bar: You should take notice, however, that the Supreme Court of Ohio remanded the timeliness issue back to the appeals court, and you should particularly note the unsolicited observation of the Supreme Court, posited at Paragraph 13 the Opinion.] That is because once the appeals court determined that the COAP was inconsistent with the parties’ decree, it vacated and set aside the COAP altogether, rendering it void and mooting out the timeliness issue. Recalling from my prior post: the appeals court determined the traditional coverture allocation within the COAP was consistent with the decree (a point in the column for traditional coverture, and reminder to practitioners to be clear in the decree about the intended formula used to represent the marital portion of a pension). But the appeals court also determined that the allocation of a former spouse survivor annuity to preserve Wife’s interest in the benefits, in the event of Husband’s death, was inconsistent with the decree.

Wife appealed this decision, on the basis that the appeals court came down on the wrong side of the aforementioned district split by finding the COAP void ab initio. That is, Wife argued that the COAP, if inconsistent with the decree, was not void, but rather, voidable for error, and thus subject to timely motion for relief. (Wife also appealed the appeals court’s determination concerning the former spouse survivor annuity, but the Supreme Court declined review.)

The Supreme Court found that subject matter jurisdiction is not implicated by consent or reservation of jurisdiction. Going back to the crux of the issue above: the trial court can do it, but shouldn’t, so the law is that the nonconforming COAP is subject to review for error. i.e., voidable, not void. Hence, the remand back to the appeals court to determine if Husband’s Rule 60(B) motion to set aside the COAP was timely made.

IMHO, the Opinion is a sound one, if you didn’t already catch my bias above. The law on this seems straightforward if you avoid looking at the mirror in the mirror. My suggestion is to think of this like Aristotle would. (Forgive me in advance for the two extra premises and dual conclusion, I realize the hardened Aristotle followers out there would cast this out of the world of acceptable categorical syllogism.) WWAD?

• The Ohio Constitution grants the General Assembly the power to delegate certain subject matters to the province of the common pleas courts.

• The General Assembly did just this, and delegated domestic relations matters to the common pleas courts.

• The General Assembly provided at RC 3105.171(I) that a domestic relations court may not modify a division of property in domestic relations matters without the express written consent to the modification by both spouses.

• The General Assembly did not divest the common pleas courts of its power to hear domestic relations matters via RC 3105.171(I).

Therefore, the domestic relations court has continuing jurisdiction of domestic relations matters, and thus, if a domestic relations court ‘messes up’ while exercising its power, say by modifying a division of property without spousal consent, it just means the action is subject to review for such error.

Ergo, since this case is a domestic relations matter, concerning the division of marital property, the lack of express consent to modify the decree rendered the non-conforming COAP voidable, not void. The counter argument fixates solely on RC 3105.171(I), as if in a vacuum. The counter contends that when a court modifies a division of property without spousal consent, the action is impermissible under RC 3105.171(I), and therefore the court acts outside its jurisdiction, rendering the order void. But again, the critical piece here is that RC 3105.171(I) does not discharge the court of its duty or divest it of its power to hear domestic relations matters. Therefore, the logical conclusion is that RC 3105.171(I) does not divest the court of subject matter jurisdiction. Going back to the crux of the issue above again: there is nothing that says the trial court can’t do it, just that it shouldn’t.

This case will have broad application in my practice providing consultation to family law attorneys across Ohio on issues related to the division of retirement. I am relieved to finally be able to provide sound guidance amidst the former district split. Cases like this one demonstrate how important these decisions really are; in this case, the parties were divorced back in October of 2001. That’s nearly twenty years ago. When I structure a retirement division, my goals are the financial disentanglement of the parties, optimization of the benefit for both, and most important, bringing finality to the parties’ economic partnership. Although it took the Ostaneks twenty years to get there, their struggles are not lost on me even for a moment. The lesson here is to get it right the first time. Make sure the parties’ intent is clear and unambiguous in the terms of the decree. Make sure the QDRO conforms to the decree. If you question either, time is of the essence.

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.