IN THE SUPREME COURT OF OHIO

RONALD L. BAGLEY,

Appellant,

vs.

ELLEN BAGLEY-BARNETT,

Appellee.

On Appeal from theGreene County Court ofAppeals, SecondAppellate District

Court of AppealsCase No. 08-CA-57

MEMORANDiJM IN SUPPORT OF JURISDICTIONOF APPELLANT RONALD L. BAGLEY

Patricia Campbell (0068662) (COUNSEL OF RECORD)Brown, Rowland, Babb and Campbell2190 Gateway DriveFairborn, Ohio 45324(937) 879-9542Fax. No. (937) 879-0232attvnatriciacamRbell2 rahoo.com

COUNSEL FOR APPELLANT, RONALD L. BAGLEY

L. Anthony Lush (0046565)Rogers and Greenburg2160 Kettering TowerDayton, OH 45423-1001(937) 223-8171Fax No. (937) 223-1649

COUNSEL FOR APPELLEE, FLLEN BAGLEY-BARNETT

KA' i U' 2009.

GLERRt OF C'R"PSUPRFIViE CElURT QF0

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST ................................................3

STAT'EMENT OF THE CASE AND FACTS ..................................................5

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ........................................6

Proposition of Law I: Modiflcations of property divisionthrough a QDRO is a voidable, not void error

Proposition of Law II: A conflict exists between the courts ofappeal as to whether a QDRO that modifies the division ofproperty is void or voidable.

CONCLUSION . .. .. . . . . ... ... .. . . ... .. .. . .. . . .. .. ... . . . . . .. .. ... . . . . .. .. .. .. . .. . . .. . .. . . . .. . .....10

CERTIFICATE OF SERVICF .... .... . . .. . . .. . .. . . . .. . . . . . . . .. . .. .. . . .. . . .. . .. . . . . .. . . . ... . . ...10

APPENDIX

Opinion of the Greene County Court of Appeals(Feb. 13, 2009) ............... .................................................. A-1

Judgment Entry of the Greene County Court of Appeals(Feb. 13, 2009) . .. ... ... .. . .. .. .. . . . .. . . . . . . . .. . .., . .. . . . . .. ... .. . .. .. . . .... . ..A-12

2

EXPLANATION OF WI-IY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST

T'his case presents a critical issue affecting the finality of orders executing the division of

property in dissolutions in Ohio: whether a Qualified Domestic Relations Order (QDRO) that

the parties agree will modify a property division in a dissolution decree is aii enforceable, or an

order void ab initio that can be vacated by the court at any point in the future. To hold that an

agreed modified order is void would unduly burden the trial courts and the parties who have

proceeded to conduct themselves in reliance upon the finality of those judgments. Furthermore,

the case presents a clear split among the appellate districts in their divergent views of the validity

of QDROs that modify a division of property in a dissolution decree, which requires this court to

hear the case to provide consistency of law across the state.

In this case, the court of appeals determined that a QDRO, attacked nearly eleven (11)

years after its issuance and four (4) years after the modifications were executed, was void ab

initio finding that R.C. 3105.171(I) divests the trial court of subject matter jurisdiction to issue

the QDRO. The court of appeals erred by refusing to enforce the QDRO's modification of the

decree on the grounds that the trial court had no jurisdiction. Although the trial court cannot

modify the property division, the parties retain the authority to do so, and the trial court's

enforcement of a modification agreed to by the parties does not violate R.C. 3105.171(I).

The implications of a QDRO being deemed void ab initio have great general significance,

potentially undermining the efficacy and finality of judicial judgments and orders, particularly

dissolutions that were entered into in the 1980s and 1990s, while jurisprudence surrounding the

dividing of pensions was still evolving. Although in accord with the standard practice at the time

-- QDROs were routinely negotiated and effectuated following the issuance of the final decree of

dissolution -the decision below means that parties who made such volrmtary, deliberate choices

3

might nevertheless petition the court and request that a QDRO be voided, and that they be

relieved from the consequences of these choices, simply because hindsight indicates they may

not have been wise choices. "Even a century after an erroneous judgment or order has been

pronoanced, which all of the parties decided to live with at the time, anyone who can

demonstrate that he or she is adversely impacted by the ancient judgment or order may

collaterally attack it, since that person is merely asking the court to recognize that a judgment or

order long ago entered upon its journal is, in fact, void." Bagley v. Bagley, Greene App. No. 08-

CA-57, 2009-Ohio-688, P42 (M. Fain, J., concurring).

Finally, the district courts of appeal are in conflict regarding whether a QDRO that

enlarges or diminishes the relief granted in a dissolution decree is void or voidable. ] The

difference in opinicm among the courts of appeal is, of great general significance because there is

no uniform application of law across the state in cases presented with this issue. In this case, the

court of appeals reaffirmed its previous holding that a QDRO inconsistent from a divorce decree

is void. Bagley, P27. The Ninth District Court of Appeals held in McGee v. McGee, 168 Ohio

App. 3d 512, 2006-Ohio-4417 that a QDRO that modifies a property division of a pension is

voidable if the parties agreed to the modification. Id., P8-9. See al.so Vossberg v. Vossberg, 9'h

Dist. No. 04CA0053-M, 2005-Ohio-2408, at P7; Hale v. Hale (Jan. 26, 2000), 9'h Dist. No.

2935-M.

In sum, in holding that the modifaed division of property was void, the court of appeals

failed to consider the fundamental judicial interest in the finality of judgments. Courts must

discourage attempts to re-litigate property division questions that have long been finalized. The

' Appellant did not petition the Second District Court of Appeals to certify the question because appellant decidediinmediately following the issuance of the Pebruary ] 3, 2009 judgment and opinion, that he did not wish to appealthejudgment. The stress of further legal proceedings were too much for appellant to bear. Upon further thoughtand reflection, however, appellant decided to proceed with the appeal. The decision to proceed was made long afterthe ten (10) day limit for the court of appeals to decide whether to certify the conflict.

4

divergence among the districts conceming this issue raises serious questions about the consistent

application of the law to divisions of property. This court must grant jurisdiction to hear this

case and review the erroneous decision of the court of appeals.

STATEMENT OF THE CASE AND FACTS

This appeal arises from a post-decree motion for relief in which appellee requested

reinstateinent of the retirement benefits divided in the separation agreement that was ultimately

incoiporated into a decree of dissolution and later modified by a QDRO.

The parties filed the separation agreement and decree of dissolution on September 13,

1995. Following the filing of the decree of dissolution, the parties, through their attorneys,

continued to negotiate terms related to appellant's military retirement. The final pertinent

portions of the QDRO negotiated by the parties, and approved by the trial court, provide that

"[t]he monthly payments under paragraph 3 shall be paid as long as the Member has the right to

receive the retired or retainer pay and shall cease at the deatli of either party, or upon the

remarriage of the Former Spoase or npon her cohabitation with a member of the opposite

sex."(Emphasis added). Further, paragraph W.C. also stated, "[i]n the event the Former Spouse

remarries prior to attaining age 55, her status as the designated beneficiary of the Member's

United 5States Air Force Survivor Benefit Annuity will thereupon terminate." On January ]6,

1996, the parties filed the QDRO with the trial court, and then filed the QDRO and the

Separation Agreement with the Defense Accounting and Finance Office (DFAS).

On August 17, 2002, the appellee married John L. Bamett. In accordance with the

QDRO, appellee stopped receiving payment of the military retirement in September 2002.

On March 7, 2007, the appellee filed a motion entitled, "Motion for Relief from

Judgment or in the Alternative, Motion for Clarification" which gave rise to the below.

5

Althougl-i the parties essentially agreed to the facts of the case, the trial court refused to

honor the agreement of the parties, finding that since the QDRO modified the divorce decree, it

was facially invalid, and that the time limits imposed by Civ.R. 60 (B) were therefore not

applicable. The trial court then found that since the language modifying the decree in the QDRO

was void, relief "could properly be granted under [Civ. R.] 60(B)(5) or ***[Civ.R.] 60(A)."

1'he court of appeals affirmed the judgment of the trial court and found that the QDRO

was void ab initio because R.C. 3109.171(1) divests the trial court of subject matter jurisdiction

to niodify a property division, and that, therefore, the time limits of Civ. R. 60 did not apply to

the case. The court of appeals did not address appellant's argument that the parties could agree

to nodify the decree through the QDRO as set forth in McGee, supra.

ARGUMENT TN SUPPORT OF PROPOSITIONS OF LAW

Pronosition ofLawI: Modifications of property division through aQDRO is a voidable, not void error.

Parties to a dissolution decree may modify the property division if both parties properly

consent to the modified division. The court of appeals view that a modified property division,

agreed to by the parties and issued through a QDRO is void because the trial court is divested of

subject matter jurisdiction under R.C. 3105.171(1), is based on a reading of the statute that does

not take into account the historical context of the law's development.

A court may not modify a division or disbursement of property or a distributive award.

R.C. 3105.171(I). As stated by Judge Fain in his concurring opinion in Bagley, "The reason a

QDRO, unlike other orders in aid of execution, has acquired this special distinction of being

void, not just voidable, if erroneous, is probably because of the historical fact that awards of

alimony, later called spousal support, were only modifiable if the original award included a

provision for its subsequent modification. That language was typically a reservation of

6

`jurisdiction' to modify the award in the future. But in using the word `jurisdiction' in this

context, I do not believe it was intended to implicate subject-matter jurisdiction. I believe it was

only ititended to mean that a subsequent modification of the award would be proper, and not

contrary to law, so long as `jurisdiction' to modify the award was reserved in the original

award." Bagley v. Bagley, 2009 Ohio 688, P43 (M. Fain, J., concurring). Judge Fain explained

tliat, "[ilf this were a case of first impression, I would not be persuaded that this restriction,

which is not expressly related to subject-matter jurisdiction, was intended to affect the subject-

matter jurisdiction of the trial court. I would be of the view that an order violating this restriction

constitutes reversible error, and is voidable, but not void." Id., P40.

Under the sound reasoning set forth by Judge Fain, a party to a dissolution who later

became dissatisfied with the modification of the property division would be able to attack the

QDRO through appeal. or Civ.R. 60, if timely. Courts of law could thus be able to preserve the

efficacy and finality of judgments and orders by preventing untimely attack of an erroneous

judgment or order. Bagley v. Bagley, Greene App. No. 08-CA-57, 2009-Ohio-688, P42 (M.

Fain, J., concurring).

Proposition of Law II: A conflict exists between the courts of appealas to whether a QDRO that inodifies the division of property is voidor voidable.

The court should hear this case to insure that the laws of the state are applied uniformly.

Although this case was not certified because appellant decided to appeal this decision after the

time had run to file for certification, the need to clarify the inconsistent application of the law has

not changed. Accordingly, appellant urges the court to apply the certification procedures to this

case and accept jurisdiction of the appeal.

7

The authority for certi fication due to conflict is found in Section 3(B)(4), Article IV,

Ohio Constitution. Whenever the judges of a court of appeals find that a judgment upon which

they have agreed is in conflict with ajudgment pronounced upon the same question by any other

court of appeals of the state, the judges shall certify the record ofthe case to the supreme court

for review and final determination.

". ..[A]t least three conditions must be met before and during the certification of a case

to the Supreme Coui-t of Ohio." First, the certifying coui-C must find that its judgment is in

conflict with the judgment of a court of appeals of another district and the asserted conflict must

be "upon the same question." Second, the alleged conflict must be on a nile of law-not facts.

Third, the journal entry or opinion of the certifying court must clearly set forth that n.ile of law

which the certifying court contends is in conflict witli the judgment on the same question by

other district courts of appeals. Whitelock v. Gilbane Building Company (1993), 66 Ohio St.3d

594, at 596, 1993-Ohio-223, 613 N.E.2d 1032, at 1034.

Here, the judgment in Bagley is in direct conflict with the judgnient of the Ninth T7istrict

as set forth in McGee v. McGee, 168 Ohio App. 3d 512, 2006-Ohio-4417. In Bagley, the court

noted "that a QDRO is merely an order in aid of execution on the property division ordered in

the divorce or dissolution decree." Id., at P26. A QDRO that is inconsistent with the decree,

constitutes a modification, which R.C. 3109.171(1) prohibits, and the court lacks jurisdiction to

issue the QDRO. Id., citing Tarbert v. Tarbert (Sept. 27, 1996), Clark App. No. 96-CA-0036.

See Hale v. Hale, Mont. App. No. 21402, 2007-Ohio-867; Hirrtes v. Himes, Tuscarawas App. No.

2004-AP-020009, 2004-Ohio-4666; Doolin v. Doolin (1997), 123 Ohio App.3d 296.

In facts very similar to those in this case, the Ninth District Court of Appeals found that a

court may enforce a QDRO that modifies the property division in a decree if the parties agree to

8

the modification. In McGee, the parties were divorced and pursuant to their property division, the

husband was to receive fifty percent of the marital portion of the wife's retirement plan. The

QDRO prepared by the wife's counsel was not accepted by the retirement plan administrator

because there were bookkeeping errors whiclr precluded a determination as to what amount

qualified as premarital. Thereafter, the parties signed an amended QDRO, which granted the

husband a full fifty percent of the wife's total pension. However, the wife sought approval of the

first QDRO, claiming that she never intended to relinquish her premarital interest in the plan and

that she had inisread the amended QDRO. The trial court sua sponte vacated the amended

QDROas void, finding that without the wife's intended consent to the amended QDRO, the court

lacked jurisdiction to have entered the QDRO. On appeal, the court found that the trial court's

action was enoneous, finding that: 1) the parties are free to modify the division by agreement; 2)

a trial court may enforce a post-decree niodification agreed to by the parties; and 3) such an

order does not violate the principle that the court does not have jurisdiction to modify a property

division and is snbject to timely correction through Civ.R. 60.

Clearly, the courts of appeals disagree whether parties may modify a property division

through a QDRO. The Second District has clearly stated that a court is without authority to issue

any QDRO that differs from the dissolution decree, whether the pai-ties agree to the modification

or not. The Ninth District holds that court does have authority to issue a QDRO that modifies a

property division if the parties agree to the modification.

Should the court find that the conflict between the districts is unclear since the Greene

County Court of Appeals did not address the conflict directly, nor have an opportunity to certify

the question, appellant urges the court to remand this cause for clarification pursuant to

S.Ct.Prac.R. 111(6). That rule provides "if the rule of law upon which the alleged conflict exists

9

is inot clearly set forth in the joumal entry or opinion of the Court of Appeals certifying the case,

the case may be remanded to the Court of Appeals with an order that the ? ssue presented be

clarified by such court." Id.

CONCLUSION

For the reasons discussed above, this case involves matters of public and great general

interest. The appellant requests that this court accept jurisdiction in this case so that the

important issues presented will be reviewed on the merits.

Respectfully subrnitted,

2

Patricia Campbell, Counsel of Record

COUNSEL FOR APPELLANT,RONALD L. BAGLEY

Certificate of Service

I certify that a copy of this Notice of Appeal was sent by ordinary IJ.S. mail to counselfor appellee, Ellen Bagley-Barnett, L. Anthony Lush, Rogers and Greenburg, 2160 KetteringTower, Dayton, OH 45423-1001.

COUNSEL FOR APPELLANT,RONALD L. BAGLEY

10

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

GREENE COUNTY

RONALD L. BAGLEY

Plaintiff-Appellant Appellate Case No. 08-CA-57

v. Trial Court Case No. 95-DR-521

ELLEN BAGLEY (Civil Appeal from Common PleasCourt, Domestic Relations Division)

Defendant-Appellee

OPINION

Rendered on the 13 th day of February, 2009.

RICHARD T. BROWN, Atty. Reg. #0026034, and PATRICIA N. CAMPBELL, Atty. Reg.#0068662, Brown, Rowland & Kelly, LLP, 2190 Gateway Drive, Fairborn, Ohio 45324

Attorneys for Plaintiff-Appellant

L. ANTHONY LUSH, Atty. Reg. #0046565, Rogers and Greenburg, 2160 Kettering Tower,Dayton, Ohio 45423-1001

Attorney for Defendant-Appellee

BROGAN, J.

Ronald Bagley appeals from the judgment of the Greene County Common Pleas

Court which granted his former spouse, Ellen, reiief from the provisions of a qualified

domestic relations order (QDRO).

THE COURT OF APPEALS OF OHTOSECOND APPELLATF. incTnrr1

The Bagleys were married in 1971 and had two children from their marriage. In

1995, the Bagleys obtained a dissolution of their marriage. The parties agreed in their

separation agreement that Ellen would receive one-half of Ronald's military retirement

benefits. When the QDRO was filed with the court on January 16, 1996, it provided that

Ellen would forfeit the military pension if she remarried prior to the age of 55. Ellen

remarried in August 2002 to John Barnett and she stopped receiving her share of Ronald's

military retirement benefit in October 2002.

On March 7, 2007, Ellen filed a motion for relief from the provisions of the QDRO

under Civ.R. 60(B)(5) and Civ.R. 60(A), and for clarification of the terms of the QDRO. She

contended that she never intended to relinquish her premarital interest in Ronald's

retirement benefits by signing the QDRO.

Ronald moved for "summary judgment" on Ellen's motion and provided copies of

correspondence from Ronald's previous counsel, John Huber, to Ellen's counsel, James

Owen. In a letter dated October 2, 1995, Huber wrote Ronald as follows:

"In doing our drafting work for the QDRO, I will need your military ID number, your

retired pay number, the date of your military commencement of service, and your middle

name.

"It is my understanding that Ellen is under the impression and apparently is

agreeable that she would forfeit her pension rights to one-half of the pension in the event

of her remarriage. In speaking with personnel at the base, it appears the QDRO can be

written either way, depending on what the parties contemplate and are willing to agree to.

It is, however, at least my recollection of our discussions that you intended that Ellen would

continue to have her share in the pension despite the occurrence of her remarriage.

THE COURT OF APPEALS OF OHIOSECOND APPELT.ATF. T)tcTDrr^

"Give me a call at your earliest convenience so we can discuss these issues."

On October 26, 1995, James Owen wrote Huber as follows:

"We have a couple questions about the QDRO.

"Paragraph D of the Decree implies that Ellen gets the full amount of the Survivor's

Benefit if Ron dies after remarriage. Any new spouse of his will have other benefits

available to her. Ellen will be contributing to the premiums, so she should receive all the

benefits.

"Also, we note that, since February 3, 1991, the tax withholdings are not deducted

prior to computing 'disposable retired pay.' Therefore we propose QDRO changes as

marked on the enclosed copy.

"Please contact me."

Owen made no mention of the provision in the QDRO which provided that his client

would not receive Ronald's retirement benefits in the event of her remarriage.

Ronald also submitted a deposition of Ellen in support of his motion which was taken

on June 25, 2007. In it, Ellen testified she did not read the QDRO before signing it. (Tr.

25 of her deposition.) She testified she first became aware of the discrepancy between the

QDRO and the separation agreement after the dissolution of her second marriage in

October 2006. She admitted, however, that she stopped receiving one-half of Ronald's

retirement benefits in October 2002. (Tr. 28.) In January 2003, she wrote Ronald

reminding him that she was to receive one-half of his retirement benefits and she

requested that he reimburse her for the months of October, November, and December

2002. She reminded him that the separation agreement provided she would receive the

retirement benefits regardless of her recent remarriage to John Barnett. (See Plaintiff's Ex.

THE COURT OF APPEALS OF OHIOSECOND AFPF.T.T.ATR nrcmnTlT

8.) On January 22, 2003, Ronald responded to Ellen that the QDRO filed in January 1996

provided that her entitlement to one-half of his retirement benefit would end upon her

remarriage. (Plaintiff's Ex. 11.)

The trial court granted Ellen's motion for relief under both Civ.R. 60(B)(5) or Civ.R.

60(A) to remove any reference "to the remarriage clause" but ordered that her right to the

pension would be as of the date of her motion for relief.

In his first and second assignments, Ronald argues that the trial court erred in

granting Ellen's motion. Ronald argues that the trial court should not have granted Ellen's

motion because it was not filed within a reasonable time. He also contends she had no

meritorious claim for relief because she read the QDRO and signed it voluntarily while

represented by counsel. Ronald also argues that Ellen should have appealed the QDRO

if it failed to comport with the provisions of the separation agreement and dissolution

decree.

Ellen argues that the trial court properly granted her Civ.R. 60(B) relief because it

was not proper for the QDRO terms to conflict with the express terms of the parties'

dissolution decree.

Civ.R. 60(B) states that "[o)n motion and upon such terms as arejust, the court may

relieve a party or his legal representative from a finaljudgment, order or proceeding forthe

following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly

discovered evidence which by due diligence could not have been discovered in time to

move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic

or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment

has been satisfied, released or discharged, or a priorjudgment upon which it is based has

TI-IE COURT OF APPEALS OF OHIO ^--'jSECOND APPBLLATF nieTur11

been reversed or otherwise vacated, or it is no longer equitable that the judgment should

have prospective application; or (5) any other reason justifying relief from the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not

more than one year after the judgment, order or proceeding was entered or taken. A

motion under this subdivision (B) does not affect the finality of a judgment or suspend its

operation. The procedure for obtaining any relief from a judgment shall be by motion as

prescribed in these rules."

In GTEAutomatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, the Ohio

Supreme Court set forth the factors necessary to recover under Civ.R. 60(B). "[T]he

movant must demonstrate that: (1) the party has a meritorious defense or claim to present

if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.

60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the

grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment,

order or proceeding was entered or taken."

Rule 60(B)(5) is a residuary provision meant to permit relief in the interest of justice,

where relief would not be available under any other provision of Rule 60(B), but which may

not be used as a substitute for any of those other provisions. Antonopoulos v. Eisner

(1972), 30 Ohio App.2d 187.

Assuming Ellen was guilty of excusable neglect in not reading more carefully the

QDRO in 1996, it is clear that her motion for relief under Civ.R. 60(B)(1) was well beyond

the one-year period provided by the rule. It is also clear that the QDRO did not need

"clarification" because there was no ambiguity in its terms. It clearly contradicted the terms

of the parties' separation agreement. The trial court inappropriately used Civ.R. 60(A) to

THE COURT OF APPEALS OF OHIO /!^_ U^SECOND APP[:T.T.ATU nrc'rn.r^

grant Ellen relief as that provision of the rule deals only with clerical mistakes or omissions.

In granting Ellen's motion, the trial court relied on a Fifth District Court of Appeals

opinion in Himes v. Himes, Tuscarawas App. No. 2004-AP-020009, 2004-Ohio-4666. In

that case, the court of appeals held that where a QDRO differs from the separation

agreement which provided for property division, the QDRO is void ab initio and can be

vacated by the court in accordance with its inherent authority. Thus, the court held the

motion to vacate the QDRO does not have to comply with the general requirement of Civ.R.

60(B) motions and is void where in conflict with the terms of the separation agreement.

The Fifth District in Himes cited with approval the Sixth District's earlier opinion in

Doolin v. Doolin (1997), 123 Ohio App.3d 296. In Doolin, the wife filed a QDRO providing

herwith a greater portion of her husband's retirement plan than the separation agreenient,

incorporated into the court's judgment entry, provided her. The Sixth District found

retirement benefits accumulated during a marriage are subject to property division in a

divorce proceeding. Therefore, becausethetrial courtdid not reserve jurisdiction to modify

the property division, the trial court lacked subject matter jurisdiction to adopt the QDRO,

which modified the parties' separation agreement. As a result, the QDRO filed by the wife

was void ab initio and could be vacated by the trial court in accordance with its inherent

authority. Accordingly, the court held the husband's motion to vacate the QDROs did not

have to comply with the general requirements for motions seeking relief from judgment.

Judge Resnick wrote as follows: "In the present case, the trial judge, by adopting the

May27, 1994 QDROs as herjudgment, modified thedivision of appellee's pension benefits

as agreed to by the parties and set forth in the divorce decree. That is, the court did not

use the value of the pension benefits as of October 17, 1991. There is no reservation of

THE COURT OF APPEALS OF OHIOSECOND APPFi.i.A'rF nTC^nrOm

& Y`

continuing jurisdiction over this asset that would permit the court to make such a

modification, Schraderv. Schrader(1995), 108 Ohio App.3d 25, 28, 669 N.E.2d 878, 879-

880. Accordingly, the two ODROs of May 27, 1994 were void ab initio and could be

vacated by the trial court pursuant to its inherent authority. Patton v. Diemer (1988), 35

Ohio St.3d 68, 518 N.E.2d 941, paragraph four of the syllabus. Consequently, appellee's

motion to vacate the void judgment did not have to comply with the requisites of Civ.R.

60(B). United Home Fed. v. Rhonehouse (1991), 76 Ohio App.3d 115, 123, 601 N.E.2d

138, 142-143; Daityland Ins. Co. v. Forgus (1989), 58 Ohio App.3d 78, 79, 568 N.E.2d

1232, 1232-1233."

While it is common place to place contingencies such as remarriage or cohabitation

upon the continued receipt of alimony or spousal support, such is not properly the case

regarding the division of property. Zimmie v. Zimmie (1984), 11 Ohio St.3d 94. See, also,

R.C. 3105.171(J).

A QDRO is merely an order in aid of execution on the property division ordered in

the divorce or dissolution decree. So long as the QDRO is consistent with the decree, it

does not constitute a modification, which R.C. 3109.171(1) prohibits, and the court does not

lack jurisdiction to issue it. Tarbertv. Tarbert (Sept. 27, 1996), Clark App. No. 96-CA-0036.

We recently adopted the reasoning of the Himes court and the Doolin court in Hale v. Hale,

Mont. App. No. 21402, 2007-Ohio-867.

In Hale, we held that early supplemental retirement benefits that were part of a

General Motors pension were properly divisible as marital property because they were

earned during the marriage and in order to be excludable from the benefits divided by the

QDRO, there must have been a specific exclusion of them in the settlement agreement

THE COURT OF APPEALS OF OHIO yt ^SECOND APPET.1.n'rT:. nreTO10m

incorporated in the decree. We held that when the QDRO is inconsistent with the decree,

the trial court lacks jurisdiction to issue the same, and it is void. Appellant's first and

second assignments are Overruled.

In his third assignment, Bagley contends the trial court abused its discretion in failing

to have an evidentiary hearing on Ellen's Civ.R. 60(B) motion. Because we have found that

the trial court lacked jurisdiction to modify a property division provided in the dissolution

decree and the facts are undisputed that the QDRO did so modify the property division, a

hearing was unnecessary. The third assignment of error is Overruled.

In his fourth assignment, Ronald argues that the trial court abused its discretion in

denying him access to Ellen's counsel, James Owen's correspondence with her. R.C.

2317.02(A) provides the exclusive means bywhich privileged communications between an

attorney and a client can be waived. State v. McDermott, 72 Ohio St.3d 570, 573-74,

1995-Ohio-80. That statute provides as follows:

"The following persons shall not testify in certain respects:

"(A) An attorney, concerning a communication made to the attorney by a client in

that relation or the attorney's advice to a client, except that the attorney may testify by

express consent of the client or, if the client is deceased, by the express consent of the

surviving spouse or the executor or administrator of the estate of the deceased client and

except that, if the client voluntarily testifies or is deemed by section 2151.421 of the

Revised Code to have waived anytestimonial privilege underthis division, the attorney may

be compelled to testify on the same subject."

Ellen did not expressly consent to having James Owen produce correspondence

between them during the dissolution proceedings. She did not waive the privilege by filing

THE COURT OF APPEALS OF OHiOSECOND APPH1.T.ATF 7liCTAT^T

her motion for relief from the QDRO. She did not voluntarily testify about her conversations

or correspondence with James Owen. The fourth assignment of error is Overruled.

In his last assignment of error, Ronald argues the trial court abused its discretion

by failing to hear testimony related to "equitable" considerations based upon the totality of

the circumstances. It is, however, fundamental that equity follows the law. As we have

indicated earlier, a QDRO is not designed to alter the decree but to implement it. Ronald

benefitted for years from the modification made in the QDRO to the retirement benefits to

which Ellen was entitled. She, however, sought only relief from that order from the date

of her motion. It was Ronald who benefitted from the QDRO's modification of the decree,

not Ellen. This assignment is Overruled.

The judgment of the trial court is Affirmed.

DONOVAN, P.J., concurs,

FAIN, J., concurring:

I write separately merely to decry the tendency of Ohio courts, including, alas, this

one, to jurisdictionalize error.

The subject-matter jurisdiction of Ohio courts of common pleas, set forth in R.C.

3105.011, is very broad:

"The court of common pleas including divisions of courts of domestic relations, has

full equitable powers and jurisdiction appropriate to the determination of all domestic

relations matters. This section is not a determination by the general assembly that such

equitable powers and jurisdiction do not exist with respect to any such matter."

THE COURT OF APPEALS OF OHIOSECOND APPFT.T.a'rF nicTU,OI

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In exercising the broad subject-matter jurisdiction conferred upon them in domestic

relations cases, courts of common pleas are subject to numerous statutory requirements

and restrictions. One of these is found in R.C. 3105,171(1):

"A division or disbursement of property or a distributive award made under this

section is not subject to future modification by the court."

If this were a case of first impression, I would not be persuaded that this restriction,

which is not expressly related to subject-matter jurisdiction, was intended to affect the

subject-matter jurisdiction of the trial court. I would be of the view that an order violating

this restriction constitutes reversible error, and is voidable, but not void.

Unfortunately, this is not a case of first impression in our court. In Hale v. Hale,

Montgomery App. No. 21402, 2007-Ohio-867, we held that when a trial court violates this

particular statutory restriction, it not merely commits reversible error, it exceeds the

otherwise very broad subject-matterjurisdiction that has been conferred upon itto deal with

domestic relations controversies. Under the principle of stare decisis, I am not persuaded

that the rhajority is wrong in deciding to follow the holding in Hale v. Hale, so I concur in the

judgment.

The problem with jurisdictionalizing errors that a trial court may make in the exercise

of its jurisdiction is the resulting undermining of the efficacy and finality of judicial

judgments and orders. Even a century after an erroneous judgment or order has been

pronounced, which all of the parties decided to live with at the time, anyone who can

demonstrate that he or she is adversely impacted by the ancient judgment or order may

collaterally attack it, since that person is merely asking the court to recognize that a

judgment or order long ago entered upon its journal is, in fact, void.

THE COURT OF APPEALS OF OHIOSECOND APPF.T.T.A'rr; nrcI'nrrm '^"^

A QDRO ought to be considered as just one example of an order in aid of execution

of an underlying judgment, which order in aid, like any order "affect[ing] a substantial right

made ""' upon summary application in an action afterjudgment,"' may be appealed, and,

if found to be legally erroneous, may be reversed on appeal. The reason a QDRO, unlike

other orders in aid of execution, has acquired this special distinction of being void, not just

voidable, iferroneous, is probably because of the historical fact that awards of alimony,

later called spousal support, were only modifiable if the original award included a provision

for its subsequent modification. That language was typically a reservation of "jurisdiction"

to modify the award in the future. But in using the word "jurisdiction" iri this context, I do

not believe it was intended to implicate subject-matter jurisdiction. I believe it was only

intended to mean that a subsequent modification of the award would be proper, and not

contrary to law, so long as "jurisdiction" to modify the award was reserved in the original

award.

I sense that I am a voice in the wilderness, but the tendency to denigrate the efficacy

and finality of judicial orders and judgments by treating them as void, and not merely

voidable, when they are erroneous is, in my view, a serious problem that will only get worse

as more and more kinds of error are determined to implicate subject-matter jurisdiction.

In this connection, it is worth recalling that the subject-matter jurisdiction of the courts of

common pleas in this state is the exclusive province of the General Assembly. State, ex

rel. Millerv. Keefe (1958), 168 Ohio St. 234; In re Protest of8rooks, 155 Ohio App.3d 384,

2003-Ohio-6525.

' R. C. 2505.02(B)(2).

THE COURT OF APPEALS OF OHIOSECOND APPP.T.T.ATP. nir'rnTrT - ^-' I^

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Copies mailed to:

Richard T. BrownPatricia N. CampbellL. Anthony LushHon. Steven L. Hurley

THE COURT OF APPEALS OF OHIOSECOND APPELi.ATF rnTNTUrrvr A

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

GREENE COUNTY

RONALD L. BAGLEY

Plaintiff-Appellant Appellate Case No. 08-CA-57

v. Trial Court Case No. 95-DR-521

ELLEN BAGLEY (Civil Appeal from Common PleasCourt, Domestic Relations Division)

Defendant-AppelleeFINAL ENTRY

Pursuant to the opinion of this court rendered on the 13th day

February , 2009, ihe judgment of the trial court is Affirmed.

Costs to be paid as stated in App.R. 24.

MARY E. DONPVAN, Presiding Judg'e

MIKE FAIN, Judge

THG COURT OF APPEALS OF OH[OSECOND APPELLATE DiSTRTr'T