Longo v. Longo , 2018 Ohio 3535 ( 2018 )

[Cite as Longo v. Longo, 2018-Ohio-3535.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
LISA M. LONGO, : OPINION
Plaintiff-Appellant, :
CASE NO. 2017-P-0061
- vs - :
DAVID A. LONGO, :
Defendant-Appellee. :
Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations
Division, Case No. 2015 DR 00197.
Judgment: Reversed and remanded.
Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., L.P.A., 55 Erieview Plaza, 5th
Floor, Cleveland, OH 44114 (For Plaintiff-Appellant).
Steven Lee August, 3201 Enterprise Parkway, Suite 130, Beachwood, OH 44122 and
Scott S. Rosenthal, Schoonover, Rosenthal, Thurman & Daray, 1001 Lakeside Avenue,
Suite 1720, Cleveland, OH 44114 (For Defendant-Appellee).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Lisa M. Longo, appeals the trial court’s post-decree finding that
she has no premarital interest in her three retirement accounts. She maintains that the
court exceeded the scope of its jurisdiction in rendering a finding that directly conflicts
with an original finding in the final divorce decree. For the following reasons, we reverse
and remand for further proceedings.
{¶2} The parties to the underlying action were married for seventeen years and
had three children. During the course of the marriage, appellant made contributions to
three retirement accounts. Regarding the distribution of her accounts, the final divorce
decree provides:
{¶3} “The Plaintiff, Lisa M. Longo, has an interest in the following retirement
assets: (1) Mondelez Global 401(k); (2) GSK 401(k); and (3) GSK Cash Balance Pension
Plan. As of July 6, 2015, the Mondelez Global Plan had a value of $29,286. As of June
30, 2015, the GSK 401(k) Plan had a balance of $503,467.58 and the GSK Cash Balance
Pension Plan had a value of $129,590.95. There are no liens or encumbrances. The
Plaintiff’s retirement assets shall be divided by coverture fraction calculated from October
3, 1998 (date of marriage) through November 16, 2015 (date of final hearing). The
Plaintiff is to receive her premarital portion of her retirement. The Defendant, David A.
Longo, shall be entitled to one-half of the Plaintiff’s retirement assets from October 3,
1998 through November 16, 2015; but the Defendant’s award of retirement assets shall
be reduced by the sum of Fifty Thousand Dollars ($50,000.00) as and for Plaintiff’s
interest in Defendant’s business, Lon Mar, Inc. (a/k/a Nite-N-Day Cleaners) as previously
set forth herein.” (Emphasis added).
{¶4} The “premarital portion” sentence in the quoted provision was handwritten
into the divorce decree and initialed by both parties. As to appellant’s three retirement
accounts, the decree further states that her counsel would be responsible for preparing
the necessary Qualified Domestic Relations Order (“QDROs”) to implement the
distribution. In relation to the trial court’s continuing authority to modify the foregoing
provision, the decree provides:
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{¶5} “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court
retains jurisdiction with respect to the Qualified Domestic Relations Order or Division of
Property Order to the extent required to maintain the qualified status and the original
intent of the parties. The Court also retains jurisdiction to enter further orders as are
necessary to enforce the assignments of benefits to the non-participant as set forth
herein, including the recharacterization thereof as a division of benefits of another plan,
as applicable, or to make an award of spousal support, if applicable, in the event that the
participant fails to comply with the provisions of this order.”
{¶6} Within fifty days of the issuance of the divorce decree, appellee, David A.
Longo, moved the trial court to find appellant in contempt for not complying with various
orders. As one basis for the motion, he asserted that appellant’s counsel failed to prepare
the required QDROs, as expressly mandated by the decree. No judgment was issued
disposing of this motion.
{¶7} Over the next forty days, appellant’s trial counsel submitted three different
versions of the proposed QDROs to appellee’s counsel for consideration. In each
instance, appellee’s counsel rejected the proposed QDROs on the grounds that they did
not comply with the requirements of the Plan Administrator for the retirement accounts.
Consequently, in September 2016, appellee moved the trial court to order appellant to
only submit QDROs that have been pre-approved by the Plan Administrator. Appellee
did not file any objection to this motion, and the trial court granted it on October 18, 2016.
{¶8} Five months later, appellee again moved the trial court to find appellant in
contempt for failing to prepare the necessary QDROs. Appellee asserted that, although
various discussions had occurred concerning what changes needed to be made to the
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last set of proposed QDROs, appellant’s counsel had not produced any QDROs for
review.
{¶9} A hearing on the second contempt motion was scheduled for June 2017.
When appellant moved for a continuance, appellee filed a brief in opposition, noting that
a year had already elapsed since the issuance of the divorce degree and he still had not
received any benefits from her retirement accounts. Notwithstanding this argument, the
trial court granted the continuance and rescheduled the hearing for September 2017.
{¶10} During the interim period, appellee moved the trial court to allow his trial
counsel to prepare the QDROs. In opposing this motion, appellant submitted a new set
of proposed QDROs to the trial court. However, instead of reviewing the substance of
the new set, the trial court issued a judgment resolving the “QDROs” dispute. The first
paragraph of this judgment, dated August 18, 2017, states:
{¶11} “This matter came before the Court upon the Court’s own review of the file.
After review, the Court finds that the pensions of the parties have no premarital portions.
Accordingly, Attorney Steven L. August, counsel for the Defendant, is ordered to prepare
the necessary Qualified Domestic Relations Orders in order to effectuate the division.”
{¶12} Ten days after issuance of the foregoing judgment, the trial court issued a
nunc pro tunc entry modifying the second sentence of the foregoing quote. That is, the
term “retirement accounts” was substituted for the word “pension.” Moreover, the phrase
“per the Divorce Decree” was added to indicate what retirement accounts were being
referenced.
{¶13} In appealing the August 18, 2017 judgment, appellant assigns the following
as error:
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{¶14} “The trial court erred as a matter of law and abused Its discretion by issuing
a judgment entry which is Inconsistent with the terms and considerations of the June 2,
2016 Judgment Entry of Divorce.”
{¶15} As a preliminary point, appellee argues that this appeal must be dismissed
because appellant did not base the appeal upon the correct judgment. He asserts that,
instead of appealing the August 18, 2017 judgment, appellant should have brought the
appeal from the subsequent nunc pro tunc entry.
{¶16} The basic purpose of a nunc pro tunc entry is to correct clerical mistakes in
a prior judgment. State v. Blankenship, 4th Dist. Ross No. 13CA3364, 2013-Ohio-5261,
¶7. Therefore, the effective date of a nunc pro tunc entry relates back to the date of the
original judgment, and the notice of appeal must be filed within thirty days of the original
judgment. Id.; Morris v. Conant, 11th Dist. Lake No. 12-270, 1988 WL 112375, (Oct. 21,
1988). To this extent, the original judgment is still the substantive entry from which the
appeal must be brought.
{¶17} Here, the trial court’s nunc pro tunc entry did not modify its analysis in the
August 18, 2018 judgment. Thus, the entry did not recognize any new right or deny an
existing right. Instead, the nunc pro tunc entry changes the language the trial court
employed to refer to appellant’s retirement accounts. Since the entry was used to correct
a clerical mistake in the original judgment, the entry was a legitimate nunc pro tunc entry.
For this reason, appellant properly based her appeal upon the August 18, 2017 judgment.
{¶18} Under her sole assignment, appellant asserts that the appealed judgment
must be reversed because the trial court exceeded its authority in finding that she did not
have any premarital interest in her three retirement accounts. She maintains that, since
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this finding directly conflicts with the prior statement in the final decree, it constitutes an
impermissible modification of the property distribution.
{¶19} Initially, this court disagrees with appellant’s characterization of the trial
court’s new finding on the “premarital interest” issue as a modification. In the divorce
decree, the trial court only stated that appellant would receive any premarital interest in
the retirement accounts. The court did not make any finding regarding whether the extent
of such an interest had already been established by appellant.
{¶20} If the trial court’s August 18, 2017 judgment had ordered that appellant was
no longer entitled to receive her premarital interest in her retirement accounts, such an
order would constitute a modification of the divorce decree. However, in stating in its
subsequent judgment that appellant has no premarital interest, the court was only making
a finding as to the extent to which the prior order was applicable. In this respect, the court
was only enforcing its prior order in the divorce decree.
{¶21} Retirement benefits are marital assets that are subject to distribution as
personal property. Schrader v. Schrader, 108 Ohio App. 3d 25, 28, 669 N.E.2d 878 (6th
Dist.1995), citing Hoyt v. Hoyt, 53 Ohio St. 3d 177, 178, 559 N.E.2d 1292 (1990). As a
general proposition, the distribution of property in a final divorce decree cannot be altered
in a subsequent proceeding unless “upon the express written consent or agreement to
the modification by both spouses.” R.C. 3105.171(I). However, the statutory prohibition
has no effect upon the trial court’s basic authority to interpret and enforce the distribution
orders in its prior judgment. See Kistler v. Kistler, 11th Dist. Trumbull No. 2003-T-0060,
2004-Ohio-2309, ¶14-15.
{¶22} Nevertheless, even though the trial court did not exceed its jurisdiction in
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rendering a new finding on the “premarital interest” issue, the record is void of any
evidence upon which the trial court could have made such a finding. Following the
issuance of the divorce decree, no evidentiary hearing was held. Similarly, although both
parties filed multiple motions during this period, neither attached evidentiary material
regarding the “premarital interest” issue. As to the latter point, appellant’s last set of
proposed QDROs, submitted directly to the trial court, did not address the amount of her
premarital interest.
{¶23} Appellee maintains that the finding of no premarital interest was warranted
because of appellant’s failure to present evidence regarding the extent of that interest.
However, appellee’s post-decree motions do not raise this as a reason for rejecting
appellant’s proposed QDROs. Accordingly, the issue of the extent of appellant’s
premarital interest in her retirement accounts was not properly before the trial court for
final determination.
{¶24} In the absence of any explanation by the trial court setting forth the basis of
its decision, and the lack of evidence supporting the decision, appellant’s sole assignment
has merit. The judgment is reversed, and the case is remanded for further proceedings.
COLLEEN MARY O’TOOLE, J., concurs,
CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.
____________________
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CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.
{¶25} Because I disagree with the majority’s disposition, I respectfully dissent.
{¶26} The parties’ June 2, 2016 divorce decree provided that wife would receive
any premarital interest in her retirement accounts, but did not find that she had established
the amount of any such interest. “‘The party seeking to establish that property * * * is
separate rather than marital bears the burden of proving this to the trial court.’” Nemeth
v. Nemeth, 11th Dist. Geauga No. 2007-G-2791, 2008-Ohio-3263, ¶50, quoting Vergitz
v. Vergitz, 7th Dist. Jefferson No. 05 JE 52, 2007-Ohio-1395, ¶12. Thus, in order to be
entitled to a premarital interest, wife had the burden to prove the extent of that interest.
Further, the decree ordered wife’s counsel to prepare all QDROs necessary to divide
wife’s retirement accounts.
{¶27} As of July 18, 2016 (six weeks after the decree was entered), wife’s attorney
had still not submitted QDROs. As a result, husband filed a motion to find wife in
contempt. On August 22, 2016, wife’s counsel submitted proposed QDROs, but
husband’s attorney filed a notice of their rejection because they did not comply with the
plan administrator’s requirements. In the notice, husband’s attorney said he had sent a
letter to wife’s attorney, which set forth the reasons why the QDROs were deficient and
provided sample QDROs for wife’s counsel’s use in revising the QDROs. On August 31,
2016, wife’s attorney submitted revised QDROs, but husband’s attorney rejected them
because they still did not comply with the administrator’s requirements. On September
14, 2016, husband filed a notice of the plan administrator’s rejection of wife’s QDROs. In
that same filing, husband moved for an order requiring wife to submit to the court only
QDROs that were pre-approved by the plan administrator, and the court granted that
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motion.
{¶28} On November 23, 2016, during a phone conference between court and
counsel, wife’s counsel agreed to provide husband’s attorney with statements identifying
the balances in wife’s retirement accounts at the time of the parties’ marriage to evidence
her premarital interest, but wife’s counsel never provided such evidence to husband’s
attorney.
{¶29} On January 13, 2017, husband’s attorney, by letter, asked wife’s attorney
for the revised QDROs, but wife’s attorney did not respond. On January 30, 2017,
husband’s attorney sent a follow-up letter to wife’s attorney, but he still did not submit the
revised QDROs.
{¶30} On February 23, 2017, during a phone conference between the court and
counsel’s paralegals, wife’s attorney’s paralegal agreed to revise the QDROs per the plan
administrator’s instructions. However, on March 20, 2017, wife’s counsel called
husband’s attorney and refused to make the modifications required by the administrator.
As a result, on March 29, 2017, husband’s attorney filed a motion to find wife in contempt
for failing to file pre-approved QDROs. The contempt hearing was set for September 6,
2017.
{¶31} Meanwhile, on June 30, 2017, one year after the court originally ordered
wife to prepare the QDROs, husband moved the court, inter alia, for an order to authorize
his attorney to prepare QDROs that would not include a premarital portion for wife. In
that filing, husband asserted that wife’s counsel had agreed to submit evidence of wife’s
alleged premarital interest, but then failed to do so. Wife’s attorney filed another set of
QDROs on July 7, 2017. However, these QDROs, on their face, were not pre-approved
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by the plan administrator before submission, as required by the trial court, and did not
address the amount of wife’s alleged premarital interest. On August 18, 2017, the court
granted husband’s motion, stating in its amended entry:
{¶32} After review, the Court finds that the retirement accounts of the parties
* * * have no premarital portions. Accordingly, Attorney Steven L.
August, counsel for the [husband], is ordered to prepare the
necessary [QDROs] to effectuate the division of the retirement
benefits. (Emphasis added.)
{¶33} Thus, for 14 months between June 2016 and August 2017, wife failed to
establish the amount of any premarital interest. This failure was raised by husband in his
June 30, 2017 motion for authority in which he disputed the existence of wife’s alleged
premarital interest and asserted that wife’s attorney had failed to produce evidence of
such interest. In wife’s brief in opposition, she did not argue or present any evidence in
support of a premarital interest. In finding wife had no such interest, the trial court
implicitly found that she failed to meet her burden to prove such interest. Further, in this
same period, wife’s attorney repeatedly failed to submit QDROs that complied with the
administrator’s requirements and the court’s orders. Thus, the trial court’s judgment
authorizing husband’s attorney to prepare QDROs that excluded any premarital portion
for wife was amply supported by the record.
{¶34} For these reasons, I would affirm the trial court’s judgment and I respectfully
dissent.
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