Reeves v. Reeves , 2016 Ohio 4590 ( 2016 )

[Cite as Reeves v. Reeves, 2016-Ohio-4590.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
JOSEPH P. REEVES, :
Plaintiff-Appellant, : CASE NO. CA2015-11-092
: OPINION
- vs - 6/27/2016
:
VALERIE A. REEVES, :
Defendant-Appellee. :
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 2013 DRA 00306
Michael A. Kennedy, 70 North Riverside Drive, Batavia, Ohio 45103, for plaintiff-appellant
Aimee L. Keller, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202, for defendant-
appellee
PIPER, P.J.
{¶ 1} Plaintiff-appellant, Joseph Reeves, appeals a decision of the Clermont County
Court of Common Pleas, Domestic Relations Division, ordering a division of property after
Joseph divorced defendant-appellee, Valerie Reeves.
{¶ 2} Joseph and Valerie were married in 1997, separated in 2012, and later divorced
in 2013. One of the contested issues that arose from the divorce was specific to the division
Clermont CA2015-11-092
of marital property, including Joseph's retirement account. Joseph, who is a member of the
Ohio Public Employees Retirement System ("OPERS"), began receiving full disability benefits
from OPERS in 2005 due to an issue with his hip. Joseph continued to receive the disability
payments since 2005, and also works approximately 16 hours a week.
{¶ 3} As part of the separation of property after the divorce, the trial court awarded
Valerie 50 percent of the marital portion of Joseph's retirement benefits. The court also
ordered that payment to Valerie would commence when Joseph begins to receive retirement
benefits or when he has 30 years of service credit toward his retirement, whichever occurs
first. The court noted that up until Joseph's earliest retirement date, the disability payments
would be considered income replacement, and thus not subject to division.
{¶ 4} The parties stipulated to the marital value of Joseph's OPERS account, and
Valerie's attorney drafted a Division of Property Order ("DOPO"). The parties also stipulated
that the DOPO comported with the terms of the trial court's divorce decree. During a hearing
at which the trial court was prepared to accept the DOPO, Joseph argued that Valerie should
not receive any portion of his OPERS retirement because he was collecting disability, which
the court had determined was income replacement not subject to marital division.
{¶ 5} After considering arguments on the issue, the trial court determined that its prior
ruling was proper and remained the order. The trial court then reiterated that Valerie would
begin receiving her portion of the marital retirement account value once Joseph was entitled
to receive retirement benefits in 2021. Joseph now appeals the trial court's decision, raising
the following assignment of error.
{¶ 6} THE TRIAL COURT ERRED IN ISSUING A DIVISION OF PROPERTY ORDER
(DOPO) DIVIDING THE APPELLANT'S DISABILITY BENEFIT.
{¶ 7} Joseph argues in his assignment of error that the trial court was not permitted
to divide his disability benefit because it is income replacement rather than marital property.
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{¶ 8} Despite Joseph's argument, we find that this court cannot proceed to
judgement because we lack jurisdiction where the notice of appeal is untimely. Given the
final nature of the trial court's divorce decree dividing Joseph's retirement account, the proper
time to challenge that decision was on a direct appeal from the trial court's divorce decree.
Given that Joseph has waited over a year past the date of the divorce decree order, this
appeal is untimely.
{¶ 9} Despite the seemingly interlocutory nature of a divorce decree that contains an
order to execute a DOPO in the future, the Ohio Supreme Court has determined that a
divorce decree that provides for the issuance of a Qualified Domestic Relations Order
("QDRO") is a final, appealable order, even before the QDRO is issued. Wilson v. Wilson,
116 Ohio St. 3d 268, 2007-Ohio-6056, ¶ 20. The Wilson court concluded that the purpose of
the QDRO is only to execute the orders in the decree, but that the decree itself is the final
order. Id. While the issue in the case at bar is the future execution of a DOPO, rather than a
QDRO, the reasoning remains the same and is not changed merely because the DOPO is
specific to a state pension where the QDRO divides private pensions.
{¶ 10} The trial court's order that Joseph and Valerie will share in Joseph's retirement
account is final, and the DOPO merely executes that order. We recognize that other courts
have found to the contrary and dismissed appeals regarding the issuance of a DOPO before
the DOPO has been executed. See Green v. Green, 10th Dist. Franklin No. 04AP-61, 2005-
Ohio-851; and Forman v. Forman, 3rd Dist. Marion No. 9-05-14, 2006-Ohio-11. However,
these cases were decided before Wilson, and we see no reason that the analysis provided in
Wilson specific to a QDRO is not directly applicable to a DOPO.
{¶ 11} According to Civ.R. 75(F), a divorce decree is not final until it, as applicable
here, divides the marital property. A divorce decree that fails to resolve the issues set forth in
Civ.R. 75(F), such as property division or spousal/child support issues, is not a final order.
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Simon v. Simon, 9th Dist. Summit No. 25933, 2012-Ohio-3443, ¶ 11. If, however, the decree
resolves "all the outstanding issues between the parties," then it is a final appealable order.
Merkle v. Merkle, 5th Dist. Licking No. 13-CA-31, 2014-Ohio-81, ¶ 14. App.R. 4(A)(1) sets
forth that an appeal from a final order must be made within 30 days of the order's date.
Otherwise, an appellate court lacks jurisdiction to review an untimely appeal. Id.; Zorn v.
Zorn, 9th Dist. Medina No. 07CA0077-M, 2008-Ohio-2391 (dismissing for lack of jurisdiction
where wife appealed issuance of QDRO, rather than appealing the final divorce decree within
30 days of that final order).
{¶ 12} Once the trial court made its decision dividing Joseph's retirement account
within the final divorce decree, Joseph was required to perfect his appeal within 30 days. He
did not. Instead, Joseph waited until the trial court held a hearing in 2015 to accept the
DOPO written by Valerie's attorney. At that hearing, Joseph raised the argument regarding
the retirement distribution, and claims now that the trial court only made an unequivocal
decision on the retirement issue after that recent hearing. We disagree.
{¶ 13} The record is clear that the trial court issued its divorce decree wherein it
separated the marital property, including the parties' retirement accounts. The court noted
that Joseph participated in OPERS and had been on disability since 2005. The trial court
then determined that the disability payment Joseph receives is not a marital asset. The trial
court then went on to state, "[Valerie] is, however, entitled to one half of the marital portion of
[Joseph's] retirement benefit, as set forth below." The trial court then established the specific
details of its division as follows, "Payment to [Valerie] shall commence when [Joseph] begins
to receive retirement benefits or when he has 30 years of service credit toward his retirement,
whichever first occurs. Any disability payment received prior to [Joseph's] earliest retirement
date is in the nature of income replacement and not subject to division."
{¶ 14} Joseph argues that the divorce decree was not final because it did not
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"unequivocally" order division of Joseph's disability benefit. However, the trial court's divorce
decree was clear and final in that it (1) ordered Valerie to receive one-half of the marital
portion of Joseph's retirement account, and (2) ordered that Valerie would receive payments
for her share once Joseph reached 30 years of service credit or decided to retire—whichever
came first. The trial court's order also took into consideration that Joseph's election of
disability payments up until the time of his earning 30 years' service credits or his voluntary
retirement would continue to be nonmarital property because such was income replacement.
Having recognized that issue clearly, the trial court further noted that once Joseph earned 30
years of service credit, the disability payments would convert into retirement for the purposes
of property division. If Joseph wanted to dispute any aspect of the trial court's final order, the
proper time to do so was within 30 days of the trial court's final divorce decree. App.R.
4(A)(1).
{¶ 15} Given that Joseph did not appeal the trial court's final divorce decree within the
proper timeframe, his appeal is now untimely, and this court lacks jurisdiction over the matter.
We therefore dismiss this appeal for lack of a timely notice of appeal.
S. POWELL and HENDRICKSON, JJ., concur.
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