Kalbaugh v. Kalbaugh , 2020 Ohio 3873 ( 2020 )

[Cite as Kalbaugh v. Kalbaugh, 2020-Ohio-3873.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
DEBORAH L. KALBAUGH C.A. Nos. 29184
29185
Appellee 29219
29328
v.
WILLIAM H. KALBAUGH
APPEAL FROM JUDGMENT
Appellant ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. 1994-10-2283
DECISION AND JOURNAL ENTRY
Dated: July 29, 2020
CALLAHAN, Presiding Judge.
{¶1} Appellant, William H. Kalbaugh, appeals various orders related to the division of
his pension benefits.
I.
{¶2} Mr. Kalbaugh (“Husband”) and Deborah Kalbaugh (“Wife”) divorced in 1995.
Their divorce decree addressed the division of Husband’s pension as follows:
[Husband] has a pension plan with the Police and Fireman’s Disability and Pension
Fund of Ohio with a value of [$68,496.38]. [Wife] has a Social Security Old Age
Benefit Plan with a value of [$10,798.31]. The parties agree to offset the [Wife’s]
Social Security Old Age Benefit Plan from the [Husband’s] Police and Fireman’s
Disability and Pension Fund of Ohio to obtain a value of [$57,698.07] which is
subject to equitable distribution between the parties. [Husband] also has a Defined
Contribution Plan, the value of which is subject to equitable distribution between
the parties in the amount of [$10,041.84]. These plans shall be divided equally
between the [Wife] and [Husband], by Qualified Domestic Relations Orders. The
parties agree to divide equally the costs of hiring an outside firm to prepare the
Qualified Domestic Relations Orders.
2
On August 26, 1996, in apparent compliance with this language in the divorce decree requiring
the preparation of Qualified Domestic Relations Orders (“QDROs”), Wife’s attorney submitted,
and the trial court entered, two orders. The first was a QDRO that governed the division of
Husband’s deferred compensation account, and that order allocated $5,020.92 to Wife, payable in
the future upon Husband’s distribution of his benefit. The second order (“the 1996 Pension
Order”) addressed Husband’s Ohio Police and Fire (“OPF”) pension.1 Recognizing that a public
pension could not be divided by means of a Qualified Domestic Relations Order (“QDRO”) or
equivalent at that time, the order provided:
[I]n the event that [Husband’s] retirement benefits become subject to direct
assignment via a [QDRO] (or the equivalent thereof) at a future date, the parties
hereby agree to submit to the administrator of the Pension Fund, a [QDRO], as set
forth in Attachment “A”, which is incorporated herein by reference and made a part
of this Order, in order to effectuate the direct distribution of a portion of
[Husband’s] retirement benefits under the Pension Fund to [Wife].2
(Emphasis omitted.) Although it recognized that Ohio public pension benefits could not be
assigned by a QDRO at the time, the 1996 Pension Order set forth information related to the
division of Husband’s pension that functioned as a precursor to the QDRO anticipated therein.3
The order provided that Wife would receive fifty percent of the marital portion of Husband’s
pension, as determined using a coverture fraction, and explained that Wife’s payments would
reflect a pro rata share of any post-retirement cost of living adjustments. Although the 1996
Pension Order refers to “the original intent of the parties as stipulated herein[,]” the order did not,
1
OPF was previously known as Police and Fireman’s Disability and Pension Fund of Ohio.
Throughout this opinion, we refer to it as OPF in the interest of clarity.
2
The document referred to as “Attachment ‘A’” does not appear in the record.
3
In a filing dated November 30, 2015, Wife would later refer to the 1996 Pension Order
as an “attempt[] * * * to impose [a] QDRO[] on state pension plans” and “the original QDRO.”
In the same filing, Wife would characterize the trial court’s action as going “so far as to enter a
QDRO against OPF in 1996.”
3
in fact, represent joint stipulations: it was signed by Wife’s attorney, but notes that it was “[s]een,
but not approved[]” by Husband’s attorney.
{¶3} Almost eighteen years later, on April 1, 2014, the trial court journalized another
QDRO relating to Husband’s deferred compensation plan. That QDRO “assign[ed] to [Wife]
$33,869.95 of [Husband’s] Total Account Balance accumulated under the Plan as of November
16, 1995, plus any interest and investment earnings or losses attributable thereon subsequent to the
date of acknowledged receipt of this order by OPEDCP, until the date of total distribution.” A
copy of this order bearing a notation indicating that it was paid was docketed on April 29, 2014.
{¶4} On June 15, 2015, Wife moved to enforce the divorce decree with respect to
Husband’s pension. In her motion, Wife noted the 1996 Pension Order and stated that “OPF will
not recognize it as a proper method to allocate the parties’ interest * * * because it is not the official
Division of Property (DOPO) required under Ohio Revised Code §3105.82.” Husband opposed
the motion by filing a motion to dismiss it, maintaining that Wife had received everything to which
she was entitled by the terms of the divorce decree when she received $33,869.95 from his deferred
compensation account. According to Husband, under the terms of the divorce decree, “[Wife] was
to receive a sum certain and she received that sum, no more and no less.” On January 19, 2016,
the trial court adopted a magistrate’s decision, denied Husband’s motion to dismiss and ordered
the parties to prepare and submit a division of property order (“DOPO”). In so doing, the trial
court concluded that “[p]ursuant to the Final Decree and the August 26, 1996, Entry, [Wife] is
entitled to 50% of the marital portion of [Husband’s] accrued benefit under the OPF as of
[Husband’s] commencement date.” Husband filed objections, noting particularly that the divorce
decree did not provide that Wife was entitled to fifty percent of each of his pension and deferred
compensation plans, but that she was entitled to a certain sum and, pursuant to the earlier QDRO,
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that sum had been paid. Consequently, Husband maintained, the trial court’s order would result
in Wife receiving significantly more than provided by the divorce decree.
{¶5} The trial court overruled Husband’s objections, concluding, in pertinent part:
2. Pursuant to the parties’ decree, [Husband’s] OPF was to be equally divided by
a Qualified Domestic Relations Order (QDRO) after offsetting [Wife’s] Social
Security Contribution as determined by Pension Evaluators.
3. Further, the decree provided that [Husband’s] Ohio Deferred Compensation Plan
was to be equally divided by a QDRO.
4. The OPF fund cannot be divided by a QDRO, and was therefore never divided
as ordered in the parties’ decree.
5. The proper method to allocate the parties’ interest in the fund is through a
Division of Property Order (DOPO), as required under ORC § 3105.82.
6. On April 1, 2014, [Husband’s] Ohio Deferred Compensation Plan was divided.
7. Plaintiff has received her share of [Husband’s] Ohio Deferred Compensation
Plan.
8. Plaintiff is entitled to 50% of the marital portion of the [Husband’s] accrued
benefit under the OPF as of the [Husband’s] commencement date.
Husband appealed the trial court’s decision, arguing that the trial court erred because its ruling was
based on the 1996 Pension Order, which was void because it impermissibly modified the terms of
the property division. Kalbaugh v. Kalbaugh, 9th Dist. Summit No. 28282, 2017-Ohio-4272, ¶ 4
(“Kalbaugh I”). This Court affirmed without addressing the merits of husband’s argument,
concluding that the 1996 Pension Order was voidable, not void, and consequently, that Husband
should have made his arguments in a timely appeal from that order. Id. at ¶ 10, 12.
{¶6} After this Court’s decision was released, Husband moved the trial court for a full
evidentiary hearing on a proposed DOPO. In his motion, Husband noted that Wife’s proposed
DOPO referenced not only the division of his pension, but also the division of funds contained in
his Deferred Retirement Option Plan account (“DROP”). The trial court denied Husband’s motion
5
and, on September 25, 2018, the trial court journalized a DOPO that was submitted and approved
by Wife’s attorney. The DOPO did, in fact, provide that Wife was eligible to receive a portion of
Husband’s age and service retirement benefit and his DROP. Husband’s attorney noted that the
DOPO was “[r]ejected” because “[t]he DOPO is contrary to the terms of the Decree of Divorce.”
Husband appealed the September 25, 2018, DOPO in C.A. No. 29184 and the trial court’s order
denying an evidentiary hearing in C.A. No. 29185.
{¶7} On October 17, 2018, while those appeals were pending, OPF filed a notice in the
trial court that it had rejected the September 25, 2018, DOPO because the section entitled “Method
of Payment—Percentage” had not been completed. One week later, the trial court entered a second
DOPO, which also provided that Wife was entitled to receive a portion of Husband’s age and
service retirement and his DROP. Again, Husband’s attorney noted that the DOPO was rejected
as far as Husband was concerned because it was inconsistent with the divorce decree. Husband
appealed the second DOPO in C.A. No. 29219.
{¶8} On February 18, 2019, Husband filed instructions for service of the 1996 Pension
Order and, ten days later, his attorney filed an affidavit from a representative of the Clerk of Courts
averring that service of the 1996 Pension Order in compliance with Civ.R. 58 had never been
accomplished. Once the clerk’s office served the 1996 Pension Order, Husband appealed in C.A.
No. 29328.4 This Court consolidated C.A. Nos. 29184, 29185, and 29219 for purposes of briefing.
On November 19, 2019, the parties jointly moved this Court to remand this matter to the trial court
so that an evidentiary hearing could be conducted regarding the language in the divorce decree and
the 1996 Pension Order, noting that “evidence [was] necessary, the opportunity for which was
4
Noting that the same problem attached to service of the divorce decree, Wife filed, and
then voluntarily dismissed, an appeal from the decree as well.
6
foreclosed by the trial court’s denial of an evidentiary hearing (the primary subject of C.A.
29185).” This Court denied the motion, and all four appeals were submitted together for
disposition.
II.
C.A. Nos. 29184, 29185, and 29219
{¶9} In C.A. No. 29184, Husband appealed the DOPO entered by the trial court on
September 25, 2018, and in C.A. No. 29185, Husband appealed the trial court’s order that denied
his motion for an evidentiary hearing in connection with that DOPO. In C.A. No. 29219, Husband
appealed the DOPO entered by the trial court on October 25, 2018. Husband has assigned five
errors in these consolidated appeals. His assignments of error are rearranged for purposes of
disposition.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN ENTERING AN AMENDED DIVISION OF
PROPERTY ORDER ON OCTOBER 25, 2018 AFTER APPELLANT HAD
FILED AND PERFECTED AN APPEAL OF THE ORIGINAL DIVISION OF
PROPERTY ORDER THAT THE COURT ISSUED ON SEPTEMBER 25, 2018
BECAUSE APPELLANT’S NOTICE OF APPEAL DEPRIVED THE TRIAL
COURT OF JURISDICTION TO AMEND THE ORIGINAL DIVISION OF
PROPERTY ORDER, RENDERING THE AMENDED ORDER VOID AB
INITIO.
{¶10} In his third assignment of error, Husband argues that the October 25, 2018, DOPO
is void because the trial court lacked jurisdiction to enter it while his previous appeal was pending.
This Court agrees.
{¶11} Once a case has been appealed, the trial court loses jurisdiction except to take action
in aid of the appeal. In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, at ¶ 9, citing State ex rel.
Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97. On the other hand,
a trial court “retains jurisdiction over issues not inconsistent with the appellate court’s jurisdiction
7
to reverse, modify, or affirm the judgment appealed from.” In re S.J. at ¶ 9. This Court has
characterized such issues as “collateral,” noting that examples include orders in aid of execution
and contempt. Pietrangelo v. Avon Lake, 9th Dist. Lorain Nos. 15CA010804, 15CA010873, 2016-
Ohio-8201, ¶ 17, citing Special Prosecutors at 97. When a trial court acts beyond its jurisdiction
while an appeal is pending, its order is void. Ormandy v. Dudzinski, 9th Dist. Lorain No.
09CA009713, 2010-Ohio-2017, ¶ 11. This Court has the inherent authority to vacate a void order
entered under these circumstances. Trogdon v. Arch Abraham Nissan, 9th Dist. Lorain No.
13CA010446, 2015-Ohio-1256, ¶ 6, quoting Hairline Clinic, Inc. v. Riggs-Fejes, 9th Dist. Summit
No. 25171, 2011-Ohio-5894, ¶ 7.
{¶12} The Supreme Court of Ohio applied these principles to facts similar to those in this
case in State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252. In that case, the
husband appealed from a QDRO but, while the appeal was pending, the trial court entered an
amended QDRO that differed from the original in several respects. Id. at ¶ 10-11. The husband
filed a complaint for a writ of prohibition, arguing that the trial court lacked jurisdiction to enter
the amended QDRO while the appeal was pending. Id. at ¶ 12. The court of appeals issued the
requested writ, and the respondent-judge appealed. Id. at ¶ 13. The Supreme Court noted that
under certain circumstances, a trial court retains jurisdiction to issue a QDRO while an appeal from
a divorce decree is pending. Id. at ¶ 19. Nonetheless, the Supreme Court held that once the
original QDRO was appealed, the trial court lacked jurisdiction to modify it. Id. at ¶ 20, 25.
{¶13} The parties do not dispute that Sullivan appears to control this case on its face.
Wife, however, maintains that because OPF rejected the September 25, 2018, DOPO, it became
moot and, therefore, not appealable. Consequently, she argues, the trial court could continue to
exercise jurisdiction regardless of a pending appeal. This Court does not agree. Wife’s argument
8
conflates this Court’s application of the mootness doctrine with our appellate jurisdiction.
Regardless, however, it is well-established that “the determination as to the appropriateness of an
appeal lies solely with the appellate court” and as a result, a trial court “has no authority to
determine the validity or merit of an appeal.” In re S.J. at ¶ 10.
{¶14} The October 25, 2018, DOPO was similar to the DOPO that Husband appealed in
C.A. No. 29184, but the latter contained additional information related to the calculation of
payments to Wife, the alternate payee. Consistent with Sullivan, the trial court lacked jurisdiction
to enter an amended DOPO while Husband’s appeal from the September 25, 2018, DOPO was
pending in this Court. The October 25, 2018, DOPO is therefore void and must be vacated.
{¶15} Husband’s third assignment of error is sustained.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
ENTERING AN AMENDED DIVISION OF PROPERTY ORDER ON
OCTOBER 25, 2018 WITHOUT GIVING APPELLANT PRIOR NOTICE
THEREOF AND AN OPPORTUNITY TO BE HEARD, IN VIOLATION OF
APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ITS
OCTOBER 25, 2018 APPROVAL OF AN AMENDED DIVISION OF
PROPERTY ORDER THAT WAS INCONGRUOUS WITH THE TERMS AND
CONDITIONS OF THE PARTIES’ DECREE OF DIVORCE.
{¶16} Husband’s fourth and fifth assignments of error challenge the October 25, 2018,
DOPO on substantive grounds. In light of this Court’s resolution of Husband’s third assignment
of error, these assignments of error are moot. See App.R. 12(A)(1)(c).
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING
APPELLANT’S MOTION FOR AN EVIDENTIARY HEARING BEFORE
ENTERING A DIVISION OF PROPERTY ORDER, DENYING APPELLANT
9
THE OPPORTUNITY TO PRESENT HIS CASE THAT THE DIVISION OF
PROPERTY ORDER WAS OUT OF SQUARE WITH THE TERMS AND
CONDITIONS OF THE PARTIES’ DECREE OF DIVORCE, VIOLATING
APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS.
{¶17} In his second assignment of error, Husband has argued that the trial court abused
its discretion by denying his motion for an evidentiary hearing before entering the September 25,
2018, DOPO.
{¶18} Wife has raised two threshold issues that must be addressed by this Court before
we reach the merits of this assignment of error. First, in her appellate brief, Wife has argued that
because Husband appealed the denial of his motion for an evidentiary hearing separately in C.A.
No. 29185, that appeal must be dismissed because an order that denies an evidentiary hearing is
not a final appealable order. This Court agrees. As relevant to this appeal, R.C. 2505.02(B)(2)
provides that an order is final when it “affects a substantial right made in a special proceeding[.]”
A “substantial right” is “a right that the United States Constitution, the Ohio Constitution, a statute,
the common law, or a rule of procedure entitles a person to enforce or protect.” R.C.
2505.02(A)(1). Divorce is a special proceeding. State ex rel. Papp v. James, 69 Ohio St.3d 373,
379 (1994). Even assuming that the denial of an evidentiary hearing implicated a substantial right,
as defined by R.C. 2505.02(A)(2), that substantial right was not affected because relief was not
foreclosed to Husband if it was not immediately appealable. See Southside Community Dev. Corp.
v. Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, ¶ 7. Accordingly, Husband’s appeal from the
trial court’s order that denied his motion for an evidentiary hearing is not taken from a final
appealable order, and C.A. No. 29185 must be dismissed.
{¶19} That is not to say, however, that Husband’s second assignment of error must also
be disregarded by this Court. The trial court’s order that denied the evidentiary hearing was an
interlocutory order that merged into the final order that Husband also appealed—the September
10
25, 2018, DOPO. As such, Husband’s second assignment of error is properly before this Court in
the context of C.A. 29184. In that respect, however, Wife has argued that this Court must dismiss
C.A. 29184 because OPF’s rejection of the September 25, 2018, DOPO rendered that appeal moot.
We do not agree.
{¶20} The mootness doctrine prevents courts from deciding cases in which no controversy
remains. In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, ¶ 37. Consequently, this Court can
only “‘decide actual controversies by a judgment which can be carried into effect’” and cannot
“‘give opinions upon moot questions or abstract propositions, or * * * declare principles or rules
of law which cannot affect the matter in issue in the case before it.’” Miner v. Witt, 82 Ohio St.
237, 238 (1910), quoting Mills v. Green, 159 U.S. 651, 633 (1895). This determination focuses
on the relief that the appellant seeks from the Court and whether the subject matter of the case
remains subject to the Court’s control. See, e.g., Akron Dev. Fund I, Ltd. v. Advanced Coatings
Internatl., Inc., 9th Dist. Summit No. 25375, 2011-Ohio-3277, ¶ 22-29.
{¶21} In order for payments to Wife from payout of Husband’s OPF pension and DROP
to commence, OPF must accept a DOPO. Nonetheless, a DOPO remains an order of the trial court,
and a DOPO can be reviewed on appeal when a party alleges that it modified the terms of a divorce
decree. See Miller v. Miller, 9th Dist. Medina No. 07CA0068-M, 2008-Ohio-2106, ¶ 15. See also
Cameron v. Cameron, 10th Dist. Franklin No. 12AP-349, 2012-Ohio-6258, ¶ 13 (noting that
without an express reservation of jurisdiction or consent of the parties, a trial court cannot enter a
DOPO that is inconsistent with the division of property set forth in the decree). This Court’s ability
to consider the merits of Husband’s appeal from the September 25, 2018, DOPO is independent
from the issue of whether that DOPO has been rejected or accepted by OPF.
11
{¶22} The parties also suggest that the September 25, 2018, DOPO (and, consequently,
C.A. No. 29184) is moot because the trial court subsequently entered an amended DOPO on
October 25, 2018. As noted above, however, the trial court did not have jurisdiction to enter the
amended DOPO, and it was void ab initio. Accordingly, neither the September 25, 2018, DOPO
nor Husband’s appeal in C.A. No. 29184 are moot, and this Court can proceed to consider the
merits of Husband’s second assignment of error.
{¶23} In support of his second assignment of error, Husband has argued that the trial
court’s decision to deny his motion for an evidentiary hearing violated his right to due process.
We agree that the trial court erred, but on non-constitutional grounds. Accordingly, we need not
reach his due process argument.
{¶24} Under Civ.R. 7(B)(2), a trial court may permit the determination of motions without
an oral hearing by local rule. The Local Rules of the Summit County Court of Common Pleas,
Domestic Relations Division, however, contemplate that a hearing will be conducted on most post-
decree motions, with the exception of those that are of a routine nature. See, e.g., Loc.R. 2.08(C)
of the Summit County Court of Common Pleas, Domestic Relations Division. In certain
circumstances, the Local Rules provide specifically that an evidentiary hearing may be necessary.
See, e.g., Loc.R. 9.02(B), 14.03(D), 16.02(B)(2)/(C). In general, the decision to conduct an
evidentiary hearing is a matter within the discretion of the trial court. See, .e.g., Saha v. Saha, 5th
Dist. Stark Nos. 2018 CA 00148 and 2019 CA 00010, 2019-Ohio-4496, ¶ 29; Mansbery v. Bach,
8th Dist. Cuyahoga No. 96471, 2011-Ohio-6627, ¶ 31-35; In re Schwendeman, 4th Dist.
Washington No. 06CA33, 2007-Ohio-815, ¶ 26; Chubb v. Chubb, 10th Dist. Franklin No. 86AP-
997, 1987 WL 16800, *2 (Sept. 10, 1987).
12
{¶25} Based on the unique facts and procedural history of this case, as recited above, we
conclude that the trial court abused its discretion by denying Husband’s motion for an evidentiary
hearing before issuing a DOPO. This is particularly true given the ultimate inclusion of Husband’s
DROP in the DOPO that issued and the parties’ obvious ongoing disagreement about the import
of the language of the divorce decree when applied to their current circumstances. The parties
themselves acknowledged in their joint motion to remand this case for a hearing that “[m]anifestly,
in order to determine the rights and obligations of the parties respecting the Decree, evidence is
necessary, the opportunity for which was foreclosed by the trial court’s denial of an evidentiary
hearing (the primary subject of C.A. 29185).”
{¶26} The trial court abused its discretion by denying Husband’s motion for an
evidentiary hearing. His second assignment of error is sustained.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ITS
SEPTEMBER 25, 2018 APPROVAL OF A DIVISION OF PROPERTY ORDER
THAT WAS INCONGRUOUS WITH THE TERMS AND CONDITIONS OF
THE PARTIES’ DECREE OF DIVORCE.
{¶27} Husband’s first assignment of error is that the trial court abused its discretion by
entering the September 25, 2018, DOPO when the substance of that order was inconsistent with
the divorce decree. Because this Court has concluded that the trial court erred by denying
Husband’s motion for an evidentiary hearing before entering the September 25, 2018, DOPO,
Husband’s first assignment of error is moot. See App.R. 12(A)(1)(c).
C.A. No. 29328
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR BY
EXCEEDING ITS JURISDICTION WITH THE FILING OF A “JUDGMENT
ENTRY (POLICE AND FIREMEN’S DISABILITY AND PENSION FUND)”
13
THAT MATERIALLY MODIFIED AND WAS INCONSISTENT WITH THE
PARTIES’ UNAMBIGUOUS AGREEMENT AS REFLECTED IN THEIR
ATTEST[AT]IONS IN OPEN COURT AND THE RESULTING DECREE OF
DIVORCE.
{¶28} In his sole assignment of error arising from C.A. No. 29328, Husband has argued
that the trial court abused its discretion by entering the 1996 Pension Order because it is contrary
to the parties’ intentions, as expressed in the divorce decree.
{¶29} In Kalbaugh I, this Court concluded that instead of appealing the trial court’s
January 19, 2016, entry that ordered the preparation of a DOPO and the subsequent order that
overruled Husband’s objections to that order, Husband should have appealed the 1996 Pension
Order. In reaching this conclusion, it was not apparent to this Court that neither the 1996 Pension
Order nor the divorce decree had been served upon the parties in compliance with Civ.R. 58(B).
This Court did not have the benefit of reviewing the DOPO that was ultimately prepared without
an evidentiary hearing in the trial court, nor could we anticipate the procedural tangle that would
follow once the case continued in the trial court. Finally, the nature of the 1996 Pension Order
was not immediately apparent at that time. With the benefit of a more fully developed record, it
is now apparent to this Court that the 1996 Pension Order was in the nature of a preliminary
QDRO, as the parties acknowledge, and that it had no effect because the law in Ohio did not permit
assignment of public pension benefits by means of a DOPO until 2002.
{¶30} This Court has concluded that the trial court abused its discretion by denying
Husband’s motion for an evidentiary hearing before entering a DOPO. In light of that result, this
Court also concludes that the arguments that Husband has made in support of his assignment of
error in C.A. 29328 would be more appropriately raised during the evidentiary hearing and
ultimately in an appeal, if any, from the trial court’s decision upon the remand of C.A. 29184. For
14
this reason, and given the nature of the 1996 Pension Order that is now apparent from the fully
developed record, we conclude that Husband’s assignment of error in C.A. No. 29328 is premature.
III.
{¶31} The trial court did not have jurisdiction to enter the October 25, 2018, DOPO.
Consequently, Husband’s third assignment of error in the consolidated appeals is sustained, and
the judgment in C.A. No. 29219 is vacated. His fourth and fifth assignments of error in the
consolidated appeals are moot. Husband’s appeal in C.A. 29185 is dismissed because the order
that he attempted to appeal is not a final appealable order. Husband’s second assignment of error
in the consolidated appeals is sustained, and this matter is remanded for an evidentiary hearing.
Husband’s first assignment of error in the consolidated appeals is moot. His assignment of error
in C.A. No. 29328 is premature.
Judgment reversed in part,
vacated in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
15
Costs taxed equally to both parties.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
J. ANTHONY TERILLA, Attorney at Law, for Appellant.
MELISSA GRAHAM-HURD, Attorney at Law, for Appellee.