Bagley v. Bagley

{¶ 35} I write separately merely to decry the tendency of Ohio courts, including, alas, this one, to jurisdictionalize error.

{¶ 36} The subject-matter jurisdiction of Ohio courts of common pleas, set forth in R.C. 3105.011, is very broad:

{¶ 37} "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."

{¶ 38} 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):

{¶ 39} "A division or disbursement of property or a distributive award made under this section is not subject to future modification by the court."

{¶ 40} 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.

{¶ 41} Unfortunately, this is not a case of first impression in our court. In Hale v. Hale, Montgomery App. No. 21402, 2007-Ohio-867, 2007 WL 625813, 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-matter jurisdiction that has been conferred upon it to deal with domestic-relations controversies. Under the principle of stare decisis, I am not persuaded that the majority is wrong in deciding to follow the holding in Hale v.Hale, so I concur in the judgment.

{¶ 42} 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 affected 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.

{¶ 43} A QDRO ought to be considered as just one example of an order in aid of execution of an underlying judgment, which, like any order "affect[ing] a substantial right made * * * upon summary application in an action after judgment,"¹ 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, if erroneous, is probably because of the historical fact that awards of alimony, later called spousal support, were modifiable only 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" in 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.

{¶ 44} 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. Miller v. Keefe (1958),168 Ohio St. 234, 6 O.O.2d 18, 152 N.E.2d 113; In re Protest ofBrooks, 155 Ohio App.3d 384, 2003-Ohio-6525, 801 N.E.2d 514.

¹ R.C. 2505.02(B)(2).