Lamb v. Lamb

[Cite as Lamb v. Lamb, 2011-Ohio-2970.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
JANE K. LAMB (nka Dickard) :
: Appellate Case Nos. 24076
Plaintiff-Appellee : Appellate Case Nos. 23538
:
v. : Trial Court Case No. 92-DM-1074
:
RICHARD E. LAMB : (Civil Appeal from Common Pleas
: (Court, Domestic Relations Division)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of June, 2011.
...........
DAVID M. McNAMEE, Atty. Reg. #0068582, 42 Woodcroft Trail, Suite D, Beavercreek,
Ohio 45430
Attorney for Plaintiff-Appellee
ELIZABETH N. GABA, Atty. Reg. #0063152, 1231 East Broad Street, Columbus, Ohio
43205
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} This case concerns the validity and enforceability of the 1992 decree dissolving
Richard Lamb’s marriage to Jane Lamb. Pursuant to the separation agreement incorporated
into the dissolution decree, Jane sought a Qualified Domestic Relations Order (QDRO)
allocating to her a portion of Richard’s pension benefits. Richard contends that the decree is
2
invalid because the decree contains only a rubber stamp of the judge’s signature, which this
Court, and others, has held is improper.
{¶ 2} The Montgomery County Domestic Relations Court would not allow Richard
to collaterally attack the decree now, 18 years after it was entered. We agree with the lower
court’s decision and affirm its judgment.
1. Case History
{¶ 3} In December 1992, after a 23-year marriage, Richard and Jane were divorced.
Incorporated into the dissolution decree was their separation agreement, which included a
provision dividing Richard’s retirement benefits:
{¶ 4} “10. Pensions; Divided Upon Distribution. At the present time, the Husband is
the beneficial owner of vested, non-contingent pension rights in the following pension plan:
Federal Government. * * *
{¶ 5} “* * * The parties agree, and the Court may order, that Fiduciary shall pay to
Wife a specified portion, namely 50% percent [sic], of any and all payments made on account
of Husband’s interest in said Plan, whether in installments or in gross * * *.”
{¶ 6} The dissolution decree was initialed by a magistrate and rubber stamped with
the domestic relations court judge’s signature.
{¶ 7} In 2006, a year almost to the day before Richard retired in 2007, Jane filed a
motion asking the court to determine her portion of Richard’s pension benefits. In 2008, a
magistrate made a determination and ordered Jane to draft a QDRO accordingly.1 Richard
1
Although the separation agreement states that Jane is to receive a straight 50%, Jane conceded at a hearing that her portion should
be calculated using a coverture fraction, here, 50% of Richard’s marital years of service divided by his total years of service.
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objected. The domestic relations court overruled his objections and adopted the magistrate’s
decision. Richard appealed to this Court. We dismissed the appeal for lack of a final
appealable order, finding that the order contemplated a calculation of Jane’s benefits that had
accrued since Richard retired. On remand, the magistrate determined the amount of accrued
benefits Richard owed Jane. Richard objected.
{¶ 8} In May 2009, in a motion to vacate the decree, Richard raised the issue of the
decree’s validity for the first time. The following month, the domestic relations court entered
the QDRO filed by Jane. Richard appealed the QDRO, but a few months later, he moved this
Court to stay the appeal and temporarily remand the case to the domestic relations court so
that it could decide his motion to vacate. In September 2009, we sustained the motion,
suspending the appeal and remanding for the limited purpose of ruling on Richard’s motion to
vacate. In May 2010, the domestic relations court concluded that the decree is valid and
enforceable.
{¶ 9} Richard appealed. We lifted the stay in the first appeal and consolidated the
two appeals, which are now before us.
2. The Decree is Valid and Enforceable
{¶ 10} Richard assigns three errors to the lower court. In the first assignment, he
argues that the court erred by concluding that the decree was valid and enforceable despite
being signed with a rubber-stamp.2 Richard argues in the second assignment that the court
2
“The trial court erred to the prejudice of Appellant in finding that the Dissolution Decree was valid and enforceable because a
judgment entry that bears a rubber-stamp in lieu of the judge’s signature is not a final appealable order.”
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erred by entering the QDRO because he never agreed to the retirement-benefits provision.3
And in the third assignment of error Richard argues that the QDRO was entered in error also
because Jane’s claim is barred by the equitable defenses of laches, estoppel, and waiver.4
{¶ 11} Civil Rule 58(A), which concerns the entry of judgments, says that, “upon a
decision announced, * * * the court shall promptly cause the judgment to be prepared and, the
court having signed it, the clerk shall thereupon enter it upon the journal.” In Platt v. Lander
(May 7, 1991), Montgomery App. No. 12371, we held that a rubber stamp of a judge’s
signature does not satisfy this rule’s signature requirement. Several other Ohio appellate courts
have held the same. See, e.g., Flores v. Porter, Richland App. No. 2006-CA-42,
2007-Ohio-481, at ¶14 (“[T]he trial judge’s signature was rubber-stamped on the judgment
entry. It therefore does not comply with Rule 58.”); In re Mitchell (1994), 93 Ohio App.3d
153, 154 (“This court will not accept a rubber stamp in lieu of a judge's signature. Civ.R.
58(A) clearly mandates that once a decision has been announced, the court shall cause the
judgment to be prepared and sign the judgment.”); Rescue Temple Church of God v. Jones
(July 1, 1992), Summit App. No. 15412 (“The rubber-stamped facsimile of a judge’s signature
does not satisfy Civil Rule 58.”).
{¶ 12} This rule is not disputed here. What is disputed is the legal effect that such a
signature has on the status of a judgment, or in this case decree, to which it is affixed. Richard
asserts that it rendered the divorce decree not final. Therefore, he contends, the decree is void.
3
“The trial court erred to the prejudice of Appellant by finding that Appellee was entitled to any of Appellant’s retirement because
there was no meeting of the minds regarding this provision.”
4
“The trial court erred to the prejudice of Appellant by not finding that Appellee’s claims were barred by the doctrines of laches
and/or estoppel and/or waiver.”
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Richard cites no authority nor offers argument to support his assertion that the failure to
comply with Civil Rule 58 means the decree is void. “[T]he lack of a signature on a judgment
does not constitute a jurisdictional defect.” Brewer v. Gansheimer (Oct. 5, 2001), Ashtabula
App. No. 2001-A-0045. Rather, “[it] is an irregularity or defect which has no effect upon the
jurisdiction of the trial court.” Id., citing Foglio v. Alvis (1957), 75 Ohio L.Abs. 228. There are
but two reasons that a judgment is void: “[the judgment] has been imposed by a court that
lacks subject-matter jurisdiction over the case or the authority to act.” State v. Simpkins, 117
Ohio St.3d 420, 2008-Ohio-1197, at ¶12 (Citations omitted.). Plainly, the domestic relations
court had jurisdiction over Richard and Jane’s divorce action and had the authority to enter the
divorce decree.
{¶ 13} In response to Platt’s holding, Richard contends that he could not have directly
appealed the decree because it is not a final, appealable order. See In re M.W.R., Butler App.
Nos. CA2007-04-105, CA2007-04-106, 2007-Ohio-6169, at ¶27 (“It is well-established that a
judgment entry that is not signed by a trial judge but that bears a rubber stamp in lieu of the
judge’s signature is not a final appealable order and is thus invalid for appellate purposes.”).
However, as this court said in Platt “* * * we view the final order to be voidable and not void.
The appellant having failed to appeal from the order * * * vacating the judgment, the order is
final and no longer reviewable by us on direct appeal.” Platt, supra at pg. 2. Thus, Platt stands
for the proposition that the voidable rubber-stamped order becomes final when no appeal is
taken. Nevertheless, whether or not Richard could have directly appealed the decree, he did
not even try. He is now estopped from challenging the validity of the decree. “‘[E]stoppel’ is a
bar that precludes a person from denying a fact that has become settled by an act of the person
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himself. Courts do not need to find that a person had any scienter before applying estoppel.
Therefore, estoppel applies when a party acts inconsistent with a claimed right, regardless of
whether the person is knowingly acting inconsistent with that right.” Cornerstone Premium
Motors, Inc. v. Mosolovich, Columbiana App. No. 05 CO 48, 2006-Ohio-3523, at ¶22
(Internal citations omitted.). The lower court here got it exactly right: “If Richard wanted to
attack the alleged procedural flaws in the Dissolution decree the proper avenue would have
been a direct appeal. He should not now be allowed a collateral attack some 18 years after the
fact. If Richard’s testimony that he first knew of the retirement provision was in 1995 is to be
believed he should have come to the court for relief then. He did not. If Richard’s testimony
that he first knew of the retirement provision was in 2005 is to be believed he should have
come to the court for relief then. He did not.” May 3, 2010 Decision and Order, p.5.
{¶ 14} The first assignment of error is overruled.
{¶ 15} The second assignment of error is also overruled. Since Richard may not
challenge the decree, the question of whether he agreed to divide his pension benefits is moot.
3. Equity Does Not Bar Jane from Receiving Part of Richard’s Pension
{¶ 16} In the third assignment of error, Richard contends that Jane should be barred
from receiving a portion of his retirement benefits on equitable grounds of laches, waiver, and
estoppel because she waited 15 years before asking a court for a QDRO. We disagree.
Paragraph 10 of the incorporated separation agreement (quoted above) clearly divides
Richard’s retirement benefits. Richard began receiving retirement benefits when he retired in
2007. Almost a year to the day before he retired, Jane filed the motion that lead to the present
appeal, which, in essence, asked the court for a QDRO. With this motion, Jane was merely
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asking–well in advance–for an order implementing a provision of the decree. See State ex rel.
Sullivan v. Ramsey, 124 Ohio St. 3d 355, 2010-Ohio-252, at ¶19 (saying that “[a] QDRO
merely implements the divorce decree”) (Citation omitted.). It was not Jane who delayed but
Richard. “[E]quity will not aid those who ‘slumber on their rights,’ or who unreasonably delay
the assertion of a right.” Murry v. Watkins, Stark App. Nos. 2004CA136 and 2004CA139,
2004-Ohio-7053, at ¶23, citing McPherson v. McPherson (1950), 153 Ohio St. 82, 91.
{¶ 17} The third assignment of error is overruled.
{¶ 18} The judgment of the trial court is affirmed.
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FAIN and DONOVAN, JJ, concur.
Copies mailed to:
David M. McNamee
Elizabeth N. Gaba
Hon. Denise L. Cross