[Cite as Ware v. Ware, 2014-Ohio-5410.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



KENT WARE                                       JUDGES:
                                                Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellant                     Hon. Sheila G. Farmer, J.
                                                Hon. John W. Wise, J.
-vs-
                                                Case No. 14 CA 28
BARBARA WARE

        Defendant-Appellee                      OPINION




CHARACTER OF PROCEEDING:                     Civil Appeal from the Court of Common
                                             Pleas, Domestic Relations Division, Case
                                             No. 10 DR 554 RPW


JUDGMENT:                                    Affirmed



DATE OF JUDGMENT ENTRY:                       December 4, 2014



APPEARANCES:

For Plaintiff-Appellant                      For Defendant-Appellee

EUGENE R. BUTLER                             PAUL GIORGIANNI
EUGENE R. BUTLER CO. LPA                     GIORGIANNI LAW LLC
145 East Rich Street, Second Floor           1538 Arlington Avenue
Columbus, Ohio 43215                         Columbus, Ohio 43212-2710
Licking County, Case No. 14 CA 28                                                       2

Wise, J.

       {¶1}. Appellant Kent Ware appeals the decision of the Court of Common Pleas,

Domestic Relations Division, Licking County, which issued a nunc pro tunc Qualified

Domestic Relations Order ("QDRO") following his divorce from Appellee Barbara Ware.

The relevant facts leading to this appeal are as follows.

       {¶2}. Appellant and appellee were married on November 19, 1983 in Colorado.

Three children were born of the marriage.

       {¶3}. On April 7, 2010, appellant filed a complaint for divorce in the trial court.

Appellee filed an answer on May 6, 2010.

       {¶4}. Appellant has been a participant in the Ohio Public Employees Retirement

System ("PERS") since his commencement of employment in 1985 with the Ohio

Department of Health. Due to physical injuries, PERS placed appellant on permanent

disability status, subject to annual medical re-evaluation, on November 17, 2011.

       {¶5}. The parties' divorce case proceeded to a trial on June 18, 2012. The

evidence presented included the testimony of appellant and appellee, as well as

pension expert Brian Hogan of QDRO Consultants in Medina, Ohio.

       {¶6}. The trial court issued a final decree of divorce on September 17, 2013.

Among other things, the trial court made orders regarding PERS pension benefits and

appellant's Ohio Deferred Compensation Program account. During the divorce trial, the

parties had stipulated in writing that this deferred compensation account had a value of

$168,189.00 as of December 31, 2011. The decree specifically states: "The defendant

[Appellee Barbara] shall be awarded, free and clear of any further claim of the plaintiff

[Appellant Kent], the Ohio Deferred Compensation account which had an account
Licking County, Case No. 14 CA 28                                                      3


balance of $168,189. Within 60 days, plaintiff's attorney shall prepare and submit to the

Court a qualified order to transfer this account to the defendant." Divorce Decree at

para. 12.

      {¶7}. On October 18, 2013, appellant filed a direct appeal from the divorce

decree. On June 16, 2014, this Court, with one Judge concurring separately, affirmed

the decision of the trial court granting a divorce to the parties. See Ware v. Ware, 5th

Dist. Licking No. 13-CA-91, 2014-Ohio-2606.

      {¶8}. In the meantime, appellant's counsel did not submit a QDRO to the trial

court for approval. Appellee's counsel finally prepared a QDRO that was approved by

the trial court and filed on January 17, 2014. No appeal was taken by either side as to

this first QDRO approval.

      {¶9}. However, on March 20, 2014, appellee's counsel submitted, and the trial

court approved, a nunc pro tunc QDRO, eliminating a portion of one sentence and

effectively allowing the distribution to appellee of the entire deferred compensation

account balance.

      {¶10}. On April 21, 2014, appellant filed a notice of appeal regarding the second

QDRO. He herein raises the following two Assignments of Error:

      {¶11}. “I.   THE TRIAL COURT ERRED IN ISSUING A NUNC PRO TUNC

ENTRY THAT MADE A SUBSTANTIVE CHANGE TO THE PROPERTY DIVISION

ORDERED IN THE FINAL JUDGMENT DECREE OF DIVORCE AND IN THE PRIOR

QDRO.
Licking County, Case No. 14 CA 28                                                          4


       {¶12}. “II. THE TRIAL COURT ERRED IN AWARDING INVESTMENT GAINS

OR LOSSES WHERE THE DECREE DID NOT AWARD INVESTMENT GAINS OR

LOSSES.”

                                               I., II.

       {¶13}. In his First and Second Assignment of Errors, Appellant Kent contends the

trial court erred in issuing the nunc pro tunc QDRO of March 20, 2014, thereby

"awarding" Appellee Barbara any investment gains subsequent to the termination date

of the marriage. We disagree.

       {¶14}. A QDRO is an order that “creates or recognizes the existence of an

alternate payee's right to, or assigns to an alternate payee the right to, receive all or a

portion of the benefits payable with respect to a participant under a plan.” State ex rel.

Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, 922 N.E.2d 214, ¶ 18, citing

the Employee Retirement Income Security Act of 1974, Section 1056(d)(3)(B)(i)(I), Title

29, U.S.Code, and Section 414(p)(1)(A)(i), Title 26, U.S.Code. A QDRO is not an

independent judgment entry of the court, but is rather an enforcement mechanism

pertaining to a trial court's previous judgment entry of divorce or dissolution. See Himes

v. Himes, 5th Dist. Tuscarawas No. 2004AP-02-0009, 2004-Ohio-4666, ¶19. A QDRO is

an unusual court order in that it is ultimately subject to a definitive interpretation by the

plan administrator pursuant to the ERISA statutes. See Hoyt v. Hoyt, 53 Ohio St.3d 177,

180 (1990).

       {¶15}. As an initial matter, we note the Ohio Public Employees Deferred

Compensation Program ("OPEDCP") has purportedly already liquidated the deferred
Licking County, Case No. 14 CA 28                                                          5


compensation account in question and distributed the proceeds to appellee. However,

in the interest of justice, we will proceed to the merits of the present appeal.

       {¶16}. In the case sub judice, the earlier January 17, 2014 QDRO filed in the trial

court provided in pertinent part as follows:

       {¶17}. “6. Amount of Benefit to be Paid to Alternate Payee: The Alternate

Payee [Appellee Barbara] shall be awarded and assigned one hundred percent (100%)

of the Participant's [Appellant Kent's] Total Account Balance accumulated under the

Plan as of June 1, 2012, (or the closest valuation date thereto) 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. Such

Total Account Balance shall include all amounts maintained under all of the various

accounts and/or investment funds established on behalf of the Participant. ***.”

       {¶18}. (Emphasis added).

       {¶19}. On March 20, 2014, the trial court adopted and filed the nunc pro tunc

QDRO, which was identical to the January 17th QDRO, except that the above italicized

section was deleted.1 The second QDRO thus reads in pertinent part as follows:

       {¶20}. “6. Amount of Benefit to be Paid to Alternate Payee: The Alternate

Payee [Appellee Barbara] shall be awarded and assigned one hundred percent (100%)

of the Participant's [Appellant Kent's] Total Account Balance accumulated under the

Plan. Such Total Account Balance shall include all amounts maintained under all of the

various accounts and/or investment funds established on behalf of the Participant. ***.”



1
   Although it is not necessary herein to delve into the issue, appellee maintains that
OPEDCP guidelines do not permit retroactive dividing or segregation of accounts in
response to QDROs.
Licking County, Case No. 14 CA 28                                                       6


      {¶21}. Where an original QDRO varies from the divorce decree and adds

substantive provisions not present in the decree, a nunc pro tunc entry is a proper

method to reflect what the court has ordered. See Patten v. Patten, 4th Dist. Highland

No. 10CA15, 2011-Ohio-4254, ¶ 17. We have similarly recognized that while a trial

court does not have continuing jurisdiction to modify a marital property division incident

to a divorce or dissolution decree, it has the power to clarify and construe its original

property division so as to effectuate its judgment. Flint v. Flint, 5th Dist. Delaware No.

11-CAF-11-102, 2012-Ohio-3379, ¶ 10, citing Gordon v. Gordon (2001), 144 Ohio

App.3d 21, 24, 759 N.E.2d 431. Such a clarification is reviewed under a standard of

abuse of discretion. Id. In order to find an abuse of discretion, we must determine that

the trial court's decision was unreasonable, arbitrary, or unconscionable and not merely

an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450

N.E.2d 1140.

      {¶22}. In the case sub judice, we find the issue before us is simply whether or not

the nunc pro tunc QDRO more accurately functions as the enforcement mechanism of

the terms of the decree. See Himes, supra. As noted in our recitation of facts, the

divorce decree clearly awards appellee the entire deferred compensation account, "free

and clear" of any further claim of appellant. Moreover, the "account" was to be awarded

to appellee via a QDRO, not a particular dollar amount. Admittedly, the decree states

the account "had" a balance of $168,189.00, in reference to the balance as of

December 31, 2011, but this is purely informational; under the decree, the account is

not meant to be divided between the parties, nor is there any indication that appellant is

entitled to keep a remainder of the account or any investment growth.
Licking County, Case No. 14 CA 28                                                         7


       {¶23}. Accordingly, upon review, we are unpersuaded the trial court abused its

discretion in its issuance of the nunc pro tunc QDRO as a means of properly

effectuating its orders regarding the distribution of property in the parties' divorce.

       {¶24}. Appellant's First and Second Assignments of Error are therefore

overruled.

       {¶25}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Licking County, Ohio, is hereby

affirmed.


By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.




JWW/d 1117
Licking County, Case No. 14 CA 28   8
