[Cite as Majeski v. Majeski, 2012-Ohio-731.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

KATHLEEN A. MAJESKI                                    :

        Plaintiff-Appellant                            :        C.A. CASE NO.     24668

v.                                                     :    T.C. NO.     97DR343

MICHAEL C. MAJESKI                                     :    (Civil appeal from Common
                                                             Pleas Court, Domestic Relations)
        Defendant-Appellee                      :

                                                       :

                                               ..........

                                               OPINION

                         Rendered on the        24th   day of     February   , 2012.

                                               ..........

KEITH R. KEARNEY, Atty. Reg. No. 0003191, 2160 Kettering Tower, Dayton, Ohio
45423
      Attorney for Plaintiff-Appellant

KEVIN D. HUGHES, Atty. Reg. No. 0065620, 20 South Main Street, Springboro, Ohio
45066
      Attorney for Defendant-Appellee

                                               ..........

DONOVAN, J.

                {¶ 1} Plaintiff-appellant Kathleen A. Majeski appeals a judgment of the

Montgomery County Court of Common Pleas, Domestic Relations Division, overruling her

objections and adopting the decision of the magistrate dismissing her motion to modify the
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Qualified Domestic Relations Order (QDRO). In her motion to modify, Kathleen sought an

order from the trial court awarding her survivor benefit rights regarding defendant-appellee

Michael C. Majeski’s retirement benefits. In the alternative, Kathleen requested a modified

QDRO awarding her a share of Michael’s retirement benefits in a separate interest QDRO

which would allow Kathleen to receive benefits for the remainder of her lifetime.

              {¶ 2} The magistrate’s decision was filed on January 5, 2011.             The

judgment and entry adopting the decision of the magistrate was filed by the trial court on

May 18, 2011. On June 2, 2011, Kathleen filed a timely notice of appeal with this Court.

                                              I

              {¶ 3} Kathleen and Michael were married in Carlyle, Illinois, on October

18, 1966. Although two children were born during the marriage, at the time of the parties’

divorce, both of the children were no longer minors. We note that both Kathleen and

Michael were represented by private counsel throughout the pendency of their divorce. The

parties were divorced by way of a Final Judgment and Decree of Divorce filed on November

12, 1997. In relevant part, the divorce decree provided that Kathleen would be entitled to

50% of the accumulated amount of benefits in Michael’s General Motors Retirement

account from the date of the marriage, October 18, 1966, through October 17, 1997, by way

of a QDRO.1

              {¶ 4} On January 14, 1998, a stipulated QDRO was filed by the parties.


          1
          Michael began working at General Motors in April of 1968. At the time of
  the parties’ divorce, Michael was still working at General Motors. Michael did
  not retire until December of 2004, at which point his retirement benefits
  commenced, and both he and Kathleen began collecting their respective shares
  of the retirement account.
                                                                                          3

The QDRO provided Kathleen with her marital share of Michael’s retirement benefits using

a coverture fraction. The QDRO also stated that Kathleen was entitled to pre-retirement

survivorship benefits if Michael were to die before he retired and the benefits commenced.

We note that Michael married another woman following his divorce from Kathleen. Upon

his retirement from General Motors in 2004, Michael designated his current wife to receive

his post-retirement survivor benefit.

               {¶ 5} On November 15, 2010, Kathleen filed her motion requesting that a

modified QDRO be issued which would specifically provide her with post-retirement

survivorship benefits from Michael’s retirement fund. Following a hearing on December

21, 2010, the magistrate issued a decision dismissing Kathleen’s motion, and ordering that

the original QDRO filed by the parties remain in effect. After objections were filed by

Kathleen, the magistrate’s decision was adopted by the trial court in a decision issued on

May 18, 2011. The trial court held that the language in the original QDRO clearly and

unambiguously stated that Kathleen was entitled to pre-retirement survivor benefits, but it

did not address post-retirement survivor benefits. The trial court also found that the final

divorce decree did not contain language granting Kathleen post-retirement survivor benefits.

 Thus, the trial court agreed with the magistrate and held that Kathleen was not entitled to

post-retirement survivor benefits.

               {¶ 6} It is from this judgment that Kathleen now appeals.

                                             II

               {¶ 7} Kathleen’s sole assignment of error is as follows:

               {¶ 8} “THE TRIAL COURT ERRED BY DISMISSING APPELLANT’S
                                                                                             4

MOTION TO MODIFY THE QUALIFIED DOMESTIC RELATIONS ORDER (QDRO)

AND AWARD APPELLANT THE SURVIVOR BENEFIT RIGHTS CONCERNING

APPELLEE’S RETIREMENT BENEFITS, OR IN THE ALTERNATIVE, MODIFY THE

QDRO TO AWARD APPELLANT HER SHARE OF THE APPELLEE’S RETIREMENT

BENEFITS IN A SEPARATE INTEREST QDRO SO THAT SHE CAN RECEIVE HER

BENEFITS FOR THE REMAINDER OF HER LIFETIME.”

               {¶ 9} In her only assignment or error, Kathleen contends that the trial court

erred when it found that the clear and unambiguous language in the QDRO and final divorce

decree did not entitle her to post-retirement survivor benefits from Michael’s retirement

fund. Specifically, she argues that the language of the QDRO is ambiguous regarding her

entitlement to a post-retirement survivor benefit. Further, Kathleen asserts that the intent of

the parties when the QDRO and final divorce decree were drafted was to entitle her to

post-retirement survivor benefits.

               {¶ 10} It is well established that “pension or retirement benefits accumulated

during the course of the marriage are marital assets subject to property division in a divorce

action.” Erb v. Erb, 75 Ohio St.3d 18, 20, 661 N.E.2d 175 (1996). Regarding the division

of pension or retirement benefits, the “trial court must have the flexibility to make an

equitable decision based upon the circumstances of the case, the status of the parties, the

nature, terms, and conditions of the pension plan, and the reasonableness of the result.” Hoyt

v. Hoyt, 53 Ohio St.3d 177, 180, 559 N.E.2d 1292 (1990). A trial court “should attempt to

preserve the pension or retirement benefit asset in order that each party can procure the most

benefit,” and that a court “should attempt to disentangle the parties’ economic partnership so
                                                                                                                                         5

as to create a conclusion and finality to their marriage.” Id.

                      {¶ 11} The trial court has broad discretion to divide property in domestic

relations cases, and its decision will not be disturbed on appeal absent unreasonable,

arbitrary, or unconscionable conduct. Middendorf v. Middendorf, 82 Ohio St.3d 397, 401,

696 N.E.2d 575 (1998), citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d

597 (1989); Martin v. Martin, 18 Ohio St.3d 292, 294-295, 480 N.E.2d 1112 (1985);

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Berish v.

Berish, 69 Ohio St.2d 318, 319, 432 N.E.2d 183 (1982).                                                      “If there is some

competent, credible evidence to support the trial court’s decision, there is no abuse

of discretion.” Middendorf, 82 Ohio St.3d at 401, 696 N.E.2d 575.

                      {¶ 12} Generally, we have held that where the pension benefits were vested

but unmatured at the time of divorce, it may not be possible or equitable to effect a final

division of retirement benefits. Layne v. Layne (1992), 83 Ohio App.3d 559, 615 N.E.2d 332

(2d Dist. Champaign 1992). In this situation, the Ohio Supreme Court held in Hoyt that a

trial court could divide retirement benefits by deferred distribution through a Qualified

Domestic Relations Order (QDRO). 53 Ohio St.3d 177, 559 N.E.2d 1292. A QDRO is merely an

order in aid of execution on the property division ordered in the divorce or dissolution decree. So long as the QDRO is consistent

with the decree, it does not constitute a modification, which R.C. 3109.171(I) prohibits, and the court does not lack jurisdiction to issue

it. Tarbert v. Tarbert, 2d Dist. Clark No. 96-CA-0036, 1996 WL 555039 (Sept. 27, 1996).

                      {¶ 13} At the time the decree of divorce was filed in this case, both

parties were represented by counsel, and had reached agreement about the terms

in the decree. Agreements incorporated into divorce decrees are contracts and
                                                                                          6

are subject to the rules of construction governing other contracts.               Pavlich v.

Pavlich, 9th Dist. Summit No. 22357, 2005-Ohio-3305. Typically, we review

contractual questions de novo, except where the contract is ambiguous. Dzina v.

Dzina, 8th Dist. Cuyahoga No. 83148, 2004-Ohio-4497. The trial court has broad

discretion to clarify ambiguities, but whether a contract is ambiguous is a decision

that is made as a matter or law. Pavlich, 2005-Ohio-3305. If an ambiguity does not

exist, the trial court “may not construe, clarify or interpret the parties’ agreement to

mean anything outside of that which it specifically states.” Id. In the instant case,

the final divorce decree and the QDRO do not contain inconsistent terms and are

not ambiguous.

                {¶ 14} The stipulated QDRO filed by the parties on January 14, 1998, states

in pertinent part:

                       {¶ 15} If the Participant, “defendant,” dies prior to the

        commencement of benefits, the alternate Payee, “plaintiff,” shall be a

        surviving spouse under IRC Sections 401(a) (11) and 417 and shall be

        entitled to pre-retirement survivor annuity or other survivor annuity provided

        to the surviving spouse under the plan, but only to the extent of the benefit

        described above, and only if the Plan so provides. Because husband and

        wife were married for at least one year, wife shall be treated as meeting the

        requirements of IRS Section 417(d) for purposes of determining survivor

        benefits.

        {¶ 16} The plain language of the QDRO clearly provides Kathleen with

pre-retirement survivor benefits should Michael have died before his retirement benefits
                                                                                       7

commenced.      However, there is no mention of post-retirement survivor benefits for

Kathleen in neither the QDRO nor the final divorce decree. The parties’ divorce decree

specifically states that Kathleen was awarded a one-half (50%) interest in the retirement

benefits earned by Michael during the marriage of the parties. The QDRO provides

Kathleen with 50% division of the marital portion of Michael’s retirement benefits to

be determined using a coverture fraction.        Neither the divorce decree nor the

QDRO provide that Kathleen is entitled to post-retirement survivorship benefits.

Since the divorce decree and the QDRO contain no mention of post-retirement

survivorship benefits, we must assume that the parties chose not to include them.

Schetter v. Schetter, 2d Dist. Clark No. 2010 CA 35, 2011-Ohio-246.

       {¶ 17}    While she acknowledges that neither the divorce decree nor the

QDRO contain any mention of post-retirement survivor benefits, Kathleen asserts

that it was the intent of the parties to include such terms in the decree and QDRO

based on testimony given at the parties’ divorce hearing on October 17, 1997.

Accordingly, Kathleen directs us to the following exchange between the trial court

and counsel:

                {¶ 18} The Court: Folks, I can just tell you, I will never

                ever approve non-modifiable spousal support unless

                somebody is so well-heeled with money, and it’s some

                sort of a – you have survivor benefits on the QDRO?

                {¶ 19} Counsel for Kathleen: Yes.

       {¶ 20} In light of this exchange, Kathleen asserts that it was the intent of the

parties at the time that the QDRO was drafted to include language awarding her
                                                                                  8

post-retirement survivor benefits.     Upon review of the entire transcript of the

divorce hearing, however, it is clear that the parties and the trial court were

discussing survivor benefits in relation to whether Michael would retire early from

General Motors or pass away before his retirement benefits were fully vested,

thereby depriving Kathleen of her interest in the benefits. In the context of the

entire exchange, the parties were discussing the inclusion of a pre-retirement

survivor benefits clause in the QDRO in order to protect Kathleen’s interest in

Michael’s retirement benefits should he retire early or die before retiring.    The

QDRO stipulated to by both parties clearly reflects their intent to provide Kathleen

with pre-retirement survivor benefits, and said language was included in the QDRO.

 There was no discussion during the divorce hearing, however, regarding the

inclusion of post-retirement survivor benefits.

       {¶ 21} We note that during oral arguments, Kathleen’s appellate counsel

heavily relied upon our recent decision in Plummer v. Plummer, 2d Dist.

Montgomery No. 23743, 2010-Ohio-3450, in support of her argument that the trial

court erred by refusing to modify the QDRO to include post-retirement survivor

benefits. In Plummer, we held that where the QDRO approved by the trial court

was inconsistent with the express terms of the final divorce decree between the

parties, the QDRO was defective and subject to modification by the court in order to

conform with the divorce decree. Id.      The divorce decree in Plummer explicitly

stated that the ex-wife was entitled to “receive 50% of the value of [ex-husband’s]

interest in his GM Pension fund under the Survivor Annuity Benefit Pay-Out as of

the date of the filing of this final judgment and decree of divorce ***.” We also
                                                                                    9

found that early retirement benefits are a function of an employee’s participation in

a retirement plan. Id. Unless specifically excluded by the divorce decree, early

retirement benefits are properly divisible as marital property when they were earned

during the marriage. Bagley v. Bagley, 181 Ohio App.3d 141, 2009-Ohio-688, 908

N.E.2d 469, ¶ 27 (2d Dist. Greene).

       {¶ 22} Clearly, Plummer is distinguishable from the facts in the instant case.

Whereas the final divorce decree and QDRO filed in Plummer were found to be

inconsistent with one another, the divorce decree and QDRO in the instant case are

not. Moreover, early retirement benefits were not at issue here as they were in

Plummer. Unlike the divorce decree in Plummer, the decree in this case contained

no mention of survivor benefits or Kathleen’s entitlement to them. The only issue

before the trial court was whether Kathleen was entitled to post-retirement survivor

benefits when the parties failed to include language authorizing that benefit in the

divorce decree or the QDRO. Simply put, Plummer is inapplicable to the facts of

this case.

       {¶ 23} Upon review, we conclude that the language of the QDRO is clear and

unambiguous.     The language of the QDRO unequivocally states that Kathleen

would be entitled to pre-retirement survivor benefits in the event Michael died or

retired early before his retirement benefits were fully vested and matured.

Conversely, no provision was included in either the final divorce decree or the

QDRO which awarded Kathleen post-retirement survivor benefits.                Neither

document addresses post-retirement survivor benefits at all. Lastly, the transcript

of the divorce hearing fails to support Kathleen’s assertion that the parties intended
                                                                         10

to include post-retirement survivor benefits in the QDRO.

       {¶ 24} Kathleen’s sole assignment of error is overruled.

                                           III

       {¶ 25} Kathleen’s sole assignment of error having been overruled, the

judgment of the trial court is affirmed.

                                      ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Keith R. Kearney
Kevin D. Hughes
Hon. Timothy D. Wood
