[Cite as Reeves v. Reeves, 2016-Ohio-4590.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




JOSEPH P. REEVES,                                :

        Plaintiff-Appellant,                     :     CASE NO. CA2015-11-092

                                                 :             OPINION
    - vs -                                                      6/27/2016
                                                 :

VALERIE A. REEVES,                               :

        Defendant-Appellee.                      :



             APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          DOMESTIC RELATIONS DIVISION
                            Case No. 2013 DRA 00306



Michael A. Kennedy, 70 North Riverside Drive, Batavia, Ohio 45103, for plaintiff-appellant

Aimee L. Keller, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202, for defendant-
appellee



        PIPER, P.J.

        {¶ 1} Plaintiff-appellant, Joseph Reeves, appeals a decision of the Clermont County

Court of Common Pleas, Domestic Relations Division, ordering a division of property after

Joseph divorced defendant-appellee, Valerie Reeves.

        {¶ 2} Joseph and Valerie were married in 1997, separated in 2012, and later divorced

in 2013. One of the contested issues that arose from the divorce was specific to the division
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of marital property, including Joseph's retirement account. Joseph, who is a member of the

Ohio Public Employees Retirement System ("OPERS"), began receiving full disability benefits

from OPERS in 2005 due to an issue with his hip. Joseph continued to receive the disability

payments since 2005, and also works approximately 16 hours a week.

       {¶ 3} As part of the separation of property after the divorce, the trial court awarded

Valerie 50 percent of the marital portion of Joseph's retirement benefits. The court also

ordered that payment to Valerie would commence when Joseph begins to receive retirement

benefits or when he has 30 years of service credit toward his retirement, whichever occurs

first. The court noted that up until Joseph's earliest retirement date, the disability payments

would be considered income replacement, and thus not subject to division.

       {¶ 4} The parties stipulated to the marital value of Joseph's OPERS account, and

Valerie's attorney drafted a Division of Property Order ("DOPO"). The parties also stipulated

that the DOPO comported with the terms of the trial court's divorce decree. During a hearing

at which the trial court was prepared to accept the DOPO, Joseph argued that Valerie should

not receive any portion of his OPERS retirement because he was collecting disability, which

the court had determined was income replacement not subject to marital division.

       {¶ 5} After considering arguments on the issue, the trial court determined that its prior

ruling was proper and remained the order. The trial court then reiterated that Valerie would

begin receiving her portion of the marital retirement account value once Joseph was entitled

to receive retirement benefits in 2021. Joseph now appeals the trial court's decision, raising

the following assignment of error.

       {¶ 6} THE TRIAL COURT ERRED IN ISSUING A DIVISION OF PROPERTY ORDER

(DOPO) DIVIDING THE APPELLANT'S DISABILITY BENEFIT.

       {¶ 7} Joseph argues in his assignment of error that the trial court was not permitted

to divide his disability benefit because it is income replacement rather than marital property.
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       {¶ 8} Despite Joseph's argument, we find that this court cannot proceed to

judgement because we lack jurisdiction where the notice of appeal is untimely. Given the

final nature of the trial court's divorce decree dividing Joseph's retirement account, the proper

time to challenge that decision was on a direct appeal from the trial court's divorce decree.

Given that Joseph has waited over a year past the date of the divorce decree order, this

appeal is untimely.

       {¶ 9} Despite the seemingly interlocutory nature of a divorce decree that contains an

order to execute a DOPO in the future, the Ohio Supreme Court has determined that a

divorce decree that provides for the issuance of a Qualified Domestic Relations Order

("QDRO") is a final, appealable order, even before the QDRO is issued. Wilson v. Wilson,

116 Ohio St.3d 268, 2007-Ohio-6056, ¶ 20. The Wilson court concluded that the purpose of

the QDRO is only to execute the orders in the decree, but that the decree itself is the final

order. Id. While the issue in the case at bar is the future execution of a DOPO, rather than a

QDRO, the reasoning remains the same and is not changed merely because the DOPO is

specific to a state pension where the QDRO divides private pensions.

       {¶ 10} The trial court's order that Joseph and Valerie will share in Joseph's retirement

account is final, and the DOPO merely executes that order. We recognize that other courts

have found to the contrary and dismissed appeals regarding the issuance of a DOPO before

the DOPO has been executed. See Green v. Green, 10th Dist. Franklin No. 04AP-61, 2005-

Ohio-851; and Forman v. Forman, 3rd Dist. Marion No. 9-05-14, 2006-Ohio-11. However,

these cases were decided before Wilson, and we see no reason that the analysis provided in

Wilson specific to a QDRO is not directly applicable to a DOPO.

       {¶ 11} According to Civ.R. 75(F), a divorce decree is not final until it, as applicable

here, divides the marital property. A divorce decree that fails to resolve the issues set forth in

Civ.R. 75(F), such as property division or spousal/child support issues, is not a final order.
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Simon v. Simon, 9th Dist. Summit No. 25933, 2012-Ohio-3443, ¶ 11. If, however, the decree

resolves "all the outstanding issues between the parties," then it is a final appealable order.

Merkle v. Merkle, 5th Dist. Licking No. 13-CA-31, 2014-Ohio-81, ¶ 14. App.R. 4(A)(1) sets

forth that an appeal from a final order must be made within 30 days of the order's date.

Otherwise, an appellate court lacks jurisdiction to review an untimely appeal. Id.; Zorn v.

Zorn, 9th Dist. Medina No. 07CA0077-M, 2008-Ohio-2391 (dismissing for lack of jurisdiction

where wife appealed issuance of QDRO, rather than appealing the final divorce decree within

30 days of that final order).

       {¶ 12} Once the trial court made its decision dividing Joseph's retirement account

within the final divorce decree, Joseph was required to perfect his appeal within 30 days. He

did not. Instead, Joseph waited until the trial court held a hearing in 2015 to accept the

DOPO written by Valerie's attorney. At that hearing, Joseph raised the argument regarding

the retirement distribution, and claims now that the trial court only made an unequivocal

decision on the retirement issue after that recent hearing. We disagree.

       {¶ 13} The record is clear that the trial court issued its divorce decree wherein it

separated the marital property, including the parties' retirement accounts. The court noted

that Joseph participated in OPERS and had been on disability since 2005. The trial court

then determined that the disability payment Joseph receives is not a marital asset. The trial

court then went on to state, "[Valerie] is, however, entitled to one half of the marital portion of

[Joseph's] retirement benefit, as set forth below." The trial court then established the specific

details of its division as follows, "Payment to [Valerie] shall commence when [Joseph] begins

to receive retirement benefits or when he has 30 years of service credit toward his retirement,

whichever first occurs. Any disability payment received prior to [Joseph's] earliest retirement

date is in the nature of income replacement and not subject to division."

       {¶ 14} Joseph argues that the divorce decree was not final because it did not
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"unequivocally" order division of Joseph's disability benefit. However, the trial court's divorce

decree was clear and final in that it (1) ordered Valerie to receive one-half of the marital

portion of Joseph's retirement account, and (2) ordered that Valerie would receive payments

for her share once Joseph reached 30 years of service credit or decided to retire—whichever

came first. The trial court's order also took into consideration that Joseph's election of

disability payments up until the time of his earning 30 years' service credits or his voluntary

retirement would continue to be nonmarital property because such was income replacement.

Having recognized that issue clearly, the trial court further noted that once Joseph earned 30

years of service credit, the disability payments would convert into retirement for the purposes

of property division. If Joseph wanted to dispute any aspect of the trial court's final order, the

proper time to do so was within 30 days of the trial court's final divorce decree. App.R.

4(A)(1).

       {¶ 15} Given that Joseph did not appeal the trial court's final divorce decree within the

proper timeframe, his appeal is now untimely, and this court lacks jurisdiction over the matter.

We therefore dismiss this appeal for lack of a timely notice of appeal.


       S. POWELL and HENDRICKSON, JJ., concur.




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