[Cite as Kalbaugh v. Kalbaugh, 2017-Ohio-4272.]


STATE OF OHIO                   )                      IN THE COURT OF APPEALS
                                )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

DEBORAH KALBAUGH                                       C.A. No.     28282

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
WILLIAM KALBAUGH                                       COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   DR-1994-10-2283

                                DECISION AND JOURNAL ENTRY

Dated: June 14, 2017



        TEODOSIO, Judge.

        {¶1}    Appellant, William H. Kalbaugh, appeals from the judgment of the Summit

County Court of Common Pleas Domestic Relations Division entered on June 3, 2016, ruling on

objections to the magistrate’s decision of January 19, 2016. We affirm.

                                                  I.

        {¶2}    On November 16, 1995, Mr. Kalbaugh and Deborah L. Kalbaugh entered into a

divorce decree, which, in pertinent part, provided for the equal division of Mr. Kalbaugh’s

pension plan: the Police and Fireman’s Disability and Pension Fund of Ohio. On August 26,

1996, the trial court issued a judgment entry ordering the division of the pension fund utilizing a

traditional coverture fraction based upon the fund’s value at retirement. The entry was signed

and approved by the attorney for Ms. Kalbaugh, while the signature line for Mr. Kalbaugh’s

attorney states: “Seen, but not approved.”
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       {¶3}    In June 2015, Ms. Kalbaugh filed a motion to enforce the decree as to the pension

fund and requested a division of property order, and in August 2015 Mr. Kalbaugh filed a motion

to dismiss the motion to enforce. On January 19, 2016, a magistrate’s decision granted Ms.

Kalbaugh’s motion to enforce and ordered the parties to submit a division of property order

based upon the terms of the August 1996 judgment entry. Mr. Kalbaugh filed his objections to

the magistrate’s decision, and on June 3, 2016, the trial court issued a judgment entry overruling

his objections and adopting the magistrate’s decision. This appeal followed.

                                               II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR IN
       ADOPTING THE MAGISTRATE’S DECISION THAT WAS IMPROPERLY
       BASED ON A VOID AND UNENFORCEABLE JUDGMENT ENTRY THAT
       THE TRIAL COURT HAD NO JURISDICTION TO ISSUE, RATHER THAN
       ON THE PARTIES’ AGREED DIVORCE DECREE.

       {¶4}    Mr. Kalbaugh argues that the trial court erred in adopting a magistrate’s decision

that divided his pension benefits pursuant to a void judgment entry that impermissibly modified

the property division as agreed upon in the divorce decree. We disagree.

       {¶5}    Pension benefits accumulated during marriage are properly considered marital

assets and are subject to property division in a divorce settlement. Erb v. Erb, 75 Ohio St.3d 18,

20 (1996). “A trial court is without authority to modify a property division in a separation

agreement which has been incorporated into a dissolution of marriage decree.” Bond v. Bond, 69

Ohio App.3d 225, 227 (9th Dist.1990). “We recognize that a court has no jurisdiction to modify

an order dividing the marital property.” Sullivan v. Hallagan, 9th Dist. Medina Nos. 2282-M,

2322-M, 1995 WL 39408, *4 (Feb. 1, 1995). However, “[w]here there is good faith confusion

over the requirements of the dissolution decree, a court has the power to enforce its decree, to
                                                 3


hear the matter, clarify the confusion, and resolve the dispute.” Bond at 228. “In order to

interpret a provision in a separation agreement, the trial court must first correctly determine that

the provision is ambiguous.” George v. George, 9th Dist. Summit No. 18866, 1998 WL 663221,

*3 (Sept. 23, 1998). Where a clause in the divorce decree is ambiguous, a court “has broad

discretion in clarifying ambiguous language by considering not only the intent of the parties but

the equities involved.” Bond at 228.

       {¶6}    The primary question in this case is whether the trial court’s order of August 26,

1996, impermissibly modified the property division as set forth in the divorce decree entered on

November 16, 1995. However, before engaging in that analysis, we must determine whether this

court may consider the merits of that argument by addressing the preliminary issue of the

jurisdiction of the trial court to enter the August 1996 order. Mr. Kalbaugh asks this Court to

declare the August 1996 order void and unenforceable because the trial court was without

jurisdiction to enter the order. Mr. Kalbaugh further argues that because the August 1996 order

was entered without jurisdiction, it may be challenged at any time.

       {¶7}    The Supreme Court of Ohio has defined “jurisdiction” as the courts’ statutory or

constitutional power to adjudicate a case. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980,

¶ 11. “Jurisdiction” includes both “jurisdiction over the subject matter and over the person.” Id.

“Because subject-matter jurisdiction goes to the power of the court to adjudicate the merits of a

case, it can never be waived and may be challenged at any time.” Id. It is a condition precedent

to the court’s ability to hear a case, and if a court acts without subject matter jurisdiction or

personal jurisdiction, then any proclamation by that court is void.          Id.   “‘Subject-matter

jurisdiction focuses on the court as a forum and on the case as one of a class of cases, not on the

particular facts of a case or the particular tribunal that hears the case.’” Children's Hosp. v.
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Paluch, 9th Dist. Summit No. 26189, 2012–Ohio–4137, ¶ 30, quoting State v. Swiger, 125 Ohio

App.3d 456, 462 (9th Dist.1998).

       {¶8}    The term “jurisdiction” is also used to refer to a court’s exercise of authority over

a particular case within the class of cases that is under the court’s subject matter jurisdiction.

Pratts at ¶ 12. If a court enters judgment without having subject matter jurisdiction, that

judgment is void; however, lack of jurisdiction over a particular case merely renders the

judgment voidable. Id. In other words, if a trial court improperly exercised its jurisdiction, any

defect in judgment would be voidable, not void. Paluch at ¶ 31.

       {¶9}    A voidable decision by the trial court “may be reversed if challenged on appeal.

However, if a timely appeal is not taken, the decision stands and it is valid and binding.”

Thomas v. Fick, 9th Dist. Summit No. 19595, 2000 WL 727531, *2, quoting Huebner v. Scott,

12th Dist. Madison No. CA92-06-014, 1992 WL 340964. “After the thirty day time for the

appeal of a judgment has run, the voidability of the judgment is removed, except in the limited

circumstances under Civil Rule 60. If the judgment was voidable and not appealed, it is not a

mere nullity, it cannot be disregarded, it cannot be attacked collaterally, and it remains in full

force and effect.” Eisenberg v. Peyton, 56 Ohio App.2d 144, 151 (8th Dist.1978).

       {¶10} As a domestic relations court, the trial court in this matter had subject-matter

jurisdiction over the case, and the parties do not argue otherwise. The court did not lose subject-

matter jurisdiction by entering the initial divorce decree. Therefore, even if the August 1996

order was an impermissible modification of the divorce decree, it was not a void order, but

merely voidable as an improper exercise of jurisdiction. As such, the time for appealing the

order passed after thirty days of its entry. Because Mr. Kalbaugh did not file his notice of appeal

within thirty days of its entry upon the journal, this Court cannot now consider the merits of his
                                                  5


arguments with regard to that entry. Metro. Bank & Trust Co. v. Roth, 9th Dist. Summit No.

21174, 2003–Ohio–1138, ¶ 15; see also App.R. 4(A)(1).

       {¶11} We turn now to the issue of the magistrate’s decision. “[T]he decision to adopt,

reject, or modify a magistrate’s decision lies within the discretion of the trial court and should

not be reversed on appeal absent an abuse of discretion.” Barlow v. Barlow, 9th Dist. Wayne

No. 08CA0055, 2009–Ohio-3788, ¶ 5. However, “we consider the trial court’s action with

reference to the nature of the underlying matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No.

08CA0049–M, 2009–Ohio–3139, ¶ 18.             An abuse of discretion is more than an error of

judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its

ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “An abuse of discretion is found

when the trial court is unreasonable or acts in a manner contrary to law or without evidentiary

support.” Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-Ohio-3454, ¶ 57.

       {¶12} Mr. Kalbaugh’s argument that the trial court erred in adopting the magistrate’s

decision is premised upon the theory that the August 26, 1996, order was void, and therefore

unenforceable, for lack of jurisdiction. Because we have determined that the order was not void,

Mr. Kalbaugh’s argument must fail. As we noted above, because the judgment was voidable and

not appealed, it remains in full force and effect.” See Eisenberg, 56 Ohio App.2d at 151. The

magistrate, therefore, did not err in referencing the August 1996 order in her decision. Likewise,

the trial court did not abuse its discretion in adopting the magistrate’s decision.

       {¶13} For the reasons set forth above, Mr. Kalbaugh’s assignment of error is overruled.

                                                 III.

       {¶14} The judgment of the Summit County Court of Common Pleas Domestic

Relations Division is affirmed.
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                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT


SCHAFER, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

J. ANTHONY TERILLA, Attorney at Law, for Appellant.

MELISSA GRAHAM-HURD, Attorney at Law, for Appellee.
