[Cite as Murphy-Kesling v. Kesling, 2014-Ohio-1816.]


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

DEBRA J. MURPHY-KESLING                                     C.A. No.   26957
                                                                       26962
        Appellant

        v.
                                                            APPEAL FROM JUDGMENT
GERALD M. KESLING                                           ENTERED IN THE
                                                            COURT OF COMMON PLEAS
        Appellee                                            COUNTY OF SUMMIT, OHIO
                                                            CASE No.   2001-05-01866

                                DECISION AND JOURNAL ENTRY

Dated: April 30, 2014



        HENSAL, Presiding Judge.

        {¶1}    Debra Murphy-Kesling appeals a judgment of the Summit County Court of

Common Pleas, Domestic Relations Division that granted Gerald Kesling’s motion for division

of property order. For the following reasons, this Court affirms.

                                                       I.

        {¶2}    As this Court explained in Murphy-Kesling v. Kesling, 9th Dist. Summit No.

24176, 2009-Ohio-2560, the Keslings married in 1983 and had two children together. They

divorced in 2002. Throughout their marriage, Wife worked as a public school teacher and

contributed to the State Teachers’ Retirement System (STRS). At the time of the divorce,

Husband’s income was solely from Social Security Disability and Veteran’s Administration

Disability. The parties agreed that Husband should receive part of Wife’s STRS pension. In its

decree, the court directed them to “employ Pension Evaluators to determine the marital portion

[of Wife’s STRS account] and to determine the value of a Social Security offset for [Husband’s]
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right to receive Social Security benefits. The marital portion of said account less said Social

Security offset will then be divided equally between the parties.” Neither party appealed the

decree nor the division of property order that the court subsequently issued.

       {¶3}    In 2007, Wife began receiving disability benefits from STRS. Based on the

language of the division of property order, STRS paid some of her benefits to Husband. Wife

moved to modify the order, arguing that Husband was only entitled to receive a share of her

retirement benefits, not pre-retirement disability benefits. The trial court denied her motion and

this Court affirmed, concluding that neither the decree nor the division of property order

excluded Husband from receiving Wife’s STRS disability benefits. Kesling at ¶ 20.

       {¶4}    Wife later returned to work, and she continued working until she retired in

February 2013. After she retired, STRS did not pay any of her benefits to Husband because the

division of property order directed it to distribute only the “first” benefit payment she received to

him, which it had already done. Husband, therefore, moved for a new division of property order

so that he could share in her retirement benefits. Following a hearing, the trial court granted his

motion and entered a new division of property order. Wife has appealed, assigning as error that

the court incorrectly granted his motion.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN ENTERING A NEW DIVISION OF
       PROPERTY ORDER WHERE THE EXISTING DIVISION OF PROPERTY
       ORDER HAD BEEN DETERMINED IN A FINAL PROCEEDING TO
       CORRECTLY ALLOCATE HUSBAND’S INTERESTS IN WIFE’S PENSION
       PLAN.

       {¶5}    Wife notes that, in her previous appeal, this Court determined that some of her

arguments were barred because she had not timely appealed the decree or original division of
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property order. Kesling, 2009-Ohio-2560 at ¶ 18. She argues that the trial court should have

denied Husband’s motion for the same reason. According to Wife, since Husband did not appeal

the original division of property order, he is barred from arguing that he is entitled to anything

other than the “first benefit” that she received from STRS.

       {¶6}    A qualified domestic relations order “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 [retirement] plan.” Wilson v. Wilson,

116 Ohio St.3d 268, 2007-Ohio-6056, ¶ 6, quoting 29 U.S.C. 1056(d)(3)(B)(i)(I). When the

retirement plan at issue is a public retirement plan, such orders are referred to as “division of

property orders” because they must comply with additional statutory requirements. See Romans

v. Romans, 9th Dist. Summit No. 23181, 2006-Ohio-6554, ¶ 13 (“A [division of property order]

permits a pension plan to make direct payment of benefits to an alternate payee, such as a former

spouse.”); R.C. 3105.80 et seq. (detailing the requirements for a division of property order).

       {¶7}    In Wilson, the Ohio Supreme Court explained that a qualified domestic relations

order “implements a trial court’s decision of how a pension is to be divided incident to divorce or

dissolution.” Wilson at ¶ 7. It “does not in any way constitute a further adjudication on the

merits of the pension division, as its sole purpose is to implement the terms of the divorce

decree.” Id. at ¶ 16. It is simply “a ministerial tool used by the trial court in order to aid the

relief that the court had previously granted.” Id. at ¶ 18, quoting Lamb v. Lamb, 3d Dist.

Paulding No. 11-98-09, 1998 WL 833606, *2 (Dec. 4, 1998).

       {¶8}    The trial court determined that it should issue a new division of property order

because the term “first” that was used in the original order did not mean “only.” It noted that the

parties had been married for 19 years and that it would be inequitable if Husband’s interest in
                                                 4


Wife’s retirement benefits could be defeated just because she received disability benefits for a

period of time. It, therefore, granted Husband’s motion for division of property order.

        {¶9}   Revised Code Section 3105.89(A) provides that the court that issues a division of

property order “shall retain jurisdiction to modify, supervise, or enforce the implementation of

[the] order * * *.” The original division of property order contained language to that effect. In

the divorce decree, the trial court explained that part of Wife’s STRS benefits were pre-marital

property. It also explained that whatever share that Husband had the right to receive should be

offset by his own Social Security benefits. It ordered that “[t]he marital portion of said account

less said Social Security offset will then be divided equally between the parties.”

        {¶10} It is apparent from the language of the decree that it was the intent of the trial

court to award Husband a share of Wife’s STRS retirement benefits. While the original division

of property order may have allowed Husband to receive part of Wife’s pre-retirement disability

benefits, the fact that he received those benefits does not foreclose his right to a share Wife’s

retirement benefits as well. In this case, because STRS refused to pay Husband his share of

Wife’s retirement benefits without a new division of property order, the trial court correctly

determined that it was appropriate to issue a new order. The court’s action is consistent with the

purpose of such orders, which is to implement the terms of a divorce decree. Wilson, 116 Ohio

St.3d 268, 2007-Ohio-6056, at ¶ 16. The trial court was also expressly allowed to modify its

original division of property order under Section 3105.89(A). We, therefore, reject Wife’s

argument that Husband’s motion was barred under the doctrines of res judicata and law of the

case.
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       {¶11} The new division of property order merely allows Husband to access his share of

Wife’s STRS retirement benefits that he was awarded in the divorce decree. Wife’s assignment

of error is overruled.

                                                III.

       {¶12} The trial court did not err when it granted Husband’s motion for division of

property order.    The judgment of the Summit County Court of Common Pleas, Domestic

Relations Division is affirmed.

                                                                              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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
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CARR, J.
WHITMORE, J.
CONCUR.


APPEARANCES:

KENNETH L. GIBSON, Attorney at Law, for Appellant.

LESLIE S. GRASKE, Attorney at Law, for Appellee.
