[Cite as Taylor v. Taylor, 2018-Ohio-2530.]




                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Calvin L. Taylor                                     :

                 Defendant-Appellant,                :

v.                                                   :                 No. 17AP-763
                                                                    (C.P.C. No. 14DR-1977)
Nancy D. Taylor                                      :
                                                                (ACCELERATED CALENDAR)
                 Plaintiff-Appellee.                 :


                                              D E C I S I O N
                                      Rendered on June 28, 2018


                 On brief: Farlow and Associates, LLC, and Beverly J.
                 Farlow, for appellant.

                 On brief: Harry Lewis Co., LPA, and Gregg R. Lewis, for
                 appellee. Argued: Gregg R. Lewis.

                  APPEAL from the Franklin County Court of Common Pleas,
                              Division of Domestic Relations
TYACK, J.

        {¶ 1} Defendant-appellant, Calvin L. Taylor ("Mr. Taylor"), appeals from a
October 2, 2017 "Military Retired Pay Division Order" of the Franklin County Court of
Common Pleas, Division of Domestic Relations. We affirm the trial court's order.
        {¶ 2} Mr. Taylor and appellee, Nancy D. Taylor ("Ms. Taylor"), were married on
March 29, 1969 in Worthington, Ohio. There were two children born as issue of the
marriage, both now emancipated. The parties were granted a divorce decree on June 29,
2016, and the trial court retained jurisdiction to sign any division of property order
("DOPO") or qualified domestic relation order ("QDRO") in accordance with the retirement
accounts.
No. 17AP-763                                                                                2


       {¶ 3} On October 2, 2017, the trial court issued a DOPO stating: "The Court hereby
orders that the Former Spouse shall be treated as the Member's irrevocable beneficiary
under the Survivor Benefit Plan ("SBP"), in accordance with the election made by the
Member on his date of retirement." (Oct. 2, 2017 Military Retired Pay Division Order at
¶ 8.) Mr. Taylor filed a notice of appeal on October 30, 2017, arguing that the trial court
erred in awarding the survivor benefits to Ms. Taylor.
       {¶ 4} Mr. Taylor lists one assignment of error for our consideration:
               THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS
               ISSUANCE OF THE DOPO ON OCTOBER 2, 2017,
               MODIFYING THE DECISION AND JUDGMENT ENTRY
               DECREE OF DIVORCE.

       {¶ 5} When reviewing the propriety of a trial court's determination in a domestic
relations case, an abuse of discretion standard is used. Booth v. Booth, 44 Ohio St.3d 142,
144 (1989). This is the standard in cases reviewing an order relating to alimony, see
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983); a division of martial property, see
Martin v. Martin, 18 Ohio St.3d 292 (1985); a custody proceeding, see Miller v. Miller, 37
Ohio St.3d 71 (1988); or child support, see Booth. "Since it is axiomatic that a trial court
must have discretion to do what is equitable upon the facts and circumstances of each case,
see Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355, it necessarily follows that a trial court's
decision in domestic relations matters should not be disturbed on appeal unless the
decision involves more than an error of judgment." Booth at 144. "The term 'abuse of
discretion' connotes more than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable." Blakemore at 219.
       {¶ 6} Ms. Taylor argues that Mr. Taylor did not timely file his appeal, arguing that
the final appealable order was the decree of divorce filed on June 29, 2016 and not the
DOPO filed on October 2, 2017. We must initially determine whether we have subject-
matter jurisdiction to consider the merits of this appeal. "Subject-matter jurisdiction may
not be waived or bestowed upon a court by the parties to the case." Green v. Green, 10th
Dist. No. 04AP-61, 2005-Ohio-851, ¶ 8, citing State ex rel. White v. Cuyahoga Metro. Hous.
Auth., 79 Ohio St.3d 543, 544 (1997). R.C. 2505.03 limits the jurisdiction of appellate
courts to the review of final orders, judgments, and decrees.             Id.; see also, Ohio
Constitution, Article IV, Section 3(B)(2).
No. 17AP-763                                                                             3


       {¶ 7} The military retirement benefits are subject to property division.
" '[R]etirement benefits accumulated during a marriage are subject to property division in
a divorce proceeding.' " Green v. Green, 10th Dist. No. 05AP-484, 2006-Ohio-2534, ¶ 12,
quoting Robins v. Robins, 10th Dist. No. 04AP-1152, 2005-Ohio-4969, ¶ 11. The trial court
does not maintain continuing jurisdiction to modify a division of property or retirement
benefits after a divorce decree.
               [A] division of marital property is not subject to modification
               through the continuing jurisdiction of the court. Therefore, a
               trial court lacks continuing jurisdiction to modify a division of
               pension or retirement benefits. Put another way, a court has
               control over the division of property at the time of the divorce
               decree, but not thereafter. A trial court, however, always
               retains the power to enforce the provisions of a divorce decree.

(Internal citations and quotations omitted.) Green at ¶ 12. While normally the decree of
divorce would end the court's jurisdiction, the trial court specifically maintained
jurisdiction for a limited time and purpose in this case to allow time for a third-party
consultant to equalize all the defined benefit retirement plans.
               [T]he parties stipulated and agreed that QDRO Consultants
               would equalize all their defined benefit retirement plans. The
               Court further orders that Plaintiff shall cause QDRO
               Consultants to prepare any Qualified Domestic Relations
               Order or Division of Property Order necessary to effectuate this
               agreement. The parties shall equally split the cost of QDRO
               Consultants. The Court retains jurisdiction to sign any QDRO
               or DOPO in accordance with this division of the retirement
               accounts. Because the amounts will be equalized, the Court
               finds this to be an equal division and therefore will not include
               any amounts for these items on the balance sheet.

(Emphasis added.) (June 29, 2016 Divorce Decree at 12.) Since the divorce decree
contemplated issuing a qualified domestic relations order or division of property order in
the future and did not resolve the division of the retirement accounts including the military
benefits, the divorce decree was not a final appealable order.
               A final order determines the whole case, or a distinct branch
               thereof, and reserves nothing for future determination, so that
               it will not be necessary to bring the cause before the court for
               further proceedings. A judgment that leaves issues unresolved
No. 17AP-763                                                                               4


               and contemplates that further action must be taken is not a
               final appealable order.

(Citations omitted.) Fleenor v. Caudill, 4th Dist. No. 03CA2886, 2003-Ohio-6513, ¶ 11.
As we must follow the case law of Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056,
holding the divorce decree is a final, appealable order and actually divides the property,
while the QDRO or DOPO are merely tools used to execute the divorce decree. Cameron v.
Cameron, 10th Dist. No. 12AP-349, 2012-Ohio-6258, ¶ 12. We note that a trial court can
expressly reserve jurisdiction:
               [A] trial court possesses jurisdiction to adopt a DOPO
               consistent with its divorce decree, but, absent express
               reservation of jurisdiction or express consent of the parties, it
               may not adopt a DOPO that changes the award the decree
               granted. A DOPO is inconsistent with a decree when it
               modifies the division of retirement benefits ordered in the
               decree, and a DOPO modifies a division of retirement benefits
               when the DOPO varies from, enlarges, or diminishes the
               awards the court ordered in the decree.

(Emphasis added.) Cameron at ¶ 13. The October 2, 2017 Military Retired Pay Division
Order, therefore, is a final appealable order as to the division of retirement accounts as it
resolves the final issue of the division of retirement benefits. Mr. Taylor's October 30, 2017
notice of appeal is therefore timely.
       {¶ 8} Mr. Taylor argues, in his assignment of error, that the trial court erred in
assigning Ms. Taylor as the irrevocable beneficiary under the SBP. Mr. Taylor argues that
the language of the divorce decree is not ambiguous and does not contain any indication
about the SBP and therefore the trial court erred in modifying the divorce decree by
assigning Ms. Taylor as beneficiary. However, Ms. Taylor was already the beneficiary.
       {¶ 9} Mr. Taylor cites Robins to argue that the divorce decree cannot be modified
at a later date, or clarified, interpreted, or enforced. Robins, however, goes on to state that
a court may reserve continuing jurisdiction over the distribution of vested pension or
retirement benefits that have not matured.        As discussed previously, the trial court
specifically reserved jurisdiction to sign any DOPO, "The Court retains jurisdiction to sign
any QDRO or DOPO in accordance with this division of the retirement accounts." (June 29,
2016 Divorce Decree at 12.) "A domestic relations court lacks jurisdiction to revisit the
No. 17AP-763                                                                               5


division of property in a divorce or dissolution unless its final judgment or decree contains
an express reservation of continuing jurisdiction." Schrader v. Schrader, 108 Ohio App.3d
25, 28 (6th Dist.1995). The trial court was within its jurisdiction in affirming survivorship
benefits for Ms. Taylor. See Robins at ¶ 12.
       {¶ 10} When a decree that contains terms ordered by the trial court and not reached
by agreement of the parties, a determination that such a decree is or is not ambiguous will
be overturned on appeal only if the trial court abused its discretion. Robins at ¶ 14; see
Blakemore. The stipulations between the parties did not contain any provisions about the
assignment of survivorship benefits.
       {¶ 11} Mr. Taylor further argues that under federal law military survivor benefits
may only be awarded in the original divorce decree. Mr. Taylor quotes Rafferty v. Office of
Personnel Mgt., 407 F.3d 1317 (Fed.Cir.2005) extensively and argues that because there
was no mention of survivor benefits in the stipulations or the June 29, 2016 divorce decree
then the trial court erred as a matter of law by violating 5 U.S.C. 8341(H)(4). The argument
is that the Office of Personnel Management will not follow the October 2, 2017 order as it
is not the first order dividing property.
       {¶ 12} It appears that federal law is clear that a first order dividing marital property
cannot be modified after the retirement or death of the employee. This remains true even
if a state court specifically retains jurisdiction to issue a QDRO or DOPO. See Hinojosa v.
OPM, 205 Fed. Appx. 843 (Fed.Cir.2006), Vaccaro v. Office of Personnel Mgt., 262 F.3d
1280 (Fed.Cir.2001); and Rafferty.
       {¶ 13} While federal law may indicate the possibility that the Office of Personnel
Management will not follow the October 2, 2017 order, this has not transpired thus this
question is not ripe for review. "[T]he duty of every judicial tribunal to decide actual
controversies between parties legitimately affected by specific facts and to render
judgments which can be carried into effect." Fortner v. Thomas, 22 Ohio St.2d 13, 14
(1970). It is thus the "settled judicial responsibility for courts to refrain from giving
opinions on abstract propositions and to avoid the imposition by judgment of premature
declarations or advice upon potential controversies." Id. Even as to proceedings seeking
declaratory judgments, there must be a genuine controversy " 'between parties having
adverse legal interests, of sufficient immediacy and reality.' " (Emphasis sic.) Burger
No. 17AP-763                                                                              6


Brewing Co. v. Liquor Control Comm., 34 Ohio St.2d 93, 97 (1973), quoting Peltz v. South
Euclid, 11 Ohio St.2d 128. Absent an exception, for a cause to be justiciable, there must
exist a real controversy presenting issues that are ripe for judicial resolution and will have
a direct and immediate effect on the parties. State ex rel. Ohio Acad. of Trial Lawyers v.
Sheward, 86 Ohio St.3d 451, 525 (1999).
       {¶ 14} In short, we overrule the sole assignment of error. The judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed.
                                                                        Judgment affirmed.

                               SADLER, J., concurs.
                         DORRIAN, J., concurs in judgment only.
