[Cite as Drummond v. Drummond, 2014-Ohio-4777.]


                                    COURT OF APPEALS
                                 FAIRFIELD COUNTY, OHIO
                                FIFTH APPELLATE DISTRICT


ARLENE K. DRUMMOND                           :    JUDGES:
                                             :
                                             :    Hon. William B. Hoffman, P.J.
       Plaintiff - Appellee                  :    Hon. Patricia A. Delnaey, J.
                                             :    Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
JAMES E. DRUMMOND AND THE                    :    Case No. 14-CA-27
ESTATE OF JAMES DRUMMOND                     :
                                             :
       Defendant - Appellant                 :    OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Fairfield County
                                                  Court of Common Pleas, Domestic
                                                  Relations Division, Case No.
                                                  96 DR 237



JUDGMENT:                                         Reversed and Remanded



DATE OF JUDGMENT:                                 October 27, 2014



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

MARTY ANDERSON                                    DARREN A. MCNAIR
ERIC W. JOHNSON                                   Lardiere McNair, LLC
Sowald, Sowald, Anderson & Hawley                 3956 Brown Park Drive, Suite B
400 S. Fifth Street, Suite 101                    Hilliard, OH 43026
Columbus, OH 43215
Fairfield County, Case No. 14-CA-27                                                    2

Baldwin, J.

      {¶1}    Appellant the Estate of James Drummond appeals a judgment of the

Fairfield County Common Pleas Court imposing a constructive trust over James

Drummond’s State Teachers Retirement System (hereinafter “STRS”) benefit

payments. Appellee is Arlene K. Drummond, the former wife of James Drummond.

                             STATEMENT OF FACTS AND CASE

      {¶2}    Appellee and James Drummond (“Decedent”) were married in Williamson,

West Virginia, on December 20, 1969.         Appellee and Decedent were divorced via

Judgment Entry/Decree of Divorce filed November 26, 1997. The Decree incorporated a

Separation Agreement reached by appellee and decedent. At the time of the divorce,

decedent was a retired educator, receiving retirement benefits as provided by STRS.

      {¶3}    With respect to decedent's STRS benefits, the Decree of Divorce

provides:

                     (a) Until such time a Qualified Domestic Relations Order

              (“QDRO”) assigning the portion of Defendant's benefits to Plaintiff

              as alternate payee under the STRS pension plan is permitted by

              law, Defendant shall pay to Plaintiff the sum of $1,374.00 per

              month (44.41% of Defendant's gross monthly benefit), plus

              poundage and cost-of-living increases, for Plaintiff's interest in the

              STRS Plan as spousal support, payable until the death of either

              Defendant or the Plaintiff.
Fairfield County, Case No. 14-CA-27                                                   3


                      (b) Said payments from the STRS shall be deemed periodic

             spousal support and shall be taxable income to the Plaintiff and tax

             deductible from the income of the Defendant * * *

                      To effectuate this provision, Defendant shall continue to

             maintain Plaintiff as the sole irrevocable beneficiary of $1,374.00

             per month or 44.41% of his gross monthly retirement benefit, plus

             cost-of-living increases, and shall take all necessary actions to

             assure and guarantee that Plaintiff will receive 44.41% of

             Defendant's gross monthly retirement benefit for the remainder of

             the Plaintiff's life in the event that Defendant precedes Plaintiff in

             death.

                      During Plaintiff's lifetime, Defendant shall continue to

             designate Plaintiff as his sole irrevocable beneficiary of 44.41% of

             said retirement benefit and, the Defendant's legal separation from

             the Plaintiff, their divorce, a dissolution of their marriage, the

             Defendant's remarriage, the birth of a child of the Defendant or his

             adoption of a child, shall not constitute and automatic revocation of

             Plaintiff as the beneficiary of 44.41% of Defendant's monthly

             payments from STRS.

      {¶4}   Article 4, Section E, of the Separation Agreement provides:

                      11. If HUSBAND precedes WIFE in death, spousal support

             payments shall terminate and WIFE'S interest in the STRS Pension

             shall be replaced by the STRS survivor benefits as set forth herein.
Fairfield County, Case No. 14-CA-27                                                       4


                       To effectuate this provision, HUSBAND shall continue to

              maintain WIFE as the sole irrevocable beneficiary of $1,374.00 per

              month or 44.41% of his gross monthly retirement benefit, plus

              costs-of-living increases, and shall take all necessary actions to

              assure and guarantee that WIFE will receive 44.41% of

              HUSBAND'S gross monthly retirement benefit for the remainder of

              the WIFE'S life in the event that HUSBAND precedes WIFE in

              death.

       {¶5}   Section 6, subsection (n) of the Decree of Divorce also provides the trial

court “shall continue to maintain subject matter jurisdiction over the issues of

Defendant's designation of plaintiff as the beneficiary of his retirement benefits through

the STRS.”

       {¶6}   Decedent passed away on September 7, 2006. On February 20, 2009,

appellant filed a notice of suggestion of death, a notice for substitution of parties, and a

motion for contempt. In the motion for contempt, appellant argued appellee had

received and maintained 100% of the monthly survivor benefits from STRS, not the

44.41% for which the Decree had provided; therefore, appellant argued appellee was in

contempt by retaining these funds.

       {¶7}   Appellant asked the trial court to impose a constructive trust and order

appellee to hold the funds for the benefit of the Estate. Appellee filed a memorandum in

opposition thereto on April 16, 2009. Subsequently, appellee filed a Motion to Dismiss,

asserting the trial court was without jurisdiction to hear the Estate's motion. On

December 24, 2009, the magistrate granted appellee's motion to dismiss, finding the
Fairfield County, Case No. 14-CA-27                                                         5


trial court lacked jurisdiction. The magistrate further found that assuming the trial court

had jurisdiction, there was no basis for a constructive trust and appellee was not

unjustly enriched. The trial court dismissed the contempt action and appellant’s claim for

attorney fees. Appellant filed objections to the magistrate's decision. The trial court

approved and adopted the magistrate's decision as the order of the court on April 1,

2010.

        {¶8}   Appellant filed an appeal to this Court. On appeal, this Court held that the

trial court does have power to clarify and construe its original property division order to

effectuate judgment, and appellant was asking the trial court to enforce implementation

of the division of the pension as originally decreed. As a result, this Court held that the

trial court had jurisdiction over appellant’s request, and the trial court erred in finding it

lacked jurisdiction. Further, this Court held that the trial court erred and abused its

discretion in failing to impose a constructive trust based on the language of the parties'

Separation Agreement.        Appellee's cross-appeal concerning attorney fees was

overruled. Accordingly, this Court reversed the judgment in part and remanded the

matter to the trial court for further proceedings. See, Drummond v. Drummond, Fairfield

App. No. 10CA20, 2010–Ohio–6139.

        {¶9}   On remand, the trial court conducted a hearing on February 10, 2012. The

trial court considered the equities prior to determining the existence of a constructive

trust, finding it retained the authority and discretion to apply all equitable principles to

the matter on remand. The trial court further found that the court never issued an order

naming the Estate of James E. Drummond, JoAnn Kelly–Drummond, or any other party

as a party to the case. The trial court found it would be inequitable to retroactively
Fairfield County, Case No. 14-CA-27                                                      6


impose a constructive trust to the date of Decedent's death, and the Separation

Agreement and Judgment Entry Decree of Divorce are not the only documents

necessary to review in order to determine the intent of the parties. On June 12, 2012,

the trial court denied the imposition of the constructive trust finding the equities do not

support the imposition of a constructive trust.

       {¶10} Appellant again appealed to this Court. On appeal, we held that the trial

court erred in failing to impose a constructive trust. We found that our previous decision

on the issues of jurisdiction and imposition of a constructive trust were law of the case,

and remanded the case to the trial court with instructions to impose a constructive trust

and determine the amount of the trust and terms of repayment.           In a footnote, we

instructed the court concerning a possible manner of determining the amount due

appellant via the constructive trust:

                     Though we recognize the following is merely dicta, we offer

              the same as guidance as one possible alternative for determining

              the amount due Appellant via the constructive trust. The monthly

              payment James Drummond received during his lifetime was based

              upon his election to retain 100% survivorship benefits for Appellee.

              We presume had the survivorship benefits been limited to the

              44.41% specified in the divorce decree, James Drummond's

              monthly payment would have been greater than that actually

              received. The difference between those two monthly payments

              multiplied by the number of monthly payments made after the date

              of the divorce decree through the date of James Drummond's death
Fairfield County, Case No. 14-CA-27                                                 7


            might well be the appropriate amount to fund the constructive trust.”

            Drummond v. Drummond, 5th Dist. Fairfield App. No. 12-CA-36,

            2013-Ohio-2003, fn.1.

      {¶11} On remand, the trial court imposed a constructive trust as follows:

                   A constructive trust is imposed. Counsel for Plaintiff and

            Counsel for the Estate of James E. Drummond shall determine the

            amount of the monthly pension payment James Drummond

            received from the date of the Judgment Entry/Decree of divorce,

            November 26, 1997, through the date of the death of James

            Drummond, September 7, 2006, based upon his election to retain

            100% survivorship benefits for Arlene K. Drummond. Counsel for

            Plaintiff and Counsel for the Estate of James Drummond shall

            determine what amount James Drummond’s monthly pension

            payment would have been from the date of the Judgment

            Entry/Decree of Divorce, November 26, 1997, through the date of

            the death of James Drummond, September 7, 2006, had the

            survivorship benefits election been limited to the 44.41% specified

            in the Judgment Entry/Decree of Divorce. The difference between

            those two monthly payments multiplied by the number of monthly

            payments made after the date of the Judgment Entry/Decree of

            Divorce, November 26, 1997, through the date of death of James

            Drummond, September 7, 2006, shall fund the constructive trust.”

            Judgment Entry, February 28, 2014, p.3.
Fairfield County, Case No. 14-CA-27                                                     8


      {¶12} Appellant assigns two errors to this judgment on appeal:

      {¶13} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION BY MODIFYING A PROPERTY DIVISION INCORPORATED INTO A

DIVORCE DECREE.

      {¶14} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION BY FAILING TO APPLY THE CLEAR AND SPECIFIC TERMS OF

THE PARTIES’ JUDGMENT ENTRY/DECREE OF DIVORCE AND SEPARATION

AGREEMENT WHEN ORDERING THE FUNDING OF THE CONSTRUCTIVE TRUST.”

                                             I & II.

      {¶15} In both assignments of error, appellant argues that the court erred in

ordering the funding of the constructive trust in a manner that contradicts the separation

agreement incorporated into the original divorce decree.

      {¶16} With respect to decedent's STRS benefits, the Decree of Divorce

provides:

                    (a) Until such time a Qualified Domestic Relations Order

             (“QDRO”) assigning the portion of Defendant's benefits to Plaintiff

             as alternate payee under the STRS pension plan is permitted by

             law, Defendant shall pay to Plaintiff the sum of $1,374.00 per

             month (44.41% of Defendant's gross monthly benefit), plus

             poundage and cost-of-living increases, for Plaintiff's interest in the

             STRS Plan as spousal support, payable until the death of either

             Defendant or the Plaintiff.
Fairfield County, Case No. 14-CA-27                                                  9


                     (b) Said payments from the STRS shall be deemed periodic

            spousal support and shall be taxable income to the Plaintiff and tax

            deductible from the income of the Defendant * * *

                     To effectuate this provision, Defendant shall continue to

            maintain Plaintiff as the sole irrevocable beneficiary of $1,374.00

            per month or 44.41% of his gross monthly retirement benefit, plus

            cost-of-living increases, and shall take all necessary actions to

            assure and guarantee that Plaintiff will receive 44.41% of

            Defendant's gross monthly retirement benefit for the remainder of

            the Plaintiff's life in the event that Defendant precedes Plaintiff in

            death.

                     During Plaintiff's lifetime, Defendant shall continue to

            designate Plaintiff as his sole irrevocable beneficiary of 44.41% of

            said retirement benefit and, the Defendant's legal separation from

            the Plaintiff, their divorce, a dissolution of their marriage, the

            Defendant's remarriage, the birth of a child of the Defendant or his

            adoption of a child, shall not constitute and automatic revocation of

            Plaintiff as the beneficiary of 44.41% of Defendant's monthly

            payments from STRS.

      {¶17} Article 4, Section E, of the Separation Agreement provides:

                     11. If HUSBAND precedes WIFE in death, spousal support

            payments shall terminate and WIFE'S interest in the STRS Pension

            shall be replaced by the STRS survivor benefits as set forth herein.
Fairfield County, Case No. 14-CA-27                                                  10


                        To effectuate this provision, HUSBAND shall continue to

               maintain WIFE as the sole irrevocable beneficiary of $1,374.00 per

               month or 44.41% of his gross monthly retirement benefit, plus

               costs-of-living increases, and shall take all necessary actions to

               assure and guarantee that WIFE will receive 44.41% of

               HUSBAND'S gross monthly retirement benefit for the remainder of

               the WIFE'S life in the event that HUSBAND precedes WIFE in

               death.

         {¶18} Where the language of a divorce decree is unambiguous, there is no

reason to interpret the language or to assess the intent of the parties at the time the

decree was entered. Schuster v. Schuster, 3rd Dist. Wyandot App. No. 16-08-22, 2009-

Ohio-1736, ¶9. The court is required to merely apply the language of the decree. Id.

The intent of the parties as set forth in the agreement was that appellee was to receive

44.41% of the decedent’s monthly retirement benefit. Therefore, the amount used to

fund the constructive trust should be the remaining 55.59% of the retirement benefits

received by appellee from the date of the divorce decree to the date of the decedent’s

death.
Fairfield County, Case No. 14-CA-27                                                  11


      {¶19} The first and second assignments of error are sustained. The judgment of

the Fairfield County Common Pleas Court, Domestic Relations Division, is reversed.

This case is remanded to that court for further proceedings according to law, consistent

with this opinion. Costs are assessed to appellee.

By: Baldwin, J.

and Delaney, J. concur.

Hoffman, P.J. concurs in part
and dissents in part




CRB/rad
Fairfield County, Case No. 14-CA-27                                                     12

Hoffman, P.J., concurring in part and dissenting in part

         {¶20} Despite having authored the dicta suggesting one possible alternative to

determine the amount to fund the constructive trust in this Court's prior opinion - which

suggestion was adopted by the trial court - I now find myself concurring in the majority's

decision to reverse and remand this case to the trial court yet again.1 However, I

respectfully dissent from the majority's decision the amount used to fund the

constructive trust should be the remaining 55.59% of the retirement benefits received by

Appellee from the date of the divorce decree to the date of Decedent's death.

         {¶21} The creation of a constructive trust is an equitable remedy. As such, I find

the trial court has discretion as to when the constructive trust should commence. That

date could potentially be the date of Decedent's death or the date Appellant first raised

the issue via a motion for contempt.

         {¶22} The majority holds funding of the trust commences as the date of the

divorce decree, yet terminates on the date of Decedent's death. I find the language in

the decree, which we found gives rise to the constructive trust, does not indicate it

should terminate upon Decedent's death. Upon revisiting of this issue, I now find no

compelling legal or logical reason to support termination of the constructive trust at that

time.

                                                    ________________________________
                                                    HON. WILLIAM B. HOFFMAN




1
    To such extent, I was the architect of the trial court's demise.
[Cite as Drummond v. Drummond, 2014-Ohio-4777.]
