[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Walsh v. Walsh, Slip Opinion No. 2019-Ohio-3723.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2019-OHIO-3723
                    WALSH, APPELLANT, v. WALSH, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as Walsh v. Walsh, Slip Opinion No. 2019-Ohio-3723.]
Divorce—R.C. 3105.171(I)—Property division in final decree of divorce is not
        modifiable unless both spouses consent—Military retirement benefits—
        Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. 1408—A
        trial court does not have jurisdiction under Civ.R. 60(B) to modify a division
        of property in a final decree of divorce when both spouses have not
        consented to the modification.
    (No. 2018-1073—Submitted July 9, 2019—Decided September 18, 2019.)
              APPEAL from the Court of Appeals for Trumbull County,
                         No. 2017-T-0033, 2018-Ohio-2466.
                                 __________________
        DEWINE, J.
        {¶ 1} An Ohio statute, R.C. 3105.171(I), provides that a property division
made in a final decree of divorce is not modifiable “except upon the express written
                                  SUPREME COURT OF OHIO




consent or agreement to the modification by both spouses.” In the case before us,
the domestic-relations court granted relief from judgment under Civ.R. 60(B) to
modify a decree that divided pension benefits even though both parties had not
agreed to the modification. We conclude that the trial court lacked authority to
modify the decree. Because the court of appeals below held otherwise, we reverse
its judgment.
                                     I. BACKGROUND
                           A. The terms of the divorce decree
         {¶ 2} Todd and Sandra Walsh married in August 1994 and separated six
years later. More than 13 years after they separated, Todd filed for divorce. The
pair worked out an agreement, which they memorialized in a consent judgment of
divorce.
         {¶ 3} Todd had served in the Navy for 20 years and as a consequence was
entitled to a military pension. The judgment provided that Sandra would receive a
share of the pension based upon a marriage term of six years—a period that
represented the time that the parties were together during Todd’s military service.1
         {¶ 4} To implement the pension division, the judgment specified that a
consulting firm would prepare a Qualified Domestic Relations Order (“QDRO”)2
and submit it to the court for approval within 45 days of the entry of the decree. (A
QDRO is a court order that “implements a trial court’s decision of how a pension
is to be divided incident to divorce or dissolution.” Wilson v. Wilson, 116 Ohio
St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 7.) The judgment further provided
that the court would retain jurisdiction over the QDRO.


1. A court in a divorce action may set the marriage duration as something other than “the period of
time from the date of the marriage through the date of the final hearing,” R.C. 3105.171(A)(2)(a),
if using the actual marriage dates “would be inequitable,” R.C. 3105.171(A)(2)(b).
2. The type of court order required in this case is more precisely called a qualifying military court
order due to certain differences that distinguish it from a typical QDRO. Because the consent
judgment, the parties, and the lower courts refer to the order broadly as a QDRO, we will continue
to use that term here.




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                                January Term, 2019




       {¶ 5} The consent judgment was adopted by the court as a final decree of
divorce. Problems arose postdecree when the consultant set about drafting the
QDRO. After reading the decree, the consultant determined that it was not possible
to draft a QDRO under which the military would make direct pension payments to
Sandra. There were two main issues: (1) the decree did not specify Sandra’s share
of the pension in percentage terms and (2) because the decree said the parties were
married for six years, it did not satisfy the military’s requirements that the marriage
last for at least ten years and that the service member be providing military service
during that time (the “10/10 rule”).
       {¶ 6} Both requirements are set forth in the Uniformed Services Former
Spouses’ Protection Act, 10 U.S.C. 1408. The act allows state courts to divide
military retirement pay in accordance with state law. See 10 U.S.C. 1408(c)(1);
Mackey v. Mackey, 95 Ohio St.3d 396, 2002-Ohio-2429, 768 N.E.2d 644, ¶ 9. The
act also authorizes a direct distribution of a portion of a member’s retirement
benefits to a former spouse as specified by court order, if certain requirements are
met. See 10 U.S.C. 1408(d).
       {¶ 7} For a court-ordered property award to be recognized under the act, the
divorce decree must state the specific amount of the member’s pension that is to be
paid as a division of marital property—expressed either in dollars or as a percentage
of the disposable retirement pay.       See 10 U.S.C. 1408(a)(2)(C); 10 U.S.C.
1408(d)(1). The judgment in this case did neither.
       {¶ 8} Additionally, the military will not issue direct payments to a former
spouse unless the marriage satisfies the 10/10 rule, codified at 10 U.S.C.
1408(d)(2). That rule provides that the military will make pension payments
directly to a former spouse if the marriage lasted for at least ten years and the
member spouse provided at least ten years of military service during that time. See
id. This limitation does not, however, prevent a trial court from ordering a member
to personally pay a former spouse a portion of the monthly retirement payments




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received by the member if the marriage lasted less than ten years. “The ten-year
rule only affects the former spouse’s ability to obtain direct payment [from the
military] of her court-awarded share of the member’s military retired pay on a
monthly basis.” Gilbert, A Family Law Practitioner’s Road Map to the Uniformed
Services Former Spouses Protection Act, 32 Santa Clara L.Rev. 61, 69 (1992).
                  B. Proceedings in the domestic-relations court
         {¶ 9} In order to qualify for direct payment from the military, Sandra filed
a motion for relief from judgment under Civ.R. 60(B)(4) and (5). In the motion,
which was filed about two years after the entry of the decree, Sandra asked that the
court modify the decree to list the percentage of Todd’s pension to which she was
entitled and to state “the parties’ actual date of marriage and date of divorce, rather
than the agreed upon dates which do not meet the 10/10 rule.” Todd opposed the
motion on the grounds that Sandra could not satisfy the requirements of Civ.R.
60(B).
         {¶ 10} An evidentiary hearing was held before a magistrate at which a
QDRO consultant was called to testify.         The consultant used the “coverture
fraction” method to calculate the percentage of the monthly retirement payments to
which Sandra would be entitled. Under that method, benefits are divided based on
“ ‘the ratio of the number of years of [the] employed spouse’s employment during
the marriage to the total number of years of his or her employment.’ ” Daniel v.
Daniel, 139 Ohio St.3d 275, 2014-Ohio-1161, 11 N.E.3d 1119, ¶ 15, quoting Hoyt
v. Hoyt, 53 Ohio St.3d 177, 183, 559 N.E.2d 1292 (1990). Because Todd and
Sandra had agreed that the marital term would be from the date of marriage to the
date of separation, the portion of the pension earned during that six years would be
considered marital property. Thus, the consultant determined that Sandra would be
entitled to half of the amount reached by dividing the six years of marriage by
Todd’s 20 years of service—15 percent.




                                          4
                                January Term, 2019




       {¶ 11} The consultant explained that because the six-year marriage term did
not meet the ten-year requirement, the military would not make pension payments
directly to Sandra. The court could order Todd to make monthly payments to
Sandra, but if the court wanted the military to pay Sandra directly, the divorce
decree would have to state that the marriage had lasted for at least ten years. The
magistrate questioned the consultant regarding whether such a change would
amount to a modification of the divorce judgment:


               THE COURT: Well, you don’t have to say that it’s 10 years,
       do you? You could leave in the judgment entry that the marriage is
       from August 10th, 1994 through August 7th, 2000, but say that she’s
       entitled to 15 percent of his pension, right?
               A: They will bounce it if they think that the duration of the
       marriage is less than 10 years. They won’t accept it. They’ll see the
       1994, 2000. Our experience is they will return it saying it does not
       meet the 10-year rule.
               THE COURT: Okay. Then in order to make this judgment
       entry meet the 10-year rule, wouldn’t we have to change the
       judgment entry, which in effect, changes their agreement?
               A: Right. If they do not want, if he does not want direct
       payments, you’re going to have to change it, yes. That would be my
       understanding, Your Honor.


(Capitalization sic.)
       {¶ 12} The magistrate nevertheless granted Sandra’s Civ.R. 60(B) motion
and made two alterations to the divorce decree: the marriage term was changed to
be August 10, 1994, through August 10, 2004, and Sandra was to receive 15 percent
of Todd’s retirement pay per month. The trial court approved the magistrate’s




                                         5
                             SUPREME COURT OF OHIO




decision. Todd appealed to the Eleventh District, contending that the trial court
lacked authority to modify the decree under Civ.R. 60(B).
                         C. The proceedings on appeal
        {¶ 13} The Eleventh District affirmed in a split decision in which one judge
concurred in judgment only without writing and one judge dissented. The lead
opinion concluded that because the trial court had retained jurisdiction over the
QDRO, it could modify the terms of the divorce decree with respect to the pension.
2018-Ohio-2466, ¶ 12, 15. And although the lead opinion noted that a trial court
does not have continuing jurisdiction to modify a property division in a divorce
decree in a situation such as this, it determined that the court may nevertheless
“ ‘clarify and construe’ ” the property division in order to carry out its judgment.
Id. at ¶ 14, quoting Gordon v. Gordon, 144 Ohio App.3d 21, 24, 759 N.E.2d 431
(8th Dist.2001). Because the changes to the decree were made with the goal of
carrying out the original intent of the parties, the lead opinion concluded that they
amounted to a clarification rather than a modification.
        {¶ 14} The dissenting judge protested that it was improper to establish a
“fictional termination of marriage date” for the purpose of circumventing federal
law. Id. at ¶ 21 (Grendell, J., dissenting). She contended that the trial court’s
decision to extend the duration of the marriage through August 10, 2004, could
potentially increase the share of the retirement funds to which Sandra is entitled as
marital property. Id. at ¶ 22. Moreover, the dissenter suggested that the trial court
need not have gone to all this trouble because if Todd does not comply with the
original terms of the decree, Sandra “can turn to the court to enforce its judgment.”
Id. at ¶ 23.
        {¶ 15} We accepted Todd’s discretionary appeal. He asserts that Sandra
voluntarily agreed to the language in the decree and cannot now obtain relief under
Civ.R. 60(B) simply because the agreed-upon marriage term turned out to be
unfavorable. He also maintains that the trial court did not retain jurisdiction to




                                         6
                                January Term, 2019




modify the decree, but insists that should he “fail[] to obey the order to pay the
appropriate portion of his retirement” to Sandra, she may seek enforcement of the
order in the trial court.
        {¶ 16} We hold that the trial court lacked jurisdiction to modify the length
of the marriage stated in the divorce decree.
                                  II. ANALYSIS
        {¶ 17} Sandra asked for and received relief under Civ.R. 60(B)(4) and (5)
in the trial court. The lead opinion of the court of appeals reasoned that “Civ.R.
60(B) jurisprudence is not applicable,” but upheld the trial court’s judgment based
on the trial court’s retention of jurisdiction over the QDRO. 2018-Ohio-2466, at
¶ 12, 15.
        {¶ 18} The lead opinion was wrong to disregard our Civ.R. (60)(B)
jurisprudence. Civ.R. 60(B) is the only procedural vehicle that exists for modifying
a final judgment in a civil case. Thus, even when a court retains continuing
jurisdiction to modify a provision in a decree, a party must still meet the
requirements of Civ.R. 60(B) before a court may exercise that authority. See, e.g.,
In re Whitman, 81 Ohio St. 3d 239, 242, 690 N.E.2d 535 (1998).
  A. R.C. 3105.171(I) precludes a court from modifying a property division
                       absent consent of both former spouses
        {¶ 19} In addition to the Civ.R. 60(B) requirements for modification, the
divorce and dissolution statutes contain certain statutory restrictions that limit the
authority of a trial court to modify a final decree. See, e.g., R.C. 3105.171(I); R.C.
3105.18(E); R.C. 3105.63(A) and (C). Retirement benefits earned during the
course of a marriage constitute marital property. R.C. 3105.171(A)(3)(a)(i); see
Hoyt, 53 Ohio St.3d at 178, 559 N.E.2d 1292. With respect to a modification of a
property division, R.C. 3105.171(I) provides: “A division or disbursement of
property or a distributive award made under this section is not subject to future




                                          7
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modification by the court except upon the express written consent or agreement to
the modification by both spouses.” (Emphasis added.)
        {¶ 20} The change to the decree ordered by the domestic-relations court is
best understood as a modification to a property division. The provisions of the
decree at issue divided the pension by specifying the dates of the marriage. By
changing the marriage length, the trial court modified the terms of the divorce
decree with respect to a division of property. The parties did not both consent to
that modification to the property division, so by the plain language of R.C.
3105.171(I), the court had no authority to order the change.
        {¶ 21} We have examined the interplay between Civ.R. 60(B) and the
statutory provisions that relate to modification in a number of cases, most recently
in Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664. Before
us in that case was a certified question that asked whether a trial court could use
Civ.R. 60(B) to modify an award of spousal support in a decree of divorce or
dissolution when the decree did not contain a reservation of jurisdiction. Id. at ¶ 1.
A statute, R.C. 3105.18(E), precludes modification of a spousal-support award
absent a reservation of jurisdiction. We held that a trial court does not have
jurisdiction under Civ.R. 60(B) to modify a spousal-support award unless the
decree complies with the statutory requirement that it contain a reservation of
jurisdiction. Id. at ¶ 2.
        {¶ 22} In reaching our decision in Morris, we explained that Civ.R. 60(B)
is a procedural rule, while the statutory provision limiting modification of the
decree is a rule of substantive law. Under the Ohio Constitution, a procedural rule
“ ‘cannot abridge, enlarge, or modify any substantive right’ ” created by statute.
Morris at ¶ 30, quoting Ohio Constitution, Article IV, Section 5(B). Thus, we held
that Civ.R. 60(B) could not be used to circumvent the statutory restriction on the
modification of a decree. Morris at ¶ 32.




                                          8
                                January Term, 2019




       {¶ 23} Though Morris dealt with spousal support, rather than a property
distribution, the same principle applies: Civ.R. 60(B) cannot be used to alter the
statutory requirements for the modification of a decree. Because R.C. 3105.171(I)
does not permit modification absent the consent of both parties, Civ.R. 60(B)
cannot provide a workaround.
       {¶ 24} In concluding otherwise, the lead opinion below relied heavily on
the language of the Eighth District in Gordon, 144 Ohio App.3d 21, 759 N.E.2d
431. That case dealt with a trial court’s authority to clarify an ambiguity in the
original order. Id. at 25. There is some question whether the analysis in Gordon
can be reconciled with the plain language of R.C. 3105.171(I), but we need not
resolve that question here—there was nothing ambiguous about the six-year
marriage term provided for in the Walshes’ divorce decree. Under the plain
language of R.C. 3105.171(I), the trial court lacked authority to modify that six-
year term.
 B. Even aside from the R.C. 3105.171(I) prohibition, the trial court lacked
                          authority to modify the decree
       {¶ 25} The lead opinion below never examined R.C. 3105.171(I)’s
limitation on postdecree modifications to property divisions. It seemed to view the
trial court’s decision not as modifying the property division but as simply
“effectuat[ing] [the] original intent of the parties” that Sandra receive 15 percent of
Todd’s pension. 2018-Ohio-2446 at ¶ 15. And it concluded that the trial court’s
retention of jurisdiction over the QDRO could serve as a basis to allow the court to
change the decree to accomplish this perceived intent. There are a number of
problems with this analysis.
       {¶ 26} First, as explained above, we think it evident that the trial court’s
order was a modification to a division of property and thus was required to comply
with R.C. 3105.171(I). While it is true that the end result of the court’s action was
to leave Sandra with the same percentage of Todd’s pension that the parties




                                          9
                                  SUPREME COURT OF OHIO




originally envisioned, this was accomplished only by modifying the terms of the
decree that constituted the property division. So R.C. 3105.171(I) applies.
         {¶ 27} But even if we were to accept the premise that the modification
ordered by the court was not a modification of the property division but of some
other part of the decree, the domestic-relations court still lacked authority to order
the modification. The QDRO and the divorce decree are two separate court orders,
and the trial court retained jurisdiction over the QDRO, not the divorce decree.
Nothing in the provision that gave the court continuing jurisdiction over the QDRO
authorized it to alter the final decree of divorce.
         {¶ 28} Further, Sandra sought relief under Civ.R. 60(B)(4), which
authorizes relief when “it is no longer equitable that the judgment should have
prospective application,” and Civ.R. 60(B)(5)’s catchall provision, regarding “any
other reason justifying relief from the judgment.” Our caselaw makes clear that
even when a decree reserves jurisdiction for the court to modify the parties’
agreement, a court may not grant relief under Civ.R. 60(B)(4) or (5); rather it is
limited to granting relief under Civ.R. 60(B)(1), (2), and (3)—all of which require
the motion to be filed within one year from the date of the judgment. See Morris,
148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, at ¶ 2; Whitman, 81 Ohio
St.3d at 245, 690 N.E.2d 535.3 We have explained that a contrary rule would
“relieve a litigant from the consequences of his voluntary, deliberate choice” to
enter into an agreement. Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353
(1986), paragraph two of the syllabus; see Morris at ¶ 38-41. Further, allowing


3. In Whitman, we held that a court, pursuant to Civ.R. 60(B)(1), (2), and (3), could make postdecree
modifications to a property division when the parties had incorporated a provision in the decree
allowing for future modifications by court order. Whitman was decided prior to the amendment of
R.C. 3105.171(I) in 2010 by Am.Sub.H.B. No. 238 that added its current final phrase regarding
“express written consent or agreement to the modification by both spouses.” (Emphasis added.)
Because the issue is not before us, we express no opinion today as to whether a reservation of
jurisdiction would be a sufficient basis to allow a court to modify a property division via Civ.R.
60(B)(1), (2), or (3) under the current statutory scheme.




                                                 10
                                January Term, 2019




such motions would be “antithetical to our principle of the finality of judgments,”
id. at ¶ 59, and encourage mischief by allowing those with the resources to do so
“to bury their ex-spouses in a mountain of filings,” id. at ¶ 60. Thus, even if we
were to conclude that R.C. 3105.171(I) did not apply, the trial court still lacked
authority to modify the divorce decree.
                               III. CONCLUSION
       {¶ 29} The trial court lacked the authority to modify the divorce decree to
change the term of the marriage. We therefore reverse the judgment of the court of
appeals and remand this cause to the trial court for proceedings consistent with this
opinion.
                                                                 Judgment reversed
                                                               and cause remanded.
       O’CONNOR, C.J., and KENNEDY and DONNELLY, JJ., concur.
       FRENCH, FISCHER, and STEWART, JJ., concur in judgment only.
                               _________________
       Mark Lavelle, for appellant.
       Thomas A. Will, for appellee.
                               _________________




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