[Cite as Ramsey v. Ramsey, 2012-Ohio-1715.]


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

SHARON D. RAMSEY                                     C.A. No.      25810

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
STEVEN R. RAMSEY                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   2006-12-4123

                               DECISION AND JOURNAL ENTRY

Dated: April 18, 2012



        CARR, Presiding Judge.

        {¶1}    Appellant, Sharon Ramsey, appeals the judgment of the Summit County Court of

Common Pleas, Domestic Relations Division. This Court reverses.

                                                I.

        {¶2}    During the course of their marriage, Sharon and Steven Ramsey established 529

Plan college investment accounts for each of their four daughters. Steven was the account holder

for each of those accounts. When the Ramseys subsequently divorced in 2008, the domestic

relations court ordered the division of various categories of property, including, but not limited

to, household goods, specific pieces of real estate, stocks, checking accounts, investment

accounts at Edward Jones, and individual retirement accounts. The provision addressing the

division of the parties’ investment accounts at Edward Jones was specifically limited to the

Rayden Investments accounts identified in Exhibit C, attached to and incorporated into the
                                                  2


divorce decree. Exhibit C listed many other accounts, including other accounts at Edward Jones,

most of which were divided under separate provisions of the divorce decree.

         {¶3}   Matters involving the children, however, were addressed in the parties’ shared

parenting plan which was attached to the divorce decree and incorporated therein. Article 14 of

the shared parenting plan addressed post-secondary educational costs for the parties’ four

daughters, including matters involving the four 529 Plan college investment accounts at Edward

Jones.    Pursuant to Article 14 of the shared parenting plan, Steven would remain the

“owner/custodian” of these accounts for two of the daughters (Victoria and Chelsea), and he

would transfer “ownership” of the other two accounts (for Brittany and Alanna) to Sharon as

“owner/custodian.” These accounts were to be used solely for post-secondary educational costs

unless Sharon and Steven expressly otherwise agreed in writing and only as permitted under the

terms of the investment accounts.

         {¶4}   Article 14 included many other specific provisions and restrictions relating to the

use and oversight of the 529 Plan accounts.           Of relevant importance were the following

provisions:

         Neither party shall use these funds/accounts in any way to manipulate the children
         in any fashion.

         ***

         Each party shall submit allowable 529 expenses for school purposes to the other
         party for approval by certified mail. The other party shall have seven (7) days to
         respond or agree thereto. In the event there is no response/agreement then the
         submitting party shall file a Motion, Affidavit and Order with this Court, together
         with documentation demonstrating that these are legitimate 529 expenses, proof
         of submission to the other party by certified mail, and in that event, the Court may
         approve same without a hearing. (Emphasis added.)

         Neither party shall withdraw any funds without the prior written consent of the
         other party or a Court Order as set forth above.
                                                 3


       In the event unauthorized withdrawals are made from these accounts, then the
       Court shall issue an Order transferring ownership to the other party after a
       hearing on the matter. The Court shall order reimbursement of any unauthorized
       withdrawals from the account. (Emphasis added.)

       ***

       The Summit County Domestic Relations Court shall retain jurisdiction over these
       accounts.

       {¶5}    On September 17, 2010, Steven filed a motion for approval of 529 Plan expenses

for the child Brittany. Pursuant to Article 14 of the parties’ shared parenting plan, he submitted a

motion, affidavit, documentation demonstrating legitimate 529 expenses, and proof that he had

sent proof of 529 expenses to Sharon by certified mail more than seven days earlier. It is

unknown whether Steven presented the trial court with a proposed order, but the record

demonstrates that the domestic relations court did not issue an order on his September 17, 2010

motion.

       {¶6}    On January 12, 2011, Steven filed an emergency motion for approval of 529 Plan

expenses and a motion for transfer of 529 Plan accounts from Sharon to him. In the motion, he

referenced his September motion for approval of 529 Plan expenses along with his submission of

relevant documentation, and noted that the magistrate who addressed the matter indicated that

the child Brittany should contact her mother directly regarding payment of the child’s college

expenses. Steven’s motion also stated that the magistrate further indicated that she would

entertain a motion to transfer Brittany’s 529 Plan account to Steven’s control “in the event there

was a problem getting the college expenses paid[.]” Steven alleged that Sharon was refusing to

pay Brittany’s current tuition bill as a means of attempting to manipulate the child. Steven

attached copies of emails between Sharon and Brittany and Sharon and himself, as well as his

affidavit. Steven requested an order directing the immediate payment of Brittany’s tuition bill
                                                4


and an order immediately transferring the 529 Plan accounts for Brittany and Alanna from

Sharon to Steven.

       {¶7}    On January 19, 2011, without a hearing and without waiting for a response from

Sharon, the domestic relations court issued an order solely “[u]pon Motion and Affidavit of

[Steven],” directing that Brittany’s current tuition be paid immediately from the 529 Plan funds

set aside for her. The trial court further ordered that the 529 Plan accounts for Brittany and

Alanna, which were then under Sharon’s control, be transferred immediately to Steven’s control.

Sharon filed a timely appeal in which she raises one assignment of error for review.

                                                II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY MODIFYING A
       PROPERTY DIVISION SET FORTH IN ITS PRIOR DECREE OVER WHICH
       IT HAD NO JURISDICTION AND DOING SO WITHOUT DUE PROCESS OF
       LAW.

       {¶8}    Sharon makes two distinct arguments in her sole assignment of error. This Court

addresses them in turn.

       {¶9}    Sharon first argues that the domestic relations court erred by ordering the transfer

of the 529 Plan accounts in her control to Steven’s control because such an order constituted a

post-decree modification of the division of the parties’ property, which the trial court had no

jurisdiction to make.

       {¶10} R.C. 3105.171(B) addresses the division of marital and separate property in

divorce proceedings, and requires the domestic relations court to divide such property equitably

between the spouses. R.C. 3105.171(I) provides that “[a] division or disbursement of property or

a distributive award made under this section is not subject to future modification by the court

except upon the express written consent or agreement to the modification by both spouses.” This
                                                 5


Court has held that the domestic relations court retains no jurisdiction to order a post-decree

modification of the division of the spouses’ property. Helmstedter v. Helmstedter, 9th Dist. No.

24237, 2009-Ohio-3559, ¶ 11. Accordingly, if the 529 Plan accounts were divided as part of the

parties’ division of property, then the trial court retained no jurisdiction to modify that division

notwithstanding any statement to the contrary that it retained jurisdiction.

       {¶11} In this case, the divorce decree ordered the division of the parties’ property,

including real estate, household goods, motor vehicles, and various financial accounts. While

the domestic relations court divided the parties’ property interests in stocks, checking and

savings accounts, individual retirement accounts, and the Rayden Investments accounts at

Edward Jones, it did not address the 529 Plan accounts in its property division. Instead, the 529

Plan accounts are only addressed as part of the parties’ shared parenting plan.                R.C.

3109.04(E)(2)(b) clearly authorizes the trial court to modify the terms of a shared parenting plan

upon its own motion or upon request of one or both parents.

       {¶12} A plain reading of the provisions in the decree addressing the division of the

parties’ property indicates that the domestic relations court did not divide the 529 Plan accounts

as part of the marital or separate property. Instead, the parties and trial court appeared to have

regarded those accounts as the property of the children, merely held by Steven or Sharon in their

names but for the benefit of the children for post-secondary educational costs. This is evidenced

by the numerous restrictions on the parents’ use or release of funds in the accounts. In addition,

pursuant to Article 14 of the shared parenting plan, the parent-owner/custodian of each plan was

required to turn over any balance remaining in the accounts to the child for whose benefit the

account was established upon the child’s attainment of the age of 25 if the child had completed at

least a four-year college degree. Because the court and the parties themselves appeared to have
                                                 6


regarded the funds in the 529 Plan accounts as something other than marital or separate property

to be divided pursuant to R.C. 3105.171, the domestic relations court’s post-decree order

regarding the accounts was not precluded by a jurisdictional bar.           Accordingly, Sharon’s

argument that the trial court lacked jurisdiction pursuant to R.C. 3105.171(I) is not well taken.

       {¶13} Sharon next argues that the domestic relations court violated her right to due

process when it transferred the 529 Plan accounts under her control to Steven’s control without a

hearing.

       {¶14} By the plain language of Article 14 of the parties’ shared parenting plan, the

domestic relations court was authorized to take one action without a hearing. Specifically, in the

event that one parent failed to respond or agree within seven days of receipt of a request by

certified mail for approval of 529 expenses for school purposes, the trial court may approve the

expenses without a hearing. In contrast, Article 14 further addressed the sole grounds for

ordering the transfer of ownership of a 529 Plan account from one parent to the other.

Specifically, where the controlling parent made an unauthorized withdrawal from an account, the

trial court was obligated to order the transfer of ownership of the account to the other parent, but

only “after a hearing on the matter.” Accordingly, where one party moved the trial court for a

transfer of ownership of a 529 Plan account, the trial court was obligated to hold a hearing to

determine whether there had been an unauthorized withdrawal from the account. Because the

domestic relations court failed to hold a hearing before transferring ownership of the 529 Plan

accounts, as required by the parties’ agreement, it deprived Sharon of the due process for which

the parties had bargained.

       {¶15} Sharon’s sole assignment of error is sustained.
                                                 7


                                                III.

       {¶16} Sharon’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas, Domestic Relations Division, is reversed and the cause remanded for

further proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       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 Appellee.




                                                       DONNA J. CARR
                                                       FOR THE COURT



MOORE, J.
DICKINSON, J.
CONCUR.
                                          8



APPEARANCES:

DEAN S. HOOVER, Attorney at Law, for Appellant.

DREAMA ANDERSON, Attorney at Law, for Appellee.
