[Cite as Butcher v. Butcher, 2011-Ohio-2550.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 95758




                                SALLY J. BUTCHER
                                                      PLAINTIFF-APPELLEE

                                                vs.

                             RONALD K. BUTCHER
                                                      DEFENDANT-APPELLANT




                                 JUDGMENT:
                           REVERSED AND REMANDED


                                  Civil Appeal from the
                            Domestic Relations Division of the
                         Cuyahoga County Court of Common Pleas
                                  Case No. D-270637
     BEFORE: Keough, J., Stewart, P.J., and Sweeney, J.

     RELEASED AND JOURNALIZED:           May 26, 2011

ATTORNEY FOR APPELLANT

Ellen S. Mandell
55 Public Square
Suite 1717
Cleveland, OH 44113

ATTORNEY FOR APPELLEE

Raymond J. Costanzo
Costanzo & Lazzaro
13317 Madison Avenue
Lakewood, OH 44107




KATHLEEN ANN KEOUGH, J.:
      {¶ 1} Defendant-appellant, Ronald K. Butcher (“Husband”), appeals

from the trial court’s judgment entry adopting the proposed qualified

domestic relations order (“QDRO”) of plaintiff-appellee, Sally J. Butcher,

n.k.a. Peterson (“Wife”). For the following reasons, we reverse and remand

with instructions.

      {¶ 2} In September 2000, the parties’ marriage was terminated by a

divorce decree that incorporated and adopted the parties’ negotiated

handwritten separation agreement. Pursuant to the judgment of divorce, a

QDRO was to be submitted to the trial court resolving Wife’s interest in

Husband’s Ford Motor Company pension. Husband submitted his proposed

QDRO to Wife; however, she did not respond to the proposal. In February

2009, Husband moved the trial court to adopt his proposed QDRO, which the

court adopted a week later. Upon receiving notification of the signed QDRO,

Wife filed a motion for relief from judgment, arguing that she did not receive

notice of Husband’s motion and proposed QDRO. Wife also requested that

the trial court adopt her proposed QDRO. Husband filed a brief in opposition

to Wife’s motion, arguing that his proposed QDRO should be implemented.

      {¶ 3} The parties’ motions and competing QDROs were referred to a

magistrate. No hearing was held, as the parties agreed no questions of fact

were at issue. The magistrate issued a written opinion recommending that
the court grant Wife’s motion for relief from judgment and adopt Wife’s

proposed QDRO.

      {¶ 4} The magistrate identified the issue before it as follows: “When

minimalist language is used in a separation agreement regarding the division

of marital pension by coverture fraction, exactly what terms can a court

subsequently adopt in a QDRO to clarify the intent of the parties as

evidenced in the separation agreement, without crossing over legal

boundaries where the post-decree QDRO becomes a void modification of the

divorce decree’s division of property[?]”

      {¶ 5} The magistrate found that a conflict in interpreting this issue

existed between the Twelfth and Eighth appellate districts, citing Adkins v.

Bush, Butler App. No. CA2002-05-131, 2003-Ohio-2781, and Gordon v.

Gordon (2001), 144 Ohio App.3d 21, 759 N.E.2d 43. In resolving this conflict,

the magistrate determined Gordon should control because it was from this

appellate district.   In applying Gordon, the magistrate recommended that

Wife “should have [a] marital interest, based upon the stated coverture

fraction, in all of [Husband’s] pension benefits if real meaning is to be given to

the parties’ agreement, that ‘all further retirement and investment accounts

of husband shall be divided equally.’”            Accordingly, the magistrate

recommended that Wife’s QDRO, which utilized coverture fraction and

provided Wife with early retirement supplements, interim supplements,
temporary   benefits,   and   pre-retirement   survivorship   benefits   under

Husband’s Ford retirement account, be adopted.

     {¶ 6} Husband filed written objections to the magistrate’s decision, in

which he challenged only the recommendation to adopt Wife’s proposed

QDRO.    The trial court adopted the magistrate’s decision in its entirety,

without a hearing. Husband now appeals, arguing as his sole assignment of

error that the trial court erred in adopting Wife’s proposed QDRO.

     {¶ 7} The standard of review on appeal from a decision of a trial court

adopting a magistrate’s decision is whether the trial court abused its

discretion. O’Brien v. O’Brien, Cuyahoga App. No. 86430, 2006-Ohio-1729,

11. “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 v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140. However, an abuse of discretion may be found when the trial

court “applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.”          Thomas v.

Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, 15.

     {¶ 8} It is well settled that pension and retirement benefits are marital

assets subject to equitable division upon a divorce. R.C. 3105.171; Hoyt v.

Hoyt (1990), 53 Ohio St.3d 177, 178, 559 N.E.2d 1292. A trial court cannot

modify or amend a marital property division incident to a divorce or
dissolution decree, absent expressed consent by the parties.                  R.C.

3105.171(I).   This prohibition is jurisdictional.       See, e.g., McKinney v.

McKinney (2001), 142 Ohio App.3d 604, 608, 756 N.E.2d 694.

      {¶ 9} To effectuate the division of pension and retirement benefits, the

domestic relations court enters a QDRO, which is an order that “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 benefit payable

with respect to a participant under a plan * * *.”         Employee Retirement

Income Security Act of 1974, Section 206(d)(3)(B)(i)(I).        Ordinarily, it is

issued subsequent to and separate from the decree of divorce itself. A QDRO

is therefore merely an order in aid of execution on the property division

ordered in the divorce decree dividing retirement or pension assets.

McKinney at 608. If the QDRO is consistent with the decree, it does not

constitute a modification, which R.C. 3105.171(I) prohibits, and the court does

not lack jurisdiction to issue it. Id., citing Tarbert v. Tarbert (Sept. 27, 1996),

Clark App. No. 96-CA-0036.

      {¶ 10} In this case, the dispute centers around the meaning of the

divorce decree and separation agreement on which the QDRO would issue.

When parties dispute the meaning of a clause in their separation agreement,

a trial court must first determine whether the clause is ambiguous. Adkins

at 26.    A clause is ambiguous where it is subject to more than one
interpretation. Id., citing Weller v. Weller (1996), 115 Ohio App.3d 173, 179,

684 N.E.2d 1284. A trial court has broad discretion in clarifying ambiguous

language by considering the parties’ intent and the equities involved. Id. If

the decree and separation agreement are ambiguous regarding the division of

Husband’s retirement and pension accounts, the court can properly clarify

their meaning without violating the prohibition of R.C. 3105.171(I). Gordon

at 24; Adkins at 26.

      {¶ 11} However,   if the terms in the separation agreement are

unambiguous, a trial court may not clarify or interpret those terms. Adkins

at 27, citing In the Matter of Leonhart v. Nees (Aug. 20, 1993), Erie App. No.

E-93-03; Sowald & Morganstern, Domestic Relations Law (2002) 438, Section

9:48. “‘Further, where there is no uncertainty, but only an absence in the

agreement of a provision about a particular matter, the court must not

construe as included something intended to be excluded nor make the

contract speak where it was silent.’” Adkins at 27, quoting Sowald &

Morganstern.

      {¶ 12} Therefore, the question before this court is whether the QDRO

adopted by the trial court is a modification or clarification of the separation

agreement. If it is a modification, then the QDRO is void because the trial

court did not have jurisdiction to make a modification. See R.C. 3105.171(I).
 However, if it is a clarification, we must determine whether the trial court

abused its discretion in adopting Wife’s proposed QDRO.

      {¶ 13} The relevant portion of the parties’ separation agreement is

Section 3(C), entitled “Pension, Retirement, Stocks, Bonds, etc.” The crux of

this appeal involves subsection (b), which provides:

      {¶ 14} “Husband has further retirement benefits through Ford Motor

Company. All further retirement & investment accounts of Husband shall

be divided equally (all accounts but Tesphe).          Date of termination of

marriage is the court’s journalization date.     Wife’s interest in Husband’s

pension of retirement accounts shall be secured through a separate order

upon Husband’s employer.”

      {¶ 15} Wife contends that an equal division of the Ford retirement

account includes pre-retirement survivorship benefits, early retirement

supplements, interim supplements, and temporary benefits, and that the

account should be divided by coverture fraction. In support of her argument,

Wife maintains that Hoyt is the controlling authority to guide us with our

decision. However, the procedural posture of Hoyt is distinguishable from

the case before us. In Hoyt, the Ohio Supreme Court reviewed a trial court’s

decision dividing marital property and established guidelines for courts to

consider when dividing retirement and pension benefits in a divorce action.
      {¶ 16} In the case before us, the Butchers entered into a separation

agreement where they agreed on the division of marital assets. From the

record, we glean that both parties and their attorneys, over a course of

various pretrials, negotiated the division of marital property, including

pension and retirement accounts. The trial court did not determine how the

marital property should be divided and did not utilize any guidelines

established by Hoyt. Accordingly, we do not find Hoyt helpful. The parties

negotiated the division of their marital property and that agreement was

memorialized in the separation agreement adopted by the divorce decree.

However, the “minimalist language” used in the separation agreement

regarding the division of Husband’s Ford retirement account has caused the

controversy in this matter.

      {¶ 17} The trial court indicated that a conflict among appellate districts

exists in resolving the issue of “minimalist language” contained in separation

agreements. See Adkins and Gordon.

      {¶ 18} Husband urges this court to follow the Adkins decision, where the

Twelfth District was faced with an identical issue. In Adkins, the parties’

separation agreement simply provided that:         “Wife shall receive 1/2 of

Husband’s pension through his employer.” The Adkins trial court adopted

Wife’s proposed QDRO, which provided pre- and post-retirement benefits,

supplements, and survivorship benefits.        On appeal, the Adkins court
concluded that because the “minimalist language contained in the inartfully

drafted separation agreement” was not ambiguous, the trial court abused its

discretion in extending or modifying the agreement.         Id. at 28.    “That

agreement provides simply that [wife] is to receive one-half of [husband’s]

pension through his employer.       There is nothing ambiguous about that

clause. The QDRO proposed by [wife] and adopted by the trial court tried to

‘fill in the gaps’ left by Section V of the parties’ separation agreement by

allowing [wife] to share in any pre-retirement and post-retirement benefits

that [husband] may acquire or had acquired, and by providing [wife] with

survivorship benefits. However, these provisions of the QDRO do not simply

clarify or construe an ambiguity in the parties’ separation agreement, but,

instead, amend or modify the agreement, which is not permitted.” Id.

      {¶ 19} However, the trial court in this case relied on this court’s holding

in Gordon and found that when minimalist language is used, the trial court is

authorized to clarify the parties’ separation agreement to reflect the intent of

the parties. In Gordon, the trial court was asked to clarify a term that was

inadvertently left out of the separation agreement and QDRO, but the parties

intended to include. This court held that “the magistrate’s intent was merely

to clarify a point that had been inadvertently left out of the order. The court

used the survivorship rights as part of the calculation of the appellant’s and

appellee’s shares of the marital estate. Therefore, by granting the appellee’s
relief from judgment and reissuing a new order in the spirit of what had been

the intent of the two parties, the actions of the lower court were simply to

clarify a mistake made in the earlier order.” Id. at 25.

      {¶ 20} In Gordon, it appears that extrinsic facts and evidence were

presented to the trial court so it could determine the intent of the parties at

the time the separation agreement was executed. In dividing the parties’

marital assets, the Gordon trial court used the survivorship rights as part of

the calculation.   Therefore, it appeared that the parties intended that

survivorship rights would be awarded to the Wife.          Accordingly, it was

proper to clarify the term that was inadvertently left out of the decree.

      {¶ 21} In the instant case, we do not have an inadvertent mistake that

simply needs to be added or clarified; rather, the trial court was requested to

interpret the separation agreement and “fill in the gaps.” Moreover, the trial

court did not conduct a hearing to determine the intent of the parties at the

time the separation agreement was executed. A hearing would have allowed

for a more meaningful appellate review of the “inartfully drafted separation

agreement.” Adkins, supra.

      {¶ 22} Although the trial court found that a conflict exists among

appellate districts, we do not find such conflict. The issue in Gordon was

whether the trial court could clarify a provision that was mistakenly left out

of the QDRO and separation agreement, whereas Adkins resolved whether
the trial court could interpret the separation agreement to determine the

parties’ intent regarding what benefits should be awarded under the pension.

 The issues in these two cases are distinguishable and accordingly, there is

no conflict.

      {¶ 23} The case before us resembles the facts in Adkins and we find it

persuasive.    The unambiguous language in the separation agreement

provides that the parties agreed to divide Husband’s Ford retirement account

equally. The QDRO adopted by the trial court “filled in the gaps” left in the

parties’ separation agreement.   But the QDRO adopted by the trial court

does not simply clarify or construe an ambiguity in the separation agreement;

rather, it expands and modifies the agreement, which is prohibited by R.C.

3105.171(I). Accordingly, we find that the trial court lacked jurisdiction to

approve a QDRO that provides Wife with early retirement supplements,

interim supplements, temporary benefits, and pre-retirement survivorship

benefits, absent any showing the parties intended for Wife to share in such

benefits. The QDRO adopted by the trial court is rendered void.

      {¶ 24} Judgment reversed and case remanded to the trial court with

instructions to conduct an evidentiary hearing to determine the intent of the

parties at the time of execution of the separation agreement as to how

Husband’s Ford retirement account should be divided, and to adopt a QDRO

reflecting such intent.
     It is ordered that appellant recover from appellee costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
