[Cite as Patten v. Patten, 2011-Ohio-4254.]


                                  IN THE COURT OF APPEALS OF OHIO
                                     FOURTH APPELLATE DISTRICT
                                          HIGHLAND COUNTY

Jerry Patten,                                          :                         Case No. 10CA15

           Plaintiff-Appellee,                         :

           v.                                          :                         DECISION AND
                                                                                 JUDGMENT ENTRY
Della Patten,                                          :
                                                                                 RELEASED 08/22/11
     Defendant-Appellant.       :
______________________________________________________________________
                             APPEARANCES:

Mark J. Donatelli, Xenia, Ohio, for Della Patten.1
______________________________________________________________________
Per Curiam

           {¶1}     Della Patten appeals after the trial court vacated the original qualified

domestic relations order (“QDRO”) that distributed the pension plan benefits of her former

husband, Jerry Patten. Some fifteen years after their divorce, Mr. Patten petitioned the

court to “correct” the QDRO after he realized it designated Della Patten the surviving

spouse beneficiary of his pension. As a result, Ms. Patten, rather than his current wife,

would receive his entire pension benefit if he should predecease Ms. Patten. The court

found that the QDRO did not conform to the divorce decree and ordered the parties to file

a nunc pro tunc QDRO limiting Ms. Patten’s surviving spouse interest in the pension plan.

           {¶2}     On appeal, Ms. Patten argues that the court lacked jurisdiction to “modify”

the QDRO. We disagree because a nunc pro tunc entry is the proper method to reflect

what the court actually decided. And because the original QDRO varied from the divorce

decree and added substantive provisions not present in the decree, the court lacked

jurisdiction to approve it. Therefore, the court retained the inherent authority to vacate the


1
    Jerry Patten did not file a brief or otherwise participate in this appeal.
Highland App. No. 10CA15                                                                           2

original QDRO and order the adoption of a nunc pro tunc QDRO that conformed to the

divorce decree.

       {¶3}    Next, Ms. Patten contends that the court improperly utilized Civ.R. 60(A) and

(B), which provide relief from judgment on various grounds, as a basis for granting Mr.

Patten’s request to vacate the QDRO. Although Mr. Patten cited those rules in his motion

for a “corrective order,” the trial court did not apply either rule in arriving at its decision.

Rather, the court properly considered Mr. Patten’s motion under its inherent authority to

vacate a void order. Consequently, we overrule Ms. Patten’s assignments of error and

affirm the judgment of the trial court.

                                          I. Summary of the Case

       {¶4}     In 1992, Mr. Patten filed a complaint for divorce to end their marriage of 16

years. The referee recommended granting a divorce and making an equitable distribution

of their marital property, which included Mr. Patten’s pension plan with Ford Motor Co.

The referee found “that [Mr. Patten] has a retirement benefit, which by agreement of the

parties[,] [Ms. Patten] is entitled to $7,200.00 of that benefit at the present time or 24% of

his retirement.” The referee recommended “the Court order that [Ms. Patten] be entitled to

receive from the husbands [sic] pension, 24% of whatever his pension is at the time he

retires.”

       {¶5}    In mid 1994, the trial court overruled objections filed by both parties, adopted

the referee’s recommendations in full, and issued the decree of divorce. Neither party

appealed. Then in November 1994, the parties jointly filed a QDRO ensuring that Ms.

Patten would receive her portion of Mr. Patten’s retirement benefits from Ford plan

administrators when he retired. Ms. Patten’s attorney prepared the QDRO, Mr. Patten’s

attorney approved it, and the court signed and filed it.
Highland App. No. 10CA15                                                                 3

       {¶6}   The terms of that QDRO provide: (1) Ms. Patten receives 24 percent of the

“life income benefit” of Mr. Patten’s retirement plan at the time he begins to receive

pension payments; (2) these benefit payments to Ms. Patten cease if Mr. Patten

predeceases her; and (3) if Mr. Patten predeceases her before or after he begins receiving

pension benefits, Ms. Patten is “treated as a surviving spouse under the Plan[.]”

       {¶7}   Mr. Patten retired in 2007 and began receiving monthly pension payments for

76 percent of the plan’s benefit. Ms. Patten also began to receive her 24 percent portion

of the payments. Mr. Patten, who remarried after the divorce, became ill in 2009 and

asked Ford plan administrators what would happen to the pension payments upon his

death. Ford informed him that Ms. Patten was designated the surviving spouse and would

receive the remainder of his pension benefit.

       {¶8}   Concerned that his current wife would receive no pension benefits upon his

death, in 2010 Mr. Patten filed a “Motion for Corrective Order Pursuant to Civil Rules 60(A)

and 60(B).” There, he argued that the final divorce decree did not specify that Ms. Patten

should be designated surviving spouse, yet the QDRO did so. Mr. Patten argued that this

was a clerical error under Civ.R. 60(A), or alternatively, a situation not previously

discoverable that would justify relief from judgment under the provisions of Civ.R. 60(B)(5).

       {¶9}   At a hearing before a magistrate, Mr. Patten testified that he believed that

Ms. Patten should only be entitled to 24 percent of the retirement benefits he would

receive at death. Ms. Patten conceded that she was only entitled to 24 percent of his

retirement benefits. But Ms. Patten explained that in 2007, when she and Mr. Patten

began receiving pension plan payments, Ford required her to make an election for a

payment formula. She chose a payment plan that was more favorable to her in her status

as sole surviving spouse, which provided her with “guaranteed” income. Ms. Patten
Highland App. No. 10CA15                                                                     4

explained that if the QDRO no longer designated her as surviving spouse, the payment

plan she elected no longer provided “guaranteed” income. She said she would have

selected a different payment plan had she known the QDRO would later change. Ms.

Patten did not believe that she could switch her election now.

       {¶10} Ultimately, the magistrate agreed with Mr. Patten and concluded that the

QDRO did not adhere to the terms of the final divorce decree. The magistrate found that

Ms. Patten was entitled to 24 percent of Mr. Patten’s pension until his death but should not

be designated surviving spouse for any portion of the plan’s benefits.

       {¶11} After the parties filed objections, the trial court modified the magistrate’s

decision. Specifically, the court noted that contrary to the magistrate’s verbal statements

at the hearing, the decision improperly concluded that Ms. Patten was entitled to 24

percent of Mr. Patten’s retirement benefits until his death. The court observed that the

magistrate stated at the hearing that Ms. Patten remained “surviving spouse” under the

plan, but only for 24 percent of whatever amount available for a surviving spouse. The

court clarified that “[Ms. Patten] is to receive 24% of [Mr. Patten’s] pension plan as of the

time he retires and she shall have surviving spouse benefits for the 24% only and [Mr.

Patten] can give his current wife or designee the remaining 76% of the pension plan . . .

So, [Ms. Patten] shall receive 24% of [Mr. Patten’s] monthly retirement benefit for her

lifetime or until she should predecease [Mr. Patten] pursuant to surviving spouse benefits

of the plan.”

       {¶12} Thereafter, Ms. Patten filed this appeal.

                                      II. Assignments of Error

       {¶13} Ms. Patten assigns two errors:

       Assignment of Error One:
Highland App. No. 10CA15                                                                      5

       THE TRIAL COURT ERRED IN GRANTING APPELLEE’S OHIO CIVIL RULE 60

       (A) MOTION FOR CORRECTIVE ORDER AS THE ORDER ISSUED BY THE

       TRIAL COURT AMOUNTED TO A SUBSTANTIVE CHANGE IN THE PRIOR

       JUDGMENT AND NOT THE CORRECTION OF A CLERICAL ERROR.

       Assignment of Error Two:

       THE JUDGMENT OF THE TRIAL COURT IMPROPERLY MODIFIED THE

       PROPERTY SETTLEMENT OF THE PARTIES CONTAINED IN THE FINAL

       JUDGMENT AND DECRE[E] OF DIVORCE WITHOUT HAVING RESERVED

       JURISDICTION TO DO SO.

                                         III. The Void QDRO

       {¶14} For ease of analysis, we address Ms. Patten’s second assignment of error

initially. There, Ms. Patten contends that the trial court modified the 1994 QDRO “without

having reserved jurisdiction to do so.” Ms. Patten also argues that the trial court lacked

“continuing jurisdiction” to modify the property division agreement.

       {¶15} R.C. 3105.171(I) prohibits future modification of an equitable property

distribution. The equitable property distribution in this case was set forth in the final

decree, adopted by the trial court in June 1994. The November 1994 QDRO implemented

the property distribution of Mr. Patten’s Ford pension.

       {¶16} A QDRO is an “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 benefits payable with respect to a participant under a plan.’” State ex rel.

Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, 922 N.E.2d 214 (per curiam), at

¶18, citing Employee Retirement Income Security Act of 1974, Section 1056(d)(3)(B)(i)(I),

Title 29, U.S.Code, and Section 414(p)(1)(A)(i), Title 26, U.S.Code. As we explained in
Highland App. No. 10CA15                                                                    6

Blaine v. Blaine, Jackson App. No. 10CA15, 2011-Ohio-1654, at ¶20: “‘[A] QDRO

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, at ¶

7. ‘A QDRO does not in any way constitute a further adjudication on the merits of the

pension division, as its sole purpose is to implement the terms of the divorce decree.’ Id. at

¶ 16. ‘ ‘ * * * Indeed a QDRO may not vary from, enlarge, or diminish the relief that the

court granted in the divorce decree, since that order which provided for the QDRO has

since become final.’ ’ Id. at ¶ 18, quoting Lamb v. Lamb (Dec. 4, 1998), Paulding App. No.

11–98–09.’” In other words, a QDRO is “merely an order in aid of execution on the

property division ordered in the divorce or dissolution decree * * *.” Sullivan at ¶19, citing

Bagley v. Bagley, 181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469, at ¶26

(emphasis sic).

       {¶17} When a QDRO is inconsistent with the final divorce decree it is void and the

trial court lacks jurisdiction to issue it. See Sullivan at ¶19 and Blaine at ¶17, citing Bagley

at ¶27. And a trial court retains authority to vacate its void judgments. Blaine at id., citing

Brownlee v. Brownlee, Cuyahoga App. No. 94494, 2010-Ohio-5602, at ¶8. The

determination of whether a judgment is void presents a question of law. Id. at ¶19.

Likewise, the question of whether a QDRO conflicts with a divorce decree presents a

question of law that we review de novo. Id.

       {¶18} The language of the divorce decree provides: “Referee also recommends

that the Court order that the wife be entitled to receive from the husbands [sic] pension,

24% of whatever his pension is at the time he retires.”

       {¶19} The November 1994 QDRO provides:
Highland App. No. 10CA15                                                                    7

       a. The amount payable to the Alternate Payee [Ms. Patten] shall equal 24% of the

       life income benefit computed as of the date that the Participant [Mr. Patten] begins

       receiving benefits under the plan.

       b. Such payment shall commence when payments to the Participant commence

       upon retirement pursuant to the Plan if both the Alternate Payee and Participant

       survive to such date and shall cease upon the death of the Participant.

       ***

       c. The Alternate Payee shall be treated as a surviving spouse under the Plan and,

       accordingly, in the event of death of the Participant either before or after

       commencement of retirement benefits, payment shall be made to the Alternate

       Payee as provided in the Plan for a surviving spouse.

       {¶20} Thus, the divorce decree simply indicates that Ms. Patten is entitled to 24

percent of Mr. Patten’s pension at the time he retires. The QDRO, however, sets forth

that: (1) Ms. Patten is entitled to 24 percent of Mr. Patten’s pension benefits during his life;

(2) this benefit ceases when and if Mr. Patten predeceases her; (3) if Mr. Patten

predeceases her either before or after he begins to receive pension benefits, she is

entitled to the full amount she would be entitled to as his surviving spouse.

       {¶21} The first of these provisions clearly effectuates the terms of the divorce

decree, i.e., Ms. Patten is entitled to 24 percent of Mr. Patten’s retirement benefit at the

time he begins receiving pension payments. The provision granting Ms. Patten sole

surviving spouse rights is not supported by any language in the divorce decree. Moreover,

this provision effectively enlarged Ms. Patten’s potential interest in Mr. Patten’s pension

benefit by making her the sole beneficiary of remaining pension benefits if he happens to

predecease her. Instead of receiving 24 percent of the pension benefits remaining after
Highland App. No. 10CA15                                                                    8

his death, she receives 100 percent. Consequently, the November 1994 QDRO

substantively varies from and modifies the final divorce decree. Thus the original QDRO

was void because the court lacked jurisdiction to modify the terms of the divorce decree.

       {¶22} Because the original QDRO was void, the trial court retained authority to

vacate it and order the creation of a new QDRO that did conform to the terms of the

divorce decree. See Sullivan, supra, at ¶19. The final judgment in this case, ordering the

parties to create a QDRO that specifies Ms. Patten is designated as surviving spouse for

only 24 percent of Mr. Patten’s pension, conforms to the language of the divorce decree. It

ensures that Ms. Patten will receive 24 percent of Mr. Patten’s pension benefits as long as

those funds are available, in conformance with the language of the divorce decree.

       {¶23} Ms. Patten’s argument concerning the election she made based upon her

then status as sole surviving spouse -- unfortunate as it may be -- is simply not legally

relevant to the issue of whether the court properly vacated the original QDRO and ordered

the issuance of a new QDRO. Accordingly, we overrule Ms. Patten’s second assignment

of error.

                                            IV. Civ.R. 60

       {¶24} In her first assignment of error, Ms. Patten argues the trial court erred in

modifying the QDRO by utilizing the relief from judgment provisions contained in Civ.R.

60(A) and (B). Ms. Patten argues that Civ.R. 60(A) allows for the correction of clerical

errors only and the modification amounted to a substantive change in the terms of the

QDRO. Ms. Patten also argues that the court improperly granted the modification under

Civ.R.60(B) as no provision within this rule justifies relief. Ms. Patten does not include this

argument concerning Civ.R. 60(B) in her statement of the assignment of error as required

by App.R. 16(A)(3). Nonetheless, we will address both.
Highland App. No. 10CA15                                                                     9

       {¶25} Mr. Patten cited Civ.R. 60(A) and (B) as the basis for his “Motion for

Corrective Order.” There is, however, no evidence in the record that the magistrate or trial

court actually considered the requirements of these civil rules in ultimately vacating the

original QDRO and ordering the issuance of a new one. Instead, the trial court properly

treated Mr. Patten’s motion as a common law request to vacate a void judgment and

issued a nunc pro tunc entry reflecting what the court actually decided. See Sullivan at

¶23 and Blaine at ¶18. Here, the trial court mentions Civ.R. 60(A) and (B) only in its

findings of fact, and only in describing Mr. Patten’s motion. The substantive portions of the

decision do not address either rule, and instead, properly analyze whether the original

QDRO conformed to or varied from the final divorce decree. Consequently, the trial court

did not use an improper procedure to vacate the QDRO and this assignment of error is

meritless.

                                           V. Conclusion

       {¶26} The trial court properly ordered the issuance of a new QDRO to conform to

the provisions of the final divorce decree because the original QDRO varied substantively

from the decree of divorce making it void. The trial court did not utilize an improper

procedure in arriving at its decision. Consequently, we overrule Ms. Patten’s first and

second assignments of error.

                                                                    JUDGMENT AFFIRMED
Highland App. No. 10CA15                                                                 10

Harsha P.J., Concurring:

       I join in Judge Fain’s lament in Bagley at ¶35 et seq. over the trend to

“jurisdictionalize” error. But for the language in Sullivan, supra, at ¶19 quoting Bagley, at

¶26, I would hold the belated correction of the original QDRO was too little, too late and

sustain the second assignment of error. But in light of the Supreme Court of Ohio’s

characterization of QDROs that are inconsistent with the divorce decree as being void,

rather than voidable, I reluctantly concur.
Highland App. No. 10CA15                                                                 11

                                     JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Highland
County Court of Common Pleas, Division of Domestic Relations, to carry this judgment into
execution.

         Any stay previously granted by this Court is hereby terminated as of the date of this
entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.
Harsha, P.J.: Concurs in Judgment and Opinion with attached Concurring Opinion.



                                    For the Court


                                    BY: ________________________________
                                        William H. Harsha, Presiding Judge


                                    BY: ________________________________
                                        Peter B. Abele, Judge


                                    BY: ________________________________
                                        Roger L. Kline, Judge




                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
