[Cite as Erter v. Erter, 2014-Ohio-1882.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




LISA MARIE MADRID ERTER,

        PLAINTIFF-APPELLANT,                               CASE NO. 8-13-16

        v.

GREGORY SCOTT ERTER,                                       OPINION

        DEFENDANT-APPELLEE.




                        Appeal from Logan County Family Court
                                  Domestic Relations
                             Trial Court No. DR07-06-140

                                       Judgment Affirmed

                               Date of Decision: May 5, 2014




APPEARANCES:

        Jay M. Lopez for Appellant

        Kirk D. Ellis for Appellee
Case No. 8-13-16



SHAW, J.

       {¶1} Plaintiff-appellant Lisa Marie Madrid f.k.a. Erter (“Lisa”) appeals

the August 12, 2013 judgment of the Logan County Common Pleas Court, Family

Court-Domestic Relations Division, denying her motion for citation in contempt

against her former husband, defendant-appellee Gregory Scott Erter (“Greg”).

Lisa specifically argues that pursuant to the separation agreement incorporated in

the parties’ final divorce decree she was entitled to receive $51,000.00 plus

interest from Greg’s 401(K) plan, and that while Greg’s 401(K) account was split

and she was allocated $51,000.00 on April 28, 2008, by the time she received the

money on December 1, 2008, she only received $29,639.02 due to market losses.

       {¶2} The facts relevant to this appeal are as follows. Lisa and Greg were

married June 28, 2003. On June 29, 2007, Lisa filed for divorce, alleging, inter

alia, that the parties were incompatible.

       {¶3} On July 2, 2008, a judgment entry was filed wherein the court found

that the parties were incompatible, entitling Lisa to a divorce. Incorporated into

the judgment entry was a separation agreement, which stated, in pertinent part,

       EMPLOYMENT BENEFITS: Each party shall retain exclusive
       ownership, free and clear of any claims of the other, of any
       interest either party may have in * * * 401-K plans * * * except
       Wife shall also receive as marital property rights, pursuant to
       Qualified Domestic Relations Orders, the sum of $51,000.00
       together with interest thereon from 04/28/08 of Husband’s
       interest/assets/benefits in the 401-K Plan sponsored by his

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      employer, EMI Corp. * * * Wife shall be responsible for all tax
      liabilities incurred as a result of cashing in her portion of
      Husband’s 401-K.

(Doc. 61).

      {¶4} On July 3, 2008, a Qualified Domestic Relations Order (“QDRO”)

was filed. (Doc. 62). The QDRO was amended twice, once on October 27, 2008,

and the second and final time on November 14, 2008. (Docs. 73, 78). The final

amended QDRO read, in pertinent part,

      2. The amount to be paid to the Alternate Payee [Lisa] from the
      accounts of the Participant [Greg] in the Plan shall be
      $51,000.00, plus interest from 04/28/08, such amount hereinafter
      referred to as the “Transferred Amount.”

      ***

      4. * * * If the Transferred Amount is in excess of $3,500.00, the
      Transferred Amount shall be credited to an account in the name
      of Alternate Payee in which she shall be immediately 100%
      vested and invested under the terms of the plan.

(Doc. 78).

      {¶5} Before the final judgment entry had been filed, and before the final

amended QDRO had been filed, on April 28, 2008, $51,000 was taken out of

Greg’s 401(K) account and put into an account set up for Lisa. Due to the

amendments to the QDRO, Lisa was not able to access the money that was in the

account set up for her until December 1, 2008. When Lisa received the money,

the account had dropped significantly to $29,639.02.


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        {¶6} On December 31, 2008, Lisa filed a motion for citation in contempt

and lump sum judgment, contending, inter alia, that Greg “fail[ed] to properly

invest the funds in his 401(K) account which resulted in a substantial decrease in

said account and ultimately insufficient funds * * *.”1 (Doc. 87). As support, Lisa

argued that “[t]he substantial loss in the account could have been avoided had the

Defendant moved and/or transferred the funds to more secure and lower risk

investments within the 401(K).”               (Id.)     On February 17, 2009, Greg filed a

response opposing Lisa’s contempt motion.

        {¶7} On February 17, 2009, Greg filed a “Motion for Finding in

Contempt” alleging that Lisa “wrongfully damaged, destroyed, or converted to her

own personal use several items of real and personal property belonging to [Greg].”

(Doc. 97).

        {¶8} On October 26, 2009, a hearing was held on the pending contempt

motions, dealing primarily with issues that are not the subject of this appeal. A

second hearing was held on March 12, 2010, which dealt primarily with the issue

that is subject to this appeal.

        {¶9} At that March 12, 2010, hearing, Greg testified that it was his

understanding that from the divorce decree he was supposed to give Lisa the sum

of $51,000.00 plus interest from his 401(K). (Tr. at 15). Greg testified that his


1
  There were also multiple other issues in the motion for citation in contempt but none of those are the
subject of this appeal, therefore we decline to address them.

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company did, in fact, transfer $51,000.00 plus interest to Lisa according to the

order.    (Tr. at 15).   In addition, Greg testified that since his 401(K) plan’s

inception, roughly twenty-five years prior, he had not changed how the funds were

allocated as far as investments, and he did not change those investments prior to

the money being transferred to an account set up for Lisa. (Tr. at 14).

         {¶10} Gerald Burkhart, who was the Supervisor of Planned Document and

Special Services for the company that dealt with Greg’s 401(K), testified via

telephone at the hearing. Burkhart testified that his company “interpreted [the

court’s order] to be 51 thousand dollars, amount to be allocated into an account for

the alternate payee. And then interest earned on that amount from April 28 until

the date was segregated into the account for the alternate payee.” (Tr. at 33).

Burkhart also testified that the account for Lisa was set up “based on the initial

dollars instructed from the orders.” (Id.)

         {¶11} In order to get further clarification, Cheryl Stienhard, who was also

involved in the administration of Greg’s 401(K) plan, also testified. Stienhard

testified that she was the “manager over the plan administration side of the

business” and that she was “also the manager over the trading side of the

business.” (Tr. at 53). Stienhard testified that the amount put into an account for

Lisa was originally $51,115.41. (Tr. at 54). Stienhard further testified that while

the QDRO indicated that Lisa was to receive $51,000.00 plus interest, interest


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could be negative, as interest is lumped together with earnings.                             (Tr. at 54).

Stienhard testified that whether there were gains or losses in the account, they

were classified as “earnings” on the money and Lisa was entitled to either. (Tr. at

55).

         {¶12} At the conclusion of the hearing, the parties elected to submit written

closing arguments. Both Greg and Lisa filed their written closing arguments on

July 6, 2010.

         {¶13} After the closing arguments were filed, no action was taken in this

case until April 3, 2013, at which time Lisa filed a request for a hearing to address

a proposed judgment entry Greg’s attorney had submitted. (Doc. 155). A hearing

was then held May 31, 2013. (Doc. 157).

         {¶14} On August 12, 2013, a journal entry was filed addressing the issues

of the parties that were pending.2 The trial court held the following regarding the

401(K) issue.

         With regards to the 401(K) distribution issue, the Court finds
         Defendant’s argument to be persuasive and therefore denies
         Plaintiff’s requests for additional funds. Specifically the Court
         finds that the final divorce decree states that Plaintiff was to
         receive “… the sum [of] $51,000.00 together with interest
         thereon from 4/28/08 …” * * * The parties submitted a joint
         exhibit (#1) clearly showing that Plaintiff was allocated
         $51,000.00 as of 04/28/08. Her own separate account was set up
         as of that date and brought forward to the actual distribution

2
  The only indication of the reason for delay between the submission of closing arguments in July of 2010
to the final entry in August of 2013 was the trial court’s statement that “[a]dditional conferences were held
between the Court and counsel in an effort to finalize this case.

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       date in December of 2008. Plaintiff argues she should have been
       insulated from any losses in the market because of the following
       language from the final decree: “…Together with interest
       thereon.” However, witnesses from the company managing the
       401K account clearly explained during their telephonic
       testimony that “interest can be negative” and that Plaintiff was
       subject to gains and losses on the account (just as Defendant
       was). Unfortunately, there were many substantial losses in the
       market over that period of time. * * *

(Doc. 159). The court thus denied Lisa’s motion requesting that Greg be found in

contempt. (Id.)

       {¶15} It is from this judgment that Lisa appeals, asserting the following

assignment of error for our review

                    ASSIGNMENT OF ERROR
       THE TRIAL COURT ERRED IN FAILING TO AWARD
       APPELLANT    $51,000.00 PLUS INTEREST FROM
       DEFENDANT’S 401(K).

       {¶16} In her assignment of error, Lisa contends that the trial court erred in

in failing to award her $51,000 plus interest from Greg’s 401(K). Specifically,

Lisa argues that the trial court erred in relying on testimony of Greg’s 401(K) plan

administrators Gerald Burkhart and Cheryl Stienhard.

       {¶17} At the outset, we would note that while Lisa argues that the trial

court erred in failing to award her more money, she is appealing from a judgment

denying her motion for a citation of contempt of Greg wherein she claimed, inter

alia, that Greg improperly invested the money in his 401(K) resulting in

substantial losses.   An appellate court's standard of review of a trial court’s

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contempt finding is whether the trial court abused its discretion. State ex rel.

Celebrezze v. Gibbs, 60 Ohio St.3d 69, 75 (1991); Kachmar v. Kachmar, 7th Dist.

Mahoning No. 12 MA 179, 2014-Ohio-652, ¶ 10. An abuse of discretion exists if

the trial court’s decision was unreasonable, arbitrary or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

      {¶18} In this case, testimony revealed that Greg’s 401(K) account was split

on April 28, 2008 as was required by the separation agreement incorporated in the

final divorce decree. However, it is undisputed that Lisa was unable to access

those funds that were split from Greg’s account until December 1, 2008, as the

QDRO had to be processed and approved by the company administering the

401(K). Testimony revealed that Greg did not at any time prior to the split of the

funds in his 401(K) attempt to change how the money was invested.

Unfortunately, the account set up for Lisa lost a substantial amount of money.

      {¶19} Lisa contends on appeal that a more literal interpretation of the

separation agreement incorporated into the final divorce decree should be taken,

requiring her to specifically receive $51,000 in funds at whatever time she was

able to withdraw funds from the account rather than merely Greg to have

transferred at least $51,000 into the account at the inception of its creation.

However, testimony from Cheryl Stienhard specifically revealed that the company

administering the 401(K) considered all earnings in the account to be lumped in


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with interest, so that any gains or losses on the account set up for Lisa would have

been Lisa’s. Where the only testimony revealed that gains and losses were treated

as interest by the company and the interest could therefore be negative, we cannot

find that the trial court abused its discretion in denying Lisa’s motion for

contempt. Furthermore, we would note that the QDRO also contained language

that if the transferred amount was in excess of $3,500.00, the amount was to be

credited to an account in Lisa’s name, invested under the terms of the plan, which

is exactly what happened. Thus we fail to see how Greg could be found in

contempt of the court’s order.      Accordingly, Lisa’s assignment of error is

overruled.

       {¶20} For the foregoing reasons the judgment of the Logan County

Common Pleas Court, Family Court-Domestic Relations Division, is affirmed.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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