[Cite as Turull v. Turull, 2019-Ohio-2863.]

                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY


ELIZABETH S. REYNOLDS                              :
fka TURULL,
                                                   :      CASE NO. CA2018-10-197
       Appellant,
                                                   :           OPINION
                                                                7/15/2019
    - vs -                                         :

                                                   :
ROBERTO TURULL,
                                                   :
       Appellee.


              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                         DOMESTIC RELATIONS DIVISION
                             Case No. DR94-06-1088


Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3400 North State Route 741, Lebanon,
Ohio 45036, for appellant

Rogers & Greenberg LLP, L. Anthony Lush, 40 North Main Street, Suite 2160, Dayton, Ohio
45423, for appellee


        RINGLAND, J.

        {¶ 1} Appellant, Elizabeth Turull, appeals from the decision of the Butler County

Court of Common Pleas, Domestic Relations Division, granting relief to cure an error

contained in a Qualified Domestic Relations Order ("QDRO"), following her most recent

divorce from appellee, Roberto Turull. For the reasons detailed below, we affirm.

        {¶ 2} Elizabeth and Roberto were first married in 1981 and later divorced in 1987.

The parties remarried in 1988 only to again divorce in 1994. The Separation Agreement was

signed by the parties on June 16, 1994. As it relates to Roberto's pension and retirement
                                                                    Butler CA2018-10-197

benefits:

             The Wife shall be granted a Qualified Domestic Relations Order
             granting to her fifty percent (50%) of the portions of the
             Husband's Pension and 401(k) plans available through his place
             of employment, which accrued between the period of January
             23, 1988 to May 31, 1994. This Qualified Domestic Relations
             Order is to be applied toward any pension, 401(k), employee
             savings plans, stock ownership plans, and any and all other such
             ERISA benefits or assets held through the Husband's place of
             employment.

Jurisdiction was not reserved. In fact, the Separation Agreement stated "[i]t is hereby

specifically agreed that the Court shall not reserve or retain jurisdiction over this matter

unless specifically stated otherwise herein."

       {¶ 3} The QDRO was filed July 21, 1994 and signed by the trial court. Unfortunately,

the QDRO incorrectly identified the year of marriage and inserted language that served to

confuse the benefit award.

       {¶ 4} The QDRO was rejected by the plan administrator and an amended QDRO was

filed with the trial court on August 3, 2006. The First Amended QDRO was also rejected by

the plan administrator. Therefore, a Second Amended QDRO was filed with the trial court on

November 13, 2006. However, the language contained in the Second Amended QDRO

varied from the trial court's original order and enhanced the benefit for Elizabeth. The

Second Amended QDRO stated:

             The Plan Administrator of the Plan shall assign to the Alternate
             Payee the right to receive an amount equal to 50% of the
             "marital portion" of the Participant's benefit accrued as of the
             date Alternate Payee's benefit commences or as of Participant's
             retirement. For these purposes, the "marital portion" of the
             Participant's benefit is a fraction of the entire benefit, the
             numerator of which is the number of years of marriage, and the
             denominator of which is the number of years of continuous
             service as of May 31, 1994. The Participant and Alternate Payee
             were married from January 23, 1988 to May 31, 1994, the de
             facto termination of the marriage. The Alternate Payee is also
             entitled to 50% of the coverture fraction of Participant's early
             retirement supplement or subsidy, if any. The Alternate Payee
                                                -2-
                                                                       Butler CA2018-10-197

                 shall receive and be eligible for a pro-rata share of any post-
                 retirement enhancements to the Plan benefits.

(Emphasis added). Thus, the Second Amended QDRO changed the calculation of the

benefit by changing the coverture fraction denominator to "number of continuous service as

of May 31, 1994," instead of the total years of Roberto's employment. The Second Amended

QDRO also added post-retirement enhancements and survivor benefits not addressed in the

Separation Agreement or Decree.

       {¶ 5} Roberto filed a motion for relief from judgment under Civ.R. 60(B) along with a

motion for clarification on October 6, 2017. In response, Elizabeth filed a motion to dismiss.

The magistrate issued a decision granting Elizabeth's motion to dismiss. Roberto filed

objections. The trial court sustained Roberto's objections and granted his request for relief

under Civ.R. 60(B)(4) and (5). The trial court found that Roberto was entitled to relief to cure

the unjust operation of the Second Amended QDRO. In this instance, the trial court found

the Second Amended QDRO was inconsistent with the division of property ordered in the

Judgment Entry and Final Decree of Dissolution of Marriage and, as such, operated as an

improper modification of the final decree. Elizabeth now appeals, raising a single assignment

of error for review:

       {¶ 6} THE TRIAL COURT ERRED IN OVERRULING WIFE'S MOTION TO DISMISS

AND GRANTING HUSBAND'S 60(B) MOTION.

       {¶ 7} In her sole assignment of error, Elizabeth argues the trial court erred by

granting Roberto's motion for relief under Civ.R. 60. Elizabeth's assignment of error is

without merit.

       {¶ 8} Pursuant to Civ.R. 60(B), "the court may relieve a party or his legal

representative from a final judgment, order or proceedings" for the following reasons:

                 mistake, inadvertence, surprise or excusable neglect; (2) newly
                 discovered evidence which by due diligence could not have been
                                               -3-
                                                                       Butler CA2018-10-197

              discovered in time to move for a new trial under Rule 59(B); (3)
              fraud (whether heretofore denominated intrinsic or extrinsic),
              misrepresentation or other misconduct of an adverse party; (4)
              the judgment has been satisfied, released or discharged, or a
              prior judgment upon which it is based has been reversed or
              otherwise vacated, or it is no longer equitable that the judgment
              should have prospective application; or (5) any other reason
              justifying relief from the judgment.

       {¶ 9} In order to prevail on a Civ.R. 60(B) motion, the moving party must demonstrate

that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the

party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and

(3) the motion is made within a reasonable time. GTE Automatic Electric v. ARC Industries,

Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus.

       {¶ 10} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial court's

discretion, and the decision will be reversed only for an abuse of discretion. Purcell v.

Schaefer, 12th Dist. Preble No. CA2013-09-007, 2014-Ohio-4894, ¶ 26; Bowman v. Leisz,

12th Dist. Warren No. CA2014-02-029, 2014-Ohio-4763, ¶ 17. An 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, 5 Ohio St.3d 217, 219

(1983).

       {¶ 11} "Revised Code 3105.171(I) prohibits a trial court from modifying a previous

property division." Veidt v. Cook, 12th Dist. Butler No. CA2003-08-209, 2004-Ohio-3170, ¶

10. "A QDRO, however, is merely an order in aid of execution, and therefore, not subject to

the 'prohibitions imposed with respect to modification of final orders nor the jurisdictional

limitations of R.C. 3105.171(I), so long as the QDRO is not at variance with the decree.'"

Jewett v. Jewett, 12th Dist. Warren No. CA2013-11-110, 2014-Ohio-2343, ¶ 10, quoting

Coterel v. Coterel, 2d Dist. Montgomery No. 20899, 2005-Ohio-5577, ¶ 13. See also Wilson

v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, ¶ 7 (stating a QDRO "implements the court's

                                              -4-
                                                                                      Butler CA2018-10-197

decision of how a pension is to be divided incident to divorce or dissolution"). "A QDRO

which is inconsistent with a division ordered in the decree of divorce or dissolution operates

to modify the decree, and per R.C. 3105.171(I) the court lacks jurisdiction to enter the

QDRO." Id., citing Pearl v. Pearl, 2d Dist. Champaign No. 2012-CA-6, 2012-Ohio-4752, ¶ 11.

        {¶ 12} The Ohio Supreme Court has held that "in determining the proportionality of the

pension or retirement benefits, the non-employed spouse, in most instances, is only entitled

to share in the actual marital asset." Hoyt v. Hoyt, 53 Ohio St.3d 177, 182 (1990). As such,

"[t]he value of this asset would be determined by computing the ratio of the number of years

of employment of the employed spouse during the marriage to the total years of his or her

employment." Id.

        {¶ 13} As such, the numerator, for purposes of dividing the relevant retirement funds,

is the term of the marriage. In this case, the parties' marriage was between January 23,

1988 and May 31, 1994. The denominator, under well-settled law, is the total years of

employment by the employed spouse. Hoyt at 182.

        {¶ 14} The Second Amended QDRO significantly changed the ratio by defining the

denominator as "the number of years of continuous service as of May 31, 1994," which is a

patent flaw. This is because, as noted above, the denominator is the total years of Roberto's

employment, not the much smaller number as advocated by Elizabeth.

        {¶ 15} Elizabeth maintains that the change contained in the Second Amended QDRO

was the result of extensive negotiation and consent.1 However, as noted above, the trial

court did not reserve jurisdiction to modify the property division. Because the QDRO is

merely an order in aid of execution ordered by the final decree, it must be consistent.




1. We also note the trial court's prior order entered on July 31, 2006 stated "Counsel for [Elizabeth] submitted an
Amended QDRO to Case Management, which is signed by counsel and Defendant. * * * [Elizabeth's] motion
was to submit an amended QDRO, not amend the Decree itself."
                                                       -5-
                                                                        Butler CA2018-10-197

Contrary to those principles, the Second Amended QDRO significantly modified the pension

division and, as a result, was voidable for error. See Pearl, 2012-Ohio-4752 at ¶ 16. As a

result, we find the trial court did not err by granting Roberto's motion for relief from judgment

under Civ. R. 60.

       {¶ 16} Finally, we reject Elizabeth's arguments that: (1) Roberto's motion was

untimely, (2) she was deprived of due process, and (3) the trial court erred by not holding an

evidentiary hearing after concluding that her motion to dismiss should be denied. As noted

above, the matter was heard by the trial court, which properly found that there was a voidable

error in the Second Amended QDRO that was inconsistent with the final decree. In this case,

the trial court appropriately found that Roberto was entitled to relief to cure the unjust

operation of the Second Amended QDRO. Elizabeth's sole assignment of error is overruled.

       {¶ 17} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




                                               -6-
