[Cite as State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252.]




  THE STATE EX REL. SULLIVAN, APPELLEE, v. RAMSEY, JUDGE, APPELLANT.
[Cite as State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252.]
Prohibition — Trial court — Writ to prohibit trial judge from taking action while
        appeal is pending — Issuance of amended qualified domestic relations
        order while appeal from original order is pending — Trial court patently
        and unambiguously lacked jurisdiction to amend order once appeal was
        perfected — Writ granted.
 (No. 2009-1118 — Submitted January 26, 2010 — Decided February 3, 2010.)
       APPEAL from the Court of Appeals for Lucas County, No. L-09-1118,
                                     2009-Ohio-2279.
                                  __________________
        Per Curiam.
        {¶ 1} This is an appeal from a judgment granting a writ of prohibition (1)
to prevent a domestic relations judge from taking any action inconsistent with the
court of appeals’ ability to affirm, modify, or reverse the judge’s January 9, 2009
judgment entry and qualified domestic relations order (“QDRO”) in an underlying
case and (2) to vacate the judge’s amended QDRO that was issued while the
appeal was pending. Because the judge’s action was inconsistent with the court
of appeals’ authority to review the January 9 judgment and QDRO, we affirm the
judgment of the court of appeals.
                                            Facts
                                      Divorce Decree
        {¶ 2} In November 1986, appellee, Daniel J. Sullivan, married Janet M.
Sullivan. The parties had one child born during their marriage.
        {¶ 3} In July 1997, the Lucas County Court of Common Pleas, Domestic
Relations Division, entered a final judgment granting the Sullivans a divorce and
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incorporating their agreement concerning all of the matters in the case, including
the division of their property.
          {¶ 4} More specifically, the court ordered that Daniel “shall assign and
transfer to the Plaintiff, Janet M. Sullivan, through a Qualified Domestic
Relations Order, or separate Judgment Entry, whichever is applicable, twenty-
five percent (25%) of the accrued monthly benefit that the Defendant, Daniel J.
Sullivan, was entitled to receive as of May 14, 1997, from Defendant, Daniel J.
Sullivan’s interest in his retirement plan with the Civil Service Retirement
System, pursuant to the provision of the Spouse Equity Act of 1984.” (Emphasis
sic.) The court further ordered that Janet’s “rights to designate a beneficiary, for
survivor benefits, or other related rights under the above described plan, shall be
subject to the terms and conditions of the plan.”
                      January 2009 Judgment Entry and QDRO
          {¶ 5} After the parties divorced, no QDRO or separate judgment was
timely entered to implement the court’s division of Daniel’s retirement plan.
Daniel, without notice, removed his retirement plan from the Civil Service
Retirement System and transferred it to the District of Columbia Police Officers’
and Firefighters’ Retirement Plan. He retired in 2003 and began receiving all of
the pension benefits without allocating anything to Janet pursuant to the divorce
decree.
          {¶ 6} In July 2006, Janet filed motions for the approval of a QDRO,
retroactive benefits, and attorney fees. On January 9, 2009, appellant, Judge
Donald L. Ramsey, sitting by assignment in the domestic relations court, granted
the motions and held that Janet was entitled to a monthly sum of $1,325.07 from
Daniel’s retirement plan, that Janet be awarded $76,185.92 as well as statutory
interest for retroactive benefits due her but paid to Daniel, and that she be
awarded $24,684 in legal fees and litigation expenses, together with statutory
interest. Judge Ramsey held that Daniel’s deliberate actions had denied Janet




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“those benefits of the pension rights awarded to her pursuant to the parties’
divorce decree.”
       {¶ 7} On that same date, Judge Ramsey issued a QDRO reflecting the
parties’ rights to Daniel’s pension benefits. The QDRO provided that “[t]he
benefit to be paid from the Plan directly to the alternate payee pursuant to the
participant’s assignment of benefits, in compliance with the D.C. Spouse Equity
Act of 1988, as amended, shall be * * * ($1,325.07) of the participant’s gross
monthly benefit.”
       {¶ 8} The QDRO also provided for later amendment to constitute a
proper QDRO according to the plan administrator’s instructions:
       {¶ 9} “The intent of this Order is to provide the alternate payee with a
retirement payment that fairly represents the alternate payee’s marital share of the
retirement benefits set forth herein. In the event any Order submitted to the Plan
Administrator is held not to be a Qualified Domestic Relations Order within the
meaning of the D.C. Spouse Equity Act of 1988, as amended, the parties shall
submit to and request this Court or any other Court of competent jurisdiction to
amend or modify the Order, but only for the purpose of establishing or
maintaining its qualifications as a Qualified Domestic Relations Order in such a
manner that will reflect the parties’ and the Court’s intent as expressed herein,
said amendment or modification Order is to be entered Nunc Pro Tunc if
appropriate and Jurisdiction is hereby reserved for this purpose.”
                           Appeal and Amended QDRO
       {¶ 10} On January 20, 2009, Daniel appealed from the January 9
judgment entry and QDRO to the Court of Appeals for Lucas County.
       {¶ 11} On April 7, while the appeal from the January 9 judgment and
QDRO was pending, Judge Ramsey issued an amended QDRO, which – similar
to the original QDRO – provided that “[t]he Alternate Payee shall receive * * *
($1,325.07) of the Participant’s gross monthly benefit, as much [sic, such] amount



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is adjusted by any cost-of-living adjustments. The Participant shall retain all
remaining interest in the Plan.” Judge Ramsey did not issue the amended QDRO
as a nunc pro tunc order, as he was authorized to do under the terms of the
original QDRO. The amended QDRO also differed in certain respects from the
original QDRO. For example, the original QDRO specified that it was “issued
pursuant to Ohio Revised Code Sections 3105.171 and 3105.18 which relate to
the provision of marital property rights and spousal support payments,” and the
amended QDRO generally stated only that the order was issued “pursuant to the
domestic relations laws of the State of Ohio.” In addition, the amended QDRO
specified that the order was intended to be a QDRO “as that term is used in
Section 206(d) of the Employee Retirement Income Security Act of 1974
[‘ERISA’],” whereas ERISA was unmentioned in the original QDRO.
                                        Prohibition Case
          {¶ 12} Three weeks after Judge Ramsey issued the amended QDRO, on
April 28, Daniel filed a complaint in the court of appeals for a writ of prohibition
to vacate the amended QDRO and to prevent the judge from taking any further
action that interferes with or is inconsistent with the appellate court’s ability to
affirm, modify, or reverse the January 9, 2009 judgment entry and QDRO.
          {¶ 13} On May 7, without waiting for a response from the judge, the court
of appeals entered a judgment granting the writ of prohibition ordering Judge
Ramsey to refrain from taking any action inconsistent with that court’s ability to
affirm, modify, or reverse the January 9, 2009 judgment entry that is the subject
of the appeal and vacating the amended QDRO.
          {¶ 14} This cause is now before the court upon the judge’s appeal as of
right.1
                                        Legal Analysis


1. We deny Daniel’s motion to strike.




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                                    Prohibition
       {¶ 15} To be entitled to the requested writ of prohibition, Daniel was
required to establish that (1) Judge Ramsey was about to exercise judicial or
quasi-judicial power, (2) the exercise of that power is unauthorized by law, and
(3) denying the writ will result in injury for which no other adequate remedy
exists in the ordinary course of law. State ex rel. Sliwinski v. Burnham Unruh,
118 Ohio St.3d 76, 2008-Ohio-1734, 886 N.E.2d 201, ¶ 7.               Judge Ramsey
exercised judicial authority by issuing the amended QDRO.
       {¶ 16} For the remaining requirements, “[i]f a lower court patently and
unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will
issue to prevent any future unauthorized exercise of jurisdiction and to correct the
results of prior jurisdictionally unauthorized actions.” State ex rel. Mayer v.
Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12.
                        Pending Appeal from Initial QDRO
       {¶ 17} The court of appeals based its issuance of the writ on the fact that
Daniel’s appeal from the January 9 judgment entry and QDRO was pending when
Judge Ramsey issued the amended QDRO. “[W]e have consistently held that
once an appeal is perfected, the trial court is divested of jurisdiction over matters
that are inconsistent with the reviewing court’s jurisdiction to reverse, modify, or
affirm the judgment.” State ex rel. Rock v. School Emp. Retirement Bd., 96 Ohio
St.3d 206, 2002-Ohio-3957, 772 N.E.2d 1197, ¶ 8; State ex rel. Everhart v.
McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 12.
       {¶ 18} As Judge Ramsey observes, a QDRO is different from the usual
court order. A QDRO is an order “which 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.”
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. “The QDRO



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must be drafted to include very specific information with explicit instructions to
the plan administrator. It is then the responsibility of the plan administrator to
review the order of the trial court and determine whether it constitutes a QDRO
pursuant to Section 414(p), Title 26, U.S.Code.” (Footnote omitted.) Hoyt v.
Hoyt (1990), 53 Ohio St.3d 177, 180, 559 N.E.2d 1292.
       {¶ 19} “The 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, ¶ 7. “[A] divorce decree is a final,
appealable order, regardless of whether it calls for a QDRO that has not yet
issued; the QDRO merely implements the divorce decree.”               Id. at ¶ 15.
Consequently, “[a] QDRO is merely an order in aid of execution on the property
division ordered in the divorce or dissolution decree. So long as 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.”
(Emphasis sic.) Bagley v. Bagley, 181 Ohio App.3d 141, 2009-Ohio-688, 908
N.E.2d 469, ¶ 26. Therefore, when a divorce decree is appealed and there is no
stay of the judgment pending appeal, the trial court is not divested of jurisdiction
to issue a QDRO consistent with the decree because the order merely executes
orders previously specified in the divorce decree.
       {¶ 20} Nevertheless, for the following reasons, Daniel’s appeal from the
domestic relations court’s actions on January 9, 2009, granting Janet’s postdecree
motions and issuing the original QDRO, patently and unambiguously divested
Judge Ramsey of jurisdiction to issue the amended QDRO.
       {¶ 21} First, Daniel did not appeal from the divorce decree. Instead, he
appealed from Judge Ramsey’s judgment on Janet’s postdecree motions and the
associated QDRO. Once the original QDRO was appealed, Judge Ramsey lacked
jurisdiction to modify it. See Albertson v. Ryder (1993), 85 Ohio App.3d 765,




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769-770, 621 N.E.2d 480 (trial court lacked jurisdiction to modify QDRO when
appeal from order was pending).
       {¶ 22} Second, there is no evidence or argument that the condition
specified in the original QDRO for amendment or modification of the order – the
parties’ request for it – had been met.
       {¶ 23} Third, by issuing an amended order rather than a nunc pro tunc
order, Judge Ramsey effectively acknowledged that the original QDRO was being
amended or modified rather than merely corrected to rectify a clerical error. See
State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d
223, ¶ 14, quoting State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 164,
656 N.E.2d 1288 (“nunc pro tunc entries ‘are limited in proper use to reflecting
what the court actually decided, not what the court might or should have
decided’”).
       {¶ 24} Based     on    the   foregoing,   Judge    Ramsey     patently   and
unambiguously lacked jurisdiction to issue the amended QDRO while the original
QDRO was being appealed. “In cases of a patent and unambiguous lack of
jurisdiction, the requirement of a lack of an adequate remedy of law need not be
proven because the availability of alternate remedies like appeal would be
immaterial.” State ex rel. State v. Lewis, 99 Ohio St.3d 97, 2003-Ohio-2476, 789
N.E.2d 195, ¶ 18.
                                    Conclusion
       {¶ 25} Because Judge Ramsey’s issuance of an amended QDRO was
inconsistent with the court of appeals’ jurisdiction to review the January 9
judgment and QDRO, we affirm the judgment of the court of appeals granting the
writ of prohibition to prevent the judge from taking any further action inconsistent
with that court’s authority to review the judgment being appealed and to vacate
the amended QDRO.
                                                                Judgment affirmed.



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       MOYER,     C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       Thomas A. Matuszak, L.L.C., and Thomas A. Matuszak; and Law Offices
of Stephen D. Long and Stephen D. Long, for appellee.
       Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borrell,
Assistant Prosecuting Attorney, for appellant.
                           ______________________




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