[Cite as Longo v. Longo, 2018-Ohio-3535.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


 LISA M. LONGO,                                    :        OPINION

                   Plaintiff-Appellant,            :
                                                            CASE NO. 2017-P-0061
         - vs -                                    :

 DAVID A. LONGO,                                   :

                   Defendant-Appellee.             :


 Civil Appeal from the Portage County Court of Common Pleas, Domestic Relations
 Division, Case No. 2015 DR 00197.

 Judgment: Reversed and remanded.


 Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., L.P.A., 55 Erieview Plaza, 5th
 Floor, Cleveland, OH 44114 (For Plaintiff-Appellant).

 Steven Lee August, 3201 Enterprise Parkway, Suite 130, Beachwood, OH 44122 and
 Scott S. Rosenthal, Schoonover, Rosenthal, Thurman & Daray, 1001 Lakeside Avenue,
 Suite 1720, Cleveland, OH 44114 (For Defendant-Appellee).



THOMAS R. WRIGHT, P.J.


        {¶1}      Appellant, Lisa M. Longo, appeals the trial court’s post-decree finding that

she has no premarital interest in her three retirement accounts. She maintains that the

court exceeded the scope of its jurisdiction in rendering a finding that directly conflicts

with an original finding in the final divorce decree. For the following reasons, we reverse

and remand for further proceedings.
       {¶2}   The parties to the underlying action were married for seventeen years and

had three children. During the course of the marriage, appellant made contributions to

three retirement accounts. Regarding the distribution of her accounts, the final divorce

decree provides:

       {¶3}   “The Plaintiff, Lisa M. Longo, has an interest in the following retirement

assets: (1) Mondelez Global 401(k); (2) GSK 401(k); and (3) GSK Cash Balance Pension

Plan. As of July 6, 2015, the Mondelez Global Plan had a value of $29,286. As of June

30, 2015, the GSK 401(k) Plan had a balance of $503,467.58 and the GSK Cash Balance

Pension Plan had a value of $129,590.95. There are no liens or encumbrances. The

Plaintiff’s retirement assets shall be divided by coverture fraction calculated from October

3, 1998 (date of marriage) through November 16, 2015 (date of final hearing). The

Plaintiff is to receive her premarital portion of her retirement. The Defendant, David A.

Longo, shall be entitled to one-half of the Plaintiff’s retirement assets from October 3,

1998 through November 16, 2015; but the Defendant’s award of retirement assets shall

be reduced by the sum of Fifty Thousand Dollars ($50,000.00) as and for Plaintiff’s

interest in Defendant’s business, Lon Mar, Inc. (a/k/a Nite-N-Day Cleaners) as previously

set forth herein.” (Emphasis added).

       {¶4}   The “premarital portion” sentence in the quoted provision was handwritten

into the divorce decree and initialed by both parties. As to appellant’s three retirement

accounts, the decree further states that her counsel would be responsible for preparing

the necessary Qualified Domestic Relations Order (“QDROs”) to implement the

distribution. In relation to the trial court’s continuing authority to modify the foregoing

provision, the decree provides:




                                             2
       {¶5}   “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Court

retains jurisdiction with respect to the Qualified Domestic Relations Order or Division of

Property Order to the extent required to maintain the qualified status and the original

intent of the parties. The Court also retains jurisdiction to enter further orders as are

necessary to enforce the assignments of benefits to the non-participant as set forth

herein, including the recharacterization thereof as a division of benefits of another plan,

as applicable, or to make an award of spousal support, if applicable, in the event that the

participant fails to comply with the provisions of this order.”

       {¶6}   Within fifty days of the issuance of the divorce decree, appellee, David A.

Longo, moved the trial court to find appellant in contempt for not complying with various

orders. As one basis for the motion, he asserted that appellant’s counsel failed to prepare

the required QDROs, as expressly mandated by the decree. No judgment was issued

disposing of this motion.

       {¶7}   Over the next forty days, appellant’s trial counsel submitted three different

versions of the proposed QDROs to appellee’s counsel for consideration.              In each

instance, appellee’s counsel rejected the proposed QDROs on the grounds that they did

not comply with the requirements of the Plan Administrator for the retirement accounts.

Consequently, in September 2016, appellee moved the trial court to order appellant to

only submit QDROs that have been pre-approved by the Plan Administrator. Appellee

did not file any objection to this motion, and the trial court granted it on October 18, 2016.

       {¶8}   Five months later, appellee again moved the trial court to find appellant in

contempt for failing to prepare the necessary QDROs. Appellee asserted that, although

various discussions had occurred concerning what changes needed to be made to the




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last set of proposed QDROs, appellant’s counsel had not produced any QDROs for

review.

       {¶9}   A hearing on the second contempt motion was scheduled for June 2017.

When appellant moved for a continuance, appellee filed a brief in opposition, noting that

a year had already elapsed since the issuance of the divorce degree and he still had not

received any benefits from her retirement accounts. Notwithstanding this argument, the

trial court granted the continuance and rescheduled the hearing for September 2017.

       {¶10} During the interim period, appellee moved the trial court to allow his trial

counsel to prepare the QDROs. In opposing this motion, appellant submitted a new set

of proposed QDROs to the trial court. However, instead of reviewing the substance of

the new set, the trial court issued a judgment resolving the “QDROs” dispute. The first

paragraph of this judgment, dated August 18, 2017, states:

       {¶11} “This matter came before the Court upon the Court’s own review of the file.

After review, the Court finds that the pensions of the parties have no premarital portions.

Accordingly, Attorney Steven L. August, counsel for the Defendant, is ordered to prepare

the necessary Qualified Domestic Relations Orders in order to effectuate the division.”

       {¶12} Ten days after issuance of the foregoing judgment, the trial court issued a

nunc pro tunc entry modifying the second sentence of the foregoing quote. That is, the

term “retirement accounts” was substituted for the word “pension.” Moreover, the phrase

“per the Divorce Decree” was added to indicate what retirement accounts were being

referenced.

       {¶13} In appealing the August 18, 2017 judgment, appellant assigns the following

as error:




                                            4
       {¶14} “The trial court erred as a matter of law and abused Its discretion by issuing

a judgment entry which is Inconsistent with the terms and considerations of the June 2,

2016 Judgment Entry of Divorce.”

       {¶15} As a preliminary point, appellee argues that this appeal must be dismissed

because appellant did not base the appeal upon the correct judgment. He asserts that,

instead of appealing the August 18, 2017 judgment, appellant should have brought the

appeal from the subsequent nunc pro tunc entry.

       {¶16} The basic purpose of a nunc pro tunc entry is to correct clerical mistakes in

a prior judgment. State v. Blankenship, 4th Dist. Ross No. 13CA3364, 2013-Ohio-5261,

¶7. Therefore, the effective date of a nunc pro tunc entry relates back to the date of the

original judgment, and the notice of appeal must be filed within thirty days of the original

judgment. Id.; Morris v. Conant, 11th Dist. Lake No. 12-270, 1988 WL 112375, (Oct. 21,

1988). To this extent, the original judgment is still the substantive entry from which the

appeal must be brought.

       {¶17} Here, the trial court’s nunc pro tunc entry did not modify its analysis in the

August 18, 2018 judgment. Thus, the entry did not recognize any new right or deny an

existing right. Instead, the nunc pro tunc entry changes the language the trial court

employed to refer to appellant’s retirement accounts. Since the entry was used to correct

a clerical mistake in the original judgment, the entry was a legitimate nunc pro tunc entry.

For this reason, appellant properly based her appeal upon the August 18, 2017 judgment.

       {¶18} Under her sole assignment, appellant asserts that the appealed judgment

must be reversed because the trial court exceeded its authority in finding that she did not

have any premarital interest in her three retirement accounts. She maintains that, since




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this finding directly conflicts with the prior statement in the final decree, it constitutes an

impermissible modification of the property distribution.

       {¶19} Initially, this court disagrees with appellant’s characterization of the trial

court’s new finding on the “premarital interest” issue as a modification. In the divorce

decree, the trial court only stated that appellant would receive any premarital interest in

the retirement accounts. The court did not make any finding regarding whether the extent

of such an interest had already been established by appellant.

       {¶20} If the trial court’s August 18, 2017 judgment had ordered that appellant was

no longer entitled to receive her premarital interest in her retirement accounts, such an

order would constitute a modification of the divorce decree. However, in stating in its

subsequent judgment that appellant has no premarital interest, the court was only making

a finding as to the extent to which the prior order was applicable. In this respect, the court

was only enforcing its prior order in the divorce decree.

       {¶21} Retirement benefits are marital assets that are subject to distribution as

personal property. Schrader v. Schrader, 108 Ohio App.3d 25, 28, 669 N.E.2d 878 (6th

Dist.1995), citing Hoyt v. Hoyt, 53 Ohio St.3d 177, 178, 559 N.E.2d 1292 (1990). As a

general proposition, the distribution of property in a final divorce decree cannot be altered

in a subsequent proceeding unless “upon the express written consent or agreement to

the modification by both spouses.” R.C. 3105.171(I). However, the statutory prohibition

has no effect upon the trial court’s basic authority to interpret and enforce the distribution

orders in its prior judgment. See Kistler v. Kistler, 11th Dist. Trumbull No. 2003-T-0060,

2004-Ohio-2309, ¶14-15.

       {¶22} Nevertheless, even though the trial court did not exceed its jurisdiction in




                                              6
rendering a new finding on the “premarital interest” issue, the record is void of any

evidence upon which the trial court could have made such a finding. Following the

issuance of the divorce decree, no evidentiary hearing was held. Similarly, although both

parties filed multiple motions during this period, neither attached evidentiary material

regarding the “premarital interest” issue. As to the latter point, appellant’s last set of

proposed QDROs, submitted directly to the trial court, did not address the amount of her

premarital interest.

       {¶23} Appellee maintains that the finding of no premarital interest was warranted

because of appellant’s failure to present evidence regarding the extent of that interest.

However, appellee’s post-decree motions do not raise this as a reason for rejecting

appellant’s proposed QDROs.        Accordingly, the issue of the extent of appellant’s

premarital interest in her retirement accounts was not properly before the trial court for

final determination.

       {¶24} In the absence of any explanation by the trial court setting forth the basis of

its decision, and the lack of evidence supporting the decision, appellant’s sole assignment

has merit. The judgment is reversed, and the case is remanded for further proceedings.



COLLEEN MARY O’TOOLE, J., concurs,

CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.




                                    ____________________




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CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.

       {¶25} Because I disagree with the majority’s disposition, I respectfully dissent.

       {¶26} The parties’ June 2, 2016 divorce decree provided that wife would receive

any premarital interest in her retirement accounts, but did not find that she had established

the amount of any such interest. “‘The party seeking to establish that property * * * is

separate rather than marital bears the burden of proving this to the trial court.’” Nemeth

v. Nemeth, 11th Dist. Geauga No. 2007-G-2791, 2008-Ohio-3263, ¶50, quoting Vergitz

v. Vergitz, 7th Dist. Jefferson No. 05 JE 52, 2007-Ohio-1395, ¶12. Thus, in order to be

entitled to a premarital interest, wife had the burden to prove the extent of that interest.

Further, the decree ordered wife’s counsel to prepare all QDROs necessary to divide

wife’s retirement accounts.

       {¶27} As of July 18, 2016 (six weeks after the decree was entered), wife’s attorney

had still not submitted QDROs. As a result, husband filed a motion to find wife in

contempt.    On August 22, 2016, wife’s counsel submitted proposed QDROs, but

husband’s attorney filed a notice of their rejection because they did not comply with the

plan administrator’s requirements. In the notice, husband’s attorney said he had sent a

letter to wife’s attorney, which set forth the reasons why the QDROs were deficient and

provided sample QDROs for wife’s counsel’s use in revising the QDROs. On August 31,

2016, wife’s attorney submitted revised QDROs, but husband’s attorney rejected them

because they still did not comply with the administrator’s requirements. On September

14, 2016, husband filed a notice of the plan administrator’s rejection of wife’s QDROs. In

that same filing, husband moved for an order requiring wife to submit to the court only

QDROs that were pre-approved by the plan administrator, and the court granted that




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motion.

        {¶28} On November 23, 2016, during a phone conference between court and

counsel, wife’s counsel agreed to provide husband’s attorney with statements identifying

the balances in wife’s retirement accounts at the time of the parties’ marriage to evidence

her premarital interest, but wife’s counsel never provided such evidence to husband’s

attorney.

        {¶29} On January 13, 2017, husband’s attorney, by letter, asked wife’s attorney

for the revised QDROs, but wife’s attorney did not respond. On January 30, 2017,

husband’s attorney sent a follow-up letter to wife’s attorney, but he still did not submit the

revised QDROs.

        {¶30} On February 23, 2017, during a phone conference between the court and

counsel’s paralegals, wife’s attorney’s paralegal agreed to revise the QDROs per the plan

administrator’s instructions.    However, on March 20, 2017, wife’s counsel called

husband’s attorney and refused to make the modifications required by the administrator.

As a result, on March 29, 2017, husband’s attorney filed a motion to find wife in contempt

for failing to file pre-approved QDROs. The contempt hearing was set for September 6,

2017.

        {¶31} Meanwhile, on June 30, 2017, one year after the court originally ordered

wife to prepare the QDROs, husband moved the court, inter alia, for an order to authorize

his attorney to prepare QDROs that would not include a premarital portion for wife. In

that filing, husband asserted that wife’s counsel had agreed to submit evidence of wife’s

alleged premarital interest, but then failed to do so. Wife’s attorney filed another set of

QDROs on July 7, 2017. However, these QDROs, on their face, were not pre-approved




                                              9
by the plan administrator before submission, as required by the trial court, and did not

address the amount of wife’s alleged premarital interest. On August 18, 2017, the court

granted husband’s motion, stating in its amended entry:

       {¶32} After review, the Court finds that the retirement accounts of the parties
             * * * have no premarital portions. Accordingly, Attorney Steven L.
             August, counsel for the [husband], is ordered to prepare the
             necessary [QDROs] to effectuate the division of the retirement
             benefits. (Emphasis added.)

       {¶33} Thus, for 14 months between June 2016 and August 2017, wife failed to

establish the amount of any premarital interest. This failure was raised by husband in his

June 30, 2017 motion for authority in which he disputed the existence of wife’s alleged

premarital interest and asserted that wife’s attorney had failed to produce evidence of

such interest. In wife’s brief in opposition, she did not argue or present any evidence in

support of a premarital interest. In finding wife had no such interest, the trial court

implicitly found that she failed to meet her burden to prove such interest. Further, in this

same period, wife’s attorney repeatedly failed to submit QDROs that complied with the

administrator’s requirements and the court’s orders. Thus, the trial court’s judgment

authorizing husband’s attorney to prepare QDROs that excluded any premarital portion

for wife was amply supported by the record.

       {¶34} For these reasons, I would affirm the trial court’s judgment and I respectfully

dissent.




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