[Cite as Tekamp v. Tekamp, 2019-Ohio-2382.]




                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                         WARREN COUNTY




 SHERYL K. TEKAMP NKA NASH,                    :

       Appellee,                               :     CASE NO. CA2018-08-092

                                               :             OPINION
    - vs -                                                    6/17/2019
                                               :

 DAVID A. TEKAMP,                              :

       Appellant.                              :




             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                             Case No. 16DR38848


Ernst & Associates, David E. Ernst, 11 South Broadway, Suite 200, Lebanon, Ohio 45036,
for appellee

Rittgers & Rittgers, Juliette Gaffney Dame, 12 East Warren Street, Lebanon, Ohio 45036,
for appellant



        S. POWELL, J.

        {¶ 1} Appellant, David A. Tekamp ("Tekamp"), appeals the decision of the Warren

County Court of Common Pleas, Domestic Relations Division, approving a proposed

qualified domestic relations order ("QDRO") submitted by appellee, Sheryl K. Tekamp nka

Nash ("Nash"). For the reasons outlined below, we affirm.
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                              Facts and Procedural History

       {¶ 2} Tekamp and Nash were married on October 26, 1985. After being married

for over 30 years, Nash and Tekamp both filed for divorce. The matter ultimately proceeded

to a three-day contested hearing. Prior to this hearing, the parties had engaged in extensive

negotiations. These negotiations resulted in the parties agreeing on multiple aspects as to

how their assets would be divided. This included Tekamp's 401(k) account. The parties do

not dispute that December 31, 2016 was the stipulated division date of their marriage.

       {¶ 3} The parties' negotiated agreement on how to divide their assets was

memorialized in a joint exhibit submitted to the domestic relations court at the start of the

three-day hearing.    Upon being presented with the parties' joint exhibit, the domestic

relations court addressed the parties and asked:

              All right and from my advantage point [sic] that is a spreadsheet
              that purports to address each of the assets that exist in this
              case, put a value on those assets and then equally divide them,
              is that correct?

Neither party objected to the domestic relations court's characterization of the parties' joint

exhibit nor did the parties object to the method in which the domestic relations court was to

divide their assets. This, as noted above, included Tekamp's 401(k) account.

       {¶ 4} Due to the parties' negotiated agreement, the three-day contested hearing

was held primarily to address Nash's motion for spousal support. Opposing Nash's motion,

Tekamp argued that Nash should not receive any spousal support since she would be

receiving an equal split of their assets. For example, as Tekamp testified when explaining

why he believed Nash was not entitled to receive a spousal support award:

              Q: Based on Joint Exhibit 1 are you asking that the Court
              basically accept those sources of income as Ms. Tekamp's sole
              spousal support award and just ask that this Court divide
              everything right there and ask them to (indiscernible) to simply
              walk away from all other sources of income and not award any
              further spousal support?

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              A: That was a long question.

              Q: Sorry… basically… you know… looking at Joint Exhibit 1,
              based on the planning that you've done for your family, are you
              asking that no further spousal support award be ordered?

              A: Yes.

       {¶ 5} Tekamp thereafter testified that he did not believe Nash should receive any

spousal support because "we have a nice chunk of savings that we can split and both be

comfortable… yes that is what I think." This included shares of stock purchased from

Tekamp's employer through a stock purchase and sale agreement. Specifically, as Tekamp

testified regarding these shares:

              Q: So, we've agreed, at this point, to the stock shares values
              being set and fixed at $342.00 a share?

              A: Correct.

              Q: And that you have six thousand of them?

              A: Correct.

              Q: Okay and as the joint exhibit would reflect that represents a
              combined value of $2,052,000.00.

              A: Correct.

              Q: And Joint Exhibit 1 we have broken that down… divided that
              in half to where in this document you were willing to provide half
              of that being $1,026,000.00 to [Nash]?

              A: [Correct.]1

Tekamp further testified that this sum would be paid out over ten years and that he and

Nash would "share that fifty-fifty."

       {¶ 6} On May 30, 2017, the domestic relations court issued a decision that rejected




1. We note that Tekamp actually responded by stating "Mm-hmm." The context of Tekamp's testimony
indicates his response was in the affirmative.
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Tekamp's claim that Nash should not be awarded any spousal support. The domestic

relations court instead awarded Nash spousal support in the amount of $4,500 per month.

The spousal support award was to continue for "an indefinite term to be reasonable and

necessary[.]" The domestic relations court reached this decision after considering the great

disparity in the parties' incomes and their roles in managing the household during their

marriage. The domestic relations court's decision also incorporated the parties' negotiated

agreement on how to divide and distribute their assets.

       {¶ 7} On August 14, 2017, the domestic relations court issued a judgment entry and

decree of divorce. As part of its decree, the domestic relations court noted that "[t]he parties

stipulated that all property and assets are marital and subject to equal division and both

shall cooperate to facilitate the transfer/division." Specifically, as it relates to Tekamp's

401(k) account, the domestic relations court stated:

              Husband is a participant in the Stress Engineer 401(k) with an
              approximate amount of $1,165,901.76. This is to be divided
              50/50 by QDRO. The amount will be rolled-over or distributed
              to wife and will be established as a 401(k) account in the name
              of Sheryl K. Nash.

       {¶ 8} On August 29, 2017, Tekamp filed a notice of appeal from the domestic

relations court's decision. But, after Tekamp failed to file a transcript of proceedings as

required by this court's scheduling order, this court dismissed Tekamp's appeal on January

11, 2018. Approximately one month later, on February 6, 2018, the domestic relations court

issued an amended judgment entry and decree of divorce that modified its spousal support

order from monthly $4,500 payments to one lump sum payment of $60,000. The lump sum

payment corresponded with Tekamp's equity value in one of the properties owned by him

and Nash. This modification was also made by agreement of the parties.

       {¶ 9} On July 2, 2018, Nash filed a notice of presentation of proposed QDRO with

the domestic relations court. The proposed QDRO included language that entitled Nash to

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receive an equal division of Tekamp's 401(k) account as of the stipulated division date of

their marriage, December 31, 2016, plus any "[i]nvestment gains and/or losses" that had

since accrued after that date until distribution. Tekamp objected to the notice and argued

the QDRO should not include the language suggested by Nash. This was because,

according to Tekamp, allowing Nash to take an equal division of the gains his 401(k)

account had since accrued "would be inequitable and against the meaning of the Decree."

       {¶ 10} On July 18, 2018, the domestic relations court held a hearing on the matter.

Following this hearing, the parties submitted supplemental briefings for the domestic

relations court's consideration. After receiving the parties' supplemental briefings, the

domestic relations court issued a decision that approved the proposed QDRO submitted by

Nash that included the requested "gains and/or losses" language.           Specifically, the

domestic relations court approved language in the QDRO that the "[i]nvestment gains

and/or losses [from Tekamp's 401(k) account] will be allocated to [Nash's] portion from

December 31, 2016, until distribution."

       {¶ 11} As part of this decision, the domestic relations court noted Tekamp's

argument that "[b]ecause this benefit was not specifically given to Ms. Nash in the Decree,

Mr. Tekamp argues it cannot be given to her now through the QDRO." But, as noted above,

the domestic relations court disagreed with Tekamp's position. In so holding, the domestic

relations court relied primarily on its Loc.R. 6.9 entitled "Assumptions." Pursuant to that

rule at Section (B)(2)(b):

              2. Unless otherwise agreed, a QDRO for a defined contribution
              plan shall contain the following provisions or be governed by
              these assumptions:

              ***

              b. the alternate payee's share of the benefits shall be credited
              with investment earnings and/or losses from the date of division
              until distribution[.]

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      {¶ 12} The domestic relations court therefore found:

             As a result, though it is true that a Court speaks through its
             entries, and the Decree does not specifically award gains and
             losses from the time of the division date, a Court also speaks
             through its Local Rules, where here indicate that unless
             otherwise agreed, a QDRO shall contain a provision that gives
             the alternate payee all gains and losses from the date of division
             until distribution.

      {¶ 13} Continuing, the domestic relations court stated:

             The Court gave both parties until July 27, 2018 to provide the
             transcript of the final hearing to show whether gains and losses
             were specifically addressed on the record. The Court has
             learned that the issue was not specifically addressed.
             Accordingly, while there is nothing to show gains and losses
             would be included, there is also nothing to say they would not.

             The Court finds the first three words in Local Rule 6.9 to be
             controlling. "Unless otherwise agreed…" gains and losses will
             be included in the QDRO.

             Therefore, the Court will sign a QDRO that gives Ms. Nash as
             the alternate payee all gains and losses since the time of
             division.

      {¶ 14} Concluding, the domestic relations court stated:

             Surely, if Ms. Nash's one-half share was worth LESS now than
             what it had been on December [31], 2016, Mr. Tekamp would
             argue that it would not be fair to take from his portion of the
             401(k) to make up the difference. The converse is also true.

                                          Appeal

      {¶ 15} Tekamp now appeals from the domestic relations court's decision, raising two

assignments of error for review. For ease of discussion, this court will address Tekamp's

two assignments of error together.

      {¶ 16} Assignment of Error No. 1:

      {¶ 17} THE TRIAL COURT ERRED BY FAILING TO ENFORCE THE DIVORCE

DECREE WITH REGARD TO THE 401K OF THE PARTIES.


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       {¶ 18} Assignment of Error No. 2:

       {¶ 19} THE TRIAL COURT'S DECISION TO INCLUDE "GAINS AND LOSSES" IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.

       {¶ 20} In his two assignments of error, Tekamp argues the domestic relations court

erred by approving the proposed QDRO submitted by Nash.                    Specifically, Tekamp

challenges the language that entitled Nash to an equal distribution of any gains and/or

losses accrued by his 401(k) account since the stipulated division date of their marriage,

December 31, 2016, until distribution. We find no merit to Tekamp's claim.

       {¶ 21} A QDRO is 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, ¶ 18. A QDRO is not an independent

judgment entry of the court but is rather "an enforcement mechanism pertaining to a trial

court's previous judgment entry of divorce or dissolution." Ballinger v. Ballinger, 8th Dist.

Cuyahoga No. 105810, 2017-Ohio-7077, ¶ 6, citing Ware v. Ware, 5th Dist. Licking No. 14

CA 28, 2014-Ohio-5410, ¶ 14. When a QDRO is inconsistent with the final divorce decree

it is void and the trial court lacks jurisdiction to issue it. Ballinger at ¶ 7, citing Ramsey at ¶

19. The question of whether a QDRO conflicts with a divorce decree presents a question

of law that this court reviews de novo. Enty v. Enty, 8th Dist. Cuyahoga No. 104167, 2017-

Ohio-4177, ¶ 16.

       {¶ 22} In Merz-Oliver v. Oliver, 12th Dist. Clermont No. CA2002-04-031, 2003-Ohio-

712, this court found a domestic relations court did not err by rejecting appellant's claim that

he should be awarded "dividends, gains, or losses" attributable to appellee's 401(k) account

where the divorce decree was silent on that issue. The decree in that case instead ordered

only that the account was to be divided equally between the parties pursuant to a QDRO.

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In so holding, this court noted that "[i]t is well-established that a trial court lacks jurisdiction

to modify a property division, including the distribution of a retirement plan, after the

issuance of a judgment entry and decree of divorce." Id. at ¶ 22.

       {¶ 23} Tekamp argues that because in Olivier this court found the domestic relations

court did not err by rejecting appellant's claim that he should be awarded "dividends, gains,

or losses" attributable to appellee's 401(k) account in that case, the same must be true here.

That is to say the domestic relations court erred by approving the language contained in the

proposed QDRO submitted by Nash – that she was entitled to receive an equal division of

any accrued "[i]nvestment gains and/or losses" to Tekamp's 401(k) account after the

stipulated division date of their marriage, December 31, 2016, until distribution – when the

divorce decree ordered only the account be "divided 50/50 by QDRO."

       {¶ 24} But, unlike here, the domestic relations court in Olivier did not have guidance

on how to proceed under its local rules. The domestic relations court in this case did. Again,

pursuant to Loc.R. 6.9 Section (B)(2)(b):

               2. Unless otherwise agreed, a QDRO for a defined contribution
               plan shall contain the following provisions or be governed by
               these assumptions:

               ***

               b. the alternate payee's share of the benefits shall be credited
               with investment earnings and/or losses from the date of division
               until distribution[.]

       {¶ 25} The plain language of this rule sets forth a presumption – or in this case an

assumption – that the alternate payee's share shall include any gains and/or losses for a

defined contribution plan unless otherwise agreed. Just as the domestic relations court

found, "while there is nothing in the record to show gains and losses would be included,

there is also nothing to say they would not." Although we believe there is some indirect

evidence indicating gains and/or losses accrued by Tekamp's 401(k) account would be

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included, we agree that there is no specific, explicit, or direct evidence to conclusively

determine the issue either way. Therefore, when considering the domestic relations court's

Loc.R. 6.9 Section (B)(2)(b), it must be assumed that Nash's share of Tekamp's 401(k)

account would include any gains and/or losses accrued after the stipulated division date of

their marriage, December 31, 2016, until distribution. This same assumption would apply

in all instances unless otherwise agreed to by the parties.

       {¶ 26} "Trial courts in this state have the right to interpret and explain their own

entries." McFarland v. McFarland, 5th Dist. Licking No. 01CA00021, 2001 Ohio App. LEXIS

4722, * 10 (Oct. 21, 2001), citing Trifiletti v. Wolford, 9th Dist. Lorain No. 99CA007513, 2000

Ohio App. LEXIS 5163 (Nov. 8, 2000). The same must also be true in regard to a trial court

– or in this case a domestic relations court – interpreting, explaining, and enforcing its own

local rules. See Holdbrook v. Holbrook, 12th Dist. Warren No. 2017-05-055, 2018-Ohio-

2360, ¶ 17 ("courts are given great latitude in following and enforcing their own local rules");

see also Jackson v. Jackson, 11th Dist. Lake Nos. 2011-L-016 and 2011-L-017, ¶ 30 ("the

enforcement of court rules is within the discretion of the court"). This right derives from a

trial court's inherent power to control its own docket and the progress of the proceedings in

its own court. Kranz v. Kranz, 12th Dist. Warren No. CA2012-05-038, 2013-Ohio-1113, ¶

17.

       {¶ 27} "[T]here is no error when, in its sound discretion, the court decides that the

peculiar circumstances of a case require deviation from its own rules." Paramount Parks,

Inc. v. Admiral Ins. Co., 12th Dist. No. CA2007-05-066, 2008-Ohio-1351, ¶ 37 citing Yanik

v. Yanik, 9th Dist. No. 21406, 2003-Ohio-4155, ¶ 9. But, in this case, the domestic relations

did not deviate from its own local rules. The trial court instead adhered to those rules by

applying the assumption contained in Loc.R. 6.9 Section (B)(2)(b). Tekamp claims this was

error and fundamentally unfair given his understanding of the parties' agreement and his

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apparent unfamiliarity with the domestic relations court's local rules. But "[t]he general rule

is that ignorance of the law is no excuse." State ex rel. Board of Education v. Hold, 174

Ohio St. 55, 57 (1962). And, had his 401(k) account accrued losses rather than gains, we

have little doubt that Tekamp would have argued the assumption applied to reflect those

losses.

                                         Conclusion

       {¶ 28} The domestic relations court did not err by approving the proposed QDRO

submitted by Nash that included language that entitled her to an equal distribution of any

gains and/or losses accrued by Tekamp's 401(k) account since the stipulated division date

of their marriage, December 31, 2016, until distribution. That is to say the domestic relations

court properly applied the assumption contained in Loc.R. 6.9 Section (B)(2)(b) to the case

at bar that, unless otherwise agreed, the alternate payee's share shall include any gains

and/or losses for a defined contribution plan. Therefore, finding no merit to any of the

arguments raised by Tekamp herein, Tekamp's two assignments of error are overruled and

the domestic relations court's decision is affirmed.

       {¶ 29} Judgment affirmed.


       RINGLAND, P.J., and PIPER, J., concur.




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