[Cite as Pawlak v. Pawlak, 2011-Ohio-5652.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 95734




                                 PATRICIA PAWLAK
                                                    PLAINTIFF-APPELLANT

                                              vs.

                                   JOSEPH PAWLAK
                                                    DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas,
                                 Domestic Relations Division
                                     Case No. D-233625

        BEFORE: Cooney, J., Kilbane, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: November 3, 2011

ATTORNEY FOR APPELLANT
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Robert J. Sindyla
Sindyla Law Offices
7425 Royalton Road
North Royalton, Ohio 44133


ATTORNEY FOR APPELLEE

For Joseph Pawlak

Margaret E. Stanard
Stanard & Corsi, Co., L.P.A.
1370 Ontario Street
748 Standard Building
Cleveland, Ohio 44113

For Cleveland Bakers & Teamsters, etc.

Cleveland Bakers & Teamsters Pension Fund
9665 Rockside Road, Ste. D
Valley View, Ohio 44125


COLLEEN CONWAY COONEY, J.:

          {¶ 1} Plaintiff-appellant, Patricia Pawlak (“Patricia”), appeals the court’s granting

the motion to vacate a qualified domestic relations order (“QDRO”) filed by

defendant-appellee, Joseph Pawlak (“Joseph”).          Finding no merit to the appeal, we

affirm.

          {¶ 2} Patricia and Joseph were divorced on March 8, 1995.      Their divorce decree

incorporates their separation agreement, which provides, in pertinent part:

          “Wife shall retain Husband’s Sysco Pension Plan, pursuant to a Qualified
          Domestic Relations Order prepared by Wife’s counsel, and approved by
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       Husband’s counsel upon the journalization of the parties’ Judgment Entry for
       Divorce.”

       {¶ 3} The QDRO states, in pertinent part:

       “* * * Patricia Pawlak would receive one hundred percent (100%) of the
       Participant Joseph Pawlak’s accrued benefit in the Cleveland Bakers and
       Teamsters Pension Fund * * *.”

       {¶ 4} In January 2010, well over a decade after the execution of the separation

agreement and QDRO, Joseph filed a motion to vacate the QDRO claiming that he never

intended to give Patricia 100% of his Cleveland Bakers pension. Joseph contends that

he gave Patricia 100% of his Sysco pension plan, as stipulated in the separation

agreement, and entered by the divorce decree.         The magistrate found in favor of Joseph’s

motion to vacate the QDRO, finding that it is void ab initio because it is inconsistent with

the separation agreement.

       {¶ 5} The      magistrate granted Joseph’s additional motion for a nunc pro tunc

entry1 and allowed the temporary restraining order to remain in effect for the Cleveland

Bakers Pension Fund.         Patricia objected to the magistrate’s decision, but the court

overruled her objections and adopted the decision in its entirety.

       {¶ 6} Patricia now appeals, raising three assignments of error.

       {¶ 7} When reviewing the propriety of a trial court’s determination in a domestic

relations case, an appellate court generally applies an abuse of discretion standard.



           The nunc pro tunc entry has been stayed pending this appeal.
       1
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Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. “The term ‘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 (1983),

5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d

151, 157, 404 N.E.2d 144.

       {¶ 8} In her first assignment of error, Patricia argues that the court erred as a

matter of law by overruling her objection to the magistrate’s decision and subsequently

denying her motion in opposition and to strike, and granting Joseph’s motion to vacate

and motion for nunc pro tunc entry. Patricia also argues that the court erred in ruling

that the temporary restraining order is still in effect.   Patricia also contends that the court

erred when it failed to apply the doctrine of res judicata to bar Joseph’s claims.

       {¶ 9} However, it is well established that:

       “[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.” Bagley v. Bagley, 181 Ohio
       App.3d 141, 2009-Ohio-688, 908 N.E.2d 469, ¶26, citing Tarbert v. Tarbert
       (Sept. 27, 1996), Clark App. No. 96-CA-0036.

       {¶ 10} Moreover, “a 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; see, also, Brownlee v. Brownlee, Cuyahoga App.

No. 94494, 2010-Ohio-5602.         “A QDRO does not in any way constitute a further

adjudication on the merits of the pension division, as its sole purpose is to implement the
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terms of the divorce decree.”       Wilson at ¶16.       “Once a division of property is

established in the divorce decree that decision ‘is not subject to future modification by the

court.’ R.C. 3105.171(I).”     Schneider v. Schneider, Stark App. No. 2009CA00090,

2010-Ohio-534, ¶9. Thus, an inconsistent QDRO that fails to implement the divorce

decree is void. Brownlee at ¶8, citing Bagley at ¶27.       The trial court has the inherent

power to vacate a void decree.

       {¶ 11} Although Patricia claims that the Sysco pension and the Cleveland Bakers

pension are one and the same, Joseph contends that they are two distinct pensions.       The

record contains limited documentation of the Cleveland Bakers pension plan, including an

investigation of the pension conducted prior to the divorce. No proof of a second and

distinct “Sysco Pension” is contained in the record. Although the existence of a second

pension plan is questionable, the magistrate was correct in pointing out that “[t]he intent

of the parties in dividing whatever pension benefits were accrued at the time of the

divorce is currently not the issue before the Court.”   Although it is possible that the error

is contained in the separation agreement as opposed to the QDRO, this appeal does not

involve a motion to correct the separation agreement.

       {¶ 12} Patricia also argues that Joseph’s motions are barred by the doctrine of res

judicata.   However, “[a] QDRO is not an independent judgment entry of the court, but

rather an enforcement mechanism * * *.”                 Himes v. Himes, 5th Dist. No.

2004AP020009, 2004-Ohio-4666, ¶19. “The QDRO is merely a tool used to execute the
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divorce decree.”     Wilson at ¶19.    In turn, “because a QDRO is a court order that

effectuates the allocation of rights determined in the divorce decree, the QDRO itself

does not represent an adjudication of any issues of law or fact. The doctrine of res

judicata is therefore inapplicable.”    Kingery v. Kingery, Logan App. No. 8-05-02,

2005-Ohio-3608, ¶10.

       {¶ 13} Accordingly, Patricia’s first assignment of error is overruled.

       {¶ 14} In her second assignment of error, Patricia argues that the court erred in

finding that the QDRO was not prepared pursuant to the divorce decree.          We disagree.

The QDRO is clearly inconsistent on its face from the divorce decree in regard to the title

given to Joseph’s pension plan. Therefore, the QDRO is void and the court committed

no error in vacating it.

       {¶ 15} Accordingly, Patricia’s second assignment of error is overruled.

       {¶ 16} In her third assignment of error, Patricia argues that the court erred in

accepting the magistrate’s decision despite Joseph’s failure to satisfy the requirements of

Civ.R. 60(B).

       {¶ 17} It is well established that when a party claims that a judgment is void, that

party need not comply with Civ.R. 60(B). Instead, a trial court retains inherent authority

to vacate a void judgment. See Brownlee at ¶8 (“The trial court has the inherent power to

vacate a void decree. A party need not comply with Civ.R. 60(B) to vacate a void decree,”

citing Plummer v. Plummer, Montgomery App. No. 23743, 2010-Ohio-3450, ¶27.)
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       {¶ 18} Accordingly, Patricia’s third assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the domestic

relations court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



       ___________________________________________________
       COLLEEN CONWAY COONEY, JUDGE

       MARY EILEEN KILBANE, A.J., CONCURS;
       PATRICIA ANN BLACKMON, J., DISSENTS (WITH SEPARATE OPINION
       ATTACHED).

       PATRICIA ANN BLACKMON, J., DISSENTING:

       {¶ 19} I respectfully dissent from the majority opinion.       In his concurrence in

Bagley v. Bagley, 181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469, Judge Fain

opined that R.C. 3105.171(I) should not be used to restrict subject matter jurisdiction and

void final judgments. I agree with him that an order violating R.C. 3105.171(I) is at best

reversible error and voidable.

       {¶ 20} In 2010, this court adopted the void approach to QDROs labeled

inconsistent with divorce decrees in Brownlee v. Brownlee, Cuyahoga App. No. 94494,
                                             8

2010-Ohio-5602. In her dissent in Brownlee, Judge Stewart said “I agree with Judge

Fain — the reservation of jurisdiction to modify the terms of a division of marital

property does not implicate subject matter jurisdiction.” She pointed out, as Judge Fain

did, that the proper way to resolve these “simple” errors is to either correct it at the trial

court level or appeal the divorce decree.     If one does not appeal or seek to correct the

entry, the point remains that it is final and should remain final.

       {¶ 21} In this case, because the facts are different from most other void QDRO

orders, one could argue that this void approach is a false mechanism that has the effect of

giving a party a “new bite at the otherwise agreed upon apple.”

       {¶ 22} It was 16 years ago when appellant and appellee signed their separation

agreement and the lawyers signed the QDRO.         Fifteen years later, the trial court voided

the QDRO as inconsistent with the divorce decree; but is it?         The appellee ex-husband

had only one pension plan, Cleveland Bakers & Teamsters Pension Plan. He had two

employers, Sysco and Seaway, that paid into that plan.       The separation agreement gave

appellant ex-wife 100% of the Sysco Plan, which does not exist. The QDRO identified

the only and correct plan, Cleveland Bakers & Teamsters.             Thus, it appears that a

“simple error” existed in the divorce decree, not in the QDRO.

       {¶ 23} Because I see this as a simple, correctable error, the trial court should be

allowed to have a hearing to resolve the intent of the parties, especially where the divorce
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decree misidentifies the pension plan.   A hearing is the least costly and most efficient

way to resolve the problem.
