[Cite as Fitzgerald v. Fitzgerald, 2018-Ohio-387.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 105474 and 105476




                            DEBORAH D. FITZGERALD
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                            JOHN W. FITZGERALD, III
                                                           DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Domestic Relations Division
                                    Case No. DR-14-352039

        BEFORE: Laster Mays, J., Stewart, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: February 1, 2018
                               -i-
ATTORNEYS FOR APPELLANT

Joseph G. Stafford
Nicole A. Cruz
Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Margaret E. Stanard
Schoonover Rosenthal Thurman & Daray L.L.C.
1001 Lakeside Avenue, Suite 1720
Cleveland, Ohio 44114

John C. Oberholtzer
Oberholtzer & Filous, L.P.A.
39 Public Square, Suite 201
Medina, Ohio 44256
ANITA LASTER MAYS, J.:

       {¶1} This consolidated appeal arises from the issuance of two amended qualified

domestic relations orders (“QDROs”) journalized on January 23, 2017. We reverse and

remand for further proceedings consistent with this opinion.

I.     Background and Facts

       {¶2} On May 13, 2014, plaintiff-appellee Deborah D. Fitzgerald (“appellee”)

filed a complaint for divorce against defendant-appellant John W. Fitzgerald

(“appellant”).   On April 14, 2015, the parties entered into a property settlement

agreement (“PSA”) resolving all issues except for spousal support and attorney fees that

were addressed through hearings by the court. The PSA also prescribed the terms for the

QDROs, granting each spouse the marital portion of the other party’s retirement plan.

On October 20, 2015, the magistrate issued a decision adopting the PSA and granting the

divorce.

       {¶3} On April 14, 2015, the parties filed four stipulated QDROs. The stipulated

QDROs for appellant’s United Airlines and Continental Airlines retirement plans were

denied. On November 13, 2015, the trial court adopted the magistrate’s decision and, on

December 31, 2015, the trial court issued a nunc pro tunc entry adopting the PSA. On

November 29, 2015, appellee submitted two amended QDROs to appellant.
      {¶4} On December 1, 2015, appellant opposed the amended QDROs, arguing that

the terms did not comply with the PSA and the trial court lacked authority under R.C.

3105.171 to amend the terms. Appellant later filed a hearing request.

      {¶5}    On December 3, 2015, appellee filed a notice of submission of the QDROs

under Loc.R. 28 of the Court of Common Pleas of Cuyahoga County, Domestic Relations

Division. On December 21, 2015, a status call was scheduled for January 19, 2016 on

the motion for evidentiary hearing. On December 22, 2015, the status call notice was

reissued for the same time and date but before a different judge, and then was

subsequently rescheduled for February 16, 2016.

      {¶6} New counsel entered an appearance for appellee on October 27, 2016. On

January 23, 2017, a third judge approved the amended QDROs. The consolidated appeals

followed.

II.   Assignments of Error

      {¶7}    Appellant presents two assigned errors:

      I.     The trial court erred as a matter of law and abused its discretion by
             issuing the amended QDROs that are inconsistent with the PSA.

      II.    The trial court erred as a matter of law and abused its discretion by
             adopting the amended QDROs without a hearing and without
             addressing appellant’s objections.
III.    Discussion

        {¶8}    We combine the assigned errors for judicial economy.          Generally, the

division or distribution of marital property is not subject to future modification by a court.

 A QDRO prescribes the division of retirement and pension accounts. R.C. 3105.171.

The parties agree that the QDROs do not comply with the PSA of the parties. Appellant

argues that the trial court erred by issuing the QDROs without responding to appellant’s

objections and without a hearing. Appellee argues that the QDROs are void because the

trial court lacked jurisdiction to issue them. As a result, appellee posits that the QDROs

do not constitute final appealable judgments under R.C. 2505.02 because no substantial

rights are affected.

        {¶9} In Brownlee v. Brownlee, 8th Dist. Cuyahoga No. 94494, 2010-Ohio-5602,

the appellant appealed the denial of a motion to set aside a QDRO on the grounds that

“the order was not consistent with the judgment entry of divorce.” Id. at ¶ 5. We

determined,

        “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 terms
        of the divorce decree.”      [Wilson v. Wilson, 116 Ohio St.3d 268, 878
        N.E.2d 16, 2007-Ohio-6056,] 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, 5th
        Dist. Stark No. 2009CA00090, 2010-Ohio-534, ¶ 9.

Id. at ¶ 6.

        {¶10} “A QDRO that fails to implement the divorce decree is void” and a “trial

court has the inherent power to vacate a void decree.” Id. at ¶ 8, citing Bagley v. Bagley,
181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469, ¶ 26 (2d Dist.), Himes v. Himes,

5th Dist. Tuscarawas No. 2004AP020009, 2004-Ohio-4666, ¶ 20-21; Doolin v. Doolin,

123 Ohio App.3d 296, 704 N.E.2d 51 (6th Dist.1999).

       {¶11}    The Brownlee dissent opined that the motion to vacate the QDRO was

merely an attempt to circumvent the failure to timely appeal. “[T]he reservation of

jurisdiction to modify the terms of a division of marital property does not implicate

subject matter jurisdiction.” Id. at ¶ 11, citing Bagley at ¶ 44.

       {¶12}    The Second District subsequently shifted its position in Bagley and

determined that:

       [W]e overrule our holding in Bagley, that a QDRO which varies from the
       division of pension plan benefits ordered in a decree of divorce or
       dissolution in violation of R.C. 3105.171(I) is void for lack of jurisdiction,
       and hold that the violation is voidable for error. Being voidable for error,
       the QDRO is an order subject to appeal for review of the error concerned.

Pearl v. Pearl, 2012-Ohio-4752, 980 N.E.2d 1095, ¶ 17 (2d Dist.). This shift supports

the Brownlee dissent’s refusal to wholly jurisdictionalize the issue.

       {¶13} At the oral argument in this case, counsel expressed frustration with the

tension resulting from the requirement to timely appeal an order regarding a QDRO and

the reality that it may takes months for a plan administrator to deny a QDRO, requiring

further attention by the trial court. It is in recognition of this dichotomy that we elect to

shift our position previously expressed in Brownlee, noting that Brownlee was based on

the Second District’s Bagley decision that was subsequently rejected in Pearl.
       {¶14} We find that the interest of justice is served, and procedural difficulties

addressed, by declaring that the issue of the propriety of a QDRO is voidable for error and

therefore subject to appeal.1 Subject matter jurisdiction is not implicated where a trial

court has reserved jurisdiction to “modify the terms of a division of marital property.”

Brownlee at ¶ 11, citing Bagley, 181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469,

at ¶ 44. Where simple error does not initially exist, but a plan administrator subsequently

rejects a QDRO, the proper vehicle to address the matter is through Civ.R. 60(B).2

       {¶15} In the case before us, the parties agree that the QDROs do not comply with

the PSA and the appeals were timely filed. We find that this court has jurisdiction to

entertain the matter as a matter of law. We vacate the orders and remand the case to the

trial court for an evidentiary hearing to review the PSA and determine whether it is

inconsistent with the QDROs. The combined assigned errors are sustained.

IV.    Conclusion

       {¶16} The trial court’s order is reversed, and the case is remanded to the trial

court to hold a hearing to entertain the question of whether the QDROs comply with the

PSA.

       It is ordered that appellee and appellant bear its own costs herein taxed.



           We note that the Brownlee decision included a concurrence in judgment only and dissent.
       1




            The Civ.R. 60(B) motion posed by the appellant in Brownlee “failed to make any
       2


argument on the requisite elements of a motion for relief from judgment as set forth in paragraph two
of the syllabus to GTE Automatic Elec. v. ARC Indus., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976).”
Id. at ¶ 12.
       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 division 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.



___________________________________
ANITA LASTER MAYS, JUDGE

MELODY J. STEWART, P.J., and
MARY J. BOYLE, J., CONCUR
