[Cite as Drummond v. Drummond, 2013-Ohio-2003.]


                                    COURT OF APPEALS
                                 FAIRFIELD COUNTY, OHIO
                                FIFTH APPELLATE DISTRICT

ARLENE K. DRUMMOND                                   JUDGES:
                                                     Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                            Hon. William B. Hoffman, J.
                                                     Hon. Sheila G. Farmer, J.
-vs-
                                                     Case No. 12-CA-36
JAMES E. DRUMMOND, AND THE
ESTATE OF JAMES E. DRUMMOND
                                                     OPINION
       Defendant-Appellant




CHARACTER OF PROCEEDING:                          Appeal from the Fairfield County Court of
                                                  Common Pleas, Case No. 96 DR 237


JUDGMENT:                                         Reversed and Remanded


DATE OF JUDGMENT ENTRY:                           May 13, 2013


APPEARANCES:


For Plaintiff-Appellee                            For Defendant-Appellant


MARTY ANDERSON                                    MARK A. MCLEOD
ERIC W. JOHNSON                                   471 East Broad Street, 19th Floor
Sowald Sowald Anderson                            Columbus, Ohio 43215-3872
& Hawley
400 S. Fifth Street, Suite 101
Columbus, Ohio 43215
Fairfield County, Case No. 12-CA-36                                                      2

Hoffman, J.


       {¶1}   Defendant-appellant the Estate of James E. Drummond appeals the June

12, 2012 Judgment Entry entered by the Fairfield County Court of Common Pleas in

favor of Plaintiff-appellee Arlene K. Drummond.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellee and James Drummond (“Decedent”) were married in Williamson,

West Virginia, on December 20, 1969. Five children were born as issue of said union.

Appellee and Decedent were divorced via Judgment Entry/Decree of Divorce filed

November 26, 1997. The Decree incorporated this Separation Agreement reached by

Appellee and Decedent. At the time of the divorce, Decedent was a retired educator,

receiving retirement benefits as provided by the State Teacher Retirement System of

Ohio (“STRS”).

       {¶3}   With respect to Decedent's STRS benefits, the Decree of Divorce

provides:

       {¶4}   “(a) Until such time a Qualified Domestic Relations Order (“QDRO”)

assigning the portion of Defendant's benefits to Plaintiff as alternate payee under the

STRS pension plan is permitted by law, Defendant shall pay to Plaintiff the sum of

$1,374.00 per month (44.41% of Defendant's gross monthly benefit), plus poundage

and cost-of-living increases, for Plaintiff's interest in the STRS Plan as spousal support,

payable until the death of either Defendant or the Plaintiff.

       {¶5}   “(b) Said payments from the STRS shall be deemed periodic spousal

support and shall be taxable income to the Plaintiff and tax deductible from the income

of the Defendant * * *
Fairfield County, Case No. 12-CA-36                                                      3


       {¶6}   “To effectuate this provision, Defendant shall continue to maintain Plaintiff

as the sole irrevocable beneficiary of $1,374.00 per month or 44.41% of his gross

monthly retirement benefit, plus cost-of-living increases, and shall take all necessary

actions to assure and guarantee that Plaintiff will receive 44.41% of Defendant's gross

monthly retirement benefit for the remainder of the Plaintiff's life in the event that

Defendant precedes Plaintiff in death.

       {¶7}   “During Plaintiff's lifetime, Defendant shall continue to designate Plaintiff

as his sole irrevocable beneficiary of 44.41% of said retirement benefit and, the

Defendant's legal separation from the Plaintiff, their divorce, a dissolution of their

marriage, the Defendant's remarriage, the birth of a child of the Defendant or his

adoption of a child, shall not constitute and automatic revocation of Plaintiff as the

beneficiary of 44.41 % of Defendant's monthly payments from STRS.”

       {¶8}   Article 4, Section E, of the Separation Agreement provides:

       {¶9}   “11. If HUSBAND precedes WIFE in death, spousal support payments

shall terminate and WIFE'S interest in the STRS Pension shall be replaced by the STRS

survivor benefits as set forth herein.

       {¶10} “To effectuate this provision, HUSBAND shall continue to maintain WIFE

as the sole irrevocable beneficiary of $1,374.00 per month or 44.41% of his gross

monthly retirement benefit, plus costs-of-living increases, and shall take all necessary

actions to assure and guarantee that WIFE will receive 44.41% of HUSBAND'S gross

monthly retirement benefit for the remainder of the WIFE'S life in the event that

HUSBAND precedes WIFE in death.”
Fairfield County, Case No. 12-CA-36                                                     4


      {¶11} Section 6, subsection (n) of the Decree of Divorce also provides the trial

court “shall continue to maintain subject matter jurisdiction over the issues of

Defendant's designation of plaintiff as the beneficiary of his retirement benefits through

the STRS.”

      {¶12} Decedent passed away on September 7, 2006. On February 20, 2009, the

Estate filed a notice of suggestion of death; a notice for substitution of parties; and a

motion for contempt. In the motion for contempt, the Estate argued Appellee had

received and maintained 100% of the monthly survivor benefits from STRS, not the

44.41% for which the Decree had provided; therefore, the Estate argued Appellee was

in contempt by retaining these funds.

      {¶13} The Estate asked the trial court to impose a constructive trust and order

Appellee to hold the funds for the benefit for the Estate. Appellee filed a memorandum

in opposition thereto on April 16, 2009. Subsequently, Appellee filed a Motion to

Dismiss, asserting the trial court was without jurisdiction to hear the Estate's motion.

The Estate filed a memorandum contra Appellee's motion to dismiss. The magistrate

issued a scheduling order on June 12, 2009. Pursuant thereto, the parties were ordered

to reach an agreement as to the uncontested facts of the case. The parties filed Joint

Stipulated Findings of Fact on August 21, 2009. On September 3, 2009, Appellee filed a

second, additional memorandum in opposition to the Estate's motions and in support of

her motion to dismiss. The Estate filed a supplemental memorandum contra Appellee's

motion to dismiss on September 4, 2009. The magistrate conducted a non-oral hearing

on the pending motions, memorandum, and stipulations filed in the matter.
Fairfield County, Case No. 12-CA-36                                                        5


       {¶14} Via Decision filed December 24, 2009, the magistrate granted Appellee's

motion to dismiss, finding the trial court lacked jurisdiction. The magistrate further found,

assuming the trial court had jurisdiction, there was no basis for a constructive trust and

Appellee was not unjustly enriched. The trial court dismissed the contempt action and

the Estate's claim for attorney fees. The Estate filed objections to the magistrate's

decision. Via Entry filed April 1, 2010, the trial court approved and adopted the

magistrate's decision as order of the court.

       {¶15} Appellant filed an appeal from the May 1, 2010 Entry to this Court. On

appeal, this Court held the trial court does have power to clarify and construe its original

property division order to effectuate judgment, and the Estate was asking the trial court

to enforce implementation of the division of the pension as it originally decreed. As a

result, this Court held the trial court had jurisdiction over the Estate's request, and the

trial court erred in finding it lacked jurisdiction. Further, this Court held the trial court

erred and abused its discretion in failing to impose a constructive trust based on the

language of the parties' Separation Agreement. Appellee's cross-appeal concerning

attorney fees was overruled. Accordingly, this Court reversed the judgment in part and

remanded the matter to the trial court for further proceedings.        See, Drummond v.

Drummond, Fairfield App. No. 10CA20, 2010-Ohio-6139.

       {¶16} On remand, the trial court conducted a hearing on February 10, 2012.

The trial court considered the equities prior to determining the existence of a

constructive trust finding it retained the authority and discretion to apply all equitable

principles to the matter on remand. The trial court further found the court never issued

an order naming the Estate of James E. Drummond, JoAnn Kelly-Drummond, or any
Fairfield County, Case No. 12-CA-36                                                   6


other party as a party to the case. The trial court found it would be inequitable to

retroactively impose a constructive trust to the date of Decedent's death, and the

Separation Agreement and Judgment Entry Decree of Divorce are not the only

documents necessary to review in order to determine the intent of the parties. On June

12, 2012, the trial court, via Judgment Entry, denied the imposition of the constructive

trust finding the equities do not support the imposition of a constructive trust.

         {¶17} Appellant the Estate of James E. Drummond now appeals, assigning as

error:

         {¶18} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION IN FAILING TO IMPOSE A CONSTRUCTIVE TRUST AS

PREVIOUSLY MANDATED BY THIS COURT.

         {¶19} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION BY ALLOWING TESTIMONY AND EQUITABLE ARGUMENT AS TO

WHETHER OR NOT A CONSTRUCTIVE TRUST SHOULD BE IMPOSED.

         {¶20} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

ALLOWING TESTIMONY AND EQUITABLE ARGUMENT AS TO APPELLANT’S

ABILITY TO REPAY, RETROSPECTIVELY AND PROSPECTIVELY, THAT PORTION

OF STRS RETIREMENT BENEFITS, WHICH SHE WAS NOT ENTITLED TO RECEIVE

IN THE FIRST PLACE.”

                                            I, II, and III.

         {¶21} Appellant's assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.
Fairfield County, Case No. 12-CA-36                                                       7


       {¶22} Appellant asserts the trial court erred in failing to impose a constructive

trust. We agree.

       {¶23} The law of the case doctrine establishes the “decision of a reviewing court

in a case remains the law of that case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels.” Pipe Fitters Union Local

No. 392 v. Kokosing Constr. Co., Inc., 81 Ohio St.3d 214, 218, 690 N.E.2d 515 (1998),

quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). “[A]n inferior court

has no discretion to disregard the mandate of a superior court in a prior appeal in the

same case.” Nolan, at syllabus.

       {¶24} As set forth in the Statement of the Facts and Case, supra, this Court

previously held the trial court had jurisdiction in this matter to enforce division of the

pension as it originally decreed, and the trial court erred and abused its discretion in

failing to impose a constructive trust based on the language of the parties' Separation

Agreement. This Court reversed that portion of the trial court's April 1, 2010 Entry and

remanded the matter to the trial court for further proceedings in accordance with this

Court's December 9, 2010 Opinion and Judgment Entry.

       {¶25} We find our prior decision on both the issues of jurisdiction and the

imposition of a constructive trust are law of the case as set forth in this Court's prior

opinion, and the trial court erred in failing to impose the constructive trust as previously

ordered. This Court remanded the matter to the trial court for a determination of the

amount of the constructive trust and the proper terms of repayment.1 Accordingly, the



1
  Though we recognize the following is merely dicta, we offer the same as guidance as
one possible alternative for determining the amount due Appellant via the constructive
trust. The monthly payment James Drummond received during his lifetime was based
Fairfield County, Case No. 12-CA-36                                                8


June 12, 2012 Judgment Entry of the Fairfield County Court of Common Pleas is

reversed, and the matter remanded to the trial court for further proceedings in

accordance with the law and this opinion.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER




upon his election to retain 100% survivorship benefits for Appellee. We presume had
the survivorship benefits been limited to the 44.41% specified in the divorce decree,
James Drummond’s monthly payment would have been greater than that actually
received. The difference between those two monthly payments multiplied by the
number of monthly payments made after the date of the divorce decree through the
date of James Drummond’s death might well be the appropriate amount to fund the
constructive trust.
Fairfield County, Case No. 12-CA-36                                                 9


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


ARLENE K. DRUMMOND                        :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
JAMES E. DRUMMOND, AND THE                :
ESTATE OF JAMES E. DRUMMOND               :
                                          :
       Defendant-Appellant                :         Case No. 12-CA-36


       For the reason stated in our accompanying Opinion, the June 12, 2012 Judgment

Entry of the Fairfield County Court of Common Pleas is reversed, and the matter

remanded to the trial court for further proceedings in accordance with the law and our

Opinion. Costs to Appellee.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
