[Cite as Jewett v. Jewett, 2014-Ohio-2343.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




DONALD D. JEWETT,                                   :
                                                          CASE NO. CA2013-11-110
        Plaintiff-Appellant,                        :
                                                                OPINION
                                                    :            6/2/2014
    - vs -
                                                    :

ELIZABETH A. JEWETT,                                :

        Defendant-Appellee.                         :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                             Case No. 96DR21228



Rogers & Greenberg, LLP, Keith R. Kearney, 2160 Kettering Tower, Dayton, Ohio 45423, for
plaintiff-appellant

Jeffrey E. Richards, 147 Miami Street, P.O. Box 536, Waynesville, Ohio 45068, for
defendant-appellee



        S. POWELL, J.

        {¶ 1} Plaintiff-appellant, Donald D. Jewett, appeals from the decision of the Warren

County Court of Common Pleas, Domestic Relations Division, interpreting and clarifying the

phrase "accrued benefits" found in the Qualified Domestic Relations Order (QDRO) to

include both his so-called "basic" and "supplemental" benefits received from his employer,

General Motors, following his most recent divorce from defendant-appellee, Elizabeth A.
                                                                        Warren CA2013-11-110

Jewett. For the reasons outlined below, we affirm.

       {¶ 2} Donald and Elizabeth were first married in 1978 and later divorced in 1996. As

it relates to the division of Donald's pension and retirement benefits received from General

Motors during their first marriage, the trial court stated as part of its final divorce decree that

Elizabeth was to receive "one-half of any benefit accumulated by [Donald] from November

10, 1978 through June 25, 1996."

       {¶ 3} Donald and Elizabeth remarried in 2003 only to again divorce in 2011. The final

divorce degree following their second marriage included similar language regarding the

division of Donald's pension and retirement benefits. Specifically, the final divorce decree

stated, in pertinent part, that Elizabeth was to receive an additional benefit of "one-half of the

marital portion accumulated" during the parties' second marriage.

       {¶ 4} A QDRO was then filed on January 24, 2012. As part of the QDRO, Elizabeth

was to receive one-half of the marital portion of Donald's pension benefits as it relates to his

"Accrued Benefit under the Plan as of [Donald's] benefit commencement date." Thereafter,

Elizabeth began receiving her portion of Donald's pension benefits. However, approximately

one year later, the Pension Benefit Guaranty Corporation (PBGC), the trustee of Donald's

pension plan, informed Elizabeth that she was only entitled to receive one-half of Donald's

"basic" benefits, and not any portion of his "supplemental" benefits.

       {¶ 5} On June 14, 2013, Elizabeth filed a motion requesting the trial court clarify the

terms of the QDRO as it relates to Donald's pension benefits. After allowing the parties to

submit additional briefing on the matter, a magistrate issued its decision finding Elizabeth

was entitled to receive one-half of Donald's accrued benefits, regardless of whether those

benefits were classified as "basic" or "supplemental" benefits by his employer or PBGC. As

the magistrate stated:

              This magistrate finds that the term accrued benefits incorporates
              any and all benefits that [Donald] was entitled to through his
                                                -2-
                                                                      Warren CA2013-11-110

              employment at [General Motors], which would include both the
              basic and supplemental benefits. There is no logical or equitable
              reason to find that the term 'accrued benefit' means only the
              'basic benefit.'

       {¶ 6} Donald filed objections to the magistrate's decision on September 26, 2013.

On October 25, 2013, the trial court issued its decision overruling Donald's objections to the

magistrate's decision. In so holding, the trial court found neither of the parties' final divorce

decrees, nor the QDRO itself, limited the benefits Elizabeth was to receive to Donald's

"basic" benefits. Rather, the trial court determined that if Donald's "supplemental benefits

accumulated during the times that the parties were married, [Elizabeth] is entitled to half of

those benefits as well."

       {¶ 7} Donald now appeals from the trial court's decision interpreting and clarifying the

QDRO, raising a single assignment of error for review.

       {¶ 8} THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT THE

TERM 'ACCRUED BENEFITS' INCORPORATES ANY AND ALL BENEFITS THAT THE

APPELLANT WAS ENTITLED TO THROUGH HIS EMPLOYMENT, INCLUDING BOTH

BASIC AND SUPPLEMENTAL BENEFITS, AND THEREFORE FINDING THAT THE

QUALIFIED DOMESTIC RELATIONS ORDER MUST BE MODIFIED TO PROVIDE

APPELLEE WITH BOTH BENEFITS, AS SUCH DETERMINATION IS CONTRARY TO LAW

BECAUSE IT WOULD PROVIDE THE APPELLEE A BENEFIT THAT VARIES FROM THE

TERMS OF THE PARTIES' FINAL DECREE FILED ON DECEMBER 2, 2011.

       {¶ 9} In his single assignment of error, Donald argues the trial court erred in its

interpretation and clarification of the QDRO by finding the term "accrued benefits" included

both his so-called "basic" and "supplemental" benefits he received as part of his pension

plan. We disagree.

       {¶ 10} "Revised Code 3105.171(I) prohibits a trial court from modifying a previous

property division." Veidt v. Cook, 12th Dist. Butler No. CA2003-08-209, 2004-Ohio-3170, ¶
                                               -3-
                                                                       Warren CA2013-11-110

10. A QDRO, however, is merely an order in aid of execution, and therefore, not subject to

the "prohibitions imposed with respect to modification of final orders nor the jurisdictional

limitations of R.C. 3105.171(I), so long as the QDRO is not at variance with the decree."

Coterel v. Coterel, 2d Dist. Montgomery No. 20899, 2005-Ohio-5577, ¶ 13; McKinney v.

McKinney, 142 Ohio App.3d 604, 608 (2d Dist.2001); see also Wilson v. Wilson, 116 Ohio

St.3d 268, 2007-Ohio-6056, ¶ 7 (stating a QDRO "implements the court's decision of how a

pension is to be divided incident to divorce or dissolution"). In turn, "[a] QDRO which is

inconsistent with a division ordered in the decree of divorce or dissolution operates to modify

the decree, and per R.C. 3105.171(I) the court lacks jurisdiction to enter the QDRO." Pearl v.

Pearl, 2d Dist. Champaign No. 2012-CA-6, 2012-Ohio-4752, ¶ 11; Butcher v. Butcher, 8th

Dist. Cuyahoga No. 95758, 2011-Ohio-2550, ¶ 9.

       {¶ 11} Nevertheless, "[i]f there is good faith confusion over the interpretation to be

given to a particular clause of a divorce decree, the trial court in enforcing that decree has the

power to hear the matter, clarify the confusion, and resolve the dispute." Flint v. Flint, 5th

Dist. Delaware No. 11 CAF 11 0102, 2012-Ohio-3379, ¶ 10, quoting Quisenberry v.

Quisenberry, 91 Ohio App.3d 341, 348 (2d Dist.1993); Huckle v. Huckle, 6th Dist. Erie No. E-

02-027, 2003-Ohio-485, ¶ 11. "A trial court has broad discretion in clarifying ambiguous

language by considering the parties' intent and the equities involved." Butcher at ¶ 10. An

interpretive decision by the trial court cannot be disturbed upon appeal absent a showing of

an abuse of discretion. Schneider v. Schneider, 5th Dist. Stark No. 2009CA00090, 2010-

Ohio-534, ¶ 10, quoting Bond v. Bond, 69 Ohio App.3d 225, 227-228 (9th Dist.1990).

       {¶ 12} In this case, it is clear that good faith confusion exists over the proper

interpretation of the phrase "accrued benefits" as found in the QDRO, thereby requiring

clarification by the trial court. Unfortunately, the phrase "accrued benefits" is not further

defined in either of the parties' divorce decrees, nor as part of the applicable QDRO.

                                               -4-
                                                                     Warren CA2013-11-110

However, a nearly identical issue has already been addressed by the Second District Court

of Appeals in Coterel and Gearhart v. Gearhart, 2d Dist. Montgomery No. 17725, 1999 WL

1043894 (Nov. 19, 1999).

       {¶ 13} For instance, in Coterel, plaintiff-appellant, Lawrence Coterel, argued the trial

court erred by finding the phrase "all benefits" included within a final divorce decree

encompassed both the "basic retirement benefit plus a supplemental retirement benefit" he

received after retiring from General Motors. Id., 2005-Ohio-5577 at ¶ 8. In overruling this

argument, the Second District stated, in pertinent part, the following:

              There is no support in the record for this claim. The decree
              orders "all benefits" which Lawrence receives from the General
              Motors Pension Plan upon his retirement divided equally with
              Brenda. No evidence was offered showing that the source of
              both benefits is anything other than the "General Motors Pension
              Plan" to which the decree refers, or that the basis for the
              payments each involves is other than Lawrence's service as a
              General Motors employee. The domestic relations court was
              entitled to construe the terms of its decree as they apply to the
              supplemental benefit. On this record, we find no abuse of
              discretion.

Id. at ¶ 9.

       {¶ 14} The Second District's decision in Coterel was based on its prior decision in

Gearhart, a case in which the Second District determined the phrase "accrued benefits"

found in a QDRO included both the so-called "basic" and "supplemental" benefits received

as part of a pension plan from General Motors. Gearhart, 1999 WL 1043894 at *3; see also

Hocker v. Hocker, 171 Ohio App.3d 279, 2007-Ohio-1671, ¶ 22-28, 39 (2d Dist.) (addressing

similar provision regarding allocation of basic and supplemental benefits in a pension plan).

       {¶ 15} The Ninth District Court of Appeals also addressed this issue in Straw v. Straw,

9th Dist. Lorain No. 04CA008433, 2004-Ohio-4065. In that case, plaintiff-appellant, David

Straw, appealed alleging the trial court erred by modifying a QDRO to include a provision

allowing his former wife to receive a percentage of his total pension benefits, not merely his

                                              -5-
                                                                        Warren CA2013-11-110

"monthly benefits," after he began receiving "supplemental" benefits upon his retirement

from Ford Motor Company. Id. at ¶ 3. In overruling this claim, the Ninth District determined

that the trial court did not improperly modify the previous property division, but rather, merely

clarified "whether 'monthly benefit' includes all benefits paid per that pension monthly to

Appellant, or merely a portion of them." Id. at ¶ 9. Specifically, in finding no error in the trial

court's decision, the Ninth District stated:

              In this case, the original QDRO awarded Appellee a certain
              percentage of Appellant's "monthly benefit at the time of
              distribution[.]" The trial court did not add an interest provision; it
              did not change the amount of a lump sum award; it did not
              change the date of valuation. Rather, the court merely
              determined that "monthly benefit" included the entire value
              Appellant received monthly from his pension. Given the obvious
              and unambiguous effort of the original court to divide the assets
              of the marriage equally, the trial court's interpretation of what
              constitutes Appellant's "monthly benefit at the time of
              distribution" does not constitute an abuse of discretion.
              Accordingly, we overrule Appellant's assignment of error.

(Brackets sic.) Id. at ¶ 14.

       {¶ 16} After a thorough review of the record, and based on the Second District's

decisions in Coterel and Gearhart, as well as the Ninth District's decision in Straw, we find

the trial court's interpretation and clarification of the QDRO as it relates to the term "accrued

benefits" was proper and is consistent with the trial court's clear intent for Elizabeth to

receive one-half share of the marital portion of Donald's pension plan, regardless of how

those benefits may be classified thereafter. Again, we agree with the Magistrate's finding

that "[t]here is no logical or equitable reason to find that the term 'accrued benefit' means

only the 'basic benefit.'" Accordingly, having found no error in the trial court's decision,

Donald's single assignment of error is overruled.

       {¶ 17} Judgment affirmed.


       RINGLAND, P.J., and M. POWELL, J., concur.

                                                -6-
