[Cite as Reising v. Reising, 2012-Ohio-1097.]




               IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

DANIEL REISING                                   :

        Plaintiff-Appellant                                                            :
                                                                             C.A. CASE NO.     2010
                                                                     CA 92

v.
                                                                     :             T.C. NO.
                                                                     07-DR-989

DONNA REISING                                           :             (Civil appeal from
                                                                      Common Pleas Court,
        Defendant-Appellee                                                       :
                                                                     Domestic Relations Division)

                                                        :

                                                ..........

                                                OPINION

                         Rendered on the         16th       day of       March       , 2012.

                                                ..........

PATRICIA N. CAMPBELL, Atty. Reg. No. 0068662, 2190 Gateway Drive, Fairborn, Ohio
45324
      Attorney for Plaintiff-Appellant

FRANK M. PAYSON, Atty. Reg. No. 0055165, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
      Attorney for Defendant-Appellee

                                                ..........
                                                                                                           2


FROELICH, J.

                             {¶ 1}             Daniel Reising appeals from an order of the Clark County

  Court of Common Pleas, Domestic Relations Division, which denied his motion to vacate

  a Military Qualifying Court Order (“MQCO”).

                                                                        I.

                             {¶ 2}             Daniel and Donna Reising were married on April 7, 1995. In a

  contested action for divorce that Daniel1 commenced, the parties stipulated, and the trial

  court found, that their marriage terminated on October 5, 2007.

                             {¶ 3}             The parties had the right to participate in several retirement

  pension plans, which the court divided between them in identical terms. The present

  appeal concerns the following provisions of the divorce decree dividing Donna’s military

  retirement pension plan:

           MS. REISING’S MILITARY RETIREMENT BENEFITS

                       As stated, Ms. Reising is a captain in the United States Air Force and

           began her service in 1985. Therefore, approximately 10 years of her military

           service accrued prior to the parties’ marriage and some portion has accrued

           after the de facto termination date of the parties’ marriage on October 5, 2007.

           The portion which accrued during the parties’ marriage is, in fact, marital

           property and subject to equitable division by the Court.

                       In consideration of the duration of the parties’ marriage; the assets and


  1
      For clarity, we will refer to the parties by their first names.
                                                                                                3

       liabilities of the parties; the liquidity of the property to be distributed; the

       economic desireability of retaining assets intact; the tax consequences of the

       property division herein; the costs of sale, if any; and any other relevant factors

       set forth in O.R.C. 3105.171(F), as they may apply to the facts herein, this

       Court finds that it is both fair and equitable to award to Mr. Reising one-half of

       Ms. Reising’s military retirement benefits which accrued during the tenure of

       the parties’ marriage.

               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED

       that the Plaintiff, Daniel Reising, shall be awarded one-half of the military

       retirement benefits of the Defendant, Donna Reising, which accrued between

       the date of the parties’ marriage on April 7, 1995 and the de facto termination

       of the parties’ marriage on October 5, 2007, including all proportionate cost of

       living benefits and survivorship entitlement.

               IT IS FURTHER ORDERED that the Defendant, Donna Reising,

       shall provide to the Plaintiff, all documents necessary to effectuate his award

       in her military retirement benefits and it is ORDERED that each of the parties

       shall have an affirmative duty to sign all documents necessary to effectuate the

       foregoing.

               {¶ 4} A MQCO is a form of qualified domestic relations order required by

the uniformed military services in order to effectuate a judicial division of rights in a military

pension retirement plan. After the divorce decree was filed, Daniel submitted a proposed

MQCO to the court. Paragraph six of that proposed MQCO indicated that Daniel was to
                                                                                                4

receive “an amount equal to 50 percent (50%) of the marital portion of the Member’s

[Donna’s] disposable military retired pay under the plan as of her benefit commencement

date.” Daniel’s proposed MQCO stated that the “marital portion” would be determined by

multiplying the Member’s disposable military retired pay by a fraction (less than or equal to

1.0), the numerator of which is the number of months of the Member’s creditable service in

the plan earned during the marriage (which shall be defined as 149.93 months), and the

denominator of which is the total number of months of the Member’s creditable service in the

plan as of her date of retirement.

                   {¶ 5}         In May 2009, the trial court held a hearing on the language to

   be used in the MQCO. In a subsequent entry, the trial court addressed Daniel’s proposed

   MQCO, noting that it set forth a coverture formula, in which the value of an asset is

   determined by calculating the ratio of the number of years of employment during the

   marriage to the total years of employment. Layne v. Layne, 83 Ohio App.3d 559, 615

   N.E.2d 332 (2d Dist.1992). The trial court rejected Daniel’s proposal, stating: “The

   Divorce Decree in this case does not set forth a coverture formula nor does it mention, as

   part of that formula, the total years of service of the plan participant as part of a coverture

   formula[;] rather, it only awards to each of the parties one-half of that which accrued

   between the relevant dates of April 7, 1995, *** and *** October 5, 2007.” The court

   continued: “While it is true that in many cases this Court does utilize a coverture formula

   when allocating property rights between the parties as they may relate to pension

   entitlements, it clearly did not do so in this case.”

                   {¶ 6}        The trial court further found that it no longer had jurisdiction
                                                                                         5

to modify the divorce decree, but that it could properly clarify the meaning of the decree.

The court ordered counsel for both parties to submit proposed MQCOs consistent with its

entry. Both parties filed proposed MQCOs. Daniel’s proposed MQCO stated that he

was awarded 50 percent of Donna’s disposable military retirement pay that she would

have received had she retired with a base pay of $5577.80 and 21 years of creditable

service on October 5, 2007. It further stated that he would continue to receive payments

“during the joint lives of the parties.”

                {¶ 7}         On November 12, 2009, the court entered an order adopting

the MQCO proposed by Donna, which contained the following provisions concerning

division of Donna’s military retirement plan:

            6. Amount of Payments: This Order awards to Former Spouse 50%

    of the disposable military retired pay which accrued during the period of

    marriage which ended on 5 October 2007, and which the Member would have

    received had the Member retired with a retired pay base of $2980.68 and with

    21 years of creditable service on October 5, 2007.

            ***

            8. Duration of Payments: The Former Spouse is eligible for 50% of

    Member’s disposable military requirement benefits which accrued between

    the date of the parties’ marriage on April 7, 1995 and the de facto termination

    of the parties’ marriage on October 5, 2007, or the equivalent of this same 150

    months of payments, after which all such payments will terminate. Former

    Spouse shall apply for his share of benefits at least 90 days prior to Member’s
                                                                                        6

   retirement. All such benefits shall immediately terminate upon the death of

   either Member [or] Former Spouse. (Emphasis added.)

               {¶ 8}      On January 29, 2010, Daniel filed a motion to vacate the

MQCO, arguing that the MQCO is void because it is inconsistent with the divorce decree.

He asserted that the MQCO “improperly divests [Daniel] of his right to [Donna’s]

retirement pursuant to the termination of benefits after 150 months.”

               {¶ 9}      The trial court overruled Daniel’s motion. The court found

that the terms of the MQCO were not inconsistent with the divorce decree, that the MQCO

clarified the decree, and, thus, the MQCO was not void. It held that, because the MQCO

was a final appealable order, the motion to vacate could not be used as a substitute for a

timely appeal. The court concluded that Daniel’s motion was barred by res judicata.

The court further found that Daniel’s motion sought relief akin to Civ.R. 60(B) and that

such relief was unavailable.

               {¶ 10}      Daniel appeals from the trial court’s denial of his motion to

vacate.

                                         II.

               {¶ 11}      In his assignment of error, Daniel claims that the trial court

lacked jurisdiction to issue the MQCO, because it was inconsistent with the divorce

decree, and that a motion to vacate was the proper vehicle to challenge the void MQCO.

               {¶ 12}     Under R.C. 3105.171(A)(3)(a)(i), a spouse’s retirement

benefits that are acquired during the marriage are marital property.          In divorce

proceedings, the trial court is tasked with determining what constitutes marital property
                                                                                             7

and dividing such marital property equitably between the spouses. R.C. 3105.171(B).

An equal division of marital property is presumptively equitable. R.C. 3105.171(C)(1).

A division and disbursement of property ordered pursuant to R.C. 3105.171 “is not subject

to further modification by the court except upon the express written consent or agreement

to the modification by both spouses.” R.C. 3105.171(I).

               {¶ 13}       A qualified domestic relations order (“QDRO”) is a tool used

to execute the portion of the divorce decree that divides pension benefits. Wilson v.

Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 7, 19. Therefore, “a

QDRO may not vary from, enlarge, or diminish the relief that the court granted in the

divorce decree, since that order which provided for the QDRO has since become final.”

Id. at ¶ 18, quoting Lamb v. Lamb, 3d Dist. Paulding No. 11-98-09, 1998 WL 833606

(Dec. 4, 1998). See also Tarbert v. Tarbert, 2d Dist. Clark No. 96-CA-36, 1996 WL

555039 (Sept. 27, 1996).

               {¶ 14}      We have held that when a QDRO is inconsistent with the

divorce decree in any of the respects identified in Wilson, “the trial court lacks jurisdiction

to issue it, and it is void.” Bagley v. Bagley, 181 Ohio App.3d. 141, 2009-Ohio-688, 908

N.E.2d 469 (2d Dist.), following Hale v. Hale, 2d Dist. Montgomery No. 21402,

2007-Ohio-867. Daniel relies on Bagley for his assertion that the MQCO issued by the

trial court is void and, therefore, he properly challenged the MQCO in his motion to

vacate.

               {¶ 15}      The question presented to us is whether the MQCO filed in

November 2009 was a modification of the decree filed in May 2008 or a clarification.
                                                                                           8

The trial court was correct in holding that it did not have authority to modify a property

division contained in a final appealable order (i.e., the divorce decree). If the MQCO is a

modification of the decree, however, then, according to Bagley and Hale, it is void ab

initio since the trial court was without jurisdiction to issue it. (And, the trial court thus

had the authority to consider Daniel’s motion to vacate an allegedly void MQCO.) If, on

the other hand, the MQCO is a clarification, Daniel should have appealed the MQCO in

2009 and his 2010 motion is barred, as found by the trial court.

               {¶ 16}      As Judge Fain expressed in his concurrence in Bagley, we

question the wisdom of “jurisdictionalizing error,” as we did in Hale and Bagley and other

appellate districts have done with respect to R.C. 3105.171(I). See, e.g., Butcher v.

Butcher, 8th Dist. Cuyahoga No. 95758, 2011-Ohio-2550; Blaine v. Blaine, 4th Dist.

Jackson No. 10CA15, 2011-Ohio-1654, ¶ 17; Kachmar v. Kachmar, 7th Dist. Mahoning

No. 08 MA 90, 2010-Ohio-1311, ¶ 50; Himes v. Himes, 5th Dist. Tuscarawas No.

2004-AP-020009, 2004-Ohio-4666; Doolin v. Doolin, 123 Ohio App.3d 296, 704 N.E.2d

51 (6th Dist.1997). However, we need not reconsider Bagley and Hale in this case.

Upon review of the MQCO, we agree with the trial court that the divorce decree did not

establish a coverture formula for the award of Donna’s military retirement benefits and

that the MQCO was merely a clarification – not a modification – of the decree.

               {¶ 17}      The decree awarded Daniel “one-half of the military retirement

benefits * * * which accrued between the date of the parties’ marriage on April 7, 1995

and the de facto termination of the parties’ marriage on October 5, 2007, including all

proportionate cost of living benefits and survivorship entitlement.” It is not disputed that
                                                                                             9

the marriage and Donna’s military service overlapped for 12.5 years or 150 months.

               {¶ 18}      We addressed similar “accrual” language in Benfield v.

Benfield, 2d Dist. Montgomery No. 19363, 2003-Ohio-5968, which was cited by the trial

court. See also Schetter v. Schetter, 2d Dist. Clark No. 2010 CA 35, 2011-Ohio-246

(language in separation agreement and dissolution decree giving wife 50% of military

pension “earned by” husband during the marriage “unambiguously evidences the intent of

the parties to limit [wife’s] interest to the value of the pension funds as they existed on the

date of the termination of the marriage”); Jackson v. Hendrickson, 2d Dist. Montgomery

No. 20866, 2005-Ohio-5231; Pohl v. Pohl, 2d Dist. Montgomery No. 20001,

2004-Ohio-3790.

               {¶ 19}      In Benfield, the parties’ separation agreement included a

section addressing Mr. Benfield’s future military retirement. It included a provision that

Ms. Benfield would receive “50% of Husband’s retired pay accrued through October

1989.” In a subsequent paragraph, the agreement stated that “Husband after his date of

retirement shall pay the Wife no less than a sum equal to 50% of his gross retired pay as it

exists October 1, 1989.” Ms. Benfield’s share included “all increases Husband may

receive in rank, cost of living, merit increases, et cetera for both her SBP Annuity and

retirement pay share as of October 1, 1989.” Benfield at ¶ 3.

               {¶ 20}        Upon Mr. Benfield’s retirement, the Defense Finance and

Accounting Service (“DFAS”) required a clarifying order that awarded Ms. Benfield

either a fixed dollar amount or a fixed percentage of Mr. Benfield’s military pension as of

the date of his retirement. Ms. Benfield filed a motion for such an order. After a
                                                                                         10

hearing, a magistrate adopted a coverture fraction method of computation (advocated by

Ms. Benfield) and found that she was entitled to proportionate share of any growth in the

retirement benefits, even after October 1, 1989. The trial court sustained objections to

the magistrate’s decision, finding that Ms. Benfield was not entitled to benefit from

increases to Mr. Benfield’s rank or pay after October 1, 1989. The trial court held that the

agreement “specifically limits wife’s portion to 50 percent of the defendant’s gross retired

pay as it existed on October 1, 1989.”

               {¶ 21}      On review of Ms. Benfield’s appeal, we concluded that the trial

court “reasonably, and correctly, read the foregoing language as entitling Ms. Benfield to

fifty percent of all retirement benefits accrued as of October 1, 1989, and nothing more.”

Benfield at ¶ 8. We stated that Ms. Benfield’s interpretation of the language regarding

increases in rank, cost of living, etc., as an “expansion” of her right to later-acquired

retirement benefits rather than as a “limitation” on her entitlement to benefits, was

“manifestly unreasonable.” Id.

               {¶ 22}      In a footnote, we further commented that Mr. Benfield’s

appellate brief demonstrated that it was easy to calculate the portion of his pension that

accrued from the commencement of his military career until October 1, 1989, and to

award Ms. Benfield half of that amount. Id. at ¶ 8, fn. 2. Indeed, the trial court had

approved the military retirement benefit calculation of 2.5% x $3,529.50 (Mr. Benfield’s

rank monthly payment on October 1, 1989) x 17.3333 (years of service as of October 1,

1989), and awarded Ms. Benfield half of that amount. Ms. Benfield thus received

$764.73 of Mr. Benfield’s monthly military retirement income.
                                                                                          11

                  {¶ 23}    The Reisings’ divorce decree grants Daniel one-half of

Donna’s military retirement benefits that accrued between April 7, 1995 and October 5,

2007. This is an award of the value of those 150 months; as the trial court said, it is not a

coverture formula, which is a percentage of Donna’s retirement benefit based on her total

years in the military. The decree did not mention or use a coverture formula analysis, and

in its May 2009 entry, the trial court expressly rejected that such an approach had been

adopted. Rather, the divorce decree divided the retirement amount accrued between

specific dates.

                  {¶ 24}   Paragraph six of the MQCO sets forth the variables needed for

the military to calculated a “hypothetical” retired pay award. The value of Donna’s

military retirement benefits between April 7, 1995 and October 5, 2007, would be

calculated by determining Donna’s retirement benefits had she retired on October 5, 2007,

using the base pay and years of service in the MQCO, and then determining the portion

that accrued during the 150-month marriage. At that time of the divorce, Donna had 22.5

years of military service, of which 12.5 years overlapped with the marriage. In other

words, 56 percent (12.5 divided by 22.5) of Donna’s military service, as of October 5,

2007, had occurred during the marriage. Thus, under the divorce decree, Daniel was

entitled to half of 56 percent of Donna’s military retirement benefits, calculated as of

October 5, 2007. (In contrast, the MQCO proposed by Daniel in October 2009 would

have given him half of Donna’s military retirement benefits, as valued of October 5, 2007,

without accounting for the fact that she had served ten years before the parties married.)

                  {¶ 25}   The MQCO found that Daniel “is eligible for 50% of Member’s
                                                                                           12

disposable military retirement benefits which accrued * * * [during the 12.5 years of

marriage], or the equivalent of this same 150 months of payments, after which all such

payments will terminate.” This language mirrors the terms of the divorce decree, but

adds “or the equivalent of this same 150 months of payments, after which all such

payments will terminate.”

               {¶ 26}       Daniel construes the MQCO as saying that he only receives 150

months of payments, which would indeed be a modification of the divorce decree, which

provides that he receives the value of the benefits accrued during those 150 months.

Although this might be a reasonable interpretation if read alone (and Donna may have

subjectively intended such an interpretation), we do not find this reading to be reasonable

in the context of the divorce decree and the other provisions of the MQCO. Reading the

documents as a whole, the additional clause does not provide that Daniel’s payments

would terminate after 150 months by a calendar. Rather, Daniel’s payment would cease

once he receives “the equivalent of the same 150 months” (i.e., the value he was awarded

in the decree or its equivalent, perhaps in a lump sum, if such an option is available).

               {¶ 27}       We find no fault with the trial court’s conclusion that the

MQCO clarified the divorce decree. The addition of the phrase “or the equivalent of this

same 150 months of payments, after which all such payments will terminate” merely

articulated that payments would cease once the value of benefits accrued during the

marriage had been paid. Because the MQCO constituted a clarification of the divorce

decree, it was not void under Bagley and Hale, even if we were to continue to apply those

cases.
                                                                                             13

               {¶ 28}      Moreover, even assuming that the phrase “or the equivalent of

this same 150 months of payments, after which all such payments will terminate” were a

modification and were void under Bagley and Hale, it appears that the long-term outcome

would be the same. That is, we would reverse the trial court and remand the case for the

entry of a MQCO that was consistent with the divorce decree. Given the trial court’s

explanation that a coverture formula was not intended and our understanding that the 150

months is a quantitative, rather than a temporal, limitation, the trial court would simply

issue a new MQCO that makes this clarification even clearer. That new MQCO would

not contain a temporal limitation, as such a limitation is not part of the divorce decree.

               {¶ 29}      Civ.R. 60(B) motions for relief from judgment “cannot be used

as a substitute for a timely appeal or as a means to extend the time for perfecting an appeal

from the original judgment.” Key v. Mitchell, 81 Ohio St.3d 89, 91, 1998-Ohio-643, 689

N.E.2d 548; Harris v. Anderson, 109 Ohio St.3d 101, 102, 2006-Ohio-1934, 846 N.E.2d

43, at ¶ 9. “[W]here the remedy of appeal is available to a party, and where the issues

raised in a motion for relief from judgment are those which could properly have been

raised on appeal, a motion for relief from judgment will be denied.” Burroughs Real

Estate Co. v. Zennie R. Heath, 8th Dist. Cuyahoga No. 40476, 1980 WL 354563, *2 (Mar.

20, 1980), cited by Smith v. Bd. of Health, 4th Dist. No. 92-CA-2095, 1993 WL 256323,

*4 (June 28, 1993). “Logically, therefore, every properly raised ground for relief from

judgment necessarily involves granting relief for a reason that could not be considered in

an appeal of the underlying judgment.” Beechler v. Beechler, 95 Ohio App.3d 121, 125,

641 N.E.2d 1189 (12th Dist.1994).
                                                                                            14

                  {¶ 30}      Because the MQCO constituted a clarification of the divorce

   decree, if Daniel wished to challenge the discretion or propriety of the trial court’s

   adoption of the MCQO, a direct appeal – not a Civ.R. 60(B) motion – was the proper

   outlet to do so. Daniel did not appeal from the MQCO. Accordingly, the trial court did

   not err in concluding that Daniel was barred from challenging the MQCO through his

   motion to vacate.

                  {¶ 31}      Daniel’s assignment of error is overruled.

                                             III.

                  {¶ 32}      The trial court’s judgment will be affirmed.

                                         ..........

CANNON, J., concurs.

GRADY, P.J., dissenting:

                  {¶ 33}      I respectfully dissent from the decision of the majority, and

   would instead reverse the domestic relations court’s order denying Daniel Reising’s

   motion to vacate the Military Qualifying Court Order the court ordered, because the

   Military Qualifying Court Order is void as the court lacked jurisdiction to order it.

                  {¶ 34}      “Marital property” includes “the retirement benefits of the

   spouses . . . acquired by either or both spouses during the marriage.”                  R.C.

   3105.171(A)(3)(a)(i). In divorce proceedings the court must divide the parties’ marital

   property equitably. R.C. 3105.171(B). An equal division is presumed to be equitable.

   R.C. 3105.171(C)(1).

                  {¶ 35}      “[A} retirement plan is an investment made by both spouses
                                                                                           15

during the marriage to provide for their later years.” Layne v. Layne, 83 Ohio App.3d

559, 567, 615 N.E.2d 332 (2d Dist.1992). When dividing retirement benefits, “the trial

court should attempt to preserve the pension or retirement asset in order that each party

can procure the most benefit * * *.” Hoyt v. Hoyt, 53 Ohio St.3d 177, 179, 559 N.E.2d

1292 (1990). On that basis, if the funds in a retirement account are presently available,

the court may order a present distribution to the non-participating spouse of his or her

marital share. If the funds are not presently available and the “benefit” is instead an

expectation payable in installments in future years, the court should award the

non-participating spouse his or her marital share of that benefit, payable when the

participating spouse receives payments of the benefit and for as long as he or she receives

such payments. Layne.

               {¶ 36}      R.C. 3105.171(I) states:

           A division or disbursement of property or a distributive award made

   under this section is not subject to future modification by the court except upon

   the express written consent or agreement to the modification by both spouses.

               {¶ 37}      A military Qualifying Court Order (“MQCO”) is a form of

QDRO. “A QDRO is a qualified domestic relations order ‘which creates or recognizes

the existence of an alternative payee’s right to, or assigns to an alternative payee the right

to, receive all or a portion of the benefits payable with respect to a participant under a

[retirement] plan * * *.’” (Internal citation omitted.) Hoyt at 179-180.

               {¶ 38}      In State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355,

2010-Ohio-252, 922 N.E.2d 214, at ¶ 19, the Supreme Court wrote:
                                                                                      16

   “The 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.        “[A] divorce decree is a final,

   appealable order, regardless of whether it calls for a QDRO that has not yet

   issued; the QDRO merely implements the divorce decree.” Id. at ¶ 15.

   Consequently, “[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.”    (Emphasis sic.)   Bagley v. Bagley, 181 Ohio App.3d 141,

   2009-Ohio-688, 908 N.E.2d 469, ¶ 26. Therefore, when a divorce decree is

   appealed and there is no stay of the judgment pending appeal, the trial court is

   not divested of jurisdiction to issue a QDRO consistent with the decree,

   because the order merely executes orders previously specified in the divorce

   decree.

                {¶ 39}    Bagley, which the Supreme Court cited with approval in State

ex rel. Sullivan, was a decision of this court. Relying on our prior decision in Hale v.

Hale, 2d Dist. Montgomery No. 21402, 2007-Ohio-867, we held in Bagley that “when the

QDRO is inconsistent with the decree, the court lacks jurisdiction to issue it, and it is

void.” Bagley at ¶ 27. A QDRO is inconsistent with a decree when it modifies a

division of retirement benefits ordered in a decree, and a QDRO modifies a decree in that

respect when the QDRO varies from, enlarges, or diminishes the division and
                                                                                          17

disbursement of a retirement benefit the court ordered in the decree. Wilson at ¶ 18.

               {¶ 40}      The decree divided the parties’ interests in Donna’s military

pension by awarding Daniel “one half the military retirement benefits of the Defendant,

Donna Reising, which accrued between the date of the parties’ marriage on April 7, 1995

and the de facto termination of the parties’ marriage on October 5, 2007, including all

proportionate cost of living benefits and survivorship entitlement.”

               {¶ 41}      The record reflects that Donna was in the military service for

ten years, or 120 months, before the parties’ married. The term of the marriage which the

court determined is 150 months. Of Donna’s total military service of 270 months at the

time of the divorce, the “coverture” portion of 150 months amounts to fifty-six percent of

the total. The decree therefore awarded Daniel a fifty percent interest in the benefits

Donna will receive upon her retirement attributable to that fifty-six percent share, plus all

cost of living benefits and survivorship entitlement applicable to Daniel’s proportionate

share.

               {¶ 42}      After dividing Donna’s benefits in the decree, the court adopted

an MQCO providing that the share of Donna’s future benefit Daniel is entitled to receive

is “the equivalent of this same 150 months of payments, after which all such payments will

terminate.” The decree made no mention of any such cap on payments. The trial court

explained that the cap on payments merely “clarified” the decree by imposing a coverture

factor the decree imposed, or should have imposed but didn’t. That is contradicted by the

record. The share of benefits Daniel was awarded in the decree, fifty percent of fifty-six

percent of Donna’s benefits that had accrued at the time of the divorce, is a form of
                                                                                         18

coverture division. Daniel is entitled to receive payments representing his share for as

long as Donna receives her benefits. By limiting disbursement of Daniel’s benefit to 150

months of payments, the MQCO modifies the decree by diminishing the disbursement of

Daniel’s right to his share of Donna’s benefits Daniel was awarded in the decree. Wilson,

116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16.

               {¶ 43}      The majority agrees with the trial court’s description of its cap

on payments as a “clarification,” for no apparent reason other than that’s what the trial

court said it is. But, the 150 payment cap isn’t a clarification. The 150 cap on payments

corresponds to the duration of the parties’ marriage during which Donna’s benefit

accrued. However, the term of the marriage properly determines the extent of the

non-participating spouse’s proportional share of an accrued benefit, not the number of

payments of that share the non-participating spouse is entitled to receive. Because of the

150 month cap on payments of his share Daniel may be paid, Donna will receive the

entirety of her monthly retirement benefits after 150 months. That outcome is not only

inconsistent with the holding in Hoyt; it is also directly contrary to the equal division of

marital property that R.C. 3105.171(C)(1) requires the court to order.

               {¶ 44}      The majority questions whether that outcome will occur,

finding the “equivalent of this same 150 months of payments” is ambiguous. If a

provision is ambiguous, and a party may be prejudiced by one of the alternative meanings,

our duty is to reverse, not simply to hope for the best. Because the MQCO modifies the

property division of Donna’s retirement benefits ordered in the divorce decree, and absent

the agreement of the parties to that modification, the domestic relations court lacked
                                                                                           19

   jurisdiction to order that modification. R.C. 3105.171(I); Bagley, 181 Ohio App.3d 141,

   2009-Ohio-688, 908 N.E.2d 469 (2d Dist.). The MQCO and the order of November 2,

   2009 adopting the MQCO are therefore void.

                  {¶ 45}      The domestic relations court overruled Daniel’s motion to

   vacate the MQCO the court ordered, reasoning that Civ.R. 60(B) offers no basis for that

   relief. However, Daniel’s motion did not invoke Civ.R. 60(B). That rule deals with

   voidable judgments. QDROs that vary from a property division ordered in a decree are

   instead void. Bagley. Authority to vacate a void judgment is not derived from or

   controlled by Civ.R. 60(B). Ervin v. Patrons Mut. Ins. Co., 20 Ohio St.3d 8, 484 N.E.2d

   695 (1985). That authority is an inherent power possessed by Ohio courts. Patton v.

   Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988). Even when Civ.R. 60(B) is invoked,

   the court may in the exercise of its inherent power to vacate void judgments treat a Civ.R.

   60(B) motion to vacate as a common-law motion to vacate a void judgment.

   CompuServe, Inc. v. Trionfo, 91 Ohio App.3d 157, 631 N.E.2d 1120 (10th Dist.1993).

                  {¶ 46}      For the foregoing reasons, I find that the court lacked

   jurisdiction to adopt the MQCO the court ordered, that the MQCO is therefore void, and

   that the domestic relations court erred when it overruled Daniel Reising’s motion to vacate

   the void MQCO. I would reverse the order adopting the MQCO and remand the case for

   issuance of a MQCO that corresponds with the division of Donna Reising’s military

   retirement benefit in the decree of divorce.

                                        ..........

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio.)
                             20


Copies mailed to:

Patricia N. Campbell, Esq.
Frank M. Payson, Esq.
Hon. Thomas J. Capper
