[Cite as Casner v. Casner, 2018-Ohio-5078.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
KIMBERLY L. CASNER                            :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :       Case No. 18-CA-48
TROY B. CASNER                                :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Licking County Court
                                                  of Common Pleas, Domestic Relations
                                                  Division, Case No. 14 DR 1453


JUDGMENT:                                         Reversed and Remanded




DATE OF JUDGMENT ENTRY:                           December 13, 2018



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JODELLE D'AMICO                                   COLLIN THOMAS
7110 E. Livingston Avenue                         492 South High Street, Suite 200
Reynoldsburg, OH 43068                            Columbus, OH 43215
[Cite as Casner v. Casner, 2018-Ohio-5078.]


Gwin, P.J.

        {¶1}    Appellant appeals the May 17, 2018 judgment entry of the Licking County

Court of Common Pleas, Domestic Relations Division, denying his motion to amend.

                                          Facts & Procedural History

        {¶2}    Appellant Troy Casner and appellee Kimberly Casner were married on

September 19, 1987. Appellee filed a complaint for divorce. The trial court issued an

agreed judgment entry of divorce on August 27, 2015, approving the parties’ separation

agreement and incorporating the separation agreement into the judgment entry and

decree of divorce. The separation agreement addresses appellant’s pension plan with

Ohio Police & Fire (“OPF”) and provides as follows:

                Husband was the owner of a Police & Fire Retirement Account. Wife

        shall be awarded fifty percent (50%) of the marital portion of this service

        retirement account as of June 21, 2013. For purposes of valuation and

        division, the June 21, 2013 date shall be the date by which said service

        retirement account is evaluated and divided. The prevailing percentages of

        entitlement that were extant as of that date shall apply to the division herein.

        Division of this account shall take place by the creation, signing and filing of

        a qualified Division of Property Order.

        {¶3}    On May 19, 2016, OPF rejected the first Division of Property Order

(“DOPO”) submitted by the parties and approved by the trial court. The parties submitted

a second DOPO that the trial court entered on June 9, 2016. In August of 2016, OPF

accepted the DOPO that was filed on June 9, 2016.
Licking County, Case No. 18-CA-48                                                          3


        {¶4}   On September 15, 2016, the trial court issued a judgment entry terminating

appellant’s spousal support obligation since the DOPO had been approved and was

effective.

        {¶5}   Appellant filed a motion to amend the DOPO on September 8, 2017.

Appellant argued the benefit calculation of the OPF retirement was not made as of June

21, 2013, and OPF failed to properly calculate the benefit as of the date of divorce and

instead calculated the amount as of appellant’s retirement date. Appellant contended the

trial court should approve an Amended DOPO that utilizes the “dollar amount” method of

payment to appellee, the alternate payee, in accordance with the separation agreement.

        {¶6}   The trial court scheduled appellant’s motion for hearing on November 17,

2017.    Upon agreement of the parties, the hearing was continued.             Upon further

agreement of the parties, the motion was set for non-oral hearing on March 15, 2018.

        {¶7}   Appellant filed a brief in support of his motion to amend on February 16,

2018. Appellant argued the language in the separation agreement unambiguously calls

for the use of a frozen coverture and the DOPO uses the traditional coverture method to

determine the payments to appellee. Attached as an exhibit to appellant’s brief is a fax

from Becki Gates (“Gates”) of OPF to counsel for appellant, including an estimate of the

benefit appellant would have qualified for on June 21, 2013 and also a breakdown of how

OPF calculated the amount currently paid to appellee based on the June 2016 DOPO.

Appellee filed a memorandum in opposition on February 28, 2018. Appellant filed a reply

brief on March 9, 2018.

        {¶8}   The trial court issued a judgment entry denying appellant’s motion on May

17, 2018. The trial court stated that any service credit appellant earned while on disability
Licking County, Case No. 18-CA-48                                                          4


or after the de facto date of divorce in June of 2013 would be applied to the denominator

of the fraction and would not have an impact on the numerator of the fraction, in conformity

with the requirements of the DOPO.

       {¶9}   Appellant appeals the May 17, 2018 judgment entry of the Licking County

Court of Common Pleas, Domestic Relations Division, and assigns the following as error:

       {¶10} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING

TO PROPERLY APPLY THE PARTIES’ DE FACTO DATE OF DIVORCE TO THE

DIVSION OF DEFENDANT-APPELLANT’S POLICE & FIRE RETIREMENT ACCOUNT

AND ABUSED ITS DISCRETION BY ERRONEOUSLY CONCLUDING THAT THE

CORRECT CALCULATION WAS APPLIED.

       {¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

PROPERLY CONSTRUE AND APPLY THE CLEAR LANGUAGE OF THE PARTIES’

SEPARATION AGREEMENT.”

                                              I. & II.

       {¶12} We will consider appellant’s assignments of error together as they are

interrelated on the issue of the interpretation of the parties’ separation agreement and

decree of divorce.

       {¶13} Once a court has made an equitable property division, the trial court does

not have jurisdiction to modify its decision. R.C. 3105.171(I). The trial court, however,

retains broad jurisdiction to clarify and construe its original property division so as to

effectuate the judgment. Oberst v. Oberst, 5th Dist. Fairfield No. 09-CA-54, 2010-Ohio-

452; Knapp v. Knapp, 4th Dist. Lawrence No. 05CA2, 2005-Ohio-7105.
Licking County, Case No. 18-CA-48                                                           5


        {¶14} Because the divorce decree incorporates an agreed judgment entry and

separation agreement, the determination of the above involves the application of the

general rules of contract interpretation. Where ambiguity is complained of and where the

parties dispute the meaning of clauses in the agreement, it is the duty of the court to

examine the contract and determine whether the ambiguity exists. Id. If an ambiguity

does exist, the court has the duty and the power to clarify and interpret such clauses by

considering the intent of the parties as well as the fairness of the agreement. Id.;

Houchins v. Houchins, 5th Dist. Stark No. 2006CA00205, 2007-Ohio-1450. The question

of perceived inequity is not relevant to the issue of whether the language of the decree is

ambiguous on its face. Oberst v. Oberst, 5th Dist. Fairfield No. 09-CA-54, 2010-Ohio-

452, citing Pierron v. Pierron, 4th Dist. Scioto No. 07CA3153, 07CA3159, 2008-Ohio-

1286.

        {¶15} However, if the terms of the decree are unambiguous, then the court must

apply the normal rules of construction. Id. The interpretation of the clause is a matter of

law and the court must interpret the intent of the parties using only the language

employed. Id. “[W]hen a term in an agreement is unambiguous, then the words must be

given their plain, ordinary and common meaning; however, when the term is not clear,

parol evidence is admissible to explain the meaning of the words.” Forstner v. Forstner,

68 Ohio App.3d 366, 588 N.E.2d 285 (11th Dist. 1990).

        {¶16} In this case, both parties agree that the clear intent of the parties, as stated

in the separation agreement, is to award appellee 50% of appellant’s pension as of June

21, 2013. Accordingly, the trial court must enforce the decree as written. However, the

parties disagree as to whether the DOPO enforces the decree and separation agreement.
Licking County, Case No. 18-CA-48                                                         6


Appellee asserts the DOPO does award appellee 50% of the pension as of June 21, 2013

and does take into consideration the June 21, 2013 date of divorce. Appellant argues the

DOPO awards appellee 50% of appellant’s pension as of the date of his retirement, not

the date of divorce, and that the DOPO impermissibly modifies the separation agreement

that requires the use of a frozen coverture and instead utilizes the traditional coverture

fraction method.

        {¶17} In order to effectuate and enforce the divorce decree’s division of pension

benefits, the trial court enters an order such as a DOPO. A DOPO is generally issued

subsequent to and separate from the divorce decree. Cameron v. Cameron, 10th Dist.

Franklin No. 12AP-349, 2012-Ohio-6258.           “Accordingly, a trial court possesses

jurisdiction to adopt a DOPO consistent with its divorce decree, but, absent express

reservation of jurisdiction or express consent of the parties, it may not adopt a DOPO that

changes the award the decree granted.” Id. A DOPO is inconsistent with a divorce

decree “when it modifies the division of retirement benefits ordered in the decree, and a

DOPO modifies a division of retirement benefits when the DOPO varies from, enlarges,

or diminishes the award the court ordered in the decree.” Id.; Knapp v. Knapp, 4th Dist.

Lawrence No. 05CA2, 2005-Ohio-7105. Where there is an unambiguous direction to

award half the value of the pension as of the date of divorce, the “benefits should be

calculated according to the benefits as they existed at the time of the divorce because to

do otherwise constitutes a modification of the divorce decree itself.” Keller v. Keller, 5th

Dist. Delaware Nos. 18 CAF 01 0008, 18 CAF 01 0009, 18 CAF 01 0010, 2018-Ohio-

3141.
Licking County, Case No. 18-CA-48                                                        7


       {¶18} Accordingly, we must determine whether the DOPO “freezes” the account

at its June 21, 2013 value and thus whether the DOPO enforces the unambiguous terms

of the separation agreement.

       {¶19} Under the “frozen” coverture method, the trial court “freezes” the pension

benefits at the amount in the account as of the divorce date. Id. In a defined-contribution

plan, such as a 401(k), the employee and/or employer contributes to the employee’s

account and the value of the plan is the account balance. Thompson v. Thompson, 196

Ohio App.3d 764, 2011-Ohio-6286, 965 N.E.2d 377 (10th Dist.). The plan account is then

“frozen” as of the date of the divorce and the coverture fraction is computed utilizing the

ratio of the number of years of employment during the marriage to the total years of

employment as of the date of the divorce. Id. The resulting sum is the marital portion of

the pension. Id. The non-participant spouse then receives his or her percentage share

of that marital portion. Id.

       {¶20} In this case, the OPF retirement plan is a defined-benefit plan. This is a

pension plan whereby the member’s benefit is defined by a plan formula that provides for

the payment of a monthly check for life upon the member’s retirement. Id. Unlike in a

defined-contribution plan, the amount that a member contributes to a defined-benefit plan

plays no role in the computation of the value of the benefit. Id. Rather, the value of the

benefit is determined from a formula that utilizes variables such as the member’s age,

service credit, and highest salary. Id.

       {¶21} Under the traditional coverture method, the court determines the amount of

money due the non-participant spouse by using the value of the pension at retirement to

determine the “monthly accrued benefit.” Cameron v. Cameron, 10th Dist. Franklin No.
Licking County, Case No. 18-CA-48                                                         8


12AP-349, 2012-Ohio-6258. The court then multiples this monthly accrued benefit by the

traditional coverture fraction, which employs a “ratio of the number of years of

employment of the employed spouse during the marriage to the total years of his or her

employment” to arrive at the marital portion of the pension benefit. Id. The non-participant

spouse then receives his or her percentage share of that marital portion. Id. By utilizing

the traditional coverture method, the non-participant spouse receives any post-divorce

increase in the value that is attributable to the non-participant’s share. Id.

       {¶22} Under the frozen coverture method, the trial court must “freeze” the pension

benefits at the amount in the account as of the date of divorce, calculating the value of

the participant spouse’s retirement account had he or she retired on the same day the

parties divorced, using the then-present base pay and years of service. Id. The value of

the future monthly benefit is frozen because it does not gain value from years served after

the divorce or increases in salaries after the divorce. Harrington v. Ford, 10th Dist.

Franklin No. 14AP-954, 2015-Ohio-3571.

       {¶23} In order to divide appellant’s OPF pension, the trial court used a statutorily

created DOPO form created for the public retirement programs in Ohio. R.C. 3105.90.

Pursuant to R.C. 3105.80 and the statutorily created DOPO form, the drafter must select

the “method of payment” of how the non-participant spouse (the “alternate payee”) is paid

per benefit period, as either a dollar amount or a percentage amount. In the “dollar

amount” method of payment, the monthly amount that the alternate payee is to receive

from the participant’s benefit is entered in Paragraph (II)(B)(1)(a). In the “percentage”

method of payment, the percentage the alternate payee is to receive is entered in

Paragraph (II)(B)(2)(a), and this percentage is applied to the fraction as set forth in (c).
Licking County, Case No. 18-CA-48                                                             9


The fraction in (c) consists of a numerator, which is the number of years during which the

participant was contributing to the pension fund and married to the alternate payee, and

a denominator being the participant’s total years of service credit as determined by the

public retirement system at the time of the participant elects to take the benefit. Further,

in the percentage calculation method, the monthly benefit used to determine the amount

paid to the alternate payee is as follows: if the participant is already receiving a monthly

benefit at the time the divorce is final, the monthly benefit is the gross monthly benefit as

of the date of the divorce; if the participant has applied for but is not yet receiving a

monthly benefit, the monthly benefit is the benefit for which the participant is eligible; or if

the participant has not yet applied for a benefit, the monthly benefit shall be the benefit

calculated at the time the participant elects to take the benefit. In its entry, the trial court

stated the DOPO utilizes (C)(3), the monthly benefit calculated at the time the participant

elects to take the benefit.

       {¶24} As noted by the Tenth District Court of Appeals, whether the “dollar amount”

or “percentage” method is used, “determine[s] not only the appropriate division and

disbursement of pension fund benefits as they exist as of the divorce date, but also the

allocation of future interest accrued on the amount in the pension fund as of the divorce

date.” Cameron v. Cameron, 10th Dist. Franklin No. 12AP-349, 2012-Ohio-6258. The

frozen coverture method is the “dollar amount” method on the statutory DOPO form, while

the traditional coverture method is the “percentage method” on the DOPO form. Id.;

Harrington v. Ford, 10th Dist. Franklin No. 14AP-954, 2015-Ohio-3571.

       {¶25} In this case, whereas the separation agreement unambiguously employs a

frozen coverture fraction, the DOPO employs a traditional coverture fraction, as the
Licking County, Case No. 18-CA-48                                                        10


denominator of the fraction as set forth in Paragraph (II)(B)(2)(c) includes the total years

of appellant’s service credit with OPF and is not limited to the years of service credit as

of June 21, 2013. Additionally, the DOPO form utilizes the traditional coverture method

because the monthly benefit calculation amount in Paragraph (C)(3) is the amount as of

appellant’s date of retirement, not as of June 21, 2013. The terms of the DOPO are

inconsistent with the separation agreement and thus the DOPO improperly modifies the

separation agreement and divorce decree.

       {¶26} Based on the foregoing, appellant’s assignments of error are sustained.

The May 17, 2018 judgment entry of the Licking County Court of Common Pleas,

Domestic Relations Division, is reversed and remanded with instructions to the trial court

to determine appellee’s monthly benefit under the frozen coverture method as of June 21,

2013, and enter a DOPO that reflects that monthly amount.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur
