[Cite as Henry v. Henry, 2013-Ohio-3967.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

DAWN S. HENRY                                        C.A. No.    12CA0066

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JAMES A. HENRY                                       COURT OF COMMON PLEAS
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   10-DR-0001

                                DECISION AND JOURNAL ENTRY

Dated: September 16, 2013



        CARR, Judge.

        {¶1}    Appellant James Henry appeals the judgment of the Wayne County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}    Dawn Henry, nka Parker, (“Wife”) and James Henry (“Husband”) were divorced

in December 2010. The trial court divided Husband’s retirement account as follows: “Nearly 10

years of the PERS [public employees retirement system] is premarital. The coverture fraction

(as determined by PERS) shall be divided equally by DOPO [division of property order].”

Husband retired subsequent to the parties’ divorce and a DOPO was ultimately approved by the

Ohio Attorney General. Husband obtained new employment with a governmental agency as

soon as he was lawfully able to qualify for reentry into PERS.

        {¶3}    Husband was ordered to pay child and spousal support to Wife. Husband directed

the Child Support Enforcement Agency (“CSEA”) to deduct his child and spousal support
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obligations from his PERS account, rather than from his new employment income. The payment

of child and spousal support is accorded a higher priority under the law than is the division of

property. Because of legislation prohibiting the deduction of more than 50% from a payee’s

PERS account to pay for obligations to others, Wife was unable to receive the full amount of her

share of Husband’s PERS, i.e., one-half of the coverture fraction. Accordingly, Wife filed a

motion to enforce the parties’ DOPO.

       {¶4}    The trial court held a hearing on Wife’s motion and issued a judgment to enforce

the DOPO. The trial court found that Wife’s one-half interest of the coverture fraction of

Husband’s retirement amounted to $1,464.87 per month, which amounted to a total of

$13,183.83 for the nine months of 2012 at issue. The court found, however, that Wife only

received $1,728.60 because of the 50% withholding limitation on PERS accounts. Accordingly,

the trial court ordered Husband to pay Wife the sum of $11,455.23, which represented the

difference between the amount she received from PERS and the amount she should have

received pursuant to the parties’ DOPO. Husband filed a timely appeal, raising one assignment

of error for review.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT MODIFIED A
       PROPERTY DIVISION BY CHANGING THE DIVISION OF APPELLANT’S
       RETIREMENT ACCOUNT FROM “SHALL BE DIVIDED EQUALLY” TO
       “WIFE SHOULD RECEIVE $1,464.87 PER MONTH,” WHERE THE TRIAL
       COURT HAD NO JURISDICTION TO MODIFY THE DECREE OF
       DIVORCE.

       {¶5}    Husband argues that the trial court improperly modified the division of property

in the parties’ divorce decree in the absence of jurisdiction to do so. This Court disagrees.
                                                 3


       {¶6}    R.C. 3105.171(I) prohibits any modification by the domestic relations court of a

division of property order in the absence of express written consent or agreement of both

spouses. However, while the trial court “retains no jurisdiction to modify its decision regarding

the equitable division of property * * *, it does retain jurisdiction to “‘clarify and construe its

original property division so as to effectuate its judgment.’” Helmstedter v. Helmstedter, 9th

Dist. Summit No. 24237, 2009-Ohio-3559, ¶ 11, quoting Cisco v. Cisco, 4th Dist. Gallia No.

08CA8, 2009-Ohio-884, ¶ 11.

       {¶7}    Although Wife moved to enforce the parties’ DOPO, and the trial court asserted

that it was merely enforcing its prior order, Husband opposed the motion below and argues now

on appeal that the trial court in fact modified the division of property. We disagree with

Husband’s assertion.

       {¶8}    The evidence adduced at hearing1 indicated that Husband’s monthly PERS benefit

is $4,461.99. The coverture fraction is 20.870/31.873, meaning that Husband and Wife were

married during 20.870 years of the 31.873 years that Husband contributed to PERS. The trial

court calculated Wife’s one-half interest in Husband’s retirement benefit in consideration of the

coverture fraction to be $1,464.87 per month.2

       {¶9}    Because of the withholding limitation on PERS accounts, Wife was only

receiving $214.80 per month for her monthly share of the property division regarding Husband’s



       1
          According to the transcript of the hearing, the parties stipulated to the admission,
authenticity, and accuracy of certain exhibits. No exhibits, however, were included in the record
on appeal. Accordingly, this Court gleans the substance of the exhibits from the parties’
testimony.
       2
          By this Court’s calculation, Wife’s monthly one-half interest would be $1,460.82.
However, Husband does not challenge the trial court’s calculation. Rather, he argues that any
enumerated amount, irrespective of the specific amount, constitutes an improper modification of
the DOPO for lack of jurisdiction.
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retirement. As child and spousal support was paid to her from the PERS account, she was

effectively paying a portion of the support due to her from her own funds. However, the divorce

decree clearly ordered that Wife receive child and spousal support in a sum certain, as well as her

interest in Husband’s retirement account. While her interest in the property division regarding

Husband’s PERS account was expressed as a formula in the divorce decree, that formula

necessarily had a practical application dependent on Husband’s monthly benefit which could

only be determined after Husband retired. In this case, the trial court did not modify the divorce

decree. Instead, it merely ordered enforcement of Wife’s right to receive her share of the

property division by applying the formula to the numerical realities involved. Once the trial

court determined Husband’s monthly PERS benefit, as stipulated by the parties, it merely applied

the exact formula enunciated in the divorce decree to arrive at the amount that Wife should have

received during the time period relevant to the hearing. Based on that amount and the amount

Wife actually received during that time period, the trial court ordered that Husband pay Wife the

difference so that she would have received the property to which she was entitled.

       {¶10} Significantly, the trial court did not order that Wife shall forever receive

$1,464.87 per month as her share of Husband’s PERS account. We note the wisdom of the trial

court in impliedly recognizing that Husband’s monthly PERS benefit may change over time, so

that an order designating a permanent specific amount as Wife’s share would be improper.

Instead, the trial court applied the definitive formula enunciated in the divorce decree to the

variables as they existed at the relevant time for the sole purpose of enforcing the DOPO. The

trial court’s judgment did not, therefore, constitute a modification of the decree but rather its

enforcement.
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       {¶11} Finally, this Court disagrees with Husband’s argument that Wife could have only

addressed this issue with the trial court by filing a motion for relief from judgment pursuant to

Civ.R. 60(B). We agree with Wife and conclude that Civ.R. 60(B) relief was not implicated

because Wife did not seek to set aside the divorce decree. Rather, she sought enforcement of the

decree and receipt of her share of the property addressed by the DOPO.

       {¶12} Husband’s assignment of error is overruled.

                                                III.

       {¶13} Husband’s sole assignment of error is overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                             DONNA J. CARR
                                             FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

THOMAS D. WHITE, CHRISTOPHER M. WHITE, and ALYSSE L. GILES, Attorneys at Law,
for Appellant.

RENEE J. JACKWOOD, Attorney at Law, for Appellee.
