[Cite as Fletcher v. Estate of Fletcher, 2014-Ohio-5377.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


MARION J. FLETCHER,                                         :   OPINION

                 Plaintiff-Appellant,                       :
                                                                CASE NO. 2013-L-084
        - vs -                                              :

ESTATE OF ALDEN S.                                          :
FLETCHER, III, et al.
                                                            :
                 Defendants-Appellees.
                                                            :


Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations
Division, Case No. 09 DR 000617.

Judgment: Affirmed.


Kenneth J. Cahill, Dworken & Bernstein, 60 South Park Place, Painesville, OH 44077
(For Plaintiff-Appellant).

James M. Lyons, 240 East Main Street, Painesville, OH 44077 and Jonathan W.
Winer, 5276 Rome Rock Creek Road, Rome, OH 44085 (For Defendants-Appellees).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, Marion J. Fletcher, appeals the August 20, 2013

Judgment Entry of the Lake County Court of Common Pleas, Domestic Relations

Division, ordering her to pay to defendant-appellee, Estate of Alden S. Fletcher, III, one-

half of the funds received from Alden’s 401(k) account, denying her Motion to Show

Cause, and awarding the estate attorney fees. The issues before this court are whether

it is equitable to impose a constructive trust to require the beneficiary of a 401(k)
account to return funds received when it was intended that the account be subject to a

division by QDRO; whether a domestic relations court lacks jurisdiction to entertain

claims based on a separation agreement more than six months after the death of one of

the parties to the agreement; and whether it is an abuse of discretion to award attorney

fees to a party against whom a motion for contempt was unsuccessfully prosecuted.

For the following reasons, we affirm the decision of the court below.

      {¶2}   On December 9, 2010, the marriage of Marion J. and Alden S. Fletcher,

III, was terminated by Agreed Judgment Entry. The Entry provided in relevant part:

             IT IS FURTHER ORDERED that the Husband’s Lincoln Electric

             401(k)/Employee Savings account that has an approximate value of

             $94,650.14 as of December 9, 2009 shall be divided equally

             between the parties by way of a QDRO as of September 2, 2010

             with each party bearing equally any gain or loss in this account

             after September 2, 2010. Wife shall be responsible for preparation

             of the QDRO to divide the account.

             ***

             IT IS FURTHER ORDERED that the marital property located at 209

             Riverside Drive, Painesville shall be immediately listed for sale and

             sold.

             ***

             IT IS FURTHER ORDERED that beginning September 1, 2010, the

             Husband and Wife are each equally responsible for the Mortgage

             payment on the marital home that is payable to National City Bank.

             ***

                                            2
              IT IS FURTHER ORDERED that beginning September 1, 2010, the

              Husband and Wife are each equally responsible for the costs of the

              utilities for the marital home which include electric, gas, water and

              sewer. * * *

       {¶3}   On December 30, 2011, Mary Elizabeth Lateulere, as Executrix for the

Estate of Alden S. Fletcher, III, filed a Motion to Show Cause/Motion to Enforce Agreed

Judgment Entry. According to an affidavit attached to the Motion, Alden died on June

12, 2011, and Marion had not prepared the QDRO to divide the 401(k) savings account.

Lateulere sought an order requiring Marion to pay to the estate one-half of the funds

received from Lincoln Electric following Alden’s death.

       {¶4}   On April 10, 2012, the Estate of Alden S. Fletcher, III was substituted as

the defendant in this action.

       {¶5}   On April 27, 2012, Marion filed a Motion to Show Cause, Motion to

Enforce, Motion for Reimbursement Schedule, and Motion for Attorney Fees and Costs.

Marion sought an order requiring the estate to pay one-half of the mortgage payment

and utility costs for the marital residence.

       {¶6}   On August 31, 2012, Lateulere filed a Motion for Attorney Fees and Costs.

       {¶7}   On September 10, 2012, the matter was heard by a magistrate of the

domestic relations court.

       {¶8}   On March 22, 2013, the Magistrate’s Decision was issued.

       {¶9}   On April 2, 2013, Marion filed Objections to the Magistrate’s Decision.

       {¶10} On April 8, 2013, Lateulere filed Objections to the Magistrate’s Decision.

       {¶11} On August 20, 2013, the domestic relations court issued a Judgment

Entry, ruling on the parties’ objections and entering final judgment. The court denied

                                               3
Lateulere’s Motion to Show Cause, but granted the Motion to Enforce Agreed Judgment

Entry and ordered Marion to return one-half of the funds received from the Lincoln

Electric 401(k) account to the Estate of Alden S. Fletcher, III. The court denied Marion’s

Motion to Show Cause and Motion for Reimbursement. The court denied in part and

ruled as moot in part Marion’s Motion to Enforce. The court denied Marion’s Motion for

Attorney Fees, and granted Lateulere’s Motion for Attorney Fees in the amount of

$3,400, representing attorney fees incurred in opposing Marion’s Motion to Show

Cause.

       {¶12} On September 4, 2013, Marion filed a Notice of Appeal. On appeal, she

raises the following assignments of error:

       {¶13} “[1.] Whether the trial court committed prejudicial error ordering appellant

to pay appellee estate one-half (1/2) the death benefit appellant received.”

       {¶14} “[2.] Whether the trial court committed prejudicial error by not enforcing

those terms of the Agreed Judgment Entry against the estate to pay one-half (1/2) the

mortgage of the marital residence and one-half (1/2) the utilities after the decedent’s

date of death (June 12, 2011) claiming it lacked subject matter jurisdiction.”

       {¶15} “[3.] Whether the trial court committed prejudicial error by failing to award

appellant attorney fees for defending against appellee’s Motion to Show Cause and for

appellant’s prosecution of a Motion to Show Cause against the estate for not paying

one-half (1/2) the mortgage for the marital residence and not paying one-half (1/2) the

utilities for the marital residence.”

       {¶16} “[4.] Whether the trial court committed prejudicial error ordering appellant

to pay appellee $3,400.00 for attorney fees even though appellee failed to abide by the

Judgment Entry of Divorce and the trial court contradicted itself by earlier stating that

                                             4
attorney fees on both sides were quite high and neither party demonstrated an inability

to pay for their own attorney fees.”

       {¶17} In the first assignment of error, Marion argues that the domestic relations

court erred by ordering her to return one-half of the funds received from the Lincoln

Electric 401(k) account to Alden’s estate. Marion claims that she received those funds

in accordance with the plan documents, which designated her as the sole beneficiary of

the 401(k) account. According to Marion, the failure to prepare a QDRO had no effect

on the ultimate distribution of the funds, as she would have received the balance of the

account (that portion not covered by the QDRO) by virtue of being the designated

beneficiary.

       {¶18} In a domestic relations case, “it is axiomatic that a trial court must have

discretion to do what is equitable upon the facts and circumstances of each case,” and

“that a trial court’s decision in domestic relations matters should not be disturbed on

appeal unless the decision involves more than an error of judgment.” Booth v. Booth,

44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989).

       {¶19} The domestic relations court and magistrate relied on the case of

Drummond v. Drummond, 5th Dist. Fairfield No. 10-CA-20, 2010-Ohio-6139, which held

that a constructive trust was an appropriate remedy where the proceeds of an STRS

pension were not distributed in accordance with the terms of a separation agreement.

Id. at ¶ 31-32.

       {¶20} The Ohio Supreme Court has recognized that a constructive trust may be

imposed as an equitable remedy “against unjust enrichment * * * where it is against the

principles of equity that the property be retained by a certain person even though the

property was acquired without fraud.” (Citation omitted.) Estate of Cowling v. Estate of

                                           5
Cowling, 109 Ohio St.3d 276, 2006-Ohio-2418, ¶ 19. The remedy may be appropriately

applied to anyone “who in any way against equity and good conscience, either has

obtained or holds the legal right to property which he ought not, in equity and good

conscience, hold and enjoy.” Id. at ¶ 18.

        {¶21} For example, in Fischbach v. Mercuri, 184 Ohio App.3d 105, 2009-Ohio-

4790, 919 N.E.2d 804 (2nd Dist.), the current spouse (Mercuri) of an STRS plan

participant received retirement benefits owed, according to the terms of the divorce

decree, to the former spouse (Fischbach). The court of appeals held that Fischbach

was entitled to “the funds received by Mercuri on the basis of unjust enrichment, as a

result of a wrongful act by her late husband, the plan participant,” i.e., failing to

designate Fischbach as a beneficiary on the fund. Id. at ¶ 3, 24.

        {¶22} We find no abuse of discretion in the domestic relations court’s decision to

order Marion to pay the estate one-half of the funds received. The order effects the

clear intent of the Agreed Judgment entry that the Lincoln Electric 401(k) “be divided

equally between the parties.” Alden’s failure to change the beneficiary prior to his death

should not frustrate that intent any more than Marion’s failure to file a QDRO.1

        {¶23} Following oral argument in the present case, the parties submitted

supplemental briefs on the issue of the applicability of R.C. 5815.33(B)(1) (former R.C.

1339.63(B)(1)), which provides in relevant part:

                Unless the designation of beneficiary or the judgment or decree

                granting the divorce, dissolution of marriage, or annulment

                specifically provides otherwise * * *, if a spouse designates the


1. We note the finding of the magistrate that, “although wife was responsible to complete the QDRO to
divide the Lincoln account, she made all good faith efforts to do so through her then attorney, Linda D.
Cooper’s efforts.” Of course, this finding does not justify Marion’s retention of the funds.

                                                   6
             other spouse as a beneficiary or if another person having the right

             to designate a beneficiary on behalf of the spouse designates the

             other spouse as a beneficiary, and if, after either type of

             designation, the spouse who made the designation or on whose

             behalf the designation was made, is divorced from the other

             spouse, obtains a dissolution of marriage, or has the marriage to

             the other spouse annulled, then the other spouse shall be deemed

             to have predeceased the spouse who made the designation or on

             whose behalf the designation was made, and the designation of the

             other spouse as a beneficiary is revoked as a result of the divorce,

             dissolution of marriage, or annulment.

       {¶24} There is no dispute that Alden’s Lincoln Electric 401(k) account is

governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). 29

U.S.C. 1002(1). Under ERISA, employee welfare benefit plans must be administered

“in accordance with the documents and instruments governing the plan,” and payments

thereunder must be made to the “beneficiary” who is “designated by a participant, or by

the terms of [the] plan.” 29 U.S.C. 1104(a)(1)(D) and 1002(8). It is further provided that

ERISA’s provisions “shall supersede any and all State laws insofar as they may now or

hereafter relate to any [subject] employee benefit plan.” 29 U.S.C. 1144(a).

       {¶25} In Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 121 S.Ct. 1322, 149

L.E.2d 264 (2001), the United States Supreme Court ruled that a Washington statute,

providing that “that the designation of a spouse as the beneficiary of a nonprobate asset

is revoked automatically upon divorce,” was pre-empted under ERISA. Id. at 143 and

150.   As the practical effect of the Washington statute and R.C. 5815.33(B)(1) are

                                            7
substantially similar, ERISA pre-empts the application of the Ohio statute in the present

action.

          {¶26} We note that federal pre-emption under ERISA does not prohibit the

imposition of a constructive trust on the proceeds of a benefit plan once paid to the

designated beneficiary.         “The law recognizes a distinction between a plan

administrator’s obligation to pay over benefits to a named plan beneficiary and that

beneficiary’s entitlement to keep those funds thereafter.”        Partlow v. Person, 798

F.Supp.2d 878, 885 (E.D.Mich.2011). “Consequently, trial courts are empowered to

impose constructive trusts on proceeds received from [plans] governed by ERISA after

the designated beneficiary receives the proceeds.” Crites v. Anthem Life Ins. Co., 3rd

Dist. Defiance No. 4-13-13, 2014-Ohio-1682, ¶ 22 (cases cited); Central States,

Southeast & Southwest Areas Pension Fund v. Howell, 227 F.3d 672, 678 (6th

Cir.2000) (“the anti-alienation provision of ERISA precluded the imposition of a

constructive trust before distribution of benefits to the beneficiary, but it held that

nothing in the legislative scheme prevented the imposition of a constructive trust after

the benefits were paid to the beneficiary of the pension benefits”) (emphasis sic).

          {¶27} The first assignment of error is without merit.

          {¶28} Under the second assignment of error, Marion argues the domestic

relations court erred in its determination that it lacked jurisdiction to adjudicate her

claims that Alden’s estate was in contempt for failing to reimburse her for mortgage and

utility expenses for the marital home.

          {¶29} We review a trial court’s determination as to its ability to exercise

jurisdiction over a matter de novo. Burns v. Daily, 114 Ohio App.3d 693, 701, 683

N.E.2d 1164 (11th Dist.1996).

                                               8
       {¶30} The domestic relations court ruled that it lacked jurisdiction over these

claims. The court noted that on the date of Alden’s death (June 12, 2011), there were

no outstanding obligations owed to Marion.          Stated otherwise, the court ruled that

Marion’s claims did not arise until after his death.         Accordingly, any real estate

expenses arising after June 12, 2011 were “within the subject matter of the Probate

Court.”

       {¶31} In support of its position, the domestic relations court cited to Diemer v.

Diemer, 99 Ohio App.3d 54, 649 N.E.2d 1285 (8th Dist.1994). Diemer stands for the

proposition that, although “an action for divorce abates and cannot be revived when one

of the parties thereto dies, * * * an action which seeks to enforce fixed rights

and liabilities, such as an action to enforce alimony already awarded, survives the death

of that party.” (Emphasis sic.) Id. at 59-60.

       {¶32} Diemer was inapposite inasmuch as the abatement of Marion’s claims

was not an issue in the present case. As noted by the domestic relations court, at the

time of Alden’s death, there was nothing pending to abate or revive. The issue was

whether the domestic relations court could exercise jurisdiction over her claims. On that

issue, Diemer contributes nothing.

       {¶33} “All creditors having claims against an estate, including claims arising out

of contract, out of tort, on cognovit notes, or on judgments, whether due or not due,

secured or unsecured, liquidated or unliquidated, shall present their claims” to the

executor of the estate. R.C. 2117.06(A). “[A]ll claims shall be presented within six

months after the death of the decedent.” R.C. 2117.06(B). “When a claim against an

estate has been rejected in whole or in part * * *, the claimant must commence an

action on the claim, or that part of the claim that was rejected, within two months after

                                                9
the rejection if the debt or that part of the debt that was rejected is then due, or within

two months after that debt or part of the debt that was rejected becomes due, or be

forever barred from maintaining an action on the claim or part of the claim that was

rejected.” R.C. 2117.12.

       {¶34} In the present case, Marion presented her claim to the executor of Alden

Fletcher’s estate on November 3, 2011.         On November 7, 2011, Lateulere notified

Marion by certified mail that the claim was “rejected in whole.” On April 27, 2012,

Marion filed her Motion to Show Cause, seeking to assert her claim based on the

Decree of Divorce. Since she asserted her claim in domestic relations court more than

two months after its rejection by the executor, it is forever barred. Vitantonio, Inc. v.

Baxter, 116 Ohio St.3d 195, 2007-Ohio-6052, 877 N.E.2d 663, ¶ 3 (“R.C. 2117.12

requires that an action for a rejected claim such as appellees’ be filed within two months

after the executor’s rejection or be forever barred”).

       {¶35} The procedure set forth in R.C. 2117.12 has been regularly applied in

situations where a claim is asserted against a decedent’s estate based on a final decree

of divorce. See, e.g., Caldwell v. Brown, 109 Ohio App.3d 609, 610, 672 N.E.2d 1037

(2nd Dist.1996) (“[t]he claim was expressly predicated upon provisions in a divorce

decree”); Harmer v. Smith, 2nd Dist. Clark No. 3101, 1994 Ohio App. LEXIS 3200, 2

(July 20, 1994) (claim based on “the decedent’s failure to have maintained certain

policies of life insurance that * * * he was required to maintain under the terms of the

divorce decree”); Lindsay v. Royse, 12th Dist. Butler No. CA92-06-111, 1993 Ohio App.

LEXIS 1221, 3 (Mar. 1, 1993) (claim “represent[ed] an arrearage of sustenance alimony

payments accumulated prior to and after the [obligor’s] death”).

       {¶36} The second assignment of error is without merit.

                                             10
      {¶37} In the third and fourth assignments of error, Marion asserts that the

domestic relations court erred by denying her Motion for Attorney Fees, while awarding

the estate fees in the amount of $3,400.

      {¶38} “In any post-decree motion or proceeding that arises out of an action for

divorce, dissolution, legal separation, or annulment of marriage or an appeal of that

motion or proceeding, the court may award all or part of reasonable attorney’s fees and

litigation expenses to either party if the court finds the award equitable.”        R.C.

3105.73(B).

      {¶39} “It is well-established that an award of attorney fees is within the sound

discretion of the trial court.” Rand v. Rand, 18 Ohio St.3d 356, 359, 481 N.E.2d 609

(1985).

      {¶40} The denial of Marion’s request for attorney fees for the prosecution of her

Motion to Show Cause was appropriate inasmuch as that Motion was denied.

      {¶41} With respect to the award of attorney fees to the estate, we find no abuse

of discretion. It was neither unreasonable nor inappropriate to award attorney fees in

light of the fact that Marion attempted to litigate her untimely claims for reimbursement

in two courts simultaneously.

      {¶42} The third and fourth assignments of error are without merit.

      {¶43} For the forgoing reasons, the judgment of the Lake County Court of

Common Pleas, Domestic Relations Division, ordering Marion to return to the estate

one-half of the funds received from Alden’s 401(k) account, denying her Motion to Show

Cause, and awarding the estate attorney fees is affirmed. Costs to be taxed against

appellant.




                                           11
TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a

Concurring/Dissenting Opinion.



                _____________________________________________



COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.

      {¶44} I concur with the majority’s disposition of the first and third assignments of

error. However, I respectfully dissent regarding the second and fourth assignments of

error, and would reverse the trial court on them.

      {¶45} On the second assignment of error, the majority agrees with the trial

court’s conclusion the probate court had sole jurisdiction of the issue whether the estate

could be held in contempt for failing to reimburse Marion for mortgage and utility

expenses for the marital home. I find the magistrate’s conclusion the trial court retained

jurisdiction to decide the issue persuasive. The magistrate had substituted the estate

as party defendant in the divorce. I agree with the magistrate the trial court retained

jurisdiction to enforce its own prior order that the parties each pay one-half of the

mortgage and utility expenses for the marital home.

      {¶46} On the fourth assignment of error, Marion argues the trial court erred in

awarding the estate attorney fees for defending her motions to show cause and for

reimbursement regarding the mortgage payments and utilities.         She buttresses her

argument by citing to the trial court’s finding in its judgment entry that each party

appeared able to pay its attorney fees.



                                            12
      {¶47} It is evident from a reading of the trial court’s judgment entry on this issue,

that it found it unreasonable for Marion to pursue the matter in both the domestic

relations division, and the probate division. Given my conclusion the trial court erred in

not exercising jurisdiction over the mortgage and utility payments, I cannot find it

unreasonable or inequitable for Marion to have pursued the issue in both courts. Thus,

any award to the estate of attorney fees for defending the issue in both forums should

be reversed.

      {¶48} I respectfully concur and dissent.




                                           13
