Laurie L. Wright v. Clarence J. Wright, 94-LW-1192
| Decision Date | 10 November 1994 |
| Docket Number | 94CA02,94-LW-1192 |
| Parties | LAURIE L. WRIGHT, Plaintiff-Appellee v. CLARENCE J. WRIGHT, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
Kerns & Kerns, Richard T. Cholar, Jr., Columbus, Ohio, for Appellant.[1]
DECISION
This is an appeal from a judgment entered by the Hocking County Court of Common Pleas granting Laurie L. Wright, plaintiff below and appellee herein, a divorce from Clarence J. Wright defendant below and appellant herein, and apportioning their property. Appellant assigns the following errors for our review:
The record reveals the following facts pertinent to this appeal. The parties herein were married on February 20, 1987, and one child, Jennifer L. Wright (D.O.B. 9-28-88), was born as issue of said marriage. During their six year marriage, appellant was an employee of the U.S. Post Office. Through his employment, he acquired assets in a retirement program which accumulated based upon the number of years of service he had with the postal service. Appellant also acquired stocks bonds and participated in a deferred compensation thrift savings plan through other post office savings programs. Although appellee worked seasonally on a part-time basis for H&R Block as a tax return preparer, she was primarily the family's homemaker and principal caretaker of the parties' child and her minor stepchildren.
Appellee commenced the cause sub judice on November 6, 1992, seeking a divorce from appellant on the grounds of incompatibility, gross neglect and extreme cruelty. Appellant filed a general answer denying the allegations of the complaint. The matter proceeded to trial on June 24, 1993, at which time the primary focus of the proceedings were on the alleged visitation problems suitability of each party to be custodial parent for their daughter. Although there was some testimony by the parties regarding their assets, neither one of them presented any expert witnesses to testify about the present values thereof.
The final Decree of Divorce was filed on December 15, 1993. Therein, appellee was granted a divorce and awarded custody of the minor child. The trial court found the family residence to be appellant's separate property and assessed a value thereon of $33,000. Appellee was awarded$6,500 as her share of the appreciation in value of the marital residence during the marriage. The trial court also awarded each party those household items and furniture which had already been divided between them. Contested marital (personal) property, namely a ten-speed bike, a microwave oven, a kitchen table, a couch, a 35mm camera, a motorcycle, $150 from the Mutual Federal account, and $2,500 from the thrift savings plan, was awarded to appellee. The trial court did not determine the cash value of any of such household items and furniture. Appellee was also awarded a portion of appellant's retirement benefits. In its decree, the trial court ordered that "[a] Qualified Domestic Relations Order shall be prepared by counsel and forwarded to the appropriate officials and the Court retains jurisdiction until said QDRO is accepted." Notably, the QDRO was never submitted to the trial court for approval by either party's counsel although the Decree for Divorce was submitted to appellee's trial counsel for signature. On the Decree, there is a notation on the signature line that it was submitted to appellee's counsel on September 13, 1993, but "not approved." This appeal followed.
Before concerning ourselves with the merits of the assignment of error, we must first address a threshold jurisdictional issue. Ohio law provides that the courts of appeal in this state have jurisdiction to review the final orders or judgments of inferior courts within their district. Section 3(B)(2), Article IV of the Ohio Constitution; R.C. 2501.02. A "final order" is one which, inter alia, affects a substantial right and either determines the action or is made in a special proceeding. R.C. 2505.02. The operative effect of such an order is that it determines the entire case, or a distinct branch thereof, such that it will not be necessary to bring the cause before the court for further proceedings. Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, Lantsberry v. Tilley Lamp. Co. (1971), 27 Ohio St.2d 303, 306; Teaff v. Hewitt (1853), 1 Ohio St. 511, 520. Application of these principles to the cause sub judice raises concern with respect to the failure to submit, and ultimately journalize, a QDRO as directed by the lower court.
A review of previous caselaw reveals the general consensus to have been that a judgment apportioning pension benefits between ex-spouses was not final and appealable until such time as the QDRO was entered. See e.g. Lyddy v. Lyddy (1989), 64 Ohio App.3d 561, 562; Middendorf v. Middendorf (Jun. 8, 1994), Shelby App. No. 17-93-17, unreported. The gist of the reasoning in these decisions is that the case is left unresolved, and the action undermined, when the division of pension benefits is not made in compliance with federal law.[2] A consistent application of that principle here would lead us to the conclusion that no final appealable order was entered in the cause sub judice because the parties never submitted, and the court never journalized, an appropriate QDRO. Then, we would be required to sua sponte dismiss this appeal for lack of jurisdiction under R.C. 2501.02. See Ft. Frye Teachers Assn. v. Ft. Frye Local School Dist. Bd. of Edn. (1993), 87 Ohio App.3d 840, 843; Kouns v. Pemberton (1992), 84 Ohio App.3d 499, 501. However, we do not reach that conclusion here.
The Ohio Supreme Court was recently asked to consider whether a writ of mandamus would issue to compel a trial court judge to make findings of fact and conclusions of law (pursuant to Civ.R. 52) to explain the bases for several judgments entered in a divorce proceeding. See State ex rel. Papp V. James (1994), 69 Ohio St.3d 373. In ruling that such a writ would issue, the court paused to consider the nature of the finality of such judgments and the specific prong of R.C. 2505.02 under which they should be analyzed. It was determined that divorce is a "special statutory proceeding" and, therefore, all ancillary issues related thereto must be analyzed as a special proceeding under R.C. 2505.02.[3] Id. at 378. In that the division of marital property is clearly an ancillary issue in a divorce proceeding, then the judgment of the court below must be considered final and appealable so long as it can be said to affect a "substantial right." A substantial right involves the idea of a legal right which is enforced and protected by law. Noble, supra at 94; North v. Smith (1906), 73 Ohio St. 247, 249. Clearly, an individual's ownership interest in certain marital property upon divorce constitutes a "substantial right." This court, accordingly, rules that the judgment entered below is final and appealable (even in the absence of a QDRO) and that we have jurisdiction to review the matter on its merits.
Admittedly, our decision herein conflicts with prior decisions in cases such as Lyddy and Middendorf, supra. It could be argued that State ex rel. Papp overruled, sub silentio, cases such as Lyddy which came before it. However, Middendorf was decided subsequent to State ex rel. Papp and appears to have eschewed the principles enunciated therein. In an effort to reconcile caselaw, it may be possible to argue that the discussion of finality and special statutory proceedings in State ex rel. Papp was mere dicta that could be disregarded. This was, after all, not the real issue in the case and Justices Resnick and Wright declined to join in this portion of the decision for that very reason. State. ex rel. Papp, supra at 382 (Resnick, J. concurring). However, that path is fraught with danger and should not be considered lightly. Appellate courts are bound by rulings of the Ohio Supreme Court, Carswell v. Toledo Edison Co. (1988), 53 Ohio App.3d 82, 84; Shuman v. Schick (1953), 95 Ohio App. 413, 416, and a healthy regard should be maintained for considered dicta. State v. Boggs (1993), 89 Ohio App.3d 206, 213. After a thorough review of State ex rel. Papp, we decline to follow the Shelby County Court of Appeals in Middendorf and rule, instead, that the judgment appealed below is a final order such that this court has jurisdiction to consider the matter on its merits.[4]
Before turning our attention to those merits, we pause to consider several principles applicable to all three assignments of error. Trial courts are required by law to divide marital and separate property equitably between the spouses. R.C 3105.171(B). This requires, in most cases, that marital property be divided equally. Id. at (C)(1). However, if equal division would produce an inequitable result, than the property must be divided in such a way as the court determines to be equitable. Id. Separate property is to be distributed to the spouse who brought such property into the marriage. Id. at (D). Here again,...
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