Nancy L. Mcgeorge v. Donnie W. Mcgeorge
| Decision Date | 22 May 2001 |
| Docket Number | 00AP-1151,01-LW-1854 |
| Parties | Nancy L. McGeorge, Petitioner-Appellee, v. Donnie W. McGeorge, Petitioner-Appellant |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
Grossman Law Offices and Jeffrey A. Grossman, for appellee.
Chester Willcox & Saxbe, LLP, Eugene B. Lewis and Sarah Daggett Morrison, for appellant.
Donnie W. McGeorge, petitioner-appellant, appeals the Qualified Domestic Relations Order ("QDRO") filed in the Franklin County Court of Common Pleas, Division of Domestic Relations, on September 12, 2000.
On November 17, 1998, appellant and his wife, Nancy L. McGeorge petitioner-appellee, entered into a separation agreement pursuant to the termination of their marriage by dissolution. On that same day, the petition for dissolution of marriage and the attached separation agreement, as well as other documents, were submitted to the trial court. On December 21 1998, the trial court issued a judgment entry/decree of dissolution incorporating the terms of the separation agreement that divided the marital assets.
Appellant states in his brief that after the issuance of the judgment entry/decree of dissolution, counsel for both parties endeavored to divide the parties' assets per the conditions of the separation agreement. One of the final provisions of the separation agreement to be carried out was the division of appellant's pension plan with Kroger, as provided in Article III, Section E(2) of the separation agreement, by a QDRO. Appellant contends in his brief that both parties worked to achieve this goal.
On September 12, 2000, counsel for appellee submitted to the court a proposed QDRO that, appellant claims, neither he nor his counsel approved and that had not been qualified by the plan administrator. Counsel for appellant did not sign the proposed QDRO; instead, appellee typed "Submitted on 9/1/00 but not returned" on the signature line for appellant's counsel. The trial court journalized the QDRO the same day with a judgment entry. Between December 21, 1998, and September 12, 2000, the record contains documents such as final appealable order notices, child-support withholding orders, ordinary mail service stubs, and instructions for service. Neither party filed any pleadings with the trial court after the September 12, 2000 judgment.
Appellant appealed the trial court's entry adopting the QDRO and filed an appellate brief. On January 18, 2001, appellee filed a motion to strike appellant's brief on the basis that it cited to hearsay, a motion to strike several exhibits attached to appellant's brief because they were not part of the record below, and a motion to dismiss appellant's appeal. We granted appellee's unopposed motion to strike the exhibits and appellant's brief. We denied appellee's motion to dismiss to the extent that we granted appellant leave to file an amended brief. Appellant filed an amended brief on February 16, 2001, and appellee filed a brief responding to appellant's amended brief on March 6, 2001. On March 16, 2001, appellant then filed a motion to supplement the record, to which appellee responded with a memorandum contra. On April 5, 2001, we filed an entry indicating that we would consider appellant's motion to supplement the record at the time of our determination on the merits. In his amended brief, appellant asserts the following assignment of error:
The Trial Court Erred as a Matter of Law and Violated Appellant's Due Process Rights in Issuing a Final Entry Qualified Domestic Relations Order that Was Not Approved by Appellant and Which Deviated From the Separation Agreement Filed and Agreed to by the Parties.
We first address appellant's motion to supplement the record pursuant to App.R. 9(E). Appellant seeks to supplement the record with several documents, including appellant's proposed QDRO previously submitted to appellee and various correspondence to appellee's counsel from the Kroger Retirement Administrator and the Kroger Legal Department, indicating that neither appellee's proposed QDRO nor the QDRO entered by the trial court complied with the terms of the plan. Appellant claims supplementation of the record is necessary to demonstrate negotiations took place off the official record and appellee had been previously informed that the plan administrator would reject her QDRO.
Appellee claims in her memorandum contra that appellant's motion to supplement the record attempts to present the same material this court already struck from appellant's original brief. Appellee also argues that since this evidence was never before the trial court, App.R. 9(E) does not permit such new evidence to be supplemented before an appellate court. App.R. 9(E) provides, in pertinent part:
*** If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.
Thus, pursuant to App.R. 9(E), the reviewing court may only add material that was not made a part of the original record by accident but was in fact considered by the trial court in rendering its decision. In other words, said material must have been utilized by the trial court in reaching its determination. See Pailet v. Univ. of Cincinnati Hospital (June 30, 1983), Franklin App. No. 82AP-952, unreported. Further, it is axiomatic that an appellate court cannot add material to the record that was not a part of the trial court's proceedings and then decide the appeal on the basis of a new matter. State v. Ishmail (1978), 54 Ohio St.2d 402.
In the present case, it is undisputed the documents appellant wishes to supplement the record with were not before the trial court. This is not a situation in which the items were not made a part of the record by mistake or accident; rather, the documents are new materials being submitted to augment the appellate record. App.R. 9(E) does not permit the supplementation of the record under such circumstances. Therefore, we may not consider the new evidence submitted by appellant, and we deny his motion to supplement the record.
Appellant argues in his sole assignment of error that the trial court erred in issuing a final QDRO that was not approved by him and which deviated from the separation agreement filed and agreed to by the parties. Appellant actually presents two different bases for his argument: (1) the trial court erred in failing to make certain the submitted QDRO contained the same terms as set forth in the agreement by the parties; and (2) the trial court denied appellant due process by entering an order effectuating the QDRO without giving him notice or an opportunity for a hearing, especially since the QDRO was not signed by appellant or his counsel.
We will first address appellant's due process argument as it is dispositive of the matter. Due process requires that persons whose property interests are jeopardized by the filing of legal proceedings be given reasonable notice of the pendency of the action and afford them an opportunity to present their objections. Galt Alloys, Inc. v. KeyBank Natl. Assn. (1999), 85 Ohio St.3d 353, paragraph one of the syllabus. Neither party has cited any case law specifically addressing whether a trial court is required to give notice and provide an opportunity to be heard when one party submits a QDRO opposed and unsigned by the other party.
Although not directly on point because it concerns an ex parte amendment of a prior QDRO, the analysis in McClarren v. McClarren (Nov. 18, 1991), Morrow App. No. CA 755, unreported, is persuasive. In McClarren, the appellate court found that the trial court's "amendment" of the prior QDRO affected the husband's interest in the retained portion of his retirement account. Thus, the court of appeals found the husband had a property interest that was affected by the trial court's ex parte order, thereby entitling him to due process protection through notice and an opportunity to be heard. Likewise, in the present case, appellant alleges the substantial modification of the terms of the QDRO from the terms in the separation agreement, including the creation of survivorship rights and cost-of-living increases for appellee, has effectively deprived him of property rights in his portion of his retirement. Thus, appellant alleges to have an affected property interest in the QDRO, and due process would dictate appellant be afforded notice and an opportunity to be heard in a manner determined by the trial court.
Appellee counters that Loc.R. 12 of the Court of Common Pleas of Franklin County, Division of Domestic Relations ("Loc.R.12") is applicable to the following circumstances and that appellant failed to avail himself of the procedures and due process safeguards set forth in that rule. Loc.R. 12 provides, in pertinent part:
Unless subject to the Uniform Judgment Entry form promulgated by the Supreme Court, or unless the Trial Judge otherwise directs counsel for the party in whose favor an order, decree, or judgment is rendered, shall within five (5) days thereafter prepare the proper journal entry, and submit it to the counsel for the adverse party, who shall approve or reject the same within three (3) days after the receipt thereof. *** When the entry is approved by counsel, it shall be so endorsed and presented to the Judge...
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