Ricketts v. Ricketts

• Decision Date: 11 March 1996
• Docket Number: Nos. CA95-02-034,CA95-03-038,s. CA95-02-034
• Citation: 673 N.E.2d 156,109 Ohio App.3d 746
• Parties: RICKETTS, Appellee and Cross-Appellant, v. RICKETTS, Appellant and Cross-Appellee. *
• Court: Ohio Court of Appeals

Page 746

109 Ohio App.3d 746

673 N.E.2d 156

RICKETTS, Appellee and Cross-Appellant, v. RICKETTS, Appellant and Cross-Appellee. ^*

Nos. CA95-02-034, CA95-03-038.

Court of Appeals of Ohio,

Twelfth District, Butler County.

Decided March 11, 1996.

Fred Ross, Middletown, for appellee and cross-appellant.

Mary Lou Kusel, Hamilton, for appellant and cross-appellee.

POWELL, Judge.

Defendant-appellant and cross-appellee, Willard Ricketts, appeals a decision of the Butler County Court of Common Pleas, Domestic Relations Division, contesting the court's division of his pension fund.

Appellant and plaintiff-appellee and cross-appellant, Sandra Ricketts, were married on July 8, 1972. One child was born during the marriage and is now emancipated. Appellee filed a complaint for alimony only on March 17, 1986. Appellant answered the complaint and subsequently filed a counterclaim for divorce. The trial court entered a judgment entry and final decree of divorce on September 21, 1988.

Pursuant to the divorce decree, appellant's pension fund, accumulated as a result of his employment with the Middletown Fire Department, was divided. The trial court found that appellant had been employed with the fire department for twenty-two years and that the parties had been married for fifteen years. The trial court determined the duration of the marriage by using June 1, 1986, the date on which the parties began living separate and apart, as the termination date of the marriage. The trial court further found that the proper formula to apply for division of appellant's pension would be a two-thirds ratio in that the parties were married for two-thirds of the earning period of the pension. In addition, the decree provided that the appellee is entitled to a Qualified Domestic Relations Order ("QDRO") for appellant's pension as of June 1, 1986. ¹ However, a QDRO was never prepared to divide appellant's pension fund, which is contained in the Police and Firemen's Disability and Pension Fund of Ohio.

The divorce decree also ordered appellant to pay spousal support to appellee in the amount of $75 per week and provided for termination of such support if either party died or if appellee remarried. The trial court retained full jurisdiction over the spousal support issue.

On April 28, 1992, appellant filed a motion to terminate his spousal support obligation. The matter was submitted to a referee, who recommended that appellant's spousal support obligation be reduced to $50 per week. In addition, with the consent of the parties, the referee corrected the divorce decree in terms of the pension division in order to reflect that appellee was entitled to a QDRO for value equivalent to one half of two thirds of the total accumulated value or earnings of appellant's pension fund as of June 1, 1986. The referee's recommendations became the order of the trial court on October 27, 1992.

Appellant retired on May 16, 1992. On August 19, 1993, appellee filed a motion seeking resolution of the pension matter. On October 27, 1993, the parties agreed that the pension would be evaluated by David Kelley of Pension Evaluators.

On July 25, 1994, the trial court filed an entry adopting Kelley's reports of November 3 and 4, 1993. The trial court determined that it had continuing jurisdiction over the pension distribution and found that appellee was entitled to a monthly benefit of $489.13 from appellant's current pension payments, with a three percent cost of living adjustment added each year that it is awarded. ² The payments to appellee were to begin retroactively as of July 1992, when the pension benefits commenced. The trial court expressly retained full and continuing jurisdiction over appellant's pension plan.

Subsequently, the parties filed several motions. Appellant filed another motion to terminate his spousal support obligation. Appellee filed a motion seeking to hold appellant in contempt for failure to pay spousal support and accumulated arrearages. Appellee also filed a motion requesting the court to increase the amount that appellant was required to pay to appellee on the accumulated pension arrearages since appellant had failed to pay appellee her share of his pension when he began receiving it. The trial court heard the parties' motions on December 20, 1994. At the hearing, David Kelley testified regarding the valuation and distribution of appellant's pension as reflected in his reports of November 3 and 4, 1993.

In an entry filed on January 31, 1995, the trial court determined the value of appellant's pension by utilizing a coverture fraction, representing the years of marriage during the pension, divided by the total number of years in the pension plan divided by two, of the present value of the pension. The trial court ordered that appellee is entitled to receive 23.94 percent of appellant's current pension benefits. ³ The trial court also granted appellant's motion to terminate spousal support and ordered appellant to pay the arrearage owing on the pension division by paying an additional $75 per month. It is from this judgment that appellant now appeals, setting forth the following assignments of error:

Assignment of Error No. 1:

"The trial court erred to the prejudice of the defendant/appellant by reserving jurisdiction eight years after the divorce, when no jurisdiction was reserved in the judgment entry and decree of divorce, to modify the division of property as awarded in the judgment entry and decree of divorce."

Assignment of Error No. 2:

"The trial court erred to the prejudice of the defendant/appellant when it ordered that the appellee receive 23.94% of appellant's current monthly pension benefits."

In his first assignment of error, appellant contends that the trial court erred by exercising jurisdiction to modify the property division eight years after the divorce had been granted because the court failed to reserve jurisdiction in the judgment entry and divorce decree. Appellant argues that the divorce decree, filed in 1986, specifies a formula to be used for the division of appellant's pension plan and that the trial court abused its discretion by modifying the pension division after the divorce.

Pension and retirement benefits acquired by either spouse during the course of a marriage are marital assets that must be considered in arriving at an equitable division of marital property. Bisker v. Bisker (1994), 69 Ohio St.3d 608, 609, 635 N.E.2d 308, 309; King v. King (1992), 78 Ohio App.3d 599, 606, 605 N.E.2d 970, 974; Livingston v. McKie (Aug. 17, 1992), Butler App. No. CA92-01-011, unreported, 1992 WL 201101. A trial court has broad discretion in dividing marital property, including pension benefits. Bisker, 69 Ohio St.3d at 609, 635 N.E.2d at 309; Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 559 N.E.2d 1292, paragraph one of the syllabus. However, a trial court does not have continuing jurisdiction to modify a property division incident to a divorce decree. See R.C. 3105.171(I); Bean v. Bean (1983), 14 Ohio App.3d 358, 361-362, 14 OBR 462, 465-467, 471 N.E.2d 785, 789-791.

In determining the proper division of pension benefits, "[t]he trial court should attempt to preserve the pension or retirement asset in order that each party can procure the most benefit, and should attempt to disentangle the parties' economic partnership so as to create a conclusion and finality to their marriage." Hoyt, 53 Ohio St.3d 177, 559 N.E.2d at 1292, paragraph two of the syllabus. Further, the proper method to determine the value of pension benefits is to compute a coverture fraction representing "the ratio of the number of years of employment of the employed spouse during the marriage to the total years of his or her employment." Id. at 182, 559 N.E.2d at 1298.

Ohio courts have recognized several alternative methods for equitably dividing pension funds within the context of the overall property division. The four alternatives include (1) withdrawing the employee spouse's share of the funds from the pension plan and apportioning and distributing them at the time of the divorce; (2) determining the present value of the pension fund, calculating the nonemployee spouse's proportionate share, and offsetting that amount with other marital assets or a lump sum payment; (3) determining the present value of the pension fund, calculating the nonemployee spouse's proportionate share, and offsetting that amount with installment payments from the employee spouse; and (4) determining the appropriate percentage or amount of future benefits in view of the circumstances and ordering that amount to be paid directly from the fund to the nonemployee spouse if and when the pension matures. See, e.g., Smith v. Smith (1993), 91 Ohio App.3d 248, 253, 632 N.E.2d 555, 558-559; Sprankle v. Sprankle (1993), 87 Ohio App.3d 129, 132, 621 N.E.2d 1310, 1311-1312; Connolly v. Connolly (1990), 70 Ohio App.3d 738, 743, 591 N.E.2d 1362, 1365, fn. 1; Powell v. Powell (1989), 49 Ohio App.3d 56, 58, 550 N.E.2d 538, 540-541; Day v. Day (1988), 40 Ohio App.3d 155, 159, 532 N.E.2d 201, 205-206. However, public pension funds, such as the Police and Firemen's Disability and Pension Fund, are not subject to attachment, garnishment, levy, or seizure under any legal or equitable process, including QDROs relating to a property division in a divorce action. See, e.g., R.C. 742.47. Thus, a QDRO is not an acceptable method for division of a public pension. Id.

In the judgment entry and decree of divorce filed on September 21, 1988, the trial court established a formula for division of appellant's pension fund. The decree provided that appellee was to receive a two-thirds ratio of appellant's pension fund as of June 1, 1986, since the parties were married for two thirds of the earning period of the pension. ⁴ The court also ordered counsel to prepare a QDRO for distribution of the pension fund in accordance with the decree, but a QDRO for division of the pension was never...