[Cite as Flint v. Flint,
2012-Ohio-3379.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DENISE L. FLINT JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vsCase No. 11 CAF 11 0102
GERALD A. FLINT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 08 DR A 01 0025
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 26, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KAREN L. POLING DOUGLAS B. DOUGHERTY
EINSTEIN & POLING DOUGHERTY, HANNEMAN & SNEDAKER
5490 Wilcox Place, Suite F 3010 Hayden Road
Dublin, Ohio 43016 Columbus, Ohio 43235
Delaware County, Case No. 11 CAF 11 0102 2
Wise, J.
{¶1} Appellant Gerald A. Flint appeals the decision of the Court of Common
Pleas, Delaware County, which approved certain proposed QDROs affecting appellant’s
retirement plans in a post-decree contempt action initiated by Appellee Denise L. Flint,
appellant’s former spouse. The relevant facts leading to this appeal are as follows.
{¶2} Appellant Gerald and Appellee Denise were married on July 31, 1982.
Two children, presently emancipated, were born of the marriage. Appellee filed a
complaint for divorce on January 16, 2008, in the Delaware County Court of Common
Pleas, Domestic Relations Division. On May 10, 2010, the trial court, via judgment
entry, granted the parties a divorce. The decree sets forth, among other things, that four
retirement assets are to be divided via a qualified domestic relations order (“QDRO”).
These assets are (1) appellant’s General Motors 401(k) plan, (2) appellant’s Honda
401(k) plan, (3) appellant’s General Motors retirement plan, and (4) appellant’s Honda
retirement plan.
{¶3} On February 22, 2011, appellee filed a motion for contempt against
appellant on the issues of spousal support, transference of certain bonds, and issuance
of the QDROs. The trial court thereupon issued a show cause order and commanded
appellant to appear for a hearing. On April 26, 2011, appellant responded with a motion
for attorney fees, essentially alleging that appellee had not taken the necessary actions
to finalize the QDROs. The matter proceeded to evidentiary hearings before a
magistrate on May 5, 2011 and June 15, 2011.
{¶4} On July 22, 2011, the magistrate issued a decision, specifically addressing
neither the contempt motion nor appellant’s request for attorney fees. However, the
Delaware County, Case No. 11 CAF 11 0102 3
magistrate decided that appellee’s Exhibit 16 would be adopted as the General Motors
401(k) QDRO, that appellee’s Exhibit 9, with modifications, would be adopted as the
Honda 401(k) QDRO, that appellee’s Exhibit 14, with modifications, would be adopted
as the General Motors retirement plan QDRO, and that appellee’s Exhibit 12, with
modifications, would be adopted as the Honda retirement plan QDRO.
{¶5} Appellant filed objections to the decision of the magistrate on August 5,
2011. Appellee filed a memorandum in opposition to the objections on August 19, 2011.
{¶6} On October 4, 2011, the trial court issued a judgment entry finding
appellant’s objections to be without merit. The court found that the magistrate had
properly clarified the QDRO issues, and adopted the magistrate’s decision.
{¶7} Appellant filed a notice of appeal on November 2, 2011. He herein raises
the following sole Assignment of Error:
{¶8} “I. THE TRIAL COURT ERRED WHEN IT INTERPRETED THE
DIVORCE DECREE IN ITS CONSIDERATION OF THE WIFE’S CONTEMPT MOTION
WHEN THE HUSBAND HAD NO NOTICE THAT THE COURT WOULD INTERPRET
THE DIVORCE DECREE.”
I.
{¶9} In his sole Assignment of Error, appellant contends the trial court erred
when it allegedly “interpreted” the divorce decree without notice to appellant that it
would do so at the contempt hearing. We disagree.
{¶10} We have indeed recognized that under the principle of finality of
judgments, a trial court has no authority to reopen an earlier property division order
where no appeal was taken from the prior decree and the time to appeal has run.
Delaware County, Case No. 11 CAF 11 0102 4
Grinder v. Grinder, Stark App.No. 2001 CA00317, 2002-Ohio-1860, citing Bean v. Bean
(1983),
14 Ohio App.3d 358, 361,
471 N.E.2d 785. Nonetheless, while a trial court does
not have continuing jurisdiction to modify a marital property division incident to a divorce
or dissolution decree, it has the power to clarify and construe its original property
division so as to effectuate its judgment. Gordon v. Gordon (2001),
144 Ohio App.3d 21,
24,
759 N.E.2d 431, citing R.C. 3105.171(I). “If there is good faith confusion over the
interpretation to be given to a particular clause of a divorce decree, the trial court in
enforcing that decree has the power to hear the matter, clarify the confusion, and
resolve the dispute.” Quisenberry v. Quisenberry (1993),
91 Ohio App.3d 341, 348,
632
N.E.2d 916 (citations omitted). An appellate court reviews such an interpretive decision
by the trial court under a standard of review of abuse of discretion.
Id.
{¶11} We have also recognized that “[a]t a minimum, due process of law
requires notice and opportunity for a hearing, that is, an opportunity to be heard.” Shell
v. Shell, Stark App.No. 2010CA00026, 2010-Ohio-5813, ¶ 24, citing Mathews v.
Eldridge (1976),
424 U.S. 319,
96 S.Ct. 893,
47 L.Ed.2d 18. Our analysis in Himes v.
Himes, Tuscarawas App. No. 2002AP100084,
2003-Ohio-2935, is also noteworthy in
the present case. In Himes, a QDRO had been signed by the trial court and counsel for
both parties and filed in September 1992. Apparently, however, the QDRO was not
accepted by the plan administrator. Id. at ¶ 4. In October 2002, an Amended QDRO
was filed, having been signed by the ex-husband’s counsel and the trial court. Id. at ¶ 5.
The same had been submitted to, but not approved by, the ex-wife’s former counsel. Id.
at ¶ 5. The ex-wife did not learn of the Amended QDRO until a copy was served upon
her after the order was filed. The Amended QDRO, among other things, had purportedly
Delaware County, Case No. 11 CAF 11 0102 5
deleted the provision of the original QDRO granting the ex-wife 25% of ex-husband's
401(k) plan. Id. at ¶ 10. We reversed the approval of the amended QDRO, holding as
follows: “Since appellant's [ex-wife’s] property interests were at stake, appellant should
have had the opportunity to contest whether the Amended Qualified Domestic Relations
Order substantively changed the terms of the original Qualified Domestic Relations
Order that was signed by counsel for both parties.” Id. at ¶ 11.
{¶12} However, under the circumstances of the case sub judice, we hold
appellant’s present claim fails on two grounds. First, unlike in Himes, supra, the trial
court was not attempting to improperly modify on a post-judgment basis the terms of the
divorce decree or of any finalized QDRO. Instead, appellee had submitted a motion for
contempt alleging that appellant, inter alia, had “failed and refused to respond to the
drafts of the QDROs as prepared” (Contempt Motion at 2), and the magistrate
thereupon duly conducted two evidentiary hearings to determine why the retirement
benefit division orders in the decree were not being carried out and why the QDROs
had not been completed. Secondly, as to appellant’s assertion that he was given no
notice that the magistrate would treat the contempt hearing as a hearing on a motion to
interpret or clarify the QDRO requirements, we note appellant’s trial counsel stated the
following before the magistrate: “I do think that we should point out also that the original
filing that brings us here today and that brought us here on May 5th was a contempt
citation as opposed to a submission of drafts of the QDRO’s; however, as part of the
resolution of this process, we’re certainly prepared to do that, to submit drafts of the
QDRO’s.” Tr., June 15, 2011, at 9. Appellant’s trial counsel then told the magistrate that
he and his client had submitted “several drafts” of the QDROs to appellee’s counsel and
Delaware County, Case No. 11 CAF 11 0102 6
referenced a draft “that we’re submitting to the court today.” Id. at 10. Under these
circumstances, appellant cannot now maintain that his due process rights were violated
due to lack of prior notice about the nature of the proceedings before the magistrate.
{¶13} Appellant's sole Assignment of Error is therefore overruled.
{¶14} For the reasons stated in the foregoing, the decision of the Court of
Common Pleas, Domestic Relations Division, Delaware County, Ohio, is hereby
affirmed.
By: Wise, J.
Delaney, P. J., and
Edwards, J., concur.
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___________________________________
___________________________________
JUDGES
JWW/d 0625
Delaware County, Case No. 11 CAF 11 0102 7
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DENISE L. FLINT :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
GERALD A. FLINT :
:
Defendant-Appellant : Case No. 11 CAF 11 0102
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Domestic Relations Division, Delaware
County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES
