CourtListener opinion 2699338

Evidence quotes

Clean opinion text

[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.
-vs-
 Case 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