CourtListener opinion 2700454

Evidence quotes

Clean opinion text

[Cite as Woronka v. Woronka, 2011-Ohio-498.]

 COURT OF APPEALS
 STARK COUNTY, OHIO
 FIFTH APPELLATE DISTRICT

 JUDGES:
VALERIE WORONKA : Hon. W. Scott Gwin, P.J.
 : Hon. Sheila G. Farmer, J.
 Plaintiff-Appellee : Hon. John W. Wise, J.
 :
-vs- :
 : Case No. 2010-CA-00193
WILLIAM WORONKA :
 :
 Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
 Common Pleas, Domestic Relaltions
 Division, Case No. 2006-DR-1016

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: January 31, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

EUGENE GILLIS EUGENE O'BYRNE
1592 Windcrest Street N.W. 101 Central Plaza South
North Canton, OH 44720 Suite 500
 Canton, OH 44702
 [Cite as Woronka v. Woronka, 2011-Ohio-498.]

Gwin, P.J.

 {¶1} Defendant-appellant William J. Woronka appeals a judgment of the Court

 of Common Pleas, Domestic Relations Division, of Stark County, Ohio, which

 construed the separation agreement appellant entered into with plaintiff-appellee

 Valerie Woronka. Appellant assigns a single error to the trial court:

 {¶2} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN MODIFYING THE

 SEPARATION AGREEMENT, WHICH WAS ADOPTED BY THE PARTIES AND

 INCORPORATED BY THE COURT."

 {¶3} The record indicates the parties ended their marriage in October, 2006,

 and executed a separation agreement. The agreement provided in pertinent part: "11.

 Husband and Wife consent and agree that Wife is to receive one-half of IBEW 401(K)

 by use of a Qualified Domestic Relations Order (QDRO)."

 {¶4} On June 17, 2010, the court conducted a hearing on a request for

 clarification of the QDRO and the divorce decree. The trial court found the attorney

 representing the company clarified that appellant's IBEW pension account is a Security

 Plan Pension, and that a separate 401(K) Plan exists, but it has no value. The court

 found the pension accrued during the marriage and has an approximate value of

 $30,000.

 {¶5} The trial court stated it lacks authority to modify the division of marital

 property contained in the final decree, but it does have the power to clarify and

 construe the property division in order to effectuate its judgment. The court found the

 parties clearly contemplated an equal division of the marital portion of the pension.

 The court found the decree incorrectly referred to the pension as a 401 (K) rather than
 Stark County, Case No. 2010-CA-00193 3

the Security Plan. The court clarified the 2006 decree to require an equal division of

the marital portion of appellant's IBEW Security Plan through means of a QDRO.

 {¶6} Unfortunately, the beginning of the hearing was conducted off the record,

and the documents and transcript before us contain little information. The transcript

refers to correspondence between the parties' counsels which was not offered into

evidence and is not part of the record on appeal.

 {¶7} Appellant concedes the trial court had jurisdiction to clarify and construe

the original property division, but argues the court's order does not construe the

original property division, but rather modifies it. The trial court cited our decision in

Schneider v. Schneider, Stark App. No. 2009-CA-00090, 2010-Ohio-534. In

Schneider, the divorce decree awarded the ex-wife 50% of the marital portion of the

ex-husband's accrued benefits in a pension, but when the ex-husband retired he

discovered appellee was receiving one-half of the entire pension, not one-half of the

portion earned during the marriage.

 {¶8} The trial court found the ex-wife was entitled to one-half of the total

pension. This court disagreed. We cited Bond v. Bond (1990), 69 Ohio App. 3d 225,

which states a trial court has broad discretion in clarifying ambiguous language

considering not only the intent of the parties, but the equities involved. We found the

divorce decree stated it divided the marital assets and the marital property, and

therefore the benefits to which the ex-wife was entitled must be determined by the

amount of time the parties were married.

 {¶9} Appellant cites us to Ruthrauff v. Ruthrauff, Stark App. No. 2009-CA-

00191, 2010-Ohio-887. In Ruthrauff, the parties' separation agreement provided for
 Stark County, Case No. 2010-CA-00193 4

equal distribution of the husband's retirement benefits from U.S. Army. The decree was

granted in 1985. When the ex-husband retired from the military in 2003, the ex-wife

began receiving half of the total benefits. The trial court found the terms of the

separation agreement were clear and unambiguous, and refused to modify the award.

We found if the language of a written instrument is clear and unambiguous, the

interpretation of the instrument is a matter of law and the court must determine the

intent of the parties using only the language employed. Ruthrauff at paragraph 12,

citations deleted.

 {¶10} This court agreed with the trial court the language in the separation

agreement was unambiguous. It stated the husband and wife intended to settle, inter

alia, "the past, present and future support of the wife ***" The separation agreement

also provided the wife would share "any" retirement benefits the husband may be

entitled to receive from the U.S. Army. It did not specify she was to receive half of the

marital portion of the pension.

 {¶11} On review, this court found the parties' agreement treated the retirement

benefit as support for the ex-wife. We concluded the trial court did not err in refusing to

alter the decree. We acknowledged the ruling appears to be contrary to Schneider,

supra, but found it was distinguishable because of the specific language of the

respective agreements.

 {¶12} In the case before us, the decree states the parties' intent to settle all their

property rights and interest, both temporary and permanent. Separation agreement,

Page 1. The final paragraph of the decree states that both parties are fully cognizant

and aware of the property and assets of the other party and understand the
 Stark County, Case No. 2010-CA-00193 5

significance of the agreement. The separation agreement does not refer to the IBEW

Security Plan at all, and it does not list the value of the 401(K).

 {¶13} The trial court found the decree incorrectly referred to appellant's pension

as a 401(K) and the parties intended to divide the Security Plan funds. We do not

agree. The record contains no evidence the parties intended to divide the Security Plan

funds. If there had been no 401 (K) plan, then the language would be ambiguous and

the court could have determined what the agreement referred to, but here, there is a

401 (K) account, even though it is unfunded.

 {¶14} We find the language in the separation agreement to be clear and

unambiguous. The separation agreement refers to the parties' 401 (K) plan, and the

trial court's decision substituting the Security Plan of a 401 (K) plan was a modification,

not a clarification. We find the trial court abused discretion in finding the parties

intended to split the Security Plan funds rather than the 401 (K) plan funds.

 {¶15} The assignment of error is sustained.
 Stark County, Case No. 2010-CA-00193 6

 {¶16} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, of Stark County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accord with law and consistent with

this opinion.

By Gwin, P.J., and

Wise, J., concur;

Farmer, J., dissents

 _________________________________
 HON. W. SCOTT GWIN

 _________________________________
 HON. SHEILA G. FARMER

 _________________________________
 HON. JOHN W. WISE
WSG:clw 0112
 Stark County, Case No. 2010-CA-00193 7

Farmer, J., dissenting

 {¶17} I respectfully dissent from the majority's opinion because of the state of

the record in this case. Pursuant to Knapp v. Edwards Laboratories (1980), 61 Ohio

St.2d 197, we should presume the validity of the trial court's proceedings.

 {¶18} As noted by the majority in ¶6, the beginning of the hearing was held off

the record. This leaves open the following issues:

 {¶19} (1) Was the 401(K) in existence at the time of the divorce?

 {¶20} (2) Where the monies of the 401(K) transferred into the Security Plan

Pension?

 {¶21} We might guess at the actual happenings by reading between the lines of

the trial court's findings of fact contained in its June 21, 2010 judgment entry:

 {¶22} \***The parties received a divorce on August 14