CourtListener opinion 6319404

Evidence quotes

Clean opinion text

[Cite as Williams v. Williams, 2022-Ohio-599.]

 IN THE COURT OF APPEALS
 FIRST APPELLATE DISTRICT OF OHIO
 HAMILTON COUNTY, OHIO

PATRICIA ELAINE WILLIAMS, : APPEAL NO. C-210331
 TRIAL NO. DR-1900117
 Plaintiff-Appellant, :
 O P I N I O N.
 vs. :

RICHARD ALLEN WILLIAMS, :

 Defendant-Appellee. :

Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
 Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 2, 2022

Stagnaro Hannigan Koop, Co., LPA, and Michaela M. Stagnaro, for Plaintiff-
Appellant,

The Bonecutter Firm, LLC, and Brenda L. Bonecutter, for Defendant-Appellee.
 OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Presiding Judge.

 {¶1} Plaintiff-appellant Patricia Elaine Williams ("Patricia") appeals the

entry issued by the Hamilton County Court of Common Pleas, Domestic Relations

Division, denying her Civ.R. 60(B) motion for relief from judgment in which she had

asked the trial court to modify a provision of her divorce decree. Because R.C.

3105.171(I) prohibited the trial court from modifying the divorce decree absent the

consent of both parties to the decree, we find that the trial court lacked authority to

grant Patricia the requested relief, and we affirm the trial court's judgment.

 Factual and Procedural Background

 {¶2} On January 22, 2019, Patricia filed a complaint for divorce against her

then husband, defendant-appellee Richard Allen Williams ("Richard"). On

November 22, 2019, Patricia and Richard entered into an "Agreed Entry on Divorce."

The entry indicated that the trial court adopted and approved the agreement of the

parties as placed on the record and affirmed by each party.1 Approximately two

months later, on January 29, 2020, the trial court journalized a decree of divorce.

 {¶3} As relevant to this appeal, the decree addressed the division of the

parties' retirement accounts. It provided that:

 Plaintiff is entitled to 50% of Defendant's two retirement accounts:

 Defendant is vested in the Ohio Public Employees Retirement System

 (OPERS), which is marital in nature and approximate value

 $261,047.oo as of May 24, 2019, and Defendant is fully vested in a

 Retirement Savings IRA, which is marital in nature and approximate

1 The record on appeal does not contain a copy of the parties' agreement.

 2
 OHIO FIRST DISTRICT COURT OF APPEALS

 value April 30, 2019 of $3099.78. Both of these Plaintiff shall receive

 50% for the dates of marriage, May 9, 1997 through May 24, 2019,

 minus credit for Defendant's one-half interest in Plaintiff's 401(K),

 which is marital in nature and valued at approximately $25,311.31 as of

 August 12, 2019.

The decree further provided that Patricia was responsible for the cost of preparing

any Qualified Domestic Relations Order ("QDRO") or Division of Property Order

("DOPO") necessary to effectuate the transfer of the retirement assets. There was no

further explanation of what 50 percent meant.

 {¶4} After retaining the services of an attorney qualified to draft the

required DOPO, Patricia learned that she would not be able to receive her portion of

Richard's OPERS retirement account in an immediate lump-sum payment. Rather,

she could only receive 50 percent of his monthly pension payments and only once he

retired. And, in the absence of an election of joint-and-survivor benefits, her

payments would cease upon Richard's death. Because Patricia had believed

otherwise, she filed a motion for relief from judgment under Civ.R. 60(B). The

motion requested that the trial court modify the portion of the divorce decree

concerning the division of the parties' retirement accounts to include both: (1) an

order that Richard cooperate with Patricia and a life insurance company of her

choice should she choose to obtain insurance on Richard's life; and (2) an order that

Richard, upon his retirement, choose a joint-and-survivor benefit option to the

extent of Patricia's marital interest as reflected by the DOPO.

 {¶5} In support of her motion, Patricia submitted an affidavit stating that

she had believed the parties' decree of divorce would allow her to receive her portion

 3
 OHIO FIRST DISTRICT COURT OF APPEALS

of Richard's OPERS account in an immediate lump-sum payment via a DOPO, and

that if she had known that such immediate payment was not possible, she would

have insisted on some type of protection or security to ensure that she received her

money.

 {¶6} Patricia additionally submitted an affidavit from J. Eileen Zell, whom

she had retained to draft the DOPO. Zell detailed her qualifications and knowledge

on the subject of the division of retirement and other deferred-income arrangements

in divorce. She stated that Patricia could not receive her share of Richard's OPERS

account in an immediate payment, and that she could not receive any payment until

Richard began receiving his benefits following his retirement. Zell opined that

Patricia's interest in Richard's OPERS account needed to be protected, and that the

most efficient way to do so was via a term life insurance policy prior to Richard's

benefit commencement and a joint-and-survivor election at benefit commencement.

 {¶7} While Patricia's motion was pending, the trial court issued a DOPO

concerning the division of Richard's OPERS account. The DOPO provided that

Patricia was entitled to either a per benefit payment and/or lump sum payment of

45.7 percent of a specific fraction that was set forth in a different section of the

DOPO. The numerator of the fraction was 20.75, which was the number of years

during which Richard was a contributing member to OPERS and married to Patricia.

The denominator of the fraction was yet to be determined, and will ultimately be

Richard's total years of service credit with OPERS. The DOPO was sent to OPERS,

which, on April 20, 2021, issued a "notice of nonapproval of division of property

order." The notice specified that the submitted DOPO was not approved because a

particular paragraph in the order "does not include boxes next to the types of

 4
 OHIO FIRST DISTRICT COURT OF APPEALS

payment, possibly due to a printer error." The DOPO is subject to correction and can

be resubmitted. Modification of the DOPO is not at issue in this case.

 {¶8} The trial court held a hearing on Patricia's motion for relief from

judgment regarding the divorce decree (note that Patricia was not seeking to modify

the DOPO). Patricia testified in accordance with her previously submitted affidavit,

additionally stating that the parties had intended to equally divide their pension and

retirement interests. Zell likewise testified in accordance with her affidavit

concerning the actions necessary to protect Patricia's interest in Richard's OPERS

account. According to Zell, absent these safeguards, Patricia will be unable to receive

her full marital interest in Richard's OPERS account if he predeceases her.

 {¶9} Richard testified that prior to the decree of divorce being issued by the

trial court, there had been no discussion of Patricia obtaining a life insurance policy

on him or of him electing a survivorship benefit. Richard further testified that he

would not agree to elect a survivorship benefit or to allow Patricia to obtain the

requested life insurance.

 {¶10} The trial court denied Patricia's motion for relief from judgment. The

court noted that Patricia had not specified which subsection of Civ.R. 60(B) she was

seeking relief under, but that it was limited by law to granting relief under Civ.R.

60(B)(1), (2), or (3). It further found that because Patricia made no allegations of

fraud or newly discovered evidence, she was only able to seek relief under Civ.R.

60(B)(1) for mistake, inadvertence, surprise, or excusable neglect. The court

determined that Patricia had not met her burden of demonstrating that she was

entitled to relief under this subsection, and that, even if she had met her burden,

relief was nonetheless unavailable because, pursuant to R.C. 3105.171(I), the court

 5
 OHIO FIRST DISTRICT COURT OF APPEALS

was prohibited from modifying a property division in a divorce decree absent

consent from both spouses.

 {¶11} Patricia now appeals.

 Civ.R. 60(B) Relief was not Available

 {¶12} In a single assignment of error, Patricia contends that the trial court

erred as a matter of law in denying her motion for relief from judgment. She argues

that R.C. 3105.171(I) did not prohibit the trial court from granting relief under Civ.R.

60(B), that the trial court erred in finding that it was limited to granting relief under

Civ.R. 60(B)(1), (2), or (3), and that she met her burden of establishing that she was

entitled to relief from judgment.

 1. R.C. 3105.171

 {¶13} We first consider Patricia's argument that R.C. 3105.171(I) did not

prohibit the trial court from granting Civ.R. 60(B) relief.

 {¶14} R.C. 3105.171(I) provides that "[a] division or disbursement of

property or a distributive award made under this section is not subject to future

modification by the court except upon the express written consent or agreement to

the modification by both spouses." Under the plain language of this statute, consent

of both spouses is required before a trial court may modify a property division.

 {¶15} The Supreme Court of Ohio considered the impact of R.C. 3105.171(I)

on a trial court's ability to grant Civ.R. 60(B) relief in Walsh v. Walsh, 157 Ohio St.3d

322, 2019-Ohio-3723, 136 N.E.3d 460. Like this case, Walsh involved a party

seeking relief from judgment from a provision in a divorce decree concerning the

division of a spouse's pension. In Walsh, the parties' divorce decree provided that

 6
 OHIO FIRST DISTRICT COURT OF APPEALS

wife would receive a share of husband's military pension based upon a marriage term

of six years, which was the period that the parties were together during husband's

military service, and that a QDRO would be prepared by a consulting firm to

implement the pension division. It further provided that the trial court would retain

jurisdiction over the QDRO. Id. at ¶ 4. When the parties attempted to draft a QDRO

to implement the division of the pension, wife learned that she would be unable to

receive direct pension payments from the military because the divorce decree did not

specify her share of husband's pension in percentage terms and because the military

had a requirement that direct pension payments to a former spouse would not be

made unless the marriage lasted for at least ten years, during which period the

service member spouse provided military service (the "10/10 rule"). Id. at ¶ 5. The

parties' divorce decree stating that they were married for six years did not satisfy the

"10/10 rule."

 {¶16} Wife filed a motion for relief from judgment under Civ.R. 60(B)(4) and

(5), asking the court to modify the divorce decree to reflect the percentage of the

pension to which she was entitled and "the parties' actual date of marriage and date

of divorce, rather than the agreed upon dates which do not meet the 10/10 rule." Id.

at ¶ 9. The trial court granted wife's motion for Civ.R. 60(B) relief. Husband

appealed and the court of appeals affirmed, finding that the trial court was able to

modify the terms of the divorce decree concerning the pension because it had

retained jurisdiction over the QDRO. Id. at ¶ 13.

 {¶17} The Walsh court reversed. It held that "[i]n addition to the Civ.R.

60(B) requirements for modification, the divorce and dissolution statutes contain

certain statutory restrictions that limit the authority of a trial court to modify a final

 7
 OHIO FIRST DISTRICT COURT OF APPEALS

decree." Id. at ¶ 19. The court recognized that retirement benefits earned during the

course of a marriage were marital property subject to R.C. 3105.171(I), and that

because both spouses had not consented to the modification of the property division,

under the plain language of R.C. 3105.171(I), the trial court had no authority to order

wife's requested change to the decree. Id. at ¶ 19-20. The Walsh court discussed the

interplay between Civ.R. 60(B) and R.C. 3105.171(I) and held that "Civ.R.

60(B) cannot be used to alter the statutory requirements for the modification of a

decree. Because R.C. 3105.171(I) does not permit modification absent the consent of

both parties, Civ.R. 60(B) cannot provide a workaround." Id. at ¶ 23.

 {¶18} In this case, because Richard did not consent to Patricia's requested

changes to the divorce decree, pursuant to R.C. 3105.171(I) the trial court had no

authority to modify the decree. See id. at ¶ 20. Patricia could not use Civ.R. 60(B) to

circumvent R.C. 3105.171(I). See id. at ¶ 23.

 2. R.C. 3105.89

 {¶19} Patricia argues that the trial court was statutorily permitted to modify

the divorce decree, notwithstanding R.C. 3105.171(I), because of an exception found

in R.C. 3105.89, a statute that addresses property division orders involving public

retirement programs. R.C. 3105.89 provides that:

 Notwithstanding division (I) of section 3105.171 of the Revised Code:

 (A) The court shall retain jurisdiction to modify, supervise, or enforce

 the implementation of an order described in section 3105.81 of the

 Revised Code.

 (B) The court may modify an order issued under section 3105.171 or

 3105.65 of the Revised Code that was effective prior to the effective

 8
 OHIO FIRST DISTRICT COURT OF APPEALS

 date of this section for the purpose of enforcing the order or carrying

 into effect the manifest intentions of the parties. A modified order

 must meet the requirements of section 3105.82 of the Revised Code.

(Emphasis added.)

 {¶20} Subsection (B) of R.C. 3105.89 is inapplicable in this case, as Patricia

was not seeking to modify an order that was "effective prior to the effective date" of

R.C. 3105.89. The statute was effective as of January 1, 2002, and Patricia sought to

modify the parties' divorce decree, journalized in 2020. See Richardson v.

Richardson, 9th Dist. Summit No. 29629, 2021-Ohio-2229, ¶ 17, quoting Ivanov v.

Ivanov, 9th Dist. Summit No. 24998, 2010-Ohio-1963, ¶ 14 ("R.C. 3105.89(B) allows

the trial court to modify an order dividing marital property that was in effect prior to

January 1, 2002, ‘for the purpose of enforcing the order or carrying into effect the

manifest intentions of the parties.' ").

 {¶21} Subsection (A) of R.C. 3105.89 is only applicable in this case if Patricia

was seeking to modify, supervise, or enforce the implementation of an order

described in R.C. 3105.81. So, what is an order described in R.C. 3105.81? The

statute provides that:

 A court that issues an order under section 3105.171 or 3105.65 of the

 Revised Code that provides for a division of property that includes a

 benefit or lump sum payment and requires one or more payments

 from a public retirement program to an alternate payee shall include in

 the order a requirement that the payments be made in accordance with

 and subject to limitations set forth in sections 3105.82 to 3105.90 of

 the Revised Code.

 9
 OHIO FIRST DISTRICT COURT OF APPEALS

(Emphasis added.) R.C. 3105.81. Broken down, an order under this statute is one

that provides for a division of property that: (1) includes a benefit or lump sum

payment; and (2) requires payment from a public retirement program to an alternate

payee. If the order meets these requirements, it must include a requirement that the

payments be made in accordance with and subject to certain statutory limitations set

forth in various sections of the Revised Code specified in R.C. 3105.81.

 {¶22} The divorce decree that Patricia sought to modify provided that she

was entitled to 50 percent of Richard's OPERS account for the dates of their

marriage, which were specified in the decree. The decree further provided that the

OPERS account had a value at the time the decree was issued of $261,047.00. With

this language, the decree likely complied with the first requirement set forth in R.C.

3105.81. Although it did not reference either a benefit or lump sum payment, it

stated that Patricia was entitled to 50 percent of Richard's OPERS account.

However, with respect to the second requirement for an order described in R.C.

3105.81 set forth above, the decree did not require a payment "from a public

retirement program to an alternate payee." It therefore did not constitute an order

described in R.C. 3105.81, and did not fall within the exception to R.C. 3105.171(I) set

forth in R.C. 3105.89(A). And, even if the decree met the second requirement, it

failed to include the mandatory provisions with respect to payments. While the

DOPO itself contained all the necessary requirements to constitute an order

described in R.C. 3105.81, it is not the DOPO that Patricia sought to modify in this

case.

 {¶23} In a factually similar case, the Sixth Appellate District considered an

argument regarding the applicability of R.C. 3105.89. See Ouellette v. Ouellette,

 10
 OHIO FIRST DISTRICT COURT OF APPEALS

2020-Ohio-705, 152 N.E.3d 528 (6th Dist.). In Ouellette, the parties entered into a

stipulated judgment entry and divorce decree. The decree provided that husband

was entitled to $110,000 from wife's OPERS account, specifically stating that "One

Hundred and Ten Thousand Dollars ($110,000.00) from [appellant's] O.P.E.R.S.

account, which [appellant] shall cooperate with [appellee], and [appellee] shall cause

to be transferred to a drop account in his name by a Division of Property Order

(D.O.P.O.)." Id. at ¶ 3. The parties later learned that husband could not receive a

distribution from wife's OPERS account until she actually retired. Husband

consequently filed a motion for relief from judgment, arguing that he was entitled to

relief under Civ.R. 60(B)(1) because of mutual mistake. Id. at ¶ 5. Husband

requested either an award in the amount of $110,000 against wife's deferred

compensation account, or, in the alternative, an order vacating the entire property

settlement. Id. at ¶ 6. The trial court granted husband's motion, but rather than

grant either of the forms of relief requested, it vacated the portion of the decree

ordering a distribution from wife's OPERS account and entered an order directing

wife to pay husband a lump sum of $110,000 within six months. The order did not

specify the source of the funds to be paid. Id. at ¶ 8. Wife appealed.

 {¶24} The Sixth District cited Walsh and held that the trial court was not

permitted to modify the decree absent the consent of both parties. It also considered

husband's argument that, because the trial court's modification pertained to

implementing the distribution from wife's OPERS account, R.C. 3105.89 provided an

exception to the consent requirement in R.C. 3105.171(I). The court held that R.C.

3105.89 was not applicable, stating "[c]ontinuing jurisdiction over pension

disbursements under R.C. 3105.89 is separate from the property division order

 11
 OHIO FIRST DISTRICT COURT OF APPEALS

under R.C. 3105.171." Id. at ¶ 21. Because the trial court's modification did not fall

within the exception set forth in R.C. 3105.89 and because both parties did not

consent to the modification, the court held that the trial court lacked jurisdiction to

modify the decree. Id. at ¶ 22.

 {¶25} The Sixth District further held, however, that while the trial court

lacked authority to modify the decree, it did not lack authority to consider a Civ.R.

60(B) motion. It held that R.C. 3105.171(I) did not deprive a trial court of

jurisdiction from granting relief other than modification to a property order, and that

the trial court had jurisdiction to consider a Civ.R. 60(B) motion requesting that the

court vacate, rather than modify, a property order or decree. Id. at ¶ 32-33. We need

not decide this issue since Patricia is seeking modification of the decree.

 {¶26} Several other Ohio appellate districts have analyzed R.C. 3105.89 and

held that it authorizes a trial court to modify a DOPO. See Enty v. Enty, 8th Dist.

Cuyahoga No. 104167, 2017-Ohio-4177, ¶ 9, quoting Hines v. Hines, 3d Dist. Marion

No. 9-10-15, 2010-Ohio-4807, ¶ 11 ("R.C. 3105.89 does afford a trial court some

continuing jurisdiction over division of property orders involving public retirement

programs."); Fiedler v. Fiedler, 2d Dist. Montgomery No. 26921, 2016-Ohio-5349, ¶

9 ("[T]he trial court retained jurisdiction ‘to modify, supervise, or enforce the

implementation of [the DOPO].' "); Murphy-Kesling v. Kesling, 9th Dist. Summit

Nos. 26957 and 26962, 2014-Ohio-1816, ¶ 10 ("The trial court was also expressly

allowed to modify its original division of property order under Section 3105.89(A).").

But in this case we are tasked with determining whether R.C. 3105.89 gave the trial

court authority to modify a provision in the divorce decree concerning the division of

property, rather than the DOPO.

 12
 OHIO FIRST DISTRICT COURT OF APPEALS

 {¶27} In this case, like Walsh and Ouellette, the trial court lacked authority

to modify Patricia and Richard's decree of divorce. Both parties did not consent to

the modification, as is required by R.C. 3105.171(I), and the exception set forth in

R.C. 3105.89 did not apply, as the divorce decree that Patricia sought to modify did

not constitute an order described in R.C. 3105.81. The trial court, therefore, did not

err in denying Patricia's motion for relief from judgment.

 Conclusion

 {¶28} Because the trial court did not err in denying her motion for relief from

judgment, Patricia's assignment of error is overruled. The judgment of the trial court

is accordingly affirmed.

 Judgment affirmed.

BERGERON and WINKLER, JJ., concur.

Please note:
 The court has recorded its own entry on the date of the release of this opinion.

 13