Erb v. Erb

747 N.E.2d 230, 91 Ohio St. 3d 503
Ohio Supreme Court·Decided May 30, 2001·No. No. 00-1047·Published·Cited by 25 cases

Opinions

Douglas, J.

In 1990, after approximately twenty years of marriage, John R. Erb and appellant, Donna V. Erb, were divorced. The original divorce decree, issued by the Court of Common Pleas of Cuyahoga County, awarded John his entire pension with appellee, the Police and Firemen’s Disability & Pension Fund of Ohio (“the fund,” now known as the Ohio Police & Fire Pension Fund), the majority of which had been accrued during the marriage.

Upon appeal, the Eighth District Court of Appeals remanded the matter to the trial court to take evidence as to the present value of John’s pension and to determine, in light of that value, whether the terms of the divorce decree were equitable. On remand, the trial court determined that the pension made up such a significant portion of the marital assets that awarding the entire pension to John resulted in Donna receiving less than twelve percent of the marital assets. Consequently, the trial court determined that the divorce decree was unfair and modified the decree to award Donna a separate ownership interest in approximately forty-two percent of the present value of the portion of John’s pension earned during the marriage.

In addition, because John intended to delay his retirement for several years despite being fully vested in the fund, an action that would decrease Donna’s interest in the fund, the trial court ordered “an outright division” of John and Donna’s interests in the fund. Accordingly, the court granted Donna a “separate and divisible ownership interest” in the fund, thereby giving Donna access to her portion of the fund immediately without having to wait for John to retire. Additionally, the trial court made the fund a party to the lawsuit so that its order could be enforced.

John and the fund appealed the trial court’s ruling to the Court of Appeals for Cuyahoga County. The court of appeals’ decision upholding the judgment of the trial court was subsequently appealed to this court. In Erb v. Erb (1996), 75 Ohio [505] St.3d 18, 661 N.E.2d 175, we explicitly confirmed that Donna has a property interest in the fund but held that permitting Donna access to her interest prior to John’s retirement violated the terms of the fund as set forth in R.C. Chapter 742. We, therefore, reversed the judgment of the court of appeals, vacated the order of the trial court, and remanded the cause to the trial court to take measures to protect Donna’s interest in the fund. Id. at 22-23, 661 N.E.2d at 179.

Upon remand, a subpoena of the fund’s records revealed that John had retired in January 1996, and that as of January 1, 1998, John had received a total of $61,969.49 in monthly benefits from the fund. Despite having been awarded a property interest in the fund, Donna had apparently not received any portion of the pension benefits disbursed to John as of that date.

Prior to trial on remand from this court, John and Donna reached a written agreement wherein Donna was entitled to receive $1,000 out of each of John’s future monthly payments from the fund. The agreement further provided that Donna would receive her monthly $1,000 payment directly from the fund itself. The trial court incorporated the terms of John and Donna’s agreement into its entry and issued a domestic relations order to carry its judgment into effect.

The fund appealed the trial court’s order to the extent that the order required the fund to pay a portion of John’s monthly benefits directly to Donna. The fund alleged that enforcement of such an order would result in a violation of R.C. 742.47, an antialienation provision of the fund. The court of appeals agreed and reversed the judgment of the trial court, thereby vacating the corresponding domestic relations order.

This matter is now before this court upon the allowance of a discretionary appeal.

The question before this court is whether the terms of the administration of the fund preclude it from complying with a domestic relations order requiring it to pay directly to a member’s former spouse that portion of the member’s monthly benefit that represents the former spouse’s property pursuant to an R.C. 3105.1711 division of marital assets. We answer this question in the negative and, [506] accordingly, we reverse the judgment of the court of appeals and reinstate the trial court’s July 20, 1998 domestic relations order.

There is no question that Donna has a property interest in the fund pursuant to a court-ordered division of marital property. Erb, 75 Ohio St.3d at 22, 661 N.E.2d at 179. Although the court of appeals recognized that Donna has an interest in the fund, it held that the terms of the fund, as set forth in R.C. Chapter 742, prohibit the fund from paying directly to Donna her share of John’s monthly benefit.

R.C. 742.47

The specific provision that the court of appeals found dispositive in this case is R.C. 742.47. R.C. 742.47 is an antialienation provision and provides:

“Except as provided in sections 742.461 [order to enforce restitution to employer for theft], 3111.23 [order for child support], and 3113.21 [orders for child and spousal support] of the Revised Code, sums of money due or to become due to any person from the Ohio police and fire pension fund are not liable to attachment, garnishment, levy, or seizure under any legal or equitable process, whether such sums remain with the treasurer of the fund or any officer or agent of the board of trustees of the fund, or is in the course of transmission to the person entitled thereto, but shall inure wholly to the benefit of such person.” (Emphasis added.)

The court of appeals found that “the express language of R.C. 742.47 * * * clearly makes benefits under the pension fund available only to members of the [fund].” Applying this interpretation, the court held that the trial court’s order violated R.C. 742.47, because it required the fund to make payments directly to Donna, who is not a “member of the fund” as defined in R.C. 742.01(E).2

Donna contends that the court of appeals erred in construing the word “person” used in R.C. 742.47 to mean “member of the fund.” We agree.

Contrary to the court of appeals’ holding, the express language in R.C. 742.47 does not make pension benefits available only to members of the fund. In fact, R.C. 742.47 expressly authorizes the payment of “sums of money due or to become due to any person from the [fund],” where such payment is provided for in certain enumerated statutes. (Emphasis added.) In interpreting R.C. 742.47, [507] the court of appeals, in effect, deleted the term “person” and inserted the phrase “member of the fund.” Courts have a duty to give effect to the words used in a statute and not to delete words used or to insert words not used. Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St.3d 50, 524 N.E.2d 441, paragraph three of the syllabus. Thus, the court’s analysis of the statute violated the rules of statutory construction.

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Erb v. Erb, 747 N.E.2d 230, 91 Ohio St. 3d 503 (Ohio 2001).

747 N.E.2d 230 (Erb v. Erb) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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