[Cite as Pawlak v. Pawlak, 2011-Ohio-5652.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95734
PATRICIA PAWLAK PLAINTIFF-APPELLANT
vs.
JOSEPH PAWLAK DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas, Domestic Relations Division Case No. D-233625
BEFORE: Cooney, J., Kilbane, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 3, 2011
ATTORNEY FOR APPELLANT 2
Robert J. Sindyla Sindyla Law Offices 7425 Royalton Road North Royalton, Ohio 44133
ATTORNEY FOR APPELLEE
For Joseph Pawlak
Margaret E. Stanard Stanard & Corsi, Co., L.P.A. 1370 Ontario Street 748 Standard Building Cleveland, Ohio 44113
For Cleveland Bakers & Teamsters, etc.
Cleveland Bakers & Teamsters Pension Fund 9665 Rockside Road, Ste. D Valley View, Ohio 44125
COLLEEN CONWAY COONEY, J.:
{¶ 1} Plaintiff-appellant, Patricia Pawlak (“Patricia”), appeals the court’s granting
the motion to vacate a qualified domestic relations order (“QDRO”) filed by
defendant-appellee, Joseph Pawlak (“Joseph”). Finding no merit to the appeal, we
affirm.
{¶ 2} Patricia and Joseph were divorced on March 8, 1995. Their divorce decree
incorporates their separation agreement, which provides, in pertinent part:
“Wife shall retain Husband’s Sysco Pension Plan, pursuant to a Qualified Domestic Relations Order prepared by Wife’s counsel, and approved by 3
Husband’s counsel upon the journalization of the parties’ Judgment Entry for Divorce.”
{¶ 3} The QDRO states, in pertinent part:
“* * * Patricia Pawlak would receive one hundred percent (100%) of the Participant Joseph Pawlak’s accrued benefit in the Cleveland Bakers and Teamsters Pension Fund * * *.”
{¶ 4} In January 2010, well over a decade after the execution of the separation
agreement and QDRO, Joseph filed a motion to vacate the QDRO claiming that he never
intended to give Patricia 100% of his Cleveland Bakers pension. Joseph contends that
he gave Patricia 100% of his Sysco pension plan, as stipulated in the separation
agreement, and entered by the divorce decree. The magistrate found in favor of Joseph’s
motion to vacate the QDRO, finding that it is void ab initio because it is inconsistent with
the separation agreement.
{¶ 5} The magistrate granted Joseph’s additional motion for a nunc pro tunc
entry1 and allowed the temporary restraining order to remain in effect for the Cleveland
Bakers Pension Fund. Patricia objected to the magistrate’s decision, but the court
overruled her objections and adopted the decision in its entirety.
{¶ 6} Patricia now appeals, raising three assignments of error.
{¶ 7} When reviewing the propriety of a trial court’s determination in a domestic
relations case, an appellate court generally applies an abuse of discretion standard.
The nunc pro tunc entry has been stayed pending this appeal. 1 4
Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. “The term ‘abuse of
discretion’ connotes more than an error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d
151, 157, 404 N.E.2d 144.
{¶ 8} In her first assignment of error, Patricia argues that the court erred as a
matter of law by overruling her objection to the magistrate’s decision and subsequently
denying her motion in opposition and to strike, and granting Joseph’s motion to vacate
and motion for nunc pro tunc entry. Patricia also argues that the court erred in ruling
that the temporary restraining order is still in effect. Patricia also contends that the court
erred when it failed to apply the doctrine of res judicata to bar Joseph’s claims.
{¶ 9} However, it is well established that:
“[a] QDRO is merely an order in aid of execution on the property division ordered in the divorce or dissolution decree. So long as the QDRO is consistent with the decree, it does not constitute a modification, which R.C. 3105.171(I) prohibits, and the court does not lack jurisdiction to issue it.” Bagley v. Bagley, 181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469, ¶26, citing Tarbert v. Tarbert (Sept. 27, 1996), Clark App. No. 96-CA-0036.
{¶ 10} Moreover, “a QDRO implements a trial court’s decision of how a pension is
to be divided incident to divorce or dissolution.” Wilson v. Wilson, 116 Ohio St.3d 268,
2007-Ohio-6056, 878 N.E.2d 16, ¶7; see, also, Brownlee v. Brownlee, Cuyahoga App.
No. 94494, 2010-Ohio-5602. “A QDRO does not in any way constitute a further
adjudication on the merits of the pension division, as its sole purpose is to implement the 5
terms of the divorce decree.” Wilson at ¶16. “Once a division of property is
established in the divorce decree that decision ‘is not subject to future modification by the
court.’ R.C. 3105.171(I).” Schneider v. Schneider, Stark App. No. 2009CA00090,
2010-Ohio-534, ¶9. Thus, an inconsistent QDRO that fails to implement the divorce
decree is void. Brownlee at ¶8, citing Bagley at ¶27. The trial court has the inherent
power to vacate a void decree.
{¶ 11} Although Patricia claims that the Sysco pension and the Cleveland Bakers
pension are one and the same, Joseph contends that they are two distinct pensions. The
record contains limited documentation of the Cleveland Bakers pension plan, including an
investigation of the pension conducted prior to the divorce. No proof of a second and
distinct “Sysco Pension” is contained in the record. Although the existence of a second
pension plan is questionable, the magistrate was correct in pointing out that “[t]he intent
of the parties in dividing whatever pension benefits were accrued at the time of the
divorce is currently not the issue before the Court.” Although it is possible that the error
is contained in the separation agreement as opposed to the QDRO, this appeal does not
involve a motion to correct the separation agreement.
{¶ 12} Patricia also argues that Joseph’s motions are barred by the doctrine of res
judicata. However, “[a] QDRO is not an independent judgment entry of the court, but
rather an enforcement mechanism * * *.” Himes v. Himes, 5th Dist. No.
2004AP020009, 2004-Ohio-4666, ¶19. “The QDRO is merely a tool used to execute the 6
divorce decree.” Wilson at ¶19. In turn, “because a QDRO is a court order that
effectuates the allocation of rights determined in the divorce decree, the QDRO itself
does not represent an adjudication of any issues of law or fact. The doctrine of res
judicata is therefore inapplicable.” Kingery v. Kingery, Logan App. No. 8-05-02,
2005-Ohio-3608, ¶10.
{¶ 13} Accordingly, Patricia’s first assignment of error is overruled.
{¶ 14} In her second assignment of error, Patricia argues that the court erred in
finding that the QDRO was not prepared pursuant to the divorce decree. We disagree.
The QDRO is clearly inconsistent on its face from the divorce decree in regard to the title
given to Joseph’s pension plan. Therefore, the QDRO is void and the court committed
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[Cite as Pawlak v. Pawlak, 2011-Ohio-5652.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95734
PATRICIA PAWLAK PLAINTIFF-APPELLANT
vs.
JOSEPH PAWLAK DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas, Domestic Relations Division Case No. D-233625
BEFORE: Cooney, J., Kilbane, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 3, 2011
ATTORNEY FOR APPELLANT 2
Robert J. Sindyla Sindyla Law Offices 7425 Royalton Road North Royalton, Ohio 44133
ATTORNEY FOR APPELLEE
For Joseph Pawlak
Margaret E. Stanard Stanard & Corsi, Co., L.P.A. 1370 Ontario Street 748 Standard Building Cleveland, Ohio 44113
For Cleveland Bakers & Teamsters, etc.
Cleveland Bakers & Teamsters Pension Fund 9665 Rockside Road, Ste. D Valley View, Ohio 44125
COLLEEN CONWAY COONEY, J.:
{¶ 1} Plaintiff-appellant, Patricia Pawlak (“Patricia”), appeals the court’s granting
the motion to vacate a qualified domestic relations order (“QDRO”) filed by
defendant-appellee, Joseph Pawlak (“Joseph”). Finding no merit to the appeal, we
affirm.
{¶ 2} Patricia and Joseph were divorced on March 8, 1995. Their divorce decree
incorporates their separation agreement, which provides, in pertinent part:
“Wife shall retain Husband’s Sysco Pension Plan, pursuant to a Qualified Domestic Relations Order prepared by Wife’s counsel, and approved by 3
Husband’s counsel upon the journalization of the parties’ Judgment Entry for Divorce.”
{¶ 3} The QDRO states, in pertinent part:
“* * * Patricia Pawlak would receive one hundred percent (100%) of the Participant Joseph Pawlak’s accrued benefit in the Cleveland Bakers and Teamsters Pension Fund * * *.”
{¶ 4} In January 2010, well over a decade after the execution of the separation
agreement and QDRO, Joseph filed a motion to vacate the QDRO claiming that he never
intended to give Patricia 100% of his Cleveland Bakers pension. Joseph contends that
he gave Patricia 100% of his Sysco pension plan, as stipulated in the separation
agreement, and entered by the divorce decree. The magistrate found in favor of Joseph’s
motion to vacate the QDRO, finding that it is void ab initio because it is inconsistent with
the separation agreement.
{¶ 5} The magistrate granted Joseph’s additional motion for a nunc pro tunc
entry1 and allowed the temporary restraining order to remain in effect for the Cleveland
Bakers Pension Fund. Patricia objected to the magistrate’s decision, but the court
overruled her objections and adopted the decision in its entirety.
{¶ 6} Patricia now appeals, raising three assignments of error.
{¶ 7} When reviewing the propriety of a trial court’s determination in a domestic
relations case, an appellate court generally applies an abuse of discretion standard.
The nunc pro tunc entry has been stayed pending this appeal. 1 4
Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. “The term ‘abuse of
discretion’ connotes more than an error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d
151, 157, 404 N.E.2d 144.
{¶ 8} In her first assignment of error, Patricia argues that the court erred as a
matter of law by overruling her objection to the magistrate’s decision and subsequently
denying her motion in opposition and to strike, and granting Joseph’s motion to vacate
and motion for nunc pro tunc entry. Patricia also argues that the court erred in ruling
that the temporary restraining order is still in effect. Patricia also contends that the court
erred when it failed to apply the doctrine of res judicata to bar Joseph’s claims.
{¶ 9} However, it is well established that:
“[a] QDRO is merely an order in aid of execution on the property division ordered in the divorce or dissolution decree. So long as the QDRO is consistent with the decree, it does not constitute a modification, which R.C. 3105.171(I) prohibits, and the court does not lack jurisdiction to issue it.” Bagley v. Bagley, 181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469, ¶26, citing Tarbert v. Tarbert (Sept. 27, 1996), Clark App. No. 96-CA-0036.
{¶ 10} Moreover, “a QDRO implements a trial court’s decision of how a pension is
to be divided incident to divorce or dissolution.” Wilson v. Wilson, 116 Ohio St.3d 268,
2007-Ohio-6056, 878 N.E.2d 16, ¶7; see, also, Brownlee v. Brownlee, Cuyahoga App.
No. 94494, 2010-Ohio-5602. “A QDRO does not in any way constitute a further
adjudication on the merits of the pension division, as its sole purpose is to implement the 5
terms of the divorce decree.” Wilson at ¶16. “Once a division of property is
established in the divorce decree that decision ‘is not subject to future modification by the
court.’ R.C. 3105.171(I).” Schneider v. Schneider, Stark App. No. 2009CA00090,
2010-Ohio-534, ¶9. Thus, an inconsistent QDRO that fails to implement the divorce
decree is void. Brownlee at ¶8, citing Bagley at ¶27. The trial court has the inherent
power to vacate a void decree.
{¶ 11} Although Patricia claims that the Sysco pension and the Cleveland Bakers
pension are one and the same, Joseph contends that they are two distinct pensions. The
record contains limited documentation of the Cleveland Bakers pension plan, including an
investigation of the pension conducted prior to the divorce. No proof of a second and
distinct “Sysco Pension” is contained in the record. Although the existence of a second
pension plan is questionable, the magistrate was correct in pointing out that “[t]he intent
of the parties in dividing whatever pension benefits were accrued at the time of the
divorce is currently not the issue before the Court.” Although it is possible that the error
is contained in the separation agreement as opposed to the QDRO, this appeal does not
involve a motion to correct the separation agreement.
{¶ 12} Patricia also argues that Joseph’s motions are barred by the doctrine of res
judicata. However, “[a] QDRO is not an independent judgment entry of the court, but
rather an enforcement mechanism * * *.” Himes v. Himes, 5th Dist. No.
2004AP020009, 2004-Ohio-4666, ¶19. “The QDRO is merely a tool used to execute the 6
divorce decree.” Wilson at ¶19. In turn, “because a QDRO is a court order that
effectuates the allocation of rights determined in the divorce decree, the QDRO itself
does not represent an adjudication of any issues of law or fact. The doctrine of res
judicata is therefore inapplicable.” Kingery v. Kingery, Logan App. No. 8-05-02,
2005-Ohio-3608, ¶10.
{¶ 13} Accordingly, Patricia’s first assignment of error is overruled.
{¶ 14} In her second assignment of error, Patricia argues that the court erred in
finding that the QDRO was not prepared pursuant to the divorce decree. We disagree.
The QDRO is clearly inconsistent on its face from the divorce decree in regard to the title
given to Joseph’s pension plan. Therefore, the QDRO is void and the court committed
no error in vacating it.
{¶ 15} Accordingly, Patricia’s second assignment of error is overruled.
{¶ 16} In her third assignment of error, Patricia argues that the court erred in
accepting the magistrate’s decision despite Joseph’s failure to satisfy the requirements of
Civ.R. 60(B).
{¶ 17} It is well established that when a party claims that a judgment is void, that
party need not comply with Civ.R. 60(B). Instead, a trial court retains inherent authority
to vacate a void judgment. See Brownlee at ¶8 (“The trial court has the inherent power to
vacate a void decree. A party need not comply with Civ.R. 60(B) to vacate a void decree,”
citing Plummer v. Plummer, Montgomery App. No. 23743, 2010-Ohio-3450, ¶27.) 7
{¶ 18} Accordingly, Patricia’s third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the domestic
relations court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
___________________________________________________ COLLEEN CONWAY COONEY, JUDGE
MARY EILEEN KILBANE, A.J., CONCURS; PATRICIA ANN BLACKMON, J., DISSENTS (WITH SEPARATE OPINION ATTACHED).
PATRICIA ANN BLACKMON, J., DISSENTING:
{¶ 19} I respectfully dissent from the majority opinion. In his concurrence in
Bagley v. Bagley, 181 Ohio App.3d 141, 2009-Ohio-688, 908 N.E.2d 469, Judge Fain
opined that R.C. 3105.171(I) should not be used to restrict subject matter jurisdiction and
void final judgments. I agree with him that an order violating R.C. 3105.171(I) is at best
reversible error and voidable.
{¶ 20} In 2010, this court adopted the void approach to QDROs labeled
inconsistent with divorce decrees in Brownlee v. Brownlee, Cuyahoga App. No. 94494, 8
2010-Ohio-5602. In her dissent in Brownlee, Judge Stewart said “I agree with Judge
Fain — the reservation of jurisdiction to modify the terms of a division of marital
property does not implicate subject matter jurisdiction.” She pointed out, as Judge Fain
did, that the proper way to resolve these “simple” errors is to either correct it at the trial
court level or appeal the divorce decree. If one does not appeal or seek to correct the
entry, the point remains that it is final and should remain final.
{¶ 21} In this case, because the facts are different from most other void QDRO
orders, one could argue that this void approach is a false mechanism that has the effect of
giving a party a “new bite at the otherwise agreed upon apple.”
{¶ 22} It was 16 years ago when appellant and appellee signed their separation
agreement and the lawyers signed the QDRO. Fifteen years later, the trial court voided
the QDRO as inconsistent with the divorce decree; but is it? The appellee ex-husband
had only one pension plan, Cleveland Bakers & Teamsters Pension Plan. He had two
employers, Sysco and Seaway, that paid into that plan. The separation agreement gave
appellant ex-wife 100% of the Sysco Plan, which does not exist. The QDRO identified
the only and correct plan, Cleveland Bakers & Teamsters. Thus, it appears that a
“simple error” existed in the divorce decree, not in the QDRO.
{¶ 23} Because I see this as a simple, correctable error, the trial court should be
allowed to have a hearing to resolve the intent of the parties, especially where the divorce 9
decree misidentifies the pension plan. A hearing is the least costly and most efficient
way to resolve the problem.