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11th District reverses Portage County domestic relations case
TRACEY BLAIR
Legal News Reporter
Published: September 26, 2018
A Portage County Domestic Relations Court exceeded its authority in finding a woman did not have any premarital interest in her three retirement accounts in a post-decree finding, according to a recent 11th District Court of Appeals opinion.
Lisa M. Longo claimed the trial judge exceeded the scope of its jurisdiction by issuing a ruling that directly conflicts with an original finding in the final divorce decree.
Lisa and David A. Longo were married for 17 years and had three children.
According to case summary, Lisa made contributions to three retirement accounts during the marriage. The final decree states she has an interest in two 401k accounts with a balance totaling $532,753.58, plus a pension plan worth $129,590.95 as of June 2015.
The decree showed the assets shall be calculated from the date of marriage through the date of the final hearing, with Lisa receiving her premarital portion of her retirement. David Longo shall be entitled to one half of his former wife’s retirement assets from October 3, 1998 through Nov. 16, 2015, with a reduction of $50,000 for Lisa’s interest in David’s business, Nite-N-Day Cleaners, according to the decree.
The decree also provided that Lisa’s attorney would be responsible for preparing the necessary Qualified Domestic Relations Order to implement the distribution.
Within 50 days of the decree, David Longo asked the trial court to find the plaintiff in contempt for failing to prepare the required QDROs.
Over the next 40 days, Lisa Longo’s attorney submitted three different versions of the proposed QDROs to her ex-husband’s counsel. Each was rejected for allegedly not complying with the requirements of the plan administrator for the retirement accounts.
In October 2016, the trial court granted the appellee’s motion to order Lisa Longo to only submit QDROs that have been pre-approved by the plan administrator. Five months later, David Longo again moved to find Lisa in contempt for failing to prepare the necessary QDROs.
The court granted the appellant a continuance on the second contempt motion, over the objections of the appellee, who argued he still had not received any benefits from her retirement accounts even though it had already been a year since the divorce became official.
The trial court then issued a judgment resolving the QDROs dispute, ordering the defendant’s counsel to prepare the QDROs, finding “the pensions of the parties have no premarital portions.” The lower court later issued a nunc pro tunc entry noting the term “retirement accounts” was substituted for the word “pension.” The phrase “per the divorce decree” was added to show which accounts were referenced.
On appeal, Lisa Longo argued the judgment entry was inconsistent with the terms of the judgment entry of divorce.
David Longo argued the appeal must be dismissed because she brought the appeal upon the Aug. 18, 2017 judgment rather than the nunc pro tunc entry.
In a 2-1 opinion, 11th District Judge Thomas R. Wright disagreed.
“Here, the trial court’s nunc pro tunc entry did not modify its analysis in the Aug. 18, 2018 judgment,” Judge Wright wrote in his opinion. “Thus, the entry did not recognize any new right or deny an existing right. Instead, the nunc tunc entry changes the language the trial court employed to refer to appellant’s retirement accounts. Since the entry was used to correct a clerical mistake in the original judgment, the entry was a legitimate nunc pro tunc entry. For this reason, appellant properly based her appeal upon the Aug. 18, 2017 judgment.”
Appellate Judge Colleen Mary O’Toole concurred.
The panel also determined the issue of the extent of the appellant’s premarital interest in her retirement accounts was not properly before the trial court for a final determination, so the case must be remanded.
Eleventh District Judge Cynthia Westcott Rice dissented, arguing the decree did not find the wife had established the amount of any premarital interest.
Judge Rice quoted Vergitz v. Vergitz (7th Dist. Jefferson No. 05 JE 52, 2007-Ohio-1395), which found the wife had the burden of proving the extent of a premarital interest in order to be entitled to it. The decree in that case also ordered the wife’s counsel to prepare all the necessary QDROs.
In the Longo case, Judge Rice noted that the QDROs, on their face, were not pre-approved by the plan administrator before submission and did not address the amount of the wife’s alleged premarital interest.
“In finding wife had no such interest, the trial court implicitly found that she failed to meet her burden to prove such interest,” the appellate judge said in her dissenting opinion. “Further, in this same period, wife’s attorney repeatedly failed to submit QDROs that complied with the administrator’s requirements and the court’s orders. Thus, the trial court’s judgment authorizing husband’s attorney to prepare QDROs that excluded any premarital portion for wife was amply supported by the record.”
The case is cited Longo v. Longo, 2018-Ohio-3535.