MEMORANDUM IN SUPPORT OF JURISDICTION

TO^!» Y

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THE SUPREME COURT OF OHIO

Murphy-Kesling v. Kesling

From Case No. 26957 and 26962

Ninth District Court of Appeals

County of Summit

City of Akron

State of Ohio

DEBRA MUIZPHY-KESI,INGWife/Appellant/Pro Se15392 Serfass RoadDoylestown, Ohio 44230330-714-7373YORMURF@AOL.COM

GERALD M. KESLINCi.Husband/Appellee

Leslie Graske, Counsel333 S.1!<Iain St. Suite 304

Akron, Oh 44308

PH 330-374-6906

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Table of Contents

EXPLANATION OF WHY THIS CASE HAS PRESENTED A

SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS A

CASE OF GREAT PUBLIC OR GREAT GENERAL INTEREST... . .................................................................................................................2

ARGUMENT ........................................................................ . ...................4

PROPOSITION OF LAW .........................................................................9

STATEMENT OF CASE AND FACTS ...............................................4

CONCLUSION ........................................................................................ 12

TABLE OF AUTHORITIES ................................................................. 14

APPENDIX .............................................................................................. 15

Page 1

EXPLANATION OF WHY THIS CASE HAS PRESENTED A SUBSTANTIALCONSTITUTIONAL QUESTION AND IS A CASE OF GREAT PUBLIC ORGREAT GENERAL INTEREST.

'I'he Supreme Court has directed courts not to review property division

piecemeal, but rather to view them in their entirety and to consider the totality of

circumstances, Briganti v. Briganti ( 1984), 9 Ohio St. 3d 220. Failure to reserve

jurisdiction deprives the trial court of the ability; that is subject matter jurisdiction, to

modify any award of pension benefits in the decree of divorce or dissolution. Schrader

v. Schrader (1995), 108 Ohio App.3d 25,28,669 N.E.2d 878. If a document "is clear

and unambiguous, its interpretation is a matter of law, and no issue of fact remains to

be determined." Miller v. Nelson-Miller, 132 Ohio St.3d 381, 2012-Ohio-2845.

This Supreme Court is known for a strong interest in preserving the finality of

judgments. Finality produces "`certainty in the law and public confidence in the system's

ability to resolve disputes.' " Strack v. Pelton, 70 Ohio St.3d 172, 175, 637 N.E.2d 914

(1994), quoting Knapp v. Knapp, 24 Ohio St.3d 141, 144-145, 493 N.E.2d 1353 (1986). If

delayed attacks such as Husband waiting a year and half until Wife was retiring and

holding up her income for a second time were possible, domestic court decisions would be

perpetually open to attack, and finality would be impossible. In re Hatcher, 443 Mich. 426,

440, 505 N.W.2d 834 (1993).

In this case, Wife wanted Pension Evaluator's to prepare the DOPO, but the court

accepted the one prepared by Husband's attorney 2003. Secondly, the court filed the

DOPO despite Wife's objections and have declared it res judicata ever since, but now,

thirteen years later, after he has received almost 7 years of payments; the court issues a

Page 2

exhibits to the court to prove that Husband had been notified by STRS in 2011 and copies of the

state statutes that defined the two different STRS benefits through state statute.

On May 6, 2013 the trial court issued a Journal Entry granting Husband's motion.

On June 5, 2013, the trial court issued a new Division of Property Order. Wife believes

that the trial court lacked jurisdiction to issue this new DOPO which substantially altered

the language and effect of the 2003 DOPO. Husband did not file a motion for Civ. R.

60(b) relief. If Husband had raised this issue by 60(b) motion, it would have been barred

as untimely and by the doctrine of res judicata, just had Wife's previous objections. Further

the trial court issued this DOPO during the pendency of this appeal. See, State ex rel.

Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010 Ohio 252 and State ex rel. Electronic

Classroom of Tomorrow v. Cuvahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30,

2011 Ohio 626.

-- Page 8

where to fTom the first benefit she received thereby justifying his receipt of her

disability payments even though she had not ever taken her marital portion of his

disability during or after the marriage. He had even given her Power of Attorney in

1994 so slie could handle getting him on social security disability. She assumed all of

the marital debts and the expenses for educating the children and providing them with

automobiles and a home into their twenties.

During this time Wife had file bankruptcy and Husband filed an adversarial

suit against it stating that she was merely trying to get out of her obligation to

him. His action increased the time and expense as well as placed a stay on her

disability payments for over a year which cause her to lose home to foreclosure.

Husband received Wife'sdisability benefits u n t i 1 W if e was able to return to wor k.(Tr. at

17) NVhen Wife returned to work in 2011 STRS notified both parties that the Husband

would not receive any more payments from Wife's pension plan. The existing Division of

Property Order stated that he would receive payments from tlie "frrst benefit"to which

Wife received and his portion has been fulfilled. (Tr. at 24 )

Even though Husband had known since 2011 he waited until Wife was retiring to

file a pleading entixled "Defendant'sMotion for Division of Property Order" and again her

income was withheld pending the outcome of cotwt litigation. An evidentiary hearing was

held on this motion on 11.pril 18, 2013.1 W i f e, through counsel objected to the jur

isdiction of the Court to issue a new DOPO and argued that the prior DOPO and the order

finding tihatDOPO was "properly prepared pursuant toRevised Code Sections 3105,80 to

3105.90, and correctly allocated the interests of [HusbandTwith respect to Wife's ST RS

pension was res judicata and could not be modified(Tr. atpages 5-8) Wife also presented

Page 7

ARGIJIVIENT

PROPOSITION OF LAW

3105.65 Power of court. It is unlawful for the court to change, modify, clarify or

enforce a pension division, QDRO or DOPO through this statute more than one year

following the final decree.

Absent from the record is any evidence that the trial court ever found any of its

previous decision equal or equitable as it now finds the decision of STRS. Husband has done

everything he could to get every possible advantage over the distribution of Wife's STRS

benefits even though he did not contribute to the family. The payments he has received from

STRS has fulfilled the manifest intentions of the parties.'° Indeed, because (Wife) challenges

the second DOPO's new distribution of her STRS benefits, it is reasonably that the second

DOPO's distribution of Wife's STRS pension does not carry into effect the manifest intentions

of both parties.

Accordingly, absent any evidence that paragraph 11 of the divorce decree, which

previously has been determined to be equitable by the court; it now fails to carry into effect

the manifest intentions of the parties and, because the DOPO modifies, rather than enforces,

the earlier divorce decree R.C. 3105.89(B) cannot serve as basis for the trial court's alteration

of the distribution of Wife's STRS pension.

In summary, in Kesling 1, the court previously concluded that the trial court's marital

portion of Wife's STRS benefits is correct equitable, reasonable, and not an abuse of

discretion." In this case we conclude that the trial court failed to expressly or impliedly reserve

Page 9

"employ Pension Evaluators to determine the marital portion and to determine the value

of a Social Security off set. The marlal portion of said account less said Social Security

offset would be divided equally between the parties." The decree was entered August 21,

2002

Subsequent to the Decree of Divorce, the parties have had numerous challenges

to the enforcement of the division of property. In December 2002, Husband f i l e d a post-

decree c o n t e m p t ni o t i o n compelling, inter alia, Wife to authorize Pension

Evaluators to determine the marla.l portion of her STRS pension, from which the parties

could prepare the requisite Division of Property Order ("DOPO") granting Husband a

portion of Wife's pension.

Wife had Pension Evaluators prepare two reports based on the courts' dates of the

marriage identifying the marital portion of her STRS pension and her hypothetical Social

Security offset. Husband also submitted calculations for a Social Security evaluation based

on his lifetime earnings even though he had not disclosed a social security retirement on the

court disclosure form. Husband's attorney prepared the DOPO using calculations from

Pension Evaluator's and determined the percentage to be 45.098%.

On7uly 21, 2003, themagistrate issued f indings which the trial court adopted in full

that same day. It stated that the DOPO prepared by Husband's counsel was "properly

prepared pursuant to Revised Code Sections 3105.80 to 3105.90, and correctly

allocated the interests of [Husband]" with respect to Wife's ST RS pension. Wife's

immediately notified the court by email that she objected to the order but did not know what

to do because her attorney was unavailable due to surgery for throat cancer and in intensive

care out of town. The response she received from the court stated that they could not advise

Page 5

her. The DOPO was then filed September 15, 2003 withoutWife°s signature, pursuantto

Loc.R. 28.01(B).

On September 29, 2003, with the assistance of counsel, W ife filed a motion for

relief from judgment under Civ.R.60( B)(1) asserting that neither the decree, nor the DOPO,

reflected her intent or understanding of the parties' agreement relative to the applicable

pension offset. She stated she agreed to her pension being divided equally after an offset of

her hypothetical Social Security Benefits. She further asserted that this surprise and mistake

entitled her to relief from the terms of the decree and the DOPO. On October 31, 2003, the

trial court denied Wife's motion as untimely.

On June 20, 2007, Wife, now disabled and unable to work, acting pro se,

f iled a motion to compel Nvhich resulted in confusion and eventually bankruptcy by the Wife.

The most relevant issue before this court became Husband's demand for a portion of Wife's

disability income which the court granted despite current rulings to the contrary. Wife filed

an appeal challengiig the disability decision and the appeals court held:

"The doctrine of res judicatabars all subsequent actionsbased upon any claim arising out of a transaction oroccurrence that was previously decided as a fnal and validjudgment in a prior action." Smithv. Smith, 9th Dist. No. 23278, 2007 Ohio 512 at P6, citing Harris v. Lorain, 9th Dist. No.02CA008099, 2003 Ohio 530, at P15. Because Wife hasfailed to appeal any of the trial court's judgments in 2003,these arguments are now barred by res judicata. Smith at P16.Moreover, many of Wife's arguments were not included in herJanuary 2008 motion for reconsideration. Thus, she hasforfeited those arguments for review on appeal. Ilg v. I lg, 9thDist. No. 23987, 2008 Ohio 6792, at P6. " 1Vlurphy-Kesling v.Kesling, supra, at17-18. The appeals court also refused toconsider any argi,rments presented by counsel that assisted herwith the oral argument.

Both courts quoted the part of the DOPO that states that Husband's payments

Page 6

STATEMENT OF CASE AND FACTS

In this case, over the vigorous objections of Wife, Husband was granted

an interest in Wife's ST RS disability benefits prior to her normal retirement age. In

Ivanov v. Ivanov, 2010 Ohio 196 3, this Court recognized that disability payments

under STRS are not marital property subject to division unless they are received in

lieu of old-age retirement benefits. The Ivanov decision distinguished the prior

decision in Murphy-Keslingsv. Kesling, su ra at B 1, holding:

"Because Husband failed to prove that Wife is receiving STRS disabilitybenefits in lieu of retirernentbenefits, he has failed to prove the existence of any marital porti on of those benefits which must currently be divided between the parties.Husband's reliance on this Court's recent decision inMurphy-Kesling v. Kesling, 9thDist. No. 24176, 2009 Ohio 2560, is misplaced. Kesling does not stand for thepropositionthatSTRS disability benefits are marital property subj ect to equitabledivision. Rather, it reiterates that the doctrines of res judicata and forfeiture, aswell as the strictures of Civ. R. 60(B), may apply to preclude a successful appealwithin the context of a challenge to the disbursement of disability benefitspursuant to the terms of a DOPO. Kesling at P17-18."

The proceedings have been summarized in Murphy-Kesling v. Kesling, 2013 Ohio

26957, 26962. Appellee, Gerald Kesling (Husband)and Appellant, Debra J.Muiphy-

Kesling, (Wife) were married in August 198 3 and had two children together. The parties

divorced in August 2002. Throughout their marriage, Wife was employed as a public

school teacher and was contributing to her pension through the State Teachers'

Retirement System ("ST RS "). Husband's income was based on Social Security Disability

and Veteran's Administration Disability; he w a s e m p l o y e d s i x o u t o f t h e

n i n e t e e n y e a r m a r r i a g e. In their divorce decree, Husband waived his right to

spousal support and Wife waived her right to child support. The parties agreed that

Husband would receive a portion of Wife's STRS pension and required that they

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new DOPO.

Since that time both the trial court and court of appeals have quoted the very

passage and emphasized the words "first benefit" when they used it to justify awarding

Husband disability benefits prior to Wife's retirement. Husband's counsel prepared the

DOPO and chose the "first benefit" option in 2003. Now they two must live with the

outcome of the final decree. Furthermore, the decree did not specifically "disability" or

"retirement", only that he would receive a portion. It also does not specify the duration of

his portion. It simply states that he will receive a portion Wife's STRS account and he has,

it may not be what he expected, but Wife did not get what she expQcted either.

Page 3

jurisdiction to modify the award of pension benefits in the decree of divorce. We furt her find

no evidence supporting a finding that the DOPO's modification of the trial court's previous

calculation of the marital portion of plaintiffs retirement benefits was made for the purpose of

enforcing the divorce decree or carrying into effect the manifest intentions of the parties as

required by R.C. 3105.89(B).

Because there is no evidence supporting a finding that the DOPO's modification of the

trial court's previous calculation of the marital portion of plaintiffs retirement benefits was

made for the purpose of enforcing the divorce decree or carrying into effect the manifest

intentions of the parties as required by R.C. 3105.89(B), and because the trial court failed to

expressly or impliedly reserve jurisdiction to modify the award of pension benefits as stated in

the decree of divorce, we therefore hold that the trial court's DOPO violates R.C. 3105.171(I)

and impermissibly modifies the division of property as ordered in the decree of divorce. See

Robins, supra, at ¶12 (stating that if a court fails to reserve jurisdiction over the distribution of

a vested but unmatured pension, then "[ijn such instance, the court is without subject matter

jurisdiction to modify the award of pension benefits and thus has no power to act in this

regard".

Page10

Title 29, U.S.Code, provides that a domestic relations order is qualified only if the

order does not require (i) the plan to provide any type of benefit, or any option, not otherwise

provided by the plan, (ii) the plan to provide increased benefits (determined on the basis of

actuarial value), and (iii) the payment of benefits to an alternate payee that are required to be

paid to another alternate payee under anotller order previously determined to be a QDRO.

The QDRO implements a trial court's decision of how a pension is to be divided

incident to divorce or dissolution. The determination whether an order is final is important

because Section 3(B)(2), Article IV of the Ohio Constitution provides that "[c]ourts of appeals

shall have jurisdiction as may be provided by law to review and affirm, modify, or reverse

judgments or final orders of the courts of record inferior to the court of appeals." Wilson v.

Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056

Page11

CONCLUSION

This case is a never ending story. It has been destroyed lives and relationships and

continues to do so. All together the parties have 31 years of disappointments, lies and

broken promises. However, the court has not helped, it had actually made it worse. Both

the trial court and court of appeals have made decisions that make absolutely no cornmon

sense average people. There has been no equality, equity, disentanglement or fmality in

their judgemnts. Wife has been repeatedly denied due process to her property. The

Constitution guarantees us that right, but the court uses the laws to discriminate againts

divorced public employees, the very people that have dedicated their lives to serving

others.

By using the decision in "Wilson" the courts are taking unlimited judicial power

over DOPO which are specific to state pension plans. They no longer have a time

limitation through their use of continued jurisdiction. There is no limited to what a judge

can do in the name of enforcement. In this case by issuing a second DOPO he is resetting

an agreement of a state pension that has been paid and deemed fulfilled by the state

pension plan administrators. Husband chose to take what he wanted; her disability, now

he wants to blame her for what he did when it was STRS and the Attorney General that

determined he had received his portion of Wife's STRS pension. He is pretending STRS

told him to get around by getting a new DOPO, but it was a manifestation of his counsel,

was a gamble, but it worked, the court issued a new DOPO, once again taking property

from the wage earner and giving it to the dead beat spouse, over the objections of the

responsible spouse.

Page12

It is obvious the marriage did not turn out the way they had planned, but once again

he got what he wanted, her financial support. He chose to demand his portion of her

STRS benefits. He got his portion of her STRS pension as they had agreed in 2003. No

one knew or planned this outcome, but it is what it is, and for the first time in years it was

fair.

Page

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TABLE OF AUTHORITIES

Cases

Briganti v. Briganti (1984), 9 Ohio St. 3d 220 .............................................. . ....................... 5Hatcher, 443 Mich. 426, 440, 505 N.W.2d 834 (1993) .............................................................. 6Miller v. Nelson-Miller, 132 Ohio St.3d 381, 2012-Ohio-2845 .................................................. 5Murphy-Kesling v. Kesling, 9thDist. No. 24176, 2009 Ohio 2560 ....................................... 7Schrader v. Schrader (1995), 108 Ohio App.3d 25,28,669 N.E.2d 878 ............................... 5Strack v. Pelton, 70 Ohio St.3d 172, 175, 637 N.E.2d 914 (1994) ............................................. 5v. 5Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056 .......................................................... 10

StatutesR.C. 3105.171(I) ......................................................................................................................... 5R.C. 3105.89(B) .......................................................................................................................... 4

Constitutional ProvisionsSection 3(B)(2), Article IV of the Ohio Constitution ................................................................. 6

Page14

APPENDIX

NOTICE OF CERTIFICATION

COURT OF COMMON PLEAS, DOMESTIC RELATIONS DIVISION,SUMMIT COUNTY, OHIO JOURNAL ENTRY Case No. 2001-05-0186605/06/2013

COURT OF COMMON PLEAS, DOMESTIC RELATIONS DIVISION,SUMMIT COUNTY, OHIO DIVISION OF PROPERTY ORDER, Case No.2001-05-01866, 06/05/2013

STATE OF OHIO, COURT OF APPEALS, NINTH JUDICIAL DISTRICT,DECISION AND JOURNAL ENTRY, C.A.26957, 26962, 04/30/2014

STATE OF OHIO, COURT OF APPEALS, NINTH JUDICIAL DISTRICT,RECONSIDERATION JOURNAL ENTRY, C.A.26957, 26962

Page15

NOTICE OF APPEAL of APPELLANT

DEBRA J. MURPHY-KESLING

TO THE SUPREME COURT OF OHIO

From Case No. 26957 and 26962 (combined)Ninth District Court of Appeals

County of SummitCity of AkronState of Ohio

Court of Appeals' opinion dated 04/30/2014, the application for reconsideration was filed

05/01/2014, and the date of the Court of Appeals' denial for reconsideration was 07/03/2014.A date-

stamped copy of the Court of Appeals' decision denying the application for reconsideration is

attached.

Respectfully Submitted by.

DEBRA 1VIURPHY-KESLII'oiG

Appellant/Pro Se15392 Serfass RoadDoylestown, Ohio 44230330-714-7373YOR.iVItJR:E'@AOL.COM

I hereby certify that a copy of this Notice of Appeal was sent to Leslie Graske, Counsel for

GERALD M. KESLING, Appellee at 333 S. Main St. Suite 304, Akron, Oh 44308 by

email on this 17'h day of August, 2014.

BY DEBRA MURPHY-KESLING^Appellant/Pro

Se IV15392 Serfass RoadDoylestown, Ohio 44230330-714-7373

COPY

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ovmf'lk;vl.,Es-:K. Ui iTS

IN THE. COURT OF COMMON PLEASDOMESTIC IZELATIONS ff3IVISION

SUN>iNdIT COUNTY, OHIO

DE.BRA. J. MURPHY-KESLING ) CASE NO. 2001-05-018662832 Brookfield Drive )

^Norton, OH 44203 ) JUDGE JOHN P. QUINNE )

Plaintiff )1 )

-vs.- ) ,>rOUItNAT, E:N'I'RY)

GEFALD M. KESLING

t

)353 Tuscarawas Street )Barberton, OH 44203 )

)Defendaiit )

^. This matter was heard on Apr-il 18, 2013, before Judge Johr, P. Quinn on the

motion of Defendant filed March 28, 2013, requesting approval of a Division of Property

^ ithe record ora April 9, 2002.

5. The decree provided tlaat:

I Order (DOPO).

2. Botli parties were present witli counsel.

3. The parties were divorced by a decree filed August 21, 2002.

4. T he decree incorporated the parties' in-court agrecaZient wliicb was read intofi

The parties will employ Pension Evaluators to determine themarital portion a.i1d to determine the value of a Social Securityoffset for the Defendant's right to receive Social Security benefits.The marital portion of said account less said Social Securitv ®ffset t 1 twill then be divided equally between the parties.

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6. In 2003, Defendant fled a contezilpt motion against Plaintifffor her alleged$

' refusal to cooperate in the preparation and filing of a DOPO.

7. Plailztiff's refusal to cooperate was based on her belief that ihe marital portion

of the STRS pension sbould have been offset by a hypothetical amount based on what her

Social Security benefit would have beeij if her etn.ployrnent had not been covered by STRS.

[vlagistrate's Decision, par. 9, 7-21-03.

8- Plaintiff was ordered to cooperate to produce and file a DOPO based on an

nffset for the Defendant's actual Social Security besaefit.

9. Plaintiff did not appeal the Joua-nal Entry filed July 21, 2003; however, she did

a Motion for Relief fi-oza7 3udgmeDt Under Civil Rule 60(B) on September 2, 2003.

10. The motion was preniised ojl the argument that the DOPO should reflect an

for her hypothetical Social Security bexaefit and not Defendant's actual Social Security

11. The 60(B) motion was overruled. J.E_ 10-31-03.

12. O11 January 76, 2008, Plaintiff filed a second motion for relief from judgment

that she was receiving ST'RS disability benefzts and the DOPO applied only to

n.t benefits. I

13. Paxagraph I.i. A. of the DOPO provides that:

A. IYEeAPRxmot: If the Participant is eligible to receivemore than one benefit paynient or more than oa-ie luanp sumpayinent, please check tlze benefit or lw7zp sum payn-ient fromwhich payinent to the Alternate Payee shall be made. If no benefitor lurnp sum payment is designated, the Altemate Payee shall

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receive paynient frorit the first benefit payment or lump surrapayment for which the Participate is eligible to apply and toreceive. Please check ALL APPLICABLE BENEFIT(S) OEtLUMP SUM PAYMENT(S):

Age and service montlily retirement benefit^ Disability monthly retirement benefit

Account refundAdditional money purchase rnonth.ly annuity or lurnp suinrefundReeinployed retiree money purchase monthly annuity(when monthly payment exceeds $35.00) or luiiip sum refund

^ Defined contribution plaaz benefit (STRS only)

14. No benefit was checked aiid the Court ruled that Defendant shouid receive his

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ishare of the benefits. J.E., 03-26-08.

15. On April 21, 2008, Plaintiff filed a Notice of A.ppeal to the Ninth District

fCourt of Appeals.

16. On June 3, 2009, the appeal was overruled and the judgmertt of March 26,

2008, was affirn-led.

17. At the hearing on April 18, 2013, Plaintiff testified that she returned to work

j in the Fall of 2011.

18

19.

Subsequently she retired and applied for retirement benefits.

Defendant has been informed by STRS that he must file a x^.ew DOPO in order

Ito receive beizefits.

20. Piaintiffhas refused to cooperate with filing a new DOPO on the grouiids that

"!Defendatlt's receipt of a portrorz of tzer disability benefits satisfied the terrri of the DOPO that

3

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l jthe alternate payee, °`...receive payment from the first benefit...for vuhich the Participant is

heligible to apply and to receive." DOPO, 09-15-03, par. II.A. (emphasis a(ided).7

21. Plaintiff is clearly asking the Court to interpret t.I3e word "first" to pneaaz "first

( Jand only the first."

22. The language of the DOPO is clear and unarnbiguous in its nzeaniisg: when the

Participant receives benefits, the Alternate Payee receives benefits.

;

ii

l. "flie deatli of the Plan Participant;2. The deatli of the Alternate Payee;3. The termination of a benefit pursuant to the

governing laws of the Public Retirement Prograin.

50(.B) motion that the DOPO applied on1y to retirenient benefits and not d:.sability benefits

23. The conclu.sioi7s of the Court are further supported by the provision of the

Pt) relating to termination of benefits:

C. The Alternate Payee's right to receive an arzxount ft-or:n thebenefit payrnent oi- lump suin payment to the PlanPaz-ticipant shall teniiinate upozi:

24. It should be noted that Plaintiff has now reversed her position in the 2008

25. The parties were married for nineteen (19) years. Pla.zntiff s argument n3eans

a party's interest in the otlaer spouse's retirement benefit earned during the marriage

be defeated by a short-term receipt of disability benefits if the spouse returns to work.

26. Such a result is i:uaequitable. The portion of Plaintiff's lifetime benefit earned

iduring the maixiage should be divided during the lifetime of the parties.

27_ Defendant's motion is sustained.

46-q

c OPY

28. Defendant shall subi-nit a proposed DOPO to the Court for approval.

29. Costs to Plaiiatiff

IT IS SO O1^EREi D.

PURSUANT TO CIVIL RULE 58(B), THE CLERK IS DIRECTED TO SERVE

UPOh1.A►I..I<..PAR'It'IES NOT IN DEFAULT FOR FAILURE TO APPEAR, NOTICE

OF THE FILING OF TIHS JFUDGIVI[ENT ENTRY AND OF THE DATE OF ENTRY

UPON THE JOURNAL.

'^^L^' Qu: Y y\

Jt E JOHN P. QUINN

cc: Jerome Reidy, Attorney for PlaintiffHoward Walton, Attorney for DefendaaztSTRS

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P@aitatiff

VS.

GER4L' D M. KESL.ING353'E. TuscaraWas AvenueBarberton, OH 44203

33O- 253-2729

IN THE COURT DF COMIWON RLEASDOMESTRG 1REi..ATIOfl6S CtlVtSlO8^

^UL41W9T COUNTY, ®H6C3

Defendant

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CASE NO. 2009-06-01 sG6

JUDGE JOHN P. Qt19iVN

DdV1S!®N OFPRQRER'YY ORDER

The Coiirt finds the following facts, and issues the following 4rder, pursuant to

§3105.80 to §3105.90, Ohio Revised Code:

1. ZERMS;

A. The "Plan Participant" or "Participant" means Debra 3, Muzplxy-Kesling,Social Securrity Number 299-54-$307, whose date of birth is April 17,15154 and whose current address is 15392 Serfass Road, Doylestcswri OH44230-9345 and whose current zxzaili ,ng address is 153 92 Serfass Road,.Doy]estowzt, OH 44230-9345.

^. The "Alter.aate Payee" means Gerald M. Kesling, Social Sec-L2rityNumber 299-58-0071, whose date of birth is October 16, 1956, .and whose current ad.dress is 353 E. Tuscarawas Avenue, Barberton, OH44203 and whose current mailing address is 353 B. TuscarawasAvenue, Barberton, OH 44203.

C. The ".Z'ublic Retirement Prcagram(s}° means (please ch.ecl: the.z-axze and address of the public retirement program(s) andforUniversityICollege Alternative Retirement Pla.h Administrator):

Ohio Public Employees Retirement System277 East Town StreetColumbus, (?hio 43215-4642

HOWAP.ll J. bVRlTQhATTORfQeY ATLAW

405 aUAitER SaUME124 E®sl MI{I St/eelAklon. QhHo n434M

336-253-2729

X State Teachers Retirement S3Ystem of Jhio275 East Broad StreetColusnbus, Ohio 43215-3771

FJ-EX-Al"1031T

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School Employees Retirernerrt System of Ohio300 East Broad Stree#, Suite 10()Columbus, Ohio 432I 5-3 746

Ohio Police and.Fire Pension Fund140 East Town StreetColuvnbus, Ohio 43215

C?hio State Highway Patrol Retirement System6161 Busch Boulev3rd, Suite I 19Columbus, Ohio 43229-2553

University/College Alternative Retirement PlanName and address of University/College Plan Adnni.r,istrator:

330-253-2725 W°4

D. Obligation of Pian Paet7ciant anrl A 9teraat Pa^yee The Plan.Participant and the Alternate Payee are Ordered to notif'y, in vvriting,the Public Retirement Program of a change in the i:ndividuai'smailing address.

11. AMOUNT PAYABLE TO 'I'HE ALTERNATE P'A'YEE. Upon the PlanParticipant recefvzng a payraaen.t from the Public Retirement PFograzrl, the-Courc Orders that the Alternate Payee shall receive payment in accordancewith and subject to the limitations set forth in F3105.82 to §31 t75_90, OhioRevised Code. The Public Retirement Program is req-uired to distribute amountsto the Aitemate Payee in the same manner selected by the Participarit. Forexample, if only a lump sum dollar amount is pr-ovicied in Paragraphs iI(B)(1)(a)and (b), then the Alternate Payee also recelves a lump sum dollar atm.oetnt.P.lease designate the type and the method of payna,ent:

A. ')Z vRe gtPnme^ga If the Participarit is eligible to receive more than onebenefit payment or more than one luzxap sum payment, please cheek thebenefit(s) or lump sum payment(s) fr+om which payment to the AlternatePayee shall be made. If no benefit or lump sum payment is designated,the A11:eruate Payee shall receive payment from the first benefit paymentor lump sum payment for wkr.ich the Participant is eligible to apply and toreceive. Please check ALL APPLICABLE BENEFITS(S) OR LUMP SUMPAYMENT(S):

HOWARD J. WALTONAT7'ORF7EY AT t.AW

405 QUJU!¢R SQUARE120 Eest MiB Stree!Ak[at Ohio 443DH336•263-z>29

Age and service m4rathly retirenaeut benefzts, INCLUDING PartialLi.unp SunlPaymen.ts received under §145.46(B)(4), §3307.60(B),§3309.46(B)(4), or §5505.162(A)(3), Ohio Revised Code, arndDefe.rred Retiremerit Optio.-ti Plan und.er §742.43 or 5505.50, OhioRevised Code.

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c OPYJuri 05 13 08. 02p KOCH & REGAL 330-253-2729

X Age and serviee morithty retirement beneftt, BUT EXCL^DINC,,Partial Lump Sum Payments received u.nder. §I45.46(B)(4),§3307.60(B): §3309.46(B)(4) or §5505.162(A)(3), Revised Code, andDeferred Retirement Option Plan under §742.43 or 5505.50; RevisedCode.

Disability mon.thly benefit

Account refand

Additional mo.ney purchase annuityladditional anntxitylump sum refund

Re-employed retiree. money purchase annuity (wheir monthlvpayment exceeds $25.00) vr lump sum refund

Defined contribution plan benefit

R. IVlethcad of Payment: If th.e Plan Participant is a re-employed retireec..ontributing to a money purchase annuity or is eligible to receive or isreceiving monthly benefits or a lump sum payment from a reem.ployed retireemoney purchase an8uity, the Alterna.te Fayee shail receive payment from thereemployed retiree money purchase auwuity and any other type of paymentdesignated in Paragrapb. II(A) above in a monthly or one-time dollar amount asspecified in Paragraph II(B)(1)(a) below. If the Plan Participant is participatingin the defined contribution prograanx or any of its constituent plans, the AlternatePayee shall receivepaym.ent from t:he defined oontributian program, or any of itsconstituent plans, and any otlier type of payment designated in Paragraph a(A)above in a percentage of a fraction as specified in Paragraph II(B)(2) below, Ifthe Plan Participant is participating in any other plan in a Public RetirementPrograrm, the Alternate Payee shall receive payment in either a dollar arnountOR a percentage of a fraction as specified below (i_e- Please complete DollarAmount OR Percentage).

1. Dollar Amvunt. Paragraphs 7.i(B)(1)(a) aYAd (b) must be fullycompleted, even if the indication is to pay the .A..lternate Payee"$0. CD0" from the Participactt's periadic benefit andtor lump sumpayrnent.

a. Zf the .Participant elects a plan of payment that consists ofa luznp sum payme.nt OR a plan of payment that consistsof periodic benefits:

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40K QUwSER S9UnR£120:as1 MBI S4rea9Akrcui, qyhfo a4308390-?33•2729

$ r per benefit from the Participant's periodicbebefrt upon the Participant's receipt of the aggregateperiodic benefit; or

$ frflm the Participa_nt's lh2mp siu-n pa.yment uponthe Participant's receipt of the payment:

b- If tt?e Pz*t;clpaxt e?ects a p?an of payrnent consasting of botha?n.-,mp sn.-r_ benefit A-ND. a pe.riodic benef-it:

0

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Juri 05 13 08c O2P KOCH & REGRL 330-253-2729

$ per benefit from the Pat-licipant's periodicbeneft upon the Parricipant's recezpt. of the periodic benefit;and

I from the ParCicipant's luuap sum benefit uponthe Participani's receipt of the payznent.

OR

2. Percentage: Plea.se provide percentages in both. ParagraphIi(B)(2)(a) and (b) even 'if the percentage is "0®0",

a. If the Participant elects a plan ofpayznent that consists ofeither periodic benefits OR a lump siun payrnent, the Public 'R.etireznen.t Program shall pay directly to the Alternate Payeeper benefit or in a one-time Iump seam payment 45.90°fa of afraction a,.c set forth in Paragraph Il(B)(2)(c) below of the PlanParticipa.nt`s periodic benefit or oxte-tirne lump sunz payriaeaat.

b. If the Plan Participant elects a plan ofpayrnent consistiug ofboth.a lump sum bezzefr.t AATD a periodic benefit, the PublicRetirement Program shall pay directly to the .Altermate Payee,45.90% of a fraction as set forth in Paragraph I€(B)(2)(c) belowofthee Plan Participant's periodic-benefit and -0-°la of a fractionas set forth below of the Plan Pa:rticipant's lump sum benefit

c. Fraetion°

i. The numerator of the frdction sha11 be 18.66 which is thethe number of years during which the Plan. Participant wasboth a contributing member of the Public Retirement Programand married to the Alternate Payee. The date of marriage isAugust 13,1983.

H. The denorninator, tvhich shal.l be determined by the PublicRetirement Program at the tiane that the Plan F'arkiciparnte3ectsto take a benefit or a payment sha11 be the Participant`stotal years of service credit with the Public RetirementProgram or, in the case of a Participant in a retirement plan,established under Chapter 3305, Revised Code, the years ofparticipation iua the plan.

C. A212&icable Benefit: The montbly ben.efit amount used to deternaine thea.mount paid to the Altern.ate Payee from the Participant's monthly benefit shal.lbe whichever applies:

Ht7WA#267 J. WALTONATTORh1EY AT LAW

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L If the Participant is reeeivi.ng a monthly benei±t; the xn.onthlybenerit shall be tlze. gross monthly beneBt the Participant isreceiving at the time of the decree of divorce or dissolutionbecomes final. The effective date of the decree of divorce,dissolution, or 3egafi sP;^2?°atic?n. ;c _A5..^̂,.s^r_j^ 9;

2. Uthe Participant huS applied Acir, ;iilt is not ye, 7ecEiVucg a 0

p-E;

COPi.3un o5 13 08= C9P KOCH & REGAL 930°253-2729

monthly benefit, the monthly benefit shall be the beraefit forwhich the Participant is eligible;

3. If the Participant has not applied for a benefit, the monthlybenefit shall be the benefit calculated at the tim.e the Participantelects to tab the benefit,

III.

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D. 14iiaainnum Benefit.Adotace: The total amount paid to the Alternate Payeepursuant to this Order plus any administi-ative fee chargee3 to tl7e Participant andAlternate Payee as authorized by §3105.84, Revised Code, shall not exceed fiftypercent of the amount of a benefit or lump sum payinent that the Plan Participantis to receive or, if withholding is to be made from more than one benefit or lumpsuin payment, fifty percent of the total ®f the benefits or lump sum paymentsthat the Plan Participant is to receive. If the Plax? Participant's benefit or lumpsum payment is, or will be, subject to more than one Order issued pursuant to§3105. $1, Revised Code, the Public Retirement Program shall rsot withh.old anaggregate aniount for all the Orders plus the administrative fee(s) charged to theParticipant and Altemate Payee as authorized by §3105.84, Revised Code, thatexceeds fLfty percent of the benefxt or lump sum payYnent.

NOTIFICATION TO AL'If'ERNA17E PAYEE: The ,Altern:ate Payee is herebynotified of the following:.

A. The Alternate Payee's right to payment under this Order is conditionalon the Plan Participant's right to a benefit payment or lurnp sumpayment from the Public Retirement Program;

B. When the Plan Participaut's benefit or lwnp sum payment is subjectto more than one Order under §3I fl5..81, Revised Code, or tQan Order described 'an §3105.8I, Revised Code, and a withhcrld.irigOrder under §3121.03, Revised Code, the amount paid to theAlterrmate Payee under this Order may be reduced based on thepriority of the other Orders;

C. The Alternate Payee's right to receive an amount from the benefatpayment or lump sum paym.en.t to the Plan Participant shallterminate upon;

1. The death of the Plan Participant;2. The death of the Alternate Payee;3. The termination of a benefit pursuant to the

governing laws of the Public Retirement Program.

HCJWaRDJ. WALTONATCb}2NEY aT LAW

403 QUAKER SQUARE120 Eas[ Mio SlreatRhron, Dhio 4430853U-253•2786

IV. ADMI1^SMUTIVE FEE: Pursuant to §3105.84; Revised Code, this Orderauthozizes the Public Retirernent Program that is, or will be, paying the benefitor lump sum payment, to withhold from any benefit or payinent tk^^a.t is subject tothis Ord.er an amount determined by the Public Retirement Progr.am to benecessary to defray the cost of administering the Order. This amount shall bedivided equally between the Plan Participant axrd the .AlterQate Payee.

V, A.P'P)LFCA'll'ION OF ORDER: This Order apphes to payments made by the ^tJfJ s; E"Y'1I'"ub;.zC R4:.tix:.mETc: PT:.ga= :ftr:':er° nt-= c f :1iC-^ Order ,rxtdPr $1_[k5,5 71

§742.462, §3305_2I, §3307_371, 93309.67z or §5505.2c,3,P'^evi5ed ^ade.

COPVJun 05 13 0$ 03P KOCH & REGAL 330-253-2729 }0.8

Y]. ADgDITIONAL ILItMI"F'A'l"I+CâNsON ORDERi

A. Payments under this Order shaIl commence as provided under§145.571, §742.462, §3305.21, ^3307.371, §3309_671, or§5505.261, Revised Code.

13. The Alternate Payee has no right or priviie.ge under the lawgoverning the Publie Retirement Progranl that is not otherwiseprovided in the govea-ning law.

C. ' This Order s'tiall not require the Public Retirernent Program totake any action or provide any benefrt, allowance; or paymentnot authorEzed under the law goveraing the Public RetirementProgram.

VII. itilflTICF, C9E ORDER:

A. The Clerk of Courts siiall trarssmit a certified copy of this Orderto the Public Retirenzent Progrexaa{s} named in this Order.

B. On receipt Qftizis Order, the Public Retiremen..t Program shalldetermine whether the Order meets the requirements as set forthin §31 t75.80 to §31 G5.90y Revised Code. .

C. The Public Retirexne.n.t Program shall retain the Order in thePlan Participant's record if the Order meets the requirementsin §3105.80 to §31 C► 5.90, Revised Code.

D. The Public Retirernent Program shall return, by regular mail,to the Clerk of Courts of the Court that issued the Order, anyOrder t2-ie Public Retirement Program dstermizies does notmeet the requirernent.s in §3105.80 to §3105_90, RevisedCode, no Ia.tex thm sixty (60) days after the Public RetirementProgram's receipt of the Order.

HONlARD J. WALTONF.TTORNE'•' AT LAW

405 p(3pKEft 50tiAREt2R EaIDI MtFF S{ree#t3von Ohl® 4430e

330-253-2729

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VIU. J7RISDYCTIOr1 OF T^ ^OM: ' The Court shall retain jurisdictionto rnodify, supervise, or enforce the implernentation of this Order,notwithstanding §3105.171 (I), Revised Code.

IT IS SO ORDERED.

J-.FDGF JOHN P. QULNN

APPROVED:

JEROME G. RE1LDYAttamey for Plaintiff/Participant Debra J. Murphy-Kesling

HOWARD J. WALTON, #0007960Attorney for Defendant/Alternate Payee Gerald M. Kesling

Division of Property Order approved per §I45.571, §742.462, §3305.21, §3307.371,§3309.671, or §5505.261, Revised Code, for filing and submission.

Retirement System

Retirement System

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405 t2UAKER SQUARE120Ee31 MliiSUealakron, ONo dQ3a8

33br53-2729

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COPY

STATE OF OHIO

COUNTY OF SUMMIT

_ ^.

IN THE COURT OF APPEALSNNTH JUDICIAL DISTRICT)ss:

)2ul^ ^F^, .^(1 :^^ ^•

DEBRA J. MURP'HY-KESLING":.^.-^:_- ^r:;:<^: ^^C.A. No. 26957tvti;;, 26962

Appellant

V.

APPEAL FROM JUDGMENTGERALD M. KESLING ENTERED IN THE

COURT OF COMMON PLEASAppellee COUNTY OF SUMMIT, OHIO

CASE No. 2001-05-01866

DECISION AND JOURNAL ENTRY

Dated: April 30, 2014

HENSAL, Presiding Judge.

I¶1} Debra Murphy-Kesling appeals a iudgment of the Summit County Court of

Common Pleas, Domestic Relations Division that granted Gerald Kesling's motion for division

of property order. For the following reasons, this Court affirms.

1.

{¶2} As this Court explained in Murphv-Kesling v. Kesling, 9th Dist. Summit No.

24176, 2009-Ohio-2560, the Keslings married in 1983 and had two children together. They

divorced in 2002. Throughout their marriage, Wife worked as a public school teacher and

contributed to the State Teachers' Retirement System (STRS). At the time of the divorce,

Husband's income was solely from Social Security Disability and Veteran's Administration

Disability. The parties agreed that Husband should receive part of Wife's STRS pension. In its

decree, the court directed them to "employ Pension Evaluators to determine the marital portion

[ofWife's STRS account] and to determine the value of a Social Security offset for [Husband's]

COPY2

right to receive Social Security benefits. The marital portion of said account less said Social

Security offset will then be divided equally between the parties." Neither party appealed the

decree nor the division of property order that the court subsequently issued.

1131 In 2007, Wife began receiving disability benefits from STRS. Based on the

language of the division of property order, STRS paid some of her benefits to Husband. Wife

moved to modify the order, arguing that Husband was only entitled to receive a share of her

retirement benefits, not pre-retirement disability benefits. The trial court denied her motion and

this Court affirmed, concluding that neither the decree nor the division of property order

excluded Husband from receiving Wife's STRS disability benefits. Keslingat 120. ,

{14} Wife later returned to work, and she continued working until she retired in

February 2013. After she retired, STRS did not pay any of her benefits to Husband because the

division of property order directed it to distribute only the "f^rst" benefit payment she received to

him, which it had already done. Husband, therefore, moved for a new division of property order

so that he could share in her retirement benefits. Following a hearing, the trial court granted his

motion and entered a new division of property order. Wife has appealed, assigning as error that

the court incorrectly granted his motion.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN ENTERING A NEW DIVISION OFPROPERTY ORDER WHERE THE EXISTING DIVISION OF PROPERTYORDER HAD BEEN DETERMINED IN A FINAL PROCEEDING TOCORRECTLY ALLOCATE HUSBAND'S INTERESTS 1N WIFE'S PENSIONPLAN.

{¶S} Wife notes that, in her previous appeal, this Court determined that some of her

arguments were barred because she had not timely appealed the decree or original division of

COPY3

property order. Kesling, 2009-Ohio-2560 at $ 18. She argues that the trial court should have

denied Husband's motion for the same reason. According to Wife, since Husband did not appeal

the original division of property order, he is barred from arguing that he is entitled to anything

other than the "first benefit" that she received from STRS.

{¶G} A qualified domestic relations order "creates or recognizes the existence of an

alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of

the benefits payable with respect to a participant under a [retirement] plan." Wilson v. Wilson,I

116 Ohio St.3d 268, 2007-Ohio-6056, 16, quoting 29 U.S.C. 1056(d)(3)(B)(i)(I). When the

retirement plan at issue is a public retirement plan, such orders are referred to as "division of

property orders" because they must comply with additional statutory requirements. See Romans

v. Romans, 9th Dist. Summit No. 23181, 2006-Ohio-6554, 113 ("A [division of property order]

permits a pension plan to make direct payment of benefits to an alternate payee, such as a former

spouse."); R.C. 3105.80 et seq. (detailing the requirements for a division of property order).

{¶7} In Wilson, the Ohio Supreme Court explained that a qualified domestic relations

order "implements a trial court's decision of how a pension is to be divided incident to divorce or

dissolution." Wilson at ¶ 7. It "does not in any way constitute a further adjudication on the

merits of the pension division, as its sole purpose is to implement the terms of the divorce

decree." Id. at ¶ 16. It is simply "a ministerial tool used by the trial court in order to aid the

relief that the court had previously granted." Id. at ¶ 18, quoting Lamb v. Lamb, 3d Dist.

Paulding No. l 1-98-09, 1998 WL 833606, *2 (Dec. 4, 1998).

{¶8} The trial court determined that it should issue a new division of property order

because the term "first" that was used in the original order did not mean "only." It noted that the

parties had been married for 19 years and that it would be inequitable if Husband's interest in

COPi4

Wife's retirement benefits could be defeated just because she received disability benefits for a

period of time. It, therefore, granted Husband's motion for division of property order.

{¶9} Revised Code Section 3105.89(A) provides that the court that issues a division of

property order "shall retain jurisdiction to modify, supervise, or enforce the implementation of

[the] order ***." The original division of property order contained language to that effect. In

the divorce decree, the trial court explained that part of Wife's STRS benefits were pre-marital

property. It also explained that whatever share that Husband had the right to receive should be

offset by his own Social Security benefits. It ordered that "[t]he marital portion of said account

less said Social Security offset will then be divided equally between the parties."

{¶10} It is apparent from the language of the decree that it was the intent of the trial

court to award Husband a share of Wife's STRS retirement benefits. While the original division

of property order may have allowed Husband to receive part of Wife's pre-retirement disability

benefits, the fact that he received those benefits does not foreclose his right to a share Wife's

retirement benefits as well. In this case, because STRS refused to pay Husband his share of

Wife's retirement benefits without a new division of property order, the trial court correctly

deteranined that it was appropriate to issue a new order. The court's action is consistent with the

purpose of such orders, which is to implement the terms of a divorce decree. Wilson, 116 Ohio

St.3d 268, 2007-Ohio-6056, at116. The trial court was also expressly allowed to modify its

original division of property order under Section 3105.89(A). We, therefore, reject Wife's

argument that Husband's motion was barred under the doctrines of res judicata and law of the

case.

COPY5

{¶11} The new division of property order merely allows Husband to access his share of

Wife's STRS retirement benefits that he was awarded in the divorce decree. Wife's assignment

of error is overruled.

III.

{112} The trial court did not err when it granted Husband's motion for division of

property order. The judgment of the Summit County Court of Common Pleas, Domestic

Relations Division is affirmed.

Judgment affirmed,

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C}. The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

4--JENNIFER SAL^FOR THE COURT

1=..r^PY >

STATE OF OHIO })ss:

COUNTY OF SL3IVIIVIIT )

IN THE COURT OF APPEALSNINTH JUDICIAL DISTRICT

'̂ i< t, v'-:.^ E• _

DEBRA J. M[JRPHY-KESLING

AppellantC.A. No. 26957

26962

V.

GERALD M. KESLING c,.. -JOURNAL ENT$-Y.

Appellee

.1. ^r

Debra Murphy-Kesling has applied for reconsideration of this Court's decision.

I We review the application to determine if it calls to our attention an obvious error in

I our decision or if it raises an issue that we did not properly consider. CTarfzeld Hts.

City Sch.l7ist. v. State Bd. of Educ,, 85 Ohio App. 3d 117,127 (1992).

Ms. Murphy-Kesling asserts that this Court misstated her res judicata argument.

She argues that it was not her former husband's failure to appeal the "original division

of property order," that had preclusive effect, but his failure to appeal the "July 21,

2003, order." According to the docket, on July 21, 2003, the trial court entered a

"Qualified Domestic Relations Order," which is the division of property order to

which this Court referred in its decision. We, therefore, conclude that Ms. Murphy-

Kesling has not identified an obvious error in our decision.

Ms. Murphy-Kesling also argues that this Court incorrectly determined that the

July 21, 2003, division of property order does not have preclusive effect. As this

Court explained in its decision, however, the trial court expressly reserved the right to

I

^^PY :Journai Entry, G.A. Nos. 26957,26962

Page 2 of 2

modify the order, in accordance with Revised Code Section 3105.89(A). The

application for reconsideration is denied.

Judge Jennifer Hensal

Concur:Carr, J.Whitmore, J.