[Cite as Butcher v. Butcher, 2011-Ohio-2550.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95758

SALLY J. BUTCHER 

PLAINTIFF-APPELLEE 

vs. 

RONALD K. BUTCHER 

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Domestic Relations Division of the 

Cuyahoga County Court of Common Pleas 

Case No. D-270637 
BEFORE: Keough, J., Stewart, P.J., and Sweeney, J. 

RELEASED AND JOURNALIZED: May 26, 2011 

ATTORNEY FOR APPELLANT 

Ellen S. Mandell 

55 Public Square 

Suite 1717 

Cleveland, OH 44113 

ATTORNEY FOR APPELLEE 

Raymond J. Costanzo 

Costanzo & Lazzaro 

13317 Madison Avenue 

Lakewood, OH 44107

KATHLEEN ANN KEOUGH, J.: 
{¶ 1} Defendant-appellant, Ronald K. Butcher (“Husband”), appeals 

from the trial court’s judgment entry adopting the proposed qualified 

domestic relations order (“QDRO”) of plaintiff-appellee, Sally J. Butcher, 

n.k.a. Peterson (“Wife”). For the following reasons, we reverse and remand 

with instructions. 

{¶ 2} In September 2000, the parties’ marriage was terminated by a 

divorce decree that incorporated and adopted the parties’ negotiated 

handwritten separation agreement. Pursuant to the judgment of divorce, a 

QDRO was to be submitted to the trial court resolving Wife’s interest in 

Husband’s Ford Motor Company pension. Husband submitted his proposed 

QDRO to Wife; however, she did not respond to the proposal. In February 

2009, Husband moved the trial court to adopt his proposed QDRO, which the 

court adopted a week later. Upon receiving notification of the signed QDRO, 

Wife filed a motion for relief from judgment, arguing that she did not receive 

notice of Husband’s motion and proposed QDRO. Wife also requested that 

the trial court adopt her proposed QDRO. Husband filed a brief in opposition 

to Wife’s motion, arguing that his proposed QDRO should be implemented. 

{¶ 3} The parties’ motions and competing QDROs were referred to a 

magistrate. No hearing was held, as the parties agreed no questions of fact 

were at issue. The magistrate issued a written opinion recommending that 
the court grant Wife’s motion for relief from judgment and adopt Wife’s 

proposed QDRO. 

{¶ 4} The magistrate identified the issue before it as follows: “When 

minimalist language is used in a separation agreement regarding the division 

of marital pension by coverture fraction, exactly what terms can a court 

subsequently adopt in a QDRO to clarify the intent of the parties as 

evidenced in the separation agreement, without crossing over legal 

boundaries where the post-decree QDRO becomes a void modification of the 

divorce decree’s division of property[?]” 

{¶ 5} The magistrate found that a conflict in interpreting this issue 

existed between the Twelfth and Eighth appellate districts, citing Adkins v. 

Bush, Butler App. No. CA2002-05-131, 2003-Ohio-2781, and Gordon v. 

Gordon (2001), 144 Ohio App.3d 21, 759 N.E.2d 43. In resolving this conflict, 

the magistrate determined Gordon should control because it was from this 

appellate district. In applying Gordon, the magistrate recommended that 

Wife “should have [a] marital interest, based upon the stated coverture 

fraction, in all of [Husband’s] pension benefits if real meaning is to be given to 

the parties’ agreement, that ‘all further retirement and investment accounts 

of husband shall be divided equally.’” Accordingly, the magistrate 

recommended that Wife’s QDRO, which utilized coverture fraction and 

provided Wife with early retirement supplements, interim supplements, 
temporary benefits, and pre-retirement survivorship benefits under 

Husband’s Ford retirement account, be adopted. 

{¶ 6} Husband filed written objections to the magistrate’s decision, in 

which he challenged only the recommendation to adopt Wife’s proposed 

QDRO. The trial court adopted the magistrate’s decision in its entirety, 

without a hearing. Husband now appeals, arguing as his sole assignment of 

error that the trial court erred in adopting Wife’s proposed QDRO. 

{¶ 7} The standard of review on appeal from a decision of a trial court 

adopting a magistrate’s decision is whether the trial court abused its 

discretion. O’Brien v. O’Brien, Cuyahoga App. No. 86430, 2006-Ohio-1729, 

11. “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. However, an abuse of discretion may be found when the trial 

court “applies the wrong legal standard, misapplies the correct legal 

standard, or relies on clearly erroneous findings of fact.” Thomas v. 

Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, 15. 

{¶ 8} It is well settled that pension and retirement benefits are marital 

assets subject to equitable division upon a divorce. R.C. 3105.171; Hoyt v. 

Hoyt (1990), 53 Ohio St.3d 177, 178, 559 N.E.2d 1292. A trial court cannot 

modify or amend a marital property division incident to a divorce or 
dissolution decree, absent expressed consent by the parties. R.C. 

3105.171(I). This prohibition is jurisdictional. See, e.g., McKinney v. 

McKinney (2001), 142 Ohio App.3d 604, 608, 756 N.E.2d 694. 

{¶ 9} To effectuate the division of pension and retirement benefits, the 

domestic relations court enters a QDRO, which is an order that “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 benefit payable 

with respect to a participant under a plan * * *.” Employee Retirement 

Income Security Act of 1974, Section 206(d)(3)(B)(i)(I). Ordinarily, it is 

issued subsequent to and separate from the decree of divorce itself. A QDRO 

is therefore merely an order in aid of execution on the property division 

ordered in the divorce decree dividing retirement or pension assets. 

McKinney at 608. If 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. Id., citing Tarbert v. Tarbert (Sept. 27, 1996), 

Clark App. No. 96-CA-0036. 

{¶ 10} In this case, the dispute centers around the meaning of the 

divorce decree and separation agreement on which the QDRO would issue. 

When parties dispute the meaning of a clause in their separation agreement, 

a trial court must first determine whether the clause is ambiguous. Adkins 

at 26. A clause is ambiguous where it is subject to more than one 
interpretation. Id., citing Weller v. Weller (1996), 115 Ohio App.3d 173, 179, 

684 N.E.2d 1284. A trial court has broad discretion in clarifying ambiguous 

language by considering the parties’ intent and the equities involved. Id. If 

the decree and separation agreement are ambiguous regarding the division of 

Husband’s retirement and pension accounts, the court can properly clarify 

their meaning without violating the prohibition of R.C. 3105.171(I). Gordon

at 24; Adkins at 26. 

{¶ 11} However, if the terms in the separation agreement are 

unambiguous, a trial court may not clarify or interpret those terms. Adkins

at 27, citing In the Matter of Leonhart v. Nees (Aug. 20, 1993), Erie App. No. 

E-93-03; Sowald & Morganstern, Domestic Relations Law (2002) 438, Section 

9:48. “‘Further, where there is no uncertainty, but only an absence in the 

agreement of a provision about a particular matter, the court must not 

construe as included something intended to be excluded nor make the 

contract speak where it was silent.’” Adkins at 27, quoting Sowald & 

Morganstern. 

{¶ 12} Therefore, the question before this court is whether the QDRO 

adopted by the trial court is a modification or clarification of the separation 

agreement. If it is a modification, then the QDRO is void because the trial 

court did not have jurisdiction to make a modification. See R.C. 3105.171(I). 
 However, if it is a clarification, we must determine whether the trial court 

abused its discretion in adopting Wife’s proposed QDRO. 

{¶ 13} The relevant portion of the parties’ separation agreement is 

Section 3(C), entitled “Pension, Retirement, Stocks, Bonds, etc.” The crux of 

this appeal involves subsection (b), which provides: 

{¶ 14} “Husband has further retirement benefits through Ford Motor 

Company. All further retirement & investment accounts of Husband shall 

be divided equally (all accounts but Tesphe). Date of termination of 

marriage is the court’s journalization date. Wife’s interest in Husband’s 

pension of retirement accounts shall be secured through a separate order 

upon Husband’s employer.” 

{¶ 15} Wife contends that an equal division of the Ford retirement 

account includes pre-retirement survivorship benefits, early retirement 

supplements, interim supplements, and temporary benefits, and that the 

account should be divided by coverture fraction. In support of her argument, 

Wife maintains that Hoyt is the controlling authority to guide us with our 

decision. However, the procedural posture of Hoyt is distinguishable from 

the case before us. In Hoyt, the Ohio Supreme Court reviewed a trial court’s 

decision dividing marital property and established guidelines for courts to 

consider when dividing retirement and pension benefits in a divorce action. 
{¶ 16} In the case before us, the Butchers entered into a separation 

agreement where they agreed on the division of marital assets. From the 

record, we glean that both parties and their attorneys, over a course of 

various pretrials, negotiated the division of marital property, including 

pension and retirement accounts. The trial court did not determine how the 

marital property should be divided and did not utilize any guidelines 

established by Hoyt. Accordingly, we do not find Hoyt helpful. The parties 

negotiated the division of their marital property and that agreement was 

memorialized in the separation agreement adopted by the divorce decree. 

However, the “minimalist language” used in the separation agreement 

regarding the division of Husband’s Ford retirement account has caused the 

controversy in this matter. 

{¶ 17} The trial court indicated that a conflict among appellate districts 

exists in resolving the issue of “minimalist language” contained in separation 

agreements. See Adkins and Gordon. 

{¶ 18} Husband urges this court to follow the Adkins decision, where the 

Twelfth District was faced with an identical issue. In Adkins, the parties’ 

separation agreement simply provided that: “Wife shall receive 1/2 of 

Husband’s pension through his employer.” The Adkins trial court adopted 

Wife’s proposed QDRO, which provided pre- and post-retirement benefits, 

supplements, and survivorship benefits. On appeal, the Adkins court 
concluded that because the “minimalist language contained in the inartfully 

drafted separation agreement” was not ambiguous, the trial court abused its 

discretion in extending or modifying the agreement. Id. at 28. “That 

agreement provides simply that [wife] is to receive one-half of [husband’s] 

pension through his employer. There is nothing ambiguous about that 

clause. The QDRO proposed by [wife] and adopted by the trial court tried to 

‘fill in the gaps’ left by Section V of the parties’ separation agreement by 

allowing [wife] to share in any pre-retirement and post-retirement benefits 

that [husband] may acquire or had acquired, and by providing [wife] with 

survivorship benefits. However, these provisions of the QDRO do not simply 

clarify or construe an ambiguity in the parties’ separation agreement, but, 

instead, amend or modify the agreement, which is not permitted.” Id. 

{¶ 19} However, the trial court in this case relied on this court’s holding 

in Gordon and found that when minimalist language is used, the trial court is 

authorized to clarify the parties’ separation agreement to reflect the intent of 

the parties. In Gordon, the trial court was asked to clarify a term that was 

inadvertently left out of the separation agreement and QDRO, but the parties 

intended to include. This court held that “the magistrate’s intent was merely 

to clarify a point that had been inadvertently left out of the order. The court 

used the survivorship rights as part of the calculation of the appellant’s and 

appellee’s shares of the marital estate. Therefore, by granting the appellee’s 
relief from judgment and reissuing a new order in the spirit of what had been 

the intent of the two parties, the actions of the lower court were simply to 

clarify a mistake made in the earlier order.” Id. at 25. 

{¶ 20} In Gordon, it appears that extrinsic facts and evidence were 

presented to the trial court so it could determine the intent of the parties at 

the time the separation agreement was executed. In dividing the parties’ 

marital assets, the Gordon trial court used the survivorship rights as part of 

the calculation. Therefore, it appeared that the parties intended that 

survivorship rights would be awarded to the Wife. Accordingly, it was 

proper to clarify the term that was inadvertently left out of the decree. 

{¶ 21} In the instant case, we do not have an inadvertent mistake that 

simply needs to be added or clarified; rather, the trial court was requested to 

interpret the separation agreement and “fill in the gaps.” Moreover, the trial 

court did not conduct a hearing to determine the intent of the parties at the 

time the separation agreement was executed. A hearing would have allowed 

for a more meaningful appellate review of the “inartfully drafted separation 

agreement.” Adkins, supra. 

{¶ 22} Although the trial court found that a conflict exists among 

appellate districts, we do not find such conflict. The issue in Gordon was 

whether the trial court could clarify a provision that was mistakenly left out 

of the QDRO and separation agreement, whereas Adkins resolved whether 
the trial court could interpret the separation agreement to determine the 

parties’ intent regarding what benefits should be awarded under the pension. 

 The issues in these two cases are distinguishable and accordingly, there is 

no conflict. 

{¶ 23} The case before us resembles the facts in Adkins and we find it 

persuasive. The unambiguous language in the separation agreement 

provides that the parties agreed to divide Husband’s Ford retirement account 

equally. The QDRO adopted by the trial court “filled in the gaps” left in the 

parties’ separation agreement. But the QDRO adopted by the trial court 

does not simply clarify or construe an ambiguity in the separation agreement; 

rather, it expands and modifies the agreement, which is prohibited by R.C. 

3105.171(I). Accordingly, we find that the trial court lacked jurisdiction to 

approve a QDRO that provides Wife with early retirement supplements, 

interim supplements, temporary benefits, and pre-retirement survivorship 

benefits, absent any showing the parties intended for Wife to share in such 

benefits. The QDRO adopted by the trial court is rendered void. 

{¶ 24} Judgment reversed and case remanded to the trial court with 

instructions to conduct an evidentiary hearing to determine the intent of the 

parties at the time of execution of the separation agreement as to how 

Husband’s Ford retirement account should be divided, and to adopt a QDRO 

reflecting such intent. 
It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said 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. 

KATHLEEN ANN KEOUGH, JUDGE 

MELODY J. STEWART, P.J., and 

JAMES J. SWEENEY, J., CONCUR