[Cite as Blaine v. Blaine , 2011-Ohio-1654.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

JACKSON COUNTY 

JAMIE E. BLAINE, : 

 : 

 Petitioner-Appellee, : Case No. 10CA15 

 : 

 vs. : Released: April 1, 2011

 : 

WILLIAM H. BLAINE, III, : DECISION AND JUDGMENT 

: ENTRY

 Respondent-Appellant. : 

_____________________________________________________________ 

APPEARANCES: 

William S. Cole, Jackson, Ohio, for Appellant. 

Lorene G. Johnston, Jackson, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J.: 

{¶1} Appellant, William Blaine, appeals the trial court’s decision that 

overruled his Civ.R. 60(B) motion for relief from judgment. He asserts that 

he is entitled to relief from the court’s judgment approving the QDRO, 

because the QDRO is inconsistent with the terms of the parties’ separation 

agreement that the court incorporated into its dissolution decree. Because 

appellant alleged that the QDRO is inconsistent with the dissolution decree, 

Civ.R. 60(B) does not apply. Instead, if the QDRO conflicts with the 

decree, then the trial court possessed inherent authority to vacate the QDRO 

as a void judgment. The QDRO follows the parties’ separation agreement 
Jackson App. No. 10CA15 2

incorporated into the decree and is not inconsistent with it. Therefore, the 

QDRO is not void, and the trial court correctly determined that the QDRO 

should not be vacated. Appellant further asserts that the trial court abused 

its discretion by failing to hold an evidentiary hearing regarding his Civ.R. 

60(B) motion. Because appellant’s motion was not a proper Civ.R. 60(B) 

motion, he had no right to a Civ.R. 60(B) evidentiary hearing. 

Accordingly, we overrule appellant’s two assignments of error and affirm 

the trial court’s judgment. 

I. 

FACTS 

{¶2} On November 26, 2008, the parties filed a petition for 

dissolution of marriage accompanied with a separation agreement. With 

regards to the retirement benefits, the parties’ separation agreement states: 

“The parties have no retirement plans other than a 401(k) account with an 

approximate value of $170,501.08. The parties agree to split equally the 

value of the account with each party receiving approximately $85,250.54.” 

The parties also submitted a financial disclosure affidavit in which the value 

of appellant’s pension is listed as $170,501.08. On February 2, 2009, the 

trial court entered a dissolution decree that incorporated the parties’ 

separation agreement. 
Jackson App. No. 10CA15 3

{¶3} On May 21, 2009, the court entered a QDRO. Paragraph seven 

of the QDRO states: 

“Amount of Assignment: This Order assigns to 

[appellee] a portion of [appellant’s] Total Account Balance 

under the Plan in an amount equal to Eight Five Thousand Two 

Hundred Fifty and 54/100 Dollars ($85,250.54), effective as of 

November 25, 2008 (or the closest valuation date thereto). 

Allocation of Benefits: [Appellee’s] benefit will be 

segregated into a separate account in like investments as 

[appellant] (‘pro-rata’ basis). Investment earnings and/or losses 

will be applied to [appellee’s] account from the date of 

segregation to the point she elects to take a distribution.” 

{¶4} After the court entered the QDRO, appellant, acting pro se, filed 

a letter with the court in which he objected to the amount appellee received 

under the QDRO. The court found that appellant did not properly file this 

letter, so it did not consider it. 

{¶5} On June 17, 2009, appellant filed a pro se “objection,” in which 

he asserted that the QDRO deviates from the parties’ separation agreement. 

He claimed that since the dissolution decree, market conditions have 

depreciated his 401(k) account to approximately $130,905.65. Appellant 

argued that appellee is not entitled to one-half of the amount as valued in the 

separation agreement, but is only entitled to one-half of the current value. 

{¶6} On August 7, 2009, the court overruled appellant’s objection as 

untimely filed. 
Jackson App. No. 10CA15 4

{¶7} On October 13, 2009, appellant filed a motion for relief from 

judgment. He asserted that the QDRO does not comply with the spirit of the 

parties’ separation agreement, which was to equally divide his 401(k). He 

attached a copy of his November 25, 2008 Retirement Savings Statement, 

which shows an ending balance of $107,777.34. 

{¶8} On February 17, 2010, the magistrate recommended that the 

court overrule appellant’s motion. The magistrate observed that: (1) when 

the parties appeared in open court for the dissolution hearing, appellant 

“stated on the record that his 401(k) was worth $170,501.08”1

; (2) appellant 

signed the separation agreement, which stated that his 401(k) was worth 

$170,501.08; (3) appellant “signed a Waiver of Property,” in which he 

indicated that the division of property was equitable; (4) appellant stated on 

the record that he read and understood the separation agreement and that he 

had freely entered into the agreement and that it was fair; and (5) appellant 

had control and access over the 401(k) account information. The magistrate 

determined that: (1) appellant failed to set forth a meritorious defense; (2) he 

failed to show entitlement to relief under Civ.R. 60(B); and (3) he did not 

file his motion within a reasonable time. 

 

1

 We have reviewed the nine-page January 23, 2009, dissolution hearing transcript and were unable to 

locate where “in open court” appellant stated the value of his 401(k). 
Jackson App. No. 10CA15 5

{¶9} On March 3, 2010, appellant filed objections to the magistrate’s 

decision, and on March 25, 2010, appellant filed a second motion for relief 

from judgment. On July 22, 2010, the trial court overruled appellant’s 

objections. 

{¶10} On August 3, 2010, the magistrate recommended that the court 

overrule appellant’s second motion for relief from judgment. On August 17, 

2010, appellant filed additional objections. 

{¶11} On August 18, 2010, appellant filed a notice of appeal from the 

court’s July 22, 2010 “judgment.” This court subsequently dismissed 

appellant’s August 18, 2010 appeal due to lack of a final appealable order. 

{¶12} On October 13, 2010, the trial court overruled appellant’s 

objections and entered a judgment that denied his motion.2

II. 

ASSIGNMENTS OF ERROR 

{¶13} Appellant timely appealed and raises the following assignments 

of error: 

First Assignment of Error: 

“THE TRIAL COURT ERRED WHEN IT OVERRULED THE 

60(B) MOTION FILED BY APPELLANT.” 

 

2

 The court did not clearly indicate in its October 13, 2010 judgment entry whether it was overruling 

appellant’s first motion for relief from judgment (pursuant to our finding of a lack of a final appealable 

order) or his second motion for relief from judgment. Because the two motions contained essentially the 

same substantive allegations, we do not find this failure to affect our ability to consider this appeal. 
Jackson App. No. 10CA15 6

Second Assignment of Error: 

“THE TRIAL COURT ERRED WHEN IT FAILED TO 

GRANT AN EVIDENTIARY HEARING.” 

III. 

CIV.R. 60(B) MOTION 

{¶14} In his first assignment of error, appellant argues that the trial 

court erred by overruling his Civ.R. 60(B) motion for relief from judgment. 

He asserts that he is entitled to relief from the court’s judgment adopting the 

QDRO, because it contradicts the terms of the parties’ separation 

agreement.3

 Specifically, appellant complains that the QDRO fails “to split 

equally the value of the account,” as the parties had agreed to do in the 

separation agreement. He contends that the QDRO, by awarding appellee a 

sum certain instead of one-half the account value, fails to comply with the 

separation agreement. 

{¶15} Civ.R. 60(B) states that “[o]n motion and upon such terms as 

are just, the court may relieve a party or his legal representative from a final 

judgment, order or proceeding for the following reasons: (1) mistake, 

inadvertence, surprise or excusable neglect; (2) newly discovered evidence 

which by due diligence could not have been discovered in time to move for a 

new trial under Rule 59(B); (3) fraud (whether heretofore denominated 
Jackson App. No. 10CA15 7

intrinsic or extrinsic), misrepresentation or other misconduct of an adverse 

party; (4) the judgment has been satisfied, released or discharged, or a prior 

judgment upon which it is based has been reversed or otherwise vacated, or 

it is no longer equitable that the judgment should have prospective 

application; or (5) any other reason justifying relief from the judgment. The 

motion shall be made within a reasonable time, and for reasons (1), (2) and 

(3) not more than one year after the judgment, order or proceeding was 

entered or taken. A motion under this subdivision (B) does not affect the 

finality of a judgment or suspend its operation. The procedure for obtaining 

any relief from a judgment shall be by motion as prescribed in these rules.” 

{¶16} In GTE Automatic Elec. v. ARC Industries, Inc. (1976), 47 Ohio 

St.2d 146, 351 N.E.2d 113, the Supreme Court of Ohio set forth the 

requirements necessary to obtain Civ.R. 60(B) relief. “[T]he movant must 

demonstrate that (1) the party has a meritorious defense or claim to present if 

relief is granted; (2) the party is entitled to relief under one of the grounds 

stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a 

reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or 

(3), not more than one year after the judgment, order or proceeding was 

entered or taken.” 

 3

 Both the magistrate and the trial court treated appellant’s motion as seeking relief from the court’s 

dissolution decree. However, we interpret his motion as seeking to vacate the QDRO. 
Jackson App. No. 10CA15 8

{¶17} In the case at bar, although the parties and the trial court 

employed the Civ.R. 60(B) standard to determine whether appellant was 

entitled to relief, Civ.R. 60(B) is not the correct procedural device to use 

when a party asserts that a QDRO is inconsistent with a dissolution or 

divorce decree. Instead, when a QDRO conflicts with a dissolution decree, 

the QDRO is void. Bagley v. Bagley, 181 Ohio App.3d 141, 2009-Ohio688, 908 N.E.2d 469 at ¶27, (“[W]hen a QDRO is inconsistent with the 

decree, the trial court lacks jurisdiction to issue it, and it is void.”); see, also, 

State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, 922 

N.E.2d 214, at ¶19 quoting Bagley at ¶26 (“’So long as the QDRO is 

consistent with the decree * * * the court does not lack jurisdiction to issue 

it.’”). 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 v. Brownlee, Cuyahoga App. No. 

94494, 2010-Ohio-5602, 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.”) (citations omitted); Plummer v. Plummer, Montgomery App. 

No. 23743, 2010-Ohio-3450, ¶27 (“Civ.R. 60(B) deals with vacation of 

voidable judgments. Therefore, authority to vacate a judgment which is void 

is not derived from or controlled by Civ.R. 60(B), * * * but is instead an 
Jackson App. No. 10CA15 9

inherent power of the court. * * * A trial court may exercise that inherent 

power by treating a Civ.R. 60(B) motion as a common-law motion to vacate 

a void judgment.”) (citations omitted); Himes v. Himes, Tuscarawas App. 

No.2004AP020009, 2004-Ohio-4666, at ¶20-21. When a party incorrectly 

seeks relief under Civ.R. 60(B) in an attempt to vacate a void judgment, a 

court will “treat the motion as a common law motion to vacate or set aside 

the judgment * * *.” Beachler v. Beachler, Preble App. No. CA2006-03-

007, 2007-Ohio-1220, at ¶19; see, also, Jones v. Jordan, Cuyahoga App. No. 

88696, 2007-Ohio-2519, at ¶15. 

{¶18} In the case sub judice, the parties and the trial court did not 

evaluate appellant’s motion using the correct legal standard. The parties and 

the court focused on whether appellant had satisfied the requirements of 

Civ.R. 60(B), rather than focusing on whether the QDRO is a void judgment 

for being inconsistent with the separation agreement. Ordinarily, we refrain 

from considering issues that the trial court did not. See, e.g., Cooper v. 

Jones, Jackson App. No. 05CA7, 2006-Ohio-1770, at ¶26. In the case at 

bar, however, when the court determined appellant did not have a 

meritorious defense, the court implicitly determined that the QDRO does not 

conflict with the separation agreement—that is, the court examined the 

merits of appellant’s claim that the QDRO was inconsistent with the parties’ 
Jackson App. No. 10CA15 10

agreement and determined that it had no merit. The court observed that 

appellant agreed to the stated value of $170,501.08, when he entered into the 

separation agreement, and that the QDRO awards appellee one-half this 

amount. Thus, because the trial court implicitly considered this issue, we 

believe that we may consider whether the QDRO is void for being in conflict 

with the separation agreement. 

{¶19} The determination of whether a judgment is void presents a 

question of law. See, generally, Grimes v. Grimes, Washington App. Nos. 

06CA56 and 06CA73, 2007-Ohio-5653, at ¶22 (reviewing whether 

judgment void due to lack of subject matter jurisdiction on de novo basis). 

Moreover, whether a QDRO conflicts with a separation agreement 

incorporated into a dissolution or divorce decree presents a question of law 

that we review de novo. See Brownlee at ¶9 (using de novo standard of 

review without explicitly stating so). 

{¶20} “[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, at ¶7. “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 terms of the 

divorce decree.” Id. at ¶16. “’ * * * Indeed a QDRO may not vary from, 
Jackson App. No. 10CA15 11

enlarge, or diminish the relief that the court granted in the divorce decree, 

since that order which provided for the QDRO has since become final.’” Id. 

at ¶18, quoting Lamb v. Lamb (Dec. 4, 1998), Paulding App. No. 11-98-09. 

{¶21} In the case at bar, the parties agreed in the separation 

agreement to equally divide appellant’s pension. The agreement states: 

“The parties have no retirement plans other than a 401(k) account with an 

approximate value of $170,501.08. The parties agree to equally split the 

value of the account with each party receiving approximately $85,250.54.” 

The QDRO states: “This Order assigns to [appellee] a portion of 

[appellant’s] total Account Balance under the Plan in an amount equal to 

Eight-Five Thousand Two Hundred Fifty and 54/100 Dollars ($85,250.54) 

effective as of November 25, 2008.” The QDRO does not conflict with the 

separation agreement. The separation agreement values appellant’s 401(k) 

at $170,501.08. It does not provide for the value to be determined at a later 

date. The separation agreement then awards appellee one-half of 

$170,501.08. It does not award appellee one-half of a future amount, to be 

determined at a future date. See, generally, Cisco v. Cisco, Gallia App. No. 

08CA8, 2009-Ohio-884, at ¶14 (observing that when decree awards party 

“one-half of [a specified] amount,” the award does not include “any 

additional employer contributions, interest, dividends, earnings, or increases 
Jackson App. No. 10CA15 12

in the value of her share that accrue after the divorce,” but instead, is a 

straight-forward award of one-half the stated sum). If appellant had 

intended appellee’s one-half share to be diminished by future events, then he 

should have ensured the agreement reflected his intent. Because it does not, 

it must be enforced as written. We cannot find that the agreement and the 

QDRO conflict simply because appellant apparently was under a 

misunderstanding. 

{¶22} Moreover, any subsequent decline in the value of appellant’s 

401(k) was a post-marital decline in value for which appellant bears the loss. 

The implication of the separation agreement is that the parties agreed to split 

the marital value, which appellant agreed equaled $170,501.08. His lack of 

foresight that his 401(k) may decline in value between the date of the decree 

and the date of the QDRO does not render the QDRO inconsistent with the 

decree. See, generally, Veidt v. Cook, Butler App. No. CA2003-08-209, 

2004-Ohio-3170, at ¶11 (“The fact that appellant’s retirement funds have 

suffered a decline in value does not render the terms of the divorce decree 

regarding the division of the retirement benefits ambiguous.”); Brown v. 

Brown (Sept. 6, 1996), Greene App. No. 96-CA-11 (concluding that trial 

court properly denied husband’s Civ.R. 60[B][4] when it was foreseeable 

that husband’s stock options might decrease in value); Tabor v. Tabor,
Jackson App. No. 10CA15 13

Mahoning App. No. 02-CA-73, 2003-Ohio-1432 (determining that wife’s 

Civ.R. 60[B][4] motion improperly granted when it was foreseeable that 

value of husband’s pension might increase over time). Furthermore, had 

appellant thought the separation agreement did not accurately value his 

401(k), then he should not have agreed to it. 

{¶23} Accordingly, based upon the foregoing reasons, we overrule 

appellant’s first assignment of error. 

IV. 

CIV.R. 60(B) HEARING 

{¶24} In his second assignment of error, appellant argues that the trial 

court abused its discretion by failing to hold a hearing regarding his Civ.R. 

60(B) motion. 

{¶25} Because we have determined that the correct analysis is not 

pursuant to Civ.R. 60(B), we find appellant’s second assignment to be 

misplaced. Appellant’s motion was not a proper Civ.R. 60(B) motion. 

Therefore, he had no right to a Civ.R. 60(B) evidentiary hearing. 

Furthermore, were appellant to argue that he was entitled to an evidentiary 

hearing regarding a motion to vacate the QDRO as a void judgment, we do 

not believe that the submission of evidence would be required to rule on 

such a motion. Instead, as we have explained in this opinion, whether the 
Jackson App. No. 10CA15 14

QDRO and the separation agreement conflict is a matter of law that requires 

no evidence to be presented. 

{¶26} Accordingly, based upon the foregoing reasons, we overrule 

appellant’s second assignment of error and affirm the trial court’s judgment. 

JUDGMENT AFFIRMED. 
Jackson App. No. 10CA15 15

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

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 Jackson County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion. 

 

 For the Court, 

 

BY: _________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.