[Cite as Cook v. Cook , 2017-Ohio-8848.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

TAMI COOK Appellee

v.

THOMAS COOK Appellant C.A. No. 28575

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2003-08-3121

DECISION AND JOURNAL ENTRY Dated: December 6, 2017

SCHAFER, Judge. {¶1} Defendant-Appellant, Thomas B. Cook, appeals the January 4, 2017 judgment of the Summit County Court of Common Pleas, Domestic Relations Division, denying his motion to terminate the division of property or der entered June 9, 2006. We affirm.

I. {¶2} Thomas Cook (“Husband”) and Tami Cook (“Wife”) married on March 30, 1996. In August of 2003, Wife filed for divorce, and the matter proceeded to a trial on December 1, 2004. Their marriage terminated on December 8, 2004, pursuant to the final entry decree of divorce issued by the trial court. To effectuate the division of property in the divorce decree, the parties, through their respective attorneys, jointly submitted a division of property order. The court entered the division or pr operty order on June 9, 2006. {¶3} On July 7, 2016, Husband filed a motion to terminate the division of property order. In the motion to terminate, Husband asserted that Wife was entitled to receive her equal2

half of the marital portion of his Ohio Public Employees Retirement System (“PERS”) pension account, that she had received payments totaling at least one-half of the marital value, and requested that the court terminate the divisi on of property order to prevent any additional payments issuing to Wife in excess of her equitable share. The motion included an exhibit: a letter, dated July 20, 2011, addressed to Husban d from PERS in response to Husband’s inquiry regarding the value of his retirement account thr ough the approximate date s of his marriage to

Wife. {¶4} The parties submitted briefing on the issue prior to a motion hearing before the magistrate held on September 22, 2016. On Janua ry 4, 2017, the trial court issued a judgment entry adopting the magistrate’s decision, which simultaneously attached and incorporated the magistrate’s decision dated that same day. Husband filed an objection to the magistrate’s decision. On March 6, 2017, the trial court ente red judgment overruling the objections, finding that the record did not support the basis fo r Husband’s position regarding the division of property, and determining that his motion to terminate improperly sought to modify the divorce decree by terminating the division of property orde r. Husband filed this timely appeal from the trial court’s judgment entry adopting the magistrate’s decision and overruling his motion to terminate. He raises one assignment of error for our review.

II. Assignment of Error The trial court committed error in adopting that aspect of the magistrate’s decision, which interpreted the division of property order in a manner that effectively modified the division of property concerning Husband’s PERS pension from what was ordered by the plain language of the decree of divorce, when the court had not reserved jurisdiction in the decree to modify the division of property.3

{¶5} In his sole assignment of error, Husba nd contends that the lower court erred by adopting the magistrate’s decision overruling his motion to terminate. The issues Husband raises within this assignment of error are rather c onvoluted. His argument centers upon his claim that the judgment entry denying his request to ter minate the division of property order is “at odds”

with the terms of the divorce decree. Husband contends that the magistrate’s decision, and the judgment entry adopting it, improperly interprete d the division of property in the divorce decree so as to permit the division of property order to remain in place and allow Wife to receive benefits beyond the fixed value he believes due her. He claims the trial c ourt’s denial of his requested relief materially and substantially modified the decree, and that the court lacked jurisdiction to enter judgment modifying the di vision of property as provided in the divorce

decree. {¶6} Husband asserts that, because the court lacked jurisdiction to modify the decree, this appeal presents a jurisdictional questi on of law that must be reviewed de novo. We recognize that, generally, a trial court does not retain jurisdiction to modify its order equitably dividing property, however, it doe s retain jurisdiction to “‘clarify and construe its original property division so as to effectuate its judgment.’” Helmstedter v. Helmstedter , 9th Dist. Summit No. 24237, 2009-Ohio-3559, ¶ 11, quoting Cisco v. Cisco , 4th Dist. Gallia No. 08CA8, 2009-Ohio-884, ¶ 11. Husband bases his claim that th e trial court lacked ju risdiction to deny his motion on the assumption that the judgment entry declining to terminate the division of property order had the effect of modifying the division of property in the decree. Further, his claim that the judgment entry modifies the decree presupposes that the trial court inco rrectly interpreted the division of property.4

{¶7} The issues husband raised regarding the trial court’s jurisdiction to modify the divorce decree only become relevant if, in denying the motion to terminate, the trial court did, in fact, effectively modify the decree. Therefore, we must first consider the threshold issue: whether the trial court erred in construing the division of property ordered in the divorce decree when it adopted the magistrate’s decision. “Generally, the decision to adopt, reject, or modify a magistrate’s decision lies within the discretion of the trial court and shou ld not be reversed on appeal absent an abuse of discretion.” Barlow v. Barlow , 9th Dist. Wayne No. 08CA0055, 2009- Ohio-3788, ¶ 5. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, (1983). A trial court abuses its discretion when it “acts in a manner contrary to law or without evidentiary support.” Tustin v. Tustin , 9th Dist. Summit No. 27164, 2015-Ohio-3454, ¶ 57. {¶8} Husband’s argument is premised upon his interpretation of the language in the divorce decree as providing for a fi xed value distribution of the ma rital portion of the pension to Wife. He contends that Wife’s equal share of the marital portion of the pension is an ascertainable amount, and once Wife had received that amount, either in a lump sum or in monthly benefit payments, the distribution must be capped. In his motion to terminate Husband argued that, without an order from the court gr anting his relief, the division of property order

would continue to serve as a basis for PERS to issue benefit payments to Wife indefinitely. {¶9} The divorce decree states “[f]or the purpose of making a division of marital property, the period of time ‘during the marriage’ was from the date of marriage through the day

of the trial.” The decree further ordered: The parties shall divide equa lly by [division of property order], the marital portion of Husband’s PERS pension/retirement Pl an. If provided by the Plan, this5

[division of property order] shall include a provision that Wife shall receive her portion of the pension benefit regardless of the reason why the pension has gone into pay status including disability. The decree made no further order regardin g the division of Husband’s pension. {¶10} The June 9, 2006 division of property orde r, jointly submitted and agreed to by the parties, identified Husband as the plan participant in PERS. It designated Wife as the alternate payee, and indicated that she was to receive payment in an amount determined by a percentage of a fraction. In the event that Husband elected periodic benefits, the division of property order specified that Wife’s monthly benefit payment would be calculated as fifty percent of the fraction: 8.667, representing the number of years during which Husband was a plan participant while the parties were married, over a denominator to be determined by PERS upon Husband’s retirement and based on his total year s of service credit. Consistent with the divorce decree, this division of property order di d not indicate a cap to the number of payments or state a maximum dollar amount of benefit paymen ts that Wife would be eligible to receive. {¶11} The magistrate considered Husband’s claim that Wife had already received an amount equal to one-half of the value of the ma rital portion of the pens ion, that the court’s failure to terminate the division of property order would constitute a modification of the divorce decree, and that the decree had provided for the payment of a fixed value rather than an indefinite term of monthly payments. The magi strate found that the divorce decree provided for the parties to divide equally, by division of property order, the mar ital portion of Husband’s pension. She found that the record did not supp ort Husband’s claim that a specific value had been established. The magistrate found that Husband’s argument was not supported by the language in the record, the division of property or der, or by law. The trial court adopted the magistrate’s decision and denied Husband’s motion to terminate the division of property order.6

{¶12} In overruling Husband’s objections to the magistrate’s decisi on, the trial court found that the divorce decree provided for the eq ual division of the mar ital portion of Husband’s pension account and that the division of property or der provided for Wife to receive a percentage of Husband’s monthly pension benefit. The trial court found that Hu sband’s argument—that Wife was to receive a monthly benefit up to a sum certain or a cap—was not supported by the record. Accordingly, the trial court overru led Husband’s first objection. The court then considered Husband’s second objection, that “failure to terminate the [division of property order]

would constitute a modification of the divorce d ecree.” Based upon its rejection of Husband’s first argument, the trial court concluded that, by attempting to halt the distribution of payments, Husband was actually seeking to modify the divorce decree. {¶13} The trial court attempted to clarify that, contrary to Husband’s assertion, a frozen

coverture fraction does not establish a sum certain that the non-participant spouse is to receive. The court went on to distinguish between a divi sion of property based on a fixed value and the frozen coverture method, stating: A frozen coverture provision does not establish a sum certain that the nonparticipant is to receive. It sets an amount based on the participant’s length of service and length of marriage as of th e date of the divorce decree that the nonparticipant is to receive from the participant’s monthly benefit.

The traditional coverture frac tion method allows the partic ipant to benefit from an increase in the monthly benefit which accrues as a result of post-decree circumstances. Hoyt v. Hoyt , 53 Ohio St.3d 177 (1990). Finally, the court recognized that the traditiona l method accounts for a final average salary based on Husband’s best three years, resulting in a final average that is greater than his average salary during the marriage, and Wife’s monthly payment is calculated upon that amount. {¶14} Husband maintains that, by failing to termin ate the division of property order, the trial court incorrectly modified the divorce decree by interpreting it to provide for a “traditional7

coverture fraction” method, resulti ng in a “lifetime stream of pa yments, well beyond her one-half

share of the account’s marital value.” Husb and’s argument is ba sed on a fundamental misunderstanding of certain methods used to de termine pension distribution. Specifically, he confuses the present cash value method with frozen coverture. When a court orders the division of property based on present cash value or “theor etical liquidation value” the court determines the present value of retirement benefits as a su m certain, divides that am ount to reflect the nonparticipant spouse’s share, and then awards the non-participant spouse othe r marital or separate property of a value equal to his or her share. Hoyt , 53 Ohio St.3d at 182. Unlike a deferred distribution method, this method a llows the participant spouse to keep a full interest in the pension by providing the other spouse with an i mmediate distribution or offset, and allows the parties to avoid further entanglement of their economic interests. Id

. {¶15} Both the traditional and frozen coverture methods are used to determine the specific share of the periodic pension benefits that the non-participant spouse will receive.

Under the “traditional coverture” method, “a court determines th e amount of money due the nonparticipant spouse by using the value of the pe nsion at retirement to determine the ‘monthly

accrued benefit.’” Cameron v. Cameron , 10th Dist. Franklin No. 12AP-349, 2012-Ohio-6258, ¶ 18. The court next determines the coverture fraction by employing a ratio: the number of years the participant spouse contributed to the pensi on during the marriage, over the total number of years the participant spouse contributed. Id . Finally, to calculate the marital portion of the benefit, the court multiplies the monthly accrue d benefit by the coverture fraction, and then divides that figure to determine the non- participant spouse’s equitable share. See e.g. , Thompson v. Thompson , 196 Ohio App.3d 764, 2011-Ohio-6286, ¶ 9-11 (10th Dist.).8

{¶16} The frozen coverture method, by contrast, requires the court to determine the value of the pension account as if it were frozen on the divorce date. Cameron at ¶ 17. “Sometimes called the ‘hypothetical ’ approach, it calculates the valu e of the participant spouse’s

retirement account had he or she retired on the same day the parties divorced, using the thenpresent base pay and years of service.” Id . This approach, results in a smaller monthly benefit payment to the non-participant spouse than under the traditional coverture method because, unlike the traditional approach, the frozen met hod awards no interest in any post-divorce increase in the pension to the non-participant spouse. See Id . at ¶ 18; See also Thompson at ¶ 39. {¶17} The frozen coverture method requires a dete rmination of the present value solely for the purpose of determining the monthly benef it payment based on that figure. It does not, however, involve a limit or cap on those payments in the amount of the frozen or hypothetical value, as Husband suggests. The division of prop erty in the divorce decree at issue here does not purport to determine a present value of Husband’ s pension: it provides for neither a present cash

value distribution of Wife’s interest, nor a deferred dist ribution under a frozen coverture calculation. Rather, it awards Wife her equitable share in the ma rital portion of the pension, and instructs that the division be accomplished by a division of property order. There is simply no support in the record, or in the law, for Husband’s claim that Wife’s payments are to be capped when a specific sum has been paid to her. Therefore, we conclude that the trial court did not abuse its discretion whet it rejected Husband’s argument, that its failure to terminate the division of property would impermissibly alter the terms of the divorce decree, and denied Husband’s

motion to terminate. {¶18} This Court’s resolution of the first issue is dispositive of the remaining issues Husband has raised. Having determined that the trial court did not err in denying the motion to9

terminate, we further conclude that the judgment entry denying Husband’s motion is consistent with the division of property in the decree. The judgment entry reflecting the court’s decision did not alter the division of pr operty ordered in the divorce decree; it merely denied Husband’s request to modify the order effectuating the divi sion of property and left the division of property

order as it were. Husband cannot use a motion to terminate as a means to present a belated attack on the division of property order. Furthe r, he has failed to articulate any legal basis upon which he can reasonably claim that the trial court was required to grant a motion to terminate a division of property order—having been jointly submitted by the parties and entered by the court more than ten years prior—because he now believes that it unfairly affords Wife continual pension payments. {¶19} For the reasons set forth above, Husban d’s assignment of error is overruled.

III. {¶20} Thomas’s assignment of error is overru led. The judgment of the Summit County Court of Common Pleas, Domestic Re lations 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 manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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 is10

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.

JULIE A. SCHAFER FOR THE COURT

HENSAL, P. J. CALLAHAN, J. CONCUR.

APPEARANCES: J. ANTHONY TERILLA, Attorney at Law, for Appellant. GARY M. ROSEN and JOSHUA A. LEMERMAN, Attorneys at Law, for Appellee.