Unfortunately, the answer to that question is increasingly “Yes.” We base this on our extensive case law review of retirement division language in Judgment Entries and our two-hour Ohio Judicial College interactive presentation in June.
Part of that Responder system interaction was having the judges and magistrates read actual Judgment Entry and then vote if the language was clear or ambiguous and whether it leaned towards freezing the benefit or adopting traditional coverture. After the judges voted, we then put the actual court decision on the screen and discussed the Court of Appeal decision. The five of us doing the presentation worked hard on the presentation and even harder on the materials – which we now offer you.
If you have any questions regarding traditional versus frozen coverture, survivorship, the dangers of awarding offsetting assets and tracing separate property, the materials will be useful. While the Judicial College responses remain confidential, the case reviews in the materials are illuminating and clearly demonstrate the inconsistency between various districts in interpreting Judgment Entries.
The cases that discussed how various courts interpreted Judgment Entry language were:
Hoyt v, Hoyt, 53 Ohio St.3d 177, Keller v Keller, 5th Dist. 18 CAP 01 0008-0010, 2018-Ohio-3141, Cameron V. Cameron, 10th Dist. No. 12AP-349, 2012-Ohio-6258, Cook v. Cook, 9th Dist. Summit C.A. 28575, 2017-Ohio-8848, George v. George, 9th Dist. Summit C.A. No. 18866 (Sept. 23, 1998), Nappi v. Nappi, 11th Dist. Ashtabula Case No. 2013-A-0041, 2014-Ohio-2696.
The cases discussed in our extensive Contract Construction section were:
State v. Porterfield, 106 Ohio St.3d 5, Meyer v. Meyer, 12th Dist. Butler No. CA2015-12-225, 2016-Ohio-8100, Houchins v. Houchins, 5th Dist. Stark No. 2006CA00205, 2007-Ohio-1450, Graham v. Drydock Coal Co., 76 Ohio St.3d 311 (1996).
How we can help: The best help we can provide is our free separation agreement language, especially our assignment clause language and survivorship clause. However, our ERISA attorneys can also help after that as well. For example, if the court signals that it will sign or intends to sign a frozen coverture order give us a quick call for our advice. Our attorneys can help you understand how each court will look at the language de novo and how straightforward it should be to establish the ambiguity of JE language by simply using our research to demonstrate how other districts have taken virtually (or exactly!) the same language and come to a different conclusion. That establishes the underlying legal necessity of having two “reasonable” interpretations, unless, of course, you reject the other districts as unreasonable.