Walsh v. Walsh, Slip Opinion No. 2019-Ohio-3723 (Sept. 18, 2019) overturning 11th Dist. 2018-Ohio-2466
Issue: Does changing the term of the marriage in the final decree of divorce without the consent of both parties violate Ohio Revised Code § 3105.171 (I), which prohibits modifying such orders “except upon the express written consent or agreement to the modification by both spouses.”
Decision: According to the Ohio Supreme Court: Yes. In so deciding, the Court overturned the Eleventh District Court of Appeals which had seen the trial court’s action in lengthening the marriage from six years to ten years as being within the court’s power to “clarify and construe its original property division so as to effectuate its judgment.” ¶14. The trial court did this upon the motion of a service member’s former spouse to change the length of the marriage to ten years so that direct payments could be made from the Defense Finance Accounting Service (DFAS) to the former spouse.
There was a strong dissent in the Eleventh District by Judge Diane Grendell who explained, “That it would be more convenient for the appellee to receive her portion of appellant’s military pension directly from the Secretary is not in dispute, but neither is it relevant nor does it justify the blatant manipulation of the factual record.” ¶19. She also expressed concern that “As often happens, deception begets further complications.” ¶ 22. Worrying that the share of the pension being awarded might increase because of the change despite the testimony of a QDRO Group (then QDRO Consultants) expert that it would not.
Clearly, the Ohio Supreme Court agreed that changing the length of the marriage was an impermissible modification because both parties did not consent to the change.
Discussion: This case points out the necessity of getting the separation agreement that is incorporated into the judgment entry right the first time. In some ways, the entire case was inexplicable. It was clear that the service member owed his former wife 15% of his retired pay even if DFAS did not make direct payments—meaning he will be responsible to make those payments directly to his former spouse.
To see how much more complicated the underlying issues are, see Reynolds v. Turull, 2019-Ohio-4600 where the Ohio Supreme Court did not accept an appeal for review with two justices dissenting and one wanting to summarily reverse the judgment of the court of appeals. We will likely write a far lengthier article on what are modifications versus efforts to merely enforce the judgment entry for the Domestic Relations Journal of Ohio in the near future.
How we can help: When we are involved early in the divorce process (i.e., before the separation agreement/judgment entry is final), we can provide guidance to attorneys on how the benefit in question can be divided. In this case, we could have informed the attorney of the 10/10 rule for dividing military pensions (the parties must be married for at least 10 years overall and have been married for at least 10 satisfactory years of military service), to receive payments directly from DFAS.