[Cite as Manning v. Jusak,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99459

ELLEN MANNING

PLAINTIFF-APPELLANT

vs.

JAMES A. JUSAK DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-300688

BEFORE: Stewart, A.J., Rocco, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: September 26, 2013 ATTORNEY FOR APPELLANT

Joyce E. Barrett 800 Standard Building 1370 Ontario Street Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Mark R. Gusley Mark R. Gusley & Associates Co., L.P.A. 6600 Park Avenue Cleveland, OH 44105

Lanene M. Meslat Lanene M. Meslat Co., L.P.A. 27070 Detroit Road, Suite 102 Westlake, OH 44145 MELODY J. STEWART, A.J.:

{¶1} Plaintiff-appellant Ellen Manning and defendant-appellee James Jusak were

divorced in 2006 according to the terms of a settlement agreement that made no specific

mention of Jusak’s pension plan. In 2011, Manning filed a motion asking the court to

issue a qualified domestic relations order (“QDRO”) dividing the proceeds of that plan

between the parties. Jusak opposed the motion on grounds that the parties expressly

excluded mention of his pension plan in the separation agreement because the spousal

support order they agreed to specifically stated that it was based in part on each party

receiving an equal share of the parties’ retirement benefits, including the proceeds from

the pension. A magistrate denied Manning’s motion, and the court approved and

adopted the magistrate’s decision. Manning now appeals arguing that the trial court

erred by denying her motion to divide Jusak’s pension plan and by denying her motion for

attorney fees.

{¶2} The parties approach the issue on appeal from very different perspectives.

Manning argues that under Bisker v. Bisker,

,

(1994),

the pension plan was a marital asset that had to be considered in arriving at an equitable

division of marital property, regardless of whether the parties were basing the amount of

spousal support on the value of the plan. Jusak argues that Manning forfeited the right to

raise any issue relating to the pension plan by neglecting to file a direct appeal from the

divorce decree and waiting nearly five years to raise the issue. He also notes that he had

been retired and collecting pension benefits at the time of the divorce, so the parties were well aware of the existence of the pension plan at the time they entered into the separation

agreement. Finally, he claims that Manning’s argument would, if accepted, allow the

court to modify the terms of the separation agreement even though the parties did not give

the court continuing jurisdiction to do so.

I

{¶3} The separation agreement incorporated into the divorce decree stated that

Jusak would pay Manning the sum of $786.62 for spousal support. That amount

represented “one-half (½) of the parties’ total income from Social Security and retirement

benefits divided by two (2).” Before the parties entered into their separation agreement,

they stipulated that Jusak was collecting pension benefits of approximately $1,364.58 per

month and Social Security benefits of approximately $1,276 per month.

{¶4} The magistrate’s decision stated:

The magistrate specifically requested final arguments to be structured regarding whether Plaintiff’s motion seeks the court to modify the property division entered into by the parties and adopted by the court. R.C. 3105.171(I) states: “[A] division or distribution of property or a distributive award made under this section is not subject to future modification by the courts.” Defendant’s final argument is on point. Plaintiff’s final argument continues to frame the issues as: “[T]he court is faced with the parties’ failure to divide, as an asset subject to inclusion in the division of property, defendant’s interest in the G.M. Salaried Retirement Program Pension Plan.” (Emphasis sic.)

II

{¶5} In Bisker, the Supreme Court held that a divorce decree that failed to account

for a husband’s retirement benefits was incorrect as a matter of law because “a vested

pension plan accumulated during marriage is a marital asset that must be considered in arriving at an equitable division of property.”

, citing Holcomb v. Holcomb,

,

(1989); R.C. 3105.18 [now R.C. 3105.171]. The parties

in Bisker twice divorced, the first time by separation agreement, the second time by trial.

Both times they failed to mention the husband’s pension benefits and in neither case did

the division of marital assets take those pension benefits into account. On direct appeal

from the second divorce, the Supreme Court noted that “[t]he record does not indicate

that the trial court, at any juncture of the current proceedings, ever reviewed the

retirement benefits of the parties * * *.”

{¶6} This case is distinguishable from Bisker because the record shows that the

court did consider Jusak’s pension benefits when reducing the terms of the parties’

separation agreement to judgment. The parties agreed that Jusak’s pension was to be the

baseline for calculating Manning’s spousal support. That being so, those pension

benefits were implicitly awarded to Jusak as part of the division of marital assets because

they were the means by which he could afford to pay spousal support. So this is not a

case like Bisker where the court failed to consider whether a party’s pension benefits

should be divided as a marital asset.

III

{¶7} To the extent that Manning argues that the court erred by failing to include

Jusak’s pension plan as part of the marital assets to be divided regardless of what the

parties intended in their separation agreement, that issue is res judicata because she did

not file a direct appeal challenging the divorce decree. Principles of res judicata apply both to issues that were actually litigated and adjudicated in a divorce action and also to

matters that could have been litigated and adjudicated. Bean v. Bean,

,

(12th Dist. 1983). Res judicata applies to foreclose a party

from relitigating the division of marital assets. See Westhoven v. Westhoven, 6th Dist.

Ottawa No. OT-10-037,

, ¶ 15. Manning was obligated to raise any

issue relating to the division of marital assets on direct appeal. Having failed to do so,

she cannot now relitigate the issue some five years after the fact.

{¶8} Finally, apart from any issue of res judicata, we find that Manning invited the

error she now claims.

{¶9} The invited error doctrine states that “a party is not entitled to take advantage

of an error that he himself invited or induced.” State ex rel. Kline v. Carroll,

,

,

; State v. Smith,

,

,

(8th Dist.)

{¶10} Manning agreed that Jusak’s pension plan would be part of the basis for

funding her spousal support. That conclusion is undeniable given that the separation

agreement specifically stated that the spousal support of $786.62 represented “one-half

(½) of the parties’ total income from Social Security and retirement benefits divided by

two (2).” (Emphasis added.) The parties specifically included other retirement benefits

in their division of marital assets, so Jusak’s pension was the obvious source from which

he could pay Manning’s spousal support. Having induced the court to enter judgment in

accordance with the terms of a separation agreement that funded spousal support with the pension plan, Manning cannot be heard to complain that the court did not divide that

pension as marital property.

{¶11} In reaching these conclusions, we reject Manning’s argument that by not

dividing the pension as a marital asset, the court has created a windfall for Jusak because

the amount of spousal support does not increase even if Jusak’s pension receives any cost

of living or other adjustment. The parties agreed that “[a]ny increase or decrease in the

parties’ total income from any sources of ten percent (10%) or more shall constitute a

change in circumstances for a modification” of spousal support. This statement clearly

indicates that the parties factored into the agreement a potential increase in Jusak’s

pension.

{¶12} Our affirmance of the court’s refusal to issue the qualified domestic

relations order causes us to reject Manning’s argument that the court erred by failing to

award her attorney fees expended in prosecuting the motion. “[N]on-prevailing parties

are generally precluded from recovering attorney fees and litigation expenses.” Adams v.

Adams, 3d Dist. Union No. 14-13-01,

, citing Hubbard v. Hubbard,

3d Dist. Hancock No. 4-08-37,

.

{¶13} Judgment affirmed.

It is ordered that appellee recover of appellant his 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 Cuyahoga

County Court of Common Pleas — Domestic Relations Division 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.

MELODY J. STEWART, ADMINISTRATIVE JUDGE

KENNETH A. ROCCO, J., and EILEEN T. GALLAGHER, J., CONCUR