COLLINS, Appellee, v. COLLINS, Appellant, 139 Ohio App. 3d 900

Brogan, Judge. Defendant-appellant, Ralph Collins, appeals from a trial court order finding him in contempt of court. The trial court imposed a thirty-day jail sentence, but indicated that Collins could purge himself of contempt by paying his ex-wife the value of her interest in Collins’s retirement at the time of his separation from the United States Air Force. According to the record, the parties were married in November 1988, and were divorced on February, 20, 1999. In the divorce decree, the court made the following order in

Section 9 (Retirement Benefits): “Each party shall take a fractional share of the retirement interest of the other from the Active Duty US. [sic] Air Force for the Defendant and the US [sic] Air Force Reserve for the Plaintiff. Said fractional share shall be as follows: “The numerator shall be 8 and the denominator shall be the number of years of service; said fraction shall be multiplied by the benefit, which shall then be divided by two. Each party agrees to do all voluntary acts, or refrain from any voluntary acts, necessary to protect the rights of the other in said retirement interest.

If either party should be separated from the US. [sic] Air Force, and receive any separation benefits as a result thereof, said party shall immediately notify the other party of said benefit and shall pay over to the other a pro-rata share of said benefit pursuant to the formula above. Additionally, said separated party is permanently enjoined from cashing any such benefit checks until said split is accomplished.” The court did not expressly retain jurisdiction over the pension issue in the decree.

However, the transcript of the divorce hearing apparently indicates that the court did retain jurisdiction to issue necessary orders to effectuate the division of retirement proceeds. At the time of the divorce decree, Collins had been in the Air Force for about thirteen years. However, on August 19, 1999, Collins was honorably discharged and forfeited his military pension. The record does not reveal the reason Collins sought the discharge, and Collins gave no reason for his actions during the contempt hearing.

Based on these facts, the magistrate found that Collins violated the decree by voluntarily leaving the Air Force and negating his ex-wife’s interest in his retirement. As was noted above, the magistrate found Collins in contempt, imposed a thirty-day jail sentence, and said that Collins could purge himself of contempt by paying the value of his ex-wife’s interest in the retirement fund. Collins objected to the magistrate’s decision, but the trial court overruled the objections on October 26, 1999. This appeal then followed.

In his single assignment of error, Collins claims the trial court decision was erroneous because it required him to stay in the military for seven more years in order to obtain retirement benefits for his ex-wife. To support this argument, Collins makes two main points. The first is that military benefits are so speculative that retaining jurisdiction over them is unfounded. Specifically, military pensions do not vest until an individual has completed twenty years of service and no cash value exists before that time. As authority for this, Collins relies on King v. King (1992), 78 Ohio App.3d 599, 605 N.E.2d 970.

As an initial point, we note that Collins did not appeal from the original divorce decree. Therefore, any attempt to re-litigate matters decided in the decree is barred by res judicata. See, e.g., State v. Lopez (Jan. 21,1993), Greene App. No. 92-CA-34, unreported at 3, 1993 WL 10931. Specifically, if Collins wished to contest the trial court’s ability to retain jurisdiction over the issue of retirement benefits, he should have raised the matter by directly appealing from the original decision.

However, to the extent that the contempt order arguably modifies the terms of the original decree, we will briefly consider retention of jurisdiction over non-vested benefits. According to the Ohio Supreme Court, pension or retirement benefits which are accumulated during marriage are marital assets and are subject to property division during a divorce. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 132, 541 N.E.2d 597, 600-601. How vested benefits are distributed depends on their status, i e., on whether they have matured. Erb v. Erb (1996), 75 Ohio St.3d 18, 20, 661 N.E.2d 175, 177-178.

For example, if benefits are vested, but unmatured, the trial court may retain jurisdiction and may decide proportionate shares either at the time of divorce or when benefits have become vested and matured. Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, 182, 559 N.E.2d 1292, 1297-1298. However, while the Supreme Court has given guidance on distributing benefits that are vested and are not mature, it has not specifically addressed benefits which are not even vested at the time of divorce.

On the other hand, the Supreme Court held long ago that property settlement provisions in divorce decrees may be enforced through contempt proceedings. Harris v. Harris (1979), 58 Ohio St.2d 303, 12 O.O.3d 291, 390 N.E.2d 789. See, also, Erb, 75 Ohio St.3d at 22, 661 N.E.2d at 179, fn. 3 (noting that contempt power is one means of protecting a spouse’s proportionate interest in a retirement plan). King is a lower appellate court decision that does address the issue of benefits that are not vested at the time of divorce.

In King, the Twelfth District Court of Appeals held that the trial court erred by reserving jurisdiction over a military retirement plan in which the appellant was not yet vested. 78 Ohio App.3d 599, 606, 605 N.E.2d 970. In this regard, the court observed that it had only been able to find cases involving vested retirement plans. According to the court, the lack of authority was due to the limited value of a non-vested interest. In particular, the court stressed that “[i]n the present case, it is unknown whether appellant will remain in the military and become vested in the pension plan.

The trial court’s division of appellant’s possible military pension would provide little or no incentive for appellant to remain in service. Appellant’s unvested interest is not even subject to a qualified domestic relations order. We conclude that appellant’s interest in the plan is far too speculative to justify the court’s failure to ‘disassociate the parties from one another or * * * minimize the economic partnership.’ ” Id. at 607, 605 N.E.2d at 974. However, the Twelfth District subsequently overruled King in Siler v. Siler (July 25, 1994), Warren App. No. CA93-10-081, unreported, at 1, 1994 WL 386106.

In Siler, the court concluded that jurisdiction should be retained over an unvested military pension fund because the funds were accumulated during the marriage and the spouse was entitled to a share of the property. Id. In contrast to its statements in King, the Twelfth District stressed in Siler that “[t]he fact that appellee would receive no retirement benefits unless he remains in the service for twenty years is a greater incentive to stay in the military than the incentive to leave the military in order to deprive appellant of any of the pension.” Id.

Neither Siler nor King dealt with a voluntary separation for the apparent purpose of depriving an ex-spouse of a court-ordered benefit. We did consider a somewhat related issue in McClure v. McClure (1994), 98 Ohio App.3d 27, 647 N.E.2d 832. In that case, we decided that a Voluntary Separation Incentive (“VSI”) offered by the Armed Forces was more like a severance benefit than a retirement benefit. Id. at 41, 647 N.E.2d at 841-842. Accordingly, we refused to allow VSI payments to be considered marital property.

However, a significant point in McClure was our distinction of two out-of-state cases that had allowed VSI payments to be divided as marital property. In this regard, we noted that in the out-of-state cases, the divorce had been finalized and the wife was awarded a percentage of the husband’s military benefits upon retirement. Id. at 42, 647 N.E.2d at 842. We further noted that “[t]he husbands in both cases chose to separate before they had served twenty years and thereby sacrificed their right to receive any military retirement benefits.” Id.

Additionally, we stressed that one husband’s actions had “violated his specific duty ‘not to pursue any course of action that would defeat the wife’s right to receive a portion of the husband’s full net disposable retired or retainer pay.’ ” Id. In light of these facts, we commented that “[w]here the spouse is not deprived of property which has already been awarded pursuant to the decree, the equities are much less compelling to find that the separation incentive constitutes marital property.

If the [out-of-state cases] had not found the incentive payments to be marital property, the husband would have been permitted to unilaterally decrease his obligation and the amount his former spouse would have received.” Id. Unlike the spouses in the out-of-state cases, the husband in McClure had no choice about retirement, and did not do so to evade a pension obligation. Instead, he had only two choices — to voluntarily separate and receive VSI payments, or to be involuntarily terminated. In the latter event, he would receive a maximum single lump-sum payment that was substantially less than the VSI payments.

By taking the first option, the husband ensured a higher, more stable income, from which child support and spousal payments could be awarded. Id. In a later decision, we distinguished McClure, noting that the “voluntary separation” in that case was, in fact, involuntary. Denny v. Denny (Apr. 12, 1996), Greene App. No. 95-CA-87, unreported, at 2, 1996 WL 173397. As a result, in Denny, we found that the trial court did not abuse its discretion in awarding a spouse a proportionate interest in any VSI payments which might be received in the future. In this regard, we said that “there is no evidence that Mr.

Denny has been given, or is likely to be given, an ultimatum to leave military service before becoming entitled to retirement benefits. At the time of the divorce, Mr. Denny had completed fifteen years of military service. If he should elect to leave military service before becoming entitled to retirement benefits and to receive VSI benefits instead, those VSI benefits would be in lieu of the retirement benefits to which he would otherwise become entitled.” Id.

Thus, our decisions do not specifically address the question of what should happen when a party is under court order to protect an ex-spouse’s retirement interest, but voluntarily takes unilateral action to destroy the interest. Nonetheless, we think they strongly indicate that such interference cannot be tolerated. Based on the above discussion, we believe trial courts may properly retain jurisdiction over a non-vested military pension. However, a favorable finding on this point is not required in order for us to affirm the trial-court’s decision.

Specifically, whether jurisdiction is reserved or not, the trial court retains the power to enforce its orders. In this case, the order allowing Collins to purge himself of contempt did not modify the original order, but was an appropriate way of enforcing the obligations in the divorce decree. Accordingly, the trial court did not abuse its discretion by finding Collins in contempt or by specifying a means of purging the contempt.

Collins’s second argument in support of his assignment of error is that the trial court’s order improperly created a condition of involuntary servitude and violated the Thirteenth Amendment to the United States Constitution. The basis for claiming “involuntary servitude” is that the order allegedly required Collins to remain in the military to protect his ex-wife’s retirement interest. We reject this argument for two reasons.

First, the only order that could arguably be read as “imposing servitude” is the original judgment and decree of divorce, which gave each spouse a proportionate interest in the other’s retirement and imposed a duty on each side to protect that interest. However, as we said earlier, the lack of appeal from the divorce judgment and decree bars re-litigation of the content of the decree. As a result, we cannot consider whether the original order improperly imposed a duty on Collins to remain in the military.

As an additional point, the contempt order could not have imposed servitude on Collins, since he had already left the Air Force at the time of the order. Mr. Collins elected to leave the military and to forfeit his retirement — a choice he was obviously free to make. Having made that choice, however, he was obligated to reimburse his ex-spouse for the financial consequences of the decision. Therefore, instead of forcing Collins to remain in the military, the contempt order simply allowed him to reap the consequences of his voluntary act. We see nothing arbitrary, unreasonable, or unconscionable in such a result.

See, e.g., Zavakos v. Zavakos Enterprises, Inc. (1989), 63 Ohio App.3d 100, 106-107, 577 N.E.2d 1170, 1174-1175. In light of the preceding discussion, the single assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. Wolff, J., concurs. Grady, J., dissents. . We say “apparently,” because no transcript of the divorce hearing was filed. However, Mr. Collins said in the statement of facts in his brief that the trial court reserved jurisdiction at the divorce hearing. Mrs. Collins did not file a brief, and we accept the statement of facts filed by Mr. Collins.

See App.R. 18(C). In any event, the facts do not appear to be disputed.