[Cite as Kish v. Kish, 2012-Ohio-5430.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
MICHELLE KISH C.A. No. 12CA010185
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT KISH COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 09DU071143
DECISION AND JOURNAL ENTRY
Dated: November 26, 2012
WHITMORE, Presiding Judge.
{¶1} Plaintiff-Appellant, Michelle Kish aka Manthey-Kish (“Wife”), appeals from the
judgment of the Lorain County Court of Common Pleas, Domestic Relations Division. This
Court reverses.
I
{¶2} Wife and Defendant-Appellee, Robert Kish (“Husband”), had a child together in
October 2001. Because Wife and Husband were not married at the time, a support order went
into effect in Cuyahoga County on March 1, 2002 (“the Cuyahoga County Obligation”).
Husband then paid Wife approximately $543 per month in child support for their son, R.M.
Each month the Child Support Enforcement Agency (“CSEA”) deposited Husband’s support
obligation into a separate bank account belonging to Wife.
{¶3} On February 14, 2005, the parties married. Despite the marriage, Husband
continued to pay the Cuyahoga County Obligation. Testimony that later emerged in the 2
proceedings revealed that the parties wanted the Cuyahoga County Obligation to continue so as
to reap certain benefits. In particular, they believed it would affect the amount of child support
that Husband’s former wife could seek from Husband if she ever filed for it. Further, due to the
arrangement, Wife was able to take advantage of reduced day care rates owing to the fact that the
State subsidized day care costs based upon Wife’s single income. The Cuyahoga County
Obligation ended in July 2008 when Husband successfully moved to terminate it. The order
terminating Husband’s obligation was retroactive to the date of the parties’ marriage. Between
February 14, 2005 (the date of the marriage), and July 18, 2008 (the date of termination),
Husband had paid Wife $19,696.89 in child support.
{¶4} On September 16, 2009, Wife filed a complaint for divorce. The parties
eventually reached an agreement, which the court adopted as its judgment on September 23,
2010. Wife was named R.M.’s residential parent and legal custodian, and Husband was given
visitation. The court ordered Husband to pay child support for R.M. as well as $4,000 in
arrearages arising from Husband’s failure to comply with the court’s temporary orders for child
support. The divorce decree made no mention of the Cuyahoga County Obligation.
{¶5} On March 18, 2011, Husband filed a motion for relief from judgment pursuant to
Civ.R. 60(B). Husband’s motion notified the court of the Cuyahoga County Obligation and the
fact that Husband had paid $19,696.89 in child support during the course of the marriage due to
that obligation. Husband asked the court to (1) vacate its judgment to the extent it ordered
Husband to pay $4,000 in arrearages, and (2) adopt and incorporate the Cuyahoga County
Obligation into its judgment. The trial court held a hearing at which both Husband and Wife
testified. Subsequently, the court agreed that it was appropriate to incorporate the Cuyahoga
County Obligation into the parties’ divorce decree and granted Husband’s motion for relief. The 3
court vacated the portion of the divorce decree that ordered Husband to pay $4,000 in arrearages
and adopted the Cuyahoga County Obligation into the divorce decree to reflect a child support
credit of $19,696.89 to Husband.
{¶6} Wife now appeals from the trial court’s judgment and raises two assignments of
error for our review.
II
Assignment of Error Number One
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING APPELLEES’ MOTION FOR RELIEF FROM JUDGMENT.
{¶7} In her first assignment of error, Wife argues that the trial court erred by granting
Husband’s motion for relief from judgment. We agree.
{¶8} Initially, we note that Husband has not filed a brief on appeal. Therefore,
“[p]ursuant to App.R. 18(C), this Court may accept [Wife’s] statement of the facts and issues as
presented in [her] brief as correct and reverse the judgment of the trial court if [Wife’s] brief
reasonably appears to sustain such action.” Bank of New York v. Smith, 9th Dist. No. 21534,
2003-Ohio-4633, ¶ 2.
{¶9} “The decision to grant or deny a motion to vacate judgment pursuant to Civ.R.
60(B) lies in the sound discretion of the trial court and will not be disturbed absent an abuse of
discretion.” Buckingham, Doolittle & Burroughs, L.L.P. v. Healthcare Imaging Solutions L.L.C.,
9th Dist. No. 24699, 2010-Ohio-418, ¶ 8, citing Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994).
An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable
in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 4
{¶10} Civ.R. 60(B)(1) permits a party to seek relief from a final judgment on the basis
of “mistake, inadvertence, surprise or excusable neglect” while Civ.R. 60(B)(3) permits relief
based on “fraud * * *, misrepresentation, or other misconduct of an adverse party.”
To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time * * *.
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of
the syllabus. Because the test is conjunctive, a trial court only may grant a Civ.R. 60(B) motion
if the motion satisfies all three GTE Automatic requirements. Countrywide Home Loans
Servicing, L.P. v. Murphy-Kesling, 9th Dist. No. 25297, 2010-Ohio-6000, ¶ 10. We begin with
the second requirement of the GTE Automatic test.
{¶11} Consistent with the testimony presented at the hearing on Husband’s motion, the
trial court specifically found that both Husband and Wife were aware of the Cuyahoga County
Obligation and had felt “that it benefited them both to keep the order in effect despite getting
married.” The trial court also specifically found that “by not including mention of the order in
the Divorce Decree the parties committed fraud upon this Court.” Nevertheless, the court
afforded Husband relief from judgment.
{¶12} Husband actually sought relief from judgment under Civ.R. 60(B)(1), as he
argued that the parties’ failure to inform the court of the Cuyahoga County Obligation at the time
of their divorce amounted to mutual mistake or inadvertence. Rather than apply Civ.R. 60(B)(1),
the trial court found that Civ.R. 60(B)(3) applied on the basis that the issue was one of fraud.
Neither provision, however, entitled Husband to relief.
{¶13} Relief under Civ.R. 60(B)(1) is properly denied “if it is evident from all of the
facts and circumstances in the case that the conduct of the defendant, combined with the conduct 5
of those persons whose conduct is imputable to the defendant, exhibited a disregard for the
judicial system * * *.” Technical Servs. Co. v. Trinitech Intern., Inc., 9th Dist. No. 21648, 2004-
Ohio-965, ¶ 19, quoting Griffey v. Rajan, 33 Ohio St.3d 75 (1987), syllabus. The testimony
presented at the hearing on Husband’s motion for relief evinced that both Husband and Wife
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[Cite as Kish v. Kish, 2012-Ohio-5430.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
MICHELLE KISH C.A. No. 12CA010185
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT KISH COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 09DU071143
DECISION AND JOURNAL ENTRY
Dated: November 26, 2012
WHITMORE, Presiding Judge.
{¶1} Plaintiff-Appellant, Michelle Kish aka Manthey-Kish (“Wife”), appeals from the
judgment of the Lorain County Court of Common Pleas, Domestic Relations Division. This
Court reverses.
I
{¶2} Wife and Defendant-Appellee, Robert Kish (“Husband”), had a child together in
October 2001. Because Wife and Husband were not married at the time, a support order went
into effect in Cuyahoga County on March 1, 2002 (“the Cuyahoga County Obligation”).
Husband then paid Wife approximately $543 per month in child support for their son, R.M.
Each month the Child Support Enforcement Agency (“CSEA”) deposited Husband’s support
obligation into a separate bank account belonging to Wife.
{¶3} On February 14, 2005, the parties married. Despite the marriage, Husband
continued to pay the Cuyahoga County Obligation. Testimony that later emerged in the 2
proceedings revealed that the parties wanted the Cuyahoga County Obligation to continue so as
to reap certain benefits. In particular, they believed it would affect the amount of child support
that Husband’s former wife could seek from Husband if she ever filed for it. Further, due to the
arrangement, Wife was able to take advantage of reduced day care rates owing to the fact that the
State subsidized day care costs based upon Wife’s single income. The Cuyahoga County
Obligation ended in July 2008 when Husband successfully moved to terminate it. The order
terminating Husband’s obligation was retroactive to the date of the parties’ marriage. Between
February 14, 2005 (the date of the marriage), and July 18, 2008 (the date of termination),
Husband had paid Wife $19,696.89 in child support.
{¶4} On September 16, 2009, Wife filed a complaint for divorce. The parties
eventually reached an agreement, which the court adopted as its judgment on September 23,
2010. Wife was named R.M.’s residential parent and legal custodian, and Husband was given
visitation. The court ordered Husband to pay child support for R.M. as well as $4,000 in
arrearages arising from Husband’s failure to comply with the court’s temporary orders for child
support. The divorce decree made no mention of the Cuyahoga County Obligation.
{¶5} On March 18, 2011, Husband filed a motion for relief from judgment pursuant to
Civ.R. 60(B). Husband’s motion notified the court of the Cuyahoga County Obligation and the
fact that Husband had paid $19,696.89 in child support during the course of the marriage due to
that obligation. Husband asked the court to (1) vacate its judgment to the extent it ordered
Husband to pay $4,000 in arrearages, and (2) adopt and incorporate the Cuyahoga County
Obligation into its judgment. The trial court held a hearing at which both Husband and Wife
testified. Subsequently, the court agreed that it was appropriate to incorporate the Cuyahoga
County Obligation into the parties’ divorce decree and granted Husband’s motion for relief. The 3
court vacated the portion of the divorce decree that ordered Husband to pay $4,000 in arrearages
and adopted the Cuyahoga County Obligation into the divorce decree to reflect a child support
credit of $19,696.89 to Husband.
{¶6} Wife now appeals from the trial court’s judgment and raises two assignments of
error for our review.
II
Assignment of Error Number One
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING APPELLEES’ MOTION FOR RELIEF FROM JUDGMENT.
{¶7} In her first assignment of error, Wife argues that the trial court erred by granting
Husband’s motion for relief from judgment. We agree.
{¶8} Initially, we note that Husband has not filed a brief on appeal. Therefore,
“[p]ursuant to App.R. 18(C), this Court may accept [Wife’s] statement of the facts and issues as
presented in [her] brief as correct and reverse the judgment of the trial court if [Wife’s] brief
reasonably appears to sustain such action.” Bank of New York v. Smith, 9th Dist. No. 21534,
2003-Ohio-4633, ¶ 2.
{¶9} “The decision to grant or deny a motion to vacate judgment pursuant to Civ.R.
60(B) lies in the sound discretion of the trial court and will not be disturbed absent an abuse of
discretion.” Buckingham, Doolittle & Burroughs, L.L.P. v. Healthcare Imaging Solutions L.L.C.,
9th Dist. No. 24699, 2010-Ohio-418, ¶ 8, citing Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994).
An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable
in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 4
{¶10} Civ.R. 60(B)(1) permits a party to seek relief from a final judgment on the basis
of “mistake, inadvertence, surprise or excusable neglect” while Civ.R. 60(B)(3) permits relief
based on “fraud * * *, misrepresentation, or other misconduct of an adverse party.”
To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time * * *.
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of
the syllabus. Because the test is conjunctive, a trial court only may grant a Civ.R. 60(B) motion
if the motion satisfies all three GTE Automatic requirements. Countrywide Home Loans
Servicing, L.P. v. Murphy-Kesling, 9th Dist. No. 25297, 2010-Ohio-6000, ¶ 10. We begin with
the second requirement of the GTE Automatic test.
{¶11} Consistent with the testimony presented at the hearing on Husband’s motion, the
trial court specifically found that both Husband and Wife were aware of the Cuyahoga County
Obligation and had felt “that it benefited them both to keep the order in effect despite getting
married.” The trial court also specifically found that “by not including mention of the order in
the Divorce Decree the parties committed fraud upon this Court.” Nevertheless, the court
afforded Husband relief from judgment.
{¶12} Husband actually sought relief from judgment under Civ.R. 60(B)(1), as he
argued that the parties’ failure to inform the court of the Cuyahoga County Obligation at the time
of their divorce amounted to mutual mistake or inadvertence. Rather than apply Civ.R. 60(B)(1),
the trial court found that Civ.R. 60(B)(3) applied on the basis that the issue was one of fraud.
Neither provision, however, entitled Husband to relief.
{¶13} Relief under Civ.R. 60(B)(1) is properly denied “if it is evident from all of the
facts and circumstances in the case that the conduct of the defendant, combined with the conduct 5
of those persons whose conduct is imputable to the defendant, exhibited a disregard for the
judicial system * * *.” Technical Servs. Co. v. Trinitech Intern., Inc., 9th Dist. No. 21648, 2004-
Ohio-965, ¶ 19, quoting Griffey v. Rajan, 33 Ohio St.3d 75 (1987), syllabus. The testimony
presented at the hearing on Husband’s motion for relief evinced that both Husband and Wife
engaged in wrongdoing, and the court specifically found that they both “committed fraud upon
[the] [c]ourt.” Because Husband exhibited a disregard for the judicial system through his
conduct, he was not entitled to relief under Civ.R. 60(B)(1). Further, the court erred by applying
Civ.R. 60(B)(3). That provision only applies in instances of “fraud * * *, misrepresentation or
other misconduct of the adverse party.” (Emphasis added.) Civ.R. 60(B)(3). The fraud here
was perpetrated by both parties, not Wife alone. As such, Civ.R. 60(B)(3) was inapplicable.
Husband failed to show that he was “entitled to relief under one of the grounds stated in Civ.R.
60(B)(1) through (5) * * *.” GTE Automatic Elec., Inc., 47 Ohio St.2d at paragraph two of the
syllabus.
{¶14} “Relief under Civ. R. 60(B) is an equitable remedy * * *.” Great Northern Sav.
v. Miller, 9th Dist. No. 12911, 1987 WL 13641, *2 (June 17, 1987). It is a well-established
principle of law that “wrongdoers ought not benefit from their own wrongdoing.” State ex rel.
Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, ¶35,
quoting Williams v. Williams, 10th Dist. No. 92AP-438, 1992 WL 246020, *2 (Sept. 24, 1992).
Here, Husband engaged in wrongdoing to reap a potential benefit and then later asked the court
to afford him relief on the basis of his wrongdoing. Conduct such as Husband’s must not “be
condoned or rewarded by the grant of equitable relief pursuant to Civ.R. 60(B).” Assaf v.
Moneskey, 9th Dist. No. 13581, 1988 WL 131511, *3 (Nov. 30, 1988). Husband failed to show 6
that he was entitled to Civ.R. 60(B) relief. Consequently, the trial court abused its discretion by
granting Husband’s motion. Wife’s first assignment of error is sustained.
Assignment of Error Number Two
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FINDING APPELLEE ENTITLED TO AN OFFSET AND CREDIT OF CHILD SUPPORT.
{¶15} In her second assignment of error, Wife argues that the trial court erred by
concluding that Husband was entitled to a credit for the child support he paid to Wife as a result
of the Cuyahoga County Obligation. Based on our resolution of Wife’s first assignment of error,
Wife’s second assignment of error is moot and we decline to address it. See App.R. 12(A)(1)(c).
III
{¶16} Wife’s first assignment of error is sustained, and her second assignment of error is
moot. The judgment of the Lorain County Court of Common Pleas, Domestic Relations
Division, is reversed.
Judgment reversed.
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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document 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 is 7
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 Appellee.
BETH WHITMORE FOR THE COURT
MOORE, J. CARR, J. CONCUR.
APPEARANCES:
JAMES A. DEERY and DANIEL J. GIBBONS, Attorneys at Law, for Appellant.
JAMES V. BARILLA, Attorney at Law, for Appellee.