Klik v. Moyer

2014 Ohio 3236

• Court: Ohio Court of Appeals
• Decided: July 24, 2014
• Docket: 100576
• Status: Published

Opinion

[Cite as Klik v. Moyer, 2014-Ohio-3236.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100576

TINA M. KLIK (F.K.A. MOYER) PLAINTIFF-APPELLANT

vs.

SAMUEL L. MOYER DEFENDANT-APPELLEE

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-89-195543

BEFORE: S. Gallagher, J., Jones, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: July 24, 2014 ATTORNEYS FOR APPELLANT

Jonathan A. Rich Robert M. Fertel Christa G. Heckman Zashin & Rich Co., L.P.A. 55 Public Square, 4th Floor Cleveland, OH 44113

ATTORNEY FOR APPELLEE

Thomas A. McCormack The Superior Building Suite 1915 815 Superior Avenue Cleveland, OH 44114 SEAN C. GALLAGHER, J.:

{¶1} Plaintiff-appellant Tina Klik, f.k.a. Moyer (“Klik”), appeals the trial court’s

decision involving several of Klik’s post-dispositive motions filed in June 2011. For the

following reasons, we affirm.

{¶2} Klik and defendant-appellee Samuel Moyer were divorced on June 15, 1993,

pursuant to the terms of a settlement agreement, incorporated into the final decree. As

made pertinent by the current dispute, Klik was specifically awarded Moyer’s interest in

the “LTV Steel Pension,” further identified in the settlement agreement as the “LTV Steel

Pension of $3,954.13.” No other pension was mentioned, although Moyer owned two

other pension plans at the time of divorce. In the final divorce decree, neither party was

ordered to file a qualified domestic relations order (“QDRO”) effectuating the transfer of

Moyer’s interest in the LTV Steel Pension plan to Klik. The trial court, in the original

1993 entry, merely noted that a QDRO was issued with the final judgment entry, an

inaccurate statement. 1 The settlement agreement indicated that a QDRO would “be

prepared by agreement of the parties and incorporated into this final decree,” which also

proved to be an inaccurate statement.

{¶3} Moyer owned two pensions at the time of the parties’ divorce, formally

known as the “Pension Plan of Republic Steel Corporation, dated and effective as of

March 1, 1950,” and the “LTV Steel-USWA Pension Plan.” It is undisputed that in

1993, the LTV Steel-USWA Pension was a defined contribution plan with a value of

1 The current trial court judge was not the judge at the time of the 1993 divorce. $3,954.13. Moyer contributed to the USWA plan after the 1993 divorce. Sometime in

2002, Moyer retired and began drawing benefits from his pension, by then called LTV

Steel Hourly Pension Plan, which was an amalgamation of the LTV Steel-USWA and

Republic Steel plans. Klik claims that in 2009, she became aware of Moyer’s 2002

retirement and began taking steps to secure her right to the pension she believed was

awarded to her in the divorce.

{¶4} In June 2011, Klik filed a number of motions with the trial court, including a

motion to show cause for noncompliance with a judgment entry, motion for attorney fees,

motion to reduce to judgment retirement benefits improperly received, motion to issue a

QDRO, motion to recharacterize pension benefits pursuant to decree of divorce, motion to

vacate order of the court, and motion to quash.2 The magistrate held a single hearing,

addressing each and every one of Klik’s motions.

{¶5} The trial court, on September 26, 2013, largely adopted the magistrate’s

ultimate decision subject only to minor modifications. The trial court denied Klik’s

motions captioned to show cause, for attorney fees, to vacate, and to quash. Klik’s

remaining motions were granted in part. The trial court (1) awarded Klik an interest in

Moyer’s current LTV Steel Hourly Pension Plan representing the equivalent of the

2 As much as we would prefer to elaborate on the contents of those motions, the record filed on appeal did not include the docketed motions. This can be added to the list of materials missing from the record, some of which this court sought from the clerk’s office as necessary to reviewing the assigned errors, including the magistrate’s decision and the 1993 divorce decree. We must caution the litigants, especially in the context of a case spanning two decades, that they must ensure the record contains the documents necessary to substantiate the assigned errors. USWA plan for which Klik failed to effectuate the transfer as required in 1993; (2)

granted a judgment in Klik’s favor for the amount of retirement benefits Moyer collected

from the portion of the pension reflecting the USWA plan with the amount to be

determined; and (3) ordered the parties to once again prepare a QDRO pursuant to the

terms of the final divorce decree.

{¶6} Klik immediately appealed, advancing several arguments. Klik does not

identify which motions are the subject of the current appeal, although the crux of Klik’s

first six assignments of error centers on the trial court’s denying her motion for relief

from the 1993 final divorce decree.3 In her first six assignments of error, Klik claims the

trial court erred by modifying the 1993 divorce decree to award Moyer his interest in the

Republic Steel pension, by determining that the parties intended to provide Klik the LTV

Steel USWA plan only, by not vacating the 1993 divorce decree, and by failing to

consider the equities involved in awarding Moyer his interest in the Republic Steel

pension plan, including an interest in the certain stock held by the parties at the time of

the divorce. In short, each of those arguments is premised on granting Klik relief from

the 1993 judgment awarding her an interest only in the LTV Steel pension plan. We find

no merit to Klik’s arguments.

3 In consideration of the fact that Klik’s motions are post-dispositive ones, the trial court’s decision denying several of her motions is the only decision ripe for our review. The parties have yet to provide the court with the QDRO implementing the trial court’s 1993 award of the USWA pension, nor have they determined the amount of benefits received for the purposes of awarding Klik a monetary judgment. Thompson v. Thompson, 10th Dist. Franklin No. 09AP-722, 2010-Ohio-2730, ¶ 4. {¶7} Completely lost in the arguments of the case was the procedural posture

leading to the June 15, 1993 judgment entry. As expressly mentioned in that order, the

parties settled their dispute prior to trial. The trial court approved the settlement as being

“fair, just and equitable,” and therefore, the court ordered the settlement into execution.

In ordering the settlement into execution, the trial court awarded Moyer’s interest in the

LTV Steel Pension to Klik. The parties agreed in the settlement agreement that Klik

would be awarded Moyer’s interest in the “LTV Steel Pension of $3,954.13.” According

to the undisputed evidence, the only LTV Steel Pension plan with a value of $3,954.13 in

existence at the time of divorce was the USWA plan.

{¶8} Klik now claims an entitlement to Moyer’s interest in the Republic Steel

pension plan because, according to her, the settlement agreement should have been

considered separately from the trial court’s 1993 final judgment entry. According to

Klik, “everyone” considered the Republic Steel plan as if it were the LTV Steel Pension

so that the final judgment incorrectly referenced the wrong pension plan, but she was

nonetheless entitled to both the USWA and Republic Steel pension plans based on the

separate settlement agreement and final divorce decree. A prerequisite to her argument,

however, is seeking relief from the 1993 divorce decree. The 1993 judgment expressly

references the LTV Steel pension, and Klik agreed to receive only Moyer’s interest in the

LTV Steel pension of $3,954.13. The only recognizable mechanism to award Klik a

judgment in the Republic Steel pension plan would be to grant her relief from that 1993

final judgment, and ultimately her settlement agreement. {¶9} Civ.R. 60(B) provides in pertinent part:

[T]he court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence * * *; (3) fraud * * *, misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.

In order to prevail on a motion for relief from judgment pursuant to Civ.R. 60(B), the

movant must demonstrate the following: (1) a meritorious defense or claim to present if

relief is granted; (2) entitlement to relief under one of the grounds stated in Civ.R.

60(B)(1) through (5); and (3) the timeliness of the motion. GTE Automatic Elec., Inc. v.

ARC Industries, 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976). If any of the

above requirements is not met, the Civ.R. 60(B) motion must be overruled by the trial

court. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).

We review a trial court’s denial of a Civ.R. 60(B) motion for relief from judgment under

an abuse of discretion standard. See id. To constitute an abuse of discretion, the trial

court’s ruling must be “unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶10} Of course, a Civ.R. 60(B) motion for relief from judgment presumes the

presence of a final judgment. Busa v. Lasorella, 8th Dist. Cuyahoga No. 67980, 1995

Ohio App. LEXIS 1803, *9 (May 4, 1995). Klik claims the 1993 divorce decree was not final because the trial court failed to divide the parties’ interest in all of Moyer’s pensions,

specifically omitting any reference to the Republic Steel pension plan. A trial court,

however, need not always divide a pension between the parties if the value of the

pensions is considered in otherwise equitably dividing the parties’ assets. Grove v.

Grove, 7th Dist. Jefferson No. 07-JE-29, 2008-Ohio-1174, citing Hoyt v. Hoyt, 53 Ohio

St.3d 177, 182, 559 N.E.2d 1292 (1990).

{¶11} Further, the lynchpin in determining whether a final order exists is whether

there are undivided marital assets in actual dispute after the issuance of the judgment in

question. Bencin v. Bencin, 9th Dist. Medina Nos. 10CA0097-M and 11CA0113-M,

2012-Ohio-4197, ¶ 4. “‘[I]n order to constitute a final appealable order the content of

the judgment must be definite enough to be susceptible to further enforcement and

provide sufficient information to enable the parties to understand the outcome of the

case.’” Id., quoting Harkai v. Scherba Industries, Inc., 136 Ohio App.3d 211, 216, 736

N.E.2d 101 (9th Dist.2000); Bykova v. McBrayer, 8th Dist. Cuyahoga No. 100172,

2013-Ohio-5745, ¶ 3.

{¶12} As this court previously recognized, a divorce decree that failed to account

for a vested pension plan accumulated during the marriage is contrary to law, if the record

demonstrates the trial court’s omission in considering the pension before dividing the

marital assets. Manning v. Jusak, 8th Dist. Cuyahoga No. 99459, 2013-Ohio-4194,

citing Bisker v. Bisker, 69 Ohio St.3d 608, 635 N.E.2d 308 (1994). However, the party

complaining of the distributive award may not circumvent the doctrines of res judicata or invited error. Id. at ¶ 7-9; see also Cornell v. Rudolph, 3d Dist. Allen No. 1-10-89,

2011-Ohio-4322, ¶ 16.

{¶13} In Manning, the couple divorced pursuant to the terms of a settlement

agreement that omitted any reference to the husband’s pension plan. Id. at ¶ 1. Five

years after the divorce, the wife unsuccessfully filed a motion to issue a QDRO dividing

the pension plan between the parties. Id. In the ensuing appeal, this court agreed with

the trial court’s decision, in pertinent part, relying on the invited error doctrine — because

of the fact that the parties submitted a settlement agreement purporting to resolve their

dispute to the court. Id. at ¶ 11. “The invited error doctrine states that ‘a party is not

entitled to take advantage of an error that he himself invited or induced.’” Id. at ¶ 9,

quoting State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d

517; State v. Smith, 148 Ohio App.3d 274, 2002-Ohio-3114, 772 N.E.2d 1225, ¶ 30 (8th

Dist.).

{¶14} In this case, the parties agreed to settle their dispute and provided the court a

written settlement agreement incorporated into the final divorce decree. The parties’

silence in the settlement agreement as to Moyer’s Republic Steel pension is dispositive.

Even if the trial court erred in omitting any reference to Moyer’s Republic Steel pension

in the final decree, Klik induced that error by submitting the settlement agreement to the

trial court as the final resolution of the parties’ dispute. Manning.

{¶15} Further, Moyer owned the Republic Steel and LTV pensions. Absent an

order awarding Klik any portion of the Republic Steel pension, and a court order implementing that award, Moyer retained possession of the pension and any rights

derived therefrom.4 Thus, the 1993 divorce decree provided sufficient information for

the parties to understand the outcome of the case, namely, in the absence of awarding

Klik any of Moyer’s pensions, he retained possession of those interests. Therefore, the

1993 judgment awarded Klik an interest in the LTV Steel pension of $3,954.13, and

through silence, Moyer retained possession of the Republic Steel pension plan. The fact

that the final order was silent as to one titled asset does not create any ambiguity. See

Bencin, 9th Dist. Medina Nos. 10CA0097-M and 11CA0113-M, 2012-Ohio-4197 (no

final order because the trial court left unresolved the issue of the disputed validity of a

promissory note between the parties and several pieces of untitled personal property in a

storage unit). The June 15, 1993 order was final, and therefore, Klik’s only recourse was

to seek relief from that final judgment in her quest to receive benefits from the Republic

Steel pension plan.

{¶16} The trial court denied Klik’s motion for relief from judgment, filed pursuant

to the catchall provision of Civ.R. 60(B)(5), as being untimely. Klik responded, claiming

she was first informed of Moyer’s 2002 retirement in 2009. We find no merit to Klik’s

4 In this respect, we summarily overrule Klik’s seventh assignment of error in which she claims the trial court erred by denying her motion for contempt. Klik essentially claims Moyer had an obligation to voluntarily surrender the yet-to-be-determined amount of his monthly pension income representing the value of the USWA awarded to Klik almost a decade before Moyer retired. Klik fails to cite any authority as required by App.R. 16(A)(7) authorizing a trial court to hold a party in contempt for behavior not in conflict with a court order, although otherwise morally ambiguous. argument, best described as a red herring. It is irrelevant when she became aware of

Moyer’s actual retirement.

{¶17} As of June 15, 1993, Klik was twice informed of the need to take action in

order to effectuate the transfer of her newly awarded interest in Moyer’s pension plan. In

fact, in the settlement agreement, Klik expressly acknowledged that the LTV Steel

pension of $3,954.13 would be awarded pursuant to the QDRO. Had she timely

prepared the QDRO as required by the terms of the final decree and her settlement

agreement, her belief of a mistake in designating the correct pension would have

surfaced, however untenable that argument is in light of the fact that Klik agreed to

accept the LTV Steel pension of $3,954.13 in the settlement agreement. As a rule, 18

years of conscious inaction does not constitute a reasonable time within which to file a

motion for relief from a final judgment. See Countrywide Home Loans Servicing, L.P. v.

Ferguson, 9th Dist. Summit No. 25510, 2011-Ohio-3565, ¶ 10 (ten months of inaction is

an unreasonable delay in filing for relief from a judgment or order). Klik’s first six

assignment of errors are overruled. The trial court did not abuse its discretion in denying

Klik relief from the 1993 final judgment awarding her an interest in the LTV Steel

Pension of $3,954.13.

{¶18} The judgment of the trial court is affirmed.

It is ordered that appellee recover of appellant 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 common

pleas court, 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.

SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and KENNETH A. ROCCO, J., CONCUR