[Cite as Ouellette v. Ouellette, 2020-Ohio-705.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
Darlene R. Ouellette Court of Appeals No. E-19-017
Appellant Trial Court No. 2016-DR-077
v.
Johnnie E. Ouellette DECISION AND JUDGMENT
Appellee Decided: February 28, 2020
*****
Danielle C. Kulik, for appellant.
Kyle R. Wright and Zachary E. Dusza, for appellee.
ZMUDA, P.J.
{¶ 1} This matter is before the court on appeal from the judgment of the Erie
County Court of Common Pleas, Domestic Relations Division, granting defendant- appellee’s motion for relief from judgment and entering a new order concerning property
distribution, based on a finding of mutual mistake. For the reasons that follow, we
reverse and remand for further proceedings.
I. Facts and Procedural Background
{¶ 2} Appellant, Darlene Ouellette and appellee, Johnnie Ouellette were married
in 1994, and have three children, born August 19, 1995, September 21, 1996, and
September 10, 1999. On June 24, 2016, appellant filed a complaint for divorce.
Appellee filed a counterclaim for divorce with his answer. The matter proceeded through
discovery, with the trial court addressing various discovery disputes. Two months before
the scheduled trial date, the parties engaged in a settlement conference at the offices of
appellant’s attorney.
{¶ 3} After a successful settlement conference, the parties entered into a stipulated
judgment entry and divorce decree, resolving all matters in controversy. The trial court
placed the agreement on the record, at hearing on April 18, 2017, with the divorce decree
journalized April 20, 2017. As agreed, appellant received the marital home, and appellee
received $110,000 from appellant’s OPERS account, ordered as follows:
4.06(N). One Hundred and Ten Thousand Dollars ($110,000.00)
from [appellant’s] O.P.E.R.S. account, which [appellant] shall cooperate
with [appellee], and [appellee] shall cause to be transferred to a drop
account in his name by a Division of Property Order (D.O.P.O.), within
ninety (90) days or be forever barred, with costs, expenses, and taxes
allocated to [appellee].
2. Appellant’s attorney explained the language stricken from the entry to the trial
court, at hearing, as follows:
There was a provision in here, which has been crossed out, and the parties
understand that and are in agreement to that, that it was going to be within
90 days, but we understand this is not a quick process –
{¶ 4} After entry of the divorce decree, the parties learned that appellee could not
receive any distribution from appellant’s OPERS account until she actually retired. The
disbursement to appellee, moreover, would be in periodic payments after appellant
retired.1
{¶ 5} Upon learning that a lump sum from appellant’s OPERS account was
impossible, counsel for appellee suggested payment of the lump sum from appellant’s
deferred compensation account, which he believed contained sufficient funds, but
appellant refused. When appellant indicated no present intention to transfer any funds to
appellee, he filed a motion for relief from judgment, pursuant to Civ.R. 60(B)(1), arguing
mutual mistake.
{¶ 6} Appellee requested either an award against appellant’s deferred
compensation account in the amount of $110,000 in order to remedy the mistake, or an
1 Appellant is in her mid-40s with 23 years of service, and the earliest she will be eligible for retirement is at 55 years old. Appellee is much older, by more than a decade, and would be around 70 years old by the time appellant reached her retirement eligibility. At hearing on appellee’s motion for relief from judgment, appellee argued this age difference as supporting the lump sum agreement, as appellee contemplated not surviving until appellant’s retirement. 3. order vacating the entire property settlement so the parties might negotiate a new
settlement, arguing the lump sum payment was a material term of the settlement
agreement. Appellant opposed the motion, arguing any award against her deferred
compensation account would be a modification to the property division without proper
reservation of jurisdiction. She also argued lack of mutual mistake, and that immediate
payment of the $110,000 was never a term of the parties’ agreement.
{¶ 7} The trial court held an evidentiary hearing on the motion, and counsel for
appellee and the parties testified regarding their understanding of the terms of the
property settlement. Appellant and appellee each testified that they understood appellee
would receive a present lump sum payment of $110,000, mistakenly believing that
OPERS would distribute the funds from appellant’s OPERS account. Appellant testified
regarding a lump sum payment, stating:
Well, I guess I’m learning today that he can’t have a lump sum
award. Prior to that, I was under the impression that it was going to go into
a drop account and that he would get it out of there and that was - - that was
my understanding is that the 110,000 would go into a drop account and then
he would draw money from there. If he drew it all or he drew it monthly,
you know, I wasn’t privy to that. I just knew that he was going to get
110,000 out of my retirement account.
She also acknowledged that the purpose of consulting with an expert was “to see if he
could get a lump sum of my retirement.”
4. {¶ 8} After considering the testimony and existing authority, the trial court found
either mutual mistake or unilateral mistake, preventing formation of a valid agreement
between the parties regarding property division. The trial court granted the motion for
relief, but rather than vacate the entire property award or order payment from appellant’s
deferred compensation fund, as requested, the trial court vacated only the portion of the
decree that ordered distribution from appellant’s OPERS account. Additionally, the trial
court entered an order that appellant pay appellee the lump sum of $110,000, within six
months, without specifying the source of the funds. Appellant now appeals that
judgment, asserting the following assignments of error:
1. THE COURT ERRED IN FINDING IT HAD JURISDICTION
TO MODIFY THE PROPERTY DIVISION
2. THE COURT ERRED GRANTING THE MOTION FOR CIV.R.
60(B) RELIEF.
3. THE REMEDY THE COURT ORDERED WAS CONTRARY
TO LAW AND THE TIMING OF DISBURSEMENT WAS AN ABUSE
OF DISCRETION.
II. Analysis
{¶ 9} The trial court granted appellee relief from judgment, as provided under
Civ.R. 60(B)(1), based on mutual mistake. In appealing the judgment, appellant argues
the trial court was without jurisdiction to modify the property division, erred in granting
5. Civ.R. 60(B) relief, and ordered a remedy that was both contrary to law and an abuse of
discretion.2 We address each assignment of error in turn.
A. Jurisdiction to Modify
{¶ 10} In her first assignment of error, appellant challenges the trial court’s
jurisdiction in modifying the agreement pursuant to Civ.R. 60(B). “Civ.R. 60(B) is a
mechanism whereby a party or parties may obtain relief by motion from a judgment or
order.” In re Whitman, 81 Ohio St.3d 239, 242, 690 N.E.2d 535 (1998). The Rule
strikes a balance between the finality of judgments and a perfect result “by vesting the
courts with broad, but not unlimited authority to set aside judgments.” Knapp v. Knapp,
24 Ohio St.3d 141, 145, 493 N.E.2d 1343 (1986).
{¶ 11} Appellant first argues that the trial court failed to retain jurisdiction to
modify the property distribution, and Civ.R. 60(B) does not apply where the trial court
does not specifically reserve jurisdiction in its judgment. Appellant’s argument frames
the issue as statute supplanting application of Civ.R. 60(B) in its entirety. In support,
appellant references the change of circumstances and reservation of jurisdiction
requirements under R.C. 3105.18, as addressed in Morris v. Morris, 148 Ohio St.3d 138,
2016-Ohio-5002, 69 N.E.3d 664.
2 Appellant also argues, for the first time on appeal, that the trial court improperly relied on parol evidence in granting relief from judgment. Because appellant did not raise an objection before the trial court, we deem this issue waived on appeal, and decline to address it. See e.g. Charlesgate Commons Cond. Assn v. W. Reserve Group, 6th Dist. Lucas No.L-14-1039, 2014-Ohio-4342, ¶ 11 (where appellant failed to object to admissibility of evidence in ruling on summary judgment, that objection is waived on appeal). 6. {¶ 12} In Morris, the Ohio Supreme Court considered whether the spousal support
statute limited relief under Civ.R. 60(B). Prior to the enactment of R.C. 3105.18(E), a
party could seek to vacate an order for periodic spousal support under Civ.R. 60(B) under
the common law. However, R.C. 3105.18(E) now provides the sole authority to vacate or
modify periodic spousal support, with the requirement that the decree contain a specific
reservation of jurisdiction. Morris at ¶ 56. The statute provides, in pertinent part:
[T]he court that enters the decree * * * does not have jurisdiction to modify
the amount or terms * * * unless the court determines that the
circumstances of either party have changed and unless * * * the decree or a
separation agreement * * * contains a provision specifically authorizing the
court to modify the amount or terms of alimony or spousal support.” R.C.
3105.18(E)(1)-(2).
As noted in Morris, “[i]n R.C. 3105.18(E), the General Assembly has established the
limits of a trial court’s jurisdiction to modify an award of spousal support.” Id at ¶ 57.
{¶ 13} The dispute in this case, however, does not concern spousal support, but
instead concerns the division of marital property, governed by R.C. 3105.171. This
section of the divorce statutes does not expressly require a reservation of jurisdiction, but
instead limits modification as follows:
(I) A division or disbursement of property or a distributive award
made under this section is not subject to future modification by the court
except upon the express written consent or agreement to the modification
by both spouses.
7. At the time the trial court entered judgment, the Ohio Supreme Court had not yet
addressed the interplay between R.C. 3105.171(I) and Civ.R. 60(B). Since that time,
however, the Court decided Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136
N.E.3d 460.3
{¶ 14} In Walsh, the parties intended, as a term of the divorce decree, that the wife
receive direct payment from the government, as her portion of her husband’s military
pension. However, the rules governing military pensions required a marriage lasting at
least 10 years before the military could issue direct payment to the service-member’s
spouse. Walsh at ¶ 8, citing 10 U.S.C. 1408(d)(2). The parties married in 1994 and
separated after six years, but more than 13 years passed before the divorce filing. Walsh
at ¶ 2. Based on the time the couple lived together as husband and wife, the decree
recited a 6-year marriage, as permitted under R.C. 3105.171(A)(2)(b). Id. at ¶ 3.
{¶ 15} More than a year passed, and the wife learned that direct payments were
not possible based on the recitation of a 6-year marriage in the decree. She filed a motion
for relief from the judgment pursuant to Civ.R. 60(B)(4) and (5), and the trial court
modified the decree to recite a 10-year marriage term over the husband’s objection. Id. at
¶ 12. The husband appealed the trial court’s modification, and the judgment was
3 As the parties had fully briefed the matter prior to the Ohio Supreme Court’s decision in Walsh, we granted them leave to file supplemental briefs to address this new authority. Appellant filed her supplemental brief on January 21, 2020, and appellee filed his supplemental brief on January 29, 2020. 8. affirmed in a split decision, with one judge conferring in judgment only, and the third
judge dissenting. Id. at ¶ 13 - 15. The Supreme Court accepted the husband’s
discretionary appeal. Id. at ¶ 15.
{¶ 16} In reversing that judgment, the Ohio Supreme Court noted the following:
The change to the decree ordered by the domestic-relations court is
best understood as a modification to a property division. The provisions of
the decree at issue divided the pension by specifying the dates of the
marriage. By changing the marriage length, the trial court modified the
terms of the divorce decree with respect to a division of property. The
parties did not both consent to that modification to the property division, so
by the plain language of R.C. 3105.171(I), the court had no authority to
order the change. Walsh at ¶ 20.
{¶ 17} Acknowledging the decision in Morris, the Court recognized that the
statutory provision limiting modification “is a rule of substantive law” and the procedural
rule, Civ.R. 60(B), “‘cannot abridge, enlarge, or modify any substantive right’ created by
statute.” Walsh at ¶ 22, quoting Morris at ¶ 30, quoting Ohio Constitution, Article IV,
Section 5(B). “Though Morris dealt with spousal support rather than a property
distribution, the same principle apples: Civ.R. 60(B) cannot be used to alter the statutory
requirements for the modification of a decree. Because R.C. 3105.171(I) does not permit
modification absent the consent of both parties, Civ.R. 60(B) cannot provide a
workaround.” Walsh at ¶ 23.
9. {¶ 18} Clearly, in this case, the trial court modified the consent decree without the
consent of both parties. Similar to the court in Walsh, the trial court changed the consent
decree in order to alter the manner of payment to appellee, striking the impossible lump
sum from OPERS in favor of a cash payment by appellant to appellee, within 6 months.
While acknowledging the lack of consent, appellee argues that R.C. 3105.89 provides an
exception to the consent requirement under R.C. 3105.171(I).
{¶ 19} R.C. 3105.89 provides, “Notwithstanding division (I) of section 3105.171
of the Revised Code: (A) The court shall retain jurisdiction to modify, supervise, or
enforce the implementation of an order described in section 3105.81 of the Revised
Code.” R.C. 3105.89(A). Appellee argues that, because the trial court’s modification
pertained to implementing the distribution from appellant’s OPERS account, R.C.
3105.89(A) applied, and the trial court acted within its authority to enforce the intent of
the parties.
{¶ 20} We find this argument unpersuasive. R.C. 3105.89 provides a trial court
with “continuing jurisdiction over division of property orders involving public retirement
programs.” Enty v. Enty, 8th Dist. Cuyahoga No. 104167, 2017-Ohio-4177, ¶ 9, quoting
Hines v. Hines, 3d Dist. Marion No. 9-10-15, 2010-Ohio-4807, ¶ 11 (Emphasis added.).
An order under R.C. 3105.81 governs a “benefit or lump sum payment * * * from a
public retirement program to an alternate payee,” requiring a specific form created under
R.C. 3105.90 by the state retirement system.
{¶ 21} Continuing jurisdiction over pension disbursements under R.C. 3105.89 is
separate from the property division order under R.C. 3105.171. See e.g. Walsh at ¶ 27
10. (“Nothing in the provision that gave the court continuing jurisdiction over the QDRO
authorized it to alter the final decree of divorce.”). Significantly, the trial court in this
case struck the OPERS payment from the consent decree entirely, and substituted a non-
pension, cash payment in its place. As in Walsh, while the trial court attempted to reach
the intended result of the property division order – in this case a lump sum payment to
appellee – the payment ordered by the trial court modified the consent decree, with no
facts that permit a finding that the trial court exercised continuing jurisdiction over a
pension plan.
{¶ 22} The trial court’s modification, in this case, did not fall within the exception
under R.C. 3105.89, and the parties clearly did not consent as required by R.C.
3105.171(I). As Civ.R. 60(B) may not be used to bypass the consent requirement of the
statute, we find appellant’s first assignment of error well-taken.
B. Civ.R. 60(B) Determination
{¶ 23} While we agree with appellant that the trial court lacked jurisdiction to
modify the consent decree, we must also consider appellant’s argument that the trial court
lacked jurisdiction to consider a Civ.R. 60(B)(1) motion at all. Appellant argues that a
trial court in a domestic relations action could never consider a timely Civ.R. 60(B)(1)
motion without a reservation of jurisdiction in the decree.
{¶ 24} There is nothing within Civ.R. 60(B) that precludes a motion for relief
from judgment in a domestic relations proceeding. See Civ.R. 60(B); Whitman, 81 Ohio
St.3d at 242, 690 N.E.2d 535. In instances in which material mistake occurred, the “lack
of mutuality undermines the integrity” of the proceeding, “and may constitute sufficient
11. grounds to set aside the decree under Civ.R. 60(B).” Whitman at 241, citing In re
Murphy, 10 Ohio App.3d 134, 461 N.E.2d 910 (1st Dist.1983) (additional citations
omitted.)
{¶ 25} In Ohio, divorce is “a creature of state statute.” Barth v. Barth, 113 Ohio
St.3d 27, 2007-Ohio-973, 862 N.E.2d 496, ¶ 9, citing Coleman v. Coleman, 32 Ohio
St.2d 155, 159, 291 N.E.2d 530 (1972); see also Soyk v. Soyk, 45 Ohio App.2d 319, 321,
345 N.E.2d 461 (9th Dist.1975) (“Actions for divorce * * * are purely statutory in
nature.”). As stated in Walsh, a substantive statutory provision controls over a procedural
rule, and where the statute requires consent to modify the property order, a party may not
bypass that provision with a Civ.R. 60(B) motion. The Court in Walsh, however, did not
preclude the use of Civ.R. 60(B) in domestic relations cases, nor address other types of
relief available under the Rule.
{¶ 26} The statute applicable to property division, R.C. 3105.171, contains no
provision requiring reservation of jurisdiction to consider Civ.R. 60(B)(1) relief.
{¶ 27} In Morris, the Supreme Court considered the limitations to Civ.R. 60(B)
relief for spousal support payments, considering the requirements under R.C. 3105.18.
Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664 at ¶ 2. The Court
specifically addressed whether vacating the order for spousal support constituted a
modification, noting:
{¶ 28} In the realm of domestic-relations law, ‘modification order’ has a
particular meaning:
12. [a] post-divorce order that changes the terms of child support,
custody, visitation, or alimony. A modification order may be agreed
to by the parties or may be ordered by the court. The party wishing
to modify an existing order must show a material change in
circumstances from the time when the order sought to be modified
was entered. Morris at ¶ 53, quoting Black’s Law Dictionary,1157
(10th Ed.2014).
{¶ 29} Considering the prospective, ongoing nature of spousal support, child
support, custody and visitation, an order vacating future payments or future rights to
custody or visitation unquestionably modifies such orders. See Morris at ¶ 53 (as to
spousal support, “any action taken to change the nature, amount, terms of payment, and
duration of spousal support, including vacating the award” is a modification under R.C.
3105.18(E)). In contrast, an order for division of property, under R.C. 3105.171,
concerns the present, one-time allocation of marital property to achieve an equitable
division.
{¶ 30} R.C. 3105.171 is silent regarding a reservation of jurisdiction, with an
exception provided in a separate section for future modification for an order related to a
pension. R.C. 3105.89. Moreover, in Whitman, the Supreme Court specifically addressed
motions brought under Civ.R. 60(B)(1), (2) and (3), as “an appropriate procedural vehicle
for requesting relief,” including vacation of the decree, as a limitation that “provides
13. permanency to any [decree] that has remained unchallenged for one year.” Whitman, 81
Ohio St.3d at 245, 690 N.E.2d 535. While the Whitman decision did reference a
reservation of jurisdiction, the statute has since been amended.
{¶ 31} The Supreme Court in Walsh noted the Whitman decision and its reliance
on a subsequently amended statute as follows:
In Whitman, we held that a court, pursuant to Civ.R. 60(B)(1), (2),
and (3), could make postdecree modifications to a property division when
the parties had incorporated a provision in the decree allowing for future
modifications by court order. Whitman was decided prior to the amendment
of R.C. 3105.171(I) in 2010 by Am.Sub.H.B. No. 238 that added its current
final phrase regarding “express written consent or agreement to the
modification by both spouses.” (Emphasis added.) Because the issue is not
before us, we express no opinion today as to whether a reservation of
jurisdiction would be a sufficient basis to allow a court to modify a
property division via Civ.R. 60(B)(1), (2), or (3) under the current statutory
scheme. Walsh, 157 Ohio St.2d 322, 2019-Ohio-3723, 136 N.E.3d 460 at ¶
28, fn 3.
{¶ 32} The Court in Walsh noted, without deciding, the issue of whether
“reservation of jurisdiction” language satisfied the consent requirement of R.C.
3105.171(I), permitting modification. Our case presents a wholly separate issue, whether
a court may grant relief other than modification, including vacation of the property order
or the decree. We find no prohibition, within the statute, to a court’s vacation of the
14. entire property order or the decree, as appropriate under Civ.R. 60(B)(1), (2), or (3).
Appellee requested the trial court vacate the property division order in its entirety as
alternative relief in his motion, so that the parties might return to the bargaining table or
proceed to trial on the issue of property division.
{¶ 33} Construing the language of R.C. 3105.171, we find no support for
appellant’s argument that the trial court lacked jurisdiction to consider relief other than
modification to the existing property order, barring a Civ.R. 60(B)(1) motion in even the
most egregious cases. In other words, appellant argues that a trial court will never have
authority to set aside – upon a timely motion – an agreed entry that resulted from mutual
mistake regarding a material term, unless all parties consent. Where, as in this case, a
party demonstrates facts that challenge the very formation of a consent decree, a motion
for relief under Civ.R. 60(B)(1) is appropriate. Whitman, 81 Ohio St.3d at 241, 690
N.E.2d 535 (without mutuality, “there was no agreement upon which [the decree] could
have been based.”). We therefore conclude that the trial court did have jurisdiction to
consider appellee’s Civ.R. 60(B)(1) motion, even if the remedy of modification was
improperly ordered.
{¶ 34} In order to prevail on a motion for relief, “[t]he moving party must
demonstrate that he or she (1) has a meritorious defense or claim to present if the relief is
granted, (2) is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)
through (5), and (3) has made the motion within a reasonable time unless the motion is
based upon Civ.R. 60(B)(1), (2), or (3), in which case it must be made not more than one
year after the judgment.” Whitman at 242, citing GTE Automatic Elec., Inc. v. ARC
15. Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the
syllabus. We review a determination under Civ.R. 60(B) for an abuse of discretion. Id.,
citing Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987).
{¶ 35} An “abuse of discretion” requires a finding of more than an error of
judgment, and implies the trial court acted unreasonably, arbitrarily, or unconscionably.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Appellant
challenges the grant of relief as an abuse of discretion considering all three prongs of the
GTE test, arguing no meritorious defense, no mistake, and an untimely motion.
{¶ 36} Appellant first argues that the trial court erred in finding a meritorious
defense in support of appellee’s motion for relief from judgment. The trial court found
that the parties had intended to reach an equal division of marital property, which
included the immediate, lump sum payment to appellee. Such a claim, where supported
by the record, is sufficient to demonstrate a meritorious defense or claim. See e.g.
Souders v. Souders, 6th Dist. Sandusky No. S-98-017, 1998 WL 735336 (Oct. 23, 1998)
(where parties entered into consent agreement, 60(B) relief appropriate where judgment
resulted in inequitable division of property and wife argued fraud, duress, or undue
influence).
{¶ 37} The record demonstrates the parties contemplated a present payment of
$110,000 to appellee, as a material term in the agreement for equal division of marital
property. As to the 90-day language, excised from the consent entry, appellant’s counsel
indicated “that it was going to be within 90 days, but we understand this is not a quick
process.” Appellant, moreover, acknowledged at hearing that she was to make a payment
16. to appellee as part of the property settlement. Considering the record, the trial court’s
finding was not unreasonable, arbitrary, or unconscionable, and appellant has failed to
demonstrate any abuse of discretion.
{¶ 38} Appellant next argues that there was no mistake, because the consent
judgment contained no language of an immediate, lump sum payment, and trial counsel’s
failure to include such “essential terms” may not serve as the basis for appellee’s claim of
mutual mistake. While the consent entry originally recited payment within 90 days, with
that language crossed out, the trial court placed the agreement on the record at the time it
accepted the consent decree, with counsel for each party testifying as to the terms. The
trial court also heard the testimony of the parties and appellee’s counsel at the evidence
hearing on appellee’s motion seeking relief.
{¶ 39} As to the consent decree, appellant’s counsel explained, on the record, the
elimination of the 90-day language, indicating the process to release the funds could take
longer. At the hearing on appellee’s motion for relief from judgment, both parties
acknowledged that they contemplated a lump sum payment as a term of the property
settlement. Furthermore, while appellant received contrary advice prior to the settlement
conference regarding disbursements from her OPERS account, she either relied on the
expert retained for the settlement conference, or knew that appellee relied on that expert
in agreeing to the settlement, and chose to remain silent and reap the benefit from his
misunderstanding of the facts. Based on these facts, we find no abuse of discretion
regarding the trial court’s finding of mistake.
17. {¶ 40} Finally, appellant argues that appellee failed to file a timely motion. The
record clearly demonstrates that appellee filed his motion within the one-year limitation
of Civ.R.60(B)(1). To be timely, however, the motion must also be filed within a
reasonable time, considering the facts of the case. McBroom v. McBroom, 6th Dist.
Lucas No. L-03-1027, 2003-Ohio-5198, ¶ 33-34.
{¶ 41} Here, appellant argues that nine months is an unreasonable amount of time
for appellee to neglect his rights, because the information pertaining to the OPERS
account was readily available on the date the parties entered the settlement and filed the
consent judgment. This argument, however, requires a finding that there was no mistake
regarding the possibility of obtaining a lump sum payment from appellant’s OPERS
account.
{¶ 42} The trial court determined either mutual or unilateral mistake existed at the
time the parties entered into the consent decree, entitling appellee to relief from the
judgment as it pertained to the property distribution. Based on the record, there appears
no undue delay between the time appellee discovered the impossibility of a lump sum
disbursement and the time appellee filed his motion seeking relief from judgment. Based
on the facts, we find no abuse of discretion in the trial court’s determination of a timely
motion. We therefore find appellant’s second assignment of error not well-taken.
C. Disbursement Ordered
{¶ 43} In her third assignment of error, appellant challenges the timing of
disbursement ordered as remedy by the trial court based on modification to the property
18. distribution. Because we determined the trial court lacked authority to modify the order
without consent of the parties, we must necessarily find the modified terms improper.
Accordingly, appellant’s third assignment of error is well-taken.
III. Conclusion
{¶ 44} For the forgoing reasons, we affirm, in part, the judgment of the Erie
County Court of Common Pleas as to appellee’s entitlement to relief from judgment
pursuant to Civ.R. 60(B). The trial court did not err in finding a material mistake,
undermining the integrity of the parties’ agreement as to division of property under R.C.
3105.171. However, because the trial court had no authority to modify the existing
property order without consent, we reverse, in part, and remand the matter for further
proceedings pursuant to Civ.R. 60(B)(1), and direct the trial court to consider a remedy
permitted under R.C. 3105.171. The parties shall split the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed, in part and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE
19. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
20.