[Cite as Sites v. Sites, 2023-Ohio-1278.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
LISA SITES, :
Plaintiff-Appellee, : Case No. 22CA2
v. :
PAUL SITES, : DECISION & JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Brigham M. Anderson, Ironton, Ohio, for Appellant.
Robert C. Delawder, Ironton, Ohio, for Appellee. _______________________________________________________________ CIVIL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED:4-12-23 ABELE, J.
{¶1} This is an appeal from a Lawrence County Common Pleas
Court judgment that overruled a Civ.R. 60(B) motion to vacate a
dissolution decree. Paul Sites, defendant below and appellant
herein, assigns three errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT DETERMINED THAT A MISTAKE OR EXCUSABLE NEGLECT WAS NOT MADE WHEN ATTORNEY LAMBERT INFORMED APPELLANT THAT APPELLEE WAS ENTITLED TO HALF OF APPELLANT’S FULL MILITARY RETIREMENT PURSUANT TO CIV.R. 60(B)(1).”
SECOND ASSIGNMENT OF ERROR: 2 LAWRENCE, 22CA2
“THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT DETERMINED THAT THERE WAS NO FRAUD OR MISREPRESENTATION BY ATTORNEY LAMBERT WHEN HE INFORMED APPELLANT THAT APPELLEE WAS ENTITLED TO HALF OF HIS MILITARY RETIREMENT PURSUANT TO CIV.R. 60(B)(5).”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT DID NOT HOLD AN EVIDENTIARY HEARING TO DETERMINE THE PARTY’S INTENT ONCE IT DETERMINED THAT QDRO WAS A LEGAL IMPOSSIBILITY TO APPELLANT’S MILITARY RETIREMENT.”
{¶2} On November 2, 2002, the parties married for the third
time. On July 30, 2020 the parties filed their petition for
dissolution and separation agreement that, inter alia, addressed
appellant’s military retirement:
The wife will receive a monthly sum of $1445.00 per month from military retirement benefits. This shall begin August 2, [2]020 payable on or before the 10th of each month. A Qualified Domestic Relations Order (QDRO) will issue. The husband will pay the benefits directly to the wife until the month they are withheld from his retirement.
Each party will receive and maintain all rights to any other retirement benefits, annuities, 401K or similar benefits or work-related benefits he/she has at the time of this Agreement except as may be otherwise set forth herein.
{¶3} At the parties’ September 25, 2020 hearing, appellee
appeared with counsel and appellant appeared pro se. When asked 3 LAWRENCE, 22CA2
if he wished to retain counsel, appellant stated, “Um, there’s
some things in the paperwork that’s not agreed upon now.” When
asked, “[o]therwise the separation agreement provides that Lisa
would receive $1,445.00 from your month[ly] from your military
retirement benefits, correct Mr. Sites,” appellant replied,
“Yes.” Appellant also agreed monthly payments would begin
August 2, 2020, and he agreed with appellee’s attorney’s
summation that “[t]here will be no spousal support, as the wife
is receiving her vehicle paid for with marital money, a property
settlement, and retirement benefits.” In addition, appellant
agreed that the separation agreement appears to be fair and
equitable and he wanted the trial court to adopt the agreement.
Consequently, the court approved the separation agreement and
granted the parties a dissolution of marriage.
{¶4} On December 2, 2020, appellant filed a Civ.R.
60(B)(1),(3) and (5) motion to vacate the trial court’s
September 25, 2020 judgment. In support of his motion,
appellant argued that the judgment is based either on mistake or
excusable neglect because, appellant alleged, appellee’s counsel
incorrectly informed appellant that appellee is entitled to one-
half of appellant’s full (1989 to 2011) military retirement
benefit. Appellant contends that, even though his military
retirement benefit began to accrue in 1989, appellee should only 4 LAWRENCE, 22CA2
be entitled to one-half the value of the retirement benefit from
the date of their 2002 marriage to his 2011 retirement, not the
date that he began military service.
{¶5} At the hearing to consider the Civ.R. 60(B) motion,
several witnesses testified. Appellee testified that (1) the
parties first married from 1992 to 1994, again from 1995 to
1998, and their third and final marriage began November 2002 and
ended September 2020, and (2) appellee waived all spousal
support because the parties agreed that appellee would receive
one-half of appellant’s military retirement benefit. Further,
appellee agreed not to pursue any division of appellant’s
teacher’s pension because he had only taught for the past 10 or
11 years - “I just felt like that’s what we were together
through was the military career. We made an agreement that I
would take care of the kids and everything, he would do his
military career.”
{¶6} Appellee’s trial counsel also testified at the hearing
and recalled appellant’s statement in a July office meeting that
he would be “willing to give her $2,500 a month for five years.
Then if she remarried it would go to half or at the end of five
years it would go to half. And then she indicated she was
willing to accept that if it did not decrease during the
lifetime.” Counsel testified that appellant did not wish to pay 5 LAWRENCE, 22CA2
spousal support, but regarding appellant’s military retirement
benefit:
I don’t think there was ever a discussion that she was entitled to half of that. That was more of a way of coming up with her, giving her the money that he had actually originally said he was willing to give her. The easiest way to do that was to give her money out of his retirement and then that way we didn’t get into spousal support issues, uh made it easier for her to get her money every month, and I think even he agreed that that way he didn’t have the money, it would come out of retirement, and then he didn’t have to worry about it.
Appellee’s counsel testified that he told the parties that “any
retirement accumulated during the marriage she would be entitled
to one half,” that he also believed appellee would be entitled
to spousal support based on the inequities in the parties’
incomes, and the parties’ agreed upon amount constituted their
agreement irrespective of various retirement funds. Counsel
also testified that on at least two occasions, he changed the
agreement at appellant’s direction. Once, appellant came to
counsel’s office with proposed changes that counsel recommended
to appellee she reject, but appellee nevertheless accepted those
changes. Appellant also wanted the $2,500 monthly payments to
be reduced by half if appellee remarried “because he knew she
would be remarried.” Counsel further testified that appellant
did not express or indicate any confusion about the agreement’s
terms and, although two months elapsed between the agreement’s 6 LAWRENCE, 22CA2
execution and the final hearing, appellant did not indicate he
wanted to change any of the agreement’s terms. At the hearing,
appellee’s counsel also read appellant’s text message to
appellee that states “we will split the savings and checking,
you get $2500.00 a month for three years and then it goes to
$1445.00 a month for [rest] of life, I pay insurance, I
survivor’s benefits.”
{¶7} Appellant acknowledged that he agreed to the terms of
the separation agreement, but maintained that his agreement
stemmed from his misunderstanding of “the law” and that he
subsequently learned that he had been “mislead [sic.].”
Appellant testified that he and appellee married three separate
times, most recently in November 2002, and he twice met with
appellee’s counsel and, when asked if he understood that counsel
represented only appellee, he replied, “Yes and no.” In the
original separation agreement, appellant agreed to pay $1,000
per month for three years if appellee babysat appellant’s
grandson three days per week, but appellant also wanted the
agreement to continue only until appellee remarried. However,
when the attorney said, “she wants three years of this money no
matter what,” appellant asked, “what’s the minimum I have to
give her on my retirement because I said this is, that’s not
what we agreed upon.” Appellant further stated that appellee’s 7 LAWRENCE, 22CA2
counsel told him appellee is entitled to 50% of his retirement,
“no matter what,” that the $1,445 is exactly half his military
retirement, that he began military service in April 1989 and
retired in November 2011, but the marital portion of his
retirement should only accrue from 2002 to 2011. Also,
appellant contacted an accounting service and learned that under
the military formula appellee would not be entitled to one-half
of his entire retirement benefit, but instead only the marital
portion. Appellant stated that (1) he told appellee he would
give her $1,000 per month until she either remarried or quit
babysitting their grandson, which they estimated to be three
years, and (2) he did not understand the difference between a
spousal support award or a property award. Appellant further
testified that he receives $2,800 per month for his service-
connected disability, $2,880 per month from his military
retirement, and $2,180 every two weeks from his $76,000 annual
salary for his current teaching position. Appellant also
confirmed that (1) the dissolution proceedings did not consider
his potential retirement from his current teaching position, (2)
he agreed to pay $1,000 per month for 36 months as a property
division, and (3) if appellant sold the real estate, he would
pay appellee $10,000 plus any balance due on the 36 payments of
$1,000. 8 LAWRENCE, 22CA2
{¶8} On April 6, 2021, after consideration of the evidence
adduced at the hearing, the magistrate recommended the trial
court deny appellant’s motion for relief from judgment. The
magistrate pointed out that at the dissolution hearing the trial
court:
engaged in extended dialogue with Mr. Sites concerning his right to seek his own counsel and that the Court would grant a continuance if he wished to do that. Further, there was extended discussion concerning the agreement and the fact that he was in agreement with those terms. Mr. Sites had suggested changes to the Separation Agreement on several occasions, and most recently had requested and received a change to the Separation Agreement at the time of the hearing.
The magistrate further determined that (1) appellant confirmed
to the court he agreed “with all terms of the final draft of the
Separation Agreement,” (2) appellee’s attorney testified that he
told appellant that appellee “would be entitled to one-half of
the marital portion of the military retirement,” and (3)
appellant arrived at “a number” he was willing to pay, and “it
was easier to use the one military retirement account rather
than moving funds from two or three accounts” to achieve the
desired and agreed upon goal. Also, despite the parties’
18-year marriage, and the fact that appellant earned
significantly more than appellee, no spousal support had been
awarded nor any division of appellant’s 11-year teacher’s 9 LAWRENCE, 22CA2
retirement fund. Additionally, R.C. 3105.171 limits any
modification of a property division award to circumstances in
which both parties consent to the modification and, in this
instance, both parties did not consent. The magistrate further
observed that a mistake does not encompass an error in judgment
or remorse and that Civ.R. 60(B)(5) should be used sparingly and
“generally reserved to vacate a judgment upon extraordinary and
unusual circumstances,” and neither of those circumstances exist
in the present case.
{¶9} Appellant objected to the magistrate’s decision but,
after review, the trial court overruled the objections because
the court had engaged in “extended dialogue” with appellant
concerning his right to seek counsel and offered to continue the
matter if he wished to consult counsel. Further, “there was an
extended discussion concerning the agreement and the fact that
he was in agreement with those terms,” that appellant suggested
changes to the agreement on several occasions, and even during
the hearing he requested, and received, a change to the
agreement. The court noted that appellee’s attorney testified
he told appellant
Mrs. Sites would be entitled to one-half of the marital portion of the military retirement. Mr. Lambert further testified that Mr. Sites had arrived at ‘a number’ that he was willing to pay. Mr. Lambert testified it was easier to use the one military retirement account rather 10 LAWRENCE, 22CA2
than moving funds from two or three accounts in achieving the total desired.
The trial court further observed that, despite the parties’
18-year marriage and the fact that appellant earned
“significantly more” than appellee during their marriage, the
agreement did not provide any spousal support or division of
appellant’s teacher’s retirement fund. Consequently, the trial
court denied appellant’s motion for relief from judgment. This
appeal followed.
I.
{¶10} In his first assignment of error, appellant asserts
that the trial court erred when it denied his request for Civ.R.
60(B)(1) relief. In particular, appellant argues that a mistake
occurred when, he contends, appellee’s attorney incorrectly
informed appellant that appellee would be entitled to one-half
of appellant’s full military retirement benefit, rather than
one-half of the marital portion of the benefit.
{¶11} Under Civ.R. 60(B), a trial court may relieve a party
from a final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new 11 LAWRENCE, 22CA2
trial under Rule 59(B);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), 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.
{¶12} To prevail on a motion 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 in Civ.R. 60(B)(1)-
(5), and (3) the motion is made within a reasonable time. GTE
Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d
146, 150, 351 N.E.2d 113 (1976). A court must overrule the
motion if the moving party fails to establish any of these
requirements. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17,
20, 520 N.E.2d 564 (1988).
{¶13} “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 12 LAWRENCE, 22CA2
unlimited authority to set aside judgments.” Knapp v. Knapp, 24
Ohio St.3d 141, 145, 493 N.E.2d 1353 (1986); Oulette v. Oulette,
2020-Ohio-705, 152 N.E.3d 528, ¶ 10 (6th Dist.).
{¶14} An appellate court’s standard of review of a trial
court’s Civ.R. 60(B) decision is generally the abuse of
discretion standard. Elliot v. Smead Mfg. Co., 4th Dist.
Hocking Nos. 08CA13 & 08AP13, 2009-Ohio-3754, ¶ 7, State ex rel.
Richard v. Seidner, 76 Ohio St.3d 149, 151, 666 N.E.2d 1134
(1996), Rose Chevrolet, 36 Ohio St.3d at 20. The term “abuse of
discretion” implies that a court’s attitude is unreasonable,
arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983), AAAA Ents., Inc. v.
River Place Community Urban Redevelopment Corp., 50 Ohio St.3d
157, 161, 553 N.E.2d 597 (1990).
{¶15} The dispute in the case sub judice involves the
division of marital property. We recognize that R.C. 3105.171
provides:
(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.
Recently, in Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723,
136 N.E.3d 460, the Supreme Court of Ohio addressed the 13 LAWRENCE, 22CA2
relationship between R.C. 3105.171(I) and Civ.R. 60(B). In
Walsh, a former spouse requested relief from judgment and sought
to modify the portion of the divorce decree that divided the
other spouse’s military pension benefits. The trial court
granted the motion and the court of appeals affirmed, but the
Supreme Court of Ohio reversed and held that the trial court
lacked the authority to modify the decree. Id. at ¶ 1.
Although the court cited the military’s 10/10 rule (10 U.S.C.
1408(d)(2) - military will issue pension payments directly to
former spouse if marriage existed for at least ten years and
member spouse provided at least ten years of military service),
the court pointed out this rule does not prevent an order to a
military service member to personally pay a former spouse a
portion of the member’s monthly retirement payments if the
marriage lasted less than ten years. Id. at ¶ 8, citing
Gilbert, A Family Law Practitioner’s Road Map to the Uniformed
Services Former Spouses Protection Act, 32 Santa Clara L.Rev.
61, 69 (1992). Citing Civ.R. 60(B)’s requirements to modify a
final judgment, the court also pointed out that the divorce and
dissolution statutes contain restrictions that limit a court’s
authority to modify a final decree. Id. at ¶ 19, citing R.C.
3105.171(I), R.C. 3105.18(E), R.C. 3105.63(A) and (C). Id. at ¶
27. The Walsh court, citing Morris v. Morris, 148 Ohio St.3d 14 LAWRENCE, 22CA2
138, 2016-Ohio-5002, 69 N.E.3d 664, held that parties cannot use
Civ.R. 60(B) to circumvent statutory restrictions on the
modification of a decree. Id. at ¶ 22. In the case sub judice,
we again point out that the trial court emphasized that appellee
did not consent to any modification of the parties’ final
decree.
{¶16} Moreover, under Civ.R. 60(B) “[m]istake,” refers to
the mistakes of a party or a party’s agent. Doyle v. St. Clair,
9th Dist. Lorain No. 16CA010967, 2017-Ohio-5477, ¶ 14.
Typically, courts grant relief based on mistake when the mistake
is a mutual mistake, shared by both parties, regarding a
material fact. Quezada v. Vizcaino, 8th Dist. Cuyahoga No.
111124, 2022-Ohio-2683, ¶ 12, citing Smith v. Smith, 8th Dist.
Cuyahoga No. 83275, 2004-Ohio-5589, ¶ 17. Ohio courts have held
that “relief from [a divorce] decree will not be granted when
the ‘alleged’ mistake was merely a unilateral mistake on the
part of one party or her counsel.” In Irwin v. Irwin, 11th
Dist. Lake No. 95-L-102, 1996 WL 586762 (Sept. 27, 1996), the
parties agreed to divide their “defined benefit plan,” but later
disputed the meaning of the term “defined benefit plan.” The
Ninth District determined that wife and her counsel had been
“fully aware of the existence of the profit sharing plans when
the settlement agreement [which was incorporated into the 15 LAWRENCE, 22CA2
divorce decree] was negotiated.” Id. Concluding that wife
failed to “ensure that the [divorce] agreement was consistent
with her intent,” the court held that appellant’s carelessness
caused the mistake, and, because the mistake was unilateral,
wife should not be entitled to Civ.R. 60(B)(1) relief.
{¶17} The Tenth District also recently addressed Civ.R.
60(B)(1) with respect to pro se litigants:
“ ‘[c]ourts should not generally use Civ.R. 60(B)(1) to relieve pro se litigants who are careless or unfamiliar with the legal system.’ ” Gamble Hartshorn, LLC v. Lee, 10th Dist. No. 17AP-35, 108 N.E.3d 728, 2018-Ohio-980, ¶ 26, quoting Dayton Power & Light v. Holdren, 4th Dist. No. 07CA21, 2008-Ohio-5121, ¶ 12. We have also noted “ ‘[a] party who is informed of court action against him and fails to seek legal assistance does so at his risk and such conduct cannot be said to constitute “excusable neglect” under Civ.R. 60(B)(1) or (5) unless a compelling reason is presented, like a serious illness.’ ” Gamble Hartshorn, LLC at ¶ 29, quoting Yuhanick v. Cooper, 7th Dist. No. 96-CO-45, 1998 WL 811355, 1998 Ohio App. LEXIS 5527 (Nov. 16, 1998).
Myers v. Ohio Department of Rehabilitation and Correction, 10th Dist. Franklin No. 21AP-106, 2022-Ohio-1412, ¶ 25.
{¶18} In the case sub judice, appellant argues that he,
acting pro se, relied on appellee’s attorney’s representation
that, according to his testimony, included incorrect
information. However, our review of the record leads us to
conclude that, at most, appellant’s alleged reliance either
constitutes a unilateral mistake, or, more likely, not a mistake 16 LAWRENCE, 22CA2
at all. Appellant maintained at the hearing that dividing his
military retirement benefit formed a portion of the parties’
goal to achieve a fair and equitable division of their property
and, as part of that plan, the parties agreed to use appellant’s
military retirement proceeds to provide funds to achieve that
specific monthly dollar amount that appellant agreed to pay
appellee. Importantly, neither party contemplated that an equal
division of the military retirement benefit should constitute a
50 percent division of all income, assets and retirement benefit
funds, but rather to serve merely as a conduit to help to
provide funds for the parties’ total agreed amount.
{¶19} Appellant argues that in Quesinberry v. Quesinberry,
2022-Ohio-635, 185 N.E.3d 1163 (2d Dist.), former wife filed a
motion for relief from judgment and alleged that the parties had
no meeting of the minds. Husband reported $149,000 in income,
wife reported no income, their agreement awarded wife $85,000
from husband’s retirement account, but provided no spousal
support. Later, wife filed a Civ.R. 60(B) motion to vacate the
decree and argued that husband failed to disclose marital
assets. The trial court refused to vacate the dissolution
decree and noted that during the hearing, wife acknowledged she
read, understood and was satisfied with the agreement’s terms.
Id. at ¶ 13. On appeal, the court concluded that the agreement 17 LAWRENCE, 22CA2
was the product of a mutual mistake about the availability of
child support and spousal support and, absent any reason to
question her husband’s veracity, wife should not be accountable
for her failure to consult with an attorney. Id. at ¶ 43.
{¶20} Appellant contends that like Quesinberry, a mistake
occurred in the case at bar. Appellee points out, however, that
unlike Quesinberry’s intentional misrepresentations, the case at
bar does not involve an allegation that one party intentionally
misled the other. Here, although we recognize that the evidence
conflicts, appellant alleges that appellee’s trial counsel
provided inaccurate information regarding the division of
retirement benefits.1 Although we recognize that Quesinberry
attempted to distinguish Walsh and pointed out that their case
“did not involve an attempt to use Civ.R. 60(B) to vacate an
entire divorce or dissolution decree,” the entire decree is
“subject to being vacated” under Civ.R. 60(B)(1) when the
parties’ mutual mistake regarding wife's entitlement to spousal
and child support “means that there was no meeting of the minds
and no valid contract on which to base the dissolution decree.”
Id. at ¶ 44.
1 Appellee also observes that during oral argument, appellant, for the first time, sought to set aside the entire separation agreement. However, that is not the nature of the relief appellant sought in the trial court. 18 LAWRENCE, 22CA2
{¶21} Although we concede that the events in the case at bar
are somewhat difficult to decipher, what is clear is that the
parties began their negotiations with a certain monthly payment
in mind and their consideration of the military retirement
benefit merely served as a component part to help to facilitate
the makeup of their agreed upon total monthly payment.
Furthermore, we point out that the trial court informed
appellant that he could obtain a continuance to seek the advice
of counsel, but he declined to do so. The court also asked
appellant if he understood the agreement and if he agreed to its
terms, and he affirmatively stated he did. Also, when the court
asked appellant if he believed the separation agreement (an
agreement as the trial court pointed out, failed to include any
provision for spousal support even in light of the parties’ 18-
year marriage and disparity of income) to be fair and equitable
and if he wanted the court to approve the agreement, appellant
answered affirmatively. The appellee also points out that, at
the parties’ first meeting, appellant himself informed
appellee’s counsel of the parties’ agreement and asked counsel
to prepare the paperwork. Further, appellant dictated to
counsel the amount of money he wanted to pay to appellee each
month, rather than engage in a specific, detailed discussion
about appellant’s various retirement benefits or any other 19 LAWRENCE, 22CA2
sources of income. Moreover, appellant had ample opportunity to
review the parties’ agreement and we recognize that he sought,
and received, several modifications to the agreement. Also,
after appellant notified the court that the military would not
withhold money from his retirement benefit for appellee, the
parties discussed other direct payment methods to appellee and
the creation of a bank account in order to limit any future
contact with each other. Obviously, the fact that the military
would not withhold money for appellee’s benefit was known, and
fully discussed, prior to the issuance of the final decree.
{¶22} After our review in the case sub judice, we agree with
the trial court’s conclusion that appellant’s actions more
accurately represent a change of heart rather than a mutual
mistake, or a mistake at all. As the trial court emphasized, a
review of the hearing transcript reveals that appellant knew the
military would not withhold funds. Further, the parties did not
intend to apply a mechanical formula to arrive at a property
division, but instead agreed on a number that each party
accepted. As the trial court stated, “mistake does not
encompass an error in judgment or remorse subsequent to the
execution and acceptance of the agreement by the Court.”
Consequently, we conclude that the trial court’s determination
in this matter does not constitute an abuse of the court’s 20 LAWRENCE, 22CA2
discretion.
{¶23} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶24} In his second assignment of error, appellant asserts
that the trial court abused its discretion when it determined
that appellee’s trial counsel committed no fraud or
misrepresentation. Civ.R. 60(B)(5), known as the “catch all”
provision, provides that a trial court may relieve a party from
a final judgment, order, or proceeding for any other reason
justifying relief from the judgment. A party is entitled to
relief from judgment under the “catchall” provision if he or she
can demonstrate any other reason not listed in Civ.R. 60(B)(1)-
(4) justifies relief. Civ.R. 60(B)(5). However, parties may
not use this provision as a substitute for other more specific
provisions of Civ.R. 60(B)(1)-(4). Caruso-Ciresi, Inc. v.
Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983).
{¶25} Appellant argues that in Dunford v. Dunford, 4th Dist.
Gallia No. 13CA7, 2014-Ohio-617, the parties, married 30 years,
entered into a separation agreement when husband had the benefit
of counsel, but wife did not. Although the dissolution decree
did not reserve jurisdiction to modify the spousal support 21 LAWRENCE, 22CA2
award, five years later wife moved to modify the support
provisions and claimed that when she signed the agreement, her
husband knew she experienced “extreme emotional problems and
mental difficulties,” and she should have received an award of
permanent alimony. The trial court denied the motion, but on
appeal wife argued she should receive Civ.R. 60(B)(5) relief
because she established fraud. This court noted that, in light
of wife’s father’s testimony that wife had a seventh-grade
education, suffered from comprehension problems, and undisputed
testimony that husband’s former attorney threatened wife with
jail if she refused to sign the dissolution papers, wife
arguably established a meritorious claim or defense under Civ.R.
60(B)(5). In the end, however, because wife did not file her
motion within a reasonable time, this court affirmed the trial
court’s judgment. Id. at ¶ 21.
{¶26} After our review, we do not believe a significant
parallel exists between Dunford and the facts in the case at
bar. In Dunford, the petitioner, with a seventh-grade education
and cognitive issues, also received threats of jail from
husband’s attorney if she did not agree to and sign the
documents. In the case at bar, however, we find no evidence
concerning appellant’s lack of education, cognitive
difficulties, or evidence of threats or fraud. Although 22 LAWRENCE, 22CA2
appellant argues that appellee’s attorney told him appellee is
entitled to one-half his retirement funds, as more thoroughly
discussed under appellant’s first assignment of error the fact
remains that appellant proposed a suitable and agreed upon
monthly payment amount and appellant’s military retirement
benefit formed a component part to assist the parties to achieve
their total monthly payment goal.
{¶27} Appellant also contends that Borzy v. Borzy, 9th Dist.
Medina No. 3185-M, 2001-Ohio-1871 establishes that trial courts
have the authority to clarify and construe an original property
division provision to effectuate its judgment under R.C.
3105.171: “Where there is confusion over the interpretation to
be given to a particular clause, the trial court * * * has the
power to hear the matter, clarify the confusion, and resolve the
dispute.” Here, appellant argues that the appellant’s military
retirement provision is “extremely ambiguous” because it does
not break down the distribution of appellant’s retirement
payments to appellee as to how it arrived at $1,445 per month.
However, we once again point out that the evidence adduced at
the motion hearing, as the trial court aptly noted, reveals that
appellant fully participated, and even dictated, specific terms
of the separation agreement. Appellant asked for, and received,
several modifications, then he ultimately signed the agreement 23 LAWRENCE, 22CA2
and testified in open court that he understood and agreed with
the agreement’s terms, even though he understood at that time
that the military would not withhold any amount of his military
pension for the appellee’s benefit. Here, the evidence shows
that appellant sought agreement to the total amount to which he
now complains, and that appellee’s attorney drafted the
agreement to arrive at the monthly payment that appellant
sought. Consequently, after our review we agree with the trial
court’s conclusion to deny the Civ.R. 60(B)(5) request to vacate
the judgment. The facts in this case do not constitute
“extraordinary and unusual circumstances.”
{¶28} Accordingly, because we conclude that the trial court
did not abuse its discretion when it denied appellant’s motion,
we overrule appellant’s second assignment of error.
III.
{¶29} In his final assignment of error, appellant asserts
that the trial court abused its discretion when it did not hold
an evidentiary hearing to determine the parties’ intent after
the parties and the court became aware that a QDRO is a legal
impossibility for appellant’s military retirement. In the case
at bar, the parties’ separation agreement provides “A Qualified
Domestic Relations Order (QDRO) will issue,” but during the
final hearing appellant informed the court that he learned the 24 LAWRENCE, 22CA2
military would not implement a QDRO under their specific
circumstances. Nevertheless, appellant agreed to proceed with
the final hearing and obtain a dissolution of marriage.
{¶30} Appellant argues that in Franchini v. Franchini, 11th
Dist. Geauga No. 2002-G-2467, 2003-Ohio-6233, although the court
initially ordered a QDRO, the parties later discovered that
instead a division of property order (DPO) would be required.
The court concluded that the trial court should have conducted
an evidentiary hearing to resolve factual disputes outlined in
appellant’s objection and the trial court’s approval of signing
an entry to reflect a settlement agreement when it appeared that
material issues of fact remained unsettled constitutes an abuse
of discretion. Id. at ¶ 19. Appellee points out, however, that
Franchini involved a mutual mistake, whereas in the case sub
judice although the separation agreement called for a QDRO, both
parties knew at the time a QDRO was impossible and, in fact, at
the final hearing appellant so informed the court. At that
point, the parties discussed on the record the fact that the
military would not honor a QDRO under their specific
circumstances and further discussed alternative payment methods.
Moreover, the parties discussed the creation of a separate bank
account to help to facilitate the monthly payments.
{¶31} We believe that Walsh, supra, 157 Ohio St.3d 322, 25 LAWRENCE, 22CA2
2019-Ohio-3723, citing Morris v. Morris, 148 Ohio St.3d 138,
2016-Ohio-5002, 69 N.E.3d 664, is applicable here and restates
that Civ.R. 60(B) is not available to circumvent the statutory
restriction to modify a decree. Id. at ¶ 22. The court wrote:
a contrary rule would ‘relieve a litigant from the consequences of his voluntary, deliberate choice’ to enter into an agreement. Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353 (1986), paragraph two of the syllabus; see Morris at ¶ 38-41. Further, allowing such motions would be ‘antithetical to our principle of the finality of judgments,’ id. at ¶ 59, and encourage mischief by allowing those with the resources to do so ‘to bury their ex-spouses in a mountain of filings,’ id. at ¶ 60. Thus, even if we were to conclude that R.C. 3105.171(I) did not apply, the trial court still lacked authority to modify the divorce decree.
Walsh at ¶ 28.
{¶32} A Civ.R. 60(B) motion for relief from judgment is not
a substitute for a direct appeal. Kolick & Kondzer v. Baumanis,
8th Dist. Cuyahoga No. 93679, 2010-Ohio-2354, ¶ 23. Thus, we
conclude that the trial court did not abuse its discretion when
it did not conduct an evidentiary hearing to consider this
particular issue in light of the fact that at the dissolution
hearing the parties fully discussed and resolved the issue.
{¶33} Accordingly, based upon the foregoing reasons, we
overrule appellant’s assignments of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED. 26 LAWRENCE, 22CA2
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellee recover of appellant the 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 Lawrence County Common Pleas Court to carry
these judgments into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk. LAWRENCE, 22CA2