[Cite as State ex rel. Smith v. Hayes, 2014-Ohio-1367.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO ex rel. : PER CURIAM OPINION KELLY SMITH, : Relator, : CASE NO. 2013-P-0089 - vs - : JERRY L. HAYES, JUDGE, : Respondent.
Original Action for Writ of Prohibition.
Judgment: Petition dismissed.
Mary E. Randazzo, 6555 Dean Memorial Parkway, Boston Heights, OH 44236 (For Relator).
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondents).
Brendan Kohrs, 421 Graham Road, Suite F, Cuyahoga Falls, OH 44221 (Guardian ad litem).
PER CURIAM.
{¶1} This original action is before this court for final consideration of
respondent’s motion to dismiss the prohibition petition, pursuant to Civ.R. 12(B)(6).
Respondent, Judge Jerry L. Hayes of the Portage County Court of Common Pleas,
Domestic Relations Division, argues that relator, Kelly Smith, has failed to state a viable
claim for the writ because her factual allegations can only be construed to support the conclusion that he has jurisdiction to rule upon the pending motions in the underlying
dissolution case. For the following reasons, the dismissal is warranted.
{¶2} The following statement of facts is based solely upon the allegations in the
prohibition petition and accompanying exhibits. Relator and Nathan M. Smith (“Smith”)
were married for approximately five years and had one child. Even though the couple
initially lived in Utah, they ultimately moved to Portage County, Ohio, where Smith was
attending dental school with the goal of becoming an anesthesiologist. After the couple
mutually decided to terminate their marriage, Smith moved to Pennsylvania for the
express purpose of continuing his education.
{¶3} In 2008, Smith and relator filed an action in the Portage County domestic
relations court to dissolve the marriage. During that proceeding, Smith was represented
by counsel, while relator acted pro se. To facilitate the “dissolution” process, Smith and
relator negotiated a separation agreement in which they resolved all issues relating to
child custody and visitation, distribution of marital property, and spousal support. This
agreement was incorporated into the trial court’s final dissolution decree, rendered on
July 21, 2008.
{¶4} Regarding Smith’s payment of spousal support to relator, the separation
agreement provided:
{¶5} “The parties acknowledge that Husband shall pay to Wife the amount of
Six Thousand Five Hundred Dollars ($6,500.00) per month beginning January 1, 2013.
Husband shall pay to Wife Nine Thousand One Hundred ($9,100.00) per month
beginning January 1, 2020 due to Husband’s anticipated income. Husband’s spousal
support obligation shall terminate upon Wife’s remarriage only. If Husband shall
2 become disabled, Husband’s spousal support obligation will be reduced by one-half.”
{¶6} As originally written, the spousal-support term did not have any language
pertaining to the trial court’s retention of jurisdiction over the issue. However, when the
separation agreement was presented to the trial court for review prior to the release of
the final decree, the court mandated that the following sentence be added to the term:
“This court shall retain jurisdiction over Husband’s spousal support obligation.” The new
sentence was handwritten unto the copy of the agreement attached to the final decree,
and both Smith and relator initialed the amendment.
{¶7} Two weeks after the dissolution decree was issued, Smith and relator
submitted an agreed judgment entry to the trial court for approval. This entry had been
prepared by Smith’s counsel, and had already been executed by Smith and relator. The
entry stated that, in exchange for mutual promises and consideration, Smith and relator
had agreed to modify the separation agreement to provide that the trial court would not
retain jurisdiction over the spousal-support issue, and that the support obligation, as set
forth in the agreement, would not end until Smith died or relator remarried. On August
4, 2008, the trial court approved the agreed judgment entry.
{¶8} No new proceedings were held in the dissolution action over the next four
years. However, when Smith’s initial obligation to pay spousal support was scheduled
to commence in January 2013, he began to file a series of motions in the trial court. On
January 4, 2013 alone, he submitted four motions relating to: (1) the validity of the final
dissolution decree; (2) his spousal support obligation; or (3) his right to visitation with, or
custody of, the minor child. In his first motion, Smith requested the trial court to vacate
the final dissolution decree and all subsequent orders in the case, pursuant to Civ.R.
3 60(B). In the second, he moved for modification of his spousal support obligation under
the separation agreement.
{¶9} Over the next few weeks, Smith filed an additional four motions to vacate
the final dissolution decree or the August 4, 2008 agreed judgment entry pertaining to
the trial court’s continuing jurisdiction over the spousal-support issue. Furthermore, he
submitted an amended motion to modify his support obligation and moved to stay his
support obligation until the trial court could address the merits of his various motions.
{¶10} On April 16, 2013, Smith filed a brief that discussed the substance of all of
his pending motions. In relation to his motions to vacate the final dissolution decree, he
contended that: (1) he had been subject to duress from relator during the negotiation of
the separation agreement; (2) relator had committed fraud by failing to timely inform him
of the extent of her student loans for purposes of determining the total marital debt; and
(3) at the outset of the case, relator did not submit a required “parenting” affidavit under
R.C. 3127.23. As to his motion to vacate the August 4, 2008 agreed judgment entry, he
argued that the amendment of the spousal-support term was unenforceable because he
did not receive any consideration in exchange for agreeing that the trial court would not
retain jurisdiction over the support issue.
{¶11} Before any hearing could be held on Smith’s motions, the sitting domestic
relations judge for Portage County issued a judgment stating that she was disqualifying
herself from the “Smith” dissolution action. Respondent was assigned by the Ohio
Supreme Court to proceed as a visiting judge for the case.
{¶12} In late October 2013, Smith filed a renewed motion to temporarily suspend
his spousal support obligation. One day later, relator moved to dismiss each of the four
4 pending motions in which Smith had sought either a stay or modification of the spousal-
support term in the separation agreement. Relator maintained that the trial court had no
authority to reduce or suspend Smith’s support obligation because the August 4, 2008
agreed judgment entry expressly stated that the court would not retain jurisdiction going
forward over that particular issue.
{¶13} On the same day relator filed her motion to dismiss, respondent signed an
attorney-prepared judgment granting the dismissal of the referenced motions. One day
later, respondent rendered a second judgment stating that the issuance of the dismissal
judgment had not been intended; accordingly, the dismissal judgment was vacated, and
Smith’s motions were reinstated.
{¶14} In response to the vacation of the dismissal judgment, relator initiated this
separate action for a writ of prohibition. In her petition, she requests the issuance of the
writ to enjoin respondent from considering the merits of, or issuing any ruling upon, any
motion Smith has filed in the dissolution case, unless the motion directly pertains to the
sole minor child. Concerning the question of spousal support, relator again asserts that
respondent has no authority to render a new order because the separation agreement
was amended to take away the trial court’s continuing jurisdiction over that point. As to
the question of property distribution, she alleges that respondent cannot issue any new
order regarding the allocation of the marital debt because she and Smith never agreed
to give the trial court continuing jurisdiction over that point. Last, in regard to Smith’s
motions to vacate, relator contends that Smith cannot be granted relief from the final
dissolution decree because: (1) he is attempting to use the motions as substitutes for a
direct appeal from the decree; and (2) none of the motions were timely filed.
5 {¶15} As previously mentioned, respondent has moved to dismiss relator’s entire
prohibition petition for failing to state a viable claim for relief. In that motion, respondent
focuses his argument solely upon Smith’s first motion to vacate, filed in the dissolution
case on January 4, 2013. Specifically, he notes that the first motion to vacate does not
request a modification of the spousal-support term in the separation agreement; rather,
it asks for relief from the final dissolution decree pursuant to Civ.R. 60(B). Respondent
further notes that the first motion alleges a permissible basis for relief under the rule. In
light of this, he submits that he has jurisdiction to proceed on the motion to vacate, and
that relator is improperly trying to contest the merits of the motion through a prohibition
petition.
{¶16} Relator has not submitted a brief in opposition to the motion to dismiss; as
a result, only the legal arguments contained in her prohibition petition can be analyzed
in determining whether dismissal is justified under Civ.R. 12(B)(6).
{¶17} In asserting that respondent will exceed the scope of his jurisdiction as a
domestic relations judge if he takes any additional steps in the underlying action, relator
has referred to two basic types of pending submissions: (1) motions to modify, suspend,
or stay the spousal-support term in the separation agreement; and (2) motions to vacate
the final dissolution decree or the August 4, 2008 agreed judgment entry. Of these two
categories, the jurisdictional analysis as to the first is the most straightforward. Under
current Ohio law, the continuing jurisdiction of a domestic relations court over an award
of spousal support is governed solely by a statutory provision. R.C. 3105.18(E) states:
{¶18} “(E) If a continuing order for periodic payments of money as alimony is
entered in a divorce or dissolution of marriage action that is determined * * *January 1,
6 1991, the court that enters the decree of divorce or dissolution of marriage does not
have jurisdiction to modify the amount or terms of the alimony or spousal support unless
the court determines that the circumstances of either party have changed and unless
one of the following applies:
{¶19} “(1) In the case of a divorce, the decree or a separation agreement of the
parties to the divorce that is incorporated into the decree contains a provision
specifically authorizing the court to modify the amount or terms of alimony or spousal
support.
{¶20} “(2) In the case of a dissolution of marriage, the separation agreement that
is approved by the court and incorporated into the divorce decree contains a provision
specifically authorizing the court to modify the amount or terms of alimony or spousal
support.”
{¶21} In applying R.C. 3105.18(E) in the context of a divorce case, “a trial court
has the authority to modify or terminate an order for alimony or spousal support only if
the divorce decree contains an express reservation of jurisdiction.” Kimble v. Kimble,
97 Ohio St.3d 424, syllabus (2002). This court has followed the Kimble holding in
relation to a post-decree motion to terminate or modify spousal support in a dissolution
action. Thomas v. Thomas, 159 Ohio App.3d 761, 2004-Ohio-2928, ¶6-7 (11th Dist.).
Therefore, a trial court has no continuing authority to alter a spousal-support term in a
separation agreement unless the parties have specifically agreed at the time of the
dissolution decree to confer that jurisdiction upon the court.
{¶22} In this case, the documents attached to relator’s petition demonstrate that
she and Smith specifically agreed to not confer continuing jurisdiction over the spousal-
7 support issue to the Portage County domestic relations court. Although the final version
of their separation agreement contained a handwritten term stating that the court would
retain jurisdiction over Smith’s support obligation, that term was expressly rescinded in
the August 4, 2008 agreed judgment entry. According to the judgment entry, relator and
Smith had agreed to deny the trial court continuing jurisdiction over the spousal-support
issue. Moreover, the judgment entry was not only signed by both relator and Smith, but
was also approved by the trial court.
{¶23} Thus, pursuant to R.C. 3105.18(E)(2), respondent lacks the authority to go
forward at this time on Smith’s pending motions to modify/suspend his spousal-support
obligation under the separation agreement; i.e., since there was no express reservation
of continuing jurisdiction, the requested relief can never be granted. For this reason, if
respondent presently possesses any authority to proceed in the dissolution action, it is
limited to the pending motions to vacate under Civ.R. 60(B). Furthermore, respondent’s
jurisdiction to decide the 60(B) motions will turn upon whether those motions essentially
seek relief which is distinct from that requested in the motions to modify/suspend.
{¶24} In order for the movant to be entitled to relief from a final judgment under
Civ.R. 60(B), he must be able to establish, inter alia, that he can satisfy one of the five
possible grounds for relief delineated in the rule. Novak v. Novak, 11th Dist. Lake Nos.
2013-L-047 and 2013-L-063, 2014-Ohio-10, ¶21. The rule states that a court may grant
relief from a final judgment for any of 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 trial under Rule 59(B); (3)
fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other
8 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; and (5) any other reason justifying relief from the judgment.”
{¶25} Of the five listed reasons, parties who have sought relief from a dissolution
decree have often tried to invoke the “no longer equitable” clause under 60(B)(4). For
example, in Knapp v. Knapp, 24 Ohio St.3d 141 (1986), the husband based his request
for relief from the alimony term of the separation agreement upon 60(B)(4), making two
arguments in support: (1) he could no longer afford to pay the agreed amount because
his financial condition had changed; and (2) he did not understand the meaning of the
alimony term when he signed the separation agreement. In concluding that neither of
the husband’s arguments stated justifiable reasons for relief from the dissolution decree,
the Knapp court emphasized that the “no longer equitable” clause was not intended to
encompass possible changes in circumstances that a party could have envisioned prior
to executing the separation agreement:
{¶26} “1. The ‘* * * it is no longer equitable * * *’ clause of Civ.R. 60(B)(4) was
designed to provide relief to those who have been prospectively subjected to
circumstances which they had no opportunity to foresee or control.
{¶27} “2. The ‘* * * it is no longer equitable * * *’ clause of Civ.R. 60(B)(4) will not
relieve a litigant from the consequences of his voluntary, deliberate choice to enter into
a separation agreement in a dissolution of marriage proceeding.” Id. at syllabus.
{¶28} The underlying logic of the Knapp analysis was recently explained by the
Eighth Appellate District in Harper v. Harper, 8th Dist. Cuyahoga No. 96454, 2011-Ohio-
9 5276, ¶11:
{¶29} “We reiterated this holding in Pumper v. Pumper, Cuyahoga App. No.
93916, 2010-Ohio-4131. Citing Knapp, we noted that, ‘when a party voluntarily enters
into a separation agreement, the party is bound by the terms of that agreement, even if
the party’s financial circumstances change.’ Id. at ¶15. ‘Indeed, a change in a person’s
financial situation is always a possibility; therefore, “it is considered a foreseeable event
for purposes of Civ.R. 60(B)(4) even if there was no immediate reason to believe the
change was about to occur when the judgment was issued.”’ Id., quoting Barnes v.
Barnes, 5th Dist. No. 2003CA00383, 2005-Ohio-544. Consistent with Knapp * * *, we
concluded that, ‘a party cannot rely on Civ.R. 60(B)(4) to vacate a settlement agreement
due to a change in finances when the party should have considered such a change in
negotiating the settlement.’ Id. at ¶20.”
{¶30} In relation to the “change in financial circumstances” argument, the Third
Appellate District has essentially extended the Knapp analysis and concluded that such
an argument cannot form the basis of a viable motion to vacate under Civ.R. 60(B)(5),
the “catchall” provision. See Jordan v. Jordan, 3rd Dist. Hancock No. 5-05-07, 2005-
Ohio-6028. Similarly, in Crouser v. Crouser, 39 Ohio St.3d 177 (1988), the Supreme
Court held that a change in the prognosis of the wife’s mental/emotional condition was
not a viable basis for seeking relief from a spousal-support order under either 60(B)(4)
or 60(B)(5).
{¶31} Pursuant to the foregoing precedent, a party to a dissolution proceeding
cannot seek Civ.R. 60(B) relief from the separation agreement on the grounds that the
occurrence of new events after the decree has rendered the continuing enforcement of
10 the spousal-support obligation unfair. Hence, if the parties to a separation agreement
have not afforded the trial court continuing jurisdiction over the spousal-support issue, a
60(B) motion cannot be employed as a separate means of obtaining the modification of
the support obligation based upon a change of circumstances. However, this does not
mean that there are no instances in which a viable 60(B) motion can be asserted as to a
dissolution decree and the accompanying separation agreement. Additional case law
establishes that a viable 60(B) motion can be stated when it is predicated upon alleged
misconduct or mutual mistake that occurred during the negotiation of the agreement.
{¶32} In In re Whitman, 81 Ohio St.3d 239 (1998), the wife sought Civ.R. 60(B)
relief regarding the provisions in the separation agreement governing the distribution of
the marital property. Specifically, she asserted that her decision to sign the agreement
had been based upon a mistake of fact because the “distribution” terms did not dispose
of some of the marital assets. Even though the primary focus of the Supreme Court’s
analysis concerned whether the entire dissolution decree must be vacated as a result of
a material mistake of fact as to terms of the separation agreement, the opinion contains
a considerable discussion of the legal underpinnings of dissolution law. Specifically, the
Whitman court noted that each party to the action must freely consent to the separation
agreement before the dissolution of the marriage can be granted. Id. at 241. In light of
this essential requirement, the court then stated:
{¶33} “But if consent or mutuality did not exist when the parties entered into the
separation agreement because of fraud or mutual mistake or misrepresentation, then
there was no agreement upon which the dissolution decree could have been based.
This lack of mutuality undermines the integrity of the dissolution proceeding and may
11 constitute sufficient grounds to set aside the decree under Civ.R. 60(B). In re Murphy
(1983), 10 Ohio App.3d 134, * * *.” Id. at 241-242.
{¶34} Citing the foregoing language from Whitman, subsequent appellate courts
have upheld the use of Civ.R. 60(B)(1), (B)(2), and (B)(3) to vacate a dissolution decree
when the separation agreement was not based upon mutual consent. For example, in
Nardecchia v. Nardecchia, 155 Ohio App.3dd 40, 2003-Ohio-5410, the wife moved for
Civ.R. 60(B) relief on the basis that, in negotiating the distribution of the marital assets,
the parties had mistakenly undervalued the husband’s retirement account. Although the
trial court denied the wife’s motion, the Second Appellate District reversed that ruling on
the grounds that the wife satisfied all three requirements for 60(B) relief. Id. at ¶17. As
to the justification for vacating the separation agreement, the Nardecchia court held that
incomplete financial disclosure had caused a mistake of fact concerning the retirement
account which warranted relief under 60(B)(1). Id. at ¶14-17. The court also held that,
since the separation agreement did not contain a term granting the trial court continuing
jurisdiction to modify the marital property distribution, the entire dissolution decree had
to be vacated. Id. at ¶14.
{¶35} This court has expressly upheld the granting of 60(B) relief in a dissolution
case when the evidence demonstrated that fraud had occurred during the negotiation of
various provisions in the separation agreement, including spousal support. In Cefaratti
v. Cefaratti, 11th Dist. Lake No 2004-L-091, 2005-Ohio-6895, the separation agreement
was prepared solely by the husband, and he specifically told the wife that there was no
need for her to hire an attorney to represent her in the dissolution action. The evidence
further established that the husband’s income was twelve times greater than that of the
12 wife, and that he made representations to her regarding the “nonexistence” of spousal
support. Based upon these facts, this court concluded that there had been fraud in the
inducement, and that relief from the dissolution decree was justified under 60(B)(3). Id.
at ¶29-32.
{¶36} Therefore, under present Ohio law, a Civ.R. 60(B) motion can be brought
to contest the validity of a party’s consent to the provisions of the separation agreement,
including the spousal-support term. In addition to a claim of material mistake of fact, the
60(B) motion can be predicated upon claims of fraud, duress, or undue influence. Id. at
¶15, quoting DiPietro v. DiPietro, 10 Ohio App.3d 44, 47 (1983).
{¶37} In this case, the documents attached to relator’s prohibition petition shows
that Smith filed five separate motions to vacate in January 2013. Three months later, in
April 2013, he submitted a brief in support of the five motions, in which he raised seven
basic arguments for review. Of the seven arguments, two clearly assert potential claims
for relief under Civ.R. 60(B). First, Smith maintained that, during the negotiation of the
settlement agreement, relator had taken advantage of his unstable mental condition and
subjected him to duress. Second, he alleged that relator had engaged in fraud by not
informing him of the extent of her student loans for purposes of calculating the total debt
he could owe on her behalf.
{¶38} In these two arguments, Smith is not requesting respondent to modify his
spousal-support obligation on the basis of events that have occurred subsequent to the
issuance of the dissolution decree and the August 4, 2008 agreed judgment entry; thus,
he is not attempting to invoke Civ.R. 60(B)(4) or (B)(5). Instead, Smith is attacking the
validity of the entire separation agreement through allegations of duress and fraud, as is
13 permissible under Civ.R. 60(B)(1) and (B)(3). Given that Smith has raised at least two
viable claims for 60(B) relief, respondent has the authority to address the substance of
the two arguments as asserted in the pending motions to vacate.
{¶39} As to Smith’s remaining five arguments, the copy of his April 2013 brief in
support, as attached to the prohibition petition, indicates that none of these arguments
constitute veiled attempts to obtain the modification of the spousal-support obligation.
Rather, each of the five arguments challenges the propriety of the trial court’s decision
to issue the final dissolution decree and the August 4, 2008 agreed judgment entry. As
noted above, under one of his remaining arguments, Smith contends that the trial court
lacked the necessary jurisdiction to render the decree because relator never submitted
a “parenting” affidavit, as mandated under R.C. 3127.23. Given that none of the five
remaining arguments directly pertain to the spousal-support issue, respondent clearly
has the authority to make an initial determination as to whether each argument states a
viable reason for vacating either judgment, and then, depending upon the outcome of
that initial analysis, proceed to address the final merits of each.
{¶40} In her prohibition petition, relator maintains that respondent should not be
allowed to go forward on Smith’s motions to vacate because: (1) none of the motions
were timely filed, as expressly required under Civ.R. 60(B); and (2) Smith is attempting
to use the motions as a substitute for a timely direct appeal from the dissolution decree
or the agreed judgment entry. However, while each of these two points may constitute
a viable counter-argument to the motions to vacate, neither of the points is relevant to
the issue of respondent’s jurisdiction to determine the merits of those motions. Thus, by
raising these points, relator is essentially using this original action as a separate means
14 for contesting the merits of the motions. Such a use is not permissible, since an action
in prohibition can only be employed to challenge the jurisdiction of a lower court. See
State ex rel. Kister-Welty v. Hague, 160 Ohio App.3d 486, 2005-Ohio-1788, ¶14, 17.
{¶41} “As a general proposition, * * * a prohibition claim can be subject to
dismissal under Civ.R. 12(B)(6) when the nature of the relator’s allegations are such
that, even if the allegations are presumed true and interpreted in a manner most
favorable to [her], it would still be beyond doubt that [she] will not be able to prove a set
of facts entitling [her] to the writ.” State ex rel. Feathers v. Gansheimer, 11th Dist.
Ashtabula No. 2006-A-2858, 2007-Ohio-2858, ¶6. Under this standard, a relator will be
permitted to go forward on her prohibition claim only when her allegations are sufficient
to satisfy the three required elements for the writ: (1) respondent intends to exercise his
judicial authority in the underlying case; (2) the proposed use of judicial power is beyond
the scope of respondent’s jurisdiction; and (3) if the writ is not granted, the relator will be
subject to damages for which there is no adequate remedy at law. Kister-Welty, at ¶24,
citing State ex rel. Barclays Bank PLC v. Ct of Common Pleas of Hamilton Cty., 74 Ohio
St.3d 536, 540 (1995).
{¶42} Pursuant to the foregoing discussion, this court concludes that relator will
never be able to prove a set of facts under which the second element for a prohibition
claim will be satisfied. Even though respondent does not have any authority to suspend
or modify Smith’s spousal-support obligation while the separation agreement remains in
effect, he does have the jurisdiction to issue judgments on Smith’s pending motions to
vacate under Civ.R. 60(B). This authority to proceed exists notwithstanding the fact that
the Portage County domestic relations court did not retain continuing jurisdiction over
15 the issues of spousal support and property distribution. Accordingly, since relator’s own
factual allegations are legally insufficient to establish a complete lack of jurisdiction to
go forward in the underlying dissolution action, she has failed to state a viable claim for
a writ of prohibition.
{¶43} Respondent’s motion to dismiss the prohibition petition is granted. It is the
judgment and order of this court that relator’s entire prohibition petition is dismissed in
its entirety. It is further ordered that Nathan M. Smith’s motion to intervene in this action
is overruled as moot.
TIMOTHY P. CANNON, P.J., CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., concur.