Wiseman v. Wiseman

2022 Ohio 3689

• Court: Ohio Court of Appeals
• Decided: October 17, 2022
• Docket: CA2022-03-004
• Status: Published

Opinion

[Cite as Wiseman v. Wiseman, 2022-Ohio-3689.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

MADISON COUNTY

JAMES THOMAS WISEMAN, :

Appellant, : CASE NO. CA2022-03-004

: OPINION - vs - 10/17/2022 :

DONNA LYNNE WISEMAN, :

Appellee. :

APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DRD20180237

J. Michael Murray, for appellant.

Grossman Law Offices, and John H. Cousins IV, for appellee.

PIPER, J.

{¶1} James Wiseman appeals from the trial court's judgment overruling his

objections to a magistrate's decision and overruling his Civ.R. 60(B) motion to vacate a

dissolution decree containing the separation agreement that he entered with appellee,

Donna Wiseman. James contends that the trial court abused its discretion by denying relief

based on Donna's alleged failure to disclose the existence of her retirement pension while Madison CA2022-03-004

negotiating the separation agreement.1 Finding no error, we affirm the decision of the trial

court.

I. Facts and Procedural History

{¶2} James and Donna were married in 1983. In December 2018, after 36 years

of marriage, they filed a petition for dissolution. Included in their petition for dissolution was

a separation agreement, dated November 19, 2018, dividing all their property. The

preamble to the agreement pertinently states that "[e]ach pa[r]ty attests":

1. That prior to the execution of this Agreement, he or she has fully disclosed and revealed to the other the identification, fair market value (or information from which fair market value can be calculated or determined), and location of all separate and marital assets and liabilities;

2. That this full disclosure is a material consideration of this Agreement;

3. That in reliance upon this full disclosure, each of the parties knowingly and voluntarily waives his or her right to discovery available in a divorce action* * *.

In essence, James and Donna affirmed that they had fully disclosed to each other all their

property. With respect to their financial assets, they generally agreed that joint accounts

would be divided evenly and that each would keep his or her separate accounts (bank

accounts, IRA accounts, securities and brokerage accounts). Each also kept his or her

employment benefits. For Donna's benefits, they agreed:

Except as otherwise provided herein, [Donna] shall be entitled to her pension, profit sharing 401K plans, any other type of deferred compensation plans, stock purchase plans, and any other type of employment benefit that she may have by reason of her present or past employment, free and clear of any claim of [James].

Another paragraph uses the same substantive language for James's employment benefits

1. For clarity, we will refer to the parties by their first names.

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with some appropriate differences. Also included in the petition for dissolution was an

Affidavit of Property filed by Donna. Listed under the section for pensions and retirement

plans is "401k and UPS Savings Plan." Attached to the affidavit was a property list that

Donna had prepared, "James and Donna Wiseman's Property Listing," dated April 13, 2018,

which also lists, among other items, a "401K and Savings Plan." James did not file a

property affidavit of his own.

{¶3} On January 24, 2019, the trial court entered a decree of dissolution. The court

approved the separation agreement and specifically incorporated it into the decree: "The

parties have represented to the Court and the Court so finds that the property settlement

herein constitutes a division of all marital property and debt that is fair and equitable, and

the parties waive specific findings of fact in connection therewith, and waive any listing of

assets and values * * *."

{¶4} Soon after the divorce, Donna retired from UPS, where she had worked for

three decades—most of the marriage—and she began drawing a pension from the

company. In January 2020, James filed a motion for relief from judgment under Civ.R.

60(B)(3) claiming that Donna had engaged in fraud or misrepresentation by failing to

disclose the pension. A magistrate held a hearing on the motion at which James and Donna

testified. James testified that he did not know she had the pension. He conceded that he

had read the separation agreement, including the provision that Donna would retain her

pension, but thought they were just trying to "cover her bases." James contended that

Donna had failed to disclose the pension three different times: in her property affidavit; in

the property list attached to the affidavit, and in an earlier property list, dated April 2, 2018.

The earlier property list had been prepared by Donna and does not list any financial assets.

{¶5} For her part, Donna maintained that James knew about the UPS pension.

She testified that on one occasion he had asked her the value of her pension. Also, Donna

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said that when they first discussed dissolution and how they would divide their property,

she told him that she wanted her "UPS investments" and he had agreed. Finally, Donna

said that James had sometimes joked with her sister about keeping her (Donna) around

only for her pension. Donna testified that she did not intend any deceit by not including the

pension in her affidavit or on the property lists nor was she trying to misrepresent anything.

She simply did not know how to value the pension or whether it should be included.

{¶6} On September 28, 2021, the magistrate entered a decision overruling

James's motion for relief from the dissolution decree. The magistrate found that Donna's

pension was plainly a subject of the separation agreement. He determined that Donna was

more credible on the matter and that James was aware of the pension during the marriage.

James filed objections to the magistrate's decision with the trial court. The trial court agreed

with the magistrate's credibility determination and overruled the objections, adopting the

magistrate's decision.

{¶7} James appealed.

II. Analysis

{¶8} James assigns two errors. The first challenges the denial of his Civ.R. 60(B)

motion, and the second challenges the trial court's review of the magistrate's decision.

A. Civ.R. 60(B) motion

{¶9} Assignment of Error No. 1:

{¶10} "The Magistrate erred as a matter of law in overruling Appellant's 60(B)

Motion."2

{¶11} James argues in the first assignment of error that he should have been

granted relief from the dissolution decree under Civ.R. 60(B)(3). He contends that Donna

2. It was the trial court that overruled James's motion. The magistrate's decision had no effect until the court adopted it. Civ.R. 53(D)(4)(a). So we understand this assignment of error as directed at the trial court.

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failed to disclose her UPS pension such that he was fraudulently induced into signing the

separation agreement.

{¶12} To prevail on a Civ.R. 60(B) motion, a party must establish: (1) a meritorious

claim or defense to present if the court grants relief; (2) entitlement to relief under one of

the grounds stated in Civ.R. 60(B)(1) through (5); and (3) that the motion was filed within a

reasonable time and, when relying on Civ.R. 60(B)(1), (2), or (3), that it was filed not more

than one year after the judgment was entered. GTE Automatic Elec., Inc. v. ARC Industries,

Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. Whether to grant relief under

Civ.R. 60(B) is left in the trial court's sound discretion, and we will not disturb the court's

ruling absent an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987).

{¶13} Civ.R. 60(B)(3) provides that a court may grant a party relief from a final

judgment based on "fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation or other misconduct of an adverse party." "[F]raud or material mistake

can invalidate a separation agreement and entitle a party to relief from a dissolution decree

under Civ.R. 60(B)." Quesinberry v. Quesinberry, 2d Dist. Montgomery No. 29192, 2022-

Ohio-635, ¶ 21. "A decree of dissolution is founded on an agreement of the parties."

Nardecchia v. Nardecchia, 155 Ohio App.3d 40, 2003-Ohio-5410, ¶ 13 (2d Dist.). "Where

a material mistake vitiates the existence of consent or mutuality, then no true agreement

exists on which to base a dissolution decree." Quesinberry at ¶ 23, citing id.

{¶14} Here, James maintains that he did not know about Donna's UPS pension

when he entered into the separation agreement. He testified that, while he knew that she

worked for UPS, he did not know Donna had a pension with the company or had been

paying into a pension. He said that he did not remember joking about the pension with

Donna's sister. James asserted that Donna had three opportunities to disclose her pension

but failed to do so—in her property affidavit and on two property lists—and that, when

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signing the separation agreement, he relied on those documents. When asked about the

provision of the separation agreement that awarded Donna "her pension," James admitted

reading that provision but said that he "didn't know [Donna] had one." He "just thought they

were covering all her bases."

{¶15} Donna responds with incredulity, indicating that James knew about the

pension. She testified that, in late 2018, he asked her, "'How much is your pension?'" To

which she responded that she did not know. Donna further testified that when they first

discussed a dissolution, she referred to her UPS benefits, saying: "'You can have the house,

you can have the barns, you can have the properties, you can have the rentals,' and I said,

'and I'll take my UPS investments.' And he looked at me and he said, 'Oh, okay, that sounds

good.'" Donna also said that James had joked with her sister about the pension: "My sister

is self-employed and so is Jim. And my sister is married to her husband. He works at

Honda. He has a pension. * * * And they would joke with each other about we're only

keeping them around for their pension." Donna testified that she did not intend to deceive

anyone by not including the pension in her property affidavit and that she was not trying to

misrepresent anything. She explained that she was trying to avoid a misrepresentation,

because she did not know how to value the pension.

{¶16} While James testified at one point that he did not know Donna had a pension,

his testimony focused mostly on the fact that the pension was not disclosed in Donna's

property affidavit or property lists. His argument in the trial court and on appeal is that he

did not know about the UPS pension because Donna had failed to disclose it in those

particular documents. The fact that the pension is not listed in those particular documents

does not mean that Donna did not tell James about the pension during their pre-dissolution

discussions. Nor does it mean that he had never learned of it during the 30 years of their

marriage.

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{¶17} As the trial court noted, whether James is entitled to relief from judgment turns

on whether he knew about Donna's UPS pension when he entered the separation

agreement. James says that he did not know; Donna says that he did. The magistrate

determined that Donna was more credible on the issue. The trial court similarly found that

James knew about the pension. Therefore, the court held that he was not entitled to the

requested relief. This decision is eminently reasonable.

{¶18} There is no evidence that Donna engaged in fraud, wrongful

misrepresentation, or any other misconduct. The only real evidence supporting James's

claim is his bare statement at the hearing that he did not know about the pension. He did

not persuade the court of his claim. On the other hand, there is a good deal of evidence

suggesting that James knew about the pension. Donna began working at UPS in 1987,

around four years after she and James were married. It is incredulous that in 30 years of

work and marriage, James remained entirely unaware that Donna would receive a pension

when she retired. Indeed, at the hearing, Donna recalled three specific instances in which

James was aware of the pension. Moreover, the separation agreement plainly states that

Donna gets "her pension" "free and clear." This is not the case of a fraud,

misrepresentation, or misconduct that undermines the validity of the separation agreement.

{¶19} The first assignment of error is overruled.

B. Independent review of the magistrate's decision

{¶20} Assignment of Error No. 2:

{¶21} "The trial court abused its discretion by adopting the Magistrate's Decision."

{¶22} James next argues that the trial court improperly determined that the

magistrate appropriately applied the law. He contends that the court failed to independently

review the record before adopting the magistrate's decision.

{¶23} "A trial court abuses its discretion when it fails to conduct an independent

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review in accordance with Civ.R. 53." (Citation omitted.) Mattis v. Mattis, 10th Dist. Franklin

No. 15AP-446, 2016-Ohio-1084, ¶ 11. "This court presumes the trial court performed an

independent review of the magistrate's decision." (Citation omitted.) Georgin v. Georgin,

12th Dist. Warren No. CA2021-09-088, 2022-Ohio-1548, ¶ 12. The presumption endures

"unless the appellant 'affirmatively demonstrates' otherwise." Id., quoting Cottrell v. Cottrell,

12th Dist. Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 93.

{¶24} The trial court, in its written decision, referred to the correct standard of review,

stating that Civ.R. 53 required it to undertake an independent review regarding the matters

objected to in order to ascertain whether the magistrate properly determined the factual

issues and appropriately applied the law. And the court stated a couple of times that it had

independently examined the transcript of the hearing and the evidence presented. After

stating that it had independently reviewed the evidence, the trial court said that it could not

"find that the Magistrate improperly determined the factual issues or failed to appropriately

apply the law." "[T]he Magistrate," said the court, "was in the best position to judge the

credibility of the witnesses and the credibility of the witnesses as to the existence or

knowledge of the pension is critically important in determining the outcome of Mr.

Wiseman's motion for relief." The court found no evidentiary basis for concluding that the

magistrate was wrong in determining credibility.

{¶25} Although the trial court repeatedly said that it was conducting an independent

review, its language does suggest some deference to the magistrate. The court's review in

places seems to ask whether the magistrate's decision is supported by the record rather

than to be a complete de novo review of the matter. But a close reading shows that the

only deference paid was to the magistrate's credibility determination. And "[a]lthough a trial

court is required to independently review the record and make its own factual and legal

findings, the trial court may rely on the magistrate's credibility determinations." Gilleo v.

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Gilleo, 3d Dist. Mercer No. 10-10-07, 2010-Ohio-5191, ¶ 47. The trial court found no reason

in the record to dispute the magistrate's credibility determination. Considering Donna's

testimony to be more credible, the court independently found that James knew about

Donna's UPS pension and independently concluded that, therefore, he is not entitled to

relief from judgment. Looking at the trial court's decision in its entirety, we conclude that

the court conducted a proper independent review.

{¶26} The second assignment of error is overruled.

III. Conclusion

{¶27} We overrule both assignments of error and hereby affirm the trial court's

judgment.

M. POWELL, P.J., and S. POWELL, J., concur.

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