2016 Ohio 3086
Ohio Ct. App.2016Background
- Melisa filed for divorce in Aug. 2013; parties reached an oral settlement on the record at a March 16, 2015 hearing resolving custody, support, visitation, division of assets, insurance, etc. The court accepted the agreement and directed counsel to prepare a written decree.
- Melisa’s counsel later filed an "AGREED FINAL JUDGMENT AND DECREE OF DIVORCE" on Aug. 5, 2015; Melisa and her counsel signed it; Scott’s and his counsel’s signature lines showed "Seen but not signed."
- Scott filed (Aug. 28, 2015) a motion to set aside the decree identifying four specific alleged discrepancies between the filed decree and the oral agreement (taxes, spring-break visitation, child-care provider/expenses, health insurance) and contemporaneously filed a pro se combined Civ.R. 59 / Civ.R. 60(B) motion alleging fraud/misrepresentation because the entry was captioned "AGREED."
- The trial court denied the combined motion in a brief entry stating the motion is OVERRULED and suggesting Scott could seek relief in the Court of Appeals. Scott appealed the denial and also attempted to appeal the Aug. 5 decree (the latter appeal was dismissed as untimely).
- The Second District affirmed the trial court’s denial of Civ.R. 60(B) relief, concluding the record did not show material inconsistency between the oral agreement and the written decree and that Scott had not shown a meritorious claim warranting 60(B) relief.
Issues
| Issue | Plaintiff's Argument (Bissell) | Defendant's Argument (Scott) | Held |
|---|---|---|---|
| Whether Civ.R. 60(B) relief is warranted because opposing counsel filed an "AGREED" decree that materially departed from the parties' on-the-record oral agreement | The filed decree altered substantive terms of the on-the-record settlement; captioning it "AGREED" was fraud/misrepresentation (Civ.R. 60(B)(3) / (5)) | The decree reflected the parties' agreement or at least did not differ materially; Scott failed to establish fraud or a meritorious defense | Court affirmed denial of 60(B): record showed no material/substantial conflict between oral agreement and filed decree; Scott failed to prove meritorious claim or fraud |
| Whether Scott’s remedy was Civ.R. 60(B) or direct appeal | Scott argued he never agreed to the filed entry so he could pursue 60(B) rather than appeal an agreed judgment | Trial court suggested direct appeal was the proper vehicle; appellee argued 60(B) is not a substitute for appeal | Court held 60(B) appropriate here because Scott claims lack of consent; but his specific factual claims failed on the merits so denial was not an abuse of discretion |
Key Cases Cited
- GTE Automatic Elec., Inc. v. ARC Industries, Inc., 351 N.E.2d 113 (Ohio 1976) (sets the three-part test for Civ.R. 60(B) relief)
- Griffey v. Rajan, 514 N.E.2d 1122 (Ohio 1987) (standard: review of Civ.R. 60(B) denial is abuse of discretion)
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 553 N.E.2d 597 (Ohio 1990) (definition of abuse of discretion; court may reverse only for unreasonable, arbitrary, or unconscionable decisions)
- GMAC Mortgage, L.L.C. v. Herring, 937 N.E.2d 1077 (Ohio App. 2010) (Civ.R. 60(B) is not a substitute for a timely appeal)