Kell v. Verderber
2013 Ohio 4223
Ohio Ct. App.2013Background
- Mary Jo Kell and Rudolph Verderber divorced in 1973; their separation agreement (incorporated into the decree) included (1) paragraph 9: wife entitled to one-third of royalties from the textbook Challenge of Effective Speaking (and subsequent editions), with annual accounting; and (2) paragraph 12: husband to execute a will leaving at least 50% of his estate to the parties’ children.
- In 1979 Mary Jo moved to show cause for contempt over unpaid royalties; a referee found contempt but the trial court never ruled on objections. In January 1981 the parties executed a private settlement: Mary Jo received $40,000 and agreed to dismiss and release claims under paragraph 9 (the settlement was never entered as a court order).
- In 2011 Mary Jo filed motions: contempt, Civ.R. 60(B) relief, and to impose a constructive trust, alleging Rudolph had concealed continuing royalties, diverted royalties to Verderber Services (a company he controlled), and that a later book Communicate! was effectively a subsequent edition written during the marriage; she also alleged Rudolph’s will violated paragraph 12.
- The trial court dismissed the paragraph 12 (will) contempt claim for lack of jurisdiction, found the 1981 settlement released Rudolph from paragraph 9 claims and granted summary judgment to Rudolph and third parties (Verderber Services and Kathleen Verderber), and denied Mary Jo’s Civ.R. 60(B)(5) motion and constructive-trust claim.
- On appeal the court affirmed dismissal of claims tied to paragraph 9, Civ.R. 60(B) denial, and constructive trust and third-party dismissals, but reversed as to paragraph 12 (will provision), holding the domestic-relations court has jurisdiction to interpret and enforce that provision and remanding for interpretation, factfinding, contempt determination, and any remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the domestic-relations court had jurisdiction to enforce paragraph 12 (will provision) | Kell: paragraph 12 is part of the separation agreement and enforceable by the court as a contract; contempt enforcement appropriate | Verderber: the court lacks jurisdiction because provision is child-support–like and pre-1974 support obligations ended at majority | Court: reversed trial court — domestic-relations court has equitable power to interpret/enforce the agreement; remand to interpret ¶12 and resolve contempt/remedy |
| Whether the 1981 private settlement barred Mary Jo’s royalty claims under paragraph 9 | Kell: she discovered fraud/concealment (Communicate!, diverted royalties) and sought relief; Civ.R. 60(B)(5) or contempt should apply | Verderber: 1981 settlement (signed by both, witnessed) released all paragraph 9 claims and is a valid contract defense | Court: 1981 settlement was clear and unambiguous; it released ¶9 claims and barred contempt enforcement; summary judgment for defendants on royalties upheld |
| Whether Civ.R. 60(B)(5) relief was available for alleged fraud/concealment regarding Communicate! and royalties | Kell: catch-all (5) applies because marital property was concealed; filed promptly after discovery | Verderber: alleged fraud by adverse party requires Civ.R. 60(B)(3) and must be brought within one year; (5) not a substitute | Court: (5) inappropriate here; Kell alleged fraud by adverse party and should have used Civ.R. 60(B)(3), which is untimely; denial affirmed |
| Whether a constructive trust should be imposed over royalties diverted to Verderber Services | Kell: ¶9 created a trust-like duty and accounting right; unjust enrichment supports constructive trust | Verderber: 1981 release and negotiated settlement defeated such a claim | Court: no evidence of inequitable retention post-1981 settlement; constructive trust denied |
Key Cases Cited
- Motley v. Motley, 102 Ohio App.3d 67 (Ninth Dist.) (pre-1974 support duration principles cited)
- Zweifel v. Price, 24 Ohio App.3d 101 (Tenth Dist.) (pre-1974 support duration principles cited)
- State v. Kilbane, 61 Ohio St.2d 201 (trial court duties on contempt and remedies)
- Harris v. Harris, 58 Ohio St.2d 303 (Ohio) (contempt is the usual enforcement mechanism for separation-agreement provisions)
- Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 Ohio St.3d 353 (Ohio) (contract interpretation principles)
- Zimmie v. Zimmie, 11 Ohio St.3d 94 (Ohio) (summary judgment permissible in divorce-related proceedings)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio) (summary judgment standard)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio) (de novo review of summary-judgment rulings)