2023 Ohio 972
Ohio Ct. App.2023Background
- Tonya LaCourse obtained a final divorce decree on May 24, 2021 that, by consent, awarded John LaCourse his pension and retirement plans free of Tonya's claim.
- Tonya later filed a Civ.R. 60(B) motion (Nov. 23, 2021) alleging John had concealed an employer pension and thus the property division was incomplete.
- While John did not timely oppose, counsel for both parties signed a February 16, 2022 consent entry granting Tonya one-half of the marital value of John’s pension plans.
- John then filed (Mar. 1–2, 2022) for leave to file an opposition and to vacate the February 16 consent entry, alleging his prior counsel lacked authority to consent; the trial court denied the motions.
- The trial court construed John’s motion as a Civ.R. 60(B) motion and denied relief, concluding counsel’s lack of settlement authority does not warrant relief under Civ.R. 60(B)(1); John appealed.
Issues
| Issue | Plaintiff's Argument (LaCourse) | Defendant's Argument (LaCourse [Tonya]) | Held |
|---|---|---|---|
| Whether the trial court lacked subject-matter jurisdiction to modify the divorce decree and whether the Feb. 16, 2022 order was an improper nunc pro tunc substantive change | The February 16 order substantively changed the decree and cannot be a nunc pro tunc; John’s counsel lacked his written consent so R.C. 3105.171(I) continuing jurisdiction was absent | The parties’ signed consent entry constituted written consent under R.C. 3105.171(I); the order was a consent judgment resolving the pending Civ.R. 60(B) motion | The court held the order was a consent judgment (not a nunc pro tunc), the caption error was nonprejudicial, and the signed consent satisfied R.C. 3105.171(I); no jurisdictional defect. |
| Whether the trial court abused its discretion by denying John’s motion to vacate / for relief from judgment under Civ.R. 60(B) | John contends counsel lacked authority to consent and (on appeal) that fraud or other grounds under Civ.R. 60(B)(3) or (5) warranted relief | Tonya (and the trial court) point out John only alleged lack of counsel authority in the motion, and attorney neglect is generally imputed to the client; no operative facts were alleged to support fraud or catch‑all relief | The court affirmed denial: John’s motion alleged only counsel’s lack of authority (reviewable, if at all, under Civ.R. 60(B)(1) and generally imputed to client); he did not plead operative facts for Civ.R. 60(B)(3) or (5) and may not raise them for the first time on appeal. |
Key Cases Cited
- State ex rel. Rogers v. Rankin, 154 Ohio St. 23 (1950) (nunc pro tunc entries are limited to correcting clerical errors)
- Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (attorney neglect ordinarily imputable to client)
- Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983) (Civ.R. 60(B)(5) is a catch-all and not a substitute for specific subsections)
- State v. Yeaples, 180 Ohio App.3d 720 (2009) (substance of an entry controls over its caption)
- Myers v. Myers, 153 Ohio App.3d 243 (2003) (superfluous or incorrect statements in an entry are not reversible error absent prejudice)