Wank v. Wank
2015 Ohio 3094
Ohio Ct. App.2015Background
- Renee and David Wank married in 1993 and had four children; Renee filed for divorce in 2012.
- A Partial Final Judgment (Oct. 28, 2014) set total equity in two properties at $47,000 and ordered Renee to pay David $23,500 to equalize.
- At the final hearing, the court found David contributed $15,449.27 premarital funds to the marital residence and entitled to reimbursement therefor.
- The court left intact an award of one-half of total equity ($23,500) plus David’s premarital contribution, totaling $38,949.27 to David.
- Renee moved for reconsideration arguing premarital funds should be subtracted from total equity before division; the court granted this, ordering Renee to pay $31,224.64.
- David appealed, arguing Renee’s motion for reconsideration was improper after a final judgment and/or substantive, not clerical, and the appeal was untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Renee’s motion for reconsideration was properly considered post-judgment. | Renee contends the court could treat the motion as Civ.R. 60(B). | David asserts no power to entertain a post-judgment reconsideration motion and it was a nullity. | Motion was improperly treated; final judgment remained unchanged. |
| Whether the trial court erred by granting reconsideration to adjust the equity division. | Renee argued premarital contributions should reduce the marital equity before equalization. | David contends the original calculation correctly divided parity and premarital funds were already accounted. | Court correctly reduced the amount Renee owed to reflect subtracting premarital contributions. |
| Whether Renee’s appeal was timely filed under App.R. 4(A). | Renee relied on the revised judgment to sustain appeal. | David argues no timely notice of appeal from the October 28, 2014 final judgment; reconsideration did not toll appeal time. | Appeal untimely; court lacked jurisdiction to decide on the merits. |
| Whether the October 28, 2014 final judgment remained the controlling order. | Renee asserted the March 6, 2015 entry modified the final judgment. | David argues the March 6, 2015 entry was invalid as a reconsideration and did not replace the October 28 order. | October 28, 2014 judgment remained the controlling final order. |
Key Cases Cited
- Ray v. Dickinson, 2004-Ohio-3632 (7th Dist. Belmont 2004) (motion for reconsideration after final judgment not recognized; Civ.R. 60(B) relief sua sponte)
- Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378 (1981) (appeal deadlines; tolling and proper vehicle for relief from final judgment)
- Ham v. Ham, 2008-Ohio-828 (3d Dist. Wyandot 2008) (notice and Civ.R. 60(B) conversion requirement for post-judgment relief)
- Perez v. Angell, 2007-Ohio-4519 (10th Dist. Franklin 2007) (trial court may convert motion to Civ.R. 60(B) relief; must provide notice and opportunity to respond)
- Ohio State Aerie Fraternal Order of Eagles v. Alsip, 2013-Ohio-4866 (12th Dist. Butler 2013) (authority to construe post-judgment motions as Civ.R. 60(B) motions; notice and response required)
- Consolidated Rail Corp. v. Forest Cartage Co., 68 Ohio App.3d 333 (8th Dist. 1990) (post-judgment relief mechanics; procedural requirements for motion practice)