Archer v. DuntonArcher v. Dunton
SCHAFER, Judge.
{¶1} Deborah J. Archer appeals the judgment of the Summit County Court of Common Pleas, Domestic Relations Division, granting Steven S. Dunton‘s motion for relief from judgment. We reverse in part, and remand this matter for further proceedings.
I.
{¶2} Ms. Archer and Mr. Dunton divorced оn August 16, 1993, pursuant to the judgment entry of divorce issued by the trial court. The divorce decree incorporated the parties’ settlement agreement and made the terms and conditions of that settlement agreement an order of the cоurt. Within the divorce decree, the court reserved “the right to modify such [o]rders as is appropriate in the future.”
{¶3} In the separation agreement at Article 11, the parties agreed that Ms. Archer is entitled to one-half of Mr. Dunton‘s pension thrоugh the Police and Fire Pension Fund for the State of Ohio as of the date of the divorce. At the time of the divorce, the parties recognized the
{¶4} On February 24, 2003, the court entered a division of property order, as apрroved by Ms. Archer‘s attorney, which indicated that it had been sent to Mr. Dunton‘s attorney for approval, but not returned. The division of property order states that the trial court “shall retain jurisdiction to modify, supervise, or enforce the implementation of this order notwithstanding [
{¶5} The trial court issued a judgment entry on January 6, 2017, granting Mr. Dunton‘s motion to vacate under
II.
Assignment of Error I
The trial court erred by granting Mr. Dunton‘s motion for relief from judgment.
{¶6} In her first assignment of error, Ms. Archer contends that the court erred in granting Mr. Dunton‘s request for relief under
{¶7}
On motion and upon such terms as are just, the cоurt may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, rеleased or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
To prevail on a
{¶8} Mr. Dunton filed his motion to vacate pursuant to
{¶9} In the judgmеnt entry, the court granted the motion under
{¶10} An order may be vacated under
{¶11} Ms. Archer contends that Mr. Dunton actually presented a
{¶12} In his brief to this Court, Mr. Dunton attempts to characterize the alleged mistakes as “non-conformity” between the divorce decree and the division of property order, which renders the order void ab initio. This argument differs significantly from the grounds stated in his motion to vacate, wherein Mr. Dunton never raised the issue of a void judgment. Though the issue of “void versus voidable” appears to have been discussed briefly in some of the parties’ subsequent filings with the trial court, the court did not address that issue. Irrеspective of Mr. Dunton‘s argument, a “void” judgment entry does not entitle a party to relief under
{¶13} Mr. Dunton urges that, because a trial court is without jurisdiction to modify a marital property decree, a contrary or conflicting division of property order is rendered void. We acknowledge that a court lacks the jurisdiction to modify the terms of a separation agreement incorporated into a divorce decree. Kalbaugh v. Kalbaugh, 9th Dist. Summit No. 28282, 2017-Ohio-4272, ¶ 5, citing Bond v. Bond, 69 Ohio App.3d 225, 227 (9th Dist.1990). However, Mr. Dunton‘s argument confuses a cоurt‘s lack of general jurisdiction with a court‘s lack of subject matter jurisdiction. “General jurisdiction” refers to the court‘s ability to exercise authority in a particular case, while the “subject matter jurisdiction” goes to the power of the сourt to adjudicate the merits of the case. Id. at ¶ 7-8, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11. Improper exercise of jurisdiction results in a voidable judgment, but lack of subject matter jurisdiction results in a judgment that is void. Id. at ¶ 8. A voidable decision becomes valid and binding if not challenged by a timely appeal. Id. at ¶ 9, citing Thomas v. Fick, 9th Dist. Summit No. 19595, 2000 Ohio App. LEXIS 2368, at *7 (June 7, 2000).
{¶14} Mr. Dunton has not suggested that the trial court lacked subject matter jurisdiction. Mr. Dunton‘s position is that the court improperly exercised its jurisdiction by entering a division of property order that impermissibly modified the terms оf the divorce decree. Even assuming the trial court did improperly exercise its jurisdiction, it would merely render the division of property order voidable and subject to appeal, but the order would not be void, as Mr. Dunton suggests. In any event, Mr. Dunton has not alleged facts or argument to satisfy any of the
{¶15} This Court concludes that Mr. Dunton did not demonstrate any grounds to show that he was entitled to relief under
{¶16} Ms. Archer‘s first assignment of error is sustained.
Assignment of Error II
The trial court erred by denying Ms. Archer‘s motion to modify the division of property order.
{¶17} In her second assignment of error, Ms. Archer contends the trial court erred when it failed to consider hеr motion to modify the division of property order to allow her to participate in the DROP benefits Mr. Dunton elected to receive. Mr. Dunton claims that Ms. Archer actually “asks this Court to allow a modification of the Decree of Divorce to award a share оf retirement benefits” through the DROP. Ms. Archer reasons that, because the trial court “made no mention” of the motion to modify the division of property order, it was deemed denied. In her brief to this Court Ms. Archer contends that “when the trial court enters judgment ‘without expressly determining a pending motion, the motion impliedly is denied.‘” Polivka v. Cox, 10th Dist. Franklin No. 02AP-1364, 2003-Ohio-4371, ¶ 23 (referring to the granting of a motion for summary judgment without first ruling on a pending motion to compel). However, Ms. Archer‘s argument is misplaced because the principle upon whiсh she relies is inapplicable to the facts in this case.
{¶18} There is no indication in the record that the court considered Ms. Archer‘s motion, which would appear to be moot in light of the court‘s decision to vacate the division of рroperty order. Further, although the trial court‘s judgment entry purportedly vacated the division of property order, the court did not take the next step to enter an amended division of property order. The trial court has yet to cоnsider Ms. Archer‘s motion to modify the division of
{¶19} For the reasons set forth above, Ms. Archer‘s second assignment of error is overruled.
III.
{¶20} Ms. Archer‘s first assignment of error is sustained, and her second assignment of error is overruled. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is reversed and the matter is remanded for proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, Cоunty of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamрed by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
JULIE A. SCHAFER
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JANE TIMONERE, Attorney at Law, for Appellant.
J. ANTHONY TERILLA, Attorney at Law, for Appellee.