MELISSA M. BEARD (nka Blair), Plaintiff-Appellant v. PHILLIP L. BEARD, Defendant-Appellee
C.A. CASE NO. 2012 CA 66
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
August 2, 2013
2013-Ohio-3375
T.C. NO. 05DR260 (Civil appeal from Common Pleas Court, Domestic Relations)
PHILLIP L. BEARD, 260 N. Detroit Street, Xenia, Ohio 45385 Defendant-Appellee
OPINION
FROELICH, J.
{¶ 1} Melissa M. Beard, nka Melissa Blair, appeals from a judgment of the Greene County Court of Common Pleas, Domestic Relations Division, which denied her
{¶ 2} In August 2005, after sixteen years of marriage, Ms. Blair filed a complaint for divorce from her husband, Phillip Beard. At that time, the parties owned several pieces of real property, including the marital residence, a rental property in Xenia, Ohio, and a cabin on Indian Lake in Russell Point, Ohio. The marital residence and the rental property were titled in Ms. Blair’s name; the Indian Lake property was titled jointly. The marital property had a first and second mortgage, and there were outstanding loans on the other two properties, as well. Ms. Blair owned another property on Promenade Lane in Xenia; the parties agree that this was Ms. Blair’s separate property, not marital property. Both parties submitted pretrial statements of assets and liabilities, which included proposed dispositions of the real property.
{¶ 3} On May 2, 2006, the trial court issued a final judgment and decree of divorce. The judgment stated, in part:
The parties acknowledged execution of a Separation Agreement resolving all issues arising out of the termination of the parties’ marriage, and that said terms are fair and equitable on their face. A copy of the agreement is attached to this decree. The terms of the Separation Agreement are found by the Court to be fair and equitable and the Court orders that the Separation Agreement be made a part of this Decree and an Order of the Court.
{¶ 4} Item X, subsection A, of the Separation Agreement addressed the division of the parties’ real property. The agreement indicated that Mr. Beard had exclusive occupancy of the marital residence, that he had refinanced the first and second mortgages on the
{¶ 5} The portion of the Separation Agreement that addressed marital liabilities1 further provided that Mr. Beard would be responsible for seven debts, including the mortgage loans on the marital residence, rental property, and Indian Lake property. There was a notation that the mortgages for the marital residence were paid in full when Mr. Beard refinanced that property. Mr. Beard was to “save and indemnify Wife harmless” from the listed debts.
{¶ 6} Ms. Blair and Mr. Beard signed both the Separation Agreement and the court’s final judgment and decree of divorce.
{¶ 7} More than six years later, on October 10, 2012, Ms. Blair filed a
{¶ 8} Mr. Beard opposed the motion. He argued, in part:
* * * [T]he parties agreed that there would be no requirement to refinance these two properties based upon the total additional cost of refinancing, approximately $3,000 for each property, and further based upon the debt load being assumed by the Husband, pursuant to Item X (Marital Liabilities) of the Separation Agreement, and further based upon the amount of spousal support and child support which Defendant would be paying.
Mr. Beard stated that Ms. Blair and her attorney knew that there was no requirement that he refinance the two properties at issue. He noted that Ms. Blair’s attorney drafted the Settlement Agreement.
{¶ 9} The trial court denied the motion without a hearing. The court found there was no meritorious claim and that there was no reason justifying relief under
{¶ 10} Ms. Blair appeals from the trial court’s judgment. Her sole assignment of error states that “[t]he trial court erred and abused its discretion in denying the Appellant’s motion for relief pursuant to
{¶ 11}
{¶ 12} We review the trial court’s determination of a
{¶ 13} On appeal, Ms. Blair argues that the trial court failed to fully divide the parties’ marital property when it failed to require Mr. Beard to refinance the rental and Indian Lake properties. She further states that her credit could be seriously impaired if Mr. Beard fails to make timely payments on the mortgages, and it “stands to reason” that he
{¶ 14}
{¶ 15}
{¶ 16} Upon review of the record, we find no abuse of discretion in the trial court’s denial of Ms. Blair’s
{¶ 17} Ms. Blair has not demonstrated how the division of real property and marital liability sections of the Settlement Agreement were not fair and equitable. Ms. Blair states that her credit could be impaired if Mr. Beard should fail to timely make mortgage payments, but there are no allegations that Mr. Beard has, in fact, defaulted on the loans and mortgages. In addition, the terms in the Settlement Agreement are virtually identical to those contained in Ms. Blair’s pretrial statement, in which she proposed that Mr. Beard “shall also retain [those] properties, shall make the monthly mortgage payments thereon when due, and shall save and indemnify Wife harmless therefrom. Further, Husband shall retain these properties free from any claim of Wife.” In short, we find no extraordinary circumstances that require a granting of relief from the final judgment and decree of divorce. Ms. Blair may now regret failing to include a refinancing requirement for the rental and Indian Lake properties in the Settlement Agreement, but the lack of such a term does not warrant vacation of the judgment.
{¶ 18} As to the additional requirements for
{¶ 19} The trial court did not abuse its discretion in denying Ms. Blair’s
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Melissa M. Beard (nka Blair)
Phillip L. Beard
Hon. Craig R. Baldwin