Bonde v. Bonde, 91633 (5-7-2009)Bonde v. Bonde, 91633 (5-7-2009)
JOURNAL ENTRY AND OPINION
{¶ 1} Appellant, Mindi Bonde, appeals the judgment of the Cuyahoga County Court of Common Pleas, Division of Domestic Relations, that granted the motion for relief from judgment of appellee, Robert H. Bonde. For the reasons stated herein, we reverse the decision of the trial court.
{¶ 2} In this divorce action, the parties reached an “in court” settlement as to all pending issues on April 1, 2006. The agreement was memorialized by an in-court, hand-written agreement, which both parties executed. Thereafter, pursuant to local rule, counsel for Mindi prepared a proposed judgment entry of divorce, memorializing the parties’ in-court agreement. Robert filed a “rejection of defendant‘s submission and proposed corrections to judgment entry” on August 7, 2006 (hereafter “rejection and proposed corrections“). The trial court judge signed the judgment entry, without the requested corrections, and issued a final divorce decree on August 10, 2006.
{¶ 3} Thereafter, Robert filed a notice of appeal and a motion for relief from judgment. This court remanded the matter to the trial court, and on January 24, 2007, by agreement of counsel, the appeal was dismissed with prejudice.
{¶ 4} The motion for relief from judgment was assigned to a new judge. As acknowledged in the trial court‘s judgment entry on the motion for relief, “it is apparent that [Robert] objected to the identical issues in his submission to the trial court and his motion for relief from judgment.” Nevertheless, the trial court granted Robert‘s motion for relief from judgment on May 13, 2008.
{¶ 5} Mindi timely filed this appeal, raising four assignments of error for our review. We address only her first and fourth assignments of error, which are dispositive of the matter. The assignments of error provide as follows:
“I. The trial court erred and abused its discretion by granting the appellee‘s motion for relief from judgment.”
“IV. The trial court erred and abused its discretion by granting the appellee‘s motion for relief from judgment, where the appellee‘s motion was used as a substitute for a direct appeal; and the matters raised in the appellee‘s motion for relief from judgment were already ruled upon by [the trial court] * * *.”
{¶ 6} In ruling on the motion for relief from judgment, the trial court acknowledged that the issues raised therein were the same as those that had been submitted to the trial court in Robert‘s rejection and proposed corrections. In both pleadings, Robert argued that the judgment entry of divorce should be corrected with respect to (1) the division and cash values of various life insurance policies, (2) the erroneous allocation of bank accounts belonging to the parties’ minor children as custodian accounts, and (3) the resulting division of
{¶ 7} It is well settled that “[a]
{¶ 8} Here, Robert initially appealed the trial court‘s judgment entry of divorce. However, he dismissed that appeal and proceeded on his
{¶ 9} Insofar as Robert asserts that a mistake regarding accurate information or an inadvertent calculation constitutes grounds for relief from judgment, a “`mistake’ as contemplated by
{¶ 10} Even assuming, for the sake of argument, that Robert‘s motion for relief was properly filed pursuant to
{¶ 11} “Ohio law favors the enforcement of an in-court settlement agreement voluntarily reached between the parties * * *. Indeed, neither a change of heart nor poor legal advice is a reason to set aside a settlement agreement.” (Internal citations and quotations omitted.) Thompson v. Dodson-Thompson, Cuyahoga App. No. 90814, 2008-Ohio-4710. Furthermore, “[c]ourts must be wary and ensure that relief under
{¶ 12} In this matter, Robert inappropriately used
Judgment reversed.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., CONCURS; MELODY J. STEWART, J., DISSENTS (WITH SEPARATE OPINION)
{¶ 13} I respectfully dissent from the majority‘s conclusion that Robert Bonde cannot challenge defects in his divorce decree by way of a motion for relief from judgment under
{¶ 14} Any infirmities with Mr. Bonde‘s appeal in Case No. 88718 are simply not at issue in this appeal in Case No. 91633 by Mindi Bonde from the court‘s decision to grant relief from judgment. Instead of deciding the only issue before us in this appeal — whether the court abused its discretion by vacating
{¶ 15} Assuming for the sake of argument that the majority is correct in reviewing the circumstances of Mr. Bonde‘s appeal in Case No. 88718, a review of that case plainly shows that Mr. Bonde did not use a
{¶ 16} The facts of this case offer no basis for the application of the rule that a motion for relief from judgment cannot be used as a substitute for a timely
{¶ 17} Finally, I would find that the court did not abuse its discretion by granting relief from judgment. Despite the majority‘s assertion that Mr. Bonde did not establish proper grounds for relief from judgment, there was an undeniable error in the judgment entry because it did not list the net cash value of the insurance policies. That error arose from a proposed judgment entry prepared by Mindi Bonde that Mr. Bonde claimed, in his objections to that proposed judgment entry, did not accurately reflect the agreement of the parties. Given these facts, it is unclear to me why the majority concludes that Mr. Bonde