Dunford v. DunfordDunford v. Dunford
APPEARANCES:
J. Roger Smith, II, Law Offices of J. Roger Smith, II, Huntington, West Virginia, for appellant.
William N. Eachus, Eachus & Finley, Gallipolis, Ohio, for appellee.
Harsha, J.
{1} Nearly five years after her dissolution became final, Cynthia Alease Dunford filed a motion to modify the support award based upon emotional problems and mental difficulties she purportedly experienced when she agreed to terminate her marriage with her former husband, Martin Edward Dunford. After Ms. Dunford provided testimony that Mr. Dunford‘s attorney had threatened her with jail if she did not sign the dissolution papers, the court treated her motion as a
{2} Ms. Dunford claims that the trial court erred in denying her motion because the evidence was uncontroverted that Mr. Dunford‘s attorney committed a fraud upon the court by threatening her with jail if she did not agree to the parties’ dissolution of marriage. However, even a
I. FACTS
{3} The parties were married for approximately 30 years and had one child, who is emancipated. In November 2006, the parties entered into a separation agreement in which they agreed that Mr. Dunford would be the residential parent of the child, Ms. Dunford would pay him $110.12 per month in child support, and Mr. Dunford would pay her spousal support of $500 per month for 36 months. In December 2006, the parties filed a petition for the dissolution of their marriage. During the negotiation of the parties’ settlement agreement and the dissolution proceeding, Mr. Dunford was represented by attorney James A. Pierce; Ms. Dunford chose not to be represented by counsel. She signed an acknowledgement of Pierce‘s representation of Mr. Dunford and waived any attorney-client privilege she had in the matter. In February 2007, the trial court entered a final dissolution decree, which incorporated the terms of the parties’ separation agreement. The trial court did not reserve jurisdiction to modify the spousal support award.
{4} Nearly five years later, in November 2011, Ms. Dunford filed a motion through counsel to modify the child support and spousal support provisions of the dissolution decree. Ms. Dunford claimed that when she signed the separation agreement, Mr. Dunford knew that she was experiencing “extreme emotional problems and mental difficulties,” which resulted in her being awarded supplemental security income (“SSI“) benefits shortly after the dissolution. Ms. Dunford contended that she should have received an award of permanent alimony. Mr. Dunford filed a motion to “dismiss” Ms. Dunford‘s motion.
{5} At the initial hearing on Ms. Dunford‘s motion she testified that Mr. Dunford‘s attorney, Pierce, had threatened her with jail if she did not sign the dissolution papers. The magistrate then determined that Pierce was a necessary witness and permitted him to withdraw as Mr. Dunford‘s counsel. Mr. Dunford then obtained new counsel, and a new hearing on the motion occurred.
{6} At that hearing Ms. Dunford and her father testified she had only a seventh-grade education and she had problems comprehending things, which eventually led to her award of SSI benefits. Nevertheless, she admitted that she signed all of the dissolution papers, including the petition. She further admitted that in the parties’ petition, she represented to the trial court that she “was not under any disability” and that at that time, she was not. She also conceded that her SSI benefits were awarded for a disability retroactive to August 2007, i.e., after the parties’ dissolution decree was entered. Ms. Dunford and her father acknowledged that no guardian or representative payee had ever been sought or appointed for her either at the time of the dissolution or thereafter.
{7} According to the evidence submitted on the motion, Ms. Dunford had refused to sign anything at initial hearing on the petition for dissolution because she did not want her marriage to end. She testified that at a second hearing Mr. Dunford‘s counsel, Pierce, threatened that if she did not sign the papers, she would be jailed. Her father‘s testimony corroborated the account of this threat based on a telephone call from Mr. Dunford following the parties’ dissolution. Ms. Dunford claimed that she agreed to the dissolution based on the attorney‘s threat.
{8} Shortly after the dissolution, Ms. Dunford‘s father advised her that the dissolution was improper because it was based on the threat and that they should get an attorney and go back to court to rectify the situation. Nevertheless, Ms. Dunford instead chose to attempt to reconcile with Mr. Dunford, and she moved back to the former marital home. The parties lived together until February 2011; Ms. Dunford filed her motion for a modification of spousal support about nine months later that year.
{9} The trial court magistrate issued a decision recommending treating her motion to modify as a
II. ASSIGNMENT OF ERROR
The Trial Court committed an abuse of discretion and reversible error in its decision to deny Appellant‘s underlying Motion, as it pertains to the modification of spousal support and/or relief from judgment, as the Court allowed the Appellant to proceed in this matter under Rule 60(B) of the Ohio Rules of Civil Procedure and the applicable provisions of Rule 60(B)(5) allow a party to move for relief from judgment upon a showing of fraud upon the Court, which was done in the case at hand through the uncontroverted testimony and evidence presented by the Appellant.
III. STANDARD OF REVIEW
{11} The standard of review for a
IV. LAW AND ANALYSIS
No Abuse of Discretion in Denying the Motion
{12} As the trial court acknowledged here, in general “[a] trial court lacks jurisdiction to modify a prior order of spousal support unless the decree of the court expressly reserved jurisdiction to make the modification and unless the court finds (1) that a substantial change in circumstances has occurred and (2) that the change in circumstances was not contemplated at the time of the original decree.” Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172, paragraph two of the syllabus. Because the separation agreement incorporated into the parties’
{13} Nevertheless, “[n]othing within
{14} To prevail on a motion for relief from judgment under
{15} Ms. Dunford asserts that the trial court abused its discretion in denying her motion because the evidence was uncontroverted that she is entitled to relief pursuant to
{16} More specifically, she claims that the evidence proved that the dissolution decree should be set aside because of a fraud upon the trial court. “Pursuant to
{17} Notwithstanding the trial court‘s conclusion, the uncontroverted evidence as presented by the sworn testimony of Ms. Dunford and her father was that Ms. Dunford only agreed to sign the dissolution papers because of a threat by Mr. Dunford‘s former attorney that she would be jailed if she did not. Although Mr. Dunford‘s new
{18} Insofar as Ms. Dunford additionally claims that evidence of her mental difficulties with comprehension also support relief under
{19} Nevertheless, as noted previously, Ms. Dunford did raise a potentially viable claim of fraud on the court under
{20} The trial court additionally determined, however, that Ms. Dunford‘s motion failed because she did not make it within a reasonable time. Although a
{21} The trial court did not act in an unreasonable, arbitrary, or capricious manner in determining that Ms. Dunford failed to raise her claim of fraud within a reasonable time. She contends the threat of jail was made to compel her to agree to the dissolution, which was finalized in February 2007. It was not until November 2011,
{22} Ms. Dunford claims that the delay was justified because “it is illogical and would make no sense” for her to have sought relief from judgment while the parties were cohabiting after the dissolution. However, she cites no case for the proposition that an attempted reconciliation always insulates a party‘s delay in filing a
V. CONCLUSION
{23} Having overruled the assignment of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ______________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.