TERESA A. HILL v. JAMES E. ROSS
Nos. 99094 and 99122
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 9, 2013
[Cite as Hill v. Ross, 2013-Ohio-1903.]
Civil Appeals from the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. D-230987. BEFORE: Stewart, A.J., Celebrezze, J., and Rocco, J.
Kevin L. Starrett
Law Office of Kevin L. Starrett
17 1/2 N. Franklin Street
Chagrin Falls, OH 44022
ATTORNEY FOR APPELLEE-CROSS-APPELLANT
Jeffrey F. Slavin
Law Office of Jeffrey F. Slavin
The Standard Building
1370 Ontario Street, Suite 1810
Cleveland, OH 44113
{¶1} In 1994, the court dissolved a marriage between defendant-appellant-cross-appellee James Ross and plaintiff-appellee-cross-appellant Teresa Hill according to the terms of a separation agreement that provided Ross would pay for “all of the costs of a college education” for the parties’ two children. Ross contributed to the college expenses, but did not bear the entire cost of those expenses. When Ross‘s child support obligation terminated in 2011, Hill filed a motion to show cause why Ross should not be held in contempt for failing to pay all of the college expenses. Ross responded by asking for relief from judgment on grounds that he never agreed to pay all of the college expenses, that the separation agreement filed with the petition for dissolution had no such requirement, and that the version containing the college expenses provision had been given to the court either through mistake or fraud. Despite finding Ross‘s version of events to be “extremely credible,” a magistrate nonetheless denied relief from judgment because the motion was untimely. The magistrate refused to find Ross in contempt, but ordered that he pay $10,000 toward the college expenses. On appeal, Ross argues that he is entitled to relief from judgment; Hill cross-appeals and argues that the court erred by refusing to hold Ross liable for all of the college costs.
I
{¶3}
{¶4} “‘Clerical mistakes’ are considered mechanical in nature — the so-called ‘blunders in execution’ — as opposed to substantive mistakes that result from an application of discretion or judgment by the court.” Pursel v. Pursel, 8th Dist. No. 91837, 2009-Ohio-4708, ¶ 8, citing State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97, 100, 1996-Ohio-340, 671 N.E.2d 236; Kuehn v. Kuehn, 55 Ohio App.3d 245, 247, 564 N.E.2d 97 (12th Dist.1988). When reviewing a claim raised under
{¶5} The magistrate conducted a hearing on Ross‘s motion to correct the record. In findings of fact, she found that Ross did not have counsel at the time of the dissolution. Hill had counsel and twice met with her attorney: the first time, she signed the separation agreement making no provision for Ross‘s payment of college expenses that
{¶6} Hill filed the petition for dissolution. The petition was referred to a magistrate who conducted a dissolution hearing. The attorney did not attend that hearing, and Hill conceded that she submitted to the court the judgment entry and separation agreement that contained a clause requiring Ross to pay the college expenses. Ross claimed that he neither saw nor reviewed that judgment entry on the day it was presented to the magistrate. Indeed, he claimed to have been unaware that the college expenses clause had been added to the separation agreement until Hill filed her motion to have him held in contempt for failing to pay those expenses.
{¶7} We think the magistrate applied too narrow a view of
{¶9} The court‘s judgment entry dissolving the parties’ marriage recognized the limitations placed upon it by virtue of the parties’ separation agreement. It found that the parties filed a petition for dissolution of their marriage “and that attached thereto was a separation agreement signed by the parties which is fair, just and equitable.” The court also confirmed that the parties had in open court “acknowledged that they were still in agreement as to the terms thereof[.]”
{¶10} It is beyond debate from the language employed by the court that it intended to dissolve the marriage according to the terms of the separation agreement attached to the petition for dissolution (with one minor, inapplicable modification as noted). It is equally beyond debate that Ross did not agree to pay the college expenses — the
{¶11} By any measure, the court knew that the decree of dissolution that had been entered in 1994 contained a separation agreement that did not conform to the separation agreement attached to the petition for dissolution. That meant that the dissolution did not reflect the mutual agreement of the parties. When the court learned that its dissolution judgment did not conform to the separation agreement, it should have corrected the decree of dissolution under
{¶12} Hill argues that the separation agreement attached to the dissolution was not entered in error because Ross must have been aware that it contained the college costs provisions. She maintains that the separation agreement that the court attached to the decree of dissolution contained a revision to another paragraph of the agreement, initialed by both parties. By her reckoning, Ross‘s act of initialing a revision to this agreement meant that he must have read the entire separation agreement and acquiesced to any
{¶13} The parties’ initialing an amendment to the separation agreement did not mean that Ross acquiesced to adding the college expenses to a modified agreement. Indeed, by initialing their decision to modify the separation agreement that had been filed with the petition for dissolution, the parties manifested their understanding that modifications to the separation agreement should be memorialized. That the insertion of Ross‘s obligation to pay all college expenses was done without any memorialization by the parties underscores the conclusion that it was included in the modified separation agreement by error or fraud, either of which should have been corrected by the court under
{¶14} We therefore sustain this assignment of error, reverse, and remand to the trial court with instructions to correct the decree of dissolution by deleting the reference to Ross having the obligation to pay all of the college expenses of the parties’ children.
II
{¶15} As an alternative holding, and in addition to the court‘s error in refusing to correct the decree of dissolution by
To prevail on a motion brought under
Civ.R. 60(B) , the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated inCiv.R. 60(B)(1) through(5) ; and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R. 60(B)(1) ,(2) or(3) , not more than one year after the judgment, order or proceeding was entered or taken.
GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.
{¶16} The failure to establish any of the three elements required for seeking relief from judgment warrants denying the motion. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 520 N.E.2d 564 (1988).
{¶17} Although we agree with the magistrate that
{¶18} “Pursuant to
{¶19} Hill was not an officer of the court — she acted pro se when she delivered a judgment entry granting a dissolution of the marriage according to the terms of a separation agreement that was different from the one the parties attached to their petition for dissolution. She testified, however, that the separation agreement that she submitted along with the dissolution entry requested by the court had been prepared for her by an attorney. Ross testified that this was the same attorney who assured him that any language relating to college expenses would be deleted and not submitted to the court.
{¶20} Based on these facts as found by the magistrate, Ross had sufficient grounds for seeking relief from judgment under
{¶21} It is unclear whether Hill had knowledge of the alteration. She testified that she was aware that the separation agreement attached to the decree of dissolution contained the provision requiring Ross to pay all college expenses. But she conceded that she did not make a demand on him to pay those expenses until 2010 — after Ross‘s child support obligation terminated and the Cuyahoga Support Enforcement Agency informed her that he had overpaid his support obligation. As the magistrate found, “Mrs. Hill testified that she did not pursue collection of any funds that she paid for college tuition and expenses since 2005; and that she never sent a tuition letter to Mr. Ross for [either child] over the years.” Indeed, Hill presented no documentation of any kind to verify the amount she spent for college expenses. As Ross argued, Hill‘s actions in failing to document expenses and waiting more than five years to demand reimbursement were not those of a person who believed that she was entitled to reimbursement of college expenses beginning in 2004, the year when the first child began attending college. By finding Ross to be “extremely credible,” the magistrate essentially endorsed his argument that Hill herself was unaware at the time the court dissolved the marriage that Ross was solely responsible for college expenses.
{¶22} We conclude that the court erred by failing to consider whether Ross‘s motion for relief from judgment set forth grounds that fell within the
{¶23} This cause is reversed and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that defendant-appellant-cross appellee recover of plaintiff-appellee-cross-appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas — Domestic Relations Division 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.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR