Felice L. Howard (nka Harris), Plaintiff-Appellant, v. Terry M. Howard, Defendant-Appellee.
No. 14AP-292
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 25, 2014
[Cite as Howard v. Howard, 2014-Ohio-5248.]
(C.P.C. No. 11DR-2189) (REGULAR CALENDAR)
Rendered on November 25, 2014
The Behal Law Group LLC, and John M. Gonzales, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
KLATT, J.
{¶ 1} Plaintiff-appellant, Felice L. Howard (nka Harris), appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, that denied her motion for
{¶ 2} In an agreed judgment dated October 12, 2012, the trial court granted Harris and defendant-appellee, Terry M. Howard, a divorce. The trial court also determined that the parties’ marriage terminated on December 31, 2009, and it divided the parties’ marital property. With regard to Howard‘s pension with the Ohio Public Employees Retirement System (“OPERS“), the trial court stated:
Plaintiff is to receive one-half of the marital share of the Defendant‘s OPERS retirement from the date of the marriage until December 31, 2009. * * * The DOPO required herein
shall be prepared by Pension Evaluators and the cost will be divided equally between the parties. Both parties are ordered to cooperate with Pension Evaluations to effectuate the completion of the DOPO within 120 days of the signing of this order.
(R. 164 at 3-4.)
{¶ 3} The acronym “DOPO” stands for division of property order. Using the process set forth in
{¶ 4}
{¶ 5} On October 11, 2013, Harris moved for relief from the divorce decree pursuant to
{¶ 6} In a judgment issued March 12, 2014, the trial court denied Harris’ motion. Harris now appeals, and she assigns the following error:
The trial court‘s denial of Ms. Harris’ [Civ.R.] 60(B) motion was an abuse of discretion.
{¶ 8} Here, Harris argues that the trial court erred when it concluded that she failed to demonstrate entitlement to relief under any
{¶ 9} Typically, in order to obtain
{¶ 10} On appeal, Harris claims that the mistake at issue is the parties’ shared belief that the divorce decree would divide the marital portion of Howard‘s OPERS benefits equally. That belief, however, is not a mistake: the decree grants Harris one-half
{¶ 11} During the hearing, Harris and her attorney engaged in the following colloquy:
Q: And, did you have an understanding of what you were to obtain or what was to be given to you as a result of the determination of the [d]e facto date of [December 31,] 2009?
A: I was told I‘d be getting a lump sum payment from what would be January 1st, 2010 until – well I assumed was Oct – October 2012, but since he had been getting the money that I would get the money that I was supposed to be receiving and that it would be a lump sum.
(Tr. 11-12.) The court interjected, “Who were you supposed to get that from?” (Tr. 12.) Harris responded, “My understanding was P-E-R-S (sic).” (Tr. 12.) Harris’ attorney then revisited the issue:
Q: Your understanding of the agreement that you reached was based upon your understanding that you were to receive a lump sum payment, you‘re thinking from –
A: P-E-R-S (sic).
Q: - P-E-R-S (sic)?
A: Yes.
Q: That it would come somehow out of the asset that was still remaining at P-E-R-S (sic)?
A: Correct.
(Tr. 13.)
{¶ 12} Howard did not appear at the hearing and, thus, did not testify as to his understanding as to how Harris would recover her portion of the benefits that OPERS had already paid to him. Moreover, Harris offered no testimony as to her knowledge of
{¶ 13} Harris, having argued that the mistake was mutual, does not offer any justification for failing to avoid the mistake. Accordingly, we conclude that Harris has failed to demonstrate a mistake that qualifies as a
{¶ 14} We next turn to Harris’ contention that she established the
{¶ 15} Here, the basis that Harris asserts for relief fits within
{¶ 16} In sum, because Harris cannot demonstrate a
Judgment affirmed.
DORRIAN and O‘GRADY, JJ., concur.