LaCourse v. LaCourseLaCourse v. LaCourse
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Martin E. Mohler, for appellee.
Jeremy W. Levy and Brianna L. Stephan, for appellant.
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ZMUDA, J.
I. Introduction
{¶ 1} Appellant, John LaCourse, appeals the March 15, 2022 judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, denying his motion to vacate the February 16, 2022 consent judgment entry that amended the terms of the parties’ previously-granted divorce decree. For the following reasons, we affirm the trial court‘s judgment.
{¶ 2} Appellee, Tonya LaCourse, filed a complaint for divorce from appellant on September 9, 2019. On May 24, 2021, the trial court granted the parties a divorce through a final judgment entry. In granting the divorce, the trial court found “that the parties have settled all their rights and interests arising out of and relating to division of property * * * and after reviewing the agreement of the parties find same to be fair and equitable and hereby approves same.” Relevant to the present appeal, the parties agreed that appellant would “retain as his own, free from any claim on the part of [appellee] all right, title, and interest in and to his * * * pension plans, and other retirement plans in his possession[.]” Both parties and their respective counsel signed the divorce decree and the trial court granted them their divorce through a consent judgment entry.
{¶ 3} On November 23, 2021, appellee filed a motion for relief from that judgment pursuant to
{¶ 4} On March 1, 2022, appellant filed a motion for leave to file an opposition to appellee‘s already-granted
{¶ 5} On March 3, 2022, the trial court denied appellant‘s motion for leave to file his opposition to appellee‘s motion for relief, finding that it had been rendered moot by the prior granting of appellee‘s motion. On March 15, 2022, the trial court denied appellant‘s motion to vacate the February 16, 2022 consent judgment entry granting appellee‘s motion. In denying the motion to vacate, the trial court construed appellant‘s allegations as a motion for relief from judgment pursuant to
{¶ 6} Appellant timely appealed and asserts the following errors for our review:
- The trial court‘s lack of subject matter jurisdiction to modify a final property division rendered the February 16, 2022 order voidable.
- Appellant alleged a meritorious defense and demonstrated an entitlement to relief under at least one of the grounds enumerated by
Civ.R. 60(B) .
II. Law and Analysis
A. The trial court had subject matter jurisdiction to modify the parties’ divorce decree pursuant to R.C. 3105.171 .
{¶ 7} In his first assignment of error, appellant argues that the trial court lacked subject matter jurisdiction to modify the parties’ May 24, 2021 divorce decree. Appellant makes two arguments in support of his assigned error. First, he argues that because the trial court‘s judgment resulted in a substantive change to the prior judgment and was, therefore, not subject to modification through a nunc pro tunc order. Second, he alleges that appellee‘s filing of a
1. The trial court‘s identification of the February 16, 2022 judgment entry as a nunc pro tunc order does not constitute reversible error.
{¶ 8} A trial court‘s issuance of a nunc pro tunc order is to “correct errors which are clerical in nature.” See Friedrich v. Honeywell, 6th Dist. Lucas No. L-08-1300, 2009-Ohio-661, ¶ 10. Nunc pro tunc entries cannot be used to make substantive changes to a
{¶ 9} “Just because a trial court refers to an entry as nunc pro tunc does not make it so established.” Gauthier v. Gauthier, 12th Dist. Warren No., 2019-Ohio-4208, ¶ 71, citing State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-184, 907 N.E.2d 333, ¶ 15 (3d Dist.). The substance of the judgment entry determines whether the judgment actually constitutes a nunc pro tunc entry or was incorrectly identified as such. See Yeaples at ¶ 71-72 (holding that the trial court‘s nunc pro tunc judgment entry was not actually a nunc pro tunc entry, despite its title, as it was the first recitation of all substantive findings and only modified an interlocutory order); State v. Shamaly, 8th Dist. Cuyahoga No. 88409, 2007-Ohio-3409, ¶ 7-8 (holding that the judgment entry identifying the amount of the
{¶ 10} Further, when an incorrect statement in a judgment entry does not result in prejudice to the appellant, the inclusion of those statements does not constitute reversible error. See First Place Bank v. Blythe, 7th Dist. Columbiana No. 12 CO 27, 2013-Ohio-2550, ¶ 2, 32 (holding that an incorrect statement in a judgment entry that does not serve as the basis for the final judgment is not a reversible error because appellant did not suffer prejudice resulting from the incorrect statement); Myers v. Myers, 153 Ohio App.3d 243, 2003-Ohio-3552, ¶ 40 (7th Dist.) (holding that a trial court‘s inclusion of superfluous findings in its judgment entry that did not serve as the basis for the judgment did not constitute prejudicial error).
{¶ 11} Here, despite the judgment entry‘s caption, the trial court did not actually grant the modification as the correction of a clerical error in the prior judgment. Instead, the record clearly shows that the trial court‘s modification of the divorce decree was accomplished through the granting of appellee‘s motion for relief from judgment and “by consent of the parties.” Therefore, the February 16, 2022 judgment entry was not a nunc pro tunc entry, though captioned as such, but was actually a consent judgment entry granting relief from the prior decree and constitutes the court‘s substantive final judgment on an issue raised subsequent to that decree. Appellant‘s argument that the trial court‘s
2. The parties’ consent entry provided the trial court with jurisdiction to modify the divorce decree.
{¶ 12} Appellant also argues that the trial court lacked jurisdiction to modify the divorce decree. Specifically, appellant argues that he did not authorize his counsel to settle appellee‘s
{¶ 13} As a preliminary matter, we note that “[a]ppellate review of a trial court‘s order is limited to the record made in the trial court.” Salpietro v. Salpietro, 2023-Ohio-169, -- N.E.3d --, (6th Dist.) ¶ 9, citing Fifth Third Bank v. Fin. S. Office Partners, Ltd., 2d Dist. Montgomery No. 23762, 2010-Ohio-5638. “The record that we can consider is
{¶ 14}
B. The trial court did not err in denying appellant‘s motion to vacate.
{¶ 16} In his second assignment of error, appellant argues that the trial court erred in denying his March 2, 2022 motion to vacate the February 16, 2022 judgment. Appellant alleges that the trial court‘s failure to consider whether he was entitled to relief from judgment pursuant to
{¶ 17} Initially, we note that appellant‘s March 2, 2022 motion to vacate does not reference
{¶ 18}
(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment.
{¶ 19}
{¶ 20} In order to prevail on a motion for relief from judgment, “the moving party must demonstrate that he or she (1) has a meritorious defense or claim to present if the relief is granted, (2) is entitled to relief under one of the grounds stated in
{¶ 21} Appellant‘s motion to vacate only alleged that he was entitled to relief from judgment because he did not authorize his counsel to enter into the February 16, 2022 consent judgment entry. The trial court denied appellant‘s motion, citing Maumee Equip. Inc. v. Smith, 6th Dist. Lucas No. L-85-168, 1985 WL 8227 (Nov. 22, 1985). In Maumee Equipment, this court held that, “[a]s a general rule, the neglect of a party‘s attorney will be imputed to the party for purposes of
{¶ 22} Appellant does not challenge the trial court‘s decision as to the lack of grounds for relief under
{¶ 23} “Arguments raised for the first time on appeal are generally barred.” Lester v. Don‘s Automotive Group, LLC, 181 N.E.3d 1129, 2021-Ohio-4397, ¶ 49 (6th Dist.). “Such arguments are barred by the doctrine of waiver for failure to raise these arguments before the trial court.” State v. Talley, 6th Dist. Lucas Nos. L-22-1131, L-20-1132, 2021-Ohio-2558, ¶ 22. “Litigants must not be permitted to hold their arguments in reserve for appeal, thus evading the trial court process.” Id. Appellant‘s sole argument in his motion to vacate was that his counsel did not have authority to settle appellee‘s claims on his behalf. This, he argued, resulted in the trial court‘s lack of jurisdiction over appellee‘s
{¶ 24} Further, appellant‘s motion does not allege any operative facts beyond the lack of settlement authority as the basis for relief from judgment. As we previously noted, mistakes by counsel, or surprise resulting from those mistakes, are attributable to appellant and reviewed under
{¶ 25} In sum, appellant‘s motion to vacate did not allege any fraudulent conduct by an adverse party, or any facts supporting application of the catch-all provision, as grounds for relief from judgment pursuant to
III. Conclusion
{¶ 26} For the foregoing reasons, we find appellant‘s first and second assignments of error not well-taken. Therefore, we affirm the March 15, 2022 judgment of the Lucas County Court of Common Pleas, Domestic Relations Division.
{¶ 27} Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J. ____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.