PATRICIA L. MELTON, Plaintiff-Appellant, vs. TODD T. MELTON, Defendant-Appellee.
APPEAL NO. C-130123
TRIAL NO. DR-0901452
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
November 1, 2013
[Cite as Melton v. Melton, 2013-Ohio-4790.]
Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division; Judgment Appealed From Is: Affirmed
Niehaus Law, LLC, and Daniel A. Niehaus, for Plaintiff-Appellant,
Moskowitz & Moskowitz, LLC, and James H. Moskowitz, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
{¶1} Plaintiff-appellant Patricia Melton appeals the judgment of the trial court denying her motion for relief from judgment. She argues that her former counsel had committed gross negligence by failing to provide for the trial court‘s continuing jurisdiction over spousal support in Mrs. Melton‘s separation agreement with defendant-appellee Todd Melton. Because we determine, as did the trial court, that Mrs. Melton‘s motion fell outside the purview of
{¶2} Mrs. and Mr. Melton entered into a final decree of divorce on May 14, 2010. In conjunction with the divorce action, the Meltons had entered into a separation agreement, which was then incorporated into and made part of the divorce decree. The separation agreement provided that Mr. Melton would pay Mrs. Melton $2,500 per month for 36 consecutive months. The separation agreement also contained the following language with regard to the court‘s jurisdiction over spousal support: “[T]he term of the spousal support and the amount of the spousal support payments to be paid by Husband to Wife shall never be increased, decreased, or changed in any manner by any court for any reason. The term of the payments set forth in this Article are [sic] forever final, binding and conclusive upon the parties and upon all courts for all purposes whatsoever.”
{¶3} Prior to the final entry of the divorce decree, the trial court held a hearing in which Mrs. Melton testified that she had read the separation agreement thoroughly, she had signed it, and she had understood its contents. She also testified
{¶4} On September 12, 2012, Mrs. Melton filed a motion for relief from the final decree of divorce under
{¶5} In support of her motion, Mrs. Melton attached email correspondence between her attorney and her, as well as her attorney and Mr. Melton, who had been unrepresented at the time of the final settlement negotiations. In an email from Mrs. Melton‘s attorney to Mr. Melton dated March 8, 2010, Mrs. Melton‘s attorney had presented two alternatives for settlement, both of which had “require[d] that the Court retain jurisdiction over spousal support.” The emails that followed between Mrs. Melton‘s attorney and Mr. Melton had related to a three-year duration for spousal support and did not mention continuing jurisdiction. Mrs. Melton also attached a draft settlement agreement to her motion. That agreement had included the same language disclaiming any reservation of jurisdiction over spousal support that had been included in the final separation agreement; however, in that draft agreement, spousal support could have been deferred if Mr. Melton had sustained an involuntary loss of employment. Mrs. Melton also attached to her motion a letter
{¶6} Mr. Melton filed a memorandum in opposition to and a motion to dismiss Mrs. Melton‘s
{¶7} On October 26, 2012, Mrs. Melton served a subpoena on her former attorney, requesting all documents, including correspondence and emails, related to Mrs. Melton‘s representation. Her former attorney filed a motion to quash the subpoena, arguing that compliance with the subpoena would be unduly burdensome given that Mrs. Melton had already received her complete file and that Mrs. Melton had declined to receive email correspondence at that time. The trial court held a hearing on the motion to quash where Mrs. Melton‘s former counsel stated that the cost to retrieve the years-old correspondence and the time required to review the documents for production would be prohibitive. Mrs. Melton argued at the hearing that she needed the correspondence to pursue her
{¶8} Without holding a hearing on Mrs. Melton‘s motion for relief from judgment, the trial court denied her motion. In addition to determining that Mrs. Melton could not demonstrate that she had a meritorious claim to present if relief from judgment were granted, the trial court reasoned that Mrs. Melton‘s claim under
{¶9} In a single assignment of error, Mrs. Melton argues that the trial court erred by denying her motion for relief from judgment. We review a trial court‘s ruling on a motion for relief from judgment for abuse of discretion. W2 Properties, LLC v. Haboush, 196 Ohio App.3d 194, 2011-Ohio-4231, 962 N.E.2d 858, ¶ 21 (1st Dist.), citing GTE Automatic Elec. Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976).
{¶10} Under
(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 * * *, 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.
Motions for relief brought under
{¶11} A party moving for relief from judgment under
{¶12}
{¶13} As a general matter, negligence of a party‘s attorney will be imputed to the party for purposes of
{¶14} Mrs. Melton argues that her motion for relief from judgment alleged gross negligence on the part of her former counsel in drafting the settlement agreement, which rises to the level of “extraordinary circumstances” contemplated by
{¶15} In Whitt, the plaintiffs’ counsel failed to respond to two sets of discovery, as well as an order compelling the information sought in discovery. All of this prompted a motion to dismiss. Counsel then failed to attend the hearing on the motion to dismiss, and the court dismissed plaintiffs’ complaint with prejudice. All the while, the plaintiffs believed that their case would go to trial. The trial court denied plaintiffs’ motion for relief from judgment under
{¶16} In her
{¶17} There is nothing in the record before us to demonstrate misleading conduct on the part of Mrs. Melton‘s attorney. In fact, Mrs. Melton had received a draft of the settlement agreement, which had contained the same clear, unequivocal language prohibiting continuing jurisdiction over spousal support. Mrs. Melton had signed the final settlement agreement with the prohibition of continuing jurisdiction. Then, Mrs. Melton had attended a hearing on her decree of divorce where she had acknowledged that she had read and understood the settlement agreement and had wished the agreement to become incorporated into the court‘s order of divorce.
{¶18} Mrs. Melton‘s allegations raise, at most, negligence on the part of her attorney that would be imputed to Mrs. Melton under
{¶19} Our determination that Mrs. Melton has failed to show entitlement to relief under one of the grounds listed in
{¶20} Mrs. Melton also argues that the trial court erred in overruling her motion for relief from judgment without allowing her to enforce her subpoena on her former counsel for additional correspondence and without a hearing. Because we have determined, as did the trial court, that Mrs. Melton‘s motion did not allege operative facts that would support relief under
{¶21} In conclusion, the trial court did not abuse its discretion in denying Mrs. Melton‘s motion for relief from judgment. We overrule Mrs. Melton‘s sole assignment of error, and affirm the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.