Ouellette v. OuelletteOuellette v. Ouellette
Darlene R. Ouellette
Appellant
v.
Johnnie E. Ouellette
Appellee
DECISION AND JUDGMENT
*****
Danielle C. Kulik, for appellant.
Kyle R. Wright and Zachary E. Dusza, for appellee.
ZMUDA, P.J.
{1} This matter is before the court on appeal from the judgment of the Erie County Court of Common Pleas, Domestic Relations Division, granting defendant-appellee‘s motion for relief from judgment and entering a new order concerning property distribution, based on a finding of mutual mistake. For the reasons that follow, we reverse and remand for further proceedings.
I. Facts and Procedural Background
{2} Appellant, Darlene Ouellette and appellee, Johnnie Ouellette were married in 1994, and have three children, born August 19, 1995, September 21, 1996, and September 10, 1999. On June 24, 2016, appellant filed a complaint for divorce. Appellee filed a counterclaim for divorce with his answer. The matter proceeded through discovery, with the trial court addressing various discovery disputes. Two months before the scheduled trial date, the parties engaged in a settlement conference at the offices of appellant‘s attorney.
{3} After a successful settlement conference, the parties entered into a stipulated judgment entry and divorce decree, resolving all matters in controversy. The trial court placed the agreement on the record, at hearing on April 18, 2017, with the divorce decree journalized April 20, 2017. As agreed, appellant received the marital home, and appellee received
4.06(N). One Hundred and Ten Thousand Dollars ($110,000.00) from [appellant‘s] O.P.E.R.S. account, which [appellant] shall cooperate with [appellee], and [appellee] shall cause to be transferred to a drop account in his name by a Division of Property Order (D.O.P.O.), within ninety (90) days or be forever barred, with costs, expenses, and taxes allocated to [appellee].
Appellant‘s attorney explained the language stricken from the entry to the trial court, at hearing, as follows:
There was a provision in here, which has been crossed out, and the parties understand that and are in agreement to that, that it was going to be within 90 days, but we understand this is not a quick process –
{4} After entry of the divorce decree, the parties learned that appellee could not receive any distribution from appellant‘s OPERS account until she actually retired. The disbursement to appellee, moreover, would be in periodic payments after appellant retired.1
{5} Upon learning that a lump sum from appellant‘s OPERS account was impossible, counsel for appellee suggested payment of the lump sum from appellant‘s deferred compensation account, which he believed contained sufficient funds, but appellant refused. When appellant indicated no present intention to transfer any funds to appellee, he filed a motion for relief from judgment, pursuant to
{6} Appellee requested either an award against appellant‘s deferred compensation account in the amount of $110,000 in order to remedy the mistake, or an order vacating the entire property settlement so the parties might negotiate a new settlement, arguing the lump sum payment was a material term of the settlement agreement. Appellant opposed the motion, arguing any award against her deferred compensation account would be a modification to the property division without proper reservation of jurisdiction. She also argued lack of mutual mistake, and that immediate payment of the $110,000 was never a term of the parties’ agreement.
{7} The trial court held an evidentiary hearing on the motion, and counsel for appellee and the parties testified regarding their understanding of the terms of the property settlement. Appellant and appellee each testified that they understood appellee would receive a present lump sum payment of $110,000, mistakenly believing that OPERS would distribute the funds from appellant‘s OPERS account. Appellant testified regarding a lump sum payment, stating:
Well, I guess I‘m learning today that he can‘t have a lump sum award. Prior to that, I was under the impression that it was going to go into a drop account and that he would get it out of there and that was – that was my understanding is that the 110,000 would go into a drop account and then he would draw money from there. If he drew it all or he drew it monthly, you know, I wasn‘t privy to that. I just knew that he was going to
get 110,000 out of my retirement account.
She also acknowledged that the purpose of consulting with an expert was “to see if he could get a lump sum of my retirement.”
{8} After considering the testimony and existing authority, the trial court found either mutual mistake or unilateral mistake, preventing formation of a valid agreement between the parties regarding property division. The trial court granted the motion for relief, but rather than vacate the entire property award or order payment from appellant‘s deferred compensation fund, as requested, the trial court vacated only the portion of the decree that ordered distribution from appellant‘s OPERS account. Additionally, the trial court entered an order that appellant pay appellee the lump sum of $110,000, within six months, without specifying the source of the funds. Appellant now appeals that judgment, asserting the following assignments of error:
- 1. THE COURT ERRED IN FINDING IT HAD JURISDICTION TO MODIFY THE PROPERTY DIVISION
- 2. THE COURT ERRED GRANTING THE MOTION FOR
CIV.R. 60(B) RELIEF. - 3. THE REMEDY THE COURT ORDERED WAS CONTRARY TO LAW AND THE TIMING OF DISBURSEMENT WAS AN ABUSE OF DISCRETION.
II. Analysis
{9} The trial court granted appellee relief from judgment, as provided under
A. Jurisdiction to Modify
{10} In her first assignment of error, appellant challenges the trial court‘s jurisdiction in modifying the agreement pursuant to
{11} Appellant first argues that the trial court failed to retain jurisdiction to modify the property distribution, and
[T]he court that enters the decree * * * does not have jurisdiction to modify the amount or terms * * * unless the court determines that the circumstances of either party have changed and unless * * * the decree or a separation agreement * * * contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.”
R.C. 3105.18(E)(1) -(2).
As noted in Morris, “[i]n
{13} The dispute in this case, however, does not concern spousal support, but instead concerns the division of marital property, governed by
(I) A division or disbursement of property or a distributive award made under this section is not subject to future modification by the court except upon the express written consent or agreement to the modification by both spouses.
At the time the trial court entered judgment, the Ohio Supreme Court had not yet addressed the interplay between
{14} In Walsh, the parties intended, as a term of the divorce decree, that the wife receive direct payment from the government, as her portion of her husband‘s military pension. However, the rules governing military pensions required a marriage lasting at least 10 years before the military could issue direct payment to the service-member‘s spouse. Walsh at ¶ 8, citing 10 U.S.C. 1408(d)(2). The parties married in 1994 and separated after six years, but more than 13 years passed before the divorce filing. Walsh at ¶ 2. Based on the time the couple lived together as husband and wife, the decree recited a 6-year marriage, as permitted under
{15} More than a year passed, and the wife learned that direct payments were not possible based on the recitation of a 6-year marriage in the decree. She filed a motion for relief from the judgment pursuant to
{16} In reversing that judgment, the Ohio Supreme Court noted the following:
The change to the decree ordered by the domestic-relations court is best understood as a modification to a property division. The provisions of the decree at issue divided the pension by specifying the dates of the marriage. By changing the marriage length, the trial court modified the terms of the divorce decree with respect to a division of property. The parties did not both consent to that modification to the property division, so by the plain language of R.C. 3105.171(I) , the court had no authority to order the change. Walsh at ¶ 20.
{17} Acknowledging the decision in Morris, the Court recognized that the statutory provision limiting modification “is a rule of substantive law” and the procedural rule,
{18} Clearly, in this case, the trial court modified the consent decree without the consent of both parties. Similar to the court in Walsh, the trial court changed the consent decree in order to alter the manner of payment to appellee, striking the impossible lump sum from OPERS in favor of a cash payment by appellant to appellee, within 6 months. While acknowledging the lack of consent, appellee argues that
{19}
{20} We find this argument unpersuasive.
{21} Continuing jurisdiction over pension disbursements under
B. Civ.R. 60(B) Determination
{23} While we agree with appellant that the trial court lacked jurisdiction to modify the consent decree, we must also consider appellant‘s argument that the trial court lacked jurisdiction to consider a
{24} There is nothing within
{25} In Ohio, divorce is “a creature of state statute.” Barth v. Barth, 113 Ohio St.3d 27, 2007-Ohio-973, 862 N.E.2d 496, ¶ 9, citing Coleman v. Coleman, 32 Ohio St.2d 155, 159, 291 N.E.2d 530 (1972); see also Soyk v. Soyk, 45 Ohio App.2d 319, 321, 345 N.E.2d 461 (9th Dist.1975) (“Actions for divorce * * * are purely statutory in nature.“). As stated in Walsh, a substantive statutory provision controls over a procedural rule, and where the statute requires consent to modify the property order, a party may not bypass that provision with a
{26} The statute applicable to property division,
{27} In Morris, the Supreme Court considered the limitations to
{28} In the realm of domestic-relations law, ‘modification order’ has a particular meaning:
[a] post-divorce order that changes the terms of child support, custody, visitation, or alimony. A modification order may be agreed to by the parties or may be ordered by the court. The party wishing to modify an existing order must show a material change in circumstances from the time when the order sought to be modified was entered. Morris at ¶ 53, quoting Black‘s Law Dictionary, 1157 (10th Ed.2014).
{29} Considering the prospective, ongoing nature of spousal support, child support, custody and visitation, an order vacating future payments or future rights to custody or visitation unquestionably modifies such orders. See Morris at ¶ 53 (as to spousal support, “any action taken to change the nature, amount, terms of payment, and duration of spousal support, including vacating the award” is a modification under
{30}
{31} The Supreme Court in Walsh noted the Whitman decision and its reliance on a subsequently amended statute as follows:
In Whitman, we held that a court, pursuant to
Civ.R. 60(B)(1) , (2), and (3), could make postdecree modifications to a property division when the parties had incorporated a provision in the decree allowing for future modifications by court order. Whitman was decided prior to the amendment ofR.C. 3105.171(I) in 2010 by Am.Sub.H.B. No. 238 that added its current final phrase regarding “express written consent or agreement to the modification by both spouses.” (Emphasis added.) Because the issue is not before us, we express no opinion today as to whether a reservation of jurisdiction would be a sufficient basis to allow a court to modify a property division viaCiv.R. 60(B)(1) , (2), or (3) under the current statutory scheme. Walsh, 157 Ohio St.2d 322, 2019-Ohio-3723, 136 N.E.3d 460 at ¶ 28, fn 3.
{32} The Court in Walsh noted, without deciding, the issue of whether “reservation of jurisdiction” language satisfied the consent requirement of
{33} Construing the language of
{34} In order to prevail on a motion for relief, “[t]he 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
{35} An “abuse of discretion” requires a finding of more than an error of judgment, and implies the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Appellant challenges the grant of relief as an abuse of discretion considering all three prongs of the GTE test, arguing no meritorious defense, no mistake, and an untimely motion.
{36} Appellant first argues that the trial court erred in finding a meritorious defense in support of appellee‘s motion for relief from judgment. The trial court found that the parties had intended to reach an equal division of marital property, which included the immediate, lump sum payment to appellee. Such a claim, where supported by the record, is sufficient to demonstrate a meritorious defense or claim. See e.g. Souders v. Souders, 6th Dist. Sandusky No. S-98-017, 1998 WL 735336 (Oct. 23, 1998) (where parties entered into consent agreement, 60(B) relief appropriate where judgment resulted in inequitable division of property and wife argued fraud, duress, or undue influence).
{37} The record demonstrates the parties contemplated a present payment of $110,000 to appellee, as a material term in the agreement for equal division of marital property. As to the 90-day language, excised from the consent entry, appellant‘s counsel indicated “that it was going to be within 90 days, but we understand this is not a quick process.” Appellant, moreover, acknowledged at hearing that she was to make a payment to appellee as part of the property settlement. Considering the record, the trial court‘s finding was not unreasonable, arbitrary, or unconscionable, and appellant has failed to demonstrate any abuse of discretion.
{38} Appellant next argues that there was no mistake, because the consent judgment contained no language of an immediate, lump sum payment, and trial counsel‘s failure to include such “essential terms” may not serve as the basis for appellee‘s claim of mutual mistake. While the consent entry originally recited payment within 90 days, with that language crossed out, the trial court placed the agreement on the record at the time it accepted the consent decree, with counsel for each party testifying as to the terms. The trial court also heard the testimony of the parties and appellee‘s counsel at the evidence hearing on appellee‘s motion seeking relief.
{39} As to the consent decree, appellant‘s counsel explained, on the record, the elimination of the 90-day language, indicating the process to release the funds could take longer. At the hearing on appellee‘s motion for relief from judgment, both parties acknowledged that they contemplated a lump sum payment as a term of the property settlement. Furthermore, while appellant received contrary advice prior to the settlement conference regarding disbursements from her OPERS account, she either relied on the expert retained for the settlement conference, or knew that appellee relied on that expert in agreeing to the settlement, and chose to remain silent and reap the benefit from his misunderstanding
{40} Finally, appellant argues that appellee failed to file a timely motion. The record clearly demonstrates that appellee filed his motion within the one-year limitation of
{41} Here, appellant argues that nine months is an unreasonable amount of time for appellee to neglect his rights, because the information pertaining to the OPERS account was readily available on the date the parties entered the settlement and filed the consent judgment. This argument, however, requires a finding that there was no mistake regarding the possibility of obtaining a lump sum payment from appellant‘s OPERS account.
{42} The trial court determined either mutual or unilateral mistake existed at the time the parties entered into the consent decree, entitling appellee to relief from the judgment as it pertained to the property distribution. Based on the record, there appears no undue delay between the time appellee discovered the impossibility of a lump sum disbursement and the time appellee filed his motion seeking relief from judgment. Based on the facts, we find no abuse of discretion in the trial court‘s determination of a timely motion. We therefore find appellant‘s second assignment of error not well-taken.
C. Disbursement Ordered
{43} In her third assignment of error, appellant challenges the timing of disbursement ordered as remedy by the trial court based on modification to the property distribution. Because we determined the trial court lacked authority to modify the order without consent of the parties, we must necessarily find the modified terms improper. Accordingly, appellant‘s third assignment of error is well-taken.
III. Conclusion
{44} For the forgoing reasons, we affirm, in part, the judgment of the Erie County Court of Common Pleas as to appellee‘s entitlement to relief from judgment pursuant to
Judgment affirmed, in part and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
Thomas J. Osowik, J.
Gene A. Zmuda, P.J.
CONCUR.
JUDGE
JUDGE
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/.