Barbara A. Roubanes Luke, Plaintiff-Appellee/ Cross-Appellant, v. Matthew G. Roubanes, Defendant-Appellant/ Cross-Appellee.
No. 16AP-766 (C.P.C. No. 08DR-2851)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 23, 2018
[Cite as Roubanes-Luke v. Roubanes, 2018-Ohio-1065.]
KLATT, J.
(REGULAR CALENDAR)
DECISION
Rendered on March 23, 2018
On brief: Denison Law Office, and Sallynda Rothchild Dennison, for plaintiff-appellee. Argued: Sallynda Rothchild Dennison.
On brief: The Nigh Law Group LLC, Joseph A. Nigh and Courtney A. Zollars; Law Office of Margaret L. Blackmore LLC, and Margaret L. Blackmore, for defendant-appellant. Argued: Joseph A. Nigh.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic
KLATT, J.
{1} Defendant-appellant, Matthew G. Roubanes, appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, that granted plaintiff-appellee, Barbara A. Roubanes Luke, relief under Civ.R. 60(B). Luke cross appeals from the same judgment. For the following reasons, we affirm in part and reverse in part the trial court‘s judgment.
{2} Roubanes and Luke married in 1998 and had two children. On June 21, 2008, Luke filed a complaint for divorce. In an agreed order entered September 30, 2008, Luke assented to the requirement that she pay Roubanes $1,000 per month in temporary child support during the pendency of the divorce proceedings.
{3} On March 25, 2009, the trial court issued a scheduling order. The trial court required the parties to respond to all discovery requests by April 24, 2009, and it set August 10, 2009 as the trial date.
{4} Luke served her first set of interrogatories and requests for the production of documents on April 27, 2009-three days after the deadline for responding to such discovery. Luke served a second set of interrogatories on June 5, 2009. When Roubanes only turned over two documents in response to Luke‘s discovery requests, Luke did not move to compel. Rather, on July 30, 2009, Luke filed a motion in limine requesting that the trial court prohibit Roubanes from offering any undisclosed documentary evidence at trial.
{5} The record contains no ruling on Luke‘s motion in limine, likely because Roubanes and Luke agreed to resolve all disputed issues in a summary trial. In such a trial, each party informally presents evidence to a judge. No transcript of the proceedings is made.
{6} According to Roubanes and Luke, during their summary trial, they presented the trial judge with information regarding their assets and debts. Using the information the parties provided, the trial judge recorded in a “Domestic Trial Summary Form” the parties’ assets and debts, along with a value for each. (Pl.‘s Ex. 24, Roubanes Dep.) The trial judge then proposed a division of the marital property, to which both Roubanes and Luke agreed.
{7} In a judgment dated August 27, 2009, the trial court granted the parties a divorce, divided their marital property in the manner agreed to at the summary trial, and approved the shared parenting plan to which the parties agreed. The shared parenting plan required Luke to
{8} Luke did not pay the child support due, and a post-divorce arrearage began to accumulate. Roubanes filed motions for contempt when Luke failed to pay child support, fees owed to the guardian ad litem, and attorney fees awarded to him. Roubanes prevailed on a number of these motions. Luke eventually requested that the trial court modify the amount of child support due. The trial court granted Luke‘s motion and decreased the amount of her monthly child support obligation. This post-divorce litigation resulted in two appeals to this court. See Roubanes v. Roubanes, 10th Dist. No. 14AP-183, 2014-Ohio-5163; Roubanes v. Roubanes, 10th Dist. No. 13AP-369, 2013-Ohio-5778.
{9} On July 14, 2015, Luke filed a motion seeking relief under
{10} In opposing Luke‘s motion for
{11} The trial court held a hearing on Luke‘s
{12} In a judgment issued October 14, 2016, the trial court granted Luke‘s motion in part and denied it in part. First, the trial court examined affidavits that Roubanes had submitted to the court in 2008 and 2009. In the 2008 affidavit, Roubanes stated that his annual income was $6,000. In the 2009 affidavit, Roubanes stated that his annual income had risen to $7,200. The trial court compared Roubanes’ representations to Luke‘s affidavit testimony, presented in support of her
{13} The trial court found it mathematically impossible for an individual with such low annual income to amass the funds necessary to deposit such large sums. Thus, the trial court concluded that Roubanes had misrepresented his 2008 and 2009 annual incomes in his affidavit testimony. Additionally, the trial court decided that Roubanes had falsely testified regarding his 2008 income because he had claimed $4,500 in net monthly receipts in his 2008 budget and his budgeted expenses for 2008 far outstripped his reported income. Based upon its analysis of the evidence, the trial court determined that Roubanes had committed fraud upon the court, which justified granting Luke relief under
{14} The trial court then turned to fashioning relief for Luke. According to the trial court, Roubanes’ misrepresentations regarding his income caused the court to issue inequitable child support orders and erroneously rule in Roubanes’ favor when he moved for contempt based on non-payment of child support. Thus, the trial court concluded that Roubanes’ fraud on the court warranted granting Luke relief from all child support orders and ordering Roubanes to reimburse Luke for the attorney fees awarded to Roubanes in connection with the findings of contempt.
{15} The trial court next considered Luke‘s allegations that Roubanes had failed to disclose certain marital assets and misrepresented the value of other marital assets. The trial court concluded that these allegations, if true, only amounted to the type of fraud
contemplated by
{16} Both Roubanes and Luke appealed the October 14, 2016 judgment. However, neither party has asserted any assignments of error. Pursuant to
{17} Appellate courts have discretion to dismiss appeals that fail to set forth assignments of error. CitiMortgage, Inc. v. Asamoah, 10th Dist. No. 12AP-212, 2012-Ohio-4422, ¶ 5; Tonti v. Tonti, 10th Dist. No. 06AP-732, 2007-Ohio-2658, ¶ 2. Many times, however, appellate courts instead review the appealed judgment using the appellant‘s arguments in the interest of serving justice. Asamoah at ¶ 6; Tonti at ¶ 2. We will follow that path in this case.
{18} For Roubanes, we draw assignments of error from the section headings in his appellant‘s brief. Thus, Roubanes assigns as error:
[1.] The trial court erred when it found that Appellant committed “fraud upon the court” and granted Cross-Appellant‘s Motion for Relief pursuant to Civ.R. 60(B) .[2.] The trial court erred and abused its discretion when it found Cross-Appellant‘s Motion for 60(B) [sic] was filed in a timely manner.
[3.] Trial court abused its discretion when they [sic] found that any and all child support orders naming Cross-Appellant as the obligor were released and any attorney fees awarded to Appellant were to be reimbursed.
[4.] The trial court‘s failure to recuse itself from this matter prior to holding a hearing on Cross-Appellant‘s Motion for 60(B) [sic] Relief, or prior to issuing a decision, was an abuse of discretion and violation of the Judicial Cannons [sic].
(Emphasis deleted.)
{19} For Luke, we extract an assignment of error from the statement of issues contained in the cross-appellant‘s brief. Thus, Luke assigns as error:
[T]he trial court abused its discretion by failing to find that Defendant/Appellant‘s misrepresentation of the property value in West Virginia as $800 at the time of the divorce also constituted fraud upon the court and was therefore timely raised by Plaintiff/Cross-Appellant.
(Emphasis deleted.)
{20} By Roubanes’ first assignment of error, he argues that the trial court erred in finding that he committed fraud upon the court and granting Luke relief under
{21} Pursuant to
- (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.
{22} A court may grant relief under
{23} Courts carefully distinguish between fraud upon the court, which is a basis for relief from judgment under
{24} Due to this narrow construction, in the usual case, fraud in the presentation of evidence amounts to fraud
{25} In Scholler v. Scholler, 10 Ohio St.3d 98 (1984), the Supreme Court of Ohio considered whether a fraud upon the court occurred based on an ex-wife‘s allegation that her ex-husband fraudulently withheld critical financial information and misrepresented his financial status during negotiation of a separation agreement. The court defined “fraud upon the court” “as the situation ‘[w]here an officer of the court, e.g., an attorney * * * actively participates in defrauding the court * * *.’ ” Id. at 106, quoting Coulson at 15. Because the ex-wife alleged that the adverse party-not an officer of the court-had committed the fraud at issue, the court concluded that the ex-wife had not established fraud upon the court. Id.
{26} Subsequently to Scholler, multiple Ohio courts, including this court, have concluded that, if the alleged fraud occurred between the parties,
{27} Here, the trial court concluded that Roubanes committed a fraud on the court because he misrepresented his income for 2008 and 2009 in affidavits that he submitted to the court. We will assume, without deciding, that the trial court correctly found that Roubanes engaged in fraud by falsely testifying about his income. Therefore, the issue becomes whether Roubanes committed fraud on the court, or on Luke. We conclude that Roubanes’ false testimony constituted fraud on Luke. Roubanes’ fraud is the kind of fraud either rooted out through the adversary process or corrected post-judgment through the application of
{28} Nevertheless, Luke could establish the level of egregiousness necessary for establishing fraud upon the court by showing that an officer of the court participated in Roubanes’ fraud. Luke did not argue or present evidence to the trial court that an officer of the court was involved in the fraud at issue. Now, on appeal, Luke argues for the first time that a fraud upon the court occurred because Roubanes, as a pro se litigant, was the equivalent of an officer of the court.
{29} Generally, a party waives the right to appeal an issue that the party could have, but did not, raise before the trial court. Columbus City School Bd. of Edn. v. Franklin Cty. Bd. of Revision, 144 Ohio St.3d 549, 2015-Ohio-4837, ¶ 14; Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, ¶ 34. Because Luke did not argue before the trial court that Roubanes was, in effect, an officer of the court, she waived that argument on appeal. This court, therefore, need not consider Luke‘s argument.
{30} Moreover, even had Luke not waived her argument, she cannot prevail on it. An “officer of the court” is ” ‘[a] person who is charged with upholding the law and administering the judicial system[;] typically, officer of the court refers to a judge, clerk, bailiff, sheriff, or the like, but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court.’ ” (Emphasis sic.) Wilkerson, 2014-Ohio-1322, at ¶ 19, quoting Black‘s Law Dictionary 1119 (8th Ed.2004). A pro se litigant is not an officer of the court and, consequently, cannot commit a fraud upon the court. Gerber v. Gospich, 8th Dist. No. 60832 (Nov. 7, 1991); accord Damiani v. Duffy, D.Del. No. 12-1637-RGA, 2017 U.S. Dist. LEXIS 21922 (Feb. 16, 2017); Vaughan v. Brigham, E.D.Ken.
No. 3: 10-05-DCR, 2011 U.S. Dist. LEXIS 72187, 2011 WL 2633369 (July 5, 2011), aff‘d, 6th Cir. No. 11-5981, 2012 U.S. App. LEXIS 21754 (May 9, 2012); Florence v. Donald, S.D.Ga. No. CV 306-087, 2008 U.S. Dist. LEXIS 31259, 2008 WL1758796 (Apr. 16, 2008).
{31} In sum, Luke failed to prove that fraud upon the court occurred in this case. We thus conclude that the trial court erred in finding that Roubanes committed a fraud upon the court and
{32} Given our ruling on Roubanes’ first assignment of error, we must reverse the trial court‘s judgment to the extent that it grants Luke relief from the orders requiring Luke to pay child support and Roubanes’ attorney fees. Roubanes’ remaining assignments of error advance alternative reasons for reversing the same portion of the judgment. Thus, our determination of Roubanes’ first assignment of error renders moot the remaining assignments of error. We, consequently, will not rule on the second through fourth assignments of error.
{33} By Luke‘s cross assignment of error, she argues that the trial court erred in refusing to find that Roubanes engaged in fraud upon the court by misrepresenting the value of real property the couple owned in West Virginia. We disagree.
{34} During the parties’ marriage, Roubanes purchased a house in West Virginia. Immediately prior to the summary trial, Roubanes filed a “Statement of Assets and Liabilities” in which he valued the West Virginia property at $38,640 and represented that the mortgage on the property amounted to $37,834.04. No transcript was made of the summary trial, so we have no record of exactly what Roubanes told the trial judge about the West Virginia property‘s value during the summary trial. When asked at his deposition what he said at the summary trial, Roubanes stated that the value he offered “came right off the tax statement. It came right off the assessed value statement; and I would be guessing, but I think it was thirty-six or thirty-eight thousand dollars.” (Roubanes Dep. at 298-99.)
{35} The trial judge included the West Virginia property in the “Domestic Trial Summary Form,” but he did not note in the form the appraised value of the property or the amount owed on the mortgage. Instead, the form only lists the “equity value” of the West Virginia property at $800. (Pl.‘s Ex. 24, Roubanes Dep.) This value is consistent with the figures Roubanes reported in his “Statement of Assets and Liabilities,” which reflected that the equity value of the West Virginia property was $805.96. The trial court used the $800 value when dividing the parties’ marital property.
{36} During the
{37} Applying the law set forth above, we conclude that the alleged misrepresentation of the West Virginia property‘s value is not fraud upon the court. Luke merely complains that Roubanes falsely testified about the value of a marital asset. She does not claim that an officer
{38} In making her appellate argument, Luke cites precedent from this court holding that a trial court may grant relief under
{39} The above-cited cases are irrelevant to this case for two reasons. First, Luke‘s assignment of error only asserts that the trial court erred in failing to find fraud upon the
court due to Roubanes’ alleged misrepresentation regarding the West Virginia property. Because Luke‘s assignment of error does not contend that the trial court erred in failing to grant her
{40} In sum, we conclude that the trial court did not err in determining that Roubanes did not engage in fraud upon the court when he allegedly misstated the value of the West Virginia property. Accordingly, we overrule Luke‘s assignment of error.
{41} For the foregoing reasons, we sustain Roubanes’ first assignment of error, which moots the second through fourth assignments of error. Additionally, we overrule Luke‘s sole assignment of error. We thus reverse the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, to the extent that it granted Luke
Judgment affirmed in part; reversed in part.
BROWN, P.J., and BRUNNER, J., concur.