Sites v. SitesSites v. Sites
Brigham M. Anderson, Ironton, Ohio, for Appellant.
Robert C. Delawder, Ironton, Ohio, for Appellee.
CIVIL CASE FROM COMMON PLEAS COURT
{¶1} This is an appeal from a Lawrence County Common Pleas Court judgment that overruled a
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT DETERMINED THAT A MISTAKE OR EXCUSABLE NEGLECT WAS NOT MADE WHEN ATTORNEY LAMBERT INFORMED APPELLANT THAT APPELLEE WAS ENTITLED TO HALF OF APPELLANT‘S FULL MILITARY RETIREMENT PURSUANT TO
CIV.R. 60(B)(1) .”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT DETERMINED THAT THERE WAS NO FRAUD OR MISREPRESENTATION BY ATTORNEY LAMBERT WHEN HE INFORMED APPELLANT THAT APPELLEE WAS ENTITLED TO HALF OF HIS MILITARY RETIREMENT PURSUANT TO
CIV.R. 60(B)(5) .”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED WHEN IT DID NOT HOLD AN EVIDENTIARY HEARING TO DETERMINE THE PARTY‘S INTENT ONCE IT DETERMINED THAT QDRO WAS A LEGAL IMPOSSIBILITY TO APPELLANT‘S MILITARY RETIREMENT.”
{¶2} On November 2, 2002, the parties married for the third time. On July 30, 2020 the parties filed their petition for dissolution and separation agreement that, inter alia, addressed appellant‘s military retirement:
The wife will receive a monthly sum of $1445.00 per month from military retirement benefits. This shall begin August 2, [2]020 payable on or before the 10th of each month. A Qualified Domestic Relations Order (QDRO) will issue. The husband will pay the benefits directly to the wife until the month they are withheld from his retirement.
Each party will receive and maintain all rights to any other retirement benefits, annuities, 401K or similar benefits or work-related benefits he/she has at the time of this Agreement except as may be otherwise set forth herein.
{¶3} At the parties’ September 25, 2020 hearing, appellee appeared with counsel and appellant appeared pro se. When asked
{¶4} On December 2, 2020, appellant filed a
{¶5} At the hearing to consider the
{¶6} Appellee‘s trial counsel also testified at the hearing and recalled appellant‘s statement in a July office meeting that he would be “willing to give her $2,500 a month for five years. Then if she remarried it would go to half or at the end of five years it would go to half. And then she indicated she was willing to accept that if it did not decrease during the lifetime.” Counsel testified that appellant did not wish to pay
I don‘t think there was ever a discussion that she was entitled to half of that. That was more of a way of coming up with her, giving her the money that he had actually originally said he was willing to give her. The easiest way to do that was to give her money out of his retirement and then that way we didn‘t get into spousal support issues, uh made it easier for her to get her money every month, and I think even he agreed that that way he didn‘t have the money, it would come out of retirement, and then he didn‘t have to worry about it.
Appellee‘s counsel testified that he told the parties that “any retirement accumulated during the marriage she would be entitled to one half,” that he also believed appellee would be entitled to spousal support based on the inequities in the parties’ incomes, and the parties’ agreed upon amount constituted their agreement irrespective of various retirement funds. Counsel also testified that on at least two occasions, he changed the agreement at appellant‘s direction. Once, appellant came to counsel‘s office with proposed changes that counsel recommended to appellee she reject, but appellee nevertheless accepted those changes. Appellant also wanted the $2,500 monthly payments to be reduced by half if appellee remarried “because he knew she would be remarried.” Counsel further testified that appellant did not express or indicate any confusion about the agreement‘s terms and, although two months elapsed between the agreement‘s
{¶7} Appellant acknowledged that he agreed to the terms of the separation agreement, but maintained that his agreement stemmed from his misunderstanding of “the law” and that he subsequently learned that he had been “mislead [sic.].” Appellant testified that he and appellee married three separate times, most recently in November 2002, and he twice met with appellee‘s counsel and, when asked if he understood that counsel represented only appellee, he replied, “Yes and no.” In the original separation agreement, appellant agreed to pay $1,000 per month for three years if appellee babysat appellant‘s grandson three days per week, but appellant also wanted the agreement to continue only until appellee remarried. However, when the attorney said, “she wants three years of this money no matter what,” appellant asked, “what‘s the minimum I have to give her on my retirement because I said this is, that‘s not what we agreed upon.” Appellant further stated that appellee‘s
engaged in extended dialogue with Mr. Sites concerning his right to seek his own counsel and that the Court would grant a continuance if he wished to do that. Further, there was extended discussion concerning the agreement and the fact that he was in agreement with those terms. Mr. Sites had suggested changes to the Separation Agreement on several occasions, and most recently had requested and received a change to the Separation Agreement at the time of the hearing.
The magistrate further determined that (1) appellant confirmed to the court he agreed “with all terms of the final draft of the Separation Agreement,” (2) appellee‘s attorney testified that he told appellant that appellee “would be entitled to one-half of the marital portion of the military retirement,” and (3) appellant arrived at “a number” he was willing to pay, and “it was easier to use the one military retirement account rather than moving funds from two or three accounts” to achieve the desired and agreed upon goal. Also, despite the parties’ 18-year marriage, and the fact that appellant earned significantly more than appellee, no spousal support had been awarded nor any division of appellant‘s 11-year teacher‘s
{¶9} Appellant objected to the magistrate‘s decision but, after review, the trial court overruled the objections because the court had engaged in “extended dialogue” with appellant concerning his right to seek counsel and offered to continue the matter if he wished to consult counsel. Further, “there was an extended discussion concerning the agreement and the fact that he was in agreement with those terms,” that appellant suggested changes to the agreement on several occasions, and even during the hearing he requested, and received, a change to the agreement. The court noted that appellee‘s attorney testified he told appellant
Mrs. Sites would be entitled to one-half of the marital portion of the military retirement. Mr. Lambert further testified that Mr. Sites had arrived at ‘a number’ that he was willing to pay. Mr. Lambert testified it was easier to use the one military retirement account rather
than moving funds from two or three accounts in achieving the total desired.
The trial court further observed that, despite the parties’ 18-year marriage and the fact that appellant earned “significantly more” than appellee during their marriage, the agreement did not provide any spousal support or division of appellant‘s teacher‘s retirement fund. Consequently, the trial court denied appellant‘s motion for relief from judgment. This appeal followed.
I.
{¶10} In his first assignment of error, appellant asserts that the trial court erred when it denied his request for
{¶11} Under
- mistake, inadvertence, surprise or excusable neglect;
- newly discovered evidence which by due diligence could not have been discovered in time to move for a new
trial under Rule 59(B); - fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
- 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
- any other reason justifying relief from the judgment.
{¶12} To prevail on a motion under
{¶13} ”
{¶14} An appellate court‘s standard of review of a trial court‘s
{¶15} The dispute in the case sub judice involves the division of marital property. We recognize that
(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.
Recently, in Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460, the Supreme Court of Ohio addressed the
{¶16} Moreover, under
{¶17} The Tenth District also recently addressed
“‘[c]ourts should not generally use
Civ.R. 60(B)(1) to relieve pro se litigants who are careless or unfamiliar with the legal system.’ Gamble Hartshorn, LLC v. Lee, 10th Dist. No. 17AP-35, 108 N.E.3d 728, 2018-Ohio-980, ¶ 26, quoting Dayton Power & Light v. Holdren, 4th Dist. No. 07CA21, 2008-Ohio-5121, ¶ 12. We have also noted ‘[a] party who is informed of court action against him and fails to seek legal assistance does so at his risk and such conduct cannot be said to constitute “excusable neglect” underCiv.R. 60(B)(1) or (5) unless a compelling reason is presented, like a serious illness.’ Gamble Hartshorn, LLC at ¶ 29, quoting Yuhanick v. Cooper, 7th Dist. No. 96-CO-45, 1998 WL 811355, 1998 Ohio App. LEXIS 5527 (Nov. 16, 1998).”
{¶18} In the case sub judice, appellant argues that he, acting pro se, relied on appellee‘s attorney‘s representation that, according to his testimony, included incorrect information. However, our review of the record leads us to conclude that, at most, appellant‘s alleged reliance either constitutes a unilateral mistake, or, more likely, not a mistake
{¶19} Appellant argues that in Quesinberry v. Quesinberry, 2022-Ohio-635, 185 N.E.3d 1163 (2d Dist.), former wife filed a motion for relief from judgment and alleged that the parties had no meeting of the minds. Husband reported $149,000 in income, wife reported no income, their agreement awarded wife $85,000 from husband‘s retirement account, but provided no spousal support. Later, wife filed a
{¶20} Appellant contends that like Quesinberry, a mistake occurred in the case at bar. Appellee points out, however, that unlike Quesinberry‘s intentional misrepresentations, the case at bar does not involve an allegation that one party intentionally misled the other. Here, although we recognize that the evidence conflicts, appellant alleges that appellee‘s trial counsel provided inaccurate information regarding the division of retirement benefits.1 Although we recognize that Quesinberry attempted to distinguish Walsh and pointed out that their case “did not involve an attempt to use
{¶22} After our review in the case sub judice, we agree with the trial court‘s conclusion that appellant‘s actions more accurately represent a change of heart rather than a mutual mistake, or a mistake at all. As the trial court emphasized, a review of the hearing transcript reveals that appellant knew the military would not withhold funds. Further, the parties did not intend to apply a mechanical formula to arrive at a property division, but instead agreed on a number that each party accepted. As the trial court stated, “mistake does not encompass an error in judgment or remorse subsequent to the execution and acceptance of the agreement by the Court.” Consequently, we conclude that the trial court‘s determination in this matter does not constitute an abuse of the court‘s
{¶23} Accordingly, based upon the foregoing reasons, we overrule appellant‘s first assignment of error.
II.
{¶24} In his second assignment of error, appellant asserts that the trial court abused its discretion when it determined that appellee‘s trial counsel committed no fraud or misrepresentation.
{¶25} Appellant argues that in Dunford v. Dunford, 4th Dist. Gallia No. 13CA7, 2014-Ohio-617, the parties, married 30 years, entered into a separation agreement when husband had the benefit of counsel, but wife did not. Although the dissolution decree did not reserve jurisdiction to modify the spousal support
{¶26} After our review, we do not believe a significant parallel exists between Dunford and the facts in the case at bar. In Dunford, the petitioner, with a seventh-grade education and cognitive issues, also received threats of jail from husband‘s attorney if she did not agree to and sign the documents. In the case at bar, however, we find no evidence concerning appellant‘s lack of education, cognitive difficulties, or evidence of threats or fraud. Although
{¶27} Appellant also contends that Borzy v. Borzy, 9th Dist. Medina No. 3185-M, 2001-Ohio-1871 establishes that trial courts have the authority to clarify and construe an original property division provision to effectuate its judgment under
{¶28} Accordingly, because we conclude that the trial court did not abuse its discretion when it denied appellant‘s motion, we overrule appellant‘s second assignment of error.
III.
{¶29} In his final assignment of error, appellant asserts that the trial court abused its discretion when it did not hold an evidentiary hearing to determine the parties’ intent after the parties and the court became aware that a QDRO is a legal impossibility for appellant‘s military retirement. In the case at bar, the parties’ separation agreement provides “A Qualified Domestic Relations Order (QDRO) will issue,” but during the final hearing appellant informed the court that he learned the
{¶30} Appellant argues that in Franchini v. Franchini, 11th Dist. Geauga No. 2002-G-2467, 2003-Ohio-6233, although the court initially ordered a QDRO, the parties later discovered that instead a division of property order (DPO) would be required. The court concluded that the trial court should have conducted an evidentiary hearing to resolve factual disputes outlined in appellant‘s objection and the trial court‘s approval of signing an entry to reflect a settlement agreement when it appeared that material issues of fact remained unsettled constitutes an abuse of discretion. Id. at ¶ 19. Appellee points out, however, that Franchini involved a mutual mistake, whereas in the case sub judice although the separation agreement called for a QDRO, both parties knew at the time a QDRO was impossible and, in fact, at the final hearing appellant so informed the court. At that point, the parties discussed on the record the fact that the military would not honor a QDRO under their specific circumstances and further discussed alternative payment methods. Moreover, the parties discussed the creation of a separate bank account to help to facilitate the monthly payments.
{¶31} We believe that Walsh, supra, 157 Ohio St.3d 322, 2019-Ohio-3723, citing Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, is applicable here and restates that
a contrary rule would ‘relieve a litigant from the consequences of his voluntary, deliberate choice’ to enter into an agreement. Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353 (1986), paragraph two of the syllabus; see Morris at ¶ 38-41. Further, allowing such motions would be ‘antithetical to our principle of the finality of judgments,’ id. at ¶ 59, and encourage mischief by allowing those with the resources to do so ‘to bury their ex-spouses in a mountain of filings,’ id. at ¶ 60. Thus, even if we were to conclude that
R.C. 3105.171(I) did not apply, the trial court still lacked authority to modify the divorce decree.
{¶32} A
{¶33} Accordingly, based upon the foregoing reasons, we overrule appellant‘s assignments of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry these judgments into execution.
A certified copy of this entry shall constitute that mandate pursuant to
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY: Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.