Accountius v. Accountius , 2012 Ohio 711 ( 2012 )

[Cite as Accountius v. Accountius, 2012-Ohio-711.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VERONICA A. ACCOUNTIUS JUDGES:
Hon. W. Scott Gwin, P. J.
Petitioner-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 11 CA 62
BARRY A. ACCOUNTIUS
Petitioner-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 2010 DR 0683
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 13, 2012
APPEARANCES:
For Petitioner-Appellee For Petitioner-Appellant
JACQUELINE L. KEMP DEBORAH L. KENNEY
KEMP, SCHAEFFER & ROWE DEBORAH L. KENNEY LPA
88 West Mound Street One South Park Place
Columbus, Ohio 43215 Newark, Ohio 43055
Licking County, Case No. 11 CA 62 2
Wise, J.
{¶1} Appellant Barry A. Accountius appeals from the denial of his request for
relief from judgment subsequent to a dissolution of marriage in the Licking County Court
of Common Pleas. Appellee Veronica A. Accountius is appellant's former spouse. The
relevant facts leading to this appeal are as follows.
{¶2} Appellant and appellee were married in March 1987. Three children, S.A.,
E.A., and O.A., were born of the marriage, one of whom was emancipated shortly after
the commencement of this appeal. On April 30, 2010, appellant and appellee filed a
petition for dissolution of marriage. After the requisite appearances and hearing, the trial
court granted the dissolution on June 3, 2010.
{¶3} The decree of dissolution provided that appellee is the residential and
custodial parent of S.A. and E.A, while appellant is the residential and custodial parent
of O.A.
{¶4} The decree further provided that appellant would pay appellee spousal
support in the amount of $2,462.00 per month, to terminate upon appellee’s remarriage
or death. The decree did not provide for spousal support to terminate upon appellee’s
cohabitation with an unrelated male. The decree also expressly stated that the court did
not retain jurisdiction to modify spousal support.
{¶5} In respect to child support, the court ordered appellant to pay child support
of $440.69 per month, plus processing charge, employing a split custody worksheet
showing appellee as custodian of two children and appellant as custodian of one child.
On the worksheet, appellant's income was calculated at $63,000.00; appellee's income
was calculated at $42,250.00.
Licking County, Case No. 11 CA 62 3
{¶6} Appellee also received the house, her retirement monies, and certain
financial accounts as assets.
{¶7} On March 1, 2011, approximately nine months after the dissolution
decree, appellant filed a motion for relief from judgment, citing Civ.R. 60(B)(1), (4), and
(5). He therein sought relief from spousal support, child support, and property division.
Appellant also filed therein a request for a modification of child support, based upon the
pending emancipation of the parties’ oldest child.
{¶8} Appellee filed a memorandum in opposition to appellant’s motion for relief
from judgment on March 14, 2011.
{¶9} On May 12, 2011, the trial court overruled the motion for relief from
judgment.1
{¶10} On June 9, 2011, appellant filed a notice of appeal. He herein raises the
following five Assignments of Error:
{¶11} “I. THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM
JUDGMENT IN THAT THE CHILD SUPPORT WORKSHEET FILED IN THE PARTIES’
DISSOLUTION CONTAINED PLAIN ERROR.
{¶12} “II. THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM
JUDGMENT IN THAT THE SPOUSAL SUPPORT ORDER WAS UNCONSCIONABLE.
{¶13} “III. THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM
JUDGMENT IN THAT THE APPELLEE RECEIVED AN INEQUITABLE PROPERTY
SETTLEMENT.
1
The request for post-decree modification of child support was set for further hearing,
and was later ruled upon by the trial court. That part of the decision is not an issue in
this appeal.
Licking County, Case No. 11 CA 62 4
{¶14} “IV. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR IN CONTINUING EXISTING ORDERS FOR PAYMENT OF
CHILD SUPPORT, SPOUSAL SUPPORT AND PROPERTY DIVISION.
{¶15} “V. THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN
EVIDENTIARTY (SIC) HEARING PRIOR TO OVERRULING APPELLANT’S MOTION
FOR RELIEF FROM JUDGMENT.”
I.
{¶16} In his First Assignment of Error, appellant argues the trial court erred in
denying relief from judgment, particularly as to the order of child support in the parties’
dissolution decree. We disagree.
Standard of Review
{¶17} Civ.R. 60(B) reads as follows: “On motion and upon such terms as are
just, the court may relieve a party or his legal representative from a final judgment, order
or proceeding for the following reasons:
{¶18} “(1) mistake, inadvertence, surprise or excusable neglect;
{¶19} “(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);
{¶20} “(3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party;
{¶21} “(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
Licking County, Case No. 11 CA 62 5
{¶22} “(5) any other reason justifying relief from the judgment. The motion shall
be made within a reasonable time, and for reasons (1), (2) and (3) not more than one
year after the judgment, order or proceeding was entered or taken. * * *.”
{¶23} In order to prevail on a motion brought pursuant to Civ.R. 60(B), “ * * * the
movant must demonstrate that (1) the party has a meritorious defense or claim to
present if relief is granted; (2) the party is entitled to relief under one of the grounds
stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable
time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one
year after the judgment, order or proceedings was entered or taken.” Argo Plastic
Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391, 474 N.E.2d 328, citing GTE
Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,
paragraph two of the syllabus. If any prong of this requirement is not satisfied, relief
shall be denied. Argo at 391, 474 N.E.2d 328.
{¶24} Civ.R. 60(B) represents an attempt to “strike a proper balance between
the conflicting principles that litigation must be brought to an end and justice should be
done.” Colley v. Bazell (1980), 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (citation
omitted). A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound
discretion of the trial court and a ruling will not be disturbed absent an abuse of
discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. An abuse of
discretion connotes more than an error of law or judgment, it implies the court's attitude
is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140.
Licking County, Case No. 11 CA 62 6
Analysis
{¶25} In appellant's motion for relief from judgment, he maintained that the child
support guideline worksheet did not include a deduction from appellant's income for the
annual spousal support ordered paid to appellee in the amount of $29,544.00 per year
(based on $2,462.00 per month), and that the worksheet did not include said sum of
$29,544.00 as income for appellee. See R.C. 3119.01(C)(7); R.C. 3119.022 worksheet,
line 10.2
{¶26} In the case sub judice, the trial court’s judgment entry denying appellant’s
60(B) motion noted that appellant had signed the separation agreement at the time of
the dissolution and that he had told the court that he read, understood, and agreed to it.
The record before us indicates that appellant also knowingly proceeded on the
dissolution without his own counsel. Appellant directs us to our decision in Collins v.
Collins, Licking App.No. 2008-CA-00028, 2008-Ohio-4993, in which we recognized that
a trial court must deduct spousal support from the income of the obligor and include it
as income on the obligee's side of the worksheet. Id. at ¶10. However, Collins was a
direct appeal from a divorce, not an appeal from the denial of relief from judgment in a
dissolution (as here), and we thus find Collins to be procedurally distinguishable.
{¶27} Upon review, we hold the trial court did not abuse its discretion or commit
reversible error in denying appellant's Civ.R. 60(B) motion regarding child support.
Appellant's First Assignment of Error is therefore overruled.
2
Technically speaking, these portions of the Revised Code reference spousal support
actually “received” or “paid,” in the past tense. Obviously, at the time of the decree, the
payments were still prospective. However, neither party has discussed this issue in the
briefs, and we will not herein further consider it.
Licking County, Case No. 11 CA 62 7
II.
{¶28} In his Second Assignment of Error, appellant argues the trial court erred in
denying relief from judgment, particularly as to the order of spousal support in the
parties’ dissolution decree. We disagree.
{¶29} We have recognized that in domestic relations proceedings in Ohio, “ ***
parties are free to negotiate a contract which may favor one side or other. Such a
separation agreement is enforceable as long as it was not procured by fraud, duress,
overreaching, or undue influence. So long as the terms are not so one sided as to be
unconscionable, a court should enforce the parties' agreement.” Russell v. Russell,
Stark App.No. 98-CA-1027, 1999 WL 437003, citing MacNealy v. MacNealy (October
31, 1997), Clark App. No. 96CA125, 1997 WL 674622.
{¶30} Appellant presently contends that the spousal support order is
unconscionable. See Appellant’s Brief at 10. The gist of this claim is that spousal
support cannot be modified should appellee cohabitate with another man in the future,
and that there is no reservation of jurisdiction to modify spousal support should the
parties’ financial circumstances change in the future. Id.{¶31} However, we are herein guided by the well-established rule of law that a
party may not use a Civ.R. 60(B) motion as a substitute for a timely appeal. See Doe v.
Trumbull Cty. Children Services Bd. (1986), 28 Ohio St.3d 128, 502 N.E.2d 605,
paragraph two of the syllabus. While claims of unconscionable terms such as those
raised by appellant are not necessarily always confined solely to a direct appeal from a
divorce or decree, under the circumstances of the case sub judice, we hold the trial
Licking County, Case No. 11 CA 62 8
court did not abuse its discretion or commit reversible error in denying appellant's Civ.R.
60(B) motion regarding spousal support.
{¶32} Appellant's Second Assignment of Error is therefore overruled.
III.
{¶33} In his Third Assignment of Error, appellant argues the trial court erred in
denying relief from judgment regarding the issue of the property division in the parties’
dissolution decree. We disagree.
{¶34} Appellant contends that the parties' property division was inequitable
based upon appellant's agreement to give appellee approximately $40,000.00 from his
retirement account. Appellant essentially maintains that the retirement distribution was
not equitably offset by other property division provisions, noting appellee received the
marital residence, her retirement monies, and a certificate of deposit. Appellant further
alleges that there was a lack of mutuality and understanding as to property division in
the decree.
{¶35} We again note that appellant is seeking to vacate terms of a dissolution
and corresponding property resolution to which he voluntarily agreed. This Court has
emphasized that “[n]either a change of heart nor poor legal advice is a ground to set
aside a settlement agreement.” Pastor v. Pastor, Fairfield App.No. 04 CA 67, 2005-
Ohio-6946, ¶ 18, citing Walther v. Walther (1995), 102 Ohio App.3d 378, 383, 657
N.E.2d 332. In the case sub judice, we find it would have been within the trial court’s
discretion to determine that appellant had agreed to the challenged property division
terms as part of his negotiation process in terminating the parties’ marriage.
Licking County, Case No. 11 CA 62 9
{¶36} We hold the trial court did not abuse its discretion or commit reversible
error in denying appellant's Civ.R. 60(B) motion regarding property division.
{¶37} Appellant's Third Assignment of Error is therefore overruled.
IV.
{¶38} In his Fourth Assignment of Error, appellant contends the trial court
abused its discretion by “continuing existing orders” from the dissolution decree. We
disagree.
{¶39} Appellant’s argument at this juncture essentially revisits the issues
previously raised in his brief, mostly on the basis that the trial court should have more
thoroughly reviewed the pleadings and orders in the dissolution case for any inequities
therein. See Appellant’s Brief at 16. However, a presumption of regularity attaches to all
trial court proceedings (see, e.g., Chari v. Vore (2001), 91 Ohio St.3d 323, 325, 744
N.E.2d 763) and we find appellant fails to overcome such presumption in the case sub
judice.
{¶40} Accordingly, appellant's Fourth Assignment of Error is overruled.
V.
{¶41} In his Fifth Assignment of Error, appellant contends the trial court abused
its discretion by failing to conduct a hearing on his motion for relief from judgment. We
disagree.
{¶42} Generally, “[i]t is an abuse of discretion for a trial court to overrule a Civ.R.
60(B) motion for relief from judgment without first holding an evidentiary hearing only if
the motion or supportive affidavits contain allegations of operative facts which would
warrant relief under Civ.R. 60(B).” In re Estate of Kirkland, Clark App.No. 2008–CA–57,
Licking County, Case No. 11 CA 62 10
2009–Ohio–3765, ¶ 17, quoting Boster v. C & M Serv., Inc. (1994), 93 Ohio App.3d 523,
526, 639 N.E.2d 136 (emphasis in original).
{¶43} In light of our previous analysis herein, we find no merit in appellant’s
claim that the lack of an evidentiary hearing on his 60(B) motion constituted reversible
error under the facts and circumstances of this case.
{¶44} Appellant's Fifth Assignment of Error is therefore overruled.
{¶45} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Domestic Relations Division, Licking County, Ohio, is hereby
affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
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___________________________________
___________________________________
JUDGES
Licking County, Case No. 11 CA 62 11
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VERONICA A. ACCOUNTIUS :
:
Petitioner-Appellee :
:
-vs- : JUDGMENT ENTRY
:
BARRY A. ACCOUNTIUS :
:
Petitioner-Appellant : Case No. 11 CA 62
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Domestic Relations Division, Licking County,
Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES